Oskarsen and Camara

FAMILY COURT OF AUSTRALIA

OSKARSEN & CAMARA

[2008] FamCA 290

FAMILY LAW – CHILDREN – With whom a child spends time – Overseas holidays

Family Law Act 1975 (Cth)

APPLICANT:

Mr Oskarsen

RESPONDENT:

Ms Camara

INDEPENDENT CHILDREN’S LAWYER:

Tony Salce

FILE NUMBERS:	MLF	1798	OF	1997
CAC	1340	OF	2007

DATE DELIVERED:

26 February 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Carter J

HEARING DATE:

25 & 26 February 2008

REPRESENTATION

THE APPLICANT FATHER:

In person

COUNSEL FOR THE RESPONDENT:

Ms J S Elleray

SOLICITOR FOR THE RESPONDENT:

Bayside Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER

Mr N M Eidelson on the 25th February and Mr Salce on the 26th February

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER

Forte family lawyers

Orders

IT IS DECLARED that the text below is of the orders made herein by the Honourable Justice Watt on 24 June, 2005, as varied by orders made 16 October 2007 (which include orders additional to those of 24 June, 2005) and as further varied in accordance with the Reasons for Judgment of the Honourable Justice Carter delivered 26 February 2008 and are the parenting orders in effect as of this day.

