McCallum and Earmont
[2013] FCCA 596
•28 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCCALLUM & EARMONT | [2013] FCCA 596 |
| Catchwords: FAMILY LAW – Parenting – time four year old child should spend with father – mother proposing only supervised time until child 16 – mother fearful father will abduct child overseas to non-Convention country using a false passport – whether there is an unacceptable risk of mother's fear being realised. |
| Legislation: Family Law Legislation Amendment (Family Violence and Other Measures) Act, 2011, Schedule 1 |
| Goode v Goode, [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 |
| Applicant: | MS MCCALLUM |
| Respondent: | MR EARMONT |
| File Number: | PAC 1124 of 2011 |
| Judgment of: | Judge Halligan |
| Hearing dates: | 16, 17 and 18 July 2012, 17, 18, 19 and 20 June 2013 |
| Date of Last Submission: | 20 June 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 28 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Clifford |
| Solicitors for the Applicant: | Sarah Bevan Family Lawyers |
| Counsel for the Respondent: | Mr Jackson |
| Solicitors for the Respondent: | McDonell Milne Toltz Family Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Neville |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of New South Wales, Parramatta |
ORDERS
All previous parenting orders in relation to the child X born (omitted) 2009 be discharged.
The mother shall have sole parental responsibility for X.
Before making any decision in the exercise of parental responsibility, the mother shall-
(a)advise the father of the nature of the decision she is contemplating;
(b)invite the father to give her his views about the decision to be made; and
(c)take any views provided by the father into account before making the decision; and
(d)notify the father promptly of any decision she makes in the exercise of parental responsibility.
X shall live with the mother.
Until X commences school in 2014, X will spend time with the father as follows:
(a)For a period of one month, each fortnight, such time to occur on the Saturday and on the Sunday for a period of 4 hours from 11.30am to 3.30pm, commencing on the second weekend after these orders are made;
(b)For a period of one month thereafter, each fortnight, such time to occur on the Saturday and on the Sunday from 10.30am to 4.30pm; and
(c)At the conclusion of the period referred to the preceding subparagraph, each fortnight, such time to occur on the Saturday and on the Sunday from 9.30am to 5.30pm.
The time between X and his father referred to in paragraph 5 is to commence and conclude at Catholic Care Children’s Contact Service at (omitted) (“the Service”).
Within 7 days of the making of these orders, both parties shall do all things and sign all documents necessary to apply to the Service to be accepted for changeovers in accordance with these orders.
From the commencement of Term 1 of the 2014 school year, X shall spend time with his father as follows:
(a)From the beginning of Term 1 of the 2014 school year until the commencement of Term 2 of the 2014 school year, every alternate weekend commencing at 9.30am on Saturday and concluding at 5.30pm on Sunday, such weekend time to commence on the second weekend that falls after the first day of Term 1 in 2014;
(b)From the beginning of Term 2 of the 2014 school year until the end of Term 3 of the 2014 school year, every alternate weekend such time to start on Friday at the conclusion of the school day or at 3.00pm if the child is not at school and concluding at 5.30pm on Sunday, such weekend time to commence on the second weekend that falls after the first day of Term 2 in 2014;
(c)During Term 4 of the 2014 school year and during every school term thereafter, every alternate weekend such time to start on Friday at the conclusion of the school day or at 3.00pm if the child is not at school and concluding at the commencement of school on the following Monday or at 9.00am if the child is not to attend school, such weekend time to commence on the second weekend that falls after the first day of each school term;
(d)Commencing in the school holidays at the tend of Term 3 of the 2014 school year, for half of each school holiday period as agreed between the parents and failing agreement-
(i)in school holidays commencing in 2014 and in each alternate year thereafter, commencing at the conclusion of school on the last day for student attendance in the school term preceding the school holiday period and concluding at 5.30pm on the day that is midway between the last day for student attendance in the school term preceding the school holiday period and the first day for student attendance in the school term following the school holiday period; and
(ii)in school holidays commencing in 2015 and in each alternate year thereafter, commencing at 5.30pm on the day that is midway between the last day for student attendance in the school term preceding the school holiday period and the first day for student attendance in the school term following the school holiday period and concluding at 5.30pm on the day before the first day for student attendance in the school term following the school holiday period.
