Stafford and Beveridge - [2011] FamCA 252

FAMILY COURT OF AUSTRALIA

STAFFORD & BEVERIDGE

[2011] FamCA 252

FAMILY LAW – CHILDREN – where the mother and child live in the United States – where father has had minimal telephone communication and almost no face-to-face contact with the child for an extended period despite orders providing for such contact – where child has expressed a reluctance to spend time with his father – where father agreed with a number of orders proposed by the mother – where main point of disagreement was frequency and duration of contact between the father and the child– where mother sought no contact order or that contact be biannually with the father to pay half the child’s travel expenses and any costs associated with contact – where father sought contact twice annually and proposed to pay half of the costs of the second trip only – where orders made that, providing the father satisfies certain conditions, time between the father and the child to occur once per year – where father to contribute to the cost of child travelling to and from Australia for the purpose of contact

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Hardie & Capris [2010] FamCA 1046
MRR v GR (2010) 263 ALR 368
Neil v Nott (1984) 68 ALJR 509 at 510

APPLICANT:

Ms Stafford

RESPONDENT:

Mr Beveridge

FILE NUMBER:

BRC

6726

2009

DATE DELIVERED:

1 April 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

31 March 2011

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

Orders

IT IS THIS DAY ORDERED BY CONSENT THAT:

All previous Orders and Undertakings be discharged.

Parental Responsibility

The mother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended)) (“the Act”) in respect of J (“the child”) born … May 2000, save that the mother shall, prior to making the sole ultimate decision about any such issue:
a)   Use her best endeavours to advise the father in writing of the decision intended to be made;
b)     Seek the father's written response in relation thereto;
c)     Consider, by reference to the best interests of the child, any such response prior to making any such decision;
d)     Advise the father in writing as soon as reasonably practicable of her ultimate decision.
Each parent shall have parental responsibility in respect of issues which are not major long term issues during any such time as the child shall reside with, or spend time with, that parent.

Live With

The child shall live with the mother.

International Residence and Travel

The child is permitted to live with the mother outside of Australia PROVIDED THAT in the event that it is intended that the child live other than in the United States of America, the mother shall provide to the father in writing as much prior written notice as reasonably practicable of that eventuality and, in any event, not less than one month’s notice, specifying, the country, an address at which the child will live and one or more contact telephone numbers and e-mail addresses.
The child be permitted to travel internationally with either parent PROVIDED THAT the travelling parent give notice of the intended travel not less than one month prior to departure and provides a telephone number or numbers upon which the child can be contacted during such travel.
Both the said child and his mother are not required to seek or obtain from the father his consent for the issue of a passport or any future passports to enable the said child to travel internationally.

Communication

Each parent shall provide to the other in writing, and shall keep the other informed of:
a)   Their residential address;
b)     A landline and/or mobile telephone number for each other and the child if applicable;
c)     A current e-mail address which is checked not less then each two days by them.
Each parent shall, within 14 days of the date of these Orders, do all such things as might be necessary to install any and all such equipment, software or other programmes as might be necessary so as to facilitate contemporaneous audio and visual communication by computer through Skype or similar such communication means.
The father shall be at liberty to communicate with the child via Skype or similar audio/visual means at all such reasonable times as might be agreed and in particular each Sunday between 5.00pm and 7.00pm Florida USA time (being between 7.00am and 9.00am Monday, Brisbane time).
In addition to time via Skype, the father be at liberty to communicate with the child by telephone at all such reasonable times as might be arranged and, in particular, in the event that J is travelling for the purposes of playing Sport 1, or training for same, via a mobile telephone number provided to the father within 14 days of the date of these Orders.
The father be at liberty to communicate with the child by letter or e-mail at all such times as he might wish.
The father be at liberty to send gifts to the child at all such times as he might wish and the mother shall ensure that the child receives same.
In the event that the child is unable to speak to the father via telephone or Skype when the father initiates such contact, the mother shall facilitate the child communicating with the father by such means at an alternative time that, having regard to the time difference, is reasonable.
The mother shall within 14 days of the date of these Orders do all such things and sign all such authorities or other documents as might be necessary so as to provide to the father or permit him to receive information in respect of:
a)   all school reports of whatever type or description as and when they issue;
b)     details of any participation in sporting or other extra-curricular activities;
c)     details of any non-routine medical treatment or pharmaceutical prescriptions and details of any psychological treatment or counselling.
Each parent shall forthwith notify the other in the event of any significant medical illness or injury to the child occurring during any time spent with either of them providing details of such illness or injury, the treating medical practitioner or practitioners and the means by which that medical practitioner can best be contacted.
Each parent shall administer any medication prescribed for the said child by a qualified medical practitioner in accordance with the dosage and frequency in the prescription and shall not administer any other medication save upon providing to the other parent a written report from a duly qualified medical practitioner that indicates on its face that the medical practitioner is aware of the existing prescription and his or her reasons for prescribing a different medication.
E-mail may be used where these Orders require, or the parties desire, a communication to be in writing.