IT IS ORDERED

Paragraphs 2 and 3 of the order made in these proceedings on 12 November 2002 be and are hereby discharged.
The child … born … October 1996 spend time and communicate with the father as follows:
(a)during each Victorian school term holiday for a period of seven days commencing on the first day of each school term holiday;
(b)during the long summer Victorian school holidays for 21 days commencing 2 January 2006 and every second year thereafter and from the first day of school holidays in 2006 and every alternate year thereafter; save that during the long summer Victorian school holidays in 2008/2009 the child shall spend time with the father for 28 days commencing on the first day of those school holidays;
(c)the said child shall spend Christmas with the parent with whom she is enjoying holiday contact pursuant to these orders;
(d)by email and letters (and the mother is to encourage the child to respond to emails and letters received from the father);
(e)by telephone once per week the mother to cause the child to telephone her father on mobile phone number … between 5:30pm and 6:00pm each Sunday such call to be at the mother’s expense, noting that the calls are to be up to thirty (30) minutes duration depending on the child’s capacity to sustain conversation for that duration and should be confined to child-related subjects;
AND THE COURT NOTES THAT the number that the child will be calling belongs to a SIM card in the father’s possession that is presently linked to an Optus account but in light of the mother’s statement through her counsel that she uses Vodaphone as a mobile phone service provider he will change the service provider for that SIM card to Vodaphone with a view to minimising the costs to the mother of the calls that are to be made by the child to that number
(f)such other contact as the parties may agree upon in writing.
That during the 2008/2009 long summer Victorian school holidays the child be permitted to depart the commonwealth of Australia with the father for the purposes of an overseas holiday in the Philippines and United States of America, noting the proposals set out in Exhibit “F1” in these proceedings.
That for the purposes of such overseas holiday:
(a)the Registry of the Family Court of Australia, Melbourne Registry, upon the request of the father, forthwith deliver up to him the child’s passport which is held pursuant to orders of this Court, noting that the passport has expired but may be of assistance in renewing or obtaining a further passport for the child as is hereafter provided;
(b)that the father Mr Oskarsen is permitted to apply for a passport, for … (the child) born … October 1996 without first obtaining the consent of the mother;
(c)that on or before 1:00pm on 16 January 2009 the father lodge the child’s new passport with the Melbourne Registry of the Family Court of Australia and that such passport be held there for safe custody;
(d)that in order to facilitate the said overseas travel and holiday any previous order of this Court restraining the father or the child from departing the Commonwealth of Australia or whereby the child’s name has been placed on any Airport Watch List maintained by the Australian Federal Police be suspended;
(e)that as soon as practicable the father serve a sealed copy of this order upon the Proper Officer of the Australian Federal Police at Melbourne and at Sydney and it is requested that the Australian Federal Police give full force and effect to this order;
(f)that the father provide the mother with the itinerary for the overseas holiday no later than 24 November 2008;
(g)no later than 60 days prior to the proposed departure date for the child’s overseas holiday, the mother provide to the father in writing or by email:
(i)the name of a pharmacist who can dispense the necessary drugs or medication to enable the child to be immunised;
(ii)the name of a general medical practitioner who can immunise the child
and upon receiving the names of the pharmacist and general medical practitioner referred to above, the father shall contact such persons and make arrangements to pay the costs and professional fees required by them for their professional services
(h)forthwith upon being notified that satisfactory arrangements have been made to pay the costs and professional fees referred to in par (4)(g) hereof, the mother shall arrange for the necessary immunisation for the child relevant to the overseas holiday;
(i)notwithstanding the order made pursuant to s 118 of the Family Law Act 1975 on 28 May 1998, the father is granted leave to bring an application to enforce compliance by the mother with par (4)(g) and/or par (4)(h) hereof.
In order to facilitate each period in which the child spends time with the father the mother shall deliver the child to the Tullamarine Airport in Melbourne and ensure the child travels to Sydney by air at the commencement of the said period and she shall collect the chid from the Tullamarine Airport in Melbourne upon her return at the conclusion of the said period and in the event of unforseen delay in the schedule arrival or departure time of a flight or interruption to flight schedules the father authorise a Qantas employee to advise the mother by telephone of same.
In order to facilitate each period in which the child spends time with the father the father shall collect the child at Sydney Airport at the start of the said period and he shall deliver the child to Sydney Airport and ensure she returns by air to the Tullamarine Airport in Melbourne at the conclusion of the said period and in the event of unforseen delay in the scheduled arrival or departure time of a flight or interruption to flight schedules the father authorise a Qantas employee to advise the mother by telephone of same.
Each party be at liberty to use an agent known to the child in relation to the collection and return arrangements, other than Ms MC, Ms KR or Ms JR and without limiting the generality of this order, the mother may appoint as agent for this purpose Mr WC, Mr AC, Mr NC and/or Mr TR.
The father pay all the costs associated with the child’s travel in order to facilitate each period in which the child spends time with the father.
The father arrange for the child’s travel on a Qantas flight from Melbourne to Sydney and from Sydney to Melbourne on each occasion when the child spends time with him (travel to Melbourne to be on a flight that arrives in Melbourne no later than 7:00 pm.) and advise the mother of the flight details by email no less than seven days in advance of each period of contact such email to be sent to …@hotmail.com .
