Petit and Jacaruso - [2010] FMCAfam 450

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PETIT & JACARUSO

[2010] FMCAfam 450

FAMILY LAW – Application for final parenting orders – previous orders in United States and proceedings in Australia – orders in United States registered in Australia – time for child to spend with the father – question of equal shared parental responsibility – final orders in child’s best interests.

Family Law Act 1975 (Cth), ss.60B, 60CC, 61C, 61DA, 65DAA, 70J

Goode & Goode [2006] FamCA 1346
Taylor & Barker [2007] FamCA 1246
Starr & Duggan [2009] FamCAFC 115
Re F: Litigants in Person Guidelines [2001] FamCA 348
U v U (2002) FLC 93-112
Saunders & Saunders (1976) FLC 90-078
Mazorski & Albright (2008) 37 Fam LR 518
Moose & Moose (2008) FLC 93-375
McKee v McKee [1951] AC 352
Kades v Kades (1961) 35 ALJR 251
MW v Director General, Department of Community Services [2008] HCA 12
Trnka (1984) FLC 91-535
Leggett v Domroese (1996) FLC 92-666
MRR v GR [2010] HCA 4
Chappell & Chappell [2008] FLC 93-382
Lansa v Clovelly [2010] FamCA 80
N v M (2006) FLC 93-296
Owens & Owens (No.2) [2010] FMCAfam 2
State Central Authority & Quang [2010] FamCA 231
Oscar & Traynor [2008] FamCA 95
Collu v Rinaldo [2010] FamCA FC 53
Hall & Hall (1979) FLC 90-713
G & C [2006] FamCA 994

Applicant:

MR PETIT

Respondent:

MS JACARUSO

File Number:

SYC 7493 of 2008

Judgment of:

O’Sullivan FM

Hearing dates:

22, 23 February & 4 June 2010

Date of Last Submission:

4 June 2010

Delivered at:

Melbourne (by telephone link)

Delivered on:

18 June 2010

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondent:

Mr Eggleston on 22 & 23 February 2010

Mr Foster on 4 June 2010

Solicitors for the Respondent:

Slade Manwaring Solicitors

Counsel for the Independent Children’s Lawyer:

Mr Jackson

Solicitors for the Independent Children’s Lawyer:

Redleaf Family Lawyers

ORDERS

That all extant parenting orders be discharged.
The parties have equal shared responsibility for the child [X] born [in] 1997 (“[X]”).
That [X] live with the Mother.
That the Father spend time with [X] as follows:
(a) The July New South Wales gazetted school holidays:
(i)For two weeks starting and concluding in Australia, in 2010 on the last Friday on the 2nd school term, and concluding on the last Saturday of such school holidays;
(ii)For two weeks starting and concluding in the United States of America, commencing in 2012, and thereafter every even number year, commencing on the last Friday on the 2nd school terms, and concluding in the United States on the last Saturday of such school holidays;
(iii)For two weeks starting and concluding in Australia, commencing in 2011, and thereafter every odd number year, commencing on the last Friday on the 2nd school terms, and concluding in the United States on the last Sunday of such school holidays;
(b)
The September/October 2010 New South Wales gazetted school holidays for two weeks in the United States from Friday,

24 September 2010 until Sunday, 10 October 2010;
(c)The December/January New South Wales gazetted school holidays commencing in December 2010;
(i)For two weeks in Australia being from 26th December, and thereafter every even numbered (December year); and
(ii)For two weeks in the United States being from 23rd December, and thereafter every odd numbered (December year).
That for the purposes of all changeover in Australia, the parties will mutually agree on a suitable location, but failing agreement the Mother will deliver [X] to [omitted] Shops at the commencement of the Father’s time and the Father shall return [X] to [omitted] Shops at the conclusion of the time.
That for the purposes of all changeover in United States the parties will mutually agree on a location, and [X] may either travel under a respective Airline Policy, such as the Qantas' Children Travelling Alone or United's Unaccompanied Children programs, or the Mother may accompany her at her own expense.
The Mother is prohibited at times from contacting [X] during the periods that she spends time with the Father as set out in order (4) herein.
For the purposes of implementing the provisions stated in order (4) herein, the following provisions will apply:
(a)the parties will communicate by email at least two months prior (except for the July 2010 period which will be as soon as possible) to the proposed overseas travel for all and use their best endeavours to reach agreement on the precise dates in the school holiday periods that the travel shall occur;
(b)the Mother will book the airfares for herself, if she chooses to travel, and [X] for the travel to and from the United States; and
(c)the Mother will pay for all travel costs for herself (should she choose to travel), the Father will pay for all travel costs related to himself and [X], and that the Father can make any application to the relevant child support authority to deduct all travel costs paid by him from the relevant child support assessment currently being paid to the mother in recognition of travel expenses.
That the Father shall communicate with [X], whereupon at all times, the Mother is responsible for ensuring that [X] receives such communication as initiated from the Father, but whereupon such communication will be with no oversight or interference by the Mother:
(a)by telephone and Skype whenever is convenient, but at least twice per week for a minimum of 30 minutes each time. The mother shall initiate one of the calls at 9:00 AM every Saturday by Skype, or at a time that is convenient for both parties on that day, but that the father not be required to call a cell phone due to the prohibitive cost of the calling party within Australia;
(b)by mobile telephone, and that the Father be provided with the cell phone number of [X] at all times, and be allowed to send and receive text messages from her;
(c)by any other means of electronic communications, including sending and receiving emails with [X] or communication with her via Facebook or other social networking sites.
The father, his servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the mother to or in the presence or hearing of [X] or any of them, and from permitting any other person so to do.
The mother, her servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the father to or in the presence or hearing of [X] or any of them, and from permitting any other person so to do.
That both parties be restrained from discussing these proceedings with [X], and/or showing her any Court documents relating to these proceedings.
That the Mother shall ensure that the Father receives any communication including school reports from the [X]’s school, and that the Mother will provide all Report Cards from school within one week of receiving them herself.
The process to be used for resolving disputes about the terms or operation of these Orders including any dispute in relation to the operation of these orders and/or Order (2) herein including major long term issues affecting [X] as defined in section 4 of the Family Law Act 1975 (“the Act”) shall be as follows:
(a)they shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;
(b)they shall pay the costs of the Family Dispute Resolution Practitioner equally;
(c)in the event that they can not agree on a Family Dispute Resolution Practitioner, the Mother shall nominate three practitioners and advise in writing details of their fees, experience and availability;
(d)the Father shall choose on of the listed practitioners within seven days of receipt of the list;
(e)if the Father fails to choose the Mother may choose; and
(f)the father be at liberty to attend by telephone or video link (at the discretion of the Family Dispute Resolution Practitioner).
That for the purposes of Order (14) the parties shall each follow all reasonable recommendations of Family Dispute Resolution Practitioner, including completing all recommended courses and accepting referrals to other agencies.
The father and the mother:
(a)attend and complete, as soon as practicable, the Parenting Apart post separation parenting program or other similar program ("the Program") at an organisation as nominated by the Independent Children’s Lawyer;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the Program to the other parties’ or their solicitors.
That the parties notify the other as soon as reasonably practicable of any serious accident or illness affecting the child whilst the child is in their respective care.
That the parties notify the other within 48 hours of any change to their residential address, email address, landline telephone number and mobile telephone number.
The mother authorise [X]’s school to provide to the father, at his expense (if any) of all school reports, notices, newsletters and applications for school photographs and the like.
The Independent Children’s Lawyer meet with [X] and explain the operation of these Orders to the child within 7 days.
That before an application is made to a Court for a variation of these Orders to take into account the changing needs of [X] the parties are to take the steps in Orders 14 herein.
That if necessary the father register these orders with the relevant Court in the United States.
The Independent Children’s Lawyer not be discharged until:
(a)she has nominated a Parenting Apart post separation parenting program; and
(b)the father if necessary registers these orders pursuant to order (22) herein.
Pursuant to ss.65DA(2) and 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.
That all extant applications are otherwise dismissed and removed from the Pending Cases List.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

SYC 7493 of 2008

MR PETIT

Applicant

And

MS JACARUSO

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern an application for parenting orders under the Family Law Act 1975 (“the Act”).
The parties to these proceedings told the Court the case related to a dispute over parenting orders for the child of their relationship, [X], born [in] 1997 (“the child”).
Whilst both parties pursued different parenting orders (and, albeit only initially, the father made an application for the child to move to the United States) ultimately, at the final hearing they narrowed their dispute to six issues.
However, their conduct, material and presentation before the Court left the impression that there was a hidden agenda to the current dispute.
The background to these proceedings may provide at least some indication of the genesis of that hidden agenda and why decisions made long ago continue to haunt these two parents who have allowed the palpable enmity they have for each other to affect the child.
The applicant, Mr Petit (“the father”) is 45 years old. The father has tertiary qualifications in [omitted]. The father lives in New York in the United States and holds a senior executive position with [omitted].
The respondent, Ms Jacaruso (“the mother”) is also 45 years old. The mother also has an [qualifications omitted] and works as a [omitted]. The mother lives in Sydney with the child.
The father was born in the United States and the mother in China.

The parties met whilst studying in the United States and married there [in] 1993.
The child was born [in] 1997 in [A], in the United States. Shortly after the child was born the father went to live in California and the mother and the child remained in [A]. The parties separated in or around October 1997.
The mother commenced proceedings against the father in the Superior Court of Dekalb County in the State of Georgia on 1 October 1999. There were orders made by that Court on 2 November 2001 and shortly thereafter the mother and the child left the United States and arrived in Australia on 5 December 2001.
Then there followed a series of proceedings in the Family Court of Australia. On 18 September 2002 the NSW Department of Community Services, as the relevant state authority, commenced proceedings in the Family Court of Australia under the relevant sections of the Act giving effect to the provisions of the Hague Convention.
On 6 December 2002, Johnston JR pronounced orders that required the child to be returned to the United States. The mother sought a review of that decision. On 7 March 2003 Rowlands J in the Family Court of Australia upheld that decision and made orders that effectively required the child to be returned to the United States.
The mother then appealed to the Full Court of the Family Court and on 18 September 2003 the Full Court upheld the mother’s appeal with the result that the child was not required to be returned to the United States. The Full Court referred to the orders in the U.S Court in paragraph 10 above and noted the mother could file an application for parenting orders under the Act. In that decision, having upheld the mother’s appeal, the Full Court said inter alia:
“Proposed orders
71.The consequence of the appeal succeeding on the basis that it has, being that the removal in this case was not a removal within the meaning of the Regulations, means that not only must the orders of Rowlands J and of the Judicial Registrar Johnston concerning the surrender of the child’s passport and the placing of the child’s name on the PACE alter system, should be set aside. In addition she seeks an order for the return of the child’s passport which is held by the Registrar of the Sydney Registry of the Family Court.
72.The mother also seeks that an order restraining her from removing the child from Australia, which was made by Judicial Registrar Loughnan on 19 September 2002, together with orders made on 26 September 2002 by Judicial Registrar Johnston concerning the surrender of the child’s passport and the placing of the child’s name on the PACE alter system, should be set aside. In addition she seeks an order for the return of the child’s passport which is held by the Registrar of the Sydney Registry of the Family Court. We consider that the appropriate course is for the mother to make an application at first instance for such orders but with such application to be made only after the expiration of 28 days from the date of our orders.”
In the proceedings before this Court the evidence was that the mother had not commenced proceedings after the Full Courts decision and she claimed this was due to financial constraints.

