McDevitt & Duchamps (No 2)
[2024] FedCFamC1F 868
•5 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
McDevitt & Duchamps (No 2) [2024] FedCFamC1F 868
File number(s): SYC 8226 of 2023 Judgment of: ALTOBELLI J Date of judgment: 5 December 2024 Catchwords: FAMILY LAW – PARENTING – Where the father seeks to travel – Where the mother and the Independent Children’s Lawyer oppose this travel – Where the Court believes that the father’s evidence is incomplete – Where the Court determines that it would not be safe for the child to travel with the father – Where the father’s application for international travel is refused. Legislation: Family Law Act 1975 (Cth) s 4AB, s 60CC Division: Division 1 First Instance Number of paragraphs: 26 Date of hearing: 5 December 2024 Solicitor for the Applicant: Ms Chivunga of Tee Legal Solicitor for the Respondent: Mr Mclellan of Guardian Family Law Solicitor for the Independent Children's Lawyer: Russell Kennedy Lawyers NSW ORDERS
SYC 8226 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MCDEVITT
Applicant
AND: MS DUCHAMPS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
5 DECEMBER 2024
THE COURT ORDERS THAT:
1.The matter is adjourned to 13 January 2025 at 10am for final hearing before her Honour Justice Boyle.
2.The Application in a Proceeding dated 4 November 2024 is hereby dismissed.
3.Should the father elect to travel to the United Kingdom before the final hearing for any purpose, the existing interim parenting order made by consent on 14 October 2024 for the child, X born in 2019 ("the child"), to spend time with the Respondent is varied such that the child will spend time with the Respondent from the evening before the Applicant departs Australia to the evening the Applicant returns to Australia.
THE COURT NOTES THAT:
A.The Applicant has advised the Court today that should the proposed travel to the United Kingdom be declined he will remain in Australia and his spend time with arrangements in relation to the child will continue as usual.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym McDevitt & Duchamps has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
In this matter, I provide the following extempore reasons for judgment. This case is about X, born in 2019 (“X”). In a matter of weeks X will be six years old. The Applicant is her father (“the father”) and the Respondent is her mother (“the mother”). X is represented by an experienced Independent Children’s Lawyer.
By way of an Application in a Proceeding filed by the father on 4 November 2024 (“the father’s application”), he seeks orders the effect of which would be to suspend an existing airport watch list order. This would permit overseas travel between the father and X from late 2024 to early 2025. He offers an undertaking to return X to Australia. He proposes an order that he provide an itinerary within 14 days, and he proposes make-up time on the basis of one day instalments weekly.
The mother, by way of her Response to an Application and a Proceeding filed on 19 November 2024 (“the mother’s response”), seeks that the father's application be dismissed, and that the more general issue of overseas travel be deferred to the final hearing. The final hearing of this matter is listed for five days commencing Monday 13 January 2025 before her Honour Boyle J. In support of the father’s application there are his affidavits filed 4 November 2024 and 4 December 2024. In support of the mother’s response, there is her affidavit filed 19 November 2024. The Independent Children’s Lawyer has provided a useful Case Summary Document filed on 4 December 2024. Both the mother and the father have provided written submissions. The father's airline ticket became Exhibit A1, and the mother's tender bundle became Exhibit R1. I will refer to the latter in due course.
On 14 October 2024, by way of background, I made consent orders in which the parties agreed that X would spend equal time. In other words, that there would be an equal shared care arrangement between them. That is the arrangement that is currently in place.
As I observed during the interchange between the bench and the virtual bar table, this is not a run-of-the-mill international travel application. The background of the case is that both the mother and the father make very serious allegations about each other in relation to the risk of harm that they present to X either directly or indirectly. Both make allegations about the other's family violence and, in particular, part of the mother’s case relates to the father's coercive and controlling behaviour that she contends is family violence (s 4AB Family Law Act 1975 (Cth) (“the Act”)).