The father facilitate the child receiving any calls placed by the mother to the child’s mobile telephone number … during periods when the child is spending time with him AND on each Sunday when the child is spending time with him cause the child to telephone the mother on mobile phone number …, such calls to be at the father’s expense, noting that the calls are to be up to thirty (30) minutes duration depending on the child’s capacity to sustain conversation for that duration and should be confined to child-related subjects.
That in order to facilitate each period in which the child spends time with the father, the father arrange for the child’s travel from Melbourne to Sydney and Sydney to Melbourne as provided in paragraph (7) of the orders of 24 June (“the 2005 orders”) (as varied) and, further :
(a)in the event a flight booked by the father is a standby booking, the father make that clear in the email sent pursuant to paragraph (7) of the 2005 orders and do all things reasonably necessary to ensure that the fact it is a standby booking will not result in the child travelling to Melbourne on a flight that arrives in Melbourne later than 7:00 pm.; and
(b)each party do all things reasonably necessary to complete the “Unaccompanied Minor” form provided by Qantas provided that the residential address provided by a party need not be his or her own residential address and may be the address of a relative or friend.
That until further order each of the parties keep the other advised of any change to his or her mobile phone number and the court notes that at this time:
(a)the mobile phone number of the mother is …; and
(b)the mobile phone number of the father is ….
That in order to facilitate each period of time in which the child spends time with the father the following provisions shall apply, until further order:
(a)each of the mother and father shall ensure that his/her mobile phone is turned on during a period commencing four hours prior to the flight on which the child is booked and concluding no earlier than:
(i)in the case of the parent resident in the place of the child’s destination, the arrival of the child; and
(ii)in the case of the parent resident in the place of the child’s departure,
a period of three hours after her actual departure on a flight;
(b)if a mobile phone number provided on the Unaccompanied Minor form is not that of the mother or father, the party who has provided details of that number do all things reasonably necessary to ensure that mobile phone is turned on during the periods referred to in sub-paragraph (13)(a) hereof; and
(c)each of the parties do all things reasonably necessary to ensure that the child is at the departure airport a reasonable time prior to the scheduled flight.
That the child attend for therapeutic counselling to assist her in dealing with difficulties she has had and is experiencing arising from, but not limited to:
(a)the long-term and on-going conflict between her parents and to which she has been exposed;
(b)her grief and loss following the death of her step-father; and
(c)any current problems in her relationship with her father.
In order to facilitate the aforesaid therapeutic process:
(a)the Independent Children’s Lawyer is requested to contact the Alfred Child and Adolescent Mental Health Service (“the Service”) to make arrangements for such counselling for the child to commence at the earliest practicable time;
(b)in the event that the child cannot be accommodated with the Service, Family Court Consultant, Mr S, is requested to provide the Independent Children’s Lawyer as soon as practicable with the names of three suitable psychologists or counsellors and the Independent Children’s Lawyer is requested to make the necessary arrangements with one of such psychologists or counsellors to enable counselling for the child to commence at the earliest practicable time;
(c)the Independent Children’s Lawyer is requested to ensure that the Service or any psychologist or counsellor appointed pursuant to these orders be provided with relevant information and documents including but not limited to:
(i)information as to the nature and history of the dispute between the father and the mother in this Court;
(ii)copies of relevant Family Reports;
(iii)a copy of this order.
(d)that the father and the mother comply with all reasonable requests of the relevant psychologist or counsellor and that the mother ensure the child’s attendance at any appointment made for her;
(e)that the father and the mother provide any necessary authority to the psychologist or counsellor to enable therapeutic counselling to be implemented;
(f)in order to avoid doubt, the father shall be permitted to attend (at his expense) any appointment or individual session arranged by the psychologist or counsellor but subject to the discretion and permission of such psychologist or counsellor.
Pursuant to s 65DA(2) and s 62B 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 set out in Annexure A and these particulars are included in these orders.
Subject to paragraph (18) of this order the mother have sole parental responsibility for the long-term care welfare and development of the child.
In the event that the mother, in the exercise of her sole parental responsibility for the child’s long term care welfare and development, intends to cause or permit the child:
(a)to change her usual place of residence to a place that is outside the Greater Melbourne Metropolitan area;
(b)      to travel overseas;
(c)      to change her religion (presently Roman Catholic);
(d)      to attend a school:
(i)that is not a state government school (or a Roman Catholic school); or
(ii)is not located in Victoria;
(e)      to undergo elective surgery for which parental consent is required;
she is to give the father notice in writing at least 60 clear days before the event takes place.
Noting the existence of order made pursuant to s 118 of the Family Law Act 1975 on 28 May 1998, and notwithstanding that order, the father is granted leave to bring an application:
(a)seeking to take the child overseas either for a specific journey or for periodic journeys of specified duration, for example, once per year for X days;
(b)asking the Court to restrain the mother from exercising her parental authority for long term decision making in accordance with written notice of intention to do so that he has received in accordance with paragraph 18 of this order;
(c)in the event that the father’s usual place of residence changes from Sydney he may apply to vary the orders pursuant to which the child spends time and communicates with him.
All documents produced on subpoena be returned to the person or institution providing the same.
All applications are otherwise dismissed and the matter may be removed from the list of cases awaiting determination.

