MIRA & CARROLL

[2018] FamCA 519

FAMILY COURT OF AUSTRALIA

MIRA & CARROLL [2018] FamCA 519

FAMILY LAW – CHILDREN – Parenting – Final Orders – Orders by consent of the parties – One remaining issue for determination – Who should apply for and hold the children’s passports.

APPLICANT: Ms Mira

RESPONDENT: Mr Carroll

INDEPENDENT CHILDREN’S LAWYER: Ms M Lonergan 

FILE NUMBER: MLC 1258 of 2012

DATE DELIVERED: 9 January 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 8 and 9 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Barbayannis

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT: Mr Nehmy

SOLICITOR FOR THE RESPONDENT: Jim McCarthy Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms A Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

BY CONSENT IT IS ORDERED:

1. That all previous parenting orders be and are hereby discharged.

2. That the father and mother have equal shared parental responsibility for the children X born … 2005 (“X”) and Y born … 2008 (“Y”) (collectively “the children”).

3. That for the purposes of Order 2 herein, the following will apply in relation to major medical decisions in relation to either of the children:

   (a)the father and mother will forthwith advise the other of any medical issue concerning the children whilst in their respective care;

   (b)the father and mother shall do all acts and things to provide all medical information to the other parent where applicable including any proposed treatment plan;

   (c)both parents are authorised to speak with and receive information from the children’s treating practitioners;

   (d)prior to making any decision in relation to treatment for either of the children the parents shall consult one another and make a genuine attempt to come to a consensus; and

   (e)in the event that the parents do not reach agreement as to the proposed treatment then the mother is authorised to consent to treatment and she will provide the father with all details and information with respect to same.

4. That for the purposes of Order 2 herein, the following will continue to apply in relation to any proposed change of enrolment of either child’s school (in the same terms as paragraph 11 of the Final Orders dated 1 August 2012):

   (a)that provided the mother pay the school fees, if at any time either party wishes to change the enrolment of either child’s school that party will advise the other of the proposed change of plans and obtain the other party’s views and consent in relation thereto and if notwithstanding same the parties are not able to agree in relation thereto, the mother’s selection of school and curricular matters shall prevail and the mother do all things necessary and sign all such documents as are required to enrol the children or either of them in such school as the mother shall nominate from time to time.

5. That the children live with the mother.

6. That Y spend time with the father:

   (a)during school terms on each alternate weekend from the conclusion of school on Friday (or 3:30pm) to 7.00pm Sunday commencing on the first weekend of each school term;

   (b)during the term 1, 2 and 3 school holidays from the conclusion of school on the last day of the school term until 12.00pm (midday) on the middle day unless otherwise agreed between the parents in writing;

   (c)for one half of the summer holidays as agreed between the parents in writing and failing agreement for the second half in 2018/2019 and each alternate year thereafter and the first half in 2019/2020 and each alternate year thereafter, with changeover to take place at 12.00pm (midday) on the middle day; and

   (d)such further and other times as agreed between the parties.

7. That the arrangements in orders 5, 6 and 9 herein be suspended as necessary for Y to spend time with:

   (a)the father from 3.00pm on the day prior to Father’s Day until 7.00pm on Father’s Day in the event that it is not the father’s weekend;

   (b)the mother from 3.00pm on the day prior to Mother’s Day until 7.00pm on Mother’s Day;

   (c)the father on his birthday from 3.00pm until 7.30pm;

   (d)the mother on her birthday from 3.00pm until 7.30pm; and

   (e)the parent in whose care she would not otherwise be on her birthday from 3.00pm on the evening preceding her birthday until the commencement of school or 1.00pm if a non-school day.

8. That in relation to time over the Christmas period:

   (a)if not already in the father’s care Y spend time with the father from 3.00pm Christmas Eve until 3.00pm Christmas Day each odd numbered year. 

   (b)if not already in the mother’s care Y spend time with the mother from 3.00pm Christmas Day until 3.00pm Boxing Day each odd numbered year.

9. That X spend time with the father:

   (a)during school terms from the conclusion of school (or 3:30pm) until 7.00pm each Wednesday; and

   (b)once during term school holiday periods from 10:00am until 7.00pm as agreed between the parties and failing agreement on the Wednesday in the week that Y is not in the father’s care;

   (c)three (3) times during long summer holiday periods from 10:00am until 7.00pm as agreed between the parties and failing agreement for one day on the first full day of the long summer holidays and for two days on the last Friday and Saturday of the long summer holidays; and

   (d)such further and other times as agreed between the parents, with the parents to consider the views of Mr B, psychologist and follow any recommendation for any variation or increase in time X spends with his father.

10. That the father be in substantial attendance at all times the children or either of them are in his care.

11. That for the purposes of spend-time arrangements the father collect X or Y from school or from the McDonald’s on the corner of in Suburb C as applicable and return the child in his care to the mother’s residence at the conclusion of time.

