MCBURNEY and OBREMSKI
[2023] FCWA 16
•1 FEBRUARY 2023
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: DUNCAN and DYNOWICZ [2023] FCWA 16
CORAM: O'BRIEN J
HEARD: 10, 11, 12, 13 OCTOBER, 4 NOVEMBER 2022
DELIVERED : 1 FEBRUARY 2023
FILE NO/S: 3817 of 2009
BETWEEN: MR DUNCAN
Applicant
AND
MS DYNOWICZ
Respondent
Catchwords:
PARENTING - Where after the parties separated and divorced, the husband agreed to be a "known donor" so the wife could conceive - Where the agreement was purportedly conditional on the husband having no financial responsibility for the child and no involvement in her life - Where the child is now 12 and is cautiously curious about her father - Where the father lives in the USA and seeks equal shared parental responsibility and equal time for three to four months per year in Perth - Turns on its own facts.
Legislation:
Family Law Act 1975 (Cth)
Category: Reportable
Representation:
Counsel:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Mr D Squires |
Solicitors:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | DSA Legal |
Case(s) referred to in decision(s):
A v A (1998) FLC 92-800
Banks & Banks (2015) FLC 93-637
Bondelmonte v Bondelmonte and Anor (2017) 259 CLR 662
Harris v Caladine (1991) 172 CLR 84
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Ors [1983] 3 NSWLR 378
L v P [2022] WASCA 40
Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438
McBurney and Obremski [2022] FCWA 128
McCall & Clark (2009) FLC 93-405
Minister for Immigration and Citizenship v SZGUR and Anor (2011) 241 CLR 594
Pinson & Pinson (No 2) [2020] FamCAFC 111
R and R Children’s wishes (2000) FLC 93-000
Re C and D (1998) FLC 92-815
Re D (a child) (abduction rights of custody) [2007] 1 All ER 783
Stott & Holgar and Anor [2017] FamCAFC 152
Vallans v Vallans (2019) 60 Fam LR 193
Whisprun Pty Ltd (formerly Northeast Exports Pty Ltd) v Dixon (2003) 200 ALR 447
Withers & Russell and Anor [2016] FamCA 793
Yardlay & Commissioner of Police (2020) FLC 93-981
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Duncan and Dynowicz has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).
1[Mr Duncan] ("the husband") is a [redacted] American lawyer who lives in [USA State A]. [Ms Dynowicz] ("the wife") is a [redacted] [professional] who was born in the United States of America (“USA”) but moved to Perth with her family in 1983 and has lived here since.
2The parties met in Perth, when the husband was working at [Professional Service A]. They were married in September 2004 and separated in October 2007, at which time the husband returned to live in the USA where he has remained. They were divorced in October 2009.
3The wife wanted to have a child. She preferred to conceive to a known donor. Initially, she approached a previous de facto partner for that purpose, but that discussion did not proceed. She then approached the husband, who agreed but subject to him being "adequately protected", most particularly from any form of child support obligation. In an email to the wife dated 29 October 2009 he indicated that he envisioned a number of documents operating to record the proposed agreement. He summarised the proposal as being that the parties would be irrevocably "locked into" agreements whereby:
This will be your child. I will have no right to interfere, or tell you how to raise it. You get exactly what you have wanted. But you must come to terms with the fact that the financial costs of raising this child will be solely yours.
4The parties entered into a written agreement ("the Agreement"), characterised as a Binding Financial Agreement made pursuant to s 90D of the Family Law Act 1975 (Cth) ("the Act"), on 22 December 2009. Each received independent advice from lawyers in Perth practising predominantly in family law.
5The Agreement recited the agreement of the husband to be the wife's "known donor" on the condition he "not be compelled by any means or person whatsoever to provide spousal support, child support or any other financial support whatsoever". It recited the additional agreed condition that if a child was conceived the husband would:
Not endeavour to exercise any parental rights in respect of the child and will not seek to spend time with that child nor will he make any application to a Court of competent jurisdiction to seek any orders whatsoever in relation to the child.
6The operative provisions of the agreement, while referring to and incorporating the recitals, provided simply for each party to retain their own property to the exclusion of the other and precluded each from making any spousal maintenance claim.
7The Agreement also included various other operative provisions apparently drafted by or at the behest of the husband providing, for example, that if either party sought to challenge the Agreement in any court, that party would pay all associated costs and expenses of the other party on an indemnity basis and, nonsensically, that each breach of the Agreement would "incur a penalty of $25,000 payable by the non‑breaching party" (emphasis added).
8In correspondence between the husband and the wife's then lawyer prior to the preparation and execution of the Agreement, the lawyer expressed the clear view that no such agreement could contain effective operative clauses either extinguishing "parental rights" nor forever precluding any future claim for child support. The suggestion emerged that the husband could execute a separate agreement with the wife's father [Mr A] by which Mr A would indemnify him in relation to any child support assessment made or child maintenance order obtained. In that manner, the husband would achieve the protection from financial claims he sought. In due course, an agreement in those terms was executed on 26 December 2009 ("the collateral agreement"). The collateral agreement was prepared on the husband's instructions by his lawyer.
9The parties then acted on their agreement, and their child [Child A] was born on 20 September 2010. The husband left Western Australia shortly after Child A's conception. He has not returned other than for a scheduled trial in these proceedings in December 2019.
10The relationship between the husband and Mr A is, to put it mildly, problematic. The husband at one point joined Mr A as a party to the proceedings. He has referred extensively to an incident on 8 February 2010, the day before his scheduled departure from Perth, when he had a cup of coffee with Mr A's former partner, [Ms B], and Mr A's reaction to that. The husband identifies the "cup of coffee incident" as permeating ongoing interactions between the parties and affecting the wife's attitude to him.
11The importance attached to that incident, and it must be said the unusual and transactional approach taken by the husband more generally, are exemplified by the terms of a will executed by him on 5 November 2015 and sent both to the wife and to Mr A. By that will, the husband left the bulk of his estate to be placed in a testamentary trust called "The Cup of Coffee with Ms B Testamentary Trust", the purposes of which were stated to be as follows:
To lament and memorialise [the wife's] exclusion of me from my daughter for the first five years of her life, because I had a cup of coffee with her father's ex-fiancée; and
To incentivise [the wife] to expeditiously enter a mutually agreeable cooperative parenting agreement with me, allowing me to be at least a minimal part of Child A's life, or else cause Child A to forfeit any and all benefits or inheritances under this will.
12Child A was expressed to be an eligible beneficiary of the trust only if the wife concluded:
A mutually agreeable cooperative parenting agreement… before 15 January 2016, and adheres to the letter and spirit of that agreement until Child A is 18.
13The will contained a further provision requiring that a copy of it, copies of documents and attachments to it, and the information and passwords to two email addresses created in her name, be provided to Child A no earlier than her 18th birthday. Included in the documents to be provided to Child A on her 18th birthday was a letter from the husband. The tenor of the letter is encapsulated in a small extract:
In that crucial first half decade of life, whenever a child's personality and psych are formed, your mom and grandfather did everything possible to keep us apart; everything possible to keep us from knowing each other; everything possible to prevent you from knowing and having the love of your father.
Because I had a Cup of Coffee with [Mr A]'s ex-fiancée.
They used you, and still using you, to further a grudge against me, for a Cup of Coffee, six years ago.
And they don't seem to care if you suffer so they can carry on their grudge.
14In a separate email sent in August 2016, described as an "explanation for [Child A]" to be provided to her upon his death, the husband described the wife's father as having a "mental illness that springs from being abandoned by his own father as a child" causing him to "blithely hurt those he supposedly loves". It described Mr A as a "self-centred only child with impulse control issues" and the like. In April 2014, he emailed the wife a copy of an email he had sent to her father expressing his intention to ensure that all Mr A's children and grandchildren, including Child A, saw emails which might well be his "epitaph", asking him to:
Imagine [Child A] at 15, reading this (and other) emails exposing you, realising how she was kept from me and made to suffer, maybe even lost her college tuition because YOU had a problem with my 15 Minute Cup of Coffee with [Ms B] in 2010.
15In early 2011, the wife visited relatives in the USA. During that visit, the husband spent time with both the wife and Child A. Child A has not had physical contact with him since. After the wife returned to Perth, she maintained some Skype communication with the husband, in which Child A participated to the extent possible. That communication ended in April 2014 and has not resumed.
The proceedings
16The husband commenced proceedings by filing an application on 16 August 2017. He sought final orders for the wife to have sole parental responsibility (albeit with a requirement to consult) and for Child A to continue living with her. He sought “unfettered communication with [Child A]", and "substantial and significant time" with her while he is in Australia or while she is in the USA. He sought specific orders in relation to electronic communication with Child A and the exchange of photographs and information between the parties, the provision of gifts and letters to Child A, and orders compelling the wife to install and assist Child A to use educational apps which had been provided by him. If visiting Australia, he proposed that he spend time with Child A not more than once per year and for not more than 14 days total, and that Child A spend "at least one third of any time in the US” with him. He otherwise sought various specific issues orders which need not be recounted in detail.
17The wife filed a response on 12 October 2017. She sought final orders for sole parental responsibility, authority to take Child A overseas for a holiday and dispensing with the need for the husband's consent for Child A's passport to issue, and that she be at liberty to particularise any proposed orders regarding Child A's communication or time with the husband "after receiving and considering recommendations from an expert child psychologist".
18On 25 January 2018, a Magistrate ordered the husband to obtain advice from the [Counselling Service] with respect to his relationship with Child A. The wife was ordered to contact the same service and facilitate Child A attending upon the service "to discuss her concerns with a counsellor". A further order was made that the parties were to "be guided by the recommendations of the service provider in relation to the best way to move forward". The somewhat curious nature of that order as expressed need not be commented on further for present purposes.
19The parties engaged with [Ms C] of the Counselling Service in accordance with those orders. Both parties engaged with her for intake sessions, and she met with Child A on 20 March 2018. On 18 May 2018, Ms C advised the parties that she would not be "taking on the case" in the manner contemplated but would still be prepared to provide counselling to Child A.
20On 5 June 2018, the Magistrate included the proceedings in her Defended List and made orders to progress to a Readiness Hearing. At the Readiness Hearing on 5 December 2018, the Magistrate made orders removing the matter from her Defended List and including it in the Judges Defended List with an estimated hearing time of three to four days. The proceedings were then listed for trial before Duncanson J commencing on 18 December 2019.