IT IS CERTIFIED

That pursuant to r 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

IT IS NOTED that publication of this judgment under the pseudonym Oskarsen & Camara is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1798 of 1997

MR OSKARSEN

Applicant

and

MS CAMARA

Respondent

and

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

The child was about three months old when her parents first came to this Court seeking orders about her. She is now 11 and her parents are still in dispute about a number of matters which affect her welfare. The Court must determine those matters.

Background

The child was born in October 1996. Mr Oskarsen is her father and he will be referred to as such throughout these Reasons. Ms Camara is the child’s mother and she will be referred to as such throughout these reasons. The father was born in January 1958, and is presently 50. The mother was born in July 1968 and is presently 39. The mother has another son of a previous relationship, namely M. M is 18. The mother and M came to Australia from Africa at the end of 1995. The father and the mother met earlier in 1996, perhaps in late January, perhaps in early February. It is of no real moment for the present purposes. They did not cohabit but had a sexual relationship.
Towards the end of February 1996 the mother and M left Australia to return to Africa. The mother discovered she was pregnant with the child. There was communication and as a result the mother and M re-entered Australia on or about 1 May 1996. Thereafter the mother and father lived together in a de facto relationship as husband and wife until late in January 1997 when they separated. The first application in this Court was filed on 4 February 1997.
Final parenting orders were made by his Honour Mushin J on 28 May 1998. One of the orders his Honour made was a restraint against each of the mother and father from filing any further application in this Court without first obtaining leave of a judge, which application was to be made in the first instance on an ex parte basis. There has been litigation since that order was made. Most relevant to the present proceedings are the orders of his Honour Watt J made 24 June 2005. In her Reasons for Judgment given 16 October 2007 her Honour Brown J referred to the orders made by both these judges:
“[12]That the following applications filed by the parties be deemed to be applications for final orders :
(a)      form 2 application filed by the father on 9 July, 2007;
(b)amended form 2A application filed by the mother on 10 September, 2007; and
(c)      reply filed by the father on 12 October, 2007.
[13]     That the father have leave to withdraw the following applications:
(a)application for contravention filed on 9 July, 2007;
(b)application for contempt filed on 9 July, 2007.
[14]That the matter having been transferred to the Family Court of Australia at Melbourne by the Federal Magistrates’ Court at Canberra on 23 July, 2007, documents filed herein henceforth carry the proceedings number MLF 1798 of 1997.
[15]That pursuant to s.62G(2) of the Family Law Act 1975 a Family Report be prepared and released before 7 December, 2007 and each of the parties do all things reasonably necessary to attend appointments as requested by the family consultant, the mother to facilitate the attendance of [the child] as requested by the consultant.”
It is also relevant to note that there was a notation to the orders of Watt J, and it is in the following terms:
“The father intends to seek the mother's approval for [the child] to travel overseas no more than once in any 12 month period if circumstances permit and the mother believes that the money will be better applied to child support.”
The father moved from Melbourne, as had been foreshadowed when the proceedings were before Watt J, and has been living in New South Wales for a little over two years. He has married. His wife MA was born in October 1983 and the father and MA have a child K who was born in August 2006.
The mother also married. She has deposed that her husband suffered from metastatic colon cancer and it appears, regrettably, that he passed away relatively recently. The mother relocated to Melbourne on 5 May 2007 in circumstances, she alleged, were urgent and which related to her late husband’s illness. The father alleged, and it would appear correctly so, that the mother did not give him the requisite notice pursuant to the orders made by Watt J.
The father filed three applications in the Canberra Registry of this Court on 9 July 2007. One was an application by way of a Form 2 to vary the existing contact orders, as they were called. There were two other applications, one of which was a contravention application alleging a number of breaches of Watt J’s orders and there was a further application seeking that the mother be dealt with for contempt relating to some of the alleged breaches of his Honour’s orders.

Proceedings eventually came before Brown J on 16 October 2007. Her Honour’s Reasons for Judgment are on the Court file. As she explained in pars 9 and 10 of those Reasons there was discussion about her Honour’s suggestion to the father as to the desirability, as her Honour saw it, of a focus upon the child and the variation of parenting orders rather than the matters involving alleged contraventions or contempt. The implication of withdrawal of those applications was explained to the father, and, as her Honour recorded in par 11, eventually she gave him leave to withdraw the applications. She did not make any determination of them.
In the proceedings before Brown J the parents agreed that the orders made by Watt J needed to be varied at least to give effect to the fact of the parents respective relocations. Her Honour made further orders which were designed to cover the immediate future periods when the child was to spend time with the father and the arrangements which needed to be made. She dealt only with the most pressing issues. Her Honour was concerned about the effect on the child of the continuing litigation, and determined to give the matter some priority. To this end she made orders for the preparation of a Family Report to be released by 7 December 2007. She appointed an Independent Children’s Lawyer, who will be referred to hereafter as the “ICL”, and she arranged to have the matter listed for directions before herself on 13 December 2007.
Having made orders varying the orders of Watt J of 24 June 2005, and in some instances adding to those orders, her Honour directed the preparation of a collated order containing the text of the earlier orders as varied, and all variations were to be marked in bold type. The collated order was dated 16 October 2007. On 20 December 2007 her Honour made trial orders fixing the matter for hearing on 25 February 2008. In par 5 of those orders she detailed which of the father’s applications were adjourned for hearing, and in paragraph 6 she detailed which of the mother’s applications were adjourned for hearing.
Amongst other things, the father was to provide by 25 January 2008 a letter to the mother, the ICL and the Court setting out with specificity the orders he sought in relation to his application to take the child out of Australia for three weeks in the summer school holidays in Victoria in 2008/2009, together with consequential arrangements and orders relating to a new passport. In turn, the mother was to provide by 1 February 2008 a letter addressed to the father, the ICL and the Court specifying which, if any, orders sought by the father she opposed and what orders, if any, she would seek in respect of overseas travel for the child, consequential arrangements and the child’s passport.
The father, who acted for himself, did not, strictly speaking, comply with the order. He did however set out in a letter dated 22 January 2008 his proposals, which, amongst other things, were to take the child to the Philippines for 10 days and then travel on to the United States of America where a further 10 days would be spent. The departure was to be on 22 December 2008, provided there was no difficulty with those arrangements, and, if so, the impact of any delay would be on the time to be spent in the Philippines.
The father was entitled, pursuant to the earlier orders, to have 28 days with the child, and it can be seen from his proposal that not all of this time would be spent overseas. The proposed travel included a visit to Disneyland, and the father also detailed in his letter matters incidental to the overseas travel (see Exhibit “F1”).
The mother responded to this, and in an affidavit filed 15 February 2008 she detailed her opposition to the father’s proposals, commencing at par 12 under the heading “Father’s Proposal for Philippines Holidays”. It is convenient to note here that there was no reference made to that part of the proposal which involved travel to the United States of America. Save perhaps for a very small part of the first sentence in par 20, the focus was on travel to the Philippines.
The parents and the child were interviewed by Mr S, a Family Court Consultant on 30 November 2007. Mr S observed the interaction between each of the parents with the child, although the report seems to be more focused in this regard on the interaction between the child and her father. The parents were able to reach agreement on certain matters, as is recorded in pars 11, 12 and 13 of the report. Additionally, it was recorded in that report that the father was no longer pursuing an earlier application for the child to be returned to Canberra and he was seeking effectively only the enforcement of the orders which Watt J had made.

