PORTER & ASCHAM

[2014] FamCA 818

FAMILY COURT OF AUSTRALIA

PORTER & ASCHAM [2014] FamCA 818

FAMILY LAW – CHILDREN – Final – With whom the children shall live – Where the parties were able to reach agreement that orders be made in terms proposed by the Independent Children’s Lawyer – Where the children have lived with the Father and had no time or communication with the Mother for almost four years – Where there are issues concerning the Mother’s health – Where the Mother seeks an order that the children’s contact details be given to her executor so that in the event of her death, the executor may liaise with the children concerning any bequest – Whether the Father should be able to obtain and hold passports for the children

Family Law Act 1975 (Cth)

APPLICANT: Ms Porter

RESPONDENT:	Mr Ascham
INDEPENDENT CHILDREN’S LAWYER:	Ms Adcock, Solicitor

FILE NUMBER: BRC 1837 of 2010

DATE DELIVERED: 25 September 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 25 September 2014

REPRESENTATION

FOR THE APPLICANT:	In person
FOR THE RESPONDENT:	In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Queensland

Orders

It is ordered by consent that:

1. The children, S born … 2001 and O born … 2002 live with the Father.

1. The Father have sole parental responsibility for the children.

1. The Father and Mother will keep each other informed of their contact address and telephone number and will immediately notify the other in the event there are any changes to those details.

1. The Mother be permitted to send letters, cards, gifts and photos to the children.

1. The Father is at liberty to open and view any letters, cards, gifts, photos or other correspondence received from the Mother and provided that such material does not provide inappropriate material, the Father is to hand to the children such letters, cards, gifts, photos or other correspondence to the children and they be encouraged to read, keep and respond to same.

1. The children be at liberty to telephone the Mother whenever they express a wish to do so.  The Father will facilitate such a call to be made to the Mother by the children.

1. The Mother shall not be permitted to attend the children’s school/s unless otherwise agreed with the Father.

1. The Mother is permitted to contact the children’s school/s and discuss with their teachers the children’s educational progress and to arrange to receive (at her cost) copies of the children’s school photographs, newsletters and report cards.

1. The Father will notify the Mother of the schools attended by the children.

1. The Father is to forthwith notify the Mother of any serious medical injury or life threatening emergency that the children may suffer and will provide to the Mother details of the treating medical practitioners or other service providers.  This Order will be an authority to allow the Mother to discuss with the treating medical practitioners or service provider the children’s condition.

1. Neither parent shall denigrate the other parent or member of the other parent’s household or family to or within the hearing or presence of the children and shall not allow any other person to do so.

It is further ordered that:

1. The Mother is permitted to provide the children’s contact details to the executor/s of her estate for the provision of any inheritance or bequest to be provided by the Mother to the children, in the event of the Mother’s death.

1. The Father is permitted to apply for passports for the children and to retain same in his possession.

1. In the event the Father intends to travel overseas with the children, twenty-one (21) days in advance of departure for such travel, the Father is to provide by mail to the Mother details of such travel including copies of the children’s flight tickets together with a travel itinerary setting out the times at which and places to which that travel will occur.

1. The Independent Children’s Lawyer be discharged.

1. The proceedings be removed from the pending cases list.

1. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the

   particulars of the obligations these Orders create and the particulars of the

   consequences that may follow if a person contravenes these Orders, and details

   of who can assist parties to adjust to and comply with an order, are set out in the

   document entitled “Parenting orders – obligations, consequences and who can

   help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1837 of 2010

Ms Porter

Applicant

And

Mr Ascham

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These parenting proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) concern the children, S born in 2001, now 13 years of age, and O born in 2002, now 12 years of age (“the children”).

2. The proceedings are of longstanding but, relevantly for present purposes, the Independent Children’s Lawyer (“the ICL”) appointed to independently represent the interests of the children in the proceedings, filed a Case Information document on 3 April 2014, setting out the orders that were proposed by the ICL to be made in the best interests of the children.

3. On the appearance by telephone of the ICL and Ms Porter (“the mother”) and Mr Ascham (“the father”) in person, it was confirmed that the parties had been able to reach agreement so far as those orders were concerned, with a couple of matters that remained in issue. 

4. The mother sought that, in addition to the orders proposed by the ICL, that she be able to provide the children’s contact details to her executor in the event of her death, and the need for the executor to liaise with the children concerning any bequest.  The remaining issue was in relation to whether or not the father should have the opportunity to obtain passports for the girls, and the holding of those passports. 

5. I am satisfied that it is reasonable that there be a provision in the orders for the mother being able to provide the contact details of the children to her executor for the purpose referred to. 

6. In terms or orders meeting these children’s best interests, it is rendered unnecessary to deal seriatim with each of the best interest considerations set out in s 60CC in circumstances where, after this period of time, the parties express their agreement with the minute of orders sought by the ICL.

7. Put briefly, the children have been living primarily or solely with the father since about 2009.  They have had no face-to-face time or communication with the mother since about December 2010.  There are issues in the proceedings as to the mother’s health and the cause of that, but the short point is that the children have now been living with their father since 2009 with little or no time or communication with the mother.