21On 19 December 2019 interim orders were made in terms proposed by the parties. The orders required the husband to engage with [Mr D] as his therapist "in a method as recommended by [Mr D] for the purpose of [the husband] being re-introduced to, advancing communication with and spending time with" Child A, and to follow his recommendations. The agreed orders also provided for the wife and Child A to attend upon Ms C, with the wife being required to follow her recommendations "with the view of preparing [Child A] to communicate with or spend time with the [husband]". The parties were required to direct Mr D and Ms C to confer with each other and provide advice as to the best path forward.
22On the undertaking of the husband not to "invoke or seek to enforce the terms of" the collateral agreement, further orders were made requiring the husband to meet the costs of relevant attendances on and reports by Mr D and Ms C. The proceedings were adjourned for monitoring.
23Child A then attended sessions with Ms C as contemplated by the orders. By June 2020, Child A had attended 14 such sessions. As the contemplated path forward was for Child A to begin engagement with the husband, the wife took steps with the assistance of Ms C to provide Child A with information about him. Among other things, she told Child A that the husband had a son, [Child B]. On Ms C's evidence, Child A was excited about the prospect of meeting her half-brother.
24At the time, the wife was unaware that Child B had passed away in February 2016. Child B committed suicide. When asked at trial why he had not informed the wife of Child B's death, the husband said that the wife "wasn't talking to him about [their] child, so [he] felt no obligation to tell her about [his] child". By the time of the trial before me, Child A remained unaware of Child B's passing. The husband blames the wife for the fact that Child A and Child B never met.
25The matter was allocated a conciliation conference on 12 June 2020. There were then disputes between the parties as to the wife's compliance with the interim orders of 19 December 2019. Duncanson J ordered that the matter be included in a Callover in December 2020 for the allocation of a trial date.
26The matter was not then allocated a trial date but was included in a further Callover in May 2021, issues having arisen as to the ability of the husband to travel to Australia for trial in the face of pandemic related travel restrictions. Subsequently on 29 June 2021 Duncanson J made an order adjourning the proceedings generally, in circumstances where the Court had tried unsuccessfully to contact the husband. On 16 November 2021, Duncanson J requested that the husband advise the Court as to when he could travel to Australia. He responded by filing a further application on 1 March 2022 seeking "an expeditious trial date", preferably in late May 2022. The matter was reinstated in the Defended List and eventually progressed to a Callover on 13 May 2022, at which it was listed to trial to commence before me on 10 October 2022.
27On 22 June 2022, for reasons given that day,[1] I made orders permitting the husband to participate in the trial remotely. On 25 July 2022, I ordered the parties to participate in a conference with a family consultant on 6 September 2022. The family consultant gained the impression from the narratives of the parties that the Agreement was a significant issue for the wife, whereas the husband dismissed its relevance. He noted further that the wife acknowledged that she wants Child A to have a relationship with the husband, but was worried regarding his motives, while the husband considered that he had been impeded for years in pursuing that relationship. The family consultant took the view that family therapy might not be the preferable next step, but that defined orders might better serve Child A's best interests.
The relief sought by the parties at the commencement of trial
[1] Duncan and Dynowicz [2022] FCWA 128.
28The husband sought orders in the terms of a minute lodged by him on 6 April 2022. The minute contains 16 paragraphs proposing specific factual findings, including multiple variations or alternatives within some of those paragraphs. It contains 46 separate proposed orders ranging from equal shared parental responsibility to an order compelling the wife to provide to Child A the American flag purchased by the husband for Christmas 2019 and apparently flown at the US Capitol on her birthday.
29At its core, the relief sought by the husband proposed:
1.an order for equal shared parental responsibility;
2.that Child A live equally with the parties when the husband is residing in Australia (which he anticipates being for a period of several months each year, between November and April);
3.that Child A spend substantial and significant time with him when she visits the USA; and
4.that he and Child A communicate for not more than 30 minutes on any Monday or Friday evening.
30Notwithstanding his proposal as to the time Child A was to spend with him, the husband also "affirmatively request[ed] that the maternal grandmother and/or maternal aunt accompany him "on any and all time with [Child A]" until her 16th birthday, so as to "provide [her] with the least disruption possible." How that was intended to work if Child A was to live for equal time with him in Australia, let alone for substantial and significant time in the USA, was not made clear.
31The wife sought orders in the terms of the minute lodged by her on 19 July 2022. She sought:
1.an order for sole parental responsibility;
2.that Child A continue to live with her;
3.upon the husband undertaking therapeutic counselling, and with confirmation that the husband's therapist has been provided with "all documents filed, and all court orders and conference memorandums", and upon Ms C being satisfied that Child A is ready to be introduced to the husband, and that the husband is ready to be reintroduced to Child A, that the husband and Child A communicate as recommended by Ms C;
4.that "pending [Child A]'s therapist approving the contact" Child A be permitted to communicate with the husband by sending him questions vetted by the wife, with replies to be sent on a frequency of no more than one email exchange per week;
5.that for the first 18 months of direct communication between the husband and Child A, she be at liberty to supervise and record those communications, and in specified circumstances terminate them, with a further provision that if she does so "contact can resume after further order of the court with all costs to be met by [the husband]";
6.that if the communications "cause concern for [Child A]" as raised by Child A's school or therapist within 18 months, the communications be suspended;
7.that if the husband wishes to spend time with Child A, he provide three months written notice, whereupon he may spend time with her for up to five hours between 9.00 am and 7.00 pm for a period of up to 14 days during the summer school holidays, from 10 January, and for a period of 10 days in either of the holidays at the end of terms two or three, with that time to be spent in the Perth metropolitan area;
8.that for the first 10 visits between Child A and the husband, the wife personally supervise their time, or if she is unavailable a supervision agency be appointed, with relevant costs being met by the husband including for the production of a report;
9.if any such report "shows no concerns", then the requirement for supervision be dispensed with; and
10.that if Child A does not want to communicate with or spend time with the husband then the relevant arrangement be "ceased", with the reason for that cessation to be ascertained by the wife or Child A's therapist and communicated to the husband.
32While the wife is represented in the proceedings, it may fairly be observed that several of the orders sought by her are unusual in both form and content. Potential issues as to the purported delegation of decision making to a therapist, or for that matter to unnamed persons at Child A's school, also arise and were squarely raised by me with the wife's counsel at an early stage.[2]
[2] See Harris v Caladine (1991) 172 CLR 84, 94 – 95 and Pinson & Pinson (No 2) [2020] FamCAFC 111.
33It is unnecessary to detail further the initial relief sought by each party, as their positions changed over the course of the trial.
The husband as a self-represented litigant
34The wife was represented by counsel at the trial. The husband, who is a lawyer by profession, was self-represented. For the reasons that follow, I am satisfied that the trial proceeded in a manner which was procedurally fair to both parties.
35At the Status Hearing I drew to the attention of both parties my preliminary view that the documents filed by each of them to that point revealed a singular lack of focus on the actual issues requiring determination, which involve a prospective assessment of what future arrangements are in Child A's best interests. I urged both parties to read the entirety of Part VII of the Act prior to trial, and specifically drew to their attention ss 69ZN and 69ZX. I also explained to the husband what appeared to be a misapprehension on his part as to the nature and purpose of filed written undertakings.[3]
[3] Prior to trial the husband filed a number of "undertakings", better described as conditional offers.
36At the commencement of the trial, I explained various matters to ensure that the husband properly understood the process.
37I explained the steps that I was required to take to ensure procedural fairness. I informed him of the way the trial was to proceed, the order in which evidence would be given and submissions made, and as to his right to cross-examine.
38I explained the importance of cross-examination and the likelihood that relevant evidence that was not challenged in cross‑examination would be accepted.
39I explained that the parties and witnesses would be permitted to give updating evidence-in-chief as to facts arising after the date on which the trial affidavits were sworn, and I explained the nature and purpose of re-examination.
40I set out the principles to which the Court is required to give effect in conducting child-related proceedings. I explained the principle requiring me to actively direct, control and manage the conduct of the trial.
41I explained that in relation to parenting proceedings, the formal rules of evidence did not apply other than in certain limited circumstances.
42The husband had access to the handbook for self-represented litigants produced by the Court and had made use of the template Papers for the Judge provided on the court's website. By that process, and by directions I gave at the Status Hearing and Trial, he had the relevant law drawn to his attention.
43I explained my obligation to attempt to clarify the substance of the parties' submissions to ensure that I properly understood their cases as they wished them to be put. I emphasised the need to focus both in evidence and in submissions on Child A's best interests as the paramount consideration. I explained that an exploration of past events would only be useful to the extent that it might inform decision-making for the future, but that the parties should not hesitate to explore past events if they considered them to be relevant to the decisions to be made.
44In that context, I drew to the attention of the husband a number of apparent inconsistencies in his case. I drew to the attention of both parties issues which I perceived with their respective stated positions as to, and their focus on, the terms of the Agreement.
45I also drew to the attention of the husband clauses in the Agreement, apparently inserted at his behest, which purported to provide that if either party "challenged" the Agreement in any court, that party would be liable for the costs of the other party on an indemnity basis, regardless of the outcome of the "challenge".
46I stood the matter down on the first day of trial to permit both parties to consider their positions, to enable counsel for the wife to take instructions, and to permit for discussions which I hoped would focus on the singular issue – what parenting orders would best serve Child A's interests.
Preliminary matters – narrowing of issues
47Against that background, several preliminary matters were clarified.
Husband's contentions in relation to family violence
48Among the factual findings initially sought by the husband were a series of specific findings that the wife and her father had committed family violence against him, and against Child A, primarily by preventing them from communicating with each other and by not passing on gifts. He went so far as to seek a specific finding that the wife had committed family violence by preventing Child A from "keeping her cultural connections to her Italian heritage and culture, including by impeding and preventing [her] establishment of her right to Italian/EU citizenship".
49In his Papers for the Judge filed on 14 September 2022, the husband proposed as one of the issues for determination the question of whether the wife had "failed to overcome the presumption of joint parental responsibility". From that it was reasonable to infer that he would contend that the statutory presumption of equal shared parental responsibility applies, while at the same time advocating for specific findings of family violence which would have the opposite effect.
50I raised that question squarely with the husband at the commencement of the trial. I also enquired whether he would allege that any of the behaviour, of which he complained, had coerced or controlled either he or Child A, or caused either of them to be fearful.