Proceedings in the FMC

The father commenced these proceedings by an application which sought inter alia parenting orders for the child on 17 December 2008. The father had also filed a ‘contempt’ application at the same time. There were orders made on 3 February 2009 by Kemp FM as follows:
“THE COURT ORDERS THAT:
1.The matter be adjourned to 18 March 2009 at 9.30 am for mention. Leave to the father to appear by telephone on that occasion, by telephoning the Court on the number provided to him today.
2.Pursuant to s.11F of the Family Law Act 1975, the parties attend a Child Dispute Conference with a Family Consultant nominated by the Child Dispute Section in this Registry at 2:00 pm today and pursuant to section 11C of the Act, such conference be reportable.
THE COURT ORDERS BY CONSENT AND PENDING FURTHER ORDER THAT:
3.Orders be made in accordance with paragraphs 1, 2, 4, 5, 6 & 7 of the document titled “Short Minute of Orders,” dated 3 February 2009 and initialled by me and placed with the papers as follows:
a.That the parties be restrained from discussing the content of these proceedings with [X] born [in] 2007 (sic)(“[X]”).
b.That up until 8 February 2009 that the father be restrained from contacting the Mother or [X] at home, school or otherwise, except as prescribed by orders of the Federal Magistrates Court.
c.That the Father spend time with [X] on a without admission basis as follows:
i. From Thursday, 5 February 2009 for 2 hours (4:30 pm to 6:30 pm) for a meal at [omitted] shops; and
ii. From Friday, 6 February 2009 for 2 hours (4:30 pm to 6:30 pm) for a meal at the [omitted] shops.
d.That the Father’s time pursuant to Order 2c above, be supervised by [D], who will be responsible for the collection and return of [X] to her Mother’s residence.
e.That the parties shall share equally the cost of [D] and shall arrange to be invoiced separately.
f.That the Father may communicate by telephone [omitted] with [X] on 4 February 2009 at 5:30 pm and may speak to [X] for as long as she wishes and up to 2 hours.
g.That an Independent Children’s Lawyer be appointed for [X].
4.The Father notify the Mother’s solicitor of any intention to travel to Australia, fourteen (14) days prior to any proposed travel.
5.The Father to have telephone communication with [X] on Saturdays for one hour 11:00 am Sydney time.
THE COURT FURTHER ORDERS THAT:
6.Further to Order 3g above, pursuant to section 68L of the Family Law Act 1975, an Independent Children’s Lawyer be appointed for [X] and the Legal Aid Commission of NSW is requested to provide such representation.
7.The parties provide to the Legal Aid Commission of NSW forthwith all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.
THE COURT NOTES THAT:
8.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.”
On 6 March 2009 the mother filed a response and on 18 March 2009 the following orders were made by Kemp FM:
“1.Pursuant to Order 15.09 of the Federal Magistrates Court Rules, an Expert, to be agreed between the parties in writing, be appointed as a Single Expert Witness to enquire into and report upon matters relating to the best interests of the child [X], born [in] 1997, and in preparing that report, the Expert is requested to consider the following matters:
(a)Any wises expressed by the child and any factors (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes.
(b)The nature of the relationship between the child with each of the parties and any other person residing in the respective households.
(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.
(d)The likely effect of any changes in the child’s circumstances including the likely effects on the child of any separation from:
(i) Either parent; or
(ii) Any other child, or significant person, with whom the child has been living.
(e)The child’s attachment to each party to the proceedings and the capacity of each party to provide for the emotional, intellectual and physical needs of the child.
(f)The child’s maturity, sex and cultural background and any other characteristics of the child that the expert thinks are relevant to the child’s welfare.”

The father filed an amended application on 20 March 2009 and a contravention application on 6 April 2009. There followed a series of procedural and other orders the most recent of which was on 5 August 2009 as follows:
“THE COURT ORDERS THAT:
1.The matter be adjourned to 22-24 February 2010 at 10.00 am for final hearing before Federal Magistrate Orchiston (estimate 3 days) (including parenting and contravention).
2.Each party file and serve a Trial affidavit (limited to one on behalf of a party) together with on per witness (to the maximum of 5 affidavits of a party) on which they intend to rely by no later than 35 days prior to the hearing date.

No further affidavits to be filed after that date, without leave of the Court.
3.The Applicant pay the hearing fee or obtain a waiver of that fee at least 14 days prior to the hearing date.
4.No later than 3 working days prior to the hearing, each party forward to my Associate, a document setting out:
(a)The affidavits on which each party will rely at hearing;
(b)a list of any objections to the contents of any affidavits filed in the other party’s case;
(c)Chronology;
(d)A list of issues; and
(e)A minute of the proposed orders sought at hearing;
(f)A list of the relevant authorities, including any citations.
5.Liberty granted to vacate the hearing date, if Terms of settlement are filed 7 working days before the allocated hearing date.
6.The parties have liberty to apply on 7 days notice.
7.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by my Associate or Deputy Associate or by another appropriate court officer, shortly prior to the hearing date.
8.Leave be granted to the Applicant and the Respondent to provide a copy of Dr M’s report to Dr W or any other suitably qualified psychiatrist.”
The matter came before the Court as currently constituted in February 2010 due to the retirement of Orchiston FM.

Proceedings in the United States

As is clear from the background set out earlier proceedings in the United States between 2001 and 2002, form a critical starting point for understanding and perhaps explaining, if only in part, the parties approach to these proceedings.
Accordingly, it is timely to set out in full the orders made in the Superior Court, Dekalb County in the State of Georgia on

2 November 2001 (“the USA Orders”). They were:
“FINAL JUDGMENT AND DECREE
The hearing in this case was held on October 11, 2001. Both parties presented evidence and arguments of counsel. The Guardian Ad Litem was questioned extensively on her report. The Defendant’s attorney made a Motion for the Entry of Findings of Fact and Conclusion of Law.
FINDINGS OF FACT
1.The Parties were married [in], 1993 and separated on or about October 16, 1997. One child, [X], was born [in] 1997.
2.The Petition for Divorce was filed October 1, 1999.
3.The marriage occurred shortly after they graduated from [university omitted]. The Defendant received a [qualifications omitted]. The Plaintiff also has an [qualifications omitted].
4.The work ethic and employment history of the parties are in sharp contrast. The Plaintiff has worked continuously, whilst the Defendant worked sporadically, with extended periods of no gainful employment. He started more than one business financed mainly by the Plaintiff, which failed. He also [occupation omitted] which was a financial failure. The report replete with his on and off jobs and venture. Without citing them all, he did not have gainful employment from July, 1996 until February 1997, in [R], Wisconsin; and from February 1997 until October, 1997 in [A], GA. When their child was about 3½ months old, he left his family and went to California, where he has since resided. It is of interest to note that he is now unemployed, living with a person in a condo, paying no rent.
5.It is found that from the date of the marriage to present, the monetary contributions of the Defendant has not amounted to adequately pay his share of the necessary family expenses.
6.The Court is constrained to find that this case reminds it of the ant and grasshopper fable, with the Plaintiff being the ant, and the Defendant being the grasshopper.
7.The Plaintiff, through her hard work has been able to purchase a residence, and equip it with furniture and furnishings as well as save a tidy sum in investments and retirement funds.
8.Although unemployed, the Defendant is capable of earning at least $75,000.00 per year.
9.The Plaintiff has been the party taking care of the minor child since the Defendant removed himself to California in 1997, and is a fit and proper person to care for the child.
CONCLUSION OF LAW
The marriage between the parties is irretrievable broken.
It is in the best interests of the minor child that the Plaintiff be awarded her custody.
DISPOSITION
Based upon the above Findings of Fact and Conclusion of Law, plus the entire record before the Court, the following Final Disposition is made:
DIVORCE
Upon consideration of this case, upon evidence submitted as provided by law, it is to say, a divorce a vinculo matrimonii, between the parties to the above stated case upon legal principles.
It is considered, ordered, and decreed by the Court that the marriage contract heretofore entered into between the parties to this case, from and after this date, be set aside and dissolved as fully and effectually as if no such contract had ever been made or entered into.
Petitioner and Respondent, formerly husband and wife, in the future shall be held and considered as separate and distinct persons altogether unconnected by any nuptial union or civil contract whatsoever, and both shall have the right to remarry.
CHILD CUSTODY AND VISITATION
The Parties are awarded Joint Legal Custody of the minor child. The Plaintiff is awarded sole physical custody with the Defendant being granted visitation rights in accordance with “Exhibit A” attached hereto and made a part hereof. The Defendant shall bear all expenses involved in exercising his visitation rights.
Further, the child shall not fly unaccompanied until she reaches the age of nine (9) years.
If the Parties are unable to agree on issues regarding child raring, the Plaintiff, as primary physical custodian, shall have the right to make the decision.
CHILD SUPPORT
The Defendant is capable of earning at least $75,000.00 per year. Based upon this finding, the Defendant shall pay to the Plaintiff for support of the child, $1,250.00 dollars per month, beginning on the 1^st day of December 2001 and payable thereafter on the 1^st day of each month.
Defendant shall continue to pay child support for the benefit of the child of the parties until such child becomes 18 years of age, dies, marries, or otherwise becomes emancipated, except that if the child becomes 18 years of age while enrolled in and attending secondary school on a full time basis, then such support shall continue until the child completes secondary school, provided that such support shall not be required after the child attains 20 years of age.
The Plaintiff shall provide and keep in effect medical and dental insurance for the child, and the defendant shall pay to Plaintiff one half of the premiums, plus one half of such expenses not covered by insurance.
EQUITABLE DISTRIBUTION OF MARTIAL ASSETS
1.The Plaintiff has a Custodial account for the minor child. She is awarded sole custody of that account which shall be used only for the educational expenses of the child including college.
2.The Defendant is awarded sole title to his two (2) 401K accounts; the automobile he has in California, his personal belongings; including his books, that may be in the possession of Plaintiff, and the Kayak now in the possession of Plaintiff.
3.The Plaintiff is awarded all other property both real and personal, or of whatsoever nature, not expressly awarded to the Defendant in (2) above.
ATTORNEY FEES
The Parties are granted the right to submit briefs upon the question of attorney fees awards, at which time the briefs will be considered and an Order entered.
CAVEAT
During the course of the trial, Plaintiff’s Exhibit 21 was admitted. It was an email from the Defendant to the Plaintiff dated November 2, 1999, Subject: Divorce. He said in part, “You know that I will never grant you sole and permanent custody of [X].” He further stated: “I intend to fight you with every ounce of my strength from now until the day I die. You will have no peace in this lifetime.”
The court hopes that these remarks were not as ominous as they appear, but if they were said in earnest, remember that the Court always has the interests of the child at heart, and any harm done to that best interest could, upon proper motion and proof, result in a Modification of this Judgment and Decree.
VISITATION SCHEDULE
The non-custodial parent shall be entitled to exercise reasonable visitation with the minor child/children with the following minimum provisions:
A.On the first, third and fifth weekends of each month from 6:00 pm Friday until 6:00 pm Sunday.
B.In even-numbered years, on the holidays delineated below and numbered with even numbers (2, 4, 6, etc), and in odd-numbered years, on the holidays numbered with odd numbers (1, 3, 5, etc),from 9:00 am to 9:00 pm, unless on a Monday immediately following the first, third and fifth weekends, then from 6:00 pm Sunday to 6:00 pm Monday.
1.New Years Day
2.Martin Luther King, Jr’s birthday
3.Easter or Spring Break – from 6:00 pm on the first day to 6:00 pm on last day
4.Memorial Day
5.July 4^th
6.Labour Day
7.Halloween
8.Thanksgiving
9.First week of Christmas vacation, including Christmas Day until noon
10.Second week of Christmas vacation from noon on Christmas Day until New Year’s Day
C.For 2 weeks during summer.”
At the final hearing before the Court in February 2010 Counsel for the Independent Children’s Lawyer told the Court (and both parties agreed) the orders made in the Superior Court of Deklab County in the State of Georgia (the USA Orders) had been registered with the Family Court of Australia on 18 June 2009.[1]
[1] see exhibit ICL2
In submissions filed after the hearing in February (to which I will return) the Independent Children’s Lawyer detailed the principles affecting, and the power of the Court to make, parenting orders where orders in relation to a child have been made overseas and registered in Australia.[2]
[2] see paras.4-6 of ICL’s submissions filed 30 March 2010
Finally it was common cause that since the proceedings before the Full Court of the Family Court of Australia in 2003, the father had spent time with the child.[3] In December 2005 the father spent ten days in Spain with the child and his partner was present. Between 15 and 23 April 2006 the father spent eight days in Sydney at a [suburb omitted] Apartment with the child. His partner was present during this time. Between 13 and 20 July 2006 the father saw the child for seven days in California with his partner. During 7 and 16 April 2007 the father also spent time with the child in Sydney and again in the period of 14, 15 and 18 December 2008 the father also spent time with the child in Sydney.
[3] see ICL’s chronology
The child is now almost 13 years old and in Year 8 at [M] High School.
At the final hearing on 22 February 2010 the father was unrepresented, Mr Egglestone appeared for the mother and

