Snyder and Tesar

FEDERAL CIRCUIT COURT OF AUSTRALIA

SNYDER & TESAR

[2018] FCCA 3796

Catchwords:
FAMILY LAW – Children – final orders – 1 child aged 13 years – whether the mother should have sole parental responsibility for the child – whether the child should be permitted to travel overseas – whether the child should be permitted to travel to Country A with the father – where the mother is primary carer and has always made long term decisions for the child –where the father has perpetrated family violence on the mother – where the parents have a history of being able to facilitate the father’s relationship with the child from a distance even in the absence of formal orders – where the child wants flexibility and trusts his parents to be able to work out the appropriate arrangements for him – best interests of the child.

Legislation:

Family Law Act 1975 (Cth), pt.VII

Cases cited:

M & M (1988) FLC 91-979

Mazorski & Albright (2007) 37 Fam LR 518

Applicant:

MS SNYDER

Respondent:

MR TESAR

File Number:

NCC 1713 of 2017

Judgment of:

Judge Betts

Hearing dates:

24 - 25 October 2018

Date of Last Submission:

25 October 2018

Delivered at:

Newcastle

Delivered on:

12 December 2018

REPRESENTATION

Solicitors for the Applicant:

Self-represented

Solicitors for the Respondent:

Self-represented

ORDERS

That the Mother have sole parental responsibility for the child [X] born on …2004 (“the child”).
That the child live with the Mother.
That the child communicate with the Father by telephone, or by way of electronic communication, at all reasonable times and for that purpose:
(a)The Father is to initiate the communication;
(b)Each parent is to ensure that they provide the other parent with that parent’s current home address, mobile telephone contact number and any mobile telephone contact number for the child;
(c)The Mother will ensure that, whenever possible, the child can communicate with the Father on the telephone (or on the iPad or other electronic device) in a private and quiet environment;
(d)In the event that the child expresses a wish to communicate with the Father by telephone or other electronic communication, the Mother will facilitate that occurring.
That the child spend time with the Father:
(a)During school holiday periods at all reasonable times as agreed in writing between the Mother and the Father. In the event that the child is to travel by air to spend time with the Father, then unless otherwise agreed by the parents in writing, the Father is to be solely responsible for the child’s flight costs and is to provide the Mother with proof in writing that he has paid for return air tickets prior to the Mother sending the child to him.
(b)During school terms in the Town 1 area or Town 2 area at such reasonable times as agreed between the parents in writing, with the Father to ensure that the child attends any extra-curricular activities during those times unless otherwise agreed between the parents in writing.
That the Mother retain the child’s passport in her possession except at times when the Father has the child’s passport pursuant to these orders.
That pursuant to section 11(1)(b) of the Australian Passports Act 2005 and section 65Y of the Family Law Act 1975, the Mother be at liberty to travel overseas with the child whether or not the Father consents to such overseas travel.
That in the event the Mother wishes to travel overseas with the child, she is to provide the Father with not less than forty-two (42) days prior written notice of such overseas travel, which notice is to include:
(a)A copy of the child’s paid airline tickets to and from the Commonwealth of Australia;
(b)An Itinerary;
(c)A contact number or numbers on which the child can be contacted overseas.
That in the event the Father wishes to travel overseas with the child:
(a)The Father is to notify the Mother in writing of his proposal not less than four (4) months prior to the proposed travel, which such notification to include the Father’s proposed itinerary;
(b)The Mother will respond to the Father’s request in writing within twenty-one (21) days of receipt;
(c)The Mother is not to unreasonably withhold her consent to such travel noting that the court considers that there is not an unacceptable risk to the child in travelling overseas with the Father to Country A and that the child would likely benefit from such travel;
(d)In the event that the Father’s overseas travel with the child is agreed between the parents, the Father is to provide the Mother not less than twenty-one (21) days prior to such overseas travel, with written notice of such travel which is to include:
(i)A copy of the child’s paid airline tickets to and from the Commonwealth of Australia;
(ii)An itinerary;
(iii)A contact number or numbers on which the child can be contacted while overseas.
(e)In the event that the Father’s overseas travel with the child is not agreed, then the parents are to jointly participate in family dispute resolution as soon as can be arranged, with the costs of same to be shared equally between the parents.
(f)In the event that the Father’s overseas travel with the child remains unable to be agreed after family dispute resolution, then the Father has liberty to apply to the court for orders permitting such overseas travel.
The Mother is to provide a copy of these orders to the child’s school as soon as possible.
These orders authorise the child’s school to provide the Father (at his expense) with copies of all documents normally sent by the school to parents of a student. For the purposes of this order, “documents” includes (but is not limited to) the child’s school reports and the child’s school photographs (including the relevant order forms).
Each parent is to urgently notify the other parent in the event that:
(a)The child experiences a medical or other life-threatening emergency; or
(b)The child is hospitalised.
By consent, notwithstanding that the Mother has sole parental responsibility for the child, the Mother is hereby restrained from changing the child’s name.
For the purpose of these orders, “writing” includes text messages and emails.