When the time between X and his father under these orders is to commence at the end of a school day and or to conclude at commencement of a school day, the father shall collect the child from or deliver the child to his school at the commencement or conclusion of his time.
When the father's time under these orders does not commence at the conclusion of school or end at the commencement of school-
(a)until X reaches 10 years of age, changeovers shall occur at the Service, or if the service is unavailable for any reason, changeovers shall occur at McDonalds at (omitted) or at another public venue agreed between the parents; and
(b)from X’s 10th birthday, changeovers shall occur at McDonalds at (omitted) or at another public venue agreed between the parents.
The mother shall be at liberty to initiate telephone communication with X on no more than one occasion each day he is spending time with the father and the father shall do all things necessary to ensure that X may initiate telephone communication with his mother in accordance with his wishes whilst spending time with the father.
When not spending time with X, the father shall be at liberty to initiate telephone communication with X every Tuesday and Thursday for a duration of no longer than 20 minutes between 5.00pm and 7.00pm and the mother shall do all things necessary to ensure that X may initiate telephone communication with his father in accordance with X’s wishes.
The child shall spend time with each of the parties on occasions of special significance as follows:
(a)With the father on Father's Day from 9.00am until 6.00pm, if the child is not otherwise spending time with the father that day pursuant to these orders.
(b)With the mother on Mother's Day from 9.00am until 6.00pm, if the child is not otherwise living with the mother that day pursuant to these orders.
(c)With the father on his birthday as agreed, or in default of such an agreement, from after school or 5.00pm if not a school day, until 7.00pm, if the child is not otherwise spending time with the father that day pursuant to these orders.
(d)With the mother on her birthday as agreed, or in default of such an agreement, from after school or 5.00pm if not a school day, until 7.00pm, if the child is not otherwise living with the mother that day pursuant to these orders.
(e)On the child’s birthday as agreed or in default of agreement with the parent with whom the child is not living or spending time on his birthday:
(i)from after school to 7.00pm if a school day, or
(ii)from 9.00am to 3.00pm if not a school day.
(f)With the father on Christmas Day 2013 from midday to 6.00pm.
(g)Beginning in 2014, with the mother:
(i)From 9.00am on Christmas Eve until 6.00pm on Christmas Day in 2014 and each alternate year thereafter; and
(ii)From 6.00pm on Christmas Day until 9.00am on 27 December in 2015 and each alternate year thereafter.
(h)Beginning in 2014, with the father:
(i)From 6.00pm on Christmas Day until 9.00am on 27 December in 2014 and each alternate year thereafter; and
(ii)From 9.00am on Christmas Eve until 6.00pm on Christmas Day in 2015 and each alternate year thereafter.
The mother and the father are hereby restrained from denigrating and from allowing any third party to denigrate the other parent, the other parent’s partner, or any member of the other parent’s family in the presence or the hearing of X.
The mother shall do all acts necessary to ensure that the father is nominated as an emergency contact person for X at any school at which X is enrolled.
The mother shall do all acts necessary to authorise any school at which X may be enrolled to provide to the father a copy of X’s school reports.
Within 24 hours of receiving notice of, or an invitation to, any upcoming school, social or sporting events involving X, including but not limited to parent teacher evenings, end of school functions or sporting events, the mother shall give notice of those events to the father, and if the father intends to attend any such event, he shall notify the mother of his intention to do so as soon as possible and not less than 12 hours before the event.
Each of the mother and the father, by themselves, their servants and agents, is restrained from-
(a)taking or sending the child X, a male, born on (omitted) 2009 (the child), out of Australia, including as an unaccompanied minor;
(b)attempting to take or send the child out of Australia, including as an unaccompanied minor;
(c)causing or permitting any other person to take or send the child out of Australia, including as an unaccompanied minor;
(d)attempting to cause or permit any other person to take or send the child out of Australia, including as an unaccompanied minor;
(e)permitting or allowing the child to leave Australia; and
(f)attempting to permit or allow the child to leave Australia.