Mr Jackson appeared on behalf of the Independent Children’s Lawyer.

Material relied on at hearing in February

The parties told the Court they relied upon the following material:
a)the father relied on his affidavit filed 20 March 2009 and exhibits A1, A2 and A3.
b)
the mother relied on her affidavits filed 6 March 2009 and

11 February 2010 and exhibit R1.
c)the Independent Children’s Lawyer relied on the family report prepared by Dr M filed 3 July 2009 and exhibits ICL1, ICL2 and ICL 3.

Position of the parties at the hearing

After the Court was satisfied the father had the opportunity to get legal advice, understood the process that would be followed at the hearing and the relevant sections of Part VII of the Act (and consistent with the principles in Re F: Litigants in Person Guidelines [2001] FamCA 348) the Court explained to the father the manner in which the final hearing would proceed, the order of calling witnesses and the right to cross examine witnesses.

The father

Having confirmed he no longer sought an order that the child live in the United States the father then identified the material he relied on, and that the orders he sought, (which) were as contained in his outline of case. The father’s position was:
“1.That the Orders of the Supreme Court of Dekalb County, State of Georgia dated 2 November 2001 (registered with this Court on 18 June 2009 (3582/2009) be varied as follows:
(a)That the Order relating to the Father’s “visitation schedule” be discharged and instead the father spend time with [X], born [in] 1997 (“[X]”) as follows:
February 2010 in Australia
(i)     From 5.00 pm to 8.30 pm on each day from February 21 to February 28 that the father will be in Australia; and
April 2010: Two weeks in Australia
(ii)     From Friday, 2 April 2010 until Sunday, 18 April 2010 10:00 (Autumn Holidays); and
September/October 2010: Two weeks in United States
(iii)   From Saturday, 25 September 2010 until Sunday, 10 October 2010 (Spring Holidays); and
December 2010/January 2011: Two weeks in Australia
(iv)    From Saturday, 25 December 2010 thru Saturday January 8^th, 2011 (Summer Holidays); and
February 2011 and thereafter:
(v)     For 2 week periods on alternating school holidays thereafter alternating in the United States and Australia, e.g.
(a)Winter holidays starting Saturday, 2 July 2011 for 2 weeks in United States.
(b)Summer holidays starting Wed

21 December 2011 for 2 weeks in Australia.
2.For the purposes of all changeover in Australia, the parties will mutually agree on a suitable location, but failing agreement the Mother will deliver [X] to [omitted] Shops at the commencement of the Father’s time and the Father shall return [X] to [omitted] Shops at the conclusion of the time.
3.For the purposes of all changeover in United States the parties will mutually agree on a location, and may either travel under a respective Airline Accompaniment Policy, or the mother may accompany her at her own expense.
4.For the purposes of Order 1 the following provisions apply:
(a)The parties will communicate by email at least one month prior to the proposed overseas travel for all time from and including February 2011 and use their best endeavours to reach agreement on the precise dates in the school holiday periods that the travel shall occur;
(b)The Mother will book the airfares for herself, as she chooses to travel, and [X] for the travel to and from the United States and accompany [X] to and from United States;
(c)The mother will pay for all travel costs for all parties, including the father, from the child support currently being paid to the mother in recognition of the last decade of the father having paid all travel expenses;
5.That the father no longer be required to pay for health insurance for [X] as stipulated in the orders of 2 November 2001, as she does not live in the United States and is covered under the Australia Medicare.
6.That the father may communicate with [X] by telephone and Skype whenever is convenient, but at least twice per week for a minimum of 30 minutes each time. The mother shall initiate one of the calls at 9.00 am every Saturday by Skype, or at a time that is convenient for both parties on that day, but that the father not be required to call a cell phone due to the prohibitive costs of the calling parties within Australia.
7.That on occasions when [X] is in the Father’s care the Mother be permitted to communicate with [X] by telephone on one occasion each week with the Mother to initiate the call and the Father to ensure that [X] is available to take the call.
8.That the parties be restrained from denigrating each other or allowing any family member to do so in the presence or hearing of [X].
9.That the parties will take into account the wishes of [X] in relation to with whom she will live at any time; that [X] may extend her stay with her Father solely during her summer vacations at her own option; and that [X] may wish to visit with the father during school vacations not specified in Option 1.
10.That after [X] reaches the age of 13 on [date omitted], 2010 and should she decide she would like to live with Father, the Mother will not obstruct her, and that child support will cease being paid by the father at that time.
11.That the funds specified with the order of 2 November 2001 as entrusted to the Mother for [X]’s education be fully accounted for within 30 days an placed into trust fund, with both the mother and the father as co-executors.
12.All costs.”

The mother

At the hearing the mother’s Counsel confirmed the orders she sought were contained in her case outline and were:
“1.That the orders of the Supreme Court of Dekalb County, State of Georgia dated 2 November 2001 (registered with this Court on 18 June 2009 (3582/2009) be varied as follows:
(a)That the Order relating to the father’s ‘Visitation schedule’ be discharged and instead the father spend time with [X] born [in] 1997 (“[X]”) as follows:
February 2010 in Australia
(i)     From 11.00 am to 6.00pm each day on 27 and 28 February 2010 in Australia.
July 2010: one week in Australia
(i)     4 days: From 10.00 am to 6.00 pm each day on 3 July 2010 to 6 July 2010 in Australia; and
(ii)     4 days/3 nights: From 10.00 am 7 July 2010 to 6.00 pm 10 July 2010 in Australia.
September/October 2010: one week in United States
(iv)    7 days/6 nights: From 27 September to 3 October 2010 in Detroit, United States of America.
April 2011: one week in Australia
(v)     7 days/6 nights: From 10.00 am 11 April 2011 to 6.00 pm 16 April 2011 in Australia.
December 2011: 9 days in United States
(vi)    For a period of nine (9) days in December 2011 in New York or Detroit or another city in the USA mutually agreed.
January 2012 and thereafter (two occasions per year in the July and December/January school holiday periods:
(vii)   For each year in Australia, one week in July school holiday period or 10 days in December/January school holiday period with such period to be alternated each year; and
(viii) For each year nine (9) days in the United States in the July school holiday period or in the December/January school holiday period to be alternated each year.
2.For the purposes of all time that [X] spends with her father up to and including the period of time for December 2011/Jnauary 2012, the father will ensure that such time is in the presence of the Father’s partner Ms C, the paternal grandmother or such other person that [X] nominates if any.
3.For the purposes of order 1:
(a)the Father’s time up to December 2011 is dependant upon him exercising time under the previous step and in the event that she fails to do so then the Father’s time cannot progress to the next step until he exercises time under the previous step; and thereafter
(b)the father’s United States time is dependent upon him exercising time in Australia for that particular year.
4.For the purposes of all changeover in Australia, the parties will mutually agree on a suitable location, but failing agreement the mother deliver [X] to [omitted] Shops at the commencement of the Father’s time and the Father shall return [X] to [omitted] Shops at the conclusion of the time.
5.For the purposes of all changeover in United States the parties will mutually agree on a location provided that the Father will make arrangements to ensure that a family members to collect [X] from the Mother at the commencement of the father’s time and deliver [X] to the mother at the conclusion of the father’s time.
6.The father be restrained from contacting [X] at school or otherwise except as prescribed by these orders.
7.For the purposes of Order 1 the following provisions apply:
(a)The parties will communicate by email at least three months prior to the proposed travel (both Australia and United States) for all times from and including 2010 and use their best endeavours to reach agreement on the precise dates and location in the school holiday periods that the visitation shall occur;
(b)The father will make arrangements for family member to provide to the mother at least one month prior to the Father spending time with [X] the address(es) of where [X] will be staying and location land line telephone number(s);
(c)The Mother will book the airfares for herself and [X] and arrange travel insurance or the travel to and from the United States and accompany [X] to and from United States;
(d)The mother will pay for her airfare and the father will forthwith pay the mother for the cost of [X]’s airfare together with comprehensive travel insurance (medical, dental) upon her furnishing the father with the booking and travel insurance information and the mother is not obliged to pay for [X]’s airfare/travel insurance until she has received the funds from the Father;
(e)Once [X] is able to travel unaccompanied the father will pay to the mother the costs of [X]’s airfare/travel insurance on the same basis as order 7(d).
8.That order 7(d) in so far as it relates to the Mother paying for her airfares, is dependent on the father being up to date with child support payments for the previous 12 calendar months at the time of the booking and in the event that he is not then the father shall pay the Mother’s airfare.
9.That the father may communicate with [X] by telephone each Saturday at 11.00 am Sydney time or at an alternative time provided if [X] is not available at that time. Calls to last no longer than 30 minutes with the Mother to initiate the call.
10.That on occasions when [X] is in the father’s care the mother be permitted to communicate with [X] by telephone on one occasion each week with the mother to initiate the call and the father to ensure that [X] is available to take the call once per week. The father will facilitate any request by [X] to telephone her mother.
11.That the parties be restrained from denigrating each other or allowing any family member to do so in the presence or hearing of [X].
12.It is noted that the parties when (sic) take into account the wishes of [X] in relation to all time between the father and her.
13.That the parties share all the costs of Dr M equally.
14.Costs.”