51 The husband's response was to acknowledge that of the incidents cited, with one exception, none had caused him to be fearful, or coerced or controlled him. Given that, and that the remaining incident was a short confrontation which took place in 2010, he did not pursue the making of findings as to family violence foreshadowed in his documents.[4]
The positions of the parties in relation to the Agreement
[4] Requested findings numbered 6 to 15 inclusive and listed in the husband's Minute of Proposed Final Orders filed on 6 April 2022.
52In his Minute of Proposed Orders, the husband sought findings that the Agreement is "void, voidable and/or unenforceable; against public policy; not in the child's best interest; not binding; not an agreement, not a financial agreement and/or not a binding financial agreement; illegal, repudiated, and/or superseded, and/or set aside for failure to meet statutory requirements and/or under precedent, estopped and under other equitable principles; and/or set aside for failure of contractual intent".
53In her Minute of Proposed Orders, the wife sought an order that the Agreement "remain in place, insofar as the financial aspects within the document". (sic)
54Having established that it was common ground that no provision of the Agreement could in any sense oust the jurisdiction of the Court to make parenting orders, nor limit the Court's discretion in that regard, I sought to clarify not only the positions of the parties but to what purpose those positions were adopted. I did so not only to define the matters actually in issue at trial, but to determine the utility or otherwise of the pursuit of those positions. The Court is not, in my view, obliged to determine disputes between parties where there is no such utility.[5]
[5] See, albeit in the context of an appeal, Yardlay & Commissioner of Police (2020) FLC 93-981, [7] – [9], and see also Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438, [16].
55The only operative provisions of the Agreement sought to conclude the financial relationship of the parties by providing that they each retain their own property, and to preclude either from seeking spousal maintenance. I enquired as to whether the husband sought to set aside those provisions, such that it would be open to either party to pursue claims for alteration of property interests and spousal maintenance.
56On reflection the husband did not pursue any relief in relation to the Agreement. While the relief sought was characterised in his filed minute as "findings of fact", that description was clearly simplistic.[6] In substance if not in form, the husband initially sought declaratory relief in one or more of the terms articulated in his minute. To avoid any potential dispute in that regard, I made orders by consent dismissing those parts of the husband's application as informally amended which sought to have the Agreement set aside, or declared void, voidable or otherwise not binding.
[6] As exemplified by the citation of 14 different authorities in support of the proposed findings set out at paragraph 4 of the husband's Minute of Proposed Final Orders filed 6 April 2022.
57Accordingly, by the time the trial progressed neither party sought relief directed to the Agreement.
The wife's initially amended proposals
58In opening her case, the wife through her counsel clarified her position in relation to two matters. First, notwithstanding the terms of the orders sought in her filed minute, the wife in fact proposed that after an initial personal reintroduction to the husband, Child A should spend time and communicate with him in accordance with her wishes. Second, she proposed that orders should be made compelling her to authorise and direct any school attended by Child A to provide to the husband at his request all information usually made available by schools to parents. Various other minor amendments need not be summarised.
The husband's initially amended proposals
59The husband's minute contained some internal inconsistencies. He proposed a finding of fact that it is in Child A's best interests for her maternal grandmother [Ms E] and/or her maternal aunt [Ms F] to accompany her on any visit with him "until [Child A]'s 14th birthday".[7] Separately, he proposed an order that either Ms E or Ms F accompany him "at any and all time with [Child A], until [Child A]'s 16th birthday".[8]
[7] Proposed finding of fact at paragraph 5 of the husband's Minute of Proposed Final Orders filed 6 April 2022.
[8] Proposed order at paragraph 36 of the husband's Minute of Proposed Final Orders filed 6 April 2022.
60For obvious reasons, at an early stage of the Trial I sought to clarify the husband's position. In response, he stated that he now proposed that Child A be accompanied by Ms E or Ms F only on the first 10 occasions that she spends time with him.
The relief sought by the parties by the conclusion of trial
61Over the course of the Trial it became clear that the best interests of Child A would not be served by the orders initially proposed by either party.
62The unchallenged evidence of Ms C was that Child A does not wish to communicate electronically with the husband at this point but is keen to meet him in person in Perth and accompanied by the wife. She is curious about her father, but apprehensive about whether he will like her, or she will like him. She is also curious about Child B but has not been told that he passed away some years ago.
63After the evidence had concluded, I made various preliminary observations to the parties as to the relief they had initially sought, and the need for them to consider a more nuanced and sequential approach to the introduction of the husband into Child A's life. I urged them to give those matters careful consideration before making their closing submissions the following day. On the next day, both parties tendered amended minutes of orders sought. Neither proposed a sequential approach to the reintroduction, and neither approach was even remotely nuanced. After further exchanges I gave the parties yet another opportunity to consider their positions, and whether they would seek to simply complete closing submissions without addressing those issues (leaving them entirely to my discretion) or whether they would wish to address them. After the parties conferred, the wife indicated her preference to seek further advice from Ms C, file yet another amended minute, and then proceed to complete closing submissions. While the husband's preference was to complete the hearing on the day, when I explained that the production of a judgment would not be delayed by the process proposed by the wife he did not strenuously oppose it.
64The trial was therefore adjourned part heard on the fourth day, to give the parties the opportunity to file amended minutes.
65Both parties proposed that Child A be informed of Child B's passing in a therapeutic setting.
66By his amended minute filed on 31 October 2022, the husband further modified his proposals. He sought 50 separate orders. For clarity and convenience, that minute is annexed to these reasons. The central elements of his proposals were:
1.an order for equal shared parental responsibility;
2.an order for him to provide an introductory three minute video to Child A before meeting her;
3.orders for him to make an initial visit to Perth to meet incrementally with Child A, "chaperoned" by the maternal grandmother;
4.orders for video, telephone and email communication with Child A after his return to the USA from Perth;
5.orders whereby he would return to Perth "sometime after 1 December 2023, and each Southern summer thereafter", and that during those visits Child A would live with each parent equally on a week about basis without any "chaperone"; and
6.orders whereby Child A would spend substantial and significant time with him when visiting the USA.
67While the husband did not expressly seek an order as to with whom Child A should live, it was implicit in his proposals that she should live with the wife when not spending time with him.
68By her amended minute filed on 1 November 2022, the wife further modified her proposals. For clarity, convenience and balance, that minute is also annexed to these reasons. The central elements of her proposals were:
1.an order for sole parental responsibility, and that Child A live with her;
2.a proposal, albeit not expressed as an order, that the husband meet the costs of her attendances and those of Child A on Ms C;
3.that the husband be at liberty to provide a three-minute introductory video for Child A, subject to the wife's approval of its content;
4.that the husband travel to Perth for introductory meetings with Child A, accompanied by the wife broadly as follows:
(a)an initial introductory meeting at [a public park] for 30 minutes;
(b)a second meeting, subject to Child A's wishes, approximately one week later, with the husband and Child A undertaking an activity for up to three hours again accompanied by the wife;
(c)a similar meeting approximately one week later.
5.thereafter, incrementally increasing electronic, Skype and written communication, subject at all times to Child A's wishes, and the ability of the wife to terminate communications if she regards them as inappropriate;
6.that Child A spend time with the husband as otherwise agreed between the parties in writing and subject to Child A's wishes;
7.a range of injunctions regulating the husband's communications and other matters; and
8.the delivery up to the wife of email addresses and passwords established by the husband and intended for use by Child A, such that those email addresses would thereafter be controlled by the wife.
69As the parties are aware, I am not bound to simply choose between their proposals and may craft alternative orders without express notice in circumstances where the making of such an order is obviously open on the known material.[9]
The legal principles
[9] Minister for Immigration and Citizenship v SZGUR and Anor (2011) 241 CLR 594, [9] per French CJ and Kiefel J; Stott & Holgar and Anor [2017] FamCAFC 152, [26].
70The court must be guided by the objects of Part VII of the Act and the principles underlying them. Relevantly here, those principles include a recognition that, except when it is or would be contrary to their best interests, children have the right to know and be cared for by both their parents.[10] That said, in determining what particular parenting orders are in a child's best interests, a biological parent does not, merely by virtue of biological parentage, "stand in any preferred position" by comparison to any other relevant person.[11]
[10] Family Law Act 1975 (Cth) s 60B(2)(a).
[11] Re C and D (1998) FLC 92-815, [10.10].
71Parental responsibility is defined in s 61B as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Pursuant to s 61C, subject to any order of a court, each of the parents of a child who is not 18 has parental responsibility for that child.
72Section 61DA requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of the child for his parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or another relevant adult, has engaged in abuse of the child or family violence. If the presumption applies, it may still be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
73If an order for equal shared parental responsibility is to be made, I am required to consider whether Child A spending equal time with each of her parents would be in her best interests and whether such an arrangement would be reasonably practicable. If so, I am then required to consider making such an order.
74Again, against the background of an order for equal shared parental responsibility being made, if I do not make an order for Child A to spend equal time with each parent, I am required to consider whether spending substantial and significant time (as that term is defined in the Act) with each parent would be in her best interests and reasonably practicable. If so, I am required to consider making such an order.
75In determining what is in a child's best interests, the Court must consider the matters set out in s 60CC. While those matters are divided in the legislation into primary and additional considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations. The issues that are joined between the parties will dictate which s 60CC factors are relevant.
76That said, it is not necessary to detail in a judgment each fact found to be relevant or irrelevant to the decision actually required, nor to make an explicit finding on each disputed piece of evidence.[12] Similarly, it is not necessary to mention in a judgment "every fact or argument relied on by the losing party as relevant to an issue".[13] Those principles apply in litigation generally, even before recourse to the particular provisions in Division 12A of Part VII of the Act. They resonate in the present case.
[12] Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltdand Ors [1983] 3 NSWLR 378 per Mahoney JA.
[13] Whisprun Pty Ltd (formerly Northeast Exports Pty Ltd) v Dixon (2003) 200 ALR 447, [62].
77The requirement to consider each matter set out in s 60CC does not mean that each factor must be expressly discussed in a judgment, where the factor in question has no sufficient relevance to displace the determinative significance of factors specifically discussed.[14]
[14] Banks & Banks (2015) FLC 93-637; L v P [2022] WASCA 40.
78While the court is required to consider the benefits to the child of having a meaningful relationship with both parents, there is no presumption that a particular relationship will be "meaningful" nor that it will be to their benefit. While in many if not most cases there will be a positive benefit to the child of having a significant relationship with both parents, there are "some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests".[15]
[15] McCall & Clark (2009) FLC 93-405, [120], [122].