THE COURT FURTHER ORDERS THAT:

By 4pm on 2 February 2019, the Mother is to file and serve written submissions in support of her costs application AND such submissions are to annexe all relevant documents concerning the costs she has paid to her previous lawyers in these proceedings.
By 4pm on 2 March 2019, the Father is to file and serve written submissions in response to the Mother’s costs application.
The submissions referred to in order 14 and 15 herein are to specifically address the matters raised in section 117(2A) of the Family Law Act1975 (Cth).
The costs application will be determined in Chambers.

NOTATIONS:

(a)The child has expressed the clear wishes to the Family Report writer in these proceedings that he does not want prescriptive orders for time with the Father but wants to have flexibility. The child trusts that the parents will be able to make the necessary arrangements for him. The Court holds the same view and is satisfied that the child will continue to enjoy meaningful time with the Father pursuant to this order notwithstanding that the order itself is not prescriptive.
(b)Noting the child’s age, both parents have advised the Court that they will respect the child’s wishes and it is on the Court’s expectation that the parents will do so. On that basis, the Court considers it unlikely that there will in fact be a future dispute as to the Father’s overseas travel with the child.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1713 of 2017

MS SNYDER

Applicant

And

MR TESAR

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript.

Introduction:

These are parenting proceedings brought pursuant to the provisions of Part VII of the Family Law Act (“the Act”). They involve a child, [X], born …2004, who is turning fourteen (14) in a few weeks’ time (“[X]”).
The applicant in the proceedings is [X]’s mother, Ms Snyder (“the mother”). The respondent to the proceedings is [X]’s father, Mr Tesar (“the father”). He was born in Country A but is now an Australian citizen and has lived here since 2004.
By way of brief history, the parents met and formed a relationship in Country B in 2003. They married there in 2004 and settled later that year in the Town 3 region. [X] is their only child together. Their relationship was an unhappy one. They separated in 2005 at a time when [X] was only about six (6) months old.
[X] has always lived with the mother.
The father has lived in Darwin since around 2012. The mother has since moved away from the Town 3 area and now lives at Town 2, New South Wales.
There have never been any parenting orders in place. Though it has been at times difficult, the reality is that over the years since separation (and continuing even now), the mother and father have been able to facilitate the father spending time and communicating with [X].
The proceedings were in fact only commenced by the mother in 2017 because the parents had, regrettably, reached an impasse in relation to [X]’s passport and overseas travel. Specifically, the mother wanted to take [X] on an overseas holiday to Country C. However, the father refused to sign his passport application. This was because, in his view, the mother was not being fair in relation to overseas travel in that she would not consent to the father taking [X] to Country A – something he had been unsuccessfully requesting for some time.
The father refused to participate in family dispute resolution. His evidence was that the mother should be responsible for the cost of any mediator because she was being unreasonable in not agreeing to him travelling to Country C with [X].
It was the issue of overseas travel that effectively brought things “to a head”.
On the first return date (12 September 2017), his Honour Judge Middleton ordered that the father sign [X]’s passport application. On the next mention of the proceedings (3 November 2017), the father consented to the mother taking [X] to Country C.
The proceedings then continued on - as most notably the issue of Country A travel remained unresolved.
By the time the proceedings finally come on for trial before me in late October 2018, [X]’s childhood was effectively three-quarters finished. In a little over four (4) years [X] will be an adult and able to make his own decisions. His age and his wishes are noted and respected by each parent and form the backdrop against which this case must be decided. Indeed, by the time of closing submissions the issues had narrowed significantly. Essentially each parent took the position that they would be respecting [X]’s wishes in relation to the future parenting arrangements.
The father conceded that he did not want to take [X] to Country A if [X] didn’t want to go.

[X]’s family:

The mother is thirty-nine (39) years old. She now lives at Town 2, New South Wales, with her partner Mr C. The mother and Mr C have been in a relationship since …2013 and are both professionals by occupation.
The children in their household are:
(a)[X];
(b)Mr C’s daughter, [L], who is twelve (12) years old (“[L]”) and who lives with them as part of their family unit in alternate weeks and for half school holidays. [X] has developed a good relationship with [L] much akin to a sibling relationship;
(c)The mother and Mr C’s baby daughter, [M], born on …2018 (“[M]”).
The father is forty-five (45) years old. He was born in Country A but is now an Australian citizen.
After separating from the mother, the father entered into a relationship with one Ms D. Together they had a daughter, [N], born …2009 who is nine (9) years old (“[N]”).
The father separated from Ms D and for a period was working in Sydney before ultimately moving away to Darwin. Ms D and [N] continue to live at Town 3.
In Darwin the father re-partnered with a woman, “Ms E”, and they have a daughter together, [O], born …2014 and presently four (4) years old. The father and Ms E have since separated, but the father sees [O] regularly and the parents remain on good terms and may even reconcile.
The father’s main income is tradesman, although he does some casual work as a tradesman in the Darwin area as well.
To their credit, both of [X]’s parents, and Ms D, have facilitated [X]’s ongoing relationship with [N]. The mother has travelled to Town 3 to facilitate that contact at different times.
[X] has maintained an ongoing relationship with [O] in Darwin.
To the extent that dates of events are in issue between the parents, I would note here that as a general statement the father’s evidence is the more reliable of the two parents. His evidence was, for instance, far more accurate when it came to the number and dates of his visits with [X] post-separation.