In her final submissions filed 26 March 2010 the orders the mother sought were:
“1.That the Orders of the Supreme Court of Dekalb County, State of Georgia dated 2 November 2001 (registered with this Court on 18 June 2009 (3582/2009) be varied as follows:
(a)That the Order relating to the Father’s “visitation schedule” be discharged and instead the Father spend time with [X], born [in] 1997 (“[X]”) as follows:
July 2010: one week in Australia
(i)     7 days/6 nights: From 10.00 am 11 July 2010 to 6:00 pm 17 July 2010 in Australia;
September/October 2010: one week in United States
(ii)     7 days/6 nights: From 28 September to 4 October 2010 in Detroit, United States of America;
April 2011: one week in Australia
(iii)   7 days/6 nights: From 10.00am 11 April 2011 to 6.00 pm 16 April 2011 in Australia;
December 2011: 9 days in United States
(iv)    For a period of nine (9) days in December 2011 in New York or Detroit or another city in the USA mutually agreed;
January 2012 and thereafter (two occasions per year in the July and December/January school holiday periods:
(v)     For each year in Australia, ten (10) days in July school holiday period and 2 weeks in December/January school holiday period with such period to be alternated each year; and
(vi)    For each year seven (7) days in the United States in the July school holiday period and nine 9 days in the December/January school holiday period with such period to be alternated each year.
2.For the purposes of order 1:
(a)the Father’s time up to December 2011 is dependant upon him exercising time under the previous step and in the event that he fails to do so then the Father’s time cannot progress to the next step until he exercises time under the previous step; and thereafter
(b)the Father’s United States time is dependant upon him exercising time in Australia for that particular year.
3.For the purposes of all changeover in Australia, the parties will mutually agree on a suitable location, but failing agreement the Mother will deliver [X] to [omitted] Shops at the commencement of the Father’s time and the Father shall return [X] to [omitted] Shops at the conclusion of the time.
4.For the purposes of all changeover in United States the parties will mutually agree on a location provided that the Father will make arrangements to ensure that a family member is to collect [X] from the Mother at the commencement of the Father’s time and deliver [X] to the Mother at the conclusion of the Father’s time.
5.The Father be restrained from contacting [X] at school or otherwise except as prescribed by these orders.
6.For the purposes of Order 1 the following provisions apply:
(a)The parties will communicate by email at least three months prior to the proposed travel (both Australia and United States) for all time from and including 2010 and use their best endeavours to reach agreement on the precise dates and location in the school holiday periods that the visitation shall occur;
(b)The Father will make arrangements for family member to provide to the mother at least one month prior to the Father spending time with [X] the address(es) of where [X] will be staying and location land line telephone number(s);
(c)The Mother will book the airfares for herself and [X] and arrange travel insurance for the travel to and from the United States and accompany [X] to and from United States;
(d)The Mother will pay for her airfare and the Father will forthwith pay the Mother for the cost of [X]’s airfare together with comprehensive travel insurance (medical, dental) upon her furnishing the Father with the booking and travel insurance information and the Mother is not obliged to pay for [X]’s airfare/travel insurance until she has received the funds from the Father; and
(e)Once [X] is able to travel unaccompanied the Father will pay to the Mother the costs of [X]’s airfare/travel insurance on the same basis as order 6 (d).
7.That order 6(d) in so far as it relates to the Mother paying for her airfare, is dependant on the Father being up to date with child support payments for the previous 12 calendar months at the time of the booking and in the event that he is not then the Father shall pay the Mother’s airfare.
8.That the Father may communicate with [X] by telephone each Saturday at 11:00 am Sydney time or at an alternative time provided if [X] is not available at that time. Calls to last no longer than 30 minutes with the Mother to initiate the call.
9.That on occasions when [X] is in the Father’s care the Mother be permitted to communicate with [X] by telephone on one occasion each week with the Mother to initiate the call and the Father to ensure that [X] is available to take the call once per week. The Father will facilitate any request by [X] to telephone her Mother.
10.That the parties be restrained from denigrating each other or allowing any family member to do so in the presence or hearing of [X].
11.That the Mother sign all authorities necessary to allow the Father to receive [X]’s school reports and other information in relation to her schooling.
12.It is noted that the parties when (sic) take into account the wishes of [X] in relation to all time between the Father and her.
13.That the Father reimburse the Mother the sum of $220.00 being half share of Dr M’s costs for his assessment on 12 February 2010.”

Issues between the parties

The Independent Children’s Lawyer reserved her position until the evidence was heard. However, the Court was told by Counsel for the Independent Children’s Lawyer at the hearing in February that on the basis of the positions of the father and the mother (set out above) the following issues remained between the parties to be determined by the Court. Neither party demurred on this. Those issues were:
a)should there be a phase in period for the child’s time with the father;
b)duration of time spent periods;
c)structure of time in 2010/2011;
d)arrangements for changeover;
e)notice period for organising arrangements for visits to the United States; and
f)costs of implementing time spent.
At the hearing in both February and June 2010 (which was necessary for reasons that will become clear presently) the father and the mother gave evidence and were cross examined. The parties also tendered a number of exhibits, during the course of their evidence.
Dr M gave evidence at the hearing in February via telephone, with the agreement of the parties. Dr M’s qualifications were not challenged and his report dated 3 July 2009 (including the recommendations contained therein which he did not resile from) was taken into evidence.
On the basis of a further interview with the child on 12 February 2010, Dr M supplemented his report and provided his view (in the context of the remaining issues between the parties) on what orders he considered were in the child’s best interests.
The oral evidence concluded in the afternoon of the second day of the hearing in February 2010 and the parties were asked to file submissions in writing.
At the conclusion of the hearing in February, and pending the Court’s reserved decision, the parties agreed the following interim orders should be made:
“THE COURT ORDERS THAT:
1.The Applicant have leave to withdraw/discontinue his contravention application filed on 6 April 2009.
BY CONSENT THE COURT ORDERS UNTIL FURTHER ORDER THAT:
2.The father spend time with the child, [X] born [in] 1997 (“the child”) as follows:
(a)from 5.00 pm to 8.00 pm on Wednesday, 24 February 2010;
(b)from 5.00 pm to 8.00 pm on Friday 26 February 2010; and
(c)from 10.00 am to 8.00 pm on Saturday, 27 February 2010.
3.Drop off and collection of the child shall occur at the [omitted] shops on each of the occasions referred to in order (2).
4.The Applicant file and serve his submissions by not later than 4.00 pm on 9 March 2010.
5.The Respondent file and serve her submissions by not later than 4.00 pm on 23 March 2010.
6.The Independent Children’s Lawyer file and serve submissions by not later than 4.00 pm on 30 March 2010.
7.…”

Position of Independent Children’s Lawyer

As referred to above the position of the Independent Children’s Lawyer and the exact terms of the final orders she believed were in the child’s best interests and were necessary to resolve the remaining issues identified by the parties was reserved until after the evidence was heard.
Consistent with the abovementioned directions the Independent Children’s Lawyer did file written submissions (to which the Court will return) which set out her position on the final orders in the child’s best interests. These were as follows:
“1.That the Orders of the Supreme Court of Dekalb County, State of Georgia dated 2 November 2001 (as registered with the Family Court of Australia) on 18 June 2009 (3582/2009) be discharged.
2.That the parties have equal shared parental responsibility for the child, [X] born [in] 1997, (“[X]”).
3.That [X] live with the Mother.
4.That the Father spend time with [X] as follows:
4.1.The July New South Wales gazetted school holidays:
4.1.1.For two weeks starting and concluding in the United States of America, commencing in 2010, and thereafter every even number year, commencing on the last Friday on the 2^nd school terms, and concluding in the United States on the last Saturday of such school holidays.
4.1.2.For two weeks starting and concluding in Australia, commencing in 2011, and thereafter every odd number year, commencing on the last Friday on the 2^nd school terms, and concluding in the United States on the last Sunday of such school holidays.
4.2.The September/October 2010 New South Wales gazetted school holidays:
4.2.1.For two weeks in Australia from Friday, 24 September 2010 until Sunday, 10 October 2010 ; and
4.3.The December / January New South Wales gazetted school holidays commencing in December 2010:
4.3.1.For two weeks in Australia being from 26^th December, and thereafter every even numbered (December year).
4.3.2.For two weeks in the United States being from 23^rd December, and thereafter every odd numbered (December year).
5.That for the purposes of all changeover in Australia, the parties will mutually agree on a suitable location, but failing agreement the Mother will deliver [X] to [omitted] Shops at the commencement of the Father’s time and the Father shall return [X] to [omitted] Shops at the conclusion of the time,
6.That for the purposes of all changeover in United States the parties will mutually agree on a location, and [X] may either travel under a respective Airline Policy, such as the QANTAS' Children Travelling Alone or United's Unaccompanied Children programs, or the Mother may accompany her at her own expense.
7.The Mother is prohibited at times from contacting [X] during the periods that she spends time with the Father as set out in Order 4.
8.For the purposes of implementing the provisions stated in order 4 above, the following provisions will apply:
8.1The parties will communicate by email at least two months prior to the proposed overseas travel for all and use their best endeavours to reach agreement on the precise dates in the school holiday periods that the travel shall occur;
8.2The Mother will book the airfares for herself, if she chooses to travel, and [X] for the travel to and from the United States;
8.3The Mother will pay for all travel costs for herself (should she choose to travel), the Father will pay for all travel costs related to himself and [X], and that the Father will deduct all travel costs paid by him from the relevant child support assessment currently being paid to the mother in recognition of the last decade of the Father having paid all travel expenses;
9.That the Father shall communicate with [X], whereupon at all times, the Mother is responsibly for ensuring that [X] receives such communication as initiated from the Father, but whereupon such communication will be with no oversight or interference by the Mother:
9.1By telephone and Skype whenever is convenient, but at least twice per week for a minimum of 30 minutes each time. The mother shall initiate one of the calls at 9:00 AM every Saturday by Skype, or at a time that is convenient for both parties on that day, but that the father not be required to call a cell phone due to the prohibitive cost of the calling party within Australia.
9.2.By mobile telephone, and that the Father be provided with the cell phone number of [X] at all times, and be allowed to send and receive text messages from her.
9.3.By any other means of electronic communications, including sending and receiving emails with [X] or communication with her via Facebook or other social networking sites.
10.That the parties be restrained from denigrating each other or allowing any family member to do so in the presence or hearing of [X].
11.That the Mother shall ensure that the Father receives any communication including school reports from the [X]’s school, and that the Mother will provide all Report Cards from school within one week of receiving them herself.”

