Meston and Bamford
[2010] FMCAfam 66
•29 January 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MESTON & BAMFORD | [2010] FMCAfam 66 |
| FAMILY LAW – Parenting – relocation – who the child is to live with and spend time with – the practicability of such time. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA & 65DAA |
| B & O & M [2005] FMCAfam 379 Chappell & Chappell [2008] Fam CAFC 143 Goode & Goode [2006] FamCA 1346 H v W (1995) FLC 92-598 Hall & Hall (1979) FLC 90-713 Morgan v Miles (2007) FamCA 1230 Newlands & Newlands [2007] FamCA 168 R & R: Children’s Wishes (2000) FLC 93-000 |
| Applicant: | MR MESTON |
| Respondent: | MS BAMFORD |
| File Number: | SYM 4626 of 2006 |
| Judgment of: | Kemp FM |
| Hearing dates: | 21 & 22 December 2009 |
| Date of Last Submission: | 22 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 January 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Warren McKeon Dickson |
| Respondent: | Self-represented |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission |
ORDERS
By consent, that all previous parenting orders in relation to, [X], born [in] 2001 (“the child”) be discharged.
By consent, that the mother and father equally share parental responsibility for the child.
By consent, that both parties have day to day responsibility for the child whilst the child is in their respective care.
By consent, that each party will keep the other informed of their current residential addresses, landline and mobile telephone numbers and advise the other of any proposed change to same no less than
3 weeks prior to the proposed change.
By consent, that each of the parties be restrained from physically disciplining the child or allowing any third party to physically discipline the child.
By consent, that both parties be restrained from:
(a)discussing the family law proceedings with or in the presence or hearing of the child;
(b)initiating discussion with the child in relation to her views about where or with which parent she wants to live or attempting to influence her wishes in relation to same; and
(c)making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
By consent, both parties are authorised by these orders to obtain directly from the child’s school, copies of:
(a)the child’s school reports, merit cards, and any written material pertaining to the child’s academic and extra-curricular activities; and
(b)the child’s annual school photograph order forms in order that they may order copies of the child's school photographs each year.
By consent, that each party will notify the other as soon as practicable (and in any event within two (2) hours), in the event that the child is hospitalised or receives urgent medical attention whilst in their care, and will provide the other parent with information including the details of the illness, injury, treating doctor and the prognosis and treatment, if known.
By consent, that each party will ensure that the other parent is kept informed of:
(a)any medical problems or illness suffered by the child while in their care; and
(b)any treatment, medication that has been prescribed for the child (including over-the-counter medication) that the child is required to take in both households.
By consent, both parties are authorised by these orders to obtain information from any doctor, therapist or other medical practitioner who may provide treatment to the child from time to time.
By consent, each party to provide the other with a current email address in order to facilitate communication between them solely related to issues regarding the sharing of their parental responsibilities for the child’s medical, educational or other needs.
By consent, each party will forthwith enrol in and complete a "Parenting After Separation" or like post-separation parenting programme as may be recommended to them by the Independent Children’s Lawyer, in writing.
By consent, the father will do all acts and things to ensure that the child receives Anglican religious instruction at school.
By consent, the father will do all things necessary to obtain the necessary equipment to set up the Skype program in his household.
By consent, the father shall not consume illicit drugs while the child lives with him.
By consent, that within 28 days from the date of these orders, the parties shall do all acts and things necessary to apply for and obtain a passport for the child and the costs associated with this shall be shared equally between the parties.
That each party be permitted to take the child out of Australia for holidays and for the purposes of this order:
(a)By consent of the father and the mother, the mother is only permitted to take the child out of Australia during school holiday periods when the child is in her care, unless as otherwise agreed between the parties in writing;
(b)By consent of the father and the mother, the father is only permitted to take the child out of Australia during school holiday periods when the child is in his care, unless as otherwise agreed between the parties in writing;
(c)By consent of the father and the mother, the party travelling will give to the other party not less than 2 months notice of their intention to take the child out of Australia;
(d)By consent of the father and the mother, the party travelling shall furnish to the other party, not less than 1 month before the child is due to depart, a copy of the child’s travel itinerary which will include the departure and return dates, the country or countries that the party and the child will be travelling to, the approximate date on which the child will arrive and depart each country and a telephone number and address at which the party and the child can be contacted in each country;
(e)By consent of the father and the mother, the party with whom the child is travelling with must arrange and pay for the costs of travel insurance for the child;
(f)By consent of the father and the mother, the parties shall deliver the child’s passport to be retained by the Registrar of the Court pending the parties agreement or further order of the Court;
(g)By consent of the father and the mother, the parties shall return the passport to the Registrar of this Court within 7 days of returning to Australia with the child; and
(h)By consent of the father and the mother, that both parties be restrained from taking the child to a country that is not listed as a Hague Convention in Schedule 4 of the Family Law regulations 1984, unless as otherwise agreed between the parties in writing.
That the child reside with the father in Sydney.
That while the mother is living in [B], Queensland, the child spend time with the mother as follows:
(a)For the first half of the 2010/11 Christmas school holidays, and each second year thereafter in Queensland or Sydney;
(b)For the second half of the 2011/12 Christmas school, holidays and each second year thereafter in Queensland or Sydney;
(c)For one half of each of the NSW gazetted public school holidays at the end of school terms 1, 2 and 3, as agreed between the parties and failing agreement the first half of the holidays, to be exercised in Queensland or Sydney;
(d)On one weekend in every four commencing on the first weekend immediately after the commencement of the school term, from the conclusion of school on Friday until 5pm on Sunday (or Monday in the case of a long weekend), such time to be facilitated:
(i) in Sydney at the maternal grandparents’ home; and
(ii)the mother will ensure that the child attends all scheduled extra-curricular sporting matches and activities and birthday parties during the child’s time with her.
(e)on no more than two occasions per school term the mother may spend additional weekend time with the child:
(i) in Queensland, or in Sydney; and
(ii)the child’s weekend time with the mother will commence at the conclusion of school on Friday and conclude at 5pm on Sunday, unless otherwise agreed.
(f)The mother or either or both of the maternal grandparents are to collect the child from school at the commencement of such time and return the child to the father's home at the conclusion of the child’s weekend time with the mother; and
(g)Such other and additional times as agreed between the mother and the father.
Notwithstanding any other order:
(a)The child to spend time with the mother on the weekend of the Mother’s day, pursuant to the ordinary arrangements for weekend time during school terms pursuant to order 19 above; and
(b)The child is to spend time with the father on the weekend of Father’s day;
(c)Should the child be otherwise scheduled to spend time with the mother on the weekend of Father’s day pursuant to these orders, such time be forfeited and a make up weekend for the child to spend time with the mother be arranged by agreement of the parties.
The mother is to provide the father with no less than 21 days written notice of her intention to spend time with the child pursuant to Order 19, and in the case of any time that the child is to be spend with the mother in Queensland pursuant to these orders, the mother is to provide the father with copies of the return airline tickets that she has purchased no less than 10 days prior to the scheduled trip provided that:
(a)The scheduled flight from Sydney to Maroochydore on Friday pursuant to Order 19 does not leave Sydney earlier than 6pm; and
(b)The return flight from Maroochydore to Sydney pursuant to order 19 on the Sunday (or Monday in the case of a long weekend) does not arrive in Sydney later than 7pm;
(c)The father (or his nominee) shall deliver the child to Sydney airport no less than 1 hour prior to the scheduled departure of the flight at the commencement of contact;
(d)The mother (or her nominee) will deliver the child to Maroochydore airport no less than 1 hour prior to the scheduled departure of the Maroochydore flight to Sydney at the conclusion of contact;
(e)The father (or his nominee) collect the child from Sydney Airport on arrival from Maroochydore;
(f)That the parties share in the costs of return flights for the child from Sydney Airport to Maroochydore Airport, for the child’s school holiday time with the mother;
(g)The mother be solely responsible for the costs of return flights for the child from Sydney Airport to Maroochydore Airport, for the child’s weekend time with the mother; and
(h)By consent, in the event the child misses a scheduled flight (for reasons unconnected to actions of the airline) then the party delivering the child to the airport shall do all things necessary to cause the child to be placed on the first available flight to the airport closest to the other party’s place of residence at the delivering party’s expense and to notify the other party of the new flight details within an hour of the flight being booked.
Should the mother not avail herself of time with the child pursuant to order 19, the child should be entitled to spend time with her maternal grandparents, Mrs B and Mr B, (“the maternal grandparents”) for one weekend per calendar month regardless of whether the mother is present to spend such time with the child and such time:
(a)will commence at 9am on Saturday and conclude at 5pm on Sunday, subject to order 22 (d) below; with
(b)the four weekly cycle of time to commence on the first weekend immediately after the commencement of the school term, unless otherwise agreed;
(c)the child to be collected from and returned to the father’s home by the maternal grandparents or either of them or to such other place that may be agreed to from time to time by the maternal grandparents and the father; and
(d)the maternal grandparents or either of them will ensure that the child attends all scheduled extra-curricular sporting matches and activities and birthday parties during her time with them and in the event that they are unable or unwilling to facilitate the child’s attendance at those events, then the child’s time with them will commence at the conclusion of those activities.
That the child communicate with the mother by telephone and/or Skype as follows:
(a)at any reasonable time that the child requests such telephone communication; and
(b)the mother may communicate by telephone or Skype (if available) with the child at the father's home on a liberal and flexible basis on days and at times as may be agreed between the parties having regard to the child’s availability and commitments but failing agreement at 6.30pm Sydney time on Tuesday, Thursday and Sunday, and the father will ensure as best he can that such telephone communication takes place in privacy.
That the child communicate with the father when she is spending school holiday time with the mother:
(a)at any reasonable time that the child requests such telephone communication.
(b)the father may communicate by telephone or Skype (if available) with the child at the mother's home on a liberal and flexible basis on days and at times as may be agreed between the parties having regard to the child’s availability and commitments but failing agreement at 6.30pm Queensland time on Tuesday, Thursday and Sunday, and the mother will ensure as best she can that such telephone communication takes place in privacy.
By consent, that the child communicate with the parent with whom she is not living, on special occasions, as follows:
(a)on her birthday; and
(b)on Christmas Day and New Years Day,
when the other parent with whom she is not living will telephone the child.
That the father do all things necessary to ensure that neither he nor
Mrs M permits or encourages the child to refer to Mrs M as “mother” or “mum”.
No photographs or images of the child are to be published in any public forum (save as to Facebook on the internet) by the father or the mother, unless with the prior written agreement of both parties. Prior to any publication on Facebook, the father is to provide the mother with a list identifying his “friends” who have access to that Facebook site and further, that he add the mother as such a “friend” and ensure that only his “friends” are able to access any photographs of the child.