The Australian Federal Police shall do all things within their power to enforce order 17, including but not limited to placing the name of the child on the Watch List in force at all points of international arrival and departure in Australia, and shall maintain the child’s name on the Watch List until 24 February 2024, unless otherwise ordered by a court.
In the event that either parent proposes to travel with the child more than 75 kilometres from the Sydney central business district, the parent intending to travel shall notify the other parent prior to the commencement of travel of-
(a)the itinerary for the travel, including the dates of departure and return; and
(b)the name, address and telephone numbers of all accommodation at which the child will be staying.
For the purposes of the preceding order-
(a)It shall not be necessary for the mother to notify the father if she travels with the child to any holiday home owned by her parents in New South Wales.
(b)Notice of a trip not including an overnight absence shall be given not less than 12 hours before departure.
(c)Notice of any overnight trip shall be given not less than 7 days before departure.
IT IS NOTED that publication of this judgment under the pseudonym McCallum & Earmont is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1124 of 2011
| MS MCCALLUM |
Applicant
And
| MR EARMONT |
Respondent
REASONS FOR JUDGMENT
Introduction
After a hearing taking more than six days, there is one crucial factual question to be answered in these parenting proceedings that will largely dictate their outcome – is there an unacceptable risk that the father will use a false passport to abduct the parties’ four year old son X to a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction so that the child will never see his mother again?
The mother believes, honestly I am satisfied, that the father intends to take X to Egypt if he has an opportunity to do so. She believes he can and will obtain a false passport for the child so that the usual order restraining the removal of the child from the country with a requirement the child’s name be placed on the Watch List at all points of international arrival and departure in Australia will be ineffectual to prevent the father successfully removing the child from Australia. For that reason, she believes that the father's time with the child must be in a secure and restricted environment, and proposes that the father spend supervised time with X at a contact centre until X is 16. The only time the father has spent with X since the parties separated over two years ago has been supervised in a contact centre.
The father denies having any desire or intention to remove the child from Australia and from a relationship with his mother, and ultimately supported the orders proposed by the Independent Children's Lawyer.
The Independent Children's Lawyer submitted that there was not an unacceptable risk that the father would do what the mother feared.
The Independent Children's Lawyer proposed that the mother have sole parental responsibility for X, and that he live with his mother. This is also what the mother sought. At the end of the hearing the father abandoned his application for equal shared parental responsibility and a proposal culminating in an equal time arrangement, and supported these orders being made.
The Independent Children's Lawyer proposed that in the exercise of sole parental responsibility, the mother be required to consult with and obtain input from the father before making any decision and to promptly inform the father of any decisions she takes. While the father supported this order, the mother objected to a requirement that she “consult” the father, and instead proposed that she be required to obtain input from the father about the decision and to take that input into account before making a decision.
The Independent Children's Lawyer proposed a gradually escalating regime of unsupervised time for the child with his father, that the father at the end of the hearing supported, as follows-
a)for four hours on Saturday and on Sunday each alternate weekend for a month;
b)then for six hours on Saturday and on Sunday each alternate weekend for a further month;
c)then for eight hours on Saturday and on Sunday each alternate weekend until X commences school in 2014;
d)from the beginning of Term 1, 2014 until the beginning of Term 2, 2014, each alternate weekend from 9.30 am Saturday to 5.30 pm Sunday;
e)from the beginning of Term 2, 2014 until the end of Term 3, 2014, each alternate weekend from the conclusion of school on Friday, or from 3.00 pm if X does not attend school on that Friday, until 5.30 pm Sunday;
f)commencing in Term 4, 2014, each alternate weekend during each school term, from the conclusion of school on Friday, or from 3.00 pm if X does not attend school on that Friday, until the commencement of school the following Monday; and
g)commencing in the school holidays at the end of Term 3, 2014, for half of all school holidays as agreed between the parents, and failing agreement from the conclusion of school on the last day of term until 5.30 pm on the Sunday falling in the middle of the school holiday period.