79Equally, there can be cases where no positive benefit to the child will be derived by a Court attempting to craft orders to foster ongoing relationships with both parents, in circumstances where the evidence supports a conclusion that to do so would perpetuate conflict and other negative outcomes of greater impact on the child than the hoped-for benefits. It is well-established that the court may properly consider the potential impact of proposed orders on the parent who has primary care for the child. That is so, as the court must recognise the potential effect on the children of the consequences of that impact.[16]
[16] A v A (1998) FLC 92-800, 84,996 [3.29].
80Ultimately, the making of a parenting order involves the exercise of judicial discretion. The primary considerations set out in the legislation are "matters to be borne in mind as consistent with the objects" of Part VII of the Act. The additional considerations set out in the legislation:
… require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.[17]
The evidence at trial
[17] Bondelmonte v Bondelmonte and Anor (2017) 259 CLR 662, [32].
81The husband relied on the following affidavits:
1.his affidavit filed 30 April 2022;
2.his financial statement filed 5 April 2022;
3.affidavit of Ms B filed 4 January 2019; and
4.affidavit of Mr D filed 1 April 2022.
82At the Status Hearing on 20 September 2022 counsel for the wife confirmed that the attendance of both Ms B and Mr D for cross-examination was required. Both attended and were briefly cross‑examined.
83The wife relied on the following affidavits:
1.her affidavit filed on 18 July 2022; and
2.affidavit of Ms C filed 22 July 2022.
84At the Status Hearing the husband confirmed that he required Ms C to attend for cross-examination and she did so.
85Both parties required the family consultant who conducted the conference on 6 September 2022 to present for cross-examination. As it transpired, he was cross-examined only briefly and only by counsel for the wife.
86The husband filed a Form 4 Notice of Child Abuse or Family Violence (or Risk) on 5 August 2022, referencing a verbal confrontation with the wife and her father on 8 February 2010, his contention that the husband's father prevented his communications with Child A in December 2010 and more generally, and his contentions that both the wife and her father had prevented his connections to Child A and withheld from her gifts he had sent. The response from the Department of Communities was received by the Court on 6 October 2022 and received into evidence at trial. Predictably, the Department determined that the concerns raised by the husband did not meet its child protection threshold and that no further action was required.
Observations as to the evidence at trial
87While there were a number of factual disputes between the parties, little if anything turns on them in circumstances where the Court's task is to determine what prospective parenting orders are in Child A's best interests, and where the following central facts are not in dispute:
1.the wife has been solely responsible for all decisions made on behalf of Child A since her birth;
2.apart from a visit to the United States in 2011, spanning the period when Child A was between five and 10 months old, the wife has been the parent solely responsible for Child A's care;
3.the husband has never been in the physical presence of Child A other than during that visit;
4.the husband nevertheless had Skype communication with Child A for a period after that visit, and concluding in [redacted] 2014 when Child A was three and a half years old;
5.the husband has had no contact or communication with Child A since;
6.Child A has expressed cautious curiosity to meet her father and is regarded by her therapist as being ready to do so, as outlined in more detail later in these reasons; and
7.the wife proposes that Child A should meet the husband, and thereafter have a relationship with him should she wish to do so.
88Additionally, the husband readily acknowledged that with the sole exception of his concerns related to his involvement in Child A's life, the wife is a "good mother" and "did a great job parenting".
89Accordingly, assessments of the credibility of the various witnesses play a limited role in the required determinations in this matter. Indeed, while initially pressing for general findings as to credibility, counsel for the wife eventually acknowledged that there was only one matter upon which he would assert findings potentially turning on the assessment of the parties as witnesses need be made. That proposed finding was as to the willingness and capacity of the husband to refrain from denigration of the wife and her family, and refrain from exposing Child A to the history of conflict whether now or in the future.
90Nevertheless, the evidence of the parties afforded some insight into the relevant dynamics.
The husband
91The husband is a confident and articulate man. He gave his evidence in a manner consistent with those characteristics.
92That said, the husband is also a strategic and transactional thinker. Those characteristics permeated many of his actions both before and after Child A's birth, and they were also apparent in steps he has taken during the litigation, and in his evidence. Limited examples suffice for present purposes.
93The observations made above in relation to the will executed by the husband in 2015 do not require repetition. I asked him what possible benefit to Child A might accrue if, as mandated by him in the document, she read that will and the attached document describing her mother's actions and those of her grandfather in scathing terms. His response was dismissive, saying that was never going to happen. He explained that he prepared the will in those terms, and provided copies to the wife and her father, in order to "put pressure on [them] to do the right thing" and permit him to spend time with Child A.
94While the husband pointed out that he had made a subsequent will in 2020 without clauses of the nature just described, that somewhat misses the point.
95In a similar vein, when sending numerous emails to the wife decrying her actions and those of her father, the husband overtly copied those emails to email accounts he had established in Child A's name. While at the relevant times Child A had no access to those accounts, and was likely not yet literate in any event, the husband had also made clear his intention to gift those email addresses and accounts to her when she turned 18. His clear intention was to suggest to the wife that her actions and those of her father would by that mechanism be "exposed" to Child A in due course. Again, in his oral evidence the husband suggested that Child A would never see the emails in question, as he had always intended to delete them from the relevant accounts before making the proposed gifts. Again, he acknowledged that he took those steps strategically to "pressure" the wife to accede to his wishes.
96The husband otherwise did not deny sending emails critical of the wife and her father to the Education Department, the Hon Julia Gillard, and others. He made complaints to the Department of Communities. Again, those actions were largely strategic and unashamedly so.
97To the extent that the husband suggested that his actions in that regard were simply born of frustration, and were benign, I reject that proposition. By way of example only:
1.In his email to the wife dated 29 October 2009, setting out his requirements in relation to the Agreement and the collateral agreement, he made clear his intention that the relevant documents would "strongly disincentivize (sic) any application for child support from [him] or any resort to the courts", and noting that the provisions were to be "designed to make litigation exceedingly difficult and expensive – for you alone, not me".
2.In an email to the wife on 23 February 2014, the husband provided a copy of a will he had executed after Child A's birth, making generous provision for her and naming the wife as executrix. In the same email, he advised the wife that "since you won't let me see her or stay with her" he had executed a new will. While saying there was not "much point" in providing her with a copy of that new will, he confirmed that the "highlights" included eliminating all the educational expenses provided for in the earlier will, removing her as executrix and that:
"It prohibits any distribution to [Child A] until after you and [Mr A] have both died. It calls [Mr A] a bully, in vivid terms, with rich supporting detail… It requires all [Mr A]'s living children and grandchildren to affirm that they have read my will before any distribution takes place for [Child A]. It will be [Mr A]'s legacy, because every child and grandchild he has will read it, recognise the truth in it, and forever remember him differently. That is the stick to get you to start including me in [Child A]'s life. Here is the carrot: I want the ability to live in the same house with [Child A] for three weeks every other year. I understand the difficulty of you both flying to the US, so I am willing to go there. I wish to commence this in November 2014. If you agree, I will tear up the will I mentioned above, and I will tear up the lien I have on [the grandfather's property] (providing CSA blesses our settlement)".
3.When the wife sought the husband's cooperation to have a new passport issued for Child A for a five-year term, he was prepared to agree only to the issue of a passport for a one-year term, with the possibility of agreeing to a longer term upon the wife agreeing to a parenting plan he had prepared. In cross-examination, he readily admitted that his intention in proposing restrictive conditions on the issue of a passport for Child A was to "cajole [the wife] into entering into a parenting plan with [him]". When she would not agree to the parenting plan, he did not cooperate in the issue of a passport. Eventually, the matter had to be resolved by court order. The husband, apparently in all sincerity, blames the wife for that situation because he regarded the parenting plan as entirely reasonable.
98During the trial the husband suggested that since commencing proceedings he had not undertaken any conduct of which the Court might be critical. While I accept that some of the husband's behaviour has moderated, his confrontational approach has not infrequently continued. By way of one example, he sought to bring proceedings to have Ms C found in contempt in March 2020 when he disagreed with her approach and views and regarded them as being contrary to the intention of the orders made by consent on 19 December 2019. When he formed the view that a note on the website of the wife's lawyer to the effect that he was a member of the Family Law Practitioners Association was inaccurate, he took steps to advance a professional misconduct complaint. As the wife accurately pointed out, his various grievances against her and against her father were repeated in detail in documents he filed over the course of the proceedings, as were his various complaints about others.
99 It is against that background that the husband proposes a cooperative parenting arrangement, and equal shared parental responsibility.
The wife
100In fairness to the husband, a somewhat confrontational approach has also been taken at times by the wife and those representing her. Regrettably, the attention of both parties appears to have been diverted at times from central issues in the case. By way of one example, when the proposed collaboration between Mr D and Ms C did not eventuate after an unfortunate exchange of views between them, considerable energy was expended by both parties in attributing blame as between the two therapists. Quite how any such attribution of blame could inform the decisions required as to Child A's future remains a mystery, at least to me.
101The wife gave her evidence in a reasonably matter-of-fact manner, while appearing both worn down and exasperated by her interactions with the husband. She clearly stated her support for Child A being able to pursue a relationship with the husband if she wishes to do so. That said, she has at times been either avoidant of the careful consideration required as to how that is to progress, and the taking of necessary steps, or somewhat overwhelmed by both the issues and the husband's approach to them. Progression has been limited, and the husband has been frustrated, while apparently not appreciating that the assertive and transactional approach he has taken has itself been counterproductive.
102The combination of those characteristics as they presented in both parties led, for example, to an arid dispute about the husband's expressed intention to buy a bicycle for Child A for Christmas 2019, discussed when he was in Perth for the previously scheduled trial. Much was made of the fact that Duncanson J expressed the view that passing on gifts to Child A might be positive, and that the wife indicated her agreement with that; the parties were then unable to cooperate in any useful fashion. The husband had insufficient time before leaving Perth to buy the bicycle himself and sought that the wife buy it on his behalf using gift cards he provided; the wife took the view that to a degree the point of the exercise was for the husband to buy the bicycle himself, and that by the time he took steps the moment had passed. In 2021, the husband had a bicycle delivered to the office of the wife's lawyer; the wife declined to accept it on Child A's behalf.