If any party seeks costs, an appropriate application to my chambers may be made within 21 days of today’s date and the Court will deal with that matter by way of written submissions, unless the parties wish to be heard orally. If no such application is made within that time period, there will be no order as to costs.
The appointment of the Independent Children’s lawyer is hereby discharged (save as to any costs application).
All outstanding applications (save as to costs) otherwise be dismissed.
All exhibits tendered in these proceedings, be returned at the expiration of 1 calendar month unless an appeal is lodged.
The matter be removed from the list of cases awaiting finalisation.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are included in these orders.
NOTATION:
That the father consents to the maternal grandparents:
(a)spending school holiday time with the child in the event that the mother is unable to do so pursuant to these orders; and
(b)facilitating the child’s attendance in Queensland to spend holiday time with the mother.
IT IS NOTED that publication of this judgment under the pseudonym Meston & Bamford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 4626 of 2006
| MR MESTON |
Applicant
And
| MS BAMFORD |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Application filed 17 December 2009, the father sought certain final parenting orders in respect of the child of the relationship, [X] born [in] 2001 (“the child”) as follows:-
(1)That the parties have equal shared parental responsibility for the child.
(2)That the child live with the father.
(3)That both parties have day to day responsibility for the child whilst the child is in their respective care.
(4)That the child spend time with the mother as follows:
(a)For one half of the NSW Autumn, Winter and Spring school holiday periods at times to be agreed between the parties and failing agreement for the first half in odd numbered years and the second half in even numbered years and years ending in zero.
(b)From 2 January 2010 until 14 January 2010 and for such time to take place in each alternate year thereafter.
(c)From the Sunday immediately following the last day of school in December 2010 until 14 January 2011 and for such time to take place in each alternate year thereafter.
(d)Via telephone each day at 6.30pm (NSW time).
(e)At any other time as agreed between the parties.
(5)The mother is responsible for paying all costs associated with the child travelling to the mother’s place of residence for the purposes of the child spending time with the mother.
(6)If the mother flies the child to her place of residence for the purposes of spending time with her then:
(a)The mother shall provide the father with copies of the child’s ticket and itinerary not less than 4 weeks before the child is due to spend time with the mother.
(b)The father shall be responsible for delivering and collecting the child to and from Sydney Domestic Airport at the commencement and conclusion of the mother’s time and that the father is to ensure that the child boards the appropriate plane for travel to the airport closest to the mother’s place of residence and that in the event the child misses the scheduled flight (for reasons unconnected to actions of the airline) then the father shall do all things necessary to cause the child to be placed on the first available flight to the airport closest to the mother’s place of residence at the father’s expense and to notify the mother of the new flight details within an hour of the flight being booked.
(c)The mother shall be responsible for collecting and delivering the child to and from the airport closest to her place of residence at the commencement and conclusion of her time with the child and that the mother is to ensure that the child boards the appropriate plane for travel to Sydney and in the event the child misses the scheduled flight to Sydney then the mother shall do all things necessary to cause the child to be placed on the first available flight to Sydney at the mother’s expense and to notify the father of the new flight details within an hour of the flight being booked.
Otherwise the mother shall collect and return the child from the father’s place of residence at the commencement and conclusion of each period.
(7)That the mother accompany the child on all flights as provided for in Order 5 [6] until the child turns 10 years of age.
(8)That the father can speak to the child via telephone each night at 6.30pm (NSW time) when the child is spending time with the mother in accordance with these orders.
(9)That within 28 days from the date of orders the parties shall do all acts and things necessary to apply for and obtain a passport for the child and the costs associated with this shall be shared equally between the parties.
(10)That each party be permitted to take the child out of Australia for holidays and for the purposes of this order:
(a)The mother is only permitted to take the child out of Australia for no longer than the time that the child is in her care in accordance with order 3[4], unless as otherwise agreed between the parties in writing.
(b)The father is only permitted to take the child out of Australia at a time when the child is in his care, unless as otherwise agreed between the parties in writing.
(c)The party travelling will give to the other party not less than 2 months notice of their intention to take the child out of Australia.
(d)The party travelling shall furnish to the other party, not less than 1 month before the child is due to depart, a copy of the child’s travel itinerary which will include the departure and return dates, the country or countries that the party and the child will be travelling to, the approximate date on which the child will arrive and depart each country and a telephone number and address at which the party and the child can be contacted in each country.
(e)The party with whom the child is travelling with must arrange and pay for the costs of travel insurance for the child.
(f)That the father shall have the child’s passport in his possession and control.
(g)The father shall provide the mother with the child’s passport within 7 days of the mother requesting it and the mother shall return the passport to the father within 7 days of the mother returning to Australia with the child.
(h)That both parties be restrained from taking the child to a country that is not listed as a Hague Convention in Schedule 4 of the Family Law regulations 1984, unless as otherwise agreed between the parties in writing.
(11)That both parties are restrained from physically disciplining the child and both parties are to do all acts and things necessary to ensure that a third party does not physically discipline the child.
(12)That each party will refrain from discussing the current Court proceedings in the presence of the child and each party will refrain from making derogatory remarks or comments about the other party in the presence of the child.
(13)That the parties shall keep each other informed of their residential addresses and landline and mobile contact phone numbers and provide the other party with at least one (1) month’s notice in advance of any proposed change of those contact details.
(14)That the parties notify each other in the event of any illness or injury occurring to the child whilst in their care and provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority and direction necessary to enable the other party to obtain all necessary information concerning the child.
(15)That the mother is permitted to liaise directly with the child’s school and sporting bodies to obtain any necessary information about the child’s progress and the father shall within 7 days from the date of orders authorise the school and sporting bodies in writing to facilitate this.
(16)That within 7 days from the date of orders the father shall authorise the Principal of any school attended by the child to provide the mother with copies of the child’s school reports, newsletters, notices as they fall due (at the mother’s expense) and inform the mother of any school activities which parents are invited to attend.
NOTATION
(17)That the child spend time with the maternal grandparents once per month from 9.00am Saturday until 5.00pm Sunday on a weekend to be agreed between the maternal grandparents and the father and for the purposes of such time, the maternal grandparents shall collect and return the child at the father’s place of residence at the commencement and conclusion of the time.
The respondent mother in her Case Information Document, filed
15 December 2009, sought her own final parenting orders as follows:-
(1)That the child live with her mother and have freedom of movement to live with her mother within the Commonwealth of Australia until the child reaches her eighteenth birthday.
(2)That the father spend time with and communicate with the child as follows:
(a)When the child resides outside the New South Wales, Sydney Metropolitan area, including out of the state of New South Wales where her father usually resides.
(i)The father is invited to carry out up to 52 days of visitation in lieu of alternate weekend access visitation and 28 days of school holiday visitation (21.917% of the calendar year).
(ii)The visitation time noted (2)(a)(i) is to be taken predominantly in the gazetted state school holiday periods of the state in which the child resides, unless otherwise agreed.
(iii)The father is invited to spend time with the child each alternate year for the Christmas period from the end of the school term in December until at least 1 January in the next year. Using the days set out in (2)(a)(i). The first year to be 2009.
(iv)The father is invited to spend time with the child each alternate year for the Easter period from the end of school term just prior to Easter until at least the evening of Easter Monday. Using the days set out in (2)(a)(i). The first year to be 2011.
(v)The father is to notify the mother of his intention to spend time with the child a minimum of 1 month before, and at that point, offer proposed travel arrangements for the child.
(vi)That mother will cover reasonable expenses for airfares for the child between her residence and Sydney Domestic Airport Terminal, NSW. Mother sets reasonable affordable cost at $2,000.00 per annum if required.
(vii)That the mother and father shall do all things necessary to ensure that child boards booked plane travel for visitation between each parents home.
(viii)In the event that he child misses the scheduled plane flight the mother or father shall do all things necessary to cause the child to be placed on the first available flight to the airport closest to the other parents place of residence.
(ix)That the expense of missed flights (for reasons unconnected to actions of the airline) shall be at the expense of the delivering parent. Note Domestic Travel Insurance for individual flights or a blanket Annual Domestic Travel Insurance package could be obtained by the parent to insurer for the cost of extra flights if such an event transpired.
(3)If the child resides in New South Wales, Sydney Metropolitan area for a temporary/semi permanent/permanent stay (minimum 10 days) the father is to have access to the child equal to
(a)Each alternate weekend commencing from 3.00pm Friday until 6.30pm Sunday, with the father to collect the child from her school or other agreed point and return to an agreed point at the cessation of such time.
(b)The father is invited to spend time each Wednesday from 3.30pm or the end of the school day, whichever is earlier, until 7.30pm such Wednesday to be in the week just prior to the times set out in 3.1, with the father to collect the child from her school or other agreed point and return the child to an agreed point is were the father and mother agree on an appropriate location.)
(c)The father is invited to spend 4 weeks of all gazetted school holidays of the state the child resides in incorporating:
(i)The father is invited to spend time with the child each alternate year for the Christmas period from the end of the school term in December until at least 1 January in the next year. Using the days set out in (2)(a)(i). The First year to be 2009.
(ii)The father is invited to spend time with the child each alternate year for the Easter period from the end of school term just prior to Easter until 6.30pm Easter Monday. Using the days set out in (2)(a)(i). The first year to be 2011.
(iii)The balance of time to be taken in the remaining said school holidays with the father to give mother at least 2 months notice of intention to spend time with the child.
(iv)In the event that any time referred to in (3)(a) or (3)(b) falls on a long weekend including a Monday then the father’s time with the child shall be extended to 6.30 Monday, if it falls on a long weekend including a Friday, the father is invited to commence visitation on Thursday at the time set out in (3)(a).
(4)Father to be entitled to extra visitation compassionate/family visitation, in the case of family death, injury or advised special family event. The cost for that visitation be met by the father, as these events will most likely be on short notice.
(5)A schedule of intended visitation be forwarded by the father to the mother for agreement each year by 20 September for family planning purposes. (One calendar month before the child’s birthday). Mother is to advise father of any times they wish the child to participate in family related events such as birthdays and holidays. That each parent be sensitive to the needs of the child to participate. For any conflicting date an arrangement or negotiation such as alternate years should be considered.
(6)That both parents have the option to spend time with the child on the child’s birthday. Arrangements for visitation should be made in good time.
(7)That each parent has the sole responsibility for the day to day care, welfare and development of the child whilst in their care.
(8)That the father shall not have the child on the weekend that includes Mother’s day.
(9)That the father have the option to have the child on the weekend that includes Father’s day or nominate time/days to celebrate Father’s day with the child. This time can be allocated to normal visitation or compassionate/family visitation.