If, contrary to the mother's contention, the court was satisfied the child’s time with his father should not be supervised, the mother did not propose any alternate parenting orders. Nor did the mother make any significant challenge to the spending time regime proposed by the Independent Children's Lawyer and supported by the father if the court was satisfied supervision of the father's time was unnecessary.
The Independent Children's Lawyer proposed that changeovers occur at the child’s school whenever the father's time begins or ends at the conclusion or commencement of school, and that all other changeovers occur at the Catholic Care Children’s Contact Service at (omitted) until X is 10, after which changeovers occur at the McDonald’s Restaurant at (omitted) or other public place agreed by the parents. The father supported changeovers at the contact centre only until X is 6. He also proposed that if the contact centre was not available on any occasion, changeovers occur at the nominated McDonald’s Restaurant.
The Independent Children's Lawyer proposed other orders for communication between the child and the parent the child was not living or spending time with at the relevant time, and proposed specific arrangements for the child’s time with the parents on Father's Day, Mother's Day, each parent’s birthday, the child’s birthday and at Christmas time.
The Independent Children's Lawyer proposed a mutual non-denigration order, that the mother nominate the father as an emergency contact at the child’s school, that the mother authorise the child’s school to provide the father with copies of the child’s school reports and that within 24 hours of receiving notice of an upcoming school, social or sporting event for the child, the mother notify the father of it, and that the father immediately notify the mother if he intends attending the event.
The Independent Children's Lawyer proposed an order restraining both parents from removing the child from Australia in the usual terms, with a Watch List provision.
The father in addition proposed an order, said to be for the mother's peace of mind, that each party be required to notify the other in advance of any intention to take the child outside the Sydney metropolitan area, including details of the itinerary.
Background
The mother is aged 46 (born (omitted) 1967), the father is 44 (born
(omitted) 1968). The parties commenced cohabitation in early 1995. The parties cohabited in the home of the mother's parents at (omitted) for about twelve months. The parties then moved into a home owned by the mother's parents at (omitted).
The parties separated and reconciled a number of times during their relationship. Each time the parties separated, the father left the (omitted) home. The parties finally separated on 4 February 2011. The mother and X continue to live in the (omitted) property.
X was born on (omitted) 2009.
Interim parenting orders made by consent on 19 April 2011 provided that the child live with the mother and spend supervised time with the father for two hours per week at the (omitted) Contact Centre. Interim parenting orders made by consent on 27 June 2011 and
26 September 2011, provided that the father's supervised time become two hours a fortnight at the contact centre, and the father have telephone communication with X each Tuesday and Thursday between 6.00 pm and 6.15 pm. None of the consent interim orders dealt with parental responsibility, nor did they restrain the child’s removal from Australia.
By agreement between the parents, the father's supervised time with X increased to two hours on both Saturday and Sunday each alternate weekend from early this year.
After separation, the police made an application for an AVO against the father for the protection of the mother. After a defended hearing, the AVO application was dismissed.
The applicable law
The proceedings come under Part VII of the Family Law Act 1975, being proceedings for parenting orders. As the proceedings commenced before 7 June 2012, most of the amendments to Part VII of the Act and to definitions for that part effected by Schedule 1 of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 that commenced on that date do not apply to these proceedings.
The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). There have been no parenting plans about X, so s.65DAB is not relevant.
Section 60B sets out the objects and principles of Part VII. Of particular relevance in this case is the principle in s.60B(1)(a), namely-
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.”
Of particular relevance too are the principles set out in s.60B(2)(a), (b) and (e), as follows-
“(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
…
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
In relation to s.60B(2)(e), I note this child is of German and Middle Eastern heritage, the former through his mother's family and the latter through his father's family.
It is important to note the qualifying words to the object set out in s.60B(1)(a) – “consistent with the best interests of the child” – and that all the principles set out in s.60B(2) are subject to the qualifying phrase “except when it is or would be contrary to a child’s best interests”.