The husband's witnesses
103Ms B presented for cross-examination, which was brief. At the commencement of her evidence in chief she made it clear that she was uncomfortable with several of the matters initially included in her affidavit; the husband took note of that and volunteered that the particular passages which caused her concern should be struck out. What then remained of Ms B's evidence in chief was, with no disrespect to her, of little relevance to the circumstances currently faced. She acknowledged that she has no relationship with Child A. A factual dispute between Ms B and the wife as to precisely what happened in a verbal exchange when they accidentally met at a supermarket is of no consequence.
104Mr D swore an affidavit on 1 April 2022 at the request of the husband, annexing a report of the same date. He recounted his exchanges with the husband. He set out his version of, and views of, his interaction with Ms C. He appeared critical in observing that Ms C "appeared to be drawing solely from her client [the wife's] narration of events"; of course, Ms C had communications directly with the husband, but Mr D did not have communications with the wife. His report concluded with further criticisms of Ms C. He expressed his confidence in the "suitability" of the husband to "assume responsibility to contribute constructively and in a positive manner to his daughter's life life (sic) as her father".
105In his evidence at trial, Mr D appeared to have little recollection of his interactions with the husband and was unable to confirm whether he was in possession of particular documents at the time of writing his report. He confirmed that he met with the husband on four occasions – twice in December 2019, once in March 2020, and once in April 2021.
106While I do not doubt that the opinions expressed by Mr D were genuinely held, his evidence was (with no disrespect) of no assistance in the required determinations.
The wife's witness
107Ms C has provided ongoing therapy to Child A over the last two years. That therapy has not solely been related to issues as to any relationship with the husband.
108In her report dated 21 July 2022, Ms C described Child A as delightful, quietly confident, and able to articulate her feelings and thoughts. Ms C formed the view that the wife had shielded Child A from all parental conflict. Child A initially knew nothing about the husband, nor about her parents' history. She was curious. Ms C undertook joint sessions with Child A and the wife to facilitate conversations about the husband; while that was challenging for the wife, she participated and answered Child A's questions.
109Child A was curious about the history of the parties' relationship, and about the husband's family. She wanted to know if she had siblings, and the wife spoke to her about Child B. Ms C noted that Child A was "excited about the prospect of meeting [Child B]".
110That said, Child A had no concept of the reality of having the husband involved in her life and struggled to understand how he would fit into it. She thought that the husband was "probably very busy working and looking after his son" and seemed overwhelmed when thinking about the geographical distances involved and the fact that "he is a stranger". She expressed worries about whether the husband would get on with her family, clearly having an appreciation that the maternal grandfather does not like him.
111Ms C noted that Child A has moved to a position of wanting to meet the husband and see for herself what he is like. Child A expressed worries as to whether they would like each other, that she would feel shy and not know what to say, and that she did not want to "feel trapped with him". She was clear in her view that she would be too shy and nervous to meet the husband without the support of the wife and was focused on meeting him face-to-face. She was reluctant about telephone and Skype calls before physically meeting the husband, being very mindful of him being a "stranger".
112Ms C concluded that Child A is now "ready and sufficiently prepared to meet" the husband. She emphasised that the process needs to be sensitive to Child A's wishes regarding the nature and frequency of contact, and that Child A needs to be given the space to explore her feelings and thoughts after contact begins, as "fantasy turns to reality".
113In answer to questions from the husband during cross‑examination, Ms C explained that Child A is a shy child, and that she wants the wife to tell the husband about her, so that she doesn't have to tell him about herself. Child A's suggested solution is to undertake activities such as roller-skating, ice skating or bicycle riding with the husband. Ms C agreed that it would be helpful for the wife to provide information to the husband to support that, and in response to a question from me agreed that a short introductory video from the husband saying that he was looking forward to meeting her would be helpful, if it was not overloaded with information and detail.
114In answer to further questions from me, Ms C agreed that if Child A does meet the husband, she will likely ask about Child B. She said it would be important to prepare Child A for that by ensuring that she became aware of Child B's passing before meeting the husband. That difficult task would be best achieved in a therapeutic session at which Child A was supported by the wife, and it would be helpful to then provide feedback to the husband following that session and before his first meeting with Child A.
115Ms C's evidence in relation to those matters was clear, considered, and based on an established therapeutic relationship with Child A. I accept her evidence.
Legislative considerations which are not in issue
116It is common ground that the statutory presumption favouring equal shared parental responsibility applies in this case, albeit the wife says it is rebutted by evidence. It is not suggested by either party that orders need to be crafted to protect Child A from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
117Child A is not an Aboriginal or Torres Strait Islander child. After the issues were narrowed as earlier described, neither party contended that there had been relevant family violence, and there is no family violence order in place.
118Both parties agreed that it would be preferable to make the orders least likely to lead to the institution of further proceedings. Accordingly, both sought final orders; neither proposed the making of interim orders, with or without an express provision for further evidence to be adduced after Child A meets the husband.
119I have considered that issue, bearing in mind the observations already made as to the impossibility of predicting Child A's reaction to being introduced to the husband. I have considered whether, notwithstanding the common position of the parties, it would be in Child A's best interests to make interim orders only, with the trial being adjourned part heard, to facilitate updating evidence both from the parties and from Ms C after that introduction to inform orders to be made from that point. On balance, I conclude that it would not. The parties rightly recognise the desirability of the litigation coming to an end and the benefits to Child A of that. Implicit in that recognition, albeit not reflected expressly in the orders sought by the husband, is an acknowledgement that long-term prospective orders in detailed and prescriptive form cannot properly be made. Given the importance which I attach to Child A's ongoing and developing views and wishes being respected both by the parties and by the Court, as outlined later in these reasons, I accept the joint position of the parties that final rather than interim orders should be made.
120I record that I have considered each of the primary and additional considerations set out in the legislation. I refer to those considerations only to the extent that they are relevant to the determinations required.
Findings as to the relevant legislative considerations
The primary considerations
121Self-evidently, Child A has the benefit of a meaningful relationship with the wife. It is common ground that it is in Child A's best interests for that to be preserved and supported. The wife is, in every real respect, the only parent Child A knows.
122Child A has no relationship with the husband. While he would blame the wife and her father for that, his own role in the matters already summarised should not be ignored. In any event, Child A's circumstances are as they now present. The appropriate focus on her needs and interests, as distinguished from those of her parents, renders much of the attribution of blame for past events irrelevant.
123While the husband has expressed that he has absolutely no doubt that if given the opportunity Child A will quickly love him[18] and look for him to play a meaningful role in her life, that simply cannot be assumed. Whatever the husband's personal qualities[19] (and leaving aside the disputes between the parties on that point), the creation from a point of nonexistence of a meaningful relationship with a child is not amenable to simplistic prediction. It is not as simple as putting a child in contact with an adult with a biological connection, and who has positive personal characteristics and qualities, adding time and opportunity, and watching an inevitably meaningful relationship grow.
[18] The husband saying "I'm a pretty funny guy. I'm a pretty entertaining guy and I'm quite sure that she's going to fall in love with me just as much as I'm going to fall in love with her."
[19] Or for that matter his academic and professional achievements, and public service values, as emphasised in his Papers for the Judge.
124Tellingly, the husband acknowledged in cross-examination that he simply had not turned his mind to the possibility that his proposal for Child A to spend equal time with him for a significant portion of the year, commencing after relatively brief introductory visits followed by a period of electronic communication, might not work.
HIS HONOUR: All right. So what do you say we do, or what do you say should happen if your proposed 10 meetings in Perth with [Child A], with [Ms E] supervising, don't go well, and [Child A], to use a colloquialism, freaks out, and says, "I don't want any more of this". What do we do then?
DUNCAN, MR: You know what, your Honour, I hadn't considered that, because I'm so positive on this, but - - -
HIS HONOUR: Are you serious that you hadn't considered that possibility of a 12 year old child who has no memory of you, having read [Ms C]'s report about her apprehension, you hadn't considered the possibility that it might not go well?
DUNCAN, MR: No, I hadn't. Honestly, your Honour.
HIS HONOUR: All right.
DUNCAN, MR: Kids – kids love me and I'm very confident.
HIS HONOUR: I understand you're very confident, but sometimes confidence can be unrealistic?
DUNCAN, MR: Absolutely, your Honour. And I don't know if she's hearing anything about me from the other end, but I'm determined to make this work, and I have no objection to court review in whatever period of time the court wants. It's not my ideal scenario, but I fully accept that that's a possibility or probability.
125While it is common ground that Child A should be given the opportunity to at the very least satisfy her curiosity and meet the husband, and I accept the evidence of the wife and of Ms C that Child A is cautiously curious in that regard, we simply cannot know what will come of that. Child A and the husband may "hit it off" or they may not. Child A may be encouraged by initial contact and wish to proceed to more, or she may retreat entirely. The parties are highly unlikely to be able to deal with each other without disagreement and conflict; it may fairly be anticipated that Child A will perceive that at least to a degree – we cannot know how she will react.
126The obvious uncertainty is significant in the consideration of what steps should now be taken. That would be so, even were it not for the additional complications presented by the fact that the husband lives in the USA.
The additional considerations
Child A's expressed views
127Child A's expressed views are as outlined earlier in these reasons. They are understandably tentative. It is common ground that they should be afforded weight at least to the extent of her expressed desire to personally meet the husband and to do so in Perth. Indeed, in closing submissions the husband urged me "to consider Child A's views, hopes and worries on these issues", albeit in the context of him urging that I "allow [him] to be what [he] can be and what Child A wants [him] to be without mother's unreasonable controlling and baseless requests".
128That is where the common ground ends. The wife maintains that any time Child A spends with the husband, or communication with him, should be in accordance with her wishes and not otherwise. The husband, as noted above, simply had not contemplated the possibility that Child A might not want to spend time or communicate with him, even after she meets him. Even after the exchange just quoted, he seeks prescriptive orders, untethered to Child A's wishes. He also seeks to minimise the wife's involvement in any time and communication he may have with Child A, including their initial meeting, notwithstanding Child A's clearly expressed desire to have that meeting take place in her presence.
129The legislation mandates the consideration of any views expressed by child, without mandating the weight to be given to them. The reasons for that are obvious. The range and variety of factual circumstances informing those views is infinitely variable. Different children have different degrees of maturity and understanding. In some cases, mature and intelligent children are shielded by their parents from information that might be hurtful, distressing or harmful to them, and express their views without having that information. In other cases, the weight to be given to expressed views may be diminished if, for example, those views or the expression of them have been inappropriately influenced or based on active misinformation.