Hearing

The father appeared in person; the mother was represented by Ms Elleray of counsel and the ICL was represented by Mr Eidelson of counsel. When the proceedings commenced before me the father confirmed that he wished to proceed with the applications detailed in par (5)(a), (b), (c) and (d) of the orders of Brown J made 20 December 2007.
The father told me, however, that he was agreeable to orders reducing the time to be spent with the child during long summer Victorian school holidays from 28 days to 21 days, save for the holidays in the 2008/2009 period. He told me that he acceded to the child’s wish in this reduction, as he also did in respect of his changed proposal to reduce telephone contact to one phone call each week. However, he did continue at that stage to maintain his preference for a period of 10 days to be spent in the Victorian school term holidays. Subsequently, he changed his position in this latter regard and agreed that the period should be reduced to seven days.
One of the most contentious issues was the question of overseas travel. When the matter commenced the mother was not present, for reasons largely unknown to me, save that she had been delayed. Ms Elleray had not had the opportunity of a conference; nonetheless, was able to and did advise me that the mother opposed overseas travel because the Philippines was not a convention country. The reference here was to Schedule 2 to the Child Abduction Regulations. Indeed, according to Ms Elleray, the mother sought an injunction. She told me that it was the mother’s case that the father had threatened not to return the child. She was at that stage largely unable to tell me which of the husband’s other proposals were agreed or disputed. After the mother arrived, I permitted Ms Elleray to confer with the mother. Thereafter, there were further discussions between Mr Eidelson and the parents. The matter resumed shortly before the Court was due to adjourn for lunch, and Ms Elleray provided me with a handwritten document, which had been prepared at my request, outlining the mother's proposals. That document will remain on the Court file.
Paragraph (d) of the proposals, amongst other things, sought an injunction against the father restraining him from taking the child to “non Hague convention countries. Notwithstanding that, I was later to be told that the mother objected to the child being taken to any overseas destination by the father.
The parents, with the assistance of Mr Eidelson, were able to reach agreement on a number of matters. Relevantly and significantly, they agreed that paragraph (8)(a) of the collated orders was to be extended to apply to all interstate travel, not just the travel in the 2007/2008 Victorian long summer holidays. Another issue had been whether flights to and from Victoria should be from Tullamarine Airport or Avalon Airport. That also ceased to be an issue.
The parents agreed that telephone communication was to take place between 5.30 and 6 pm on each Sunday, with the child to initiate the call to whichever of her parents with whom she was not then living or spending time.
The father had originally proposed that the costs of a new passport for the child should be borne equally between both parents but later agreed to bear the totality of those costs. The parents had also been in dispute in relation to certain aspects of the payment of costs occasioned by any vaccinations which the child might need to have if she travelled overseas. The dispute really went to the mechanics of this, the father having agreed to be responsible for the costs. This too is a matter which needs to be resolved by the Court.
Another issue which the Court must resolve concerns therapeutic counselling for the child. This had been recommended by Mr S. It was also his recommendation that the father should be included in the process. This emerged from p 13 of the Report, although it did not find its way into the individual recommendations which are set out on p 14. The mother does not oppose therapeutic intervention but does oppose the father’s participation in the process.

Evidence

The father relied on two affidavits which he swore or affirmed on 11 October 2007, both of which were filed 12 October 2007. For convenience, the affidavit numbered 11 on the Court file was referred to as the father’s first affidavit filed 12 December 2007 and the affidavit numbered 12 on the Court file was referred to as the father’s second affidavit filed 12 October 2007. The father also relied on a Financial Statement filed 19 February 2008.
The mother relied on her Amended Response filed 10 September 2007; and her affidavit filed 15 February 2008, which in turn referred to affidavits filed 23 July 2007 and 10 September 2007. She also relied on her Financial Statement filed 15 February 2008.
As already recorded, I had the benefit of the Family Report which was dated 12 December 2007. Mr S was not called for cross‑examination.
Given some deficiencies in the father's written material, I elicited some additional evidence-in-chief from him. Ms Elleray cross-examined him briefly. There was no cross-examination of the father on behalf of the ICL.
The mother was cross-examined briefly by the father. Limited but helpful cross-examination by Mr Eidelson also took place. There was no application for the mother to give any viva voce evidence-in-chief.