In deciding what parenting order to make, the child’s best interests are the paramount consideration (s.60CA). S.60CC indicates how the court determines the child's best interests.
The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode v Goode, [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, as follows:
“10. Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”
Section 61DA provides that when making a parenting order, the court must apply a rebuttable presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility for the child, unless the court is satisfied there are reasonable grounds to believe that a parent of the child has engaged in child abuse or family violence. If the presumption arises, it may be rebutted by evidence that satisfies the court it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
Both parties and the Independent Children's Lawyer ultimately submitted that a sole parental responsibility order was in X’s best interests, and I will make such an order, for reasons I will give later. It is therefore unnecessary for me to address s.65DAA.
Discussion
Despite the length of this hearing, it appears a number of significant facts are ultimately not in issue. There seems no issue that-
a)X can benefit from a meaningful relationship with both his parents (s.60CC(2)(a));
b)The mother has been the child’s primary carer from birth, and the child has a close and loving relationship with the mother (s.60CC(3)(b));
c)The child loves his father and enjoys his time with his father (s.60CC(3)(b)); and
d)If the child was taken away from his mother and denied a relationship with her, it would have extremely serious adverse effects on him.
Despite the mother alleging incidents of family violence, which the father denied, the mother did not suggest there is a present or foreseeable risk of exposure of X to family violence if the parties do not meet. It is therefore unnecessary for me to resolve the factual issues about family violence, although I am satisfied on balance that there have been instances of family violence perpetrated by the father on the mother.
As mentioned, the focus of the mother's case from the outset has been her firmly held belief that if the father has unsupervised time with X, the father will abduct the child overseas using a false passport and she will never see him again. That is the basis for the relatively extreme position of the mother that the father cannot be permitted to have unsupervised time with X until he is 16.
Despite asserting a Watch List order would be ineffectual in preventing the father removing X from Australia, the mother nonetheless sought an order restraining the father from removing X from Australia with a Watch List provision included. Her explanation for this was that a Watch List order would make it more difficult for the father to take X overseas. The clear inference from this evidence is that the mother accepts that the Watch List system is a reasonably effective means of enforcing an order preventing removal of a child from Australia if the child travels under the child’s own name. I am certainly satisfied this is so.
Thus, unless I am satisfied there is a real prospect that the father has the ability and inclination to seek a false passport for the child, I am satisfied supervision of the father's time is not in X’s best interests if there is a Watch List order in place to prevent his removal from Australia. I reach this conclusion with particular regard to the evidence of the Family Consultant, which I accept, that it would be detrimental to X to continue spending supervised time with his father in a contact centre for any significant period of time. The Family Consultant’s view was that this would prevent the formation of a normal parent/child relationship between the father and son, it would be extremely difficult to maintain the child’s, and perhaps the father's, commitment to such limited time in such constrained circumstances, and it would place strains on the father/son relationship because before long, the child would begin questioning why his time with his father had to be supervised, with the risk the child may begin supplying answers to that question through his imagination.
Thus, I am satisfied the only justification for preventing X immediately commencing to spend unsupervised time with his father is if there is a real risk, rather than a merely hypothetical one, that the father may not only wish to abduct X overseas but may do so using a forged passport for the child using a different name. Even if so satisfied, the court would still need to assess whether that risk was an unacceptable one to take, after weighing up the profoundly adverse consequences for X of allowing unsupervised time and the father successfully abducting X on the one hand, and the profoundly adverse consequences for X of preventing the father having unsupervised time to further reduce the risk of the father abducting X, bearing in mind the opinion of the Family Consultant, which again I accept, that if the risk of abduction was such that the court could not allow unsupervised time, then all time with the father should cease immediately, such was the unsustainability and risk of harm to X of supervised time into the future.
Thus, the factual issue which I am satisfied ultimately is critical, and in the result determinative, is whether there is any real risk that the father can and would obtain a forged passport for X.