The Family Report of Ms C dated 21 August 2024 (“the family report”) available to the Court. It has been released to the parties and it raises significant issues about the potential risk of harm to X and makes certain recommendations. Of course, the family report is untested and will not be tested until the final hearing.
That background is important for understanding why the father’s application is so strenuously opposed by both the Independent Children’s Lawyer and the mother but is pressed by the father. He contends that the purpose of the trip is for him to spend time with his son from another relationship; D, born in 2013 (“D”) and, in particular, for X and D to spend time together. He contends that, based on previous times that they have had together, they have a great relationship. The photographs that the father annexes to his affidavits give some insight into that relationship.
Specifically, in submissions, it was contended that this visit is a visit that was contemplated by orders of the High Court of Justice in its Family Division, and I will return to that. The mother and the Independent Children’s Lawyer raised a number of concerns. For example, about the paucity and inadequacy of information providing details about the proposed travel for X, the long interruption of X’s time with the mother in circumstances where it was reintroduced only a matter of months ago, and the non-specific nature of the make-up time application proposed by the father (though he says that was in response to the mother's ambivalence). Inherent in both the submissions made by the Independent Children’s Lawyer and the mother are risk of harm issues.
Another piece of important background is that the father has been involved in long and, it would seem, acrimonious litigation with D’s mother. At one stage, the mother of X was involved in those proceedings in the sense of giving evidence. The Independent Children's Lawyer and the mother contend that in order to understand the risk of harm issues for X, there needs to be a proper understanding of the risk of harm issues in relation to D, and why, for example, the father’s time with D was ordered to be supervised. All of those are issues that are presented before the Court in the context of what would otherwise seem like a straightforward international travel application.
It is important to consider what is known about the proceedings in the Family Division of the High Court of Justice between the father and D's mother. The issue was flagged as being relevant to the Court, and to the parties, and potentially significant some time ago. I believe it was on 12 November 2024 that the father, through his solicitor, quite properly disclosed the relevant orders in relation to D. The solicitor for the mother expresses concern that there are still documents missing and, in particular, a welfare report that provides more information. But also, I think, the judgment that reflects the actual findings made in D’s matter. Those issues remain extant. I simply note that the documents that were produced are informative.
On 8 September 2023, the Honourable Mrs Justice Arbuthnot sitting in the Family Division made orders, it would appear, as a result of a final hearing that ran between 20 and 24 February and 26 April 2023. Those orders were made, as I say, on 8 September 2023, and were produced to the parties and ultimately to the Court on or about 12 November 2024. I highlight some of the important and relevant aspects of the orders.
The orders are in a form that is unfamiliar in Australia. It consists of three parts. There is the approved order and then there are, in effect, two annexures. Starting with the order, her Honour relevantly determines a number of issues at Order 8. For example, she orders that the Court refuse the father's application for a change of residence in relation to D, obviously in the context of the father’s relocation application. At Order 8(b), supervised contact was ordered to take place in accordance with the ground rules set out in annexure A, which are specifically approved as being necessary to safeguard the child. Order 8(b) goes on to say that “In the event that the father fails to comply with the ground rules, the mother is permitted to stop contact and or stop it from progressing to unsupervised contact”.
I interpolate at this point that the absence of any findings by her Honour makes it difficult to really understand why supervised contact was imposed. But it was, obviously, necessary to safeguard D.
In Order 8(c), her Honour states in the order, as it will become apparent, the route map is the second annexure:
The purpose of the route map is to ensure that the mother is protected from being placed under pressure to allow the premature progress to unsupervised contact and has balanced the continuing risks likely to be posed by the father against the need to recognise that supervised contact cannot continue throughout the child's minority.
I regard Order 8(c) as significant at two levels. Again, the fact that findings were made that the father presented a risk to D are details unknown to the Court. Moreover, Order 8(c) communicates at least an implicit concern of her Honour, namely that D’s mother, be protected from being placed under pressure to allow the premature progress to unsupervised contact.