Non-Denigration

Neither party shall denigrate or insult the other party or any member of their family in the presence or hearing of the child and each party is to use their best endeavours to ensure that others do not denigrate or insult the other party or their family in the hearing or presence of the said child.

IT IS ORDERED THAT
Spend Time With

The child shall spend face to face time with the father in Australia at all such times as might be agreed upon in writing between the parents and failing any such other agreement in accordance with the following Orders.

A In 2011 as follows:

This Order shall be supervised within the meaning of s 65L of the Act and, if at all possible, by Ms B and without limiting any such assistance as Ms B might seek to provide within the meaning of that section, that supervision otherwise be limited to her role as follows:
a) The father shall, by not later than 4.00pm on 19 May 2011 provide to Ms B in writing, details of all letters, cards, telephone calls, e-mails and Skype communications that have occurred at his or the child’s instigation and/or which the father has attempted between the date of these Orders and that date;
b) The mother shall, by not later than 4.00pm on 19 May 2011 provide to Ms B in writing, details of all letters, cards, telephone calls, e-mails and Skype communications that have occurred at the father’s or child’s instigation and/or which the father has attempted and of which she is aware between the date of these Orders and that date.
The mother shall, on or before 4.00pm on 1 June 2011, do all such things, pay all such fees and charges and sign all such documents as might be necessary so as to book and pay for flights so as to facilitate a 14 day period during which she and the child will be in Brisbane to coincide with the relevant US summer holiday period in 2011 and provide by that time and date details of those flights and that period PROVIDED THAT:
a) The father provides to the mother the sum of $850 in cleared funds on or before 4.00pm on 26 May 2011; and
b) The father has complied with paragraph 21(a) of these Orders and, in so doing, has provided Ms B with details of not less than six communications, or attempted communications, between the date of these Orders and 19 May 2011.
Ms B is directed to provide a short affidavit advising of the communications made in accordance with these Orders, to be filed by e-mail to the Associate to Justice Murphy and contemporaneously e-mailed to each of the parties by 4.00pm on 23 May 2011.
During the period of 14 days that the mother and child shall spend in Australia, the child shall spend face to face time with his father as follows:
a)For two hours on the first and second days at a pre-arranged place and with pre-arranged activities nominated by the father but so as to have in the near vicinity a person whom the child nominates in consultation with the mother;
b)On the fifth and sixth days for two hours on each day with the child to be unaccompanied;
c)On the seventh and eighth days, between 9.00am and 3.00pm unaccompanied;
d)On the eleventh and twelfth days, between 9.00am and 5.00pm.

BIn 2012 as follows:

This Order shall be continue to be supervised within the meaning of s 65L of the Act and, if at all possible, by Ms B and without limiting any such assistance as Ms B might seek to provide within the meaning of that section, that supervision otherwise be limited to her role as follows:
a)The father shall, by not later than 4.00pm on 1 April 2012 provide to Ms B in writing details of all letters, cards, telephone calls, e-mails and Skype communications that have occurred at his or the child’s instigation and/or which the father has attempted between 1 September 2011 and that date;
b)The mother shall, by not later than 4.00pm on 1 April 2012 provide to Ms B in writing details of all letters, cards, telephone calls, e-mails and Skype communications that have occurred at the father’s or child’s instigation and/or which the father has attempted and of which she is aware between 1 September 2011 and that date.
The mother shall, on or before 4.00pm on 1 June 2012, do all such things, pay all such fees and charges and sign all such documents as might be necessary so as to book and pay for flights so as to facilitate a 14 day period during which she and the child will be in Brisbane to coincide with the relevant US summer holiday period in 2012 and provide by that time and date details of those flights and that period PROVIDED THAT:
a)The father provides to the mother the sum of $1000 in cleared funds on or before 4.00pm on 1 May 2012; and
b)The father has complied with paragraph 25(a) of these Orders and, in so doing, has provided Ms B with details of not less than 15 communications, or attempted communications, between 1 September 2011 and 1 April 2012.
Ms B is directed to provide a short affidavit advising of the communications made in accordance with these Orders to be filed by e-mail to the Associate to Justice Murphy and contemporaneously e-mailed to each of the parties by 4.00pm on 5 April 2012.
During the period of 14 days that the mother and child shall spend in Australia, the child shall spend face to face time with his father as follows:
a)For two hours on the first and second days at a pre-arranged place and with pre-arranged activities nominated by the father but so as to have in the near vicinity a person whom the child nominates in consultation with the mother;
b)On the fifth and sixth days for two hours on each day with the child to be unaccompanied;
c)On the seventh and eighth days, between 9.00am and 3.00pm unaccompanied;
d)On the eleventh and twelfth days, between 9.00am and 5.00pm.

CThereafter as follows:

The mother shall, on or before 4.00pm on 1 June each year, do all such things, pay all such fees and charges and sign all such documents as might be necessary so as to book and pay for flights so as to facilitate a 14 day period during which she and the child will be in Brisbane to coincide with the relevant US summer holiday period in each year and provide by that time and date details of those flights and that period PROVIDED THAT:
a)The father provides to the mother the sum of $1000 in cleared funds on or before 4.00pm on 1 May in each year; and
b)The child has advised the father in writing that he wishes to spend time with him in Australia.
The child shall spend time with the father in the USA during any two-week period in respect of which the father provides not less than six weeks notice for periods of time that might be agreed between the parties and the child.
There be no Order as to costs.

IT IS FURTHER ORDERED THAT

All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
Following the expiration of the Appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
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 under the pseudonym Stafford & Beveridge is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6726 of 2009

Ms Stafford

Applicant

And

Mr Beveridge

Respondent

REASONS FOR JUDGMENT

The parents of J, born in May 2000, separated after a very short relationship in August 2000. At that time, J was only three months old. Subsequently on 6 February 2003, parenting and other orders were made by consent between the parties.
Among other things, those orders provided that J live with the mother, and that as and from 22 August 2003 the mother be permitted to reside overseas. The mother left for the United States of America on 16 February 2003. At that time, J was just three years old. The mother and J have resided with the mother’s new partner in the United States since that time.
The orders made by consent earlier that year provided that the father spend time with J prior to his departure for three hours supervised for one month, and, after that, for three hours unsupervised, and thereafter, in the approximate four months between then and when the child departed for overseas, on Sundays from 10 am till 4 pm.
The mooted overseas residence of J was provided for in orders which have the father spend time:
In the event that [he] is in the near vicinity of the mother’s residence overseas, for six hours per day on three occasions per week.
The orders contemplated telephone contact once per week, and the provision of school reports and the like once J commenced education. The orders also provided that the mother was to return to Australia:
…at least twice per year in the years 2004, and thereafter, for a total of at least five weeks with the child, and the father shall have contact with the said on four occasions per week for six hours, and for that purpose the mother will keep the father informed of travel plans to Australia for herself and [J].
It is common ground that J did not spend time with his father between 2004 and a visit to Australia in 2010 effected by a subsequent Court order in the middle of last year. That is, J did not spend time with his father for a period of about six years or so.
In the intervening period, of course, J had commenced education and, relevant to the parenting issues currently before the Court, had gained an abiding interest in playing Sport 1, at which, it is plain, he is very talented. The evidence reveals that he is the number two player, (I assume for his age) in Florida.
When in the witness box, I asked the father for details of the amount of communication that there had been between him and J in that approximate six or seven year period. He indicated that there had been no instances of face-to-face time. In particular, he had not visited the United States at any time.
When asked initially about telephone time, he said that there had been “a few attempts”. When pressed about the number, he indicated that there had been “perhaps a dozen” in that six or seven year period. It is also plain on the evidence that there has been very little email communication between the father and J.
When asked why he hadn’t been to the United States during that period of time, the father gave a number of answers. He first said that he had “family commitments” here. He said secondly that the mother and her partner had “been moving around” in the United States, and thirdly, that he was unable to do so for financial reasons. I must say that, whilst it is by no means inexpensive to travel to the United States, I find it somewhat surprising that in a seven year period he has not been able to save sufficient money so as to make any trip at all. Having said that, I note that he, in the intervening time, had formed a relationship, which itself broke down. That relationship produced two children who are now currently aged eight and five, and who he sees every second weekend and half holidays. That relationship commenced late in 2000 and ended in “about 2008 or 2009”.
The father also accepts that he has paid child support only intermittently. He says that there is currently about $1100 in arrears, and that his child support has been paid, I gather, by way of compulsory deduction from various employment which he has had. He said that he was currently studying a course connected with horticulture, and that he was not engaged in remunerative employment. The last employment he had, he said, was about three months ago, when he was engaged in some form of landscaping work.