The trial:

The mother had unsuccessfully sought to adjourn the trial given the upcoming birth of [M] but the court refused the adjournment on the basis that the matter needed to be resolved.
The mother’s solicitors filed a Notice of Withdrawal in the week prior to the trial. In the result, both parents were self-represented.
In the circumstances, I allowed significant latitude to both parties in terms of running their case. Each was allowed to rely not only upon their filed affidavit evidence, but also upon some additional oral evidence-in-chief which each gave in order to clarify matters and update the court.
The formal documents relied upon by the mother were her Initiating Application filed 13 June 2017, her affidavit filed 13 September 2018 and the affidavit of Mr C filed 13 September 2018. She also filed an Outline of Case Document which had been prepared by her former legal representatives and which was filed on 18 September 2018.
The father relied upon his Response, affidavit and Notice of Risk all filed 1 November 2017. He had not filed any affidavit material pursuant to the trial directions.
The court also had the benefit of a Child Inclusive Conference Memorandum prepared by Family Consultant Ms F on 6 October 2017 which became exhibit “C1” at trial. Ms F had also prepared a Limited Issues Family Report dated 21 December 2017 which became exhibit “C2”. Ms F was not required for cross-examination by either party.
During the trial, various documents which had been obtained under subpoena were tendered into evidence and I will refer to these as relevant. The mother also provided a bundle of text messages exchanged between the parents.
I have had regard to all of the above material.
I have also had the benefit of watching the parents give their evidence and observing their demeanour both when asking questions and answering them.

The law:

Parenting cases are determined pursuant to the provisions of Part VII of the Act. The meaning of a “parenting order” is defined in section 64B. The court may make such parenting order as it considers proper. The best interests of the child are the paramount consideration: section 60CA.
The objects and principles which underpin the operation of Part VII are set out in section 60B.
Section 60CC of the Act prescribes a range of mandatory considerations in arriving at an order which is in the best interests of the child.
“Parental responsibility” is defined as encompassing all duties, powers, responsibilities and authority conferred by law upon parents: section 61B.
Section 61DA creates a rebuttable presumption that the child’s best interests would be served by an order allocating equal shared parental responsibility to each of the child’s parents. The presumption does not apply if there are reasonable grounds to believe that one of the child’s parents has engaged in abuse of the child or family violence.[1]
[1] “Abuse” is statutorily defined in section 4; “family violence” is statutorily defined in section 4AB
If two (2) or more persons share parental responsibility for the child, then section 65DAC requires that there be consultation and agreement between such persons in respect of any major long-term decisions that need to be made in relation to the child. Section 65DAE provides that any day-to-day decisions for the child do not require such consultation.
In the event that a court makes an order allocating equal shared parental responsibility to the parents then the court is obliged to follow the statutory pathway set out in section 65DAA of the Act.[2]
[2] See Goode & Goode (2006) FLC 93-286
The court cannot make a parenting order which exposes the child to an “unacceptable risk” of harm as explained by the High Court’s decision in M & M (1988) FLC 91-979. The mother in this case submits that [X] would be placed at “unacceptable risk” of harm in the event that he was to travel overseas with the father. I note in this regard that Country A is not a signatory to the Hague Convention and one of the issues raised by the mother is her concern that [X] may be unlawfully retained there. I will discuss that issue later herein.

Best interests considerations:

I now turn to the relevant section 60CC considerations, starting with the primary considerations in section 60CC(2).

Section 60CC(2)(a) – benefit to [X] of having a meaningful relationship with both parents:

In this case I am comfortably satisfied that, notwithstanding some difficulty between the parents since separation, both parents have nonetheless been able to put [X]’s needs for a meaningful relationship with the other parent to the forefront. I do not suggest that it has always been easy but the parents have been able to do it. Even though the father makes criticisms of the mother not promoting his relationship post-separation, I do not consider those criticisms are warranted. In my view both parents have properly facilitated [X]’s relationship with the other parent.
The concept of a “meaningful” relationship was explained by Brown J in the decision of Mazorski & Albright (2007) 37 Fam LR 518. His Honour emphasised that a meaningful relationship relates to the quality of the relationship rather than the quantity of the relationship. It is more of a qualitative adjective than a quantitative one.
The mother has always been [X]’s primary carer and there is absolutely no doubt that he has a meaningful relationship with her. But I am also comfortably satisfied that the father has a meaningful relationship with [X] even though he lives a significant distance away.
I reject the father’s complaint that the mother was “controlling” of his time with [X] after separation. In my view, the mother properly facilitated the father/son relationship - noting also that the father had moved a significant distance away which created its own problems.
I also record here that the father has in fact spent quite a bit more time with [X] post-separation than the mother’s affidavit had referred to. This even included an overseas trip to Country A. The mother conceded such matters in the witness box.