(10)That the parties will keep each other informed of any movement of the child outside a 3 hour car drive of each or their residences.
(11)That neither parent shall remove the child nor attempt to remove her from the Commonwealth of Australia without the consent in writing of the other parent.
(12)Should such parent wish to remove the child from the Commonwealth of Australia temporarily for sabbatical or excursion, that parent shall supply the other with a proposed itinerary and all relevant and possible contact details for the child available. It is intended that consent shall not be unreasonably withheld. Any opportunity for the child to travel should deemed as positive educational experience. Consent should be given in writing in reasonable time.
(a)Once consent has been given confirmation and booking of travel arrangement for the child may commence any changes/variation to flights or accommodation should be forwarded to the other parent as soon as they become known. Although dates vastly different to those originally proposed, purpose of travel and country/countries of visitation should not waiver without further written consent being sought from the other parent. Consent should not be unreasonable withheld. A final itinerary to be given to the non travelling parent as soon as travel arrangements are finalised.
(b)With the consent of travel to a country the other parent also consents to any visa or travel papers that are required for that travel. The arranging parent to give details of any visa or travel papers to the other.
(c)If consent is not given a letter of response to the parent making the travel request must be forwarded within 7 days, stating reason why travel has not been consented to.
(d)If consent is still withheld mediation/dispute resolution must be organised by the opposer, within 7 days of request for mediation.
(e)The child will be covered by travel insurance when travelling overseas, insurance to be organised by the travelling parent or both parents if the child is travelling with out parental involvement such as student exchange program.
(f)That both parties be restrained from taking the child to a country that is not listed as a Hague Convention in Schedule 4 of the Family Law regulations 1984, unless otherwise agreed between the parties.
(13)That the father and mother are to immediately arrange a Australian Passport and that the passport be renewed on expiry until the age of consent.
(a)The child’s passport is to be used in conjunction with family holidays/school excursions/student exchange programs only.
(b)The mother is to be responsible for the safekeeping of the passport until the age of consent.
(c)The costs of the passport is to be always shared equally between both parents at the time of application.
(d)The mother shall provide the father with the child’s passport within 7 days of the father requesting it and the father shall return the passport to the mother within 7 days of the father returning to Australia with the child; via registered post or hand delivery.
(14)The maternal grandparents have the option to take on the occasional holiday on request and that they have the liberty to request interstate and overseas travel. The maternal grandparents be at liberty to request visitation with the child. Mother of the child to co-ordinate consent of schedule with the father.
(15)That each party shall advise the other in writing of their current residential address and contact telephone number/s.
(16)That each party shall have reasonable telephone/media (if available)/postal communication with the child. That contact not be restricted to days or specific times. But in general the child should be able to receive phone calls around 6.30pm to 7.00pm on a regular basis.
(17)That each party shall advise the other immediately in the event of a significant accident or illness in relation to the child.
(18)That each parent shall notify the other, in a timely manner, of any extra curricular activities such as school, sporting or educational activities of the child so the other parenting (i) is advised and aware the activity is taking place (ii) that the parent have time to arrange to have the option of attending such activities.
(19)That the parent whom usually lives with the child is responsible for Private Health Care Coverage of the child. If for any known reason that parent is unable to meet their obligation, due to hardship. The other parent must be advised and decide the appropriate remedial action to remedy the situation before the child is uninsured. Parent must take all reasonable steps before taking any action for non payment of health insurances to any possible litigation.
(20)When not relocating residence, the parents be restrained from relocating the child from her education facility without advising the other parent of circumstances and reason. This should be done in reasonable time. Where disagreement arises between the parents the child should remain at her education facility. And the appropriate action is to file a Application in Case to the Court for consideration.
(a)That the mother be at liberty to remove the child from education facility with 3 months notice to the father, in relation to freedom of movement matter 1 of this document when relocating residence.
(21)That the parents be restrained from publishing images of the child in any public forum including the internet, unless both parents deem it reasonable for the child’s image to be published. Agreement should be in writing. If either parent does not agree the child’s image cannot be published.
(22)That if any parent of the child is convicted of a drug offence, they are responsible to notify the other parent within 24 hours and their visitation is to be reviewed immediately by the Court.
(23)If the father were to relocate and not reside in the New South Wales, Sydney Metropolitan area, the orders should be reviewed within 3 months to ensure child has regular access to visitation with her father.
(24)No unnecessary medical procedures or cosmetic procedures of any kind can be performed on the child without consent of both parents in writing until the child of consent age. If disagreement arises application in case should be forwarded to the Court.
(25)The mother should advise the other parent in writing, when choosing any educational facility for the child. Including High School, Sports or Music training or tuition. If the other party has strong disagreement, if should be put in writing that the decision is opposed with a reasonable explanation for consideration by the mother.
(26)That the father of the child is to undertake independent illicit drug testing every calendar month for 2 years from the date of this order, in consideration of the child safety. These drug test to be released to the court and all parties. The parties have the option to apply to the court for an extension of this period is thought necessary. If a positive test is revealed, action should to be taken to consider limiting the father’s access to the child.
(27)That any communication between the parents be deemed as necessary for the well being of the child.
(28)The parents should restrain from discussing court proceedings in the presence or in the hearing distance of the child.
(29)That each party be restrained from making critical or derogatory remarks in relation to the other parent in the presence or the hearing of the child and that each party do all things necessary to ensure than no third party makes critical comments about the other party in the presence or the hearing of the child.
(30)That each party be restrained from physically disciplining the child or allowing any third party to physically disciplining the child.
(31)That the mother do all acts and things and give all irrevocable authorities necessary to ensure that the school which the child attends forwards directly to the father copies of all the child’s school report and merit cards, any written material pertaining to the child’s academic and extra-curricular activities.
(32)The child to be raised as a member of the Anglican faith as she was baptised Anglican on [date omitted], as consented by the mother and father at that time.
(33)By consent, the father shall not consume illicit drugs while the child live with him.
(34)That the child is able to travel without an accompanying adult between her families residences via airlines within the Commonwealth of Australia as a unaccompanied minor.
(35)That each parent have equal rights to speak to teachers and doctors regarding the welfare of the child and request information or documentation regarding the child at any time.
(36)The child be at liberty to contact any member of her family at any time she requests a parent.
On 5 July 2006, this Court made the following orders by consent:
(1)That the father and the mother have the joint responsibility for making decisions about the long term care, welfare and development of the child.
(2)That the child live with the mother.
(3)That the father spend time and communicate with the child as follows:
(a)Each alternate weekend commencing from 3.00pm Friday (or such earlier time as the demands of the father’s work schedule dictates) until 6.30pm Sunday, with the father to collect the child from her day care or school as the case may be and to return the child to the mother’s place of residence at the cessation of such time, the first such times to occur on 14 July 2006.
(b)Each Wednesday from 3.30pm or at the end of the school day, whichever is earlier, until 7.30pm such Wednesday to be in the week just prior to the times set out in 3(a), with the father to collect the child from her day care or school as the case may be and to return the child to the mother’s place of residence at the cessation of such times.
(c)For 4 weeks of all gazetted school holidays incorporating
(i)Each alternate Christmas period from the end of the school term in December until at least 1 January in the next year, the first such period to be in December 2006 year.
(ii)Each alternate Easter period from end of school term just prior to Easter until 6.30pm Easter Monday, the first of such periods to be in Easter 2007.
(iii)The balance to be taken in the remaining said school holidays with the father to give the mother at least 3 months notice of intention to spend time with and communicate with the child.
(d)In the event that any time referred to in 3(a) falls on a long weekend including a Monday then the father’s time with the child shall be extended to 6.30pm on Monday; if it falls on a long weekend including a Friday, then such time shall commence on Thursday at the time set out in 3(a).
(4)That both parties spend time with the child on the child’s birthday for 3 hours with the parent requesting such time to collect and return the child from the other party’s residence or at such other agreed point.
(5)That each party has the sole responsibility for the day to day care, welfare and development of the child whilst in their care.
(6)That the father shall not have the child on the weekend which includes Mother’s day but in substitution the father shall have the child with him on the following weekend at the same time as set out in 3(a).
(7)That the mother shall not have the child on the weekend which includes Father’s day but in substitution the mother shall have the child with her on the following weekend at the same times as set out in 3(a).
(8)That the parties will keep each other informed of any movement of the child outside a 3 hour car drive from the residence of the mother.
(9)That neither parent shall remove the child nor attempt to remove her from the Commonwealth of Australia without the consent in writing of the other parent. Should such parent wish to do so, that parent shall supply the other with an itinerary and all relevant contact details for the child. It is intended that consent shall not be unreasonably withheld.
(10)That each party shall advise the other in writing of their current residential address, residential telephone number and mobile telephone number.
(11)That each party shall have reasonable telephone communication with the child.
(12)That each party shall advise the other immediately in the event of a significant accident or illness in relation to the child.
(13)That each party shall notify the other, in a timely manner, of any extra curricular activities such as school, sporting or educational activities of the child with the intention that the other party may attend such activities.
The outstanding issue of a change in the child’s name was subsequently listed for hearing on 22 May 2007, but on that day, the mother’s application was dismissed.
On 2 May 2008, this Court made the following orders:
(1)On the oral application of the father, the Court dispensed with the formal requirements of a recovery order.
(2)Personal service of the application and supporting affidavits was dispensed with and in lieu of personal service orders were made for substituted service to be effected by 5 May 2008.
(3)The matter was adjourned to 6 May 2008 with respect to the issue of a recovery order.
On 6 May 2008, this Court made the following orders pending further order:
(1)A Recovery Order to recover the child and to deliver the child to the father [or certain named persons] authorised by him.
(2)The mother is prohibited from again removing or taking possession of the child.
(3)If the mother again removes or takes possession of the child, she may be arrested, without a warrant.
(4)This order remains in force for a period of twelve months.
THE COURT FURTHER ORDERS PENDING FURTHER ORDER THAT:
(5)Upon the undertaking of the father’s Counsel to have the original affidavit of service of Ms J sworn 2 May 2008 filed in the registry, the matter proceed today ex parte.
(6)The child live with the father.
(7)The proceedings be adjourned to 16 May 2008 at 11.00am for mention.
(8)Liberty to the father and the mother to restore the matter before me on 24 hours notice.
(9)The father’s costs of this application and of today are reserved.
(10)The father serve a sealed copy of this order on the mother, by placing a sealed copy in the postal box for the unit at [B] Queensland.
THE COURT NOTES THAT:
(11)The issue of time to be spent with the mother will be determined by the Court on application by the mother when the matter is next before the Court.