Issue arising from position of the Independent Children’s Lawyer

Given the final orders the Independent Children’s Lawyer sought had only been provided after the evidence had closed, and the parties had filed their submissions they were each given a further opportunity to file anything in reply by 1 April 2010.[4]
[4] email dated 31 March 2010 from FM O’Sullivan’s Associate
Nothing was received in reply from the father and the mother’s solicitor whilst requesting an extension beyond this (which was refused) did file submissions in reply on 1 April 2010.
The importance of the issue raised in those submissions on parental responsibility, (and whilst it is a matter about which the mother in her submissions expressed concern as to the manner in which it was raised by the Independent Children’s Lawyer after the hearing) is that it is a matter that is fundamental to determining the child’s best interests.[5]
[5] see for e.g. s.61DA of the Act and discussion of Part VII in Goode & Goode [2006] FamCA 1346
The position of the Independent Children’s Lawyer was[6] that the parties could not reasonably maintain the particular orders sought by the Independent Children’s Lawyer were beyond their contemplation. The USA Orders were only recently registered in the Family Court of Australia and in the context of these proceedings the Court is required to consider the child’s circumstances a fresh. In doing so, the Court must be satisfied whether any orders made as a result are in the child’s best interests. The Court must follow the legislative pathway in Part VII of the Act.[7]
[6] see submissions filed 30 March 2010
[7] Goode & Goode [2006] FamCA 1346
The claim of surprise made on behalf of the mother’s solicitors in the submissions,[8] suggests a failure by them to properly contextualise (or even worse understand) the process the Court would need to apply under the Act to make the orders their client sought, or to make a parenting order. However, and leaving that to one side for present purposes, given the strident tone of the mothers submissions[9] the matter was listed for a telephone mention on 19 April 2010. At that mention the following orders were made and were not opposed by any of the parties:
“THE COURT ORDERS THAT:
1.The respondent have leave to recall such of the witnesses who gave evidence at the hearing on 22 & 23 February 2010 for the purposes of asking any questions about final orders sought by the Independent Children’s Lawyer in submissions filed on 31 March 2010 on equal shared parental responsibility.
2.The matter be listed for hearing on a date and time to be fixed in the week beginning 26 April 2010.
[8] see submissions filed 1 April 2010
[9] Ibid
AND THE COURT NOTES:
A.The Independent Children’s Lawyer, following consultation with the parties on the date, time and confirmation from the respondent as to which witnesses will be required will liaise with the relevant associate and the matter will then be fixed for further hearing and the parties will receive this advice by email.”
The matter was subsequently listed for hearing on 5 May 2010 and the father appeared by telephone from the United States.

Mr Lethbridge of Counsel appeared on behalf of the mother and

Ms Franklin-Bell appeared on behalf of the Independent Children’s Lawyer (both appearing by video link from Sydney).
Despite the evidence having closed, and the clear directions on

19 April 2010, the mother filed in the Sydney Registry a further affidavit on 4 May 2010. The mother was not granted leave to rely on that affidavit. The mother’s solicitor had requested that Dr M be available to give evidence on the issue raised by the Independent Children’s Lawyer on equal shared parental responsibility on 5 May 2010. However the mother’s solicitor and the Independent Children’s Lawyer had failed to provide Dr M with the proposed orders sought by the Independent Children’s Lawyer or notice of the hearing on

5 May 2010.
Finally, of concern was the Independent Children’s Lawyer statement to the Court on 5 May 2010 that she no longer pressed order (2) in her proposed orders relating to parental responsibility.[10]
[10] see para.38 above
Given this, and as the hearing could not proceed on 5 May 2010, due in part to, the failure of the parties to put Dr M on notice and the apparent fluid position of the Independent Children’s Lawyer, the following orders were made:
“THE COURT ORDERS THAT:
1.The Independent Children’s Lawyer shall provide to the parties a minute of final proposed orders sought by not later than 4.00 pm on 10 May 2010.
2.The Mother shall provide to the other parties a proof (by way of a statement) of any evidence she may give, consistent with the directions made on 19 April 2010, in light of the Independent Children’s Lawyers proposed minute referred to in order (1) herein, with such statement to be filed not later than 4.00 pm on 14 May 2010.
3.The Father shall provide to the other parties a proof (by way of a statement) of any evidence he may give, consistent with the directions made on 19 April 2010, in light of the Independent Children’s Lawyers proposed minute referred to in order (1) herein, with such statement to be filed not later than 4.00 pm on 21 May 2010.
4.The Independent Children’s Lawyer shall provide to Dr M, psychologist copies of all of the material filed by the parties pursuant to these orders and their final submissions and in the event Dr M wishes to reply in writing this may be done by 31 May 2010.
5.The matter be adjourned to the Federal Magistrates Court of Australia at Melbourne on Friday, 4 June 2010 commencing at 9.00 am for the further hearing referred to in the directions made on 19 April 2010.”

New position of Independent Children’s Lawyer

On 7 May 2010 the Independent Children’s Lawyer filed a minute of the orders she sought pursuant to order (1) of the orders made on

5 May 2010. The Independent Children’s Lawyers position was:
“Orders sought by the Independent Children’s Lawyer
1.That the 'Visitation Schedule' contained in Annexure 'A' of the Orders of the Supreme Court of Dekalb County, State of Georgia dated 2 November 2001 [and registered with the Family Court of Australia on 18 June 2009 (3582/2009)], representing the parenting orders, be discharged.
2.That the child [X] born [in] 1997 (“[X]”) live with the Mother.
3.That the Father spend time with [X] as follows:
3.1.The July New South Wales gazetted school holidays:
3.1.1.For two weeks starting and concluding in the United States of America, commencing in 2010, and thereafter every even number year, commencing on the last Friday on the 2^nd school terms, and concluding in the United States on the last Saturday of such school holidays.
3.1.2.For two weeks starting and concluding in Australia, commencing in 2011, and thereafter every odd number year, commencing on the last Friday on the 2^nd school terms, and concluding in the United States on the last Sunday of such school holidays.
3.2.The September/October 2010 New South Wales gazetted school holidays:
3.2.1. For two weeks in Australia from Friday, 24 September 2010 until Sunday, 10 October 2010; and
3.3. The December / January New South Wales gazetted school holidays commencing in December 2010:
3.3.1. For two weeks in Australia being from 26^th December, and thereafter every even numbered (December year).
3.3.2. For two weeks in the United States being from 23^rd December, and thereafter every odd numbered (December year).
4.That for the purposes of all changeover in Australia, the parties will mutually agree on a suitable location, but failing agreement the Mother will deliver [X] to [omitted] Shops at the commencement of the Father’s time and the Father shall return [X] to [omitted] Shops at the conclusion of the time.
5.That for the purposes of all changeover in United States the parties will mutually agree on a location, and [X] may either travel under a respective Airline Policy, such as the QANTAS' Children Travelling Alone or United's Unaccompanied Children programs, or the Mother may accompany her at her own expense.
6.The Mother is prohibited at times from contacting [X] during the periods that she spends time with the Father as set out in Order 4.
7.For the purposes of implementing the provisions stated in order 4 above, the following provisions will apply:
7.1The parties will communicate by email at least two months prior to the proposed overseas travel for all and use their best endeavours to reach agreement on the precise dates in the school holiday periods that the travel shall occur;
7.2The Mother will book the airfares for herself, if she chooses to travel, and [X] for the travel to and from the United States;
7.3The Mother will pay for all travel costs for herself (should she choose to travel), the Father will pay for all travel costs related to himself and [X], and that the Father will deduct all travel costs paid by him from the relevant child support assessment currently being paid to the mother in recognition of the last decade of the Father having paid all travel expenses;
8.That the Father shall communicate with [X], whereupon at all times, the Mother is responsibly for ensuring that [X] receives such communication as initiated from the Father, but whereupon such communication will be with no oversight or interference by the Mother:
8.1By telephone and Skype whenever is convenient, but at least twice per week for a minimum of 30 minutes each time. The mother shall initiate one of the calls at 9:00 AM every Saturday by Skype, or at a time that is convenient for both parties on that day, but that the father not be required to call a cell phone due to the prohibitive cost of the calling party within Australia.
8.2By mobile telephone, and that the Father be provided with the cell phone number of [X] at all times, and be allowed to send and receive text messages from her.
8.3By any other means of electronic communications, including sending and receiving emails with [X] or communication with her via Facebook or other social networking sites.
9.That the parties be restrained from denigrating each other or allowing any family member to do so in the presence or hearing of [X].
10.That the Mother shall ensure that the Father receives any communication including school reports from the [X]’s school, and that the Mother will provide all Report Cards from school within one week of receiving them herself.”