12. That each parent be at liberty to telephone Y daily between 6.45pm and 8.00pm on her mobile phone if Y is not in their care, with the other party to facilitate such call, and the children be at liberty to telephone either parent upon reasonable request to do so.

13. That the parents do all acts and things to ensure:

    (i)     that X continue to attend upon Dr D, psychologist for confidential counselling as directed by Dr D; and

    (ii)    that Dr D be requested and directed to communicate with Mr B and this order provides such authorisation.

14. That the parents and the children attend upon Mr B for reportable therapeutic counselling for the purpose of:

    (a)Y spending time with her father pursuant to these orders;

    (b)X spending time with his father pursuant to these orders and such further time with the goal for such further time being for X to spend time with his father at the same time(s) as Y spends with her father;

    (c)implementing strategies to enable both parents to confidently manage X’s behaviours; and

    (d)such further and other matters that may arise during the course of the counselling.

15. That for the purposes of family counselling, the father and mother do all acts and things to:

    (a)arrange and attend no more than 12 appointments or such further period as may be recommended by Mr B, with Mr B  having discretion in regard to which of the parents and/or the children attend;

    (b)arrange for the attendance of the children at appointments with Mr B; and

    (c)request Mr B to prepare a progress report after 12 sessions or such other period(s) as recommended by Mr B and this order provides such request(s).

16. That the father and mother each pay one half of the costs of the therapist referred to in paragraph 15 herein.

17. That during any period either parent proposes to take the children or either of them on an overnight basis from the State of Victoria but within Australia, that party notify the other in writing of the details of the proposed stay including travel and accommodation details.

18. That the parent intending to travel overseas with the children provide written notice to the other parent of all travel plans no less than thirty (30) days prior to the proposed travel, including full itinerary of flight details, accommodation and contact telephone numbers during such travel.

19. That the parents are each at liberty to attend all school and extracurricular activities, appointments or events that parents are ordinarily able to attend regardless of whether or not the child or children are in their respective care.

20. That the parents are each at liberty to communicate directly with and obtain information directly from any school or educational organisation the children attend.

    (a)  That each parent keep the other notified of any change of residential address, telephone number and email address.

    (b)           The parents be at liberty to provide a sealed copy of these orders to Dr D and Mr B and the children’s schools if necessary.

21. That the order requesting the appointment of the Independent Children’s Lawyer be discharged.

22. That in the event that either or both of the children are not spending time with the father following 12 sessions with Mr B, each parent be at liberty to make an Application with supporting Affidavit material on short notice to be listed before Justice Bennett.

23. That the Court certifies that it was reasonable for the parties to employ an advocate.

24. That the matter be removed from the list of matters requiring determination.

IT IS ORDERED BY THE COURT:

1. That pursuant to Sections 7 and 11 of the Australian Passports Act 2005 the mother, MS MIRA be and is authorised and permitted to apply for (at her expense) and receive renewed Australian passports for the children X born … 2005 and Y born … 2008 notwithstanding the consent of the father has not been obtained.

2. That pursuant to Section 11(1)(b) of the Australian Passports Act 2005 IT IS REQUESTED that the Australian Passport Office of the Department of Foreign Affairs and Trade do all acts and things to issue an Australian Passport in the name of the said children X born … 2005 and Y born … 2008.

3. That the mother is to retain the children’s passports and release same to the father 14 days prior to any international travel he intends to take with the children and has given notification pursuant to Paragraph 18 of this Order. At the conclusion of the travel the passports be returned by the father to the mother within 7 days of the father’s return to Australia.

4. The mother nominate to the Department of Foreign Affairs and Trade (“DFAT”) the mother and father as persons to be contacted in the event of an emergency. If it is not possible to include both parents, the father be the person nominated.

5. The mother provide the father with a copy of any application for a renewed passport not less than 7 days prior to submitting it and then provide the father with a colour photocopy of the personalised pages of the new passport within 7 days of issuance.

IT IS DIRECTED:

1. That the signed minute of consent as amended be marked Exhibit “A” and remain on the Court file.

IT IS FURTHER ORDERED:

1. That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

2. That all extant applications be dismissed and this matter be removed from the docket of the Honourable Justice Bennett

AND THE COURT NOTES

AThat in addition to the obligation in paragraph 18 of this Order it is intended that the travelling parent notify the non-travelling parent as soon as practicable of any planned overseas travel with the children prior to finalising arrangements for such travel.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mira & Carroll has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1258 of 2012

Ms Mira

Applicant

And

Mr Carroll

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me for the final defended hearing of parenting proceedings concerning X aged 12 years and Y aged 9 years.  The parties, through the assistance of counsel and the Independent Children’s Lawyer, have resolved all but one issue concerning the ongoing care of the children.  I agree with the submissions of Mr Barbayannis for the father that this is, in many ways, a sad and difficult case.  It has been the subject of considerable expert involvement and evidence.