On 30 May 2008, this Court made the following orders, by consent and pending further order:
(1)The father do all things necessary to have the child receive a telephone call from the mother 3 times per week between the hours of 5.30pm and 6.30pm (with appropriate latitude if the mother is unable to call during that specific time period).
(2)The child spend time with her maternal grandmother one weekend per month, from 9.00am Saturday to 5.00pm Sunday, such first weekend commencing on 14 & 15 June 2008 and thereafter monthly, with the child to be collected and returned from the father’s address at [M] by the maternal grandmother or the maternal grandfather.
(3)The mother to spend such further or other time with the child as is agreed by the parties.
THE COURT FURTHER ORDERS THAT:
(4)The matter be adjourned to 31 July 2008 at 9.30am for mention and leave to the mother to appear on the adjourned date by telephone.
(5)The mother file and serve any Response and any affidavit within 7 days of today’s date.
(6)Pursuant to section 13C(1)(b) of the Family Law Act 1975, the parties must attend Family Dispute Resolution with a consultant nominated by the Dispute Resolution Co-Ordinator of this Court, in relation to resolving their disputes concerning the care of the children on a date to be advised.
On 31 July 2008, the proceedings were listed for final hearing on 29 & 30 June 2009 and a family report was ordered.
On 2 September 2008, this Court made procedural orders for the hearing on 29 & 30 June 2009.
On 31 October 2008, this Court made the following orders, pending further order:
(1)The mother is to arrange for and pay for a return flight for the child from Sydney Airport to Maroochydore Airport so that the child arrives at Maroochydore Airport on 18 December 2008 and returns to Sydney Airport on 5 January 2009.
(2)The mother is to arrange for and pay for a return flight for the child from Sydney Airport to Maroochydore Airport so that the child arrives at Maroochydore Airport on 17 April 2008 and returns to Sydney Airport on 26 April 2009.
(3)The father is to arrange for the child to be delivered to and collected from Sydney Airport for the said flights.
(4)The mother is to provide any itinerary for the proposed trip, 7 days before such trip.
THE COURT NOTES THAT:
(5)If the mother does not return the child by 5 January 2009, then the father shall be immediately entitled to have a recovery order for the child issued.
(6)The Respondent’s mother, Mrs B, may be able to assist in the transportation of the child to and from Sydney Airport, by agreement with the father.
On 9 June 2009, the hearing dates set for 29 & 30 June 2009 were vacated. An order was made for the appointment of an Independent Children’s Lawyer and the family report was released to the parties. The proceedings were listed for final hearing on 21 & 22 December 2009.
On 28 August 2009, the Court also made the following further orders:
(1)No photographs or images of the child are to be placed on the internet, without the prior written agreement between the parties.
(2)By consent, the father shall not consume any illicit drugs while the child lives with him.
(3)The mother’s application in a case is dismissed. The balance of the matters in that application will be dealt with on final hearing.
(4)By consent, orders be made in accordance with orders 1-5 [a-e below] of the minute of proposed orders of the Independent Children’s Lawyers, to the effect that:
(a)That the parties be restrained from discussing these proceedings in the presence or the hearing of the child.
(b)That each party be restrained from making critical or derogatory remarks in relation to the other parent in the presence or the hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
(c)That each of the parties be restrained from physically disciplining the child or allowing any third party to physically discipline the child.
(d)That, within 14 days of these orders, the father do all acts and things and give all irrevocable authorities necessary to ensure that the school which the child attends forwards directly to the mother copies of all of the child’s school reports and merit cards, any written material pertaining to the child’s academic and extra-curricular activities.
(e)That the father furnish to the mother within seven days of receipt of same, copies of all order forms for school photographs of the child.
(5)Not reproduced.
THE COURT NOTES
(6)The photograph and images of the child have been removed from the father’s facebook.
(7)The issue of the child’s schooling was raised and the mother agreed that she would not propose for the current schooling to be changed until the matter is considered at final hearing.
The family report which was prepared by Ms Julia Schwarz and released to the parties on 9 June 2009 has become Exhibit “ICL1” in the proceedings.
On the hearing, Ms Doring appeared for the father. The mother appeared on her own behalf and Ms Wearne appeared for the Independent Children’s Lawyer.
The Independent Children’s Lawyer, initially sought certain final parenting orders as set out in the Outline of Case document, being Exhibit “ICL3”, but which were subsequently amended on the final day of hearing, in accordance with Exhibit “ICL6” as follows:
(1)That all previous parenting orders in relation to the child be discharged.
(2)That the child reside with the father in Sydney.
(3)That while the mother is living in [B], Queensland, the child spend time with the mother.
(a)For the first half of the 2010/11 Christmas school holidays, and each second year thereafter in Queensland or Sydney; and
(b)For the second half of the 2009/10 Christmas school holidays and each second year thereafter in Queensland or Sydney.
(c)For one half of each of the NSW Gazetted Public school holidays at the end of school terms 1,2 and 3, as agreed between the parties and failing agreement, the first half of the holidays to be exercised in Queensland or Sydney.
(d)On one weekend in every four commencing on the first weekend immediately after the commencement of the school term, from the conclusion of school on Friday until 5pm on Sunday (or Monday in the case of a long weekend), such time to be facilitated:
(i)in Sydney at the maternal grandparents' home; and
(ii)the mother will ensure that the child attends all scheduled extra-curricular sporting matches and activities and birthday parties during the child's time with her.
(e)on no more than two occasions per school term the mother may spend additional weekend time with the child:
(i)in Queensland, or in Sydney; and
(ii)The child's weekend time with the mother will commence at the conclusion of school on Friday and conclude at 5 pm on Sunday, unless otherwise agreed.
(f)The mother or either or both of the maternal grandparents are to collect the child from school at the commencement of such time and return The child to the father's home at the conclusion of the child's weekend time with the mother.
(g)Such other and additional times as agreed between the mother and the father.
(4)Notwithstanding any other order:
(a)The child to spend time with the mother on the weekend of the Mother’s day, pursuant to the ordinary arrangements for weekend time during school terms pursuant to order 3(d) above; and
(b)The child is to spend time with the father on the weekend of Father’s day.
(c)Should the child be otherwise scheduled to spend time with the mother on the weekend of Father’s day pursuant to these orders, such time be forfeited and a make up weekend for the child to spend time with the mother be arranged by agreement of the parties.
(5)The mother is to provide the father with no less than 14 days written notice of her intention to spend time with the child pursuant to Order 3, and in the case of any time that the child is to be spend with the mother in Queensland pursuant to these orders, the mother is to provide the father with copies of the return airline tickets that she has purchased no less than 7 days prior to the scheduled trip PROVIDED THAT:
(a)The scheduled flight from Sydney to Maroochydore on Friday pursuant to Order 3(e) does not leave Sydney earlier than 6pm; and
(b)The return flight from Maroochydore to Sydney pursuant to order 3(e) on the Sunday (or Monday in the case of a long weekend) does not arrive in Sydney later than 7pm;
(c)The father shall deliver the child to Sydney airport no less than 1 hour prior to the scheduled departure of the flight at the commencement of contact.
(d)The mother will deliver the child to Maroochydore airport no less than 1 hour prior to the scheduled departure of the Maroochydore flight to Sydney at the conclusion of contact;
(e)The father collect the child from Sydney Airport on arrival from Maroochydore.
(f)The mother be solely responsible for the costs of return flights for the child from Sydney Airport to Maroochydore Airport
(i)for the child's weekend time with the mother; and
(ii)for the child's school holiday time with the mother.
(g)The mother to be responsible for the cost of flight for herself and the Maternal Grandmother on occasions when either is to accompany the child to and from Queensland pursuant to these Orders.
(6)Should the mother not avail herself of time with the child pursuant to order 3(d), the child should be entitled to spend time with her maternal grandparents, Mrs B and Mr B, (“the maternal grandparents”) in every four regardless of whether the mother is present to spend such time with the child and such time:
(a)will commence at 9am on Saturday and conclude at 5pm on Sunday, subject to order 6(d) below; with
(b)the four weekly cycle of time to commence on the first weekend immediately after the commencement of the school term, unless otherwise agreed;
(c)The child to be collected from and returned to the father’s home by the maternal grandparents or either of them (or such other place that may be agreed to from time to time by the maternal grandparents and the father).
(d)the paternal grandparents or either of them will ensure that the child attends all scheduled extra-curricular sporting matches and activities and birthday parties during her time with them and in the event that they are unable or unwilling to facilitate the child’s attendance at those events, then the child’s time with them will commence at the conclusion of those activities.
(7)That the child communicate with the mother by telephone and or Skype as follows:
(a)At an reasonable time that the child requests such telephone communication.
(b)the mother may communicate by telephone or Skype (if available) with the child at the father's home on a liberal and flexible basis on days and at times as may be agreed between the parties having regards to the child's availability and commitments; and failing agreement at 6.30 pm Sydney time, and the father will ensure as best he can that such telephone communication takes place in privacy.
(8)That the child communicate with the father when she is spending school holiday time with the mother:
(a)At any reasonable time that the child requests such telephone communication.
(b)the father may communicate by telephone or Skype (if available) with the child at the mother's home on a liberal and flexible basis on days and at times as may be agreed between the parties having regards to the child’s availability and commitments; and failing agreement at 6.30 pm Queensland time, and the mother will ensure as best he can that such telephone communication takes place in privacy.
(9)That the child communicate with the parent with whom she is not living, on special occasions, as follows:
(a)on her birthday; and
(b)on Christmas Day and New Year Day,
when the other parent with whom she is not living will telephone the child.
(10)That the mother and father equally share parental responsibility for the child, including as defined in orders 11 to 18 below.
(11)That each party will keep the other informed of their current residential addresses and landline and mobile telephone numbers; and advise the other of any proposed change to same NO LESS THAN 3 weeks prior to the proposed change.
(12)That each of the parties be restrained from physically disciplining the child or allowing any third party to physically discipline the child.
(13)That the parties be restrained from:
(a)discussing the family law proceedings with or in the presence or hearing of the child; and
(b)initiating discussion with the child in relation to her views about where or with which parents she wants to live; or attempting to influence her wishes in relation to same; and
(c)making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
(14)Both parties are authorised by these orders to obtain directly from the child's school copies of:
(a)The child’s school reports, merit cards, and any written material pertaining to the child's academic and extra-curricular activities.
(b)The child's annual school photograph order forms in order that they may order copies of the child's school photographs each year.
(15)The order originally sought as “No photographs or images of the child are to be placed on the internet without the prior written agreement of both parties” was no longer pressed.
