Richards and Scotchmer

[2012] FamCA 1122

FAMILY COURT OF AUSTRALIA

RICHARDS & SCOTCHMER [2012] FamCA 1122

FAMILY LAW – CHILDREN – Where interim orders sought regarding where the child should live – where the mother is presently residing in Country C – where the child is living with the father in Australia – where the mother seeks interim orders allowing the child to reside with her in Country C until the mother acquires the necessary visa to return to Australia – whether the child should relocate to Country C on an interim basis – where the child is only 3½ years of age – where stability significant is a consideration – where orders made that the child remain living in Australia with her father.

Family Law Act 1975 (Cth)

Ciabo & Ciabo (1996) FLC 92-651
Goode v Goode (2006) FLC 93-286

APPLICANT: Ms Richards

RESPONDENT: Mr Scotchmer

FILE NUMBER: BRC 10715 of 2012

DATE DELIVERED: 18 December 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 18 December 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr MacDonald of MacDonald Law

COUNSEL FOR THE RESPONDENT: Mr Linklater-Steele

SOLICITOR FOR THE RESPONDENT: Baker O’Brien & Toll

Orders

IT IS ORDERED THAT

1. The matter be adjourned to Registrar Stoneham for all such further directions as might be required at 9.30am on 22 February 2013 and that unless otherwise ordered, such hearing shall be by phone.

2. The costs of the father be reserved.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The Applicant mother Ms Richards, born the … January 1985, her servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child the child B born … May 2009 (“the child”) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.

2. By 4.00pm on Friday 21 December 2012, the Applicant mother shall forthwith surrender into the custody of the Registrar of the Family Court of Australia at Brisbane, the passport for the child.

3. The said passport shall not be released without the express written consent of the parties or order of the Court.

4. The child shall live with the father.

5. The child shall spend time with the mother and communicate with her at all such reasonable times as might be mutually agreed upon between the parties but failing agreement:

   (a)By telephone on two occasions each week with the mother to telephone the landline telephone contact number of the father;

   (b)By Skype on two (2) occasions each week with the mother to place the call so as to fit in with the child’s sleep times and the father’s normal hours of employment;

   (c)Face-to-face contact as agreed.

6. In the event that the mother returns to Australia, the parties shall forthwith participate in family dispute resolution.

7. The mother and father shall:

   (a)Keep the other parent informed at all times of their residential address and landline contact telephone numbers;

   (b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners that treat the child and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child.

   (c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This order authorises any treating medical practitioner to release the child’s medical information to the other parent.

8. During the time the child is with either parent that parent shall:

   (a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;

   (b)Speak of the other parent respectfully;

   (c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

9. That in the event that there is a dispute about the child or about the interpretation, implementation or enforcement of these orders, the parents, before making any further application to a court, shall:

   (a)Either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) (“the Act”); or

   (b)Participate in family dispute resolution with an organisation or a person authorised under s 10G of the Act.

10. Pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Richards & Scotchmer 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 10715 of 2012

Ms Richards

Applicant

And

Mr Scotchmer

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. B (“the child”), born May 2009,  faces familiar but nonetheless incredibly difficult circumstances. Her parents are from different countries and the breakdown of their relationship coincides with circumstances that see one parent in one country and the other parent in a different country. 

2. Interim orders are sought by the Country C mother who, although the evidence does not reveal the same, is, it seems accepted, currently in Country C as a result of difficulty she deposes to in obtaining an Australian visa as a “spouse” and more latterly as a “parent”.

3. The evidence reveals that it was necessary for the mother to leave Australia on or about 7 December as her current immigration status changed when the relationship between she and the father broke down and no application to either renew an earlier visa, or apply for a different visa, has been made.  Her current situation is, as she deposes to it, that she intends to apply for a “parent” visa which will permit her to return to Australia.  The evidence reveals that this process might, if expedited, take as short as six months but may take as long as 18 months.  No greater precision can be given as to the likely timeframe. 

4. In the circumstances the mother seeks interim parenting orders from this Court, the effect of which would see the child living in Country C with her until such time as her immigration status is clarified at which time, she says, she intends to return to Australia. 

5. The father is suspicious of her expressed intention to return to Australia and points in particular to the fact that a new relationship formed by the mother in Australia sees, according to her affidavit, her new partner travelling to Country C.  Paragraphs 48 and 49 of the affidavit filed by the mother on 26 November 2012 pertain.  The mother deposes that her new partner has “made plans to travel to Country C” and goes on to depose that both she and her new partner are able to obtain employment with the same company by which she, and I gather the partner, were employed in Australia. 

