FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROMIJN & MCIVER | [2017] FCCA 140 |
| Catchwords: FAMILY LAW – Relocation application by the father – long equal time arrangement post separation – mother leaves the child with the father for ten months to work away – mother enters new relationship and attempts to diminish and conceal domestic violence and its extent from the father and the Court – mother shows no insight into her behaviour in continuing with a relationship with her former violent partner and exposing children to the risks associated with that violence – father moves away for almost a year and has most of the holidays in the pre-trial period. When father returns mother refuses to return to the terms of the consent order for equal time and seeks to reduce the child’s time with the father. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA, 65DAA |
| Cases cited: Mazorski & Albright [2007] FamCA 520; Goode & Goode [2006] FamCA 1346; Cowley & Mendoza [2010] FamCA 597; A v A Relocation Approach (2000) FLC 93-035; B v B: Family Law Reform Act 1995 (1997) FLC 92-755; U v U (2002) FLC 93-112; Barnett v Barnett (1973) 2 ALR 19; Heidt (1976) 1 Fam LR 11576; Doyle (1992) 15 Fam LR 274; Huffman v Gorman (No.2) [2014] FamCA 1077; Lansa & Clovelly [2010] FamCA 80; Ulster & Viney [2016] FamCAFC 133. |
| Applicant: | MR ROMIJNMR ROMIJN |
| Respondent: | MS MCIVER |
| File Number: | CSC 296 of 2012 |
| Judgment of: | Judge Willis |
| Hearing dates: | 26-27 September, 10-11 October 2016 |
| Date of Last Submission: | 11 October 2016 |
| Delivered at: | (Town B) |
| Delivered on: | 10 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Priestly SC |
| Solicitors for the Applicant: | Crane Paskins Law |
| Counsel for the Respondent: | Ms Williams |
| Solicitors for the Respondent: | Cope Family Law |
| Counsel for the Independent Children's Lawyer: | Ms Lawrence |
| Solicitors for the Independent Children's Lawyer: | Mr Wright Murray & Lyons Solicitors |
ORDERS
That all previous orders and parenting plans be discharged.
Parental Responsibility
The Father and Mother shall have equal shared parental responsibility for the child [X] born (omitted) 2007 (“the child”) in respect of all major long term issues as defined in the Family Law Act 1975 (as amended).
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision. They are not, however, required to consult with each other about the daily care of the child. The types of decisions about which parents are required to inform and consult include by are not limited to changing the name of the child; relocating the residence of the child so that existing parenting arrangement becomes impracticable; changing the school of a child; and significant medical intervention for a child.
Living Arrangements
That the child…
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CaseChat Overview and Summary
The court's primary task was to establish orders that would best serve the child's interests, particularly concerning equal shared parental responsibility and the child's primary residence. Key issues included defining the scope of parental consultation for major long-term issues, specifying the child's living arrangements with each parent, and outlining communication protocols. The court also had to consider orders relating to schooling, international travel, and the exchange of information between the parents, as well as impose specific prohibitions on the Mother concerning contact with her ex-partner and travel to a particular country.
In its determination, the court ordered the discharge of all previous orders and parenting plans. It established that the Father and Mother would have equal shared parental responsibility for major long-term issues, requiring them to consult and make genuine efforts to reach joint decisions on matters such as the child's name, relocation, schooling, and significant medical interventions. The child was ordered to live with the Father in Town A, with specific provisions for the child to spend time with the Mother during school holidays and on Mother's Day, subject to certain conditions regarding travel costs and notice. The court also made detailed orders regarding changeovers, communication between the child and parents, schooling arrangements, the exchange of information, and international travel, including a prohibition on the Mother from allowing the child to travel to a specified country. Furthermore, the Mother was restrained from allowing the child to spend time with her ex-partner, Mr. McIver, and was prohibited from recording the child's time with the Father. Both parents were ordered to attend a parenting program and engage in dispute resolution before making further court applications.
Orders
Orders of the court
1.
That all previous orders and parenting plans be discharged.
Parental Responsibility
2.
The Father and Mother shall have equal shared parental responsibility for the child [X] born (omitted) 2007 (“the child”) in respect of all major long term issues as defined in the Family Law Act 1975 (as amended).
3.
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision. They are not, however, required to consult with each other about the daily care of the child. The types of decisions about which parents are required to inform and consult include by are not limited to changing the name of the child; relocating the residence of the child so that existing parenting arrangement becomes impracticable; changing the school of a child; and significant medical intervention for a child.
Living Arrangements
4.
That the child is to live with the Father in (Town A) in New South Wales. The timing of the departure of the child moving to live in (Town A) will be at the sole discretion of the Father.
5.
That the child live with the Mother at all times as agreed between the parents and specifically as follows:
(a) For the duration of the New South Wales Easter and June/ July school holidays;
(b) For the second half of the September New South Wales school holidays;
(c) For one half of the New South Wales Christmas school holidays being the first half in even numbered years and the second half in odd numbered years;
(d) The weekend of Mother’s Day each year from after school Friday until Sunday (ON THE CONDITION THAT the Mother meets the entire costs of the child’s travel) and provides no less than 21 days’ written notice to the Father of her intention to spend time with the child during this period.
(e) In the event the Mother travels to (Town A), the Father shall facilitate additional time between the child and the Mother provided the Mother gives the Father no less than 7 days notice in writing.
Changeover
6.