(16)That each party will notify the other as soon as practicable (and in any event within two (2) hours), in the event that the child is hospitalised or receives urgent medical attention whilst in their care, and will provide the other parent with information including the details of the illness, injury, treating doctor and the prognosis and treatment, if known.
(17)That each party will ensure that the other parent is kept informed of:-
(a)any medical problems or illness suffered by the child while in their care; and
(b)any treatment, medication that has been prescribed for the child (including over-the-counter medication) that the child is required to take in both households.
(18)Both parties are authorised by these orders to obtain information from any doctor, therapist or other medical practitioner who may provide treatment to the child from time to time.
(19)Each party to provide the other with a current email address in order to facilitate communication between them solely related to issues regarding the sharing of their parental responsibilities for the child’s medical, educational or other needs.
(20)Each party will forthwith enrol in and complete a "Parenting After Separation" or like post-separation parenting programme as may be recommended to them by the ICL in writing.
(21)The father will do all acts and things to ensure that the child receives Anglican religious instruction at school.
(22)That the father will do all things necessary to obtain the necessary equipment to set up the Skype program in his household.
NOTATION:
(23)That the father consents to the maternal grandparents:
(a)spending school holiday time with the child in the event that the mother is unable to do so pursuant to these orders; and
(b)facilitating the child’s attendance in Queensland to spend holiday time with the mother.
Principles to be applied and procedure to be followed
The best interests of the child remain the paramount consideration; s.60CA of the Family Law Act 1975 (“the Act”).
The best interests of the child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
(1) The “objects”…are to ensure that the best interests of children are met by:
(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; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(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 been 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
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).
The Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, but which may also be usefully examined here, namely:
“(a) Identifying the competing proposals of the parties;
(b) Identifying the issues in dispute;
(c) Identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
Justice Boland in Morgan v Miles (2007) FamCA 1230 in reviewing the relevant legislation held, on considering an appeal from an interim parenting order made on a relocation case, that the following earlier “core principles” remain valid. These principles were as stated by Her Honour:
“1. that the child’s best interests remain the paramount but not sole consideration;
2. that a parent wishing to move does not need to demonstrate “compelling” reasons;
3. that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
4. the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement.”
Her Honour stated that the Act requires a careful exercise of a structured discretion (there being no applicable presumption), to determine the appropriate order. Further, the Court must, when evaluating the competing proposals of the parties in relation to any relocation, noting that neither party bears an onus, have regard to the whole of the evidence relevant to the best interests of the child (see B & O & M [2005] FMCAfam 379 (Brown FM)).
Her Honour made it clear, that if a parenting order for equal shared parental responsibility had already been made prior to any application to relocate, the parties have a primary duty under s.65DAC to determine jointly (through a process of consultation and genuine effort to reach agreement) if the proposed living arrangements for the child would make it significantly more difficult for that child to then spend time with the parent not relocating. The operation of this section, her Honour finds, “would preclude a unilateral move by one parent without notice and consultation with the other parent”. This is particularly so, as her Honour finds:
“Section 60I requires parents, if no exclusionary factors such as abuse, family violence, or urgency apply, whether there is an order under s.61C, or s.61B is operative, to make a genuine effort to resolve the dispute with a family dispute resolution practitioner”.
Notwithstanding the orders made on 5 July 2006, referred to in paragraph 3 above, the mother, on about 21 April 2008, unilaterally relocated the child to live with her in Queensland. That action grounded the issue of a Recovery Order in the father’s favour on 6 May 2008 referred to in paragraph 5 above.
Evidence
The father relied on:-
a)His Affidavit (x2) sworn and filed on 28 April 2008;
b)His Affidavits (x2) sworn 22 June 2009 and filed on 29 June 2009;
c)Affidavit of Mrs M sworn 23 June 2009 and filed on 29 June 2009;
The mother relied on:-
a)Her Affidavits (x2) sworn 24 April 2009 and filed on 29 April 2009.
b)
Affidavit of Mrs B sworn 9 December 2009 and filed on
10 December 2009;
c)
Affidavit of Mr B sworn 9 December 2009 and filed on
10 December 2009;
The following documents were placed into evidence as follows:
Exhibit No
Document
Date
Tendered by
ICL1
Family Report of Ms J Schwarz
9/6/09
ICL
ICL2
Certificate from Relationships Australia “Building Connections”
29/3/07
ICL
ICL3
Minute of Orders sought by Independent Children’s Lawyer
ICL
ICL4
Enrolment form for [R] School
14/5/08
ICL
ICL5
Schedule of visits between the mother and the child
2008-2009
ICL
ICL6
Amended Minute of Final Orders sought by Independent Children’s Lawyer
ICL
A
[L] Medical
13/11/09
Father
B
[M] School report
2009
Father
C
5 pages of photographs from the Easter Hat Parade, Grandparents Day and Netball
9/4/09
Father
1
Swimming report
11/12/09
Mother
Proposals
The parties and the Independent Children’s Lawyer seek the various competing orders as set out above.
During the course of the hearing the parties consented to orders to be made in accordance with the Independent Children’s Lawyer’s proposal, being orders 1, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21 and 22 and accordingly, those orders will be made as consent orders 1 and 3-14 respectively. The father also consented to an order in terms of order 33 as sought by the mother and accordingly, that will become order 15. The mother’s proposed order 7 is the same as the father’s order 3 and, accordingly, will be made by consent of the parties as order 2.
The father further agreed to all of the orders sought by the Independent Children’s Lawyer save that he sought (and the mother agreed) to the addition of the following words “and that in the event the child misses the scheduled flight (for reasons unconnected to actions of the airline) then the father shall do all things necessary to cause the child to be placed on the first available flight to the airport closest to the mother’s place of residence at the father’s expense and to notify the mother of the new flight details within an hour of the flight being booked” and “and in the event the child misses the scheduled flight to Sydney then the mother shall do all things necessary to cause the child to be placed on the first available flight to Sydney at the mother’s expense and to notify the father of the new flight details within an hour of the flight being booked” where applicable in the Independent Children’s Lawyer’s proposed orders. Accordingly, this intention has been adopted in the formation of order 21(h). The father sought a change in the times in orders 3(a) and (b) of the Independent Children’s Lawyer’s proposed orders to that referred to in the father’s proposed orders 4(b) and (c) which he said contemplated the child spending time on the birthday of her half-sister. He also sought that the time in the Independent Children’s Lawyers proposed order 5, being 14 days be increased to one month and the time of 7 days be increased to 14 days and the addition of the words “or nominee” after the description of the parties in proposed orders 5(c), (d) and (e).
Finally, the only orders that the father then sought with respect to his amended Initiating Application were those in terms of order 10. The Court was informed that the parties had agreed to orders 10(d), (e), (g) and (h) which deal with matters the subject of the mother’s proposed orders 11, 12 and 13 and will be made by consent. The father also agreed that order 10(f) would not be pressed on the basis that the Court retained the passport. The mother also agreed to this. Proposed order 10(g) needed in light of this to be amended and that amendment forms the basis of order 17(g). The Independent Children’s Lawyer did not seek to be heard on the overseas travel and passport issues.
Many of the mother’s proposed orders have been reproduced in terms of similar effect in the Independent Children’s Lawyers proposed orders. For example order 16 of the Independent Children’s Lawyers are to the same effect as that in order 17 of the mother’s proposal. Similarly, the making of order 14 as sought by the Independent Children’s Lawyer means that the Court need not consider the mother’s proposed order 18. Order 14 enables each party to make his or her own enquiries of the school and avoids reliance on the other to communicate, which given the historical difficulties between these parties, would only be a potential fertile ground for future conflict and as such, should be avoided.
The mother confirmed that, in light of the above, she was no longer seeking orders 15, 16, 28, 29, 30 and 31 of her proposal.
The mother also confirmed that she consented to orders 7(a), 8(a) and 9 of the Independent Children’s Lawyers’ proposal.
Issues
The essential issues in dispute the subject of determination are:-
a)Who the child is to live with;
b)Whether the child will be permitted to relocate with the mother to [B], Queensland; and
c)Time to be spent with the child and the practicability of such time.
Factual Matters
There appear to be a number of relevant uncontested facts, as follows:
a)The father was born [in] 1974 and is currently 35 years of age.
b)The mother was born [in] 1978 and is currently 31 years of age.
c)The parties commenced cohabitation in April 2000 and the child was born [in] 2001 and is currently 8 years of age.
d)The parties separated on 1 April 2004.
e)The father’s occupation is [in the Transport Industry].
f)The mother’s occupation is [in the Administration Industry].
g)The father lives at [M] with Mrs M (“the father’s wife”) and their child [Y] born [in] 2009 (aged 11 months) (“[Y]”), the child’s half-sister.
h)The mother lives at [B], Queensland with her partner Mr B (“the mother’s partner”).
i)[In] 2008, the father married his wife.
j)On 18 April 2008, the mother informed the father by telephone that she was thinking of moving to live in Queensland. The father informed the mother that he would not agree to the child moving with her.
k)On 21 April 2008, the mother decided to move with the child to [B], Queensland.
l)On 22 April 2008, the mother writes a letter to the father informing him that on 29 April 2008 she would be moving to Queensland with the child. The mother provided an address and the name of the child’s new school and requested that time be nominated by the father for consideration by her to “carry out visitation”.
m)Between 25 April and 28 April 2008, the child spent time with the father including overnight time on Sunday 27 April 2008 and the child was returned to the mother on Monday 28 April 2008.
n)On 28 April 2008, the father commenced these proceedings.
o)On 29 April 2008, the mother moved from Sydney to Queensland taking the child with her. The father informed the mother that he had applied for a recovery order during a telephone conversation with her on this date.
p)On 7 May 2008, the Recovery Order issued on 6 May 2008 was executed and the child was recovered by the Police from the [B] School (being the first day of the child’s attendance at that school) and the father collected her from [B] and returned her to Sydney, where she has lived with him since that date.
q)In mid-May 2008, the child recommenced her schooling at [R] School, the school she had attended prior to her removal to Queensland.
r)The father admits to previously smoking marijuana 3 times per week and in addition using other drugs including cocaine and amphetamines approximately once a month and ecstasy approximately every 6 months during the parties cohabitation between April 2000 and August 2004 but says that he had stopped using marijuana or any other illicit drugs in April 2004 and has not used such illegal drugs since that date.
s)The father works full time 5 days a week between 1.30pm and 9.30pm.
t)The mother works full time 5 days a week between 8.30am and 5.00pm. She has 4 weeks leave per year.
u)The mother does not have a driver’s licence and is driven to and from work by the her partner.
v)The father and the mother argue on the telephone and have difficulties in communicating.
w)The mother did not know anyone in Queensland, save her partner, prior to her move there.
x)The mother’s parents reside in [P], Sydney.
y)The father’s wife’s parents live in [E] in Sydney.
There appear to be a number of disputed facts, as follows:
a)Whether the father had tried to make contact with the mother to arrange for the child to spend time with her.
b)Whether the mother had been unavailable (and had deliberately made herself unavailable) for contact from the father.
c)Whether the child was teased, smacked and had been pushed by the mother’s partner.
d)Whether the child expressed negative views about the mother’s partner.
e)Whether the father was a regular drug user, (which he denied) notwithstanding that he said he underwent regular random tests as part of his employment, which were clear.
Lay evidence
The mother’s father, Mr B, was not required for cross-examination. All other deponents gave evidence and were subject to cross-examination. All gave their evidence honestly. The Court, substantially, does not need to make findings of credit in this matter.
Expert evidence
The report of Ms Julia Schwarz, family report writer, was based, as she described, on the material provided by the parties and the interviews conducted. Ms Schwarz records that the strengths of the assessment were the interviews with the parties and the observations conducted with the parents and the children, which were to the following effect:-
a)The child lives with the father and her stepmother, the father’s wife and half-sister, [Y].
b)Both the father and the father’s wife have extended family in Sydney, whom the child sees on a regular basis.
c)The child also spends one weekend per month with her maternal grandparents.
d)The father reported that he worked five days per week from about 5.00am to 3.00pm. The father’s wife prepared the child for school in the morning and the father picked her up after school two to three afternoons per week. At the time of the hearing, the father still worked 5 days per week but his hours had changed and he was then working from 1.30pm to 9.30pm. He was taking the child to school but the father’s wife was picking her up from school.
e)The father’s wife is not currently working but may start a part-time business from home at some point in the future.
f)The mother works full-time and the mother’s partner works in sales.
g)The flight between Sydney and Maroochydore (near [B]) takes about an hour.
h)The father presented as a “laconic man who gave a consistent and sensible account of his proposals”.
i)The father’s wife spoke knowledgeably about the child’s routines and needs.
j)Even before the mother moved to Queensland, the father and the father’s wife reported feeling that there was an air of secrecy between the two households.
k)The child was described as “a very special girl” who “tended to be wise beyond her years”. She was seen as having a great personality and as being intelligent, affectionate and athletic. The father felt she had settled well at her new school and was already making new friends. He felt she had close relationships with “all the significant adults in her life” and described her as having a settled regular routine.
l)When the child visited the mother for the first time in December 2008, she appeared to have had an enjoyable time but seemed to be “a bit reserved about what happened there”, later disclosing that the mother had asked her lots of questions.
m)The father said he would be happy to consider fortnightly contact, if it were feasible. He also expressed his willingness to facilitate telephone contact.
n)The mother presented as an emotional woman with rigid views and who had a difficulty presenting a cogent account of her actions. She was pleasant and polite and spoke in a slightly formal manner which gave the impression of detachment that was at odds with her periodic distress observed during the interviews.
o)The mother spoke with some bitterness about the separation from the father, stating that he had decided to leave her and therefore he had to wear the consequences. The mother regarded herself as the child’s primary carer and main attachment figure and was thus, she thought, entitled to make the move to Queensland that she thought was in her best interests as she regarded those interests as closely tied to the child’s. She said she was happy to make arrangements for the child to spend time with the father and did not feel the manner of her move placed little importance on the child’s relationship with the father.
p)The mother’s move to Queensland followed a decision by her and her partner to make a fresh start in Queensland. This appeared to be largely driven by what the mother’s partner wanted to do.
q)The mother raised a number of objections in relation to the father’s care but struggled when trying to clarify their basis. She did not have any specific concerns about the father’s wife’s care of the child. She expressed a fear that the child might be exposed to drug paraphernalia and said she had described a “bong” to the child and told her to let her know if she saw any such object in the father’s home. She denied that this was asking the child to spy on the father.
r)The mother said she did not wish to make contact with the child’s school because she felt she had already been given a bad reputation there by the father.
s)There was some discussion with Ms Schwarz about why there had been so little face-to-face contact with the child since she was removed from the mother’s care in May 2008. In terms of the school holidays, the mother said she had not requested time during the July 2008 holidays because she had a new job and could not obtain leave. She also said that it was the father’s turn to have the child for the school holidays (according to their previous schedule). For the October 2008 school holidays, the mother said she had just wanted to concentrate on arranging a visit at Christmas and gave this as her reason for not arranging contact earlier.
t)The mother said she had not wanted to arrange more frequent contact, such as her making visits to Sydney for weekends where she could see the child at her mother’s home. The mother said she had not wanted to do this because it would give the Court the impression that contact could still be maintained, without the need to move the child to Queensland to be with her. Her view was that she would not change her mind and return to Sydney, as the Court and the father would think she was weak and indecisive.
u)The mother found it hard to identify how the child may have been feeling throughout the period of her separation from the mother. The mother did not wish to arrange telephone contact with the child while she was in the father’s home because she felt the father and the father’s wife “mocked her” in the background.
v)The mother was vague when describing the child’s relationship with the mother’s partner. She said he was involved in the child’s discipline and both had at times smacked the child.
w)She had discussed, a proposal that the child remain with the father for a further 18 months then return to her in 2011. There was minimal focus on how this arrangement would be experienced by the child.
x)The mother’s partner was spoken to by Ms Schwarz by telephone on two occasions during the course of the assessment. He spoke with a pleasant and polite manner with a slightly formal phrasing. He spoke of the child’s absence since being collected by the Police, which he described as being “like a terminal illness, like a death’. Ms Schwarz records that while it was extremely difficult to obtain (from him) any sense of the quality of his relationship with the child, he said that they did not have a particularly affectionate relationship. The mother’s partner concentrated his attentions on making the mother happy.
y)Regarding the mother’s partner’s decision not to attend the assessment in Sydney for the Family Report, he said it had not been impressed upon him (by the mother) that it was important for him to do so. He said “I don’t see myself as a major influence on her [the child’s] life”.
z)Mrs B, the child’s maternal grandmother, spoke warmly of her granddaughter, describing her as “a lovely little girl”. She also said she had no concerns about the father’s care of the child.
aa)The child presented as a “polite, self-contained child”. She separated from her family quite easily when seen alone.
bb)The child spoke quite happily about her daily routine, describing her activities at school and naming a number of friends. She agreed that she had changed schools, as she was “not learning enough at [R]” and that her current school was better because she was “not concentrating before”.
cc)The child said that she did not like the mother’s partner, describing him as “pushy”. She said that she had “chucked up” and the mother’s partner had told the mother to “get away”. She said that on another occasion, the mother’s partner had slapped her and that he generally “talks in a loud voice”.
dd)The child said that she had “good times” with the mother, describing them as going shopping, playing with paddle boats and going to the pool and that she also had (notwithstanding her comments recorded in (cc) above) “good times” with the mother’s partner.
ee)The child insisted that she wanted to continue living in Sydney and did not want to spend more time with the mother in Queensland. When asked about the reason for this, the child said it was because she would miss [Y].
ff)The child presented as highly conscious of her parents’ differing opinions and she identified with the views of her father and the father’s wife. She was, nevertheless, largely positive about the mother.
gg)The child was observed to be relaxed with the father.
hh)The child seemed comfortable with the father but was more familiar and confident when playing with the father’s wife.
ii)During the times when the child was observed with the father, the father’s wife and her (step) grandmother, she seemed happy and composed.
jj)The child seemed quite comfortable with the mother and seemed content to easily and quickly engage in play with her. However, she also seemed a little uncertain of the mother as her behaviour was responsive and, as Ms Schwarz records, indicative of possible anxiety.
The Court finds that the child has a good relationship with both of her parents and the other persons mentioned above. However, her relationship to the father’s household appears stronger than that in the mother’s household. The mother’s proposal to relocate the child would be likely to adversely impact on the relationships with the father’s family and extended family.
The child’s relationship to her-half sister is a very important consideration and the Court places significant weight on this relationship and the child’s wish to remain close to her half-sister. This would be negatively impacted upon if the mother’s proposal was to succeed.
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The father’s evidence was that he did not hold any hatred of the mother and wished to encourage the child’s time with her. The Court accepts this evidence and gives it weight.
The father’s evidence was that he had attended and invited the mother to attend a Building Blocks Communication Course held by Relationships Australia. The mother denied being so invited but the Court prefers the father’s recollection given that the course was to be held in Carringbah and it is likely that the mother had declined not to attend at that location. The Court accepts that the mother had been so invited to attend.
The Court finds that the mother’s unilateral move of the child to Queensland, despite the father’s objection, notwithstanding that the mother did not feel the manner of this moved placed little importance on the child’s relationship with the father, did give an impression of being dismissive of this relationship or at least greatly minimised its importance. Certainly, the Court accepts it marginalised the child’s time with the father and would have continued to do so if a Recovery Order had not been made.
The mother gave the Court the distinct impression that she was somewhat self-centred in her view as to her position with regard the child. The Court formed the view that the mother regarded herself as the parent in the priority relationship with the child. It may be that she had been the primary carer of the child, but the mother’s apparent failure to recognise the importance to the child of growing up with a close and fostered bond and interaction with the father was telling and troubling in relation to these proceedings. The mother’s asserted position of not making telephone contact or of seeing the child while the proceedings were pending failed to recognise the needs of the child for such contact and put those needs behind the mother’s perceived need to achieve an outcome in her favour in these proceedings. This was unfortunately telling and potentially predictive of how she would deal with the child’s needs to continue her relationship with the father, if the mother’s proposal was to succeed.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The Court finds that the child was born and raised in Sydney.
The child currently attends [M] School and is in year 2. The child has attended at that school since January 2009 and appears to be doing well. Prior to that, the child had attended at [R] School.
The child is enrolled in Netball and trains one afternoon a week and plays games on Saturdays and has also joined the school choir.
The Independent Children’s Lawyer and the father’s proposal would see no change to the above. The Court places weight on preserving this stability for the child.
The mother’s proposal would see a disruption to the child with a new school in Queensland and the removal from her established friends and activities in Sydney.
The child has a close and involved relationship with her extended family on both the father’s and the mother’s side in Sydney.
The father and the father’s wife have a daughter, [Y], and the child has a close and loving relationship with her half-sister. The Court places significant weight on not disrupting this relationship.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
While the father submits that there is no difficulty with the child speaking to the mother via telephone every day and the father seeks this, the Court accepts the mother’s evidence and Ms Schwarz’s evidence that 2-3 times a week is preferable given the need to involve the child in having interesting and meaningful exchanges with a parent.
The father lives in Sydney and the mother lives in Queensland. Both parties accepted that it was not feasible for the child to travel on a fortnightly basis, because of the expense and the child’s age.
The Court does not accept the father’s submission that he should not be responsible for the payment of the costs associated with the child travelling to spend time with the mother in Queensland, simply because the mother decided to move there despite his objections.
(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The father submitted and the Court finds that since the child has been in the father’s care the child has enjoyed spending time with her extended family members, including the maternal grandparents.
Further, when in the father’s care the child has her own bedroom which has a double bunk bed in it, a wardrobe, drawers, bedside lamp and prints on the walls.
The father takes the child to school each day and the father’s wife picks the child up from school each day.
The father has also arranged for the child to participate in extra curricular activities such as Netball, choir practice and swimming and encourages her to participate in other sports of her choosing.
The Court accepts that both parents have the relevant capacity to provide for the physical needs of the child. The Court is of the view, however, that the father’s household has the greater capacity to provide for the child’s emotional needs given Ms Schwarz reports that, despite an early and significant history in the child’s care, the manner of the mother’s move and her subsequent actions raise grave concerns about the child’s emotional safety with her. The mother has demonstrated a minimal focus on how her proposed arrangements would be experienced by the child. The Court has given significant weight to this.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
The Court finds that the child is highly conscious of her parent’s differing opinions and has identified with those of the father and the father’s wife. Ms Schwarz’s evidence was that the child was largely positive about the mother but seemed a little detached in her depiction of the situation. While Ms Schwarz reports that there seemed to be a slightly rehearsed quality to the child’s comments and awareness that the child was expected to present a certain view, she, nevertheless, stated in response to the mother’s questioning that she did not see this as having been orchestrated by the father in any way. The Court accepts this view.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
These factors do not apply to this child.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The father submitted and the Court accepts that since having the child in his care, the father has taken steps to ensure that the child’s best interests are met and that the child operates within a stable routine. This routine has included the provision of appropriate accommodation, attending school and completing school tasks, participating in extra curricular activities, maintaining relationships with the child’s extended family (including the maternal grandparents) and facilitating and encouraging telephone and face to face contact with the mother.
Ms Schwarz stated that the mother’s main thesis was that, as the child’s primary carer and main attachment figure, she was entitled to make the moves and changes that appeared to her to be in the mother’s best interests as these were closely tied with the child’s. The mother’s actions of moving and her reactions to subsequent events suggested, however, a minimal understanding of, or concern for, the child’s feelings. The Court accepts that much of the mother’s evidence was focused on her own distress at being separated from the child rather than expressing any empathy for the child’s own concerns and showed no understanding of the importance of continuity and stability in attachments for the child.
(j) any family violence involving the child or a member of the child's family;
The Court finds that there is no evidence in relation to there being any domestic violence between the mother and the father. Further, while the mother admits that she and the mother’s partner have hit the child in the past to discipline her and the child records that the mother’s partner had slapped her and pushed her, these matters have been dealt with by the parents agreeing to a mutual restraint against the physical disciplining of the child.
(k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
This factor does not apply to this child.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
While the father submitted that orders could be made that deal with the possibility of the mother moving back to Sydney, which could avoid the institution of further proceedings, there is simply no evidence to ground the making of such orders. The mother’s evidence was that if the child was ordered to live with the father in Sydney, there was some prospect that she and her partner would return to live in Sydney. However, the mother’s evidence was also that if she had been forced to seek the Court’s approval to a relocation in the first place, it would have delayed her move but that, whatever the result was, she would have moved to Queensland in any event. In the absence of such evidence, if the mother returns to Sydney, the Court would need to consider the matter afresh at that time.
(m) any other fact or circumstance that the court thinks is relevant
There are no other facts or circumstances.
Matters in Subsections 60CC(4) & (4A):
The Court must, without limiting its consideration of the factors in s.60CC(3)(c) and (i) of the Act, consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent (and in the case where the child’s parents have separated, having regard to the events and circumstances since separation) and in particular the Court must consider the matters set out below:
(a) [The extent to which each of the child’s parents] has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and
(b) [The extent to which each of the child’s parents] has facilitated, or failed to facilitate, the other parent: (i) participating in making decisions about major long-term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and
The mother’s relocation and enrolment of the child in a school in Queensland denied the father an involvement in such decision making. Further, the father’s enrolment of the child in a new school after her return to Sydney was done without discussion or involvement of the mother.
The Court finds that on the evidence the father has sought to engage the mother in the child’s life but that the mother has sought for tactical and other reasons to distance herself from the child without considering the effect on the child of such a stance.
(c) [The extent to which each of the child’s parents] has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
The Court finds that both parties have the ability to maintain the child and that the child has otherwise been physically well cared for.
Reasonably practicability of ‘spending time’
The Court in determining the reasonable practicability of the child spending time with the parents pursuant to s.65DAA(1) of the Act, must have regard to the following matters set out in s.65DAA(5):
(a) how far apart the parents live from each other; and
The mother lives in Queensland and the father in New South Wales.
The Court accepts that due to the distance between the parties it is not practical for the child to spend equal or substantial and significant time with the parent she does not live with.
The Court finds that in light of the child having travelled to Queensland to spend time with the mother unaccompanied on aircraft travel without incident that there is no need for the child to be accompanied in the future.
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
The Court finds that the father’s household is more likely to encourage a close and continuing involvement between the child and the other parent than the mother’s household.
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
The Court finds that while the parties have had evidenced difficulties in communicating, their agreement to a number of the proposed orders is likely to assist in resolving these issues over time.
(d) the impact that an arrangement of that kind would have on the child; and
The Court finds that the Independent Children’s Lawyer’s proposal is more likely to give stability for the child while preserving the child’s ongoing relationships with both parents than is the mother’s proposal.
(e) such other matters as the Court considers relevant
There do not appear to be any other matters.
Conclusion
The Court is of the view that the Independent Children’s Lawyer proposed orders 3(a) and (b) are to be preferred to those of the father, notwithstanding that the father sought to provide time in his orders for the child to spend time with the child’s half-sister at her half-sister’s birthday, each year. The Court is of the view that the equal splitting of the Christmas school holiday period, alternating as it does, is in the best interests of the child, given that the Court must have regard to future considerations (including the mother’s stated intention to have child/ren with her partner) and the adoption of the father’s proposal has the potential to impact on the mother’s ability to make her own arrangements for the child in the Christmas school holiday period.
The Court is of the view that the time contemplated in proposed order 5 should be increased from 14 to 21 days and from 7 to 10 days to provide sufficient notice to the parties, but at the same time accommodate the mother potentially being able to take advantage of cheap airfares.
The Court will add the parties’ nominee to the Independent Children’s Lawyers proposed orders 5(c), (d) and (e) as it otherwise gives the parties the flexibility to comply with the Court’s orders given working and other commitments.
The Court is of the view that the Independent’ Children’s Lawyer initial orders as set out in Exhibit “3” being as follows:
“That the parties share in the costs of return flights for the child from Sydney Airport to Maroochydore Airport, for the child’s school holiday time with the mother.
The mother be solely responsible for the costs of return flights for The child from Sydney Airport to Maroochydore Airport, for the child’s weekend time with the mother.”
should be adopted. Both parties are in employment. The Independent Children’s Lawyer submitted that the father was the sole breadwinner in a family of 3 dependants (including the child). The mother’s evidence was that while her partner was working they treated their finances separately and she took the view that as far as the parenting orders were concerned, she should be in a position to stand on her own feet. The Court is minded to ensure that both parties fulfil their obligations to have the child freely move between them. To impose the entire financial burden on the mother has the potential for her to be simply unable to effect the contemplated travel commitments. The Court is of the view that the mother should be responsible for the travel costs associated with the four weekly proposed time orders (indeed that is consistent with her proposal of a contribution of $2,000.00 towards travel costs) but that the travel costs associated with the school holiday time orders should, otherwise, be shared equally between the parties. The Court is of the view given the father’s evidence as to his income and expenses that he has the capacity to meet travel expenses of this nature.
The Court is of the view that telephone contact time should be 3 times a week as recommended by Ms Schwarz and not daily given the mother’s expressed concerns that that would be too onerous for the child.
With respect to the publication of the child’s image, the Court notes that this is a matter of some concern to the mother and was addressed in prior interim orders. The Independent Children’s Lawyer initially sought a prohibition to publication on the internet but then decided not to pursue that relief. The father offered notification to the mother of those Facebook friends who could access the site. The mother indicated that up until 2004 she had no difficulty with any of the father’s then known friends seeing images of the child. The mother accepted that the Facebook site provided a modern mechanism for the exchange of information concerning the child and indeed as the child matured she was likely to seek to have such an account herself. The Court is of the view that there should be an order generally in terms of that sought by the mother but with the proviso that the Facebook publication could be effected with the mother notified of the persons having access and being entitled to have access herself. The Court will provide an order to this effect.
The Court is of the view that notwithstanding the Independent Children’s Lawyer’s submission that the mother had effectively abandoned the child and that the child looked to the father’s wife as her mother and, as such, was justified in asking her for permission to call her mother, the child’s wishes, in this regard, should not be determinative of what is in her best interests going forward. In light of the balance of the orders made and in particular the order for equal shared parental responsibility, it is important that the child not be confused as to the identity of her mother. For that purpose, the Court is of the view that the father and the father’s wife should not permit or encourage the child to call the father’s wife “mother” or “mum”. To her credit, the father’s wife agreed that she would be bound by such an order. She indicated that she had agreed to the child’s wish but would abide the Court’s decision if the Court formed the view that it was otherwise in the best interests of the child for her not to be called “mother” or “mum”. The child’s wishes must be seen within the historical perspective of the mother’s decision not to make contact. Given the Court’s decision, the mother should now be engaged in the child’s life in accordance with the Court’s orders and it is important that her position as the child’s mother is protected and reinforced. The father’s wife conceded that she did not see herself as the child’s primary carer. The Court, however, understands that she does take on many of the practical issues including the child’s day to day care, given the father’s working commitments. Accordingly, the Court will make an order to that effect.
With respect to the order permitting the parties to take the child out of Australia, the Court has made orders which provide that each party is permitted to take the child out of Australia during school holiday periods when the child is in the father or mother’s care. Ms Doring accepted that the order proposed by the Independent Children’s Lawyer as it applied to the father was not so limited, but that her client’s position was that the intent of the order was that it would only apply in school holiday periods. Accordingly, the Court will so order.