2. I commend the parties for coming to the realisation that the difficulties in their family are not difficulties which are going to benefit to any great degree by being retained in the Court system.  The difficulties need to be addressed outside the Court system and therapeutically if they are going to be addressed and/or ameliorated at all.

3. The only issue that I am asked to decide is who should apply for and hold the children’s passports.  The current care arrangements, in respect of which I will shortly make orders, provide for the parents to have equal shared parental responsibility and for the children to reside primarily with the wife.  The father’s time with the children at the moment differs as between the children.  He has regular overnight and holiday time with Y, and he has much more limited time with X.  Hopefully, that may become less disparate in the future, but, at the moment, that is the arrangement.  There is also provision for ongoing and significant therapy and counselling.

4. The father’s proposal in relation to holding passports is put in the alternative.  It was handed up in a minute, which I will mark exhibit “H1” and direct remain on the Court file.  It seeks, as the first alternative, a continuation of an order made by me in 2016 which provided a fairly complicated and convoluted means of passports being lodged with the Registry Manager of this Court and then released upon proposals to travel and notification to the other parent.  I made that order in the context of the proceedings being ongoing, and it appears to me now to be too complicated. The order made on 17 June 2016 was an appropriate short-term order but not an appropriate long-term order when the parties are not coming back to Court for any other reason.

5. The second alternative for which the father applies is that each parent hold the passport of one child.  That replicates an order made in 2012 in proceedings which were then finalised.  In my view, that is not an order which is appropriate in the circumstances.  I think there is some possibility, albeit perhaps remote, that the children could detect some significance in relation to which parent holds on to his or her passport.  Most compellingly, however, it did not work when it was in force.

6. The mother’s proposal is contained in a minute of order, which I mark “W1” and direct remain on the court file.  It is that she be responsible for applying for passports as necessary and holding the children’s passports and that she provide them to the father within 14 days of any overseas trip which he plans to take with the children.  The planning of any such overseas trip is a matter which is otherwise governed by the orders to which the parties agree and requires 30 days notice.

7. Additionally, the mother would nominate the father and herself as persons to be contacted in the event of an emergency, if that is a field (as I understand it is) which must be completed for the passports of children.  If it is not possible to include both parents, it seems to me that on the mother’s then-proposal, the father should be the person nominated because the fact of the history of the matter indicates that the mother does more overseas travelling with the children than does the father, or that the father is likely to do in the immediate future.

8. The mother also agrees that she would provide a copy of any passport application to the father not less than seven days prior to submitting it and then provide the father with a colour photocopy of the personalised pages of any new passport which issues for either of the children.

9. In all parenting matters, it is the best interests of the children that are the paramount consideration.  In fact, it is the best interests of each child.  In this case, I am satisfied that the best interests of the children are served by a reasonably simple and uncomplicated system for holding their passports.  I have had the benefit of thoughtful and reasoned submissions by counsel for the parties and for the Independent Children’s Lawyer, and I have been assisted by all of the submissions.

10. I have been taken to affidavit material which details the difficulties that the mother had in obtaining the Y’s passport from the father when he held that passport pursuant to the orders made in 2012.  The father asserts that the mother has effectively failed to communicate with him in accordance with previous orders and has done as she wishes.  On my appreciation of the history of the matter, it appears more likely that he has failed to respond to the mother’s requests.  He has not acknowledged the requests or does not now recall having received the requests.  He falls short of saying he denies having done so.  It is a matter of lack of communication that is the difficulty, not which of the parents held the passports.

11. The father contends that his alternative orders are preferable, because whilst there might have been difficulty in the past, which difficulties he minimises or does not necessarily admit, the children have always travelled as planned.  That is correct, but it belies the fact that the mother has had what I consider to be undue and an inappropriate amount of difficulty in obtaining, for instance, Y’s passport in order to renew it for a trip of which the father had knowledge.

12. For reasons of convenience, and the orderly conduct of travelling abroad with these children, I am satisfied that the proposal of the mother is the proposal which best meets the interests of the children and will lead to the least disharmony in the future.

13. It is important, in my view, that the holding of the children’s passports is streamlined.  There has been a particularly litigious history in this matter.  Final orders were made in 2012 then these further proceedings were instituted in 2015.  I am advised by counsel from the bar table that the costs incurred by the parties have been significant.  In these 2015 proceedings which are now finalised, the husband has expended some $120,000 in costs and the mother $144,000 in costs.  That sort of expenditure is not expenditure which families can reasonably sustain, and I am particularly concerned to limit the need for further proceedings in the future between the parties. 

14. I therefore propose to make orders in the terms of that proposed by the mother with the additional amendments and concessions to which I have otherwise referred, and I do so. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 9 January 2018.

Legal Associate:

Date:  17 July 2018