6. It seems, then, that the mother’s current plans involve her living (presumably with her partner) in a place which she describes as a “satellite city approximately 45 minutes from the centre of [D City].”  She also deposes to “at least one of us” working with the company with whom she was employed in “[E Town] which is another satellite town nearby approximately 10 minutes away.” 

7. During the times that she is working the mother deposes that the child would be cared for by the maternal grandmother “or a good friend of ours or go to kindy programs.”  It might be observed that three alternative means of child care are proposed with none disclosed as being that which is preferred by the mother. Nor, axiomatically, is there certainty deposed to about the care arrangements. 

8. The parties to the proceedings met at a time when they were both working in Country C in 2006.  They commenced a de facto relationship in that country in May 2007 before returning to Australia about 12 months later where they commenced living in F Town.  They each commenced work at a hotel in that area at that time. 

9. About three months later, the mother became pregnant with the child.  The parties each changed employment. the child was born in May 2009.  At about that time the father had commenced work that involved him working from about 3 o’clock in the morning till about 5 o’clock in the evening.  He works four days a week as a result of those hours.  Whilst earlier having different jobs, the mother commenced work in August 2010.

10. The parties travelled to Country C for a holiday in December 2010 and married in that country in 2011.  They returned to Australia shortly thereafter. 

11. Significant to submissions made on behalf of the father, it ought be pointed out that on five separate occasions in the period between February 2011 and July 2012 the mother, as a result of travel associated with her work, left the child in the care of the father for periods from two days to six days, the latter being while the mother travelled to Country G for a conference associated with her work.

12. At about that time the mother became aware of difficulties in respect of her immigration status.  She deposes to difficulties which she confronted in that respect having travelled to Country C in August/September 2012 to visit her parents with the child.  When she left Country C, intending to return to Australia, her then visa was no longer current as she had missed a deadline for its extension. 

13. Ultimately, the mother travelled back to Australia at that time on a tourist visa.  The terms and conditions of that tourist visa saw her unable to work and access Australian services such as Medicare etcetera. 

14. Shortly after returning to Australia in August/September 2012, it seems the mother commenced a relationship with her current partner who was a fellow employee of the company by whom she is employed.  The current plans of the mother and her new partner, which involved him living and working with her in Country C, appear to have crystallised in the approximately two or three months from when she travelled to H Town to commence her relationship with her partner and her departure for Country C.

15. The current situation, then, is that as a result of the mother having to leave Australia by reason of those immigration difficulties on or about 7 December, the child has remained living with her father in the F Town area. 

16. It is important to note that as a result of the financial necessities associated with the parties’ earlier relationship and their respective remunerative activities, the child was cared for on a regular basis by Ms J of whom both parents speak highly in their material.  Ms J has sworn an affidavit filed 17 December 2012 and speaks of the activities that she has undertaken not only with the child but also with a number of other children which she describes as “hundreds of children” who have been through her day care service with the K Church.

17. Ms J deposes to three things of some significance relevant to these proceedings.  She deposes (as indeed does not seem to be uncontroversial for the purposes of these interim proceedings) to a good relationship between the child and each of her parents.  She also deposes, significantly, to a good relationship between the child and her.  So much is conceded effectively by each of the parties.  She also, though, goes onto depose to arrangements that she has been prepared to make to care for the child in the circumstances which the child and her parents confront as a result of the events of the last few weeks. In particular, Ms J deposes to the arrangements that she has made to take care of the child by reason of the father’s current work arrangements to which I have earlier referred and says that she has reduced her fees so as to facilitate that care. Ms J deposes to experience of having children in her care overnight and she is prepared for those arrangements “to continue for however long it takes.” 

18. In that respect the father submits that the current arrangements may not in the long term be desirable by reason of the obvious circumstances involving the child’s age and non-availability of a parent during those night time hours necessitated by his current employment.  The submission points out at the same time that, by reason of the extended hours of employment, the father works only four days out of seven and is available for the whole of three days out of seven to care for the child.