The significance in this case is that part of the mother’s case against the father is what she contends is his coercive and controlling behaviour. One cannot help but infer that Order 8(c) is potentially addressed to the same issue. In any event, Order 8(d) says that:
Should contact progress to unsupervised, a ground rules document which incorporates those matters which relate to the father's conduct ... contact should be agreed in advance.
Order 8(h) says:
The fact-finding judgment dated 13 April 2022 shall be published with the parties named, but all other names anonymised and suggested redactions amendments as determined in the publication judgment handed down on 8 September 2023.
The inference that I draw from this is that the father must have received a copy of what her Honour describes as the fact-finding judgment. I infer that this is one of the documents that the mother's solicitor has sought but not received. It represents a significant missing piece of the evidentiary jigsaw. Order 11 is the order that provides that D should live with his mother, and then Orders 12 and 13 and thereafter deal with the arrangement for D to spend time with the father. Order 12 says “the mother shall make [D] available to spend time with his father on a supervised basis”. Order 13 says:
Should the father comply with the ground rules document at annexure A, unsupervised time may take place between [D] and his father at the discretion of the mother in line with the route map annexure B, such unsupervised contact taking place no earlier than October 2024.
I interpolate again, there are further missing pieces in this, potentially, complex jigsaw puzzle because the father’s evidence doesn't address what contact has happened since the orders were made, and the nature of such contact.
Order 14 of the orders deals with contact directions and conditions and talks, e.g. at Order 14(a), about the father complying with the ground rules document. I turn to annexure A, which is the supervised contact revised ground rules document. It restates that contact should take place supervised. It provides for the father to give notice. It enables, at Order 14(c) of the preamble of annexure A, the mother in the present proceedings to be able to attend supervised contact if available. Order 14(d) talks about the father breaching the ground rules unreasonably. This will stop the progression of contact to unsupervised. Order 14(e), importantly, stipulates that there should be four supervised contact visits before contact can progress to unsupervised. Such unsupervised contact cannot take place earlier than October 2024. The father doesn’t provide evidence about these matters. In submissions, it became apparent that, certainly from the Independent Children's Lawyer’s perspective, the document in question raised further questions which were provided to the father's solicitor, but not apparently answered.
If I move now to annexure B, described as the route map for contact to progress to unsupervised, it reiterates that the father should comply with the terms of the revised ground rules document in annexure A. It confirms that contact will not progress to unsupervised until at least four supervised visits have taken place, and in any event, not before October 2024.
Order 14(f) is the order relied on by the father in the present application. It says:
The second session of unsupervised contact (potentially around Christmas 2024) should take place within the jurisdiction and may take place for up to three consecutive nights.
I note that if the father’s contention is correct, that is to say that the visit in question is the Order 14(f) visit, this is inconsistent with paragraph 22 of his own affidavit filed 4 December 2024 where he sets out what he describes as the agreed contact arrangements for the forthcoming visit. A comparison of the two, for example, shows that the last block is to be four days and three overnights. This suggests, possibly, that there is an inconsistency.
The lack of evidence about these issues, all of which go to the risk of harm issues to X, which is the primary focus of this case, as well as the risk of harm issues to D, are relevant in determining the father’s present application. Section 60CC of the Act requires me to make orders that are safe for X. I am not satisfied that if I made the order proposed by the father, that I would be making an order that is safe for her, given what I have described as the missing pieces of this jigsaw puzzle in circumstances where it is the father himself who, firstly, could provide this information, and secondly could have been more fulsome in addressing the concerns that are raised by both the mother and the Independent Children's Lawyer.
The necessity for this visit, so proximate to the final hearing, is not abundantly clear to me. I certainly understand, from the human perspective, the father’s desire to not only see his son D but to preferably share that time with X. But there is much complexity in the background and, regrettably, much uncertainty, which predicates a very cautious approach.
At the final hearing on 13 January before her Honour Boyle J, all these issues can be agitated and tested in the course of cross-examination.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 17 December 2024
0
0
1