However it should be noted the Independent Children’s Lawyer maintained the submission that the Court could still make an order for equal shared parental responsibility for the child. As it transpired that was the final position of the Independent Children’s Lawyer confirmed by Counsel at the conclusion of the hearing on 4 June 2010.[11]
[11] see email from ICL dated 7 May 2010

Family Report

Pursuant to orders made on 18 March 2009 Dr M was appointed to prepare a family report pursuant to s.62G(2) of the Act and to interview each of the parties and the child.
Dr M, a psychiatrist, carried out the interviews for the report on

18 May 2009. Dr M’s report was released to the parties under cover of a letter dated 9 July 2009 (“the Report”).
The Report set out the presentation of the mother[12]and that of the father[13] and the interview with and observations of the child.[14] In the Report, Dr M’s opinion was:
[12] see paras.1-19 of the Report
[13] see paras.20-37of the Report
[14] see paras.38-69 of the Report
“73.Both parents presented in a manner consistent with their affidavit material The mother highlighted her concerns for her daughter’s welfare and alleged that the father had only intermittently expressed interest in having contact with his daughter. She however alleged that in the past twelve months that both herself and her daughter had been harassed by the father. In contrast, the father highlighted his concerns for his daughter’s welfare and his dogged pursuit to maintain a relationship with his daughter despite the mother’s international relocation from the United States of America to Australia. The father demonstrated his detailed understanding of Hague Convention cases and concerns for the victims of alienation from their fathers. He directly applied these concerns to his daughter.
74.[X] presented as a bright and articulate 11 year old girl. She established a good rapport and spoke in a clear and thoughtful manner with regard to her life experience. It was evident that she had a primary attachment to her mother. She was progressing well at school. She was also noted to have some emotional insecurity. She expressed a range of symptoms anxiety, including fear of the dark. She described her mother’s inconsistent responses. She was often cared for by her maternal grandmother, who did not speak English. A loving relationship was identified between her and her maternal grandmother, however the limitations to communication were evident. It was also clear that over the years she had been exposed to a series of male figures. She had thus been exposed to recurrent experiences of separation and loss, an issue which her mother did not appear to have considered. Instead, the mother focused on the intrusive nature of the father’s attempts to maintain a relationship with his daughter. The mother had made numerous allegations with regard to the father over time. This included concerns regarding his mental health.
75.The mother was identified to have her own significant psychological vulnerabilities dating back to her family origin. She had no knowledge of the true identity of her biological father prior to discovering this later in her childhood. She had been introduced to her step father at the age of 4 as her biological father, who had returned after a period away. This had left her confused by the lack of emotional connection. This had had a significant impact on her own emotional development. The mother had failed to recognise the importance of the relationship between [X] and her father and had exposed her to a series of transient male figures in her life.
76.The father identified his underlying nature as ‘aggressive’. He presented at assessment with characteristic obsessional and narcissistic personality traits. He highlighted that he had found the mother’s response to his rights as a father to be unacceptable and had pursued the matter in a determined fashion. He highlighted the numerous inconsistencies in her statements over time and behaviour, particularly when it came to her alleged prioritisations of [X]’s needs. It was evident that he had experienced overwhelming frustration in his battle to maintain a relationship with his daughter. This led him to the conclusion that the only way to maintain a relationship with his daughter was to seek her primary residence in the United States. He justified the mother’s obstruction and [X]’s alienation from her father as justification for his strongly put proposal.
77.[X] was clear in her wishes. She presented as a mature 11 year old girl, who was evidently intelligent and competent. She highlighted a range of interest and was already attending Year 7 at [M] High School. She expressed the wish that she should not be forced to have contact with her father, but rather should be able to choose to do so at her own pace. She asserted that if given this choice, that she would indeed choose to see her father for up to a week at a time every few years in either Australia or the United States. She had no concerns about staying overnight with her father under such circumstances. She was not identified to be fearful or distressed in her interactions with her father.
78.It was evident that she was strongly aligned with her mother and had been powerfully influenced by her mother’s view of the father and their relationship. [X] reluctantly quoted her mother due to the understandable fear that the conclusion would be reached that she had been influenced in her thinking by her mother. She doubted that her father’s true motivation was a love for her and a desire to have a relationship, based on her mother’s portrayal of her father over time. This was highly concerning. Further, [X] stated (and this was later confirmed by the mother) that her mother had given her the choice whether to see her father on two occasions in the past six months when the father was visiting Australia. When [X] initially stated to her mother that she was not sure but maybe she was willing to see her father, her mother had pushed her to make a definitive decision. In view of her anxiety, which was an integral part of her nature and the family circumstances, it is not surprising that [X] chose not to have further contact with her father. Further, the father’s expression of frustration was similarly interpreted in a negative manner by his daughter. It was of concern that the mother had been unable to address such issues in a more responsible manner. Even the maternal grandmother readily acknowledged that there was a need for [X] to have an ongoing relationship and contact with her father.
79.The mother strongly asserted that the father had a history of mental health problems which would impact upon his parenting capacity. A Psychiatric assessment was conducted during the course of my assessment of the family issues. The father specifically denied any history of having a psychiatric disorder or related symptoms. It was noted that he was somewhat contemptuous of “my profession”. He was similarly frustrated and dismissive of the legal process, given his perceived experience ‘bias’ against him and men in such circumstances. He referred extensively to his own personal experience and those other men in Hague Convention cases. His response highlighted his underlying personality vulnerabilities. Nonetheless, I did not find any significant evidence that he suffered from a mental illness which would impact upon his parenting capacity. It was evident that his emotional vulnerability dated back to his mother’s alcoholism had impacted upon his care throughout his childhood. It was identified that all family members had been high achieving. He himself had become an [omitted]. There was a strong suggestion that his emotional needs were not attended to growing up. He referred to his own experience of attending multiple schools and moving between countries and states of the United States as assisting him in life. He was unable to acknowledge any emotional vulnerability resulting from this experience of recurrent separation and loss.
80.It was thus my assessment that both parents had vulnerabilities dating from their own family origin. I did not, however, find significant evidence that wither parent had a significant psychiatric disorder.
81.It was my view that [X] would benefit from an ongoing and respectful relationship with her father in which she could have regular contact with him. This should be for a minimum of one to two weeks per year in Australia and one to two weeks per year in the United States. This will allow the maintenance of a connection with a core part of her identity. I would not support the father’s proposal that the circumstances demand that [X] be removed from her mother and placed in her father’s care in the United States. In my view of the limited contact between father and daughter, this would be a highly disruptive strategy. The father acknowledged that such a change would not be without its difficulties. In view of [X]’s identification as an Australian, with her school and locality, such an arrangement would not be in her best interests. The mother’s persistent obstruction to contact with her father was highly concerning. It may be necessary for specific action to be taken to limit the mother’s propensity to act in such a manner in the future. The father’s proposal that [X] should spend all her school holidays in the United States with him, should she reside in Australia with the mother, or alternatively all her holidays with her mother in Australia, should she reside with the father in the United States, was simply unrealistic and impractical. I do not feel that such an arrangement should be considered. This certainly would not be in accordance with [X]’s wishes. As she establishes a stronger peer network, this would be disruptive to her evolving social relationships.
82.The mother asserted that the father required treatment, such as anger management. I found no indication that this would be productive during my assessment.
83.A significant perpetrating factor for [X]’s evident avoidance of her father was her exposure to persistent parental conflict. She referred to her repeated experience of her parents arguing during telephone contact. Not surprisingly these experiences were stressful. She was seen to be a sensitive child, vulnerable to anxiety. Her subsequent avoidance was identified as a direct response to this emotional experience, amplified by her identification with her mother, her primary car giver. Whilst in such circumstances it may be tempting to perpetuate the phobic avoidance cycle by avoiding further contact, this should be viewed as part of the problem.”
As noted earlier Dr M met again with the child in February 2010 and before giving evidence to the Court that month.

Evidence before the Court

In Saunders & Saunders (1976) FLC 90-078 it was said:
“[R]estraint is called for in expressing views about the parties because the need to have regard to the preservation of the ongoing relationship between the parties and between parents and children.”
However, in order to be able to determine this application for parenting orders for a child, where those otherwise responsible have asked the Court to make decisions affecting that child, it is necessary to form an assessment of the character and personality of the parties in this case.
I am not satisfied that the mother’s portrayal of the father is accurate. I was left with the impression at the hearing in February that she wanted to give the worst possible impression of him (particularly as a father) to achieve the outcome she wanted in the litigation. This impression was reinforced by the mother’s failure to make obvious concessions in cross examination and consistent with her refusal to cede any form of what she perceived as her control over the child to the father. As a consequence, I have doubts about the reliability of the mother’s version of past events.
As the Independent Children’s Lawyer contended in submissions filed after the hearing in February:
“…Herein the Mother did not make an honest witness in many respects. She appears to avoid answering questions under cross examination. There were also many aspects of her evidence which greatly concerned the ICL, which are outlined above. The Mother also presented at times inconsistent versions of events. For example, at paragraph 6 of her 11^th February 2010 she deposed under oath that [X] had made a telephone call to her father in July 2009. Under cross examination, the Mother’s new version was that this July 2009 telephone call was initiated by the Father.
The Father was also at times evasive under cross examination, being inclined to often presented unnecessary long answers which from time to time were not strictly responsive to the question. His presentation in the witness box appeared consistent with the assessment of him by Dr M as stated in the first 2 sentences at paragraph 76 of his Report. Nevertheless, the ICL submits that the Father made an honest witness. Most importantly, in light of the issue of the 2009 electronic communication, the comparison between the two versions made by Mother and Father would lead a court to easily come to a conclusion that the Father would have been strongly motivated to contact [X], while the Mother would have the opposite motivation. The Father’s version should be preferred.”
In the reasons that follow the presentation of the parties before the Court is noted. It is on the basis of my observations of the parties whilst giving evidence, the inherent improbability and conflict of many of the mother’s answers and for the reasons set out above that where her evidence is in conflict with the father, I prefer the father’s evidence.[15]
[15] Reference is also made to the Independent Children’s Lawyers submissions on this issue, see for eg. page 21 of ICL’s submissions