Legal principles

These proceedings relate to a child and they are to be determined by reference to Part VII of the Family Law Act 1975 (“the Act”). There is a certain artificiality in dealing with the statutory provisions in the framework or along the pathway which is usually trodden. Nonetheless, I wish to make it clear that I have had regard to the Objects and principles of the legislation set out in s 60B. I have regard to s 60CA which instructs the Court that the welfare of a child is the paramount consideration to be looked at in deciding whether to make a particular parenting order. “Paramount” does not mean the sole consideration, of course.
Section 60CC is a section which tells the Court how it must determine what is in a child's best interests. The primary considerations are set out in s 60CC (2) and there are additional considerations which are set out in s 60CC(3). The parties agree that the child should be encouraged to maintain a close and positive relationship with both parents. That was a matter recorded in the Family Report. The question to my mind is how they are to go about this, given their relationship with each other. This is probably the most relevant of the matters to be taken into account, although I will return shortly to discuss the child’s wishes.
Section 65Y is also a section of the Act which is of substantial relevance to the present proceedings. That section provides that if there is a parenting order in force then a person who was a party to the proceedings in which the order was made or a person who is acting on behalf or at the request of such a person must not take or send the child concerned from Australia to a place outside Australia, except as may be permitted by s 65Y (2).
Section 65Y(2) sets out when it is not prohibited to take or send a child from Australia. Those occasions are when the removal is done with consent in writing (which must be authenticated as prescribed) of each person in whose favour the parenting order was made, or, alternatively, if it is done in accordance with an order of the Court made under Part VII or under the law of a State or Territory at the time or after the making of the order referred to in the s 65Y(1).