130There are cases where a child is resistant to the re-establishment of a previously beneficial relationship. In those cases, the root cause of that resistance can often (albeit not always) be identified and analysed, and if appropriate, addressed. This is not such a case. Rather, this is a case where on the husband's proposals Child A will be compelled to commence and continue an entirely new relationship with a person who is presently a stranger to her.
131As has been observed, there is a "growing understanding of the importance" of listening to the views of the child, who "more than anyone else… will have to live with what the court decides".[20] The Court must be guided by the objects of Part VII of the Act; one of those objects is to give effect to the Convention on the Rights of the Child,[21] to which Australia became a signatory on 22 August 1990. Article 12 of the Convention requires signatories to "assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child", and to afford the child the opportunity to be heard.
[20] Re D (a child) (abduction: rights of custody) [2007] 1 All ER 783, [57] per Lady Hale.
[21] The Convention on the Rights of the Child done at New York on 20 November 1989, set out in Australian Treaty Series 1991 No 4 (1991) ATS 4.
132In the present case, for the reasons already set out, it is not possible to predict what Child A's views and wishes may be after she has met the husband. The requirement to have regard to those views and wishes, however, is not stagnant nor isolated to a moment in time coinciding with a trial.
133In the circumstances of this case, with all the inherent unpredictability already outlined, I conclude that it is appropriate for orders to be framed so that significant weight will be given to Child A's expressed views not just now, but on an ongoing basis.[22]
The extent to which the parties have taken or failed to take the opportunity to participate in making decisions about Child A, spend time with her and communicate with her
[22] See also R and R: Children's wishes (2000) FLC 93-000.
134The husband's narrative, that he has only failed to spend time or communicate with Child A and participate in decision-making about her because of obstruction from the wife and her father, is simplistic and inaccurate.
135Irrespective of the legal status of the Agreement, it was executed and reflected terms agreed between the parties at the relevant time. Those terms, including a recital that the husband would not seek to spend time with Child A nor commence proceedings, were consistent with his view expressed in his email of 29 October 2009 to the wife that "This will be your child. I will have no right to interfere or tell you how to raise it". For significant periods, the parties have acted consistently with those agreed terms.
136The husband has also chosen not to take up opportunities to spend time with Child A when the terms were not to his liking. After the wife and Child A visited the USA in 2011, no visits in either direction were sought or arranged until late 2013. At that time, the husband proposed to travel to Perth and sought to spend time with Child A. He proposed that he stay at the wife's home, which she rented from her father, so that he could wake up in the same house as Child A, get her up in the morning and put her to bed at night. That was not agreed. The wife offered to contribute half of the husband's accommodation costs at a hotel, but he refused that offer. He did not travel to Perth. It appeared at trial that he regarded the wife's reluctance to have him stay with her as unreasonable, even in the context that it occurred four years after their divorce and with the objection of her landlord father, with whom he has the relationship already described. If that is a view genuinely held, rather than being offered to rationalise his decision not to visit Perth, it reflects a singular lack of insight.
137There were further discussions of a sort about the possibility of the husband travelling to Perth in or about April 2014, but nothing came of that. The husband blames the wife for that, because of her unwillingness to reschedule a planned holiday to accommodate his visit at the time which he preferred. Nevertheless, he did not visit either at the time he proposed or otherwise.
138Apart from one trip to the USA when she was an infant, Child A has lived in Perth since she was born. The husband has not travelled to Perth at any time since Child A's birth other than for the previously listed trial, despite having the ability and financial capacity to do so.
139Consistently with the terms of the Agreement, the husband has not in any meaningful sense sought to participate in decision-making about Child A in relation to long-term issues. He has expressed his preference for her to undertake private school education, and for that matter, for her to have various educational opportunities once she leaves school. He has at times made suggestions to the wife in that regard. In January 2022, shortly before requesting an "expeditious trial", he established a trust fund in the sum of $10,000 apparently to make provision for university tuition fees for Child A, at a variety of nominated universities in the USA, Australia, and elsewhere. When asked at trial to identify those universities, he could not do so.
The extent to which the parties have fulfilled their obligations to maintain Child A
140The wife has maintained Child A since her birth without any financial assistance from the husband.
141At trial, the husband maintained that he has for some years offered to pay half of any private school fees for Child A, and half of any university tuition fees, plus provision for a "semester at sea" educational experience which he enjoyed in his student days. The wife's evidence was that she could not afford to meet even half of private school fees, and that the offer accordingly, even if genuine, was moot.
142When asked at trial whether, against that background, he had thought of paying periodic child support the husband said that he had, but that he thought the wife would refuse it. It was not suggested that he had offered it.
143When asked whether he would be prepared to "rescind" the collateral agreement whereby Mr A is required to indemnify him for any child support paid, he said that he was not – but that he was "prepared to engage with [Mr A]" to "try and work it out". When asked by me how he would envisage that happening, he replied "Well, he should reach out to me, of course". There is nothing in the history of the matter to suggest that Mr A would ever "reach out" to the husband, let alone that they would have civil and constructive discussions.
The practical difficulty and expense of Child A spending time with and communicating with the husband
144There are no real practical difficulties associated with Child A communicating with the husband, if and when a relationship supportive of that communication is established, other than those associated with time zone differences. Obviously, those are not insurmountable.
145There are obvious practical difficulties and expenses associated with Child A spending time with the husband. The wife maintains that she will not travel to the USA before Child A reaches adulthood, saying that she fears that the husband would take steps to cause her difficulties if she did. While the precise nature of those steps and difficulties was not in any sense articulated, for present purposes that does not matter – the wife's intention is clear.
146Any time Child A spends with the husband will, therefore, almost certainly be limited to time spent in Western Australia. There will be significant expense to be incurred by the husband if that is to occur. There will also be obvious practical difficulties given the tentative steps which must be taken if a relationship is to be established. In a real sense, the husband would need to be prepared to incur significant expense, and invest significant time, to (at least initially) spend fairly minimal time with Child A. He would do so with no guarantee of that effort successfully leading to the establishment of a relationship.
147Even if a relationship is then established, the proposition that orders should be made now requiring arrangements to progress so that Child A spends week about time with the husband over summer holidays in Perth is fanciful. That is so, notwithstanding the husband's assertion that:
"Changes will be anodyne. [Child A] is 12, and able to handle, and might even embrace the modest change (emphasis added) I propose: that she live with me 50% of the 3-4 months I hope to be in Perth, a year after she first meets me".
27.To facilitate the immediately preceding order:
(a)by no later than 31 January each year, the wife must notify the husband in writing of any time periods in the succeeding 12 months which would, from her perspective, be unsuitable for him to travel to Perth to spend time with [Child A] by virtue of either of [Child A]'s school commitments, or planned family holidays;
(b)at the same time, the wife must inform the husband of any views expressed by [Child A] as to whether, and if so how, she wishes to spend time with the husband in that 12 month period;
(c)within 14 days thereafter, the husband must advise the wife in writing as to whether he proposes to travel to Perth to spend time with [Child A] and, if so, when; and
(d)the wife must then inform [Child A] as to when the husband is travelling to Perth to spend time with her.
28.The wife is at liberty to facilitate [Child A] spending unaccompanied time with the husband in the United States of America at any time, should that be in accordance with [Child A]'s wishes.
Provision of information, gifts and the like
29.The wife must provide the husband with copies of [Child A]'s school reports as and when received, and advise the husband of any achievements, awards received, or activities in which [Child A] engages in which are of significance to her.
30.The wife must authorise [Child A]'s school to provide to the husband at his request and at his expense information and materials usually available to parents, including school reports and photographs.
31.The wife must inform the husband of any significant health event affecting [Child A].
32.The husband is at liberty to forward to the wife Christmas and birthday gifts he would wish [Child A] to receive from him.
33.Provided any such gifts are appropriate, the wife must pass them on to [Child A] and encourage her to acknowledge receipt of them.
34.If any such gifts are inappropriate, the wife is under no obligation to incur any expense in returning them to the husband, but must return them to him at his expense if requested to do so.
35.The husband is at liberty to send notes, cards and small gifts to [Child A] no more frequently than once per calendar month, by forwarding them to the wife's then current work address.
36.To facilitate the immediately preceding order, the wife must keep the husband informed as to her current work address or an alternative address at which she is prepared to receive materials from him on [Child A]'s behalf.
37.Provided any such notes, cards and small gifts are appropriate, the wife must pass them on to [Child A] unless and until [Child A] expresses a wish not to continue receiving them.
38.The husband is at liberty to provide to the wife, to the extent he has not already done so, the bedtime and similar videos created by him for [Child A].
39.The wife is at liberty to, but is not obliged to, show or provide to [Child A] any or all of those videos.
Passports and travel
40.The wife is at liberty to apply for the issue and/or renewal of [Child A]'s Australian and US passports, and any requirement for the consent of the husband to such issue and/or renewal be and is hereby dispensed with.
41.The wife is at liberty to travel outside the Commonwealth of Australia with [Child A] at any time.
42.In the event that the wife travels with [Child A] to the United States of America, she must provide the husband with advance notice of that travel and facilitate [Child A] spending time with the husband if that is in accordance with [Child A]'s wishes.
Injunctions
43.The wife must not discourage [Child A] from communicating with the husband or spending time with him, subject to the express provisions of these orders.
44.Both parties must do all things reasonably within their power to ensure that any communications between [Child A] and the husband, or time they spend together, are conducted without exposing [Child A] to parental conflict.
45.The husband is restrained by injunction from:
(a)discussing with [Child A] the circumstances of [Child B]'s death, unless requested by the wife to do so;
(b)unless agreed with the wife, contacting or attempting to contact [Child A] other than in accordance with these orders;
(c)removing [Child A] from the care of the wife or from school other than with the wife's consent;
(d)applying for any passport for [Child A] other than with the wife's consent;
(e)removing or attempting to remove [Child A] from Commonwealth of Australia other than with the wife's consent;
(f)sending to [Child A], or showing her, the bedtime stories and other video recordings made by him or on his behalf other than with the wife's consent;
(g)allowing [Child A] to be in the presence of, or to communicate with, [Ms B] other than with the wife's consent;
(h)discussing with [Child A] any change of her name;
(i)discussing with [Child A] any change of her residence;
(j)establishing any email addresses or domain names on [Child A]'s behalf other than with the wife's consent;
(k)discussing with [Child A], or informing her in any manner, of any financial arrangements he has made or might propose to make for her benefit; and
(l)contacting [Child A]'s school, except as provided for in these orders.