Evidence of the father

The father’s affidavit filed 20 March 2009 (with the exception of all the exhibits save for Tab C of Exhibit 6 which were excluded for the reasons given at the time) was taken into evidence. The father also tendered a number of exhibits during the course of the hearing in February.
The father, a self described [occupation omitted] told the Court he now lived in New York.
In his evidence before the Court, the father confirmed the orders he sought, referred to in paragraph [28] above, had been determined against the background of the recommendations of Dr M.
The father in his evidence in chief, with leave, responded to the allegations in the mother’s most recent affidavit. It would be fair to characterise the father’s response to the majority of the matters raised by the mother as a bare denial.
However when he did elaborate in his response, he did so, acknowledging problems with the child’s behaviour or his reaction to same but attributing the blame for this to what he said was the mother’s attempts to control the child and minimise his involvement with her.
The father’s evidence was that he remained committed to fostering a relationship with the child. He gave evidence that in 10 years he had made 15 trips around the world to do so and made 4 trips in the last year to see the child but his attempts to do so have been frustrated.
The father gave evidence that he remained suspicious that regardless of the outcomes of those proceedings his attempts to spend time with the child would continue to be frustrated.
In cross examination the father’s answer to questions revealed that such were his concerns about the mother’s future actions and compliance with whatever orders were made that he was driven to at times quite obscure and bizarre answers to what would otherwise have been straightforward questions.
Just a few examples of this would suffice to illustrate this issue. One example concerns the fathers answer that he would prefer the child’s 70 year old non English speaking grandmother (rather than the mother) to accompany her on visits to the United States. There was also the father’s answer that rather than the mother paying for accommodation in the United States he would arrange accommodation with members of his family members or friends for her.
There was also the answer to questions about his awareness of communication between his current partner and the child to the effect that he was not “privy” to these discussions. These answers had a distinct air of unreality about them. Finally, there was his explanation in cross examination that communication on travel plans should be one month (as he argued) not three months (as the mother argued) because that left less time for arguments.
Indeed a consistent theme throughout the father’s evidence before the Court was his concern that any orders made should be sufficiently certain so that the mother would not have “another reason to deny visitation.”
When it was put to him squarely in cross examination the father denied making threats to the mother but did acknowledge involving the child in disputes with the mother. By way of explanation the father maintained his reason for copying the child into email exchanges was that he “was trying to show her I wanted to see her.”
Indicative of the mutual enmity that has marked the relationship between these two parties was his answer to a question in cross examination from Counsel for the Independent Children’s Lawyer about his proposal for when the child was older. The father’s answer was “I can give her better experiences than the mother, better than a normal teenager in [suburb omitted].”
However, illustrative of what may have been the underlying agenda between the two parties to these proceedings were the husband’s repeated and at times heated denials that he didn’t meet his child support obligations.
Sadly the answers the father gave in response to questions from Counsel for the Independent Children’s Lawyer highlighted the despair he felt about the ability to maintain a relationship with his daughter.
The father in answer to questions about how he maintained contact with the child said of arrangements before the commencement of the current proceedings for him to speak by telephone with the child that at the time he “knew her quite well.”
The father’s evidence in answer to questions from Counsel for the Independent Children’s Lawyer was he “had no confidence in orders”, that the wife had “never lived up to any order” and he brought these most recent proceedings because he wanted the child to “know I tried everything.”
The father’s consistent evidence in cross examination was that he believed the mother had been aggressive to him, and it was very difficult to have a normal conversation with her. He gave evidence he harboured bitterness against the mother (as a result of the circumstances surrounding and the outcome of the earlier Family Court and Hague proceedings) but he inexplicably said he didn’t believe it stood in the way of co-operation or that he was to blame for poor communication.
Also somewhat puzzling was the father’s evidence that he believed trust would be rebuilt when the child spent time with him. This along with the father’s repeated statements that he brought these proceedings to show the child he tried everything belied his claim that the proceedings from his point of view were about the child and not about him.
In short the father demonstrated little capability for insight into, and self reflection on, his behaviour or motives and (notwithstanding his claim to the contrary) exhibited the attitude that court orders he sought would assist meeting the child’s best interests as his position was the mother had to accept that “visitation will take place.”
In his evidence before the Court on 4 June 2010 the father detailed his reasons why he should be permitted to be an “equal parent” with the wife as “should be presumed.”[16]
[16] see exhibit A4
Whilst acknowledging he had been unable to reach agreement with the mother on decisions affecting the child, he attributed the blame for this to the mother’s actions and attitude.[17]
[17] Ibid

It seems to me that on the evidence in this matter the comments in Lansa are apposite in the context of this case on the issue of whether an order for equal shared parental responsibility is in the child’s best interests.
The submissions of the Independent Children’s Lawyer on this issue have already been set out at paragraphs 131, 142, 143 and 144 and elsewhere in these reasons. As the Independent Children’s Lawyer submitted the orders she contended for would “promote an appropriate relationship between the father and his daughter” and “on balance” and “in light of the evidence” an order for equal shared parental responsibility was in the child’s best interests.
The mother’s position was the Court should leave the position of parental responsibility to be governed by s.61C under which each parent has parental responsibility. In doing so there was no specific submission made addressing on what basis under s.61DA it would be appropriate to so order. The submissions made on behalf of the mother on this issue at least so far as I understand them also sought to make a virtue out of the messages that could send to the child that each parent has parental responsibility and that would enable the parties to be able to make decisions when the child was with them. However it was not clear whether that submission was made without reference to s.65DAE.
In this case, I am not convinced an order along the lines contended for by the mother on this issue would be in the child’s best interests. Whilst it does not provide that parental responsibility is to be shared it also means that neither parent has any greater responsibility that the other and in the circumstances of this case that could be more problematic from the perspective of outcomes for the child on decisions about long term issues.
In terms of the cases the mother’s submissions referred to[56] and at least on my reading of those cases, in Owens & Owens (No.2) [2010] FMCAfam 2 the Court did make an order for equal shared parental responsibility except on certain issues. The decision in N v M (2006) FLC 93-296 I believe can be distinguished on its own facts and in the decision in Oscar & Traynor [2008] FamCA 95 there was a finding of “an utter incapacity” to communicate. On the basis of all the evidence heard in this case including on 4 June 2010, I am not satisfied those cases are analogous to the facts here and instead I will bear in mind what was said in Lansa on the issue presently under consideration.
[56] see para.[139] above
During the course of submissions before the Court the parties were referred to the decision in State Central Authority & Quang [2010] FamCA 231. In that case Bennett J made an order for equal shared parental responsibility where one parent lived in Australia and the other parent lived in Spain. On the issue presently under consideration Her Honour said:
“132Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[57] In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility.[58]Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
[57] s.61B Family Law Act 1975 (Cth).
[58] s.61DA(1) Family Law Act 1975 (Cth).
…… issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a)the child’s education (both current and future); and
bthe child’s religious and cultural upbringing; and
c)the child’s health; and
d)the child’s name; and
e)changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
133.Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[59] The concept of joint responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[60] and to ‘make a genuine effort to come to a joint decision about that issue’.[61] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility shared.
134.The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted, inter alia, in the following circumstances:-
a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[62] or abuse of the child or another child who is a member of the parent’s family;[63]
b)Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[64]
135.I am not satisfied that this case falls within either category of exception. Whilst there is superficial attraction to the mother having sole parental responsibility because she is on hand to make most decisions, in my view it is quite unjustified and contrary to the children’s best interests to remove the father from that role.
136.I am satisfied that it is in the best interests of the children for the father to be consulted about the children’s education, religious and cultural upbringing and any changes to living arrangements which would make it more difficult for the children to have access to the father.
137.I have considered that the parents do not have a relationship in which they talk freely about the children. Nonetheless they are intelligent and capable people. I have regard to the fact that the father lives in another country so it is not going to be appropriate or reasonable for the mother to continually refer issues to him to see if they can reach agreement. However these major decisions do not arise often. In this case, the parties’ obligation to consult is likely to be met by the mother notifying the father, in comprehensive terms, of what she identifies the issue to be and what she proposes to do about it and the father being given an adequate time to consider the alternatives he wishes to put forward or whether proceedings in this court may be necessary.”
[59] s.65DAC(2) Family Law Act 1975 (Cth).
[60] s.65DAC(3)(a) Family Law Act 1975 (Cth).
[61] s.65DAC(3)(b) Family Law Act 1975 (Cth).
[62] s.61DA(2)(b) Family Law Act 1975 (Cth).
[63] s.61DA(2)(a) Family Law Act 1975 (Cth).
[64] s.61DA(4) Family Law Act 1975 (Cth).
On the material before the Court I am satisfied Her Honour’s comments are equally apt in the context of this case.
Certainly, evidence that communication between the parties was fraught and that trust between the parties was absent is a significant factor in this case. However, as the Independent Children’s Lawyer in this case made clear:
“…by the making of new Australian orders the statutory presumption automatically applies, the ICL urges the Court to ensure that the statutory presumption of an order for equal shared parental responsibility is presented as being inclusive of the orders made by the Court. The importance of this is that it is in the best interests of [X] that her parents fully appreciate they have equal shared parental responsibility for her. Herein, the emphasis is particularly on there being equality.”
If there is an order for equal shared parental responsibility this means that the parties must, in relation to long-term issues, consult with each other. Whilst the capacity of these parents to do so is problematic,

I still regard this as a better alternative than making an order such as contended for by the mother. Given the matters referred to earlier, as that concept effectively gives to the mother the status quo and continues the unfettered decision making power she has practised this would be highly problematic on the facts of this case and I am satisfied would not be in the child’s best interests.
I accept that such orders will require the co-operation of the mother, and that is as it should be, which as part of her parental responsibilities and will send an important and appropriate message to the child that it is a relationship (with the father) which should be promoted.
I note the submissions made by Counsel for the mother on

4 June 2010 that an order for equal shared parental responsibility is a ‘recipe for disaster’. However, I don’t accept the characterisation he sought to give Dr M’s evidence on this issue.
Contrary to the submissions made on behalf of the mother in my view Dr M’s opinion needed to be considered in context. As Dr M acknowledged in answer to questions from Counsel for the Independent Children’s Lawyer the issue did involve a balancing exercise, considering both positive and negative issues.
As noted earlier in response to questions from Counsel for the mother, Dr M did say he had grave reservations about such an order. However that evidence cannot, in my view, be taken in isolation from the whole of his evidence. I have already set out Dr M’s evidence on this issue and accept the Independent Children’s Lawyer’s submission on the matter (for reasons that I will expand on) that is consistent with the balance that Dr M said needed to be arrived at in this case on the issue of equal shared parental responsibility. I am also of the view that not only is an order for the parties to attend a parenting course in the child’s best interests but it is necessary for these parties (and the child) that there should be a restraint on either party discussing these proceedings with the child or denigrating the other in her hearing. This is necessary particularly as I am satisfied the mother has exposed the child to conflict and court proceedings and documents in the past. However, the identified need for those orders in and of themselves don’t in my view tell against an order for equal shared parental responsibility if it is in the child’s best interests.
I accept the question of an order for equal shared parental responsibility does involve a balancing exercise and I do have some hesitation about making an order for equal shared parental responsibility, because both parties seem to acknowledge that there is difficulty in their communication. However having considered the matter carefully and had the benefit of seeing both parties give evidence in my view the mother’s position on this was redolent of an attitude I am satisfied she has demonstrated where she saw a decision on this issue as part of a struggle for initiative and control rather than one to be determined in the child’s best interests.
The Court was left with sufficient concerns as to the attitude of the mother that an order for equal shared parental responsibility requiring the father to be involved in making decisions on long term issues for the child is I am satisfied in the child’s best interests. This is vital not only for the positive factors indentified by Dr M but so that the father can be involved in important matters such as decisions on education and not just seen as someone the child sees on school term holidays. In coming to that view I have taken into account that they are in different countries but they are both intelligent and capable people who can and should be able to make such decisions and follow the necessary processes to do so. To that end, and notwithstanding the difficulties Dr M referred to about getting them “metaphorically” in the same room there will be an order for the parties to pursue alternative means to resolve disputes before coming to the Court. Such an order would be in the child’s best interests and she will see both the parents having input into decisions on long term issues with the benefit that entails for the child (see Lansa at para.155).
There are reasons to be optimistic. I have no doubt these parents love the child and although the father was not asked questions along these lines the mother certainly was of the view that the child loved and was proud of her father. I am hopeful that with help and time problems between the parents can be overcome.
The parties will need to bridge their differences and develop a respect for one another as a parent of the child they created. The child’s best interests are clearly served by there being an order for equal shared parental responsibility. I would certainly hope that these parents will be able to deal with each other with that in mind and place the child’s best interests first. There is the need for both parties to attend a parenting program nominated by the Independent Children’s Lawyer to assist in communication. I would urge both parties to engage in those programs with an open mind and with the belief that it will help them indentify strategies to change the way they have problem solved in the past.
The presumption of equal shared parental responsibility does apply in this case. I am not satisfied in light of my discussion of the relevant factors that the exceptions in s.61DA(4), (or otherwise) apply. The Court was not asked to consider whether the presumption should be rebutted on any other basis.
For all the above reasons I am satisfied it is in the child’s best interests for there to be an order for equal shared parental responsibility.