8. I have already referred to the feature that the children's interests were independently represented in these proceedings by an ICL. 

9. On 4 June 2013, the affidavit of Ms M was filed in the course of the proceedings.  Ms M is an experienced social worker who regularly provides family reports to this Court. 

10. Without recounting the contents of Ms M’s report, which I have read, I am satisfied that Ms M undertook a thorough process in terms of compiling her report, limited only by her inability by reason, apparently, of the mother's health, not to be able to have a face-to-face interview with the mother and, likewise, to have a somewhat limited telephone interview with her.

11. Ms M was able to review a range of subpoenaed material that had been provided in the course of the proceedings.  In the end, Ms M made these recommendations commencing at paragraph 32 of her report: 

    I recommend that [the father] have sole parental responsibility for making all decisions relating to [S] and [O’s] long term care, welfare and development.

12. At paragraph 33:

    I recommend that [S] and [O] live with their father.

13. At paragraph 34:

    I recommend that [the mother] be authorised to obtain newsletters and copies of school reports from the children's schools; to obtain information from the children's treating doctors and to be informed as soon as practical of any serious accident or illness affecting the children.

14. At paragraph 35:

    I recommend that [the mother] be at liberty to send the children cards, letters and presents if she chooses.

15. In the course of the hearing this morning, the mother confirms that she would not wish the children to see her in her current condition, but she would like to avail herself of the opportunity to send them letters and cards.  The orders proposed by the ICL, and now agreed to by the parties, make provision for that to occur.

16. As will be apparent from the brief restatement of the background of this matter, the father has been effectively undertaking the sole parenting of these girls since 2009, some five years.

17. In opposition to the father's application that passports issue, the first matter the mother raises is that the father holds dual citizenship in the United Kingdom.  The father seemed to be unaware of that or was unsure if that was the position but, in any event, the mother's raising that can only be in relation to the potential, as she put it, for the father to remove the children to the United Kingdom.

18. The United Kingdom is a party to the Hague Convention with respect to child abduction, which is enforced in Australia by the regulations under the Family Law Regulations.  In the event that the father were to remove the children contrary - or retain them in the United Kingdom, contrary to any provisions in parenting orders made by this Court, there is a process that can be undertaken under the Hague Convention, to deal with that aspect.

19. That aside, I am not satisfied in the circumstances of the background of this matter, that the father would unilaterally act to remove the children from Australia, or that he has some plan to do so in making the application he now makes.  I reiterate these proceedings have been on foot for a long time now, and one would have thought, if the father truly held any intention to permanently remove himself or the children from this jurisdiction, the application would have been advanced long before now.

20. The mother contends that the father is not to be believed because he fabricates matters.  With respect, that is not something that impacts upon what I have just said concerning the father's intention concerning the availability of passports.  Likewise, the mother asserts that the father does not comply with Court orders, but the practical reality of this matter is that the father has been doing, as I would term it, the hard yards of solely parenting two growing teenage daughters now for a long time.  I am not persuaded that the father would likely fail to comply with the orders that are now made.

21. The final contention by the mother is that there is a safety issue concerning the children travelling, and she refers to the feature that Australia and the United Kingdom are engaged in the current conflict with the Islamic State so-called.  It seems to me, however, that whether the children are in Australia or are in England, the unfortunate spectre of terrorist activity is over all of us wherever we might be at a particular time.  The father suggests that all he seeks is the ability to have passports to enable the girls to travel on holidays, and he mentioned New Zealand specifically.

22. It seems to me that if these girls can be provided with the opportunity and benefits that travel internationally provides, and the educational and life experiences associated with that, that can only be in their best interests.  The ICL suggested that there be an additional order in that respect so far as the father being obliged to provide in advance to the mother, copies of the relevant flight tickets for any proposed travel and for him to provide a copy of the itinerary, so that the mother will be aware of proposed travel in advance and where it is to take place.

23. The father expressed his agreement with an order to the effect that the mother have 21 days notice by mail in advance, where he copies to her the flight tickets and itinerary.  In my judgment, it meets the best interests of these children that they have the opportunity referred to, and the order proposed by the ICL and adopted by the father, provides an adequate safeguard to the mother if she has any concerns in future about any prospective travel.  The 21 day time period would allow her, if there are legitimate concerns, to activate action via the Court to deal with that concern should there be a need to restrain the father from having the travel take place.

24. The mother suggested that the children were not old enough to determine for themselves whether or not they wished to travel.  The practical reality is that parents regularly determine for children travel for overseas holidays and, in my experience in this jurisdiction both as a Judge and in the 20 or so years I was in private practice, I have not noted that there is any particular evidence of children being resistant to the prospect of being taken on an overseas holiday. 

25. I therefore, for all these reasons, am satisfied that the orders proposed by the ICL meet the best interests of the children, as is recognised by both of the parents in their agreement to those orders.

26. For these reasons I make the orders set out at the commencement of these Reasons.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 25 September 2014.

Associate: 

Date:  25 September 2014