The mother while indicating that if orders were made that the child live with the father and spend time with her, she would be devastated and would, in those circumstances, consider her position to return to Sydney (with her partner), did not put before the Court any specific proposal in that regard. The mother’s original decision to go to Queensland had been based on her partner renovating an investment property and obtaining employment there. He had decided to stay in Queensland and wanted the mother to go up and join him, this the mother had agreed to, presumably to remain in that relationship. The father’s proposal that the mother spend time in accordance with the 2006 orders as applicable to him cannot be considered given the evidence before the Court. Accordingly, the Court will make no order relevant to live with or time if the mother elects to return to live in Sydney.
On the basis that the mother has indicated she intends to remain in Queensland, the Court is of the view that the Independent Children’s Lawyer’s proposal is in the best interests of the child. That proposal provides for the child to continue to live with the father in the stable environment that the child currently enjoys and in accordance with the clear recommendations of Ms Schwarz. The child appears to be doing well at her school having completed Grade 2 in 2009. Her school report records her as a sensitive student who has grown in confidence expressing a willingness to work independently and appears to be more settled in her school environment as a reliable co-operative class member. She appears to have taken a role in caring for special needs children in her school.
The child also appears to be committed to her Netball and it is important that the child’s sporting commitments are accepted by the parties. The experience of being with the child at such events should not be seen as a diminution of time with a parent or grandparent. The time at such events enables a different experience and the child will potentially receive support and encouragement by having a parent/grandparent in attendance. However, it is important that a parent not arrange for so many extra-curricular activities that another parent or grandparent’s time is diminished thereby. The father proffered that he would limit such non-school related activities to one per “season”. The Court is of the view that it will not make any specific order in that regard as it would appear the father has sensibly considered and taken on board that issue.
While Ms Schwarz recommended fortnightly time, both parties agreed that they would not practically be able to implement such time. Accordingly, the Independent Children’s Lawyer’s proposal for weekend time every 4 weeks appears to be in the best interest of the child given the parties’ work commitments and financial circumstances. The provision for the child to spend, as she has already done, time with the maternal grandparents is of benefit to the child and should continue.
The Court will make no order for a party to attend with the child while the child travels by airline between the parties’ residences. The child has already travelled as an unaccompanied minor and appears to have coped well with that transport. The Court is alive to the parties employment terms and financial positions in being able to afford such travel costs (in the order of $120-150 each way, leaving aside special travel promotions) together with a $20.00 unaccompanied minor supplement each way. To impose these costs has the potential to minimise the opportunities for the child to spend time with the mother.
This has been a difficult case in that the Court accepts that the mother loves the child and has missed the child greatly over the last
20 months. The Court also accepts that the mother regrets and has apologised for her actions in unilaterally relocating the child to Queensland, when existing parenting orders were in place and which had the effect of uprooting the child from her schooling and the then fortnightly time exercised with the father. The mother’s explanation was that the father had refused permission for her to travel with the child to America where she had hoped to be married to her partner. The mother said that she was angry over this issue and that, to a large extent, this was the basis for her decision to relocate without notice or the ability to discuss and negotiate with the father. This is so, notwithstanding that the mother criticised the father for failing to negotiate during the course of these proceedings. The mother’s anger also explains her failure to contact the father following the Recovery Order.
The execution of the Recovery Order had the effect of causing the mother to adopt a position of, as she said, “protest”. The mother could have returned to Sydney and sought to relocate with the child. Instead, she deliberately distanced herself from the child, refusing to visit or to make telephone contact. She did this, it would appear, so as not to create a precedent whereby her case would be seen in a different light by the Court or to give the father evidence to use against her. She also adopted this position, she said, because she did not wish to have the child see her emotional hurt and that she had been, herself, traumatised. This “stubbornness” as acknowledged by the mother has unfortunately worked to her detriment. The mother failed to appreciate in any meaningful way the impact that her physical withdrawal would have had on the child. While the old proverb states “Absence makes the heart grow fonder”, Elizabeth Bowen, the Anglo-Irish novelist records “the heart may think it knows better; the senses know that absence blots people out”. Ms Wearne for the Independent Children’s Lawyer expressed the mother’s actions as akin to an abandonment. While the father’s household also appeared to be somewhat detached to the importance of this issue for the child, the mother appeared far more detached to the child’s specific needs (concentrating on her own need for the child to be with her) than did the father in this regard. The father expressly stating that he was concerned about the child’s feelings of being separated from the mother and his desire to have the child have regular contact with the mother was evidenced by his actions in seeking to make contact.
Both the father and the father’s wife sought to make contact by telephone with the mother to assist the child deal with the physical separation from the mother. The mother conceded that there may have been telephone calls made, but sought to explain the position on the basis that her residence was in a hilly area which provided inadequate mobile phone reception and that her land line was a facsimile machine. The Court accepts that the mother deliberately shut down contact with the father and the child. Notwithstanding this, the father’s wife was able to make contact by telephone when she took the step of ringing the mother hoping that the mother would not identify the father’s telephone number and would answer the call. This is in fact what happened and the child spoke with the mother, on around 23 May 2008 some 2 weeks after the child had come to live in the father’s household. The Court accepts that the father’s wife, while obviously closely aligned with the father, nevertheless, facilitated the child’s relationship with the mother through telephone contact and mail, while conceding that this was, nevertheless, inadequate. The Court is of the view that the father’s wife will continue to adopt that role in the father’s household and significant weight is attached to that.
The Court accepts that the father’s household is more likely to encourage the child spending time with the mother than the mother’s household in spending time with the father. The Court accepts the father sought to contact the mother so that the child could spend time with the mother when on holiday in Queensland in October 2008 and the mother had said that she was too busy with work. The Court accepts that the mother did not want to be seen to have contact with the child in Queensland when arranged by the father as consistent with their approach of protest.
The maternal grandmother’s evidence supported the contact that the father and his family had arranged. She also supported the father’s version of his attempts to contact the mother by contacting her when he could not make contact and then she facilitated a telephone call from the mother. Her evidence was also that, subject to her own issues concerning looking after her elderly 97 year old father, she was prepared to assist the mother spend time with the child either in Sydney or in Queensland.
The essential thrust of the mother’s case was that she had been the child’s primary carer since the child’s birth and following the parties separation in 2004 and pursuant to the 2006 orders the child, by consent of the parties, lived with her and the father exercised fortnightly contact. There is no contest that the mother did not do a good job as mother during that period. However, the Court deals with the matter in 2009. Through the mother’s efforts (and those of the father) the child appears to be resilient, happy and otherwise in a stable environment. This is no doubt due to the good mothering of the child up until April/May 2008. However, as submitted by the Independent Children’s Lawyer and accepted by the Court, the mother has no maternal claim or entitlement. What she has, is a responsibility. The child is now 8 years of age and the Court has to consider the competing proposals for the child’s future. The mother appeared preoccupied with having her child who she said was totally dependent upon her, returned to her. The child is, however, no longer totally dependent and has her own wishes and needs to be accommodated within the changed family dynamics of the mother moving to Queensland and the father remaining in Sydney.
Of critical significance to the Court’s overall conclusion is the mother’s simple failure to have her current partner personally attend the interviews with Ms Schwarz (noting that her partner had informed the consultant that he had not been advised of the importance of his attendance) and to put on any affidavit evidence by him in support of the mother’s proposals. The mother’s position was that her application should stand or fall on her position alone. That would be the case if the mother was living alone. The mother’s partner is a significant person that the Court would need to have some evidence from before the mother’s proposal could be given any weight at all. This is particularly so given the mother’s evidence that she was in a committed relationship with him and the family consultant’s recording of the child’s views concerning the mother’s partner, referred to above. The reservations expressed by Ms Schwarz in her report concerning the mother’s partner were clear warnings to the mother that the Court needed information and that should have been attended to given the significant time between the release of the report and the final hearing. The mother’s evidence was that her partner had known the child since she was two and a half years old and had lived with her at [R] on a full time basis. It is not without significance that the mother’s partner did not travel to Sydney with the mother to see the child in the last
20 months.
In the 20 months that the mother has been substantially absent from the child (save for 4 visits) the father and the father’s wife have given birth to [Y], the child’s half-sister. The Court accepts that the child loves her half-sister and has a strong relationship with her as is evidenced by the photographs to the Court and by the evidence of Ms Schwarz. The Court accepts that it is far more likely that the child will maintain a close relationship with her half-sister if she continued to live with the father rather than the mother and this factor the Court gives substantial weight to.
Further, the mother’s evidence was that she did not wish to speak to the child’s school about her concerns that the child was receiving Catholic classes, despite being baptised an Anglican. The mother said that she felt the father had given the school a bad impression of her. There is simply no evidence of this. The mother’s removal of herself from the child’s education is of concern.
The Court accepts that the father completed an enrolment form which, he accepted, inappropriately disclosed that the child followed the Catholic faith. The father had married his wife in the Catholic Church and acknowledged that the child had been baptised an Anglican. This issue has, however, been dealt with by way of a consent order between the parties.
The father has no relatives in Queensland. The mother has her family in Sydney. It is more practical, from a financial point of view, given both parties’ financial resources that the mother travel to Sydney where she can avail herself of “free” accommodation with her parents. The child has a close relationship with the maternal grandparents. The mother’s mother (the maternal grandmother) looks after her father. The photographs tendered show that the maternal grandparents and indeed the maternal grandmother’s father attend the child’s school. Indeed one of the photographs appears to show the maternal grandmother’s father holding the child [Y] (being the child of the father and his wife). The Court is satisfied that the father’s household have strongly supported the child’s connection with the mother’s extended family. This is also supported by the visitation schedule being Exhibit “ICL5”. This connection appears to have been strongly supported and encouraged by the father’s wife. Her own parents appear with the mother’s parents in a photograph with the child at the child’s school.
The Court is satisfied that the father does not currently use illicit drugs. To her credit, the mother acknowledged this position. Her concerns raised in June 2009 were, she said, done to raise all matters before the Court. Given the father’s employment and the random drug analysis carried out through that and indeed by the readiness with which he proffered to be bound by an order not to consume illicit drugs, the Court is of the view that this is not an issue.
The balance of the orders sought by the mother will not be made as there is no relevant evidence to support the same. Further, some of those orders are clearly within the parties’ agreement to equally share parental responsibility and while there is no current factual matrix upon which such orders could be based, the Court will leave their determination to the parties in the future exercise of that responsibility.
Parenting orders should be accompanied by as little ambiguity as practicable (see Chappell & Chappell [2008] Fam CAFC 143; Newlands & Newlands (2007) 37 Fam LR 103).
Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, the Court is of the view that the orders the subject of the Independent Children’s Lawyer’s proposal (as modified by the orders proposed by the Court) are otherwise in the best interests of the child and accordingly, the Court will so order.
I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Kemp FM
Associate: Joanne Balson
Date: 29 January 2010
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