Section 60CC(2)(b) – protecting [X] from harm arising as a result of abuse, neglect or family violence:

The mother’s evidence is that the father was difficult during their relationship and that there were a number of occasions when he acted in a violent manner towards her, ultimately leading to the breakdown of the relationship.
Her evidence essentially paints the picture that the father was a domineering partner who was at times physically violent to her. She gives one particular example in her affidavit where she says that the father was angry at her for not having dinner ready when he got home. [X] was only a baby at the time. When the mother tried to explain that she had had a difficult day the father became angry, dropping [X], and undertaking a sweeping martial arts-style kick to her legs and stomach which caused her to fall heavily to the floor. [X] was obviously present and witnessed it.

The father denied this event. His evidence in the witness box was that he was defending himself on this occasion and that the mother was the aggressor – that she attempted to kick him while he had [X] in his arms. He said he was purely acting in self-defence.
The father was charged with, and convicted of, the offence of common assault in relation to this matter, as set out in exhibit “M2”. The father’s version of events is inconsistent with his conviction for assault. The reality is that a Magistrate found the father guilty of the offence after hearing all of the evidence at the relevant time and I consider that I am bound by that finding of fact.
Moreover, I do not accept that the mother physically attacked the father at a time when he was holding onto baby [X].
In respect of the offence of common assault, the father was placed on a section 10 bond pursuant to the Crimes Act for a period of twelve (12) months.
The mother obtained an Apprehended Violence Order against the father as a result of this event. That AVO expired in 2008.
I also accept the mother’s unchallenged affidavit evidence that post-separation the husband cleared their bank account and left her with the debts of the former marital business, with the result that she ended up having to declare herself bankrupt.
In mid-2010 the father left a threatening message on the mother’s telephone answering machine. In that message the father said that he wished he had never met the mother; he wished he had never had a child with her. He ended by saying that he wished she was dead. The mother took the message to the Police, who confirmed its contents and they then took out a further AVO application for her.
In his evidence the father conceded that he had left the mother an abusive message around that time and that the mother had obtained another AVO.
In my view the father acted in anger when he left the answering machine message and I have little doubt that his conduct constituted an act of family violence.
Having seen both witnesses in the witness box, it is clear to me that the mother was the victim of some family violence from the father and I accept her evidence as to same. This has led to some understandable resentment.
However, while there is some family violence history in this matter, the last such act was the father’s telephone message in 2010. While the parties do have some tension in their co-parenting relationship, it is my view that, factually, family violence does not loom as a particularly large consideration at this time.
Family violence nonetheless forms part of the background history and it has relevance in terms of both parental responsibility, and the statutory pathway which I am obliged to follow.

Section 60CC(3)(a) – [X]’s views:

[X] has twice been interviewed by Ms F.
In his first interview in the Child Inclusive Conference Memorandum, at page 2, [X] explained to Ms F that he had no concerns for his safety in either parent’s care. He said that while he enjoyed spending time with his father and would like to continue to do so, his preference was to spend time with his father by arrangement in accordance with his wishes.
[X] did not want to be tied down to a specific half-holiday arrangement as it might impede his ability to find part-time work, particularly as he got older. He was confident that his mother would permit him to have a say in the arrangements to spend time with his father as had happened previously. He confirmed that he was speaking to his father on social media. His specific “message to the judge”, and to both his parents, was that he would like to be able to spend time with his father when it suits both of them rather than being forced to stick to a schedule.
[X] wanted the passport issue sorted out, understandably, so that he could travel overseas with his mother and other family members and he said he would not be adverse to going to Country A with his father at some point in the future.
In the subsequent Limited Issues Family Report at paragraphs 38, 39 and 41, [X] expressed much the same views. He was quite emotional when asked about his wishes on this occasion, describing the current proceedings as very stressful. He again emphasised that he did not want orders setting out exactly where and when he has to spend time with his father and would prefer to see him for relatively brief blocks of time by arrangement.
He told Ms F he did not want to have to travel to Darwin regularly as he likes to spend time with his friends locally and there is not much to do in Darwin. He said he would like to talk to his father about holidays but then leave it up to his mother to make arrangements as he was certain that she would support his wishes where possible. He genuinely did not want to get involved and was happy to let the adults work things out for him.
In the opinion of Ms F, [X] was ill-equipped to make important major long-term decisions but nonetheless, his wishes needed to be taken into account and given weight particularly given the care history in his life and the fact that his father was living away from him.
The mother told Ms F[3] that the arrangement that she thought would best suit [X] would be one that allowed her to discuss with him the option of spending time with the father, and for the mother to have the final say for when and how long those visits should be on the basis that when [X] gets older he will be able to make the arrangements himself.
[3] Paragraph 30
The father told Ms F that, while he was seeking orders for half of school holiday periods with [X], he nonetheless would ask [X] prior to holiday periods whether he wished to travel to Darwin and that he would understand if [X] said he had made other plans and did not want to come.[4]
[4] Paragraph 32
Both parents in the course of this trial accepted that significant weight should be attached to [X]’s wishes. Both parents made it clear that, going forward, they intended to respect [X]’s wishes.