46.Both parties are restrained by injunction from:
(a)denigrating the other in the presence of all within earshot of [Child A], or permitting any other person to do so;
(b)discussing these proceedings with [Child A] other than in a therapeutic context with her therapist;
(c)permitting [Child A] to see any documents filed by either party in these proceedings;
(d)permitting [Child A] to see any correspondence between the parties or their solicitors or the wife's father in relation to these proceedings, or in relation to parenting arrangements for [Child A] more generally;
(e)informing [Child A] in any way of the existence and content of the written agreement ("the Agreement") between them executed on 22 December 2009; and
(f)informing [Child A] in any way of the existence and content of the written agreement between the husband and the maternal grandfather ("the collateral agreement") executed on 26 December 2009.
Other
47.All parenting orders made previously in the proceedings be and are hereby discharged.
48.All outstanding applications and responses, other than as to costs, be and are hereby dismissed.
49.The wife is at liberty to provide a copy of these orders to:
(a)[Child A]'s school;
(b)[Child A]'s therapist; and
(c)any relevant government agency.
50.All documents produced by named persons pursuant to subpoena in these proceedings be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from the date hereof.
51.In relation to material tendered as an exhibit into evidence in these proceedings, on the expiration of 42 days from the date hereof, all material tendered as an exhibit into evidence, save and except for material produced pursuant to subpoena, be destroyed by the Court without notice to the parties.
52.If any party seeks orders for costs, that party must file and serve written submissions within 28 days from today.
53.The respondents to any such application for costs must file and serve any written submissions in response within 28 days thereafter.
54.Each party have liberty to seek a relisting for the making of oral submissions, such request to be made within 14 days after the expiry of the time for the filing of any responsive written submissions pursuant to the immediately preceding order.
55.In the event that no request for a relisting is received pursuant to paragraph 50 of these orders, any costs application stand to be determined by the presiding Judge in chambers, and on the papers, with reasons to be delivered and orders pronounced from chambers without the necessity for any further appearance, and without further notice to the parties
FAMILY COURT OF WESTERN AUSTRALIA #PTW 3817 / 2009
[MR DUNCAN]
v.
[MS DYNOWICZ]
APPLICANT'S MINUTE OF REQUESTED FINAL ORDERS SOUGHT
31 Oct 2022
RE-INTRODUCTION CHRONOLOGY / SCENARIO
1.Mother / [Child A]'s therapist to do all things necessary to acclimatize [Child A] to the passing of [Child A]'s half-brother.
2.Mother to withdraw any requested injunctions / orders regarding Father-Daughter discussions on the passing of [Child A]'s half-brother.
3.Mother to do all things necessary to facilitate [Ms E] ([Child A]'s maternal grandmother) being a chaperone during Father's initial meetings with [Child A]. 1
4.Father to contact [Ms E] to strategize on optimal plans for Father-Daughter-[Ms E] outings. 2
5.Father to make and provide Mother a three-minute video re-introducing himself to [Child A], Mother to do all things necessary to facilitate [Child A] viewing that video within 24 hours of receipt, and again any time thereafter as [Child A] may wish.
6.Father to travel to Perth for the purpose of initial re-connection meetings with [Child A].
1 Father requested from Mother on 17 Oct 2022 [Ms E]'s Perth travel dates. Mother did not respond.
2 Since Father has no information on [Child A]'s likes/dislikes, [Ms E]'s advice and input would increase the likelihood of successful first visits; best facilitate an independent Father-Daughter relationship; provide [Child A] with a great degree of comfort during initial Father-Daughter meetings; and reassure [Child A] that both sides of her family can interact with maturity, goodwill and affection. Father welcomes [Ms E] accompanying on any subsequent Father- Daughter meetings, in perpetuity. If [Ms E] is not available to serve as a chaperone for any meeting Mother requests a chaperone be present, then an independent chaperone agency be engaged, at Mother's expense.
7.Father to collect from [Child A]'s therapist's office the box of 2021 Christmas gifts he sent to [Child A] (Apple Picture Book, US flag flown over US Capitol, etc.) for presentation to [Child A] at first Father-Daughter-[Ms E] reconnection meetings.
8.First Father-Daughter-[Ms E] reconnection meeting, not to exceed two hours. Suggested event: Cafe lunch, followed by shopping in the CBD. Suggested location: [redacted]
9.Second-Seventh Father-Daughter-Ms E reconnection meetings, as directed by and agreed with [Child A] and [Ms E].
Suggestedevents: mini golf, biking, beach walks, lunch/dinner, the WA Ballet, manicure/pedicure, water park, events at the Quarry, and shopping.
10.Father and [Ms E] will be attuned to [Child A]'s body language, and curtail any and all meetings if [Child A] evinces discomfort.
11.Mother to do all things necessary to ensure the success of all Father-Daughter meetings.
12.Father-Daughter introductory visits conclude. Father returns to the USA.
Chaperone requirement ends.
Father-Daughter communication commences (in accord with "COMMUNICATION," infra). Father-Daughter long-distance communication continues for 7-12 months.
13.After 7-12 months of Father-Daughter long-distance communication, Father returns to Perth sometime after 1 Dec 2023, and each Southern summer thereafter, and commences equal shared 50-50 living arrangements.
PARENTAL RESPONSIBILITY - LIVES WITH:
14.Parents to have equal shared parental responsibility.
15.Commencing on or after 1 Dec 2023, Father to have 50-50 equal-shared-lives-with time when Father resides in Australia; weekly changeovers to occur at [Child A]'s school at the end of the school day on Friday afternoons.
16.Father to have substantial and significant time when [Child A] visits the USA.
HEALTH, EDUCATION and WELFARE:
17.Both parents have equal and unfettered ability to attend, be involved with, interact with and confer with [Child A]'s school teachers/administrators, health care providers, and any other providers of services to [Child A]; and to inspect and receive any and all records regarding [Child A], including school reports.
18.Both parents are free to attend parent-teacher evenings, extracurricular activities and any/all school events.
19.Each parent shall ensure the other is listed as "emergency contact" on documents requesting (retrospectively or prospectively) that information.
20.Each parent shall notify the other of any emergency, illness or injury to [Child A].
21.Both parents are at liberty to discuss with [Child A] her health, education and welfare.
COMMUNICATION:
22.COMMENCEMENT: Father-Daughter communication may begin after Father and [Child A] first meet in-person.
23.DEFINITION: Communication includes, but is not limited to, live video exchanges, recorded video, emails, texts, telephone calls, photo exchanges, packages of gifts, gift subscriptions, educational apps, letters, cards, postcards and individual gifts (including money, gift cards and debit cards linked to Father's accounts).
24.INTENT: Parents to do all things necessary to encourage and facilitate prompt, unhindered, and uncensored communication between [Child A] and either parent. Parents to do all things necessary to ensure [Child A]'s communication devices are in good working order.
25.CELL PHONE: To facilitate Father-Daughter communication, Father is at liberty to purchase and provide [Child A] a cell phone one year after the promulgation of these orders; Mother to do all things necessary to ensure operation and wi-fi accessibility of that phone.
26.VIDEO AND TELEPHONE CALLS: Either Parent may initiate video chat calls or telephone calls for not more than 30 minutes on any Monday and/or Friday between 7:30-8 pm Perth time; Parent to initiate.
27.Parents shall inform [Child A] she is at liberty to initiate any such calls with Father on any day before 11 am Perth time; Mother do all things necessary to facilitate same.
28.Parents will do all things necessary to facilitate and not hinder these calls, including providing a communication device and a quiet setting.
29.EMAIL: Father and [Child A] are at liberty to communicate without restriction via email (and email attachments) at the email account: [redacted], password: [redacted]. Mother will have unfettered access to monitor that email account for one year after promulgation of these orders, after which Father is at liberty to change the password. Mother will provide [Child A] daily access to a device to facilitate email communications.
30.TEXTS: Father and [Child A] may text each other once per day, for a total of two texts. Mother will do all things necessary to facilitate.
31.GIFTS, LETTERS, CARDS, POST CARDS: Father is at liberty to send gifts, letters, cards and post cards directly to [Child A]'s residence, without limitation in number, so that [Child A] may experience the joy of receiving and opening these items herself. 3
32.PRE-PAID POSTAGE: Father may provide postage pre-paid envelopes and boxes for [Child A]'s use to keep her connections with Father; Mother will do all things necessary to assist [Child A] with mailing any such items.
33.BEDTIME VIDEOS: Within 30 days of the promulgation of this order, Mother to provide Father a list of that portion of the 93 bedtime videos created by Father to which Mother reasonably objects, specifying the reasons for her objections. Father is at liberty to provide the remainder of those 93 videos to [Child A]. 4
34.SPECIAL OCCASIONS: Notwithstanding anything in these orders, if Father is present in Perth on the specified date, Father may spend five hours each day with [Child A] on the following special occasions. Alternatively, if Father is not present in Perth on the special occasion date, Father may communicate with [Child A] via videoconference at 7:30 pm Perth time for not more than 30 minutes on the following special occasions:
a) [Child A]'s birthday ([redacted])
b) Christmas Eve
c) Christmas Day
d) New Year's Day
e) Easter Sunday
f) Father's birthday ([redacted])
g) 4th of July
h) Australian Father's Day
i) American Father's Day
35.DISCLOSURE: Mother will report to Father within 24 hours any communication of his that she has withheld, censored or otherwise prevented [Child A] from receiving.
36.One year after promulgation of these orders, Mother's involvement in Father-Daughter communication ceases, and Father-Daughter communication becomes private.
3 Father has been unable to communicate with [Child A] for the last eight years.
4 On information and belief, Mother's attorney transcribed all 93 bedtime videos in 2019.
PASSPORTS and TRAVEL
37.AUSTRALIAN AND AMERICAN PASSPORTS: Mother is at liberty to retain / renew [Child A]'s Australian and American passports.
38.ITALIAN PASSPORT, CULTURE and HERITAGE: Father has the Court's permission to apply for an Italian passport for [Child A], and the necessity for the consent of Mother to the issuance of an Italian passport is hereby dispensed with. Subject to the requirements of the Consulate or Embassy of Italy, an Italian / European Union passport may be issued to [Child A]. Upon receipt of any such Italian / European Union passport, Father will provide within 24 hours a copy of the identifying pages to Mother, and Mother be at liberty to enter that passport onto the Family Law Watchlist for international departures. 5
39.Father has unfettered ability to discuss with [Child A] her Italian culture, heritage, and citizenship, and the attendant benefits that flow therefrom.