Parenting Orders

In Hall & Hall (1979) FLC 90-713 at 78,819 the Full Court made certain observations of a general nature about the role of family reports and the evidence given by family consultants. In this case as the reasons given make clear I have had regard to that evidence. I am also satisfied that evidence has appropriately informed the recommendations of the Independent Children’s Lawyer. In terms of the father’s position as became clear at the hearing in June he largely adopted the submissions and orders sought by the Independent Children’s Lawyer and also didn’t pursue the issue of costs. The mother’s position has already been set out earlier. Turning then to a consideration of the necessary parenting orders flowing from the above conclusion on equal shared parental responsibility and the remaining issues between the parties identified above.
In MRR v GR [2010] HCA 4 the High Court said:
8.Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
Later in that judgment the High Court said:
“13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order…”
As there is to be an order for equal shared parental responsibility in this case I must apply the provisions of s.65DAA. In the light of the findings of fact and the s.60CC considerations set out above, I have considered as required by s.65DAA(1)(a) whether the child spending equal time with each of the parents would be in the child’s best interests. I consider that in the circumstances of this case and the position of the parties it would not be in the child’s best interests to spend equal time with each parent. I have next considered whether it would be reasonably practicable for the child to spend equal time with each parent, and I find that it is not.
Similarly, as I am required to do by s.65DAA(2)(a), I have considered in light of the findings of facts and the s.60CC considerations whether the child spending substantial and significant time with each of the parents is in the best interests of the child. I find that it is not in the circumstances of this case and the position of the parties.
I also find that it is not reasonably practicable. Accordingly, I propose to make an order in the child’s best interests having regard to my discussion of the relevant s.60CC factors set out earlier and the remaining issues between the parties.
In passing I note that all parties accepted that neither equal time nor substantial and significant time was appropriate, in the child’s best interests or reasonably practical in the particular circumstances of this matter. As the Independent Children’s Lawyer noted:
“…the child will still only spend just four weeks every year. Such a period fells far short of representing either equal time, (whereupon under an equal shared parental responsibly order, the Court is bound to consider pursuant to sub-section 65DAA(1) of the Act); or, substantial and significant time, (whereupon under an equal shared parental responsibly order, the Court is bound to consider pursuant to sub-section 65DAA(2) of the Act). Neither periods as referred to in section 65DAA(1) and (2) are practical. That is because of the tyranny of distance and its associated costs. However, the evidence points to the nature of relationship between the Father and [X] being sufficiently close that four weeks per year of face to face contact represents a bare minimal period of duration”
In light of the objects and the principles in s.60B, the consideration of the s.60CC factors, having had an opportunity to see both the father and the mother give evidence and considered the submissions made on their behalf I accept that a time spent regime as contended for by the Independent Children’s Lawyer is the bare minimum. However I am satisfied this will further the child’s best interests by promoting (and giving her an opportunity to have) a relationship with both her parents. I have come to that conclusion having weighed all of the other relevant considerations including the obvious practical and other difficulties.

There is the issue of the July 2010 NSW school holidays which are now just a few weeks away. I note when the Independent Children’s Lawyer’s proposal was made it was the end of March. The delay between then and the delivery of these reasons is unfortunate but explicable and of the parties own making. However that is not a reason that a time spent regime shouldn’t be started as soon as possible. I have considered the time that has elapsed since the father last spent time with the child in February.
So this discussion which is additional to and informed by the findings of facts and consideration of the relevant s.60CC factors made earlier can be understood and for the sake of completeness the Independent Children’s Lawyers submissions on the remaining issues (where they haven’t otherwise been noted already) are now set out.

Those submissions were:
Duration of the spend time period
The evidence of Dr M was that the appropriate period of holiday time would be one to two weeks.
Dr M in recommending the longer, two week period, took into the factor that there is such a considerable distance and associated financial costs associated with travelling from Sydney and the United States.
Another critical factor is that even with a two week period, the child will still only spend just four weeks every year. Such a period fells far short of representing either equal time, (whereupon under an equal shared parental responsibly order, the Court is bound to consider pursuant to sub-section 65DAA(1) of the Act); or, substantial and significant time, (whereupon under an equal shared parental responsibly order, the Court is bound to consider pursuant to sub-section 65DAA(2) of the Act). Neither periods as referred to in section 65DAA(1) and (2) are practical. That is because of the tyranny of distance and its associated costs. However, the evidence points to the nature of relationship between the Father and [X] being sufficiently close that four weeks per year of face to face contact represents a bare minimal period of duration.
Should there be an additional spend time holiday period in 2010?
The ICL supports the Father’s application that during 2010, the otherwise one mid year school holiday period should be replaced with two periods.
The past 14 months or so have represented a period where [X] has been exposed to high level conflict between her parents, and a strident attempt by the Mother to alienate her daughter’s relationship with her father. These issues will be expanded later in these submissions, with reference to particular evidence.
There appears to be nothing that would impact on the welfare of the child if any additional 14 day holiday period was added in 2010, allowing Father and daughter to catch up as it were on the lost time of the past 14 months.
Unfortunately, due the Mother’s unilateral and clandestine actions in arranging an European holiday during [X]’s April 2010 school holidays, this means that the relevant holiday period should commence in July in Australia for two weeks, and then in September in the United States, again for two weeks.
Specific dates of the spend time period for the shorter school holidays, if they are to take place in the United States.
The latter school holiday period in September 2010 should commence with [X] leaving Australia on the Thursday prior to the conclusion of the New South Wales Third Gazetted School Term, and then leaving the United States on the second and final Thursday of this shorter school holiday. This pattern should then follow every shorter school holiday period, (presumably always in July in subsequent years), if the spend time period takes place in the United States. Allowing for travel across the International Date Line, this means that the child will be in Australia by the Saturday prior to the commencement of the new school term, permitting her adequate time to prepare for school.
The ICL is conscious that this would mean that [X] misses 2 days of school, being the last 2 days of the school term. However such a scenario of up to 2 days of lost school is likely to arise on average only every two years.
The cost of implementing the spend time orders.
The costs may include the Mother’s decision to accompany [X] to the United States. The ICL supports a situation where, for at least for the first times [X] travels to the Unites States, the Mother or maternal Grandmother should accompany her from Australia. Such accompanying visits do not have to be subject to any order of the Court. That said, an order should be made that in relation to the Mother, permitting her no contact at all with [X], (including electronic and telephone contact), whilst she spends time with her father in United States.
The only contact between mother and daughter during these American holiday occasions should be initiated by the Father in the event of an emergency such as a serious medical issue involving the child. The ICL stresses the importance of the Mother not contravening any order that the Court may choose to make involving the strict no contact between Mother and child during these American occasions.
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The Independent Children’s Lawyer can meet with the child and there is still time for any necessary travel arrangements to be made. To that end I note it appears from submissions that were made to the Court in June that the child had been overseas with the mother since February. I also note that when the child spends time with the father in the United States (or otherwise if arrangements are made as they have been in the past) she can spend time with other members of the father’s family.
However because of the particular circumstances in this case, including the comments made by Dr M about introducing the time, the first period of time in July will be in Australia and the time in September will be in the United States. Otherwise for the reasons set out above there will be orders in terms of the Independent Children’s Lawyers proposal with the sequence of the time spent arrangement being as set out therein except for July and September 2010.
In this regard I note Dr M’s evidence before the Court was that it was more important in the child’s best interests to set up stable arrangements for the child to see the father, a phase in period for two weeks at a time was not necessary, matters would run more smoothly for the child if there was a clear understanding of arrangements and there was sufficient time for everyone to get used to it, and it was “wise” for the initial contact to be in a situation where the child felt comfortable. Accordingly, the first period will be in Australia and then in the United States.
Not surprisingly the issue of the costs of implementing time spent between the child and the father remained a vexing issue for the parties. However, as set out above, I accept the Independent Children’s Lawyer submission and proposed minute on this issue which is a common sense approach. Otherwise I accept there should not be a phase in period for the time spent and the duration of the time spent period should be as contended for by the Independent Children’s Lawyer.
In terms of time spent in 2010 (and subject to the comments and changes referred to above) the Court accepts the Independent Children’s Lawyers submission and the final orders in this matter will to a large extent reflect those. As in Lansa these orders have been designed with a view to minimising the opportunity for disputes between the parents. This also applies to the issues of changeover and notice of arrangements for time spent, costs and timing of the return of the child to Australia after periods in the United States.
The parties didn’t appear to consider and made no submissions on whether any orders made should be registered in the United States.

To that end if necessary responsibility should fall to the father. However I will not discharge the appointment of the Independent Children’s Lawyer until that process if necessary has been completed so any assistance necessary can be provided by the Independent Children’s Lawyer.

Conclusion

Without in anyway minimising the parental challenges, including those they will have in common with parents of most adolescents, the parties have ahead of them the Court hopes (whilst it will not be easy) that in time the child’s relationship with the father will blossom and both parents can rebuild or at least normalise their communication for the child’s sake.
These parties should put the years of litigation behind them and move forward. I hope that with the assistance of the parenting program and the certainty of defined parenting orders setting out time spent arrangements and processes to be followed the parties are able to put aside their anger, hurt, bitterness and frustration for the sake of the child and start to rebuild trust and communication.
Having considered the evidence before the Court and the submissions made by each of the parties, the Court is satisfied that the orders set out at the beginning of these reasons are in the child’s best interests.

I certify that the preceding two hundred and forty-six (246) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM

Date: 18 June 2010

see, for example, Hungerford & Tank (2007) FamCA 637 and M & S (2006) FamCA 1408 at
paragraph 36