19. It is against that background, essentially, that the decision – which is made within the confines of interim proceedings and all that that implies, as to which see, Ciabo & Ciabo (1996) FLC 92-651 – that this decision is to be made. Similarly, the Full Court in Goode v Goode (2006) FLC 93-286 refer (in what were there interim proceedings) to the applicability of Part VII to proceedings of this type and make the point that, notwithstanding the restrictions inherent in the nature of interim proceedings and the fact that decisions in interim proceedings made ahead of a trial have to be made by reference to uncontested evidence or facts the veracity of which cannot seriously be challenged, there must nevertheless be a consideration (albeit a truncated consideration) of the relevant statutory matters which Part VII of the Family Law Act 1975 (Cth) (“the Act”) mandates.

20. Those matters include not only the Considerations contained within section 60CC of the Act but also the Principles and Objects.

21. Specific reference is made in each of the parties’ submissions with respect to parental responsibility. It is to be noted that the mother lives in Country C, a place significantly geographically remote from Australia where the father and the child live. 

22. Section 61DA(3) of the Act provides that when a court is making an interim order the presumption of equal shared parental responsibility applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

23. In my view, particularly when consideration is given to section 65DAC of the Act, the circumstances of this particular case do not render it appropriate for the presumption to be applied, and in my view, it ought not.

24. It does not necessarily follow as a result that, on an interim basis, an order should be made for parental responsibility which, it might be noted, pertains to major “long term issues” as that expression is defined in the Act. The Act provides in section 61C that each of the parents of the child retain parental responsibility in the absence of any order made by the court.

25. I do not consider it appropriate to make any order in respect of parental responsibility.

26. It is necessary to consider the section 60CC Considerations, albeit on a necessarily truncated basis within the context of the Objects and Principles to which I have already made reference.

27. Again, those Objects and Principles, and in particular the legislative desire to see both parents involved in the care of children, are necessarily shaped by the current geographical separation between the child’s parents. I bear that very much in mind in dealing with the relevant section 60CC considerations.

28. Neither party seriously suggests, at least within the context of these proceedings, that the child does not have, nor would not benefit from, a meaningful relationship with each of them.  Commendably, the material does not contain a series of petty allegations made by one against the other. These parents had, until the point of their separation, co-parented their child.

29. The benefit of the child having a meaningful relationship with each of her parents is not gainsaid by either party, and in my view, could not be. 

30. There is no suggestion in this case, blessedly, of any abuse or family violence. 

31. A number of Considerations directly relevant to the child’s current circumstances are raised on behalf of the mother.  The child’s age is referred to, as is, both inferentially and specifically, her stage of development. 

32. The written submissions helpfully prepared by the solicitor for the mother detail five issues, namely: in which parent’s care is the child going to be cared for more by a biological parent rather than others; the availability of extended family in close proximity to where the child is living; in which parent’s care will the child develop better during this crucial developmental period in her life; which parent will be more likely to facilitate time with the other parent; and, whether there should be joint parental responsibility. I have dealt with the last of these issues a few moments ago. 

33. I do not see any evidence before me, again emphasising that these are interim proceedings whereby I would be inclined to make a finding based on uncontroversial evidence or evidence the veracity of which could not seriously be challenged that either one parent or the other is more likely to facilitate time with the other parent.  The difficult circumstances in which each of the parents find themselves and, more importantly, the child finds herself, will, I would have thought, almost inevitably lead to some considerable conflict between the parents.  The tenor of the material is, however, that each of the parents have sought to rise above any conflict they may have between them for the child’s benefit and it can only be hoped that this continues.

34. It is also contended, both in the written submissions and orally, that the child will have the opportunity to know something of what might broadly be described as “the [Country C] culture”, which, of course, is said to be significant by reason of her mother’s nationality.  It is also pointed out that there will be an opportunity for the child to have a close relationship with the extended maternal family members.

35. To the extent that it is said that an issue as whether the child is to be cared for more by a biological parent in the care of one than the other, it seems to me that there is little to divide the parties. It is not, in my view, a matter of assessing hours or days and comparing the two, but rather comparing the nature and extent of the relationships that have erstwhile existed between the child and her respective parents. 

36. The reality for the child in her short life is that the economic necessity of her family grouping has meant that each of her parents have engaged in remunerative employment with particular considerations applicable to each.  In the father’s case, that has meant leaving for work extraordinarily early in the morning and working very long hours, but thereby availing him of three days in a week which he can spend full-time with his daughter. 

37. In the mother’s case, the necessities of her employment have seen her undertake a significant amount of travel, albeit for in the main very short periods of time of two or three days. Nevertheless, on each of those occasions it has been necessary for the child to adjust to the absence of her mother and she has remained in the care of her father. 