Section 60CC(3)(b) – nature of [X]’s relevant relationships:

[X]’s primary attachment is to his mother. He also has a close relationship with Mr C, who is effectively his step-father. The father did not challenge Mr C’s affidavit evidence as to his relationship with [X] and I give the father credit for not doing so. The father accepts, quite appropriately, that Mr C is a significant person in [X]’s life. [X] also has relationships with his step-sister [L] and with his baby sister [M].
[X] has a meaningful relationship with his father. In addition to visiting the father, [X] can communicate with the father on a mobile telephone that the mother and Mr C have provided to him.
[X] has a relationship with [N] who lives at Town 3. He has a relationship with [O] who lives in Darwin with her mother Ms E with whom the father maintains apparently a good relationship.
[X] is no doubt a much-loved member of both the father’s family and the mother’s family.
At this time [X] has no real opportunity to develop meaningful relationships with the extended paternal family in Country A, and I will address that matter later herein.

Section 60CC(3)(c) – extent of parental involvement in [X]’s life:

The mother has been fully involved in [X]’s life.
The father did move away from [X] around 2012 although I accept that this was for work reasons. I accept the mother’s evidence that, after the father moved away to Darwin, he wanted the mother to send [X] to him for six (6) months and that she refused – following which the father stopped contact with [X] for a time. [X] was genuinely upset and as a result the mother organised some counselling for him with the school counsellor. It would appear that this was around 2012/2013 rather than the date set out in the mother’s affidavit.
Though the mother was incorrect about dates, her evidence as to the counselling [X] required was nonetheless compelling and persuasive. The father denied that he stopped contact but on balance I prefer the mother’s evidence on this issue. In short, I find that the father was annoyed at the mother for not agreeing to his “six (6) month plan” – a plan which I note was in fact implemented between the father and Ms D in relation to [N].
I also accept the mother’s evidence that the father was at times emotionally abusive or disengaged from [X] during phone calls with him.
For what it is worth, sending [X] to Darwin for six (6) months would not likely have been an appropriate thing to do given that [X] was living in a stable and settled environment with the mother.
Notwithstanding this difficult period, the father nonetheless maintained an involvement with [X] from a distance – telephoning him and seeing him during school holidays. He did however lack a day-to-day knowledge as to [X]’s school and his schooling situation, his friends at school and the like. In fact at trial the father was not aware of which school [X] was even attending.
To the credit of both parents they had in fact arranged a weekend visit between [X] and the father - to coincide with the time of the trial. When I was advised of this, I suggested that the father take [X] back to school after the end of the weekend visit and actually meet his friends and teachers. Both parents readily agreed to that suggestion and I consider it was a very good thing for [X].
In summary, the mother has always been there for [X], and has made all of the decisions needed for him. There has been some inconsistency from the father in past times, however I accept his evidence that he genuinely desires to be actively involved in his son’s life and just wants to “be there for him” going forward.

Section 60CC(3)(ca) – extent to which each of the parents has fulfilled their obligation to maintain [X]:

I accept the mother’s unchallenged evidence that after separation she was left in a very difficult financial position as set out earlier herein.
In the early days post-separation, the Child Support Agency (“CSA”) assessed the mother to pay child support to the father due to the difference in their declared incomes. The father never pursued such payment. His position was that neither parent should pay child support to the other and that this was an agreement the parents had entered into.
The mother was clearly unhappy with that arrangement and she pursued child support through the CSA.
As a result, the father became somewhat resentful that she had “reneged” on what he understood to be their agreement.
The father has been recalcitrant in paying child support to the mother ever since. Around 2015, the father found himself unable to leave the country due to his child support arrears, an issue that he resolved at the time by making a part lump sum payment to the CSA. The mother annexes to her trial affidavit a Certificate from the CSA which confirms that there as at 15 August 2018, the father owed her $3,825.12 in arrears.
The father has not paid the mother any child support since 2015.
The father takes the view that he should not have to pay child support to the mother and that he would prefer to spend money directly on [X], such as by purchasing him clothes, shoes and the like.
In one sense I can understand why the father wants to be able to be the parent who “buys things” for [X], perhaps in an endeavour to assist their relationship, particularly given that they live at a distance. But unfortunately, the practical reality is that the absence of any consistent child support paid by the father has caused the mother a degree of unnecessary and avoidable financial burden.
I have no doubt the mother would prefer that the father pay her some regular child support to put food on the table, clothes on [X]’s back, and generally to meet all of the usual day-to-day expenses involved in raising a child, particularly one as active, sporty and seemingly multi-talented as [X].
I have no doubt that the mother’s ongoing expenses relating to [X] are significant. I consider that the father’s attitude towards payment of child support is somewhat regrettable. I do not think that he fully appreciates the difficulty that his attitude to child support causes.
In relation to child support, the father’s attitude is that he is the “victim”. The mother however is the victim. Child support is a source of simmering resentment between the parents. It is unfortunate that the father has not paid more to the mother by way of child support. The practical effect has been that, since separation, the mother has borne the overwhelming brunt of [X]’s living costs.

Section 60CC(3)(d) – likely effect of change in [X]’s circumstances:

Neither parent is proposing any change in [X]’s living arrangements. In my view, [X] can cope with continuing to see the father regularly, and I intend to make orders that preserve stability and predictability in [X]’s life without any substantial changes.