That the changeover’s to enable the child to travel to and from the Father’s residence and spend time with the Mother will be as follows:
(a) The parties shall arrange for the child to travel by plane from the Gold Coast or Brisbane airport (at the election of the Father) to the (Town B) airport, with the Father meeting the cost thereof of all school holiday periods as set out in Orders 5 (a) to (c) herein;
(b) The Mother will organise to meet the child at the (Town B) airport at the beginning of the time the child spends time with her in accordance with Orders 5 (a) to (c) herein;
(c) The Father will organise to meet the child at the Gold Coast or Brisbane airport (at the election of the Father) at the end of the time the child spends time with the Mother in accordance with Orders 5 (a) to (c) herein;
(d) Unless the child flies unaccompanied, the Father or his nominee shall travel with the child from the Gold Coast or Brisbane airport (at the election of the Father) to the (Town B) airport and the Mother or her nominee shall travel with the child from the (Town B) airport to the Gold Coast or Brisbane airport (at the election of the Father);
(e) Each parent is to be solely responsible for the cost of the accompanying person referred to in Orders 6 (d) herein.
Communication
7.
That the parties are to do all acts and things necessary to ensure that the child will communicate with her parents by telephone, Facetime and/or Skype at all times as agreed between the parties but failing agreement each Sunday and Wednesday with the Mother to initiate the call between 6:00 pm and 6:30 pm (Queensland time).
(a) Each parent is to ensure the child is available to receive the call;
(b) Each parent is to arrange for the child to call the other parent on the following night if, for any unforeseen circumstances, the child misses the telephone/ Skype call from that parent;
(c) Each parent is to ensure the child has privacy during the conversation.
8.
That the parties are to do all acts and things necessary to ensure that the child will communicate with the mother by telephone/ Facetime and/ or Skype on the following special days, with the Mother to initiate the call in the time frame specified below and the Father to facilitate same (assuming the child is not otherwise with the Mother):
(a) Mother’s Day between 9:00 am and 9:30 am;
(b) The Mother’s birthday between 5:00 pm and 5:30 pm;
(c) The child’s birthday between 7:00 am and 7:30 am;
(d) The child’s sisters’ birthday between 7:00 am 7:30 am.
Schooling
9.
Each of the parties are to do all acts and things and sign all documents required to ensure that the child attends the (School A) in (Town A), New South Wales.
10.
That the Mother and Father shall be permitted to attend all of the child’s school or sporting events at the child’s school, subject always to the discretion of the child’s school.
11.
Each parent is authorised by this Order, to receive from the schools or day care centres attended by the child information that is normally provided to parents about the child’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at that parent’s cost).
Exchange of information
12.
That the Mother and Father shall:
(a) Keep the other parent informed at all times of their residential address and contact telephone numbers;
(b) Keep the other parent informed of the identity of any treating medical practitioner or other allied health practitioners who treat the child. These Orders authorise those medical practitioners to provide each parent with information regarding the child’s medical conditions suffered from time to time and other relevant information that they are lawfully able to provide to a parent about the child.
(c) Inform the other parent as soon as reasonably practicable of any significant medical condition or illness suffered by the child.
13.
That 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 remove the child from the presence or hearing of any person doing so.
BY CONSENT IT IS ORDERED:
Restraint
14.
That the Mother is to do all acts and things to ensure that the child [X] does not spend any time with the Mother’s ex-partner, Mr McIver.
15.
That the Mother is restrained from travelling with the child to (country omitted) or permitting the child to travel to (country omitted).
IT IS FURTHER ORDERED:
16.
The Mother is prohibited from recording by whatever means the child’s time with the Father including all electronic communication.
Passport
17.
That within 14 days of a written request from the other parent, each parent will do all acts and things and sign all documents necessary for the issue or renewal of the child’s Australian and (nationality omitted) passports.
18.
In the event that either parent does not sign the respective passport application for either an Australian or (nationality omitted) passport, the passport is to issue notwithstanding that the other parent does not sign the application.
19.
That the Father is to hold the child’s passports and provide a passport to the Mother for the purposes of overseas travel upon her giving no less than 14 days notice of the requirement of the passport.
International Travel
20.
The parties are permitted to remove the child from the Commonwealth of Australia for the purposes of a holiday (noting however the restraint in Order 15 herein that the child is not to travel to (country omitted)) provided that it occurs during any time that the child is in their respective care as referred to in these Orders, or as agreed to in writing between the parties.
21.
That except in circumstances of urgency, each party shall advise the other of the proposed international travel (no less than 90 days prior to such travel) and regardless of urgency, provide to the other party travel details including copies of any flight itineraries, contact details of where the child can be reached and information in relation to where the child shall be staying throughout the entire travel period.
Courses
22.
The Mother and Father are to forthwith enrol and attend as soon as practicable the Parenting Orders Program (POP)/ to include the Focus on Kids program offered by Relationships Australia and each will file a certificate confirming his/her attendance and successful completion of such course with the Registry within 7 days of receiving it.
Dispute Resolution
23.
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 or by the Commonwealth Attorney-General; or
(b) Participate in family dispute resolution with a person authorised under s.10G of the Family Law Act 1975.
Other Orders
24.
Prior to the child relocating to (Town A), the Independent Children’s Lawyer and the Family Consultant are to meet with the child to explain the outcome of proceedings.
25.
The Mother and the Father are to attend at the Federal Circuit Court Registry with the child at 10:00 am on 11 August 2017. Thereafter, the Independent Children’s Lawyer is discharged.
26.
Neither party is to discuss the outcome of these proceedings with the child until after the Orders have been explained by the Family Consultant in the presence of the Independent Children’s Lawyer.
27.
All outstanding applications are removed from the pending cases list.
NOTATION:
A. That 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 set out in Attachment A attached to these Orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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