38. I repeat, this is not a case where the child has been cared for since birth by one parent effectively to the exclusion of another, remuneratively working, parent with the consequent ramifications that has for the relationship between the child and each of the parents.  Economic necessity has, I gather, fashioned the particular relationship that the child has with each of her parents and in that sense it seems to me that the father has been significantly more involved in the child’s development than might otherwise have been the case, given her age, had this family structure been organised in a way where the mother was not engaged in any form of remunerative employment and the father was.

1. It seems to me that the most significant issue for this child aged three and a half, where a decision is being made about her best interests between now and the hearing of any final application, is stability. 

2. The father’s case is that the child will be dislocated from the place in which she has lived for the whole of her life, and from the care arrangements with which she is plainly well-adjusted, to be taken to another country.  There she will not only be cared for in a different environment by different people, but also with the requisite necessity of adjusting to the mother’s new partner as a significant person in her young life. 

3. That is not in any way, shape or form to suggest that such an arrangement may, in the long term, if contended for by the mother, be contrary to the child’s best interests. That is ultimately a matter for agreement between the parties or final judicial determination.

4. Rather, it is in my view to recognise a reality that, in respect of these interim proceedings with all of the restrictions necessarily implicit in them, stability for a three and a half year old child is, in my judgment, a profoundly important consideration.  Indeed, it might be thought that the mother concedes as much because her case is not that the child should relocate to Country C to live with her and her partner on a full-time basis; rather her proposition is that the child should be relocated to Country C to live for an indeterminate period of time of somewhere between six months and 18 months only to be then relocated from Country C back to Australia. 

5. In terms of stability, which I assess as being the most important consideration for the child, all of the evidence points to the current arrangement for the child living in Australia with her father and her long-time carer as being in her best interests.

6. Accordingly, I am not persuaded that I should make orders that would see the child living in Country C in the interim. 

7. The orders sought by the father provide for the child to live with him.  That order will be made for the reasons I have just identified. 

8. The father also seek orders that the child spend time with the mother and communicate with her at all reasonable times as might be mutually agreed and otherwise by telephone on two occasions per week and by Skype on two occasions per week with the mother to place the call so as to fit into the child’s sleep times and hours of employment and the like. 

9. I make it plain, and indeed there is nothing in the evidence to suggest that this will not occur, that I consider it crucial that the child have all opportunities available to her reasonably to have time with and communicate with her mother.

10. Skype does not replace face-to-face time, telephones do not replace cuddles;  Skype and telephone communication do not replace face-to-face loving words.  Geographic separation means that a situation is frequently less than ideal, but I consider it in the child’s best interests that both parties make every effort to ensure that she has the best relationship with each parent as can possibly be arranged in these circumstances. 

11. I have no difficulty making the order, then, as sought in paragraph 7 of the application. 

12. “Face-to-face contact” is sought “as agreed”.  Again, I make it clear that, in circumstances where financial and other difficulties, including the obtaining of a tourist or other relevant visa can be overcome, I have an expectation that if the mother travelled to Australia, regular, frequent time with the child would be arranged.

13. Otherwise, the orders sought in paragraphs 10 and 11 are, it seems to me, uncontroversial. Similarly, the proposal that if the mother returns to Australia the parties participate in family dispute resolution is uncontroversial, as is paragraph 12 of the proposed orders.

14. I will reserve the question of the father’s costs. 

15. Otherwise, orders are sought so as to facilitate the prevention of the child being removed from the country. Specifically an order is sought that the child’s name be placed on the Airport Watch List and that her passport be surrendered to the court and not released without the express written consent of the parties.  The foundation for those orders is what counsel for the father, Mr Linklater-Steele, referred to as a “suspicion” or “concern” that the mother’s true plans are to live permanently in Country C with the child.

16. Mr Linklater-Steele points in particular to those paragraphs of the mother’s affidavit to which I have referred and the fact that, on her case, her partner has gone to Country C to join her in that country, and that employment in that country has already apparently been arranged, or is being arranged, for both of them. 

17. I need to make it clear in the context of these interim proceedings that I make no finding based on that suspicion.  However, as it seems to me, there is no prejudice on the evidence before me to the mother, or indeed to the child, if orders are made as sought. 

18. The mother is in Country C.  She deposes to specific difficulties in respect of her visa and it is important to note that the orders propose that the child’s passport be surrendered into the custody of the court, as distinct from the husband, so that both parents are in the same position vis-à-vis any travel with the child as is the other.

19. I order accordingly.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 18 December 2012.

Associate: 

Date:  24 January 2013