Section 60CC(3)(e) – practical difficulty and expense of spending time and communicating with a parent:

In this case there are practical difficulties. The father lives in Darwin, the mother lives at Town 2. However, the parties have navigated their way around this problem up until now and in my view they will continue to be able to do so for [X]’s sake.
The cost of flights has been a source of some specific difficulty between the parents, particularly against the backdrop of the child support issues. I therefore intend in my orders to address flight costs in a way that will hopefully minimise or avoid the risk of future argument.

Section 60CC(3)(f) – parental capacity:

The mother has a proven capacity to provide for [X]’s needs.
The father is able to adequately provide for [X]’s needs during their visits together.

Section 60CC(3)(g) – maturity, sex, lifestyle and background of [X] (including cultural issues):

The father is originally from Country A. He has significant extended family there.
The mother and Mr C support [X]’s Country A culture to the extent that they can. In particular, they cook Country A food and in their home they keep photographs of the father’s extended family members. Such matters are to their credit.
That said, the father is in a much better position to expose [X] to his Country A culture, and no doubt the best way to expose him to that culture in all its fullness is to enable [X] to travel to Country A. This issue has been a source of great tension between the parents but in my view, a trip to Country A would be very culturally enriching for [X] as well as exposing him to large numbers of extended family members, including the paternal grandparents.
Cultural issues do loom large in this case, and I will address these matters further in the context of overseas travel.

Section 60CC(3)(i) – attitude to the child and to the responsibilities of parenthood:

Many of the matters arising under this consideration have already been addressed – such is the overlapping nature of the mandatory considerations in section 60CC.
Certainly I consider that both parents love [X] and both want what they think is best for him. The mother has always been his stable base; the father wants to be significantly involved in [X]’s life going forward.
Religious attitudes potentially impacting on [X] are something of an issue in this case. Specifically, the mother is agnostic and the father is a practising Muslim.
In relation to this issue, I note that [X] is apparently an Islamic name, as was explained by the father in the course of the trial. His other children also have Islamic names.
The mother complains that the father has a strict view in relation to religion, which impacts on his attitudes to parenting and may have an adverse effect on [X].
The mother gives evidence that the father apparently told her that if [X] was not a Muslim, he wouldn’t have him as a son.
I accept that the father in anger may well have made the above comment to the mother - noting his angry answering machine message to her in 2010.
However, I have seen the father give evidence, and I have considered that evidence. I am of the view that the father would not seek to enforce on [X] any serious religious obligations.
I accept the father’s evidence that in Country A they celebrate Easter and Christmas, notwithstanding that the population are overwhelmingly Muslim. I accept the father’s evidence that he sees his religion as a personal matter.
I have no doubt that the father would choose not to give [X] pork or any pig product, or allow [X] to drink alcohol during visits. [X] is a child – he is not allowed to drink alcohol in any event until he turns eighteen (18). When he does, he can make those choices for himself.
I have no evidence before me of [X] ever complaining to the mother about any issues relating to the father’s religion.
I am of the view that during the father and [X]’s time together, religious observance and practice has not loomed large as an issue.
The mother’s fears and anxieties are based upon the time when she lived with the father (many years ago), and on heated angry statements he has made – but never followed through on. This issue here is primarily one of trust rather than religion.

Section 60CC(3)(j) & (k) – family violence and relevant orders:

I have addressed these matters earlier.

Section 60CC(3)(l) – whether it is preferable to make the orders least likely to lead to further proceedings:

The court agrees with the parents that flexibility in the future parenting arrangements is best for [X].
The difficulty with the court making prescriptive orders is that this may increase the risk of future litigation, particularly if, contrary to prescriptive orders, [X] is either adamantly wanting to see his father, or not wanting to do so.
[X] is almost fourteen (14). There needs to be some flexibility in this future parenting arrangements. Given the past history of cooperative parenting, it is my view that ongoing flexibility (rather than prescriptive orders) is least likely to lead to institution of further proceedings.

Section 60CC(3)(m) – any other fact or circumstance:

Around 2012, the father relocated a significant distance away from [X]. While I accept that this was for work reasons, the fact is that the father’s actions largely absented himself from the day-to-day involvement in [X]’s life.
Nonetheless, the parents have done a very good job in managing the ongoing co-parenting arrangements and [X] trusts them to be able to continue to do so.

Parental Responsibility:

Pursuant to section 61DA(2) of the Act, the presumption that it would be in the best interests of [X] that there be an order for equal shared parental responsibility does not apply. This is because I have reasonable grounds to believe that a parent – in this case the father - perpetrated family violence.
Moreover, the practical reality is that the mother has always made the major long-term decisions for [X], and the father has trusted her to do so. Schooling is perhaps the most striking example.
The mother indicated that she was willing to include the father in the school enrolment forms and to ensure that the father gets all the information from the school, and I intend to make orders which provide for that.
It is regrettable that the parties had to come to court in relation to the issue of a passport.
I am firmly of the view that the only appropriate order in this case, given the history, and given the evidence before me, is that the mother have sole parental responsibility - subject to her authorising the school to give information to the father.
The mother agrees not to change [X]’s name, and although I don’t consider it necessary, I will include an order restraining her from doing so. I will also include an order that the parents are to advise each other of any medical emergencies involving [X].
In arriving at this decision, I accept that at times the mother has not always been as communicative with the father as she could have been in relation to [X]. One example was that when [X] was recruited by the …to appear on one of their television shows in 2017.