The Current Proceedings

The current proceedings can be seen to have their immediate genesis in proceedings brought by the mother in July 2009 seeking orders dispensing with the need for the father’s consent to passports to issue in respect of the child, and to vary the orders for time so as to provide that the mother should return to Australia once per year, during which there would be four periods of time of two hours each between J and the father. Orders were made by Jordan J on 7 August 2009 that the child be permitted to travel internationally with his mother, and that the father’s consent to same be dispensed with.
Subsequent to his Honour’s retirement, the matter was allocated to my docket, and the father ultimately filed an Amended Response on 10 December 2009 in which he sought to discharge and vary orders for time with respect to J, and in which he also sought orders that J spend time with him in Australia on one occasion per year for 14 days, and time in the United States in America, should he visit that country.

Those proposals include, as part of them, what might conveniently be described as “build-up time”. I gather that the provision with respect to “build-up time” was sought to take account of the fact that there was a somewhat estranged relationship between he and J, and that the periods of face-to-face time would be, if for no other reason than the geographic separation, intermittent.
Subsequently, family reports were prepared by a family consultant, Ms B, on 18 March 2010 and 31 August 2010. Interviews for the first report were with J and the mother by telephone, given their residence in the United States. Face to face interviews subsequently took place when the mother and J visited Australia during the American summer holidays.
I made orders facilitating time between the father and J in those holidays (that is, June through August in 2010) as follows:
3.The Mother shall travel with the child … to Australia for a period of four (4) weeks during the child’s June/July/August summer school holidays in 2010.
4.The Mother shall provide notice of her flight details ... by no later than 28 May 2010.
5.During the four (4) weeks that [J] is in Australia … he shall spend time with his Father as follows:
a.In the first week of those four (4) weeks on two (2) occasions at and supervised by the [L Contact Centre] for such time as that Centre can reasonably accommodate up to four (4) hours on each occasion;
b.In the second week of those four (4) weeks there be no time between [J] and the Father save as is agreed between the parties;
c.In the third week of those four (4) weeks and as early as possible within the week, the parties do all such things and sign all such documents as necessary so as to attend interviews to be conducted by [Ms B] …;
d.In the fourth week of those four (4) weeks [J] spend time with his father on three (3) occasions, the first of which is supervised by the [L Contact Centre] for such time up to eight (8) hours as can be accommodated by that Centre including, if it can be accommodated, supervised time off-site and for two (2) further occasions unsupervised for a period of up to eight (8) hours; and
e.Upon the Mother notifying her solicitor and the Father of the flights to and from and the dates during which she will be in Australia, the Mother’s solicitor shall obtain from [Ms B] a date for the interviews contemplated by paragraph (c) of these Orders.
The orders contemplated that Ms B would complete an updated report which would include an opportunity for her to interview J face to face and to observe interactions between J and each of his parents, and, in particular, his father. That transpired on 22 July 2010 and forms the basis of the subsequent report annexed to the affidavit by Ms B filed 31 August 2010.

The Parties’ Proposals

Against that background, the parties seek parenting orders which I consider it appropriate to set out. The orders sought by the father were as contained in an affidavit filed by him on 23 December 2010. The mother had previously sought orders in material filed by her, but, at the opening of the trial, the mother sought to rely upon a document which she called “Outline of Amended Final Orders Sought”. The orders sought, in fact repeated a number of orders that had earlier been made by the court.
As it transpired, the father agreed with many of those orders: in particular, the father agreed to what might be described as the practical application of parental responsibility set out in those orders, and that J continue to live with his mother in the United States, although it should be said