Discussion

Mr S did not consider the question of overseas travel.
The father does not have any personal connection with the Philippines, save that his wife comes from that country. In his evidence-in-chief he explained to me that it was intended and desired that Christmas would be spent with his wife Ms MA’s extended family. There was to be something of a family reunion or gathering, at least of the closer members of Ms MA’s family. He told me that the child had made a number of friends on earlier trips which she had undertaken and she had kept up contact by Yahoo. The proposal was then to travel to Florida. Because of his employment, which is with a travel company, the father has available to him a free pass for the whole family to go to Disneyland.
In addition, the father has benefits deriving from his employment such that the airfares will cost $220 per person; that is for himself, for Ms MA and for the child. The husband’s evidence is that his employer company has been sold to another company and there is some uncertainty as to whether these benefits will continue. His evidence was that he was currently working on a full-time basis but he was employed as a permanent part-time employee and his hours could be reduced or increased in accordance with his employer's determination.
The father’s wife, Ms MA is working on a part-time basis in Australia. She has some relations in Melbourne and she intends to take out citizenship, when possible. Further, MA’s parents are desirous of relocating to Australia. The father and Ms MA have recently purchased a home in Sydney and it is in Australia, on the evidence, that the father sees his future and the future of his own family.
On the mother’s evidence, the child does not want to go to the Philippines. The child told Mr S that in respect of school term breaks she wanted to spend most of her time in the holidays with her mother. She complained also of problems or dislike of waiting at the airport for flights. She was recorded as having made a number of negative statements when asked in general terms about recent visits with her father. She was not very positive - although not as critical, I might say - in respect of Ms MA, but she was very positive about K, in the sense of saying to Mr S how much she liked seeing him. Thereafter, according to Mr S, the child’s comments about her father became increasingly negative and they were noticeably disconnected from each other.
Mr S has listed at p 10 of his report what the child told him, which includes statements to the effect that she did not want to see her father any more; that he talks about court cases on the telephone all the time; she called somebody from Kids Helpline, as it turned out, and talked to her about it, which made her feel better (I note that the child told the Family Consultant that her mother gave her the telephone number); she said she wanted to stop the Court cases and get a decision, she felt tied up and wished that the judge could be in her shoes and see how she feels.
The child described living with her mother and half-brother, M, and this is recorded in par 34 of the report. She described it as being “quite okay”. She went on to say that most of the time M was not there, which meant more time with her mother. She also spoke of her mother’s late husband, saying that, while he was all right, she did get upset when her friends kept asking about it. Thereafter, Mr S recorded his observation of the child with her father, which covered a period of about 10 minutes only. The child was generally unresponsive and did not initiate any conversation.
The mood in the room was tense and uncomfortable, according to the Report. The father had some limited success in getting the child’s interest when he introduced photographs of K and of the child and K together. However, according to Mr S, the father assessed the situation accurately and he decided to end the session by saying goodbye politely and warmly to the child, and, relevantly, to my mind, without reproach.
I approached the expression of the child’s wishes in the context of part of par 38 of the Report which notes that having lived with her mother all her life, including the shared trauma of the loss of her mother’s partner, it is clear that the child has become aligned with the mother in response to her parents’ ongoing conflict. I also look at it in the context of the mother’s evidence, as it emerged during cross-examination.
The mother told the father when he was cross-examining her that the child was not happy on the last occasion when she travelled to the Philippines, and it should be recorded here that there have been two occasions when the child did travel there. She went on to say that she did not think that the father would bring the child back, saying that this was because he was angry with the child. She added that the father had a Filipino passport, that the father wanted custody. There were matters which had been set out in her affidavit material to some degree.
For example, in par 13 of her affidavit, filed 15 February 2008, the mother said that the child had told her that during recent telephone communication with the father he had been angry towards her for telling the report-writer that she wanted to spend more time at home with her mother and her friends and less time away with him. He expressed concern as to what he might do, given this anger he was feeling as expressed to the child. The thrust of what the mother has said during this cross-examination was illogical. There was no basis upon which her assertion that the father had a Filipino passport or could obtain residency in the Philippines could be sustained.
When cross-examined by Mr Eidelson, the mother agreed that she was deeply suspicious of the father and that this was based on feelings which were entrenched within her. She was convinced that the father wanted to hurt her; she was convinced that he did not care about his daughter; she was convinced that he would break Australian law and effectively make himself a fugitive in order to hurt her. Nothing that the father said or did would persuade her to the contrary. She acknowledged that in 2003 and again in 2004 the father was permitted by the Court against the mother's opposition to take the child overseas and, on both occasions, the child returned safely.
The mother had expressed on both those occasions her concerns and fears about the father and his motivation. She agreed that the opposition that she made to the present application and the attitude which she had taken in the present proceedings was the same as it had been five years ago when the respective trips were mooted. The only difference she could point to was that the child was 11 and she, the mother, could not "keep forcing her" to go. She did agree - begrudgingly, in my view - that some of the time was good; that is, the time that the child had while she was away. This was by no means, on the wife's evidence, the majority of the time.
The mother’s evidence effectively was limited to travel to the Philippines. However, she would not agree to any overseas travel whatsoever, even to the United States of America, which is a signatory to the relevant convention.
I prefer the father’s proposals which were supported by the I C L.
The structure of the proposed travel appeals to me. The child may not be particularly enthusiastic about being in the Philippines, although I am not altogether convinced about that. However, she can - and, I have no doubt, will - look forward to the next leg of the travel, and in particular to Disneyland. What child would not?

The period that she should spend with her father during 2008 to 2009 under the orders as they presently stand is 28 days. Thereafter, the period will be 21 days. Time should be allowed both before and after the actual dates of the travel, but within that 28-day period. The child’s entitlement is to spend time with her father from the last day of term. The last day of term for the year 2008 is Friday, 19 December; and the first day of the school holidays is the next day, Saturday, 20 December. I will make orders which will be to the effect that the father will have leave to take the child out of the Commonwealth of Australia during the period of time - that is, the 28 days, that she would be with him, pursuant to the orders as they presently stand, for the purposes of a holiday in the Philippines and the United States of America.
The period is to be 28 days on this one occasion, noting that it is common ground that thereafter the period will be 21 days. I am comfortably satisfied that the child will be returned. I am comfortably satisfied that she will indeed enjoy herself. This will be particularly so if her mother lets her.
The mother had made an application for an injunction prohibiting the father taking the child on any overseas travel to any non-Hague convention country and I think this was in fact extended to amount to a blanket embargo on any overseas travel to any country, be it a Hague convention country or otherwise. That application will be dismissed. There is no need for such an order and, in any event, in my view, the mother did not make out a sufficient case to warrant it.
Another issue between the parties was the costs of vaccination should it be necessary for the child to have preventative medical treatment prior to travelling to the Philippines. It is by no means clear to me whether she will. On one hand, the evidence is that most recently she only needed to take malaria tablets, but in any event the matter should be investigated and proper precautions taken. The father is prepared to pay for the costs of this. The parties could not agree as to how this could be implemented. In the event, I will make an order in terms suggested by Mr Eidelson and I will retain that proposal, which is by way of a minute, on the Court file.