Equally, the father has not always been as communicative with the mother as he could have been. In particular, he has proposed last-minute travel arrangements that have no doubt caused inconvenience to the mother.
Nonetheless, the post-separation arrangement whereby the mother has made the decisions for [X] has worked overall for his benefit.

Living arrangements for [X]:

It is common ground that [X] should remain living with the mother.

[X]’s time, and communication with, the father:

The father wants to be able to continue to have holiday time with [X].
Both parents say they will respect [X]’s wishes in relation to time, and I have no reason to disbelieve them. This is also what they told Ms F.
I consider this to be a case where flexible orders of a liberal nature should be made as to both time and communication between [X] and the father. I consider this to be in [X]’s best interests given his life experiences to date, and having regard to [X]’s age and his other commitments and to his strong wishes to let the adults work these things out for him and that he not to be forced into a rigid arrangement,.
I am confident that flexible orders will permit [X] to continue to have a meaningful relationship with the father, noting that there have never been up until the commencement of these proceedings any need for formal orders. This is to the enormous credit of both parents. A great many parents come before this Court unable to facilitate meaningful relationships with both parents even with formal orders in place.

Overseas travel:

I turn lastly to the issue of overseas travel, which is why this litigation started.
The mother is an Australian citizen. There are no issues relating to her being a flight risk. She and her partner are both Australian, they own real property in Australia, [L] and [M] live in Australia. In short, all of the mother’s ties are to Australia.
I see no basis for imposing any restrictions on the mother taking [X] overseas. Passport orders were made on the first return date by his Honour Judge Middleton. I want to avoid any risk of future litigation between these parents as much as possible, for [X]’s sake, and I intend therefore to make orders which permit the mother to take him overseas, subject to giving the father an itinerary and relevant information.
The real issue before me is the father’s desire to take [X] overseas, most notably to Country A.
The father is from Country A originally, but he is now an Australian citizen. He left Country A around 1993. The parents met in Country B in 2004, not Country A.
The mother raises a concern that if the father takes [X] to Country A, that he may not return. She is correct in noting that Country A is a non-Hague Convention country, and I accept her evidence that she has modest financial resources with which to pursue overseas litigation in Country A in the event the father were to take that action. Further, she is concerned about what her parental rights and standing might be in Country A in the event she commenced court proceedings over there.
I understand her concerns, and I must take them into account.
That said, in late 2007 or early 2008 when [X] was three (3) years old, the mother did trust the father to take [X] to Country A with his then-partner Ms D and their daughter [N]. This was at a time when the mother had experienced family violence from the father, and at a time when there must have been in her mind some risk that the father could potentially try to keep [X] in Country A - although her evidence is that she trusted that Ms D would never allow that to happen.
The reality is that the father returned with [X] after the visit. He did not try to stay in Country A; he did not do anything which would cause this court any real concern in that regard. He had every opportunity to attempt to retain [X] if that was his desire - but he did not do so.
The mother gives evidence that the father has threatened to take [X] away from her, and that the mother would never see him again. These threats are referred to in paragraphs 109(a) and (b) of the mother’s affidavit. The father denies making such threats.
Having regard to the father’s propensity to, at times, lose his cool with the mother and to say things in anger, I am satisfied that it is more likely than not that he did make such threats.
But it is one thing to make a threat, and quite another to have a genuine desire to carry it out.
The father himself has not lived in Country A for twenty-five (25) years. He sees Australia as his home, and has recently obtained citizenship. His children [N] and [O] are both in Australia and he is trying to reconcile with [O]’s mother. The father operates his business in Darwin and has lived there since 2012.
I accept that the mother has fears in relation to [X] travelling overseas with the father, particularly to Country A. [X] knows about his mother’s fears. However, I do not consider that there is an unacceptable risk that the father would retain [X] in Country A in the event that he were to take him there. I do not consider that any serious religious issue arises in this respect. Any threat that the father has made in anger to the mother, in my view, reflects the frustration he feels about not being able to take his son back to see his side of the family.
The father should reflect long and hard about making such comments in anger to the mother - because they are most unhelpful. They cause the mother anxiety and make it difficult for her to trust him.
[X] is an Australian. He has lived his whole life here. His siblings are in Australia, his school is in Australia, his mother is in Australia.
[X] is almost fourteen (14). I consider that it would be extremely difficult for the father, even if he wanted to, to retain [X] in Country A against his wishes.
It is in some ways regrettable that the father has no real money or assets against which the court could make an order for a bond as a form of security for overseas travel. Such a bond might in some way alleviate the mother’s fears.
But to be clear, the father has no such assets and in my view such a bond is not in fact necessary.
I do not consider there is an unacceptable risk that the father would retain [X] in Country A.
In terms of paragraph 109(c) of the mother’s affidavit, the mother raises concerns as to the father’s capacity to care for [X] in Country A but I do not consider that such matters go anywhere close to establishing unacceptable risk. I consider the father could, and would, appropriately care for [X] if they went to Country A together.