40.INTERNATIONAL TRAVEL: Parents will do all things necessary to facilitate [Child A]'s international travel, including providing upon request any and all of [Child A]'s passports. Each parent will give the other parent three months' notice of any international travel with [Child A], including itinerary and communication details such that the other parent may maintain their connections to [Child A].
41.FATHER-DAUGHTER INTERNATIONAL TRAVEL: Commencing 1 January 2024, Father is at liberty to travel each year with [Child A], domestically or internationally, on trips not to exceed 14 days and not during school term. Mother will do all things necessary to facilitate these trips, including by providing [Child A]'s Australian and American passports, and/or withdrawing temporarily her blocks on [Child A]'s Italian passport.
42.US TRAVEL: If Mother travels to the US with [Child A], Mother will make [Child A] available to Father for five days so that [Child A] may visit her 20 first-cousins and other paternal relatives in [USA State A]. Parents to split US domestic flight costs to/from [USA State A].
5 Non-Europeans pay €750,000 to obtain European passports. Mac, Ryan. "In Malta, a Door Knock Brings a Lead." The New York Times, Oct. 23, 2022, lead.html?action=click&module=Well&pgtype=Homepage§ion=Reader%20Center.
INJUNCTIONS:
43.Mother be restrained by injunction and an injunction is hereby granted restraining Mother or her agents from:
a) terminating unilaterally any court order without prior judicial review.
b) withholding from [Child A] any item from Father.
c) withholding/censoring any communication to [Child A] from Father.
d) directing the school in any way regarding Father's interaction with the school.
e) directing [Child A]'s service providers, in any way regarding Father's interaction with that provider.
f) denigrating Father in child's presence.
g) referring to Father as "[redacted]" or "[USA State A]."
MISCELLANEOUS:
44.$600 GIFT CARDS: Within seven days of the promulgation of these orders, Mother is to mail (certified or insured) to Father the $600 in gift cards and Christmas card Father provided to Mother for [Child A] for Christmas 2019.
45.INTRODUCTIONS: Father is at liberty to interact with and introduce [Child A] to any person except those with known criminal convictions.
46.PARENTAL COMMUNICATION: Parents will communicate with each other by email or text. In emergent circumstances, they may communicate by phone. Where a non-emergent response is required, the other Parent shall respond within 24 hours.
47.VIOLATIONS, DISPUTE RESOLUTION AND CONTEMPT: Parents shall memorialize any purported violations of these orders by email to the other Parent within 24 hours, which email may and will be freely available for use as evidence. Any and all costs associated with dispute resolution will be borne entirely by the losing party.
48.CHANGES: The Parents may agree to adjust these orders, by mutual, written, agreement.
49.PREVIOUS ORDERS TERMINATED: All previous orders are terminated.
50.That Mother pays the costs of and incidental to these proceedings.
Family Law Act 1975 (Cth)
IN THE FAMILY COURT OF WESTERN AUSTRALIA
AT PERTH
PTW 3817/2009
BETWEEN: [MR DUNCAN]
(Applicant)
AND
[MS DYNOWICZ]
(Respondent/mother)
Recitals:
Based upon the applicant's undertaking to the court as noted on 19 December 2019, not to invoke the Deed AND UPON the undertaking of the applicant not to invoke or seek to enforce the terms of the Deed between [Mr A] and the applicant dated 26 December 2009.
The costs of the attendance of the mother and the child ([Child A]) upon [Ms C] shall be borne by the applicant.
MINUTE OF FINAL ORDERS SOUGHT
1.That the child, [Child A], born [in] 2010 live with the mother.
2.That the mother have sole parental responsibility for [Child A].
3.To facilitate the introduction of [Child A] to the applicant, the following is to occur:
a.[Child A] is to attend upon [Counselling Service] for the purpose of attending therapy regarding the death of her half-sibling, [Child B].
b.The applicant be at liberty to make a introductory video of himself to be no longer than 3 minutes in duration, with the narrative to be limited to general discussions about himself, where he lives and his hobbies and/or interests. The mother is to receive a copy of the video and if suitable show [Child A] the video. If the video is deemed not suitable for [Child A], then the mother is to advise her concerns about the video and for the applicant to edit or remake the video and resubmit it to the mother until the production of an age and subject matter appropriate video. The video is to be shown to [Child A] by the mother prior to the applicant travelling to Perth.
c.That the applicant is to visit Perth, Western Australia (introductory visit) to have an in-person introduction with [Child A] (introductory meeting). [Child A] will be accompanied by the mother at [a public park], with the first meeting to be no longer than 30 minutes.
d.After the introductory meeting, [Child A] will be given the time to process the interaction with the applicant before a second meeting. Should [Child A] require attendance upon her therapist, then the mother to pay the cost of the therapy at the first instance and the applicant to reimburse the mother within 7 days of the provision of a receipt.
e.Approximately a week after the introductory meeting, and subject to [Child A]'s wishes, [Child A] and the applicant will undertake an activity together ("Activity 1") to be determined, for up to 3 hours, with [Child A] to be accompanied at all times by the mother. The activity will be undertaken at a time suitable to both [Child A] and the mother's scheduling commitments.
f.Approximately a week after Activity 1, and subject to [Child A]'s wishes, [Child A] and the applicant will undertake an activity together ("Activity 2"), to be determined, for up to 3 hours, with [Child A] to be accompanied at all times by the mother. The activity will be undertaken at a time suitable to both [Child A] and the mother's scheduling commitments. Thereafter the introductory visit concludes.
g.Upon conclusion of the applicant's introductory visit and once [Child A] has been able to process the visit, then for three months thereafter, and subject to [Child A]'s wishes, [Child A] may interact with the applicant either by email/letter, Skype or the like, as [Child A] chooses. Irrespective of the form of communication that [Child A] chooses, the communication be limited to this one form of communication with one interaction per week. If Skype or the like is selected by [Child A], then this is to occur at a time nominated by the mother for up to 30 minutes duration each week. If [Child A] elects to use email, then she can send the applicant an email, from [redacted] with all email communication from the replies by the applicant to [Child A] to solely be sent to this email address with the reply limited to subject matter at a frequency of no greater than once per week and the content be no more than half an A4 page or as otherwise agreed to in writing, single spaced, 12 font. All communication to be monitored by the mother for a period of three years from the initial communication.
h.After three months of regular communication exchanges between [Child A] and the applicant, then the communications initiated by [Child A] be increased to two exchanges per week and the applicant be at liberty to send up to two care packages per calendar month accompanied by a small note with each package, noting that one additional care package and note may be sent for Easter, [Child A]'s birthday and Christmas, care of [redacted] (or wherever the mother's current work address is). The care package contents and note to be vetted by the mother prior to delivery to [Child A], with the mother to have the reasonable
right of refusal of such items that are deemed inappropriate with communication to the applicant via email.
4.In the event that the applicant's communications with [Child A] is inappropriate then that communication be terminated and the mother to send the applicant an email explaining her concerns, and the time for the supervision is to be increased by 3 months for each inappropriate communication event.
5.That otherwise [Child A] spend time with the applicant as otherwise agreed to between the parties in writing.
6.That the applicant be restrained by injunction and an injunction is hereby granted restraining him or his agents from:
a.attempting to contact [Child A] without the written permission of the mother, save for as noted in these orders;
b.removing [Child A] from the care of the mother or any third party, including any school, educational establishment or extracurricular activity that she attends without the prior written consent of the mother;
c.applying for a passport on behalf of [Child A] in any jurisdiction;
d.removing or attempting to remove [Child A] from the Commonwealth of Australia or taking [Child A] to an international point of departure;
e.removing or attempting to remove [Child A] from the Perth metropolitan area without the written consent of the mother;
f.discussing the circumstances surrounding the death of [Child B] with [Child A], without the mother's written consent;
g.from allowing [Child A] to be in the presence of, or communicate with [Ms B], or any member of her family;
h.discussing with [Child A] any change of her name;
i.discussing with [Child A] any change of her residence insofar that she will be living with the applicant or moving out of the mother's home;
j.discussing these legal proceedings with [Child A];
k.denigrating or commenting on the mother or her family in the presence or knowledge of [Child A];
l.from setting up any email addresses on behalf of [Child A];
m.from showing the bedtime stories created or read to by the applicant or his agents;
n.from taking any steps to allow [Child A] to see the emails the applicant has either sent or received in relation to the parental dispute or these court proceedings;
o.from telephoning [Child A] without the mother's written consent;
p.from contacting [Child A]'s school, save for the sole purpose of requesting the reports and other information a parent would ordinarily receive; and
q.from discussing the college fund account without the mother's written prior consent.
7.At least 28 days prior to any contact with [Child A] the applicant is to deliver to the mother, all and any email addresses and passwords for all email accounts that the applicant or his agent has set up for or on behalf of Child A, including but not limited to the following:
a.[redacted]
b.[redacted]
c.[redacted]
d.[redacted]
e.[redacted]
f.[redacted]
With the mother to retain sole control of any email addresses provided, or created by the applicant on behalf of [Child A].
8.From January 2024, if the applicant wishes to spend time with [Child A], then he is to provide three months written notice to the mother, with [Child A] to spend up to six hours per day, for up to 14 days during January summer holidays, from 9 January, and for a period of 10 days at either the end of term two or term three holidays, commencing the first Saturday of the holiday term break, with visits to be chaperoned, if requested by the mother, at the applicant's expense.
9.That any time that the applicant spends with [Child A] be in the Perth metropolitan area, unless otherwise agreed to by the parties, during a school holiday period and for such time, so as not to interfere with the [mother’s] traditional family holiday in [redacted], WA, each Christmas and Easter.
10.In the event that [Child A] does not want to communicate with, or spend time with the applicant, then that communication be ceased, with the mother to ascertain the reason for the cessation of the contact, and for that reason to be provided to the applicant in writing.
11.That the mother to direct the school where [Child A] attends, to authorise the school to provide to the applicant, information that is usually available to the parents, with the applicant to be at liberty to request from [Child A]’s school copies of her reports and order photographs from [Child A]'s school, subject to the order at paragraph 6(p) herein.
12.The mother be at liberty to provide a copy of these orders to:
a. any educational or extracurricular facility that [Child A] is enrolled in;
b. any treating medical practitioner involved in [Child A]'s care;
c. any supervision agency; and
d. any relevant government agencies.
13.The applicant pay the costs of and incidental to these proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate
1 FEBRUARY 2023
216
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