The mother’s evidence on this point is very brief. She said-
“I have an abiding fear that affects me everyday that at some point (the father) will take X overseas. I am aware of the significant publicity that attaches to children being abducted overseas and that it happens in Australia and that there are numerous applications, under the Hague Convention, for the return of children for people who abduct children to Australia and that there are many times when some parents abduct children to countries that are not parties to the Hague Convention and there is nothing that the Australian authorities can do once the children are in those countries. I understand that the Watch List system relies upon Australian Passport information and bona fide international Passports. I am aware that false Passports can be obtained in the Middle Eastern countries without much difficulty. All that is required is a Passport photograph of the child and (the father) could procure a false Egyptian Passport and proceed with X to an airport and evade X being recognised.” (emphasis supplied)
The mother gave no evidence as to the source of her asserted knowledge that “false Passports can be obtained in the Middle Eastern countries without much difficulty”. The mother gave no evidence, nor was there any evidence otherwise adduced before me, as to how one might go about obtaining a false passport in the Middle Eastern countries or elsewhere. The mother gave no evidence, nor was there any evidence otherwise adduced before me, to suggest the father was aware of how to obtain a false passport. The mother gave no evidence, nor was there any evidence otherwise adduced before me, that the father had ever threatened to do so. The mother gave no evidence, nor was there any evidence otherwise adduced before me, that the father had ever sought to forge or misrepresent a document, or had ever committed a criminal offence.
The mother said that on the day of final separation, she saw a text message on the father’s mobile phone from the paternal grandmother asking the father to send her a passport photo for X. It was put to the father in cross-examination by the mother's counsel that at the time of separation he was taking steps to obtain a false passport for the child. He denied doing so then, and denied vehemently that he would ever do so. He denied there was any such message from his mother, and the paternal grandmother denied ever sending a message such as the mother said she saw. I was impressed with the apparent conviction with which the father denied seeking a false passport, and with which both he and the paternal grandmother denied any intention to deny the child a relationship with his mother, and I accept their evidence on these matters.
The premise of the cross-examination of the father on this point was that he and his mother were co-conspirators in a plan to obtain a false passport for X. It was put to the paternal grandmother by the mother's counsel in cross-examination that she and the father had formed an intention to obtain an Egyptian passport for X without the mother's consent, which proposition she vehemently denied. However, it was never put to the paternal grandmother that she at any time intended to obtain a false passport for the child, or to assist the father to do so, or that she knew how to do so, or that she would do so if she knew how to.
It was conceded on behalf of the mother that she was asserting as a fact that the father was prepared to, and would, commit criminal offences under the laws of Australia to abduct X overseas. This is a serious allegation to make, and the court must bear the seriousness of such an assertion in mind when assessing the likelihood of the mother's assertion having any objective basis (Evidence Act 1995 (Cth), s.140).
Putting the mother's evidence at its highest, I am not satisfied she has established any objective basis for her fear that the father is likely to obtain a false passport for the child to abduct him overseas. Given the convincing denials of the father and of the paternal grandmother, and considering the grave adverse consequences for X of the long term supervised time arrangement the mother proposes, which in the opinion of the Family Consultant, which opinion I accept, is untenable and would result in the total denial of any time between X and his father, I am not satisfied that there is an unacceptable risk of the father abducting X overseas using a false passport. I would in fact go further, and say on the evidence the risk of this happening is no more than a purely theoretical risk.
Decision
As to parental responsibility, the mother alleged she was the victim of family violence perpetrated by the father. The father denied this. At the beginning of the case it was put on instructions that the father alleged he was the victim of family violence perpetrated by the mother, although this contention was withdrawn at the end of the case. While the existence of family violence would result in the rebuttable presumption under s.61DA not arising (see s.61DA(2)), that does not mean the court must then make a sole parental responsibility order. The allocation of parental responsibility remains to be determined by reference to the child’s best interests as the paramount consideration.
In the circumstances of this case, it is unnecessary for me to make findings on the mother's allegations of family violence. Where both parents and the Independent Children's Lawyer propose a sole parental responsibility order in the mother's favour, and where there is a high level of distrust and a total lack of constructive communication between the parents, as I am satisfied is the case, I am satisfied that the presumption is rebutted, assuming it arises, and that otherwise a sole parental responsibility order in the mother's favour is in X’s best interests.