The other issue raised by the mother in relation to travel to Country A appears in paragraphs 109(d) through to paragraph 115 of the mother’s affidavit. Her evidence is that on an occasion in 2015, Ms D and [N] were visiting at the mother’s home at a time when the father was in Country A. He was apparently supposed to have been back in Australia but had been delayed.
According to the mother, the father telephoned Ms D’s mobile phone from Country A while she was present. Ms D told her that he was calling from gaol and she then put the call onto loudspeaker so that the mother could hear what was being said.
According to the mother, she recognised the father’s voice on the phone and she heard him say that:
I was put in jail by my brother-in-law. He paid a bribe to a cop. He wanted to get me. He tried to shoot me first. I ran out of the house but he got the cops to arrest me. I have to get out of here. I don’t know when I can get back to Australia.
The father then said he had to terminate the call shortly after.
Interestingly, the father did return to Australia not long after this phone call - but according to the mother, he would not discuss the matter with her.
The father denies saying these things, or having been shot at or imprisoned while in Country A. The father remembered calling Ms D and his version was that he said he had to stay in Country A to sort out some family issues after his brother‑in‑law had apparently divorced (or separated from) his sister. He said that this was a cultural matter that he was expected to attend to as the oldest son. He downplayed the conflict between him and his brother-in-law.
This was a hotly contested matter. Ms D is the only “independent” person who could have corroborated what was said in that call. Regrettably, she was not called as a witness either by the mother, who remains on good terms with Ms D, or by the father who is also seemingly on good terms with her.
It essentially means that I am left having to decide whether I prefer the mother’s version of events as to the phone call, or the father’s version of events, without the benefit of the one witness who could have significantly assisted me to make that determination.
I have seen both of the witnesses give evidence on this point. I do not consider that the mother made this event up. I accept that the phone call occurred as she says it did.
This does not necessarily mean that the events occurred as the father apparently reported. Only he knows what really happened, and there are no other witnesses from Country A.
The father’s evidence is that he hasn’t had any contact with his brother-in-law for about five (5) years. Generally speaking, as I have already noted, I prefer the father’s evidence when it comes to dates of events.
I find the event somewhat mysterious, but I note that the father did return from Country A unscathed, and that this event was at least three (3) years ago and more likely five (5) years ago.
I do accept the father’s evidence that he has not had any contact with his former brother-in-law since then, and that he is not looking to seek him out. There is apparently a significant cultural festival in the city that his former brother‑in‑law lives in, and the father would hope to take [X] to that city on a future visit to Country A. The father’s evidence is that this city has some 4,000,000 people.
The father says – and I accept - that he has no intention whatsoever of bringing [X] into contact with his former brother-in-law if he is over there. His former brother-in-law is no longer part of his family anymore. I am satisfied that the father will not go looking for his former brother-in-law, will not go looking for any trouble or difficulty, and that it is statistically highly improbable that they will have a chance encounter in a city of some 4,000,000 people.
The father has also taken [N] to Country A since this event.
I do not consider that this event gives rise to “unacceptable risk” to [X], even accepting as I do that the father did say these things over the telephone.
What I propose to do in terms of overseas travel, having found that it does not pose an unacceptable risk to [X], is that the child will have the opportunity to travel to Country A with his father. However, it is a matter that will require agreement between the parents, particularly noting that [X] himself is aware of the mother’s fears and concerns, which I hope will be allayed to some extent by my reasons for judgment.
I consider that [X] could greatly benefit from travelling to Country A in the future. A significant part of his heritage and culture are in Country A. Through the father, [X] has substantial numbers of family members there.
In particular, the father’s unchallenged evidence before me is that he is one of twenty-four (24) siblings, his father having four (4) wives. His father’s father before him was one of thirty-five (35) children. To suggest that the father has an enormous family network in Country A would be an understatement.
Importantly, the mother is open to [X] travelling to Country A down the track, particularly as he gets older. The father also said that he would never try to force [X] go to Country A against his wishes, and that he would accept [X]’s views in that regard. His evidence, which I accept, is that he wouldn’t want to take [X] over to Country A if [X] was going to be miserable, as it would be a waste of a holiday in any event.

Conclusion and orders:

Despite the resentment each parent feels towards the other, they have demonstrated a capacity to effectively co-parent [X] throughout his life. It has not always been easy but they have managed it despite the absence of formal orders and despite the tyranny of distance.
I am of the view that the orders set out at the commencement of these reasons are in [X]’s best interests in all the circumstances of this case.
I will allow the parents to make submissions on the question of costs, noting that the mother is intending to pursue a costs order.

I certify that the preceding one hundred and eighty-one (181) paragraphs are a true copy of the reasons for judgment of Judge Betts

Date: 18 December 2018

[2018] FCCA 3796

12 December 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Costs

Remedies

Standing