Therapeutic counselling

I accept Mr S’s evidence as to the need for this child to receive some therapeutic counselling. This is a matter also referred to by Brown J. If the parents agree that the child should be encouraged to maintain a close and positive relationship with both her parents, both should be of course in agreement that what appears to be a difficulty in the relationship with her father should be addressed at an early stage. As Mr S observed and as is the case, these parties have been in conflict in Court over a period which covers almost the totality of the child’s life.
I accept Mr S’s professional conclusion that this has had an inevitable and significant effect on the child, particularly as she is reaching an age where she is beginning to make decisions more independently. I accept that the child is acutely aware of many of the areas of dispute between her parents. Neither parent spoke positively to Mr S about the other and this approach was reflected in their affidavit material. The respective views of the parents were outlined in par 38 of Mr S’s Report and I accept his observation that, most unfortunately, neither party was likely to change or improve their view of the other in the foreseeable future.
Throughout the proceedings the father can be noted as having adopted a conciliatory approach. I wish I could say as much for the mother, but I cannot.
I accept Mr S’s opinion as expressed in par 40 that it is important as the child approaches her adolescence for her to have the opportunity to develop her relationships with her father and younger half-brother, to their full potential in the hope that they will continue through to her adult life.
Significantly, Mr S went on to say that, if this is to occur, efforts must be now made to limit potential for long-term damage. I accept that opinion and it echoes my own. At par 43 of the Report, the Family Consultant noted that it was a positive step for the child to be attending individual therapeutic counselling. He went on to say that, although the mother and the father did not agree on the causes of the stress in the child’s life, in that each tended to blame the other for the problems in her relationship with her father, they were united as parents in wanting to see their child emotionally secure and happy.
It should be noted here there has been an impact on the child’s wellbeing which has manifested itself in her having headaches to the extent that the mother has taken her and had her examined to ensure that there is no organic cause. It is more probable than not, in my view, that these are stress-related. Mr S expressed the view that the father should be included in the process of the child’s therapeutic counselling, possibly consulting with and receiving feedback from the child’s psychologist, as he or she may deem appropriate.
The mother opposes this. She does not want to reveal to the father the name of a therapist, about whom she has been informed. She says in her affidavit, filed 15 February 2008, that the child has told her of certain matters, relayed by the father to her, namely that he would bring every therapist or psychologist to Court. It is the first sentence in par 8 of that affidavit. I do not accept and am not persuaded by this. The assertion is vague, uncertain; it lacks specifics as to the date of the alleged discussion; nor do I know how or in what circumstances the conversation arose. The father was not cross-examined about it.
In any event, the extent of the father's involvement, and in particular the extent of any consultation with a psychologist, will be as determined by that psychologist. I agree that the psychologist should be aware of some of the history, at least of the proceedings between the parties, and I will in due course direct the I C L to provide such information and documents as may be appropriate in this regard, including, for example, relevant family reports and earlier judgments. I will ask Mr S to nominate an appropriate psychologist.
The orders I make will be to give effect to these Reasons for Judgment. They will be made in chambers and will be issued from chambers. By way of summary, there will be orders to reduce the school term holiday periods, when the child spends time with her father, to seven days. There will also be an order that, save for the 2008/2009 long summer vacation, the period of time the child spends with her father will be reduced from 28 days to 21 days. For the 2008/2009 period, the period will be 28 days, during which time the father will be at leave to take the child overseas.
Telephone communication will be, by consent, reduced to one occasion each week on a Sunday between 5.30 pm and 6 pm. Paragraph 8(a) of the collated orders will be extended to all periods of contact during long summer vacation in school term vacations. There will be further orders relating to vaccination, therapeutic counselling and the overseas travel, which were the orders of the Court.
I will also make an order dismissing all the remaining applications which are before the Court.
I note both parents say they really do not want to come to Court any more. I must say the solution is in their hands. To continue their dispute carries the risk of endangering their daughter and her future wellbeing.
I should also perhaps remind both parties that the orders made by Mushin J, which restrained them from bringing proceedings in the Court without leave, save as was encompassed in the orders made by Watt J, remain in force. In other words, any application other than those foreshadowed in Watt J's orders must be the subject of an ex parte application to the Court, effectively for screening to determine whether or not the application is of sufficient importance or embodies sufficient alteration of circumstances to warrant the matter being re-litigated.
Bear in mind, the restraining order continues. I am not being asked to discharge it and I do not do so.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:

Date: 24 April 2008

[2008] FamCA 290

26 February 2008

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