I am satisfied these parents could not engage in civil discussion with the requisite degree of mutual respect to be able to consult, make a genuine effort to come to a joint decision, and to reach a joint decision on issues of parental responsibility (see s.65DAC). I am satisfied an equal shared parental responsibility order would result in decision deadlock necessitating serial applications to the court before parental responsibility decisions could be made (cf. s.60CC(3)(l)). I am satisfied this would not be in X’s best interests, and hence I am satisfied it is in X’s best interests that one parent have sole parental responsibility, and that should be the parent with whom X lives for most of the time. There is no issue that X should live most of the time with his mother, and hence I am satisfied the sole parental responsibility order in her favour that is the common position of both parents and the Independent Children's Lawyer is in X’s best interests.
It is common ground that X should remain living with his mother, and I am satisfied this is in his best interests.
I am satisfied that it is in X’s best interests that he immediately commence spending unsupervised time with the father, under the regime proposed by the Independent Children's Lawyer. I am satisfied the other orders proposed by the Independent Children's Lawyer are also in the child’s best interests.
I will also make an order to the effect of that sought by the father about each party advising the other in advance of any intention to take X outside the Sydney metropolitan area. For clarity, I will specify a 75 kilometre radius from the Sydney central business district as a clearer geographic definition than the Sydney metropolitan area as proposed by the father. The father described this order as more for the mother's peace of mind, even though he sought it to bind both parents. The evidence indicates that in 2001, the maternal grandparents owned a holiday home at (omitted). The evidence does not indicate whether they still own this property. They may retain that property, have a different holiday home, or no longer have any holiday home. I am satisfied that any trips by the mother and X to and stays at any holiday home owned by the maternal grandparents in New South Wales should be excluded from the scope of this order, and will so order.
As to the controversy over whether in the exercise of parental responsibility the mother should be required to consult with the father or merely invite his input, I am satisfied that the parents are unable to consult with one another over parenting decisions. I am satisfied it is in X’s best interests that the mother be required to request the father's opinion about decisions to be made in the exercise of parental responsibility before the mother makes any such decision, and that she be required to consider those opinions before making any decision.
As to the controversy whether changeovers should occur at the contact centre until X is 10, as proposed by the Independent Children's Lawyer, or six as proposed by the father, I am satisfied, having regard to the mother's evidence of family violence and the poor relationship and total lack of trust between the parents, that changeovers should continue at the contact centre until X is 10, to seek to shield him as much as possible for exposure to the tension, and possibly overt hostility, that I am satisfied is highly likely if these parents have to meet face to face to effect changeover. If the contact centre is unavailable for changeover, and when X turns 10, changeover should occur at the public location proposed by the Independent Children's Lawyer and supported by the father.
In relation to the Watch List order, it is preferable that such orders include a “sunset” clause, that is, be expressed to expire at a certain time in the future. This is to seek to ensure the efficacy of the Watch List system by attempting to keep names on that list for no longer than is necessary. In this case, while I was asked by the Independent Children's Lawyer and the father not to include a sunset clause, I propose to limit the order until X turns 15. That will still have his name on the Watch List for over 10 more years, a very significant period, but in the circumstance of this case I am satisfied it is appropriate. I am satisfied that by age 15, X will be old enough to know if the father attempts to secretly take him out of the country, and to object and speak up for himself to resist any such attempt.
In coming to these conclusions, I am conscious that there was much evidence given that would be relevant to a number of the additional considerations under s.60CC(3), which I have not set out in these reasons. I have not done so because I am not satisfied any of them can in the circumstances of this case separately or cumulatively support any other outcome being in X’s best interests, nor was it put to me by either party or the Independent Children's Lawyer that they could.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Halligan
Date: 28 June 2013
Key Legal Topics
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Family Law
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Civil Procedure
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Injunction
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Jurisdiction
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