SOMERS & SOMERS

[2019] FamCA 198

FAMILY COURT OF AUSTRALIA

SOMERS & SOMERS [2019] FamCA 198

FAMILY LAW – PARENTING – final orders disposing of parenting proceedings consequent on change of residence of a child (nearly 10 years old).

FAMILY LAW – PARENTING – overseas travel is within father’s parental responsibility.

FAMILY LAW – INJUNCTION – discharge of watch list order preventing child from being removed from Australia.

APPLICANT: Mr Somers

RESPONDENT: Ms Somers

INDEPENDENT CHILDREN’S LAWYER: Ms M Lonergan

FILE NUMBER: MLC 1965 of 2016

DATE DELIVERED: 5 March 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 5 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Paterson

SOLICITOR FOR THE APPLICANT: Carew Counsel Pty Ltd

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms A Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

Orders

BY CONSENT IT IS ORDERED THAT:

1.Paragraph 1 of the Order made on 28 February 2018 be and is hereby discharged with the effect that there is no current arrangement for the mother to spend time, communicate or engage with the child B born  … 2009 (‘the child”).

IT IS ORDERED THAT:

2.The independent children’s lawyer facilitate the delivery of gifts from the mother to the child via the father and in due course provide the mother with confirmation in writing of having received advice that the gifts have been received.

3.For the avoidance of doubt, the preceding order does not inhibit or impede the child writing any thank you note or acknowledgement herself of the said gifts and, if that occurs, the independent children’s lawyer and the father facilitate delivery of that note to the mother.

IT IS REQUESTED:

4.That the Director of Child Dispute Services of this Registry of the Court make available a family consultant to explain to the child the outcome of these proceedings and that such explanation, if practicable, be given in the presence of the Independent Children’s Lawyer, Ms Lonergan AND IT IS NOTED that Ms F, family consultant, has seen the child on several occasions.

IT IS FURTHER ORDERED BY THE COURT:

4.The Watch List Order provided for in paragraph 1 of the Order made on 31 May 2017 be and is hereby discharged and IT IS REQUESTED that the Australia Federal Police remove the name of the child B, FEMALE, born …  2009 from the Airport Watch List at all points of international arrivals and departures in Australia.

5.This Order be sent electronically to the Australian Federal Police by this Registry of the Court.

6.Pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

7.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

8.These proceedings be and are otherwise dismissed and this matter removed from the docket of the Honourable Justice Bennett.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1965 of 2016

MR SOMERS

Applicant

And

MS SOMERS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX-TEMPORE REASONS FOR JUDGMENT

1. My decision of 14 September 2017 appears at case neutral citation [2017] FamCA 713 and changed residence of the child from the mother to the father. This matter comes before the court for the purpose of case management and, in particular, to schedule any necessary further hearing in relation to parenting orders. The mother today has indicated that she will not participate in proceedings in this court because she does not think that this court nor the other parties to the proceedings will permit a result which she considers is appropriate in relation to the child. The mother has decided not to spend time with the child under the current arrangements.

2. I have discharged the extant order pursuant to which the child is to see the mother, and that was an order which provided for participation by them both in a program run by Ms VV at the WW centre, a parenting enhancement program. 

3. I am satisfied that, given the mother’s attitude, it is the child’s best interests that the proceedings be finalised and the matter not return to court until or unless there is a change of circumstances such as warrants the court looking again at parenting arrangements.  That is not just a change in any circumstances.

4. As matters currently stand, there is no mechanism whereby the child will be seeing her mother.  The mother has been informed that it will be up to her to make any application to this court in the event she seeks to re-establish time with the child and to demonstrate why the court should look again at the matter and the father’s household be disrupted.  It may be unrealistic for the mother to aspire to obtain orders which are significantly more palatable for her than the current arrangement with which she is demonstrably not prepared to continue. 

5. On 14 September 2017 I made final parenting orders including the following:

   3.The child live with the husband.

   […]

   5.The husband have sole parental responsibility for the child of the marriage namely [B] born … 2009 in relation to health, education, overseas travel and issuance of a passport or travel documents.

   6.The husband and the wife have equal shared parental responsibility for the child’s name and any change to her permanent place of residence such that such change would make it significantly more difficult for the child to spend time with a parent.

6. The father now seeks a discharge of the watch-list order which was imposed on 31 May 2017 and preserved by paragraph 1 of the orders which I made in September 2017.  The mother opposes the discharge. 

7. The mother says that she fears that the father will take the child out of Australia and, I think, inferentially not return the child.

8. The father has sole parental responsibility.  Sole parental responsibility entitles the father to the exclusion of the mother to determine what overseas travel the child should have. Overseas travel is, in short, a matter exclusively within his parental authority. It is consistent with his role as the parent with sole parental responsibility that he be able to take the child out of Australia when he chooses to do so, but not necessarily permanently. The mother advances no sound reason as to why the child should not be able to travel with the father. 

9. The mother, at her election, spends no time with the child.  Accordingly the timing and duration of travel does not pose a difficulty vis a vis time spent arrangements. 

10. There is no question that the father has contravened orders of this court. On 23 April 2018 I made orders suspending the operation of the watch-list orders so the father could take a holiday but he did not travel. At that stage there were extant proceedings. There are no longer extant parenting proceedings. It does appear that the father is settled firmly and permanently in Australia.  He is in long-term employment and owns property here. There is no significant, much less unacceptable, risk that he will not return the child to the jurisdiction. 

11. It is time to finalise the proceedings now and remove the need for the parents to return to court unless there is a bona fide dispute over the child’s welfare or parenting arrangements. 

12. I am satisfied that the child’s ability to travel overseas with the father should be allowed and I will make the order to facilitate same. It is in the child’s best interests to do so.

13. I will discharge the watch list order.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 5 March 2019.

Associate: 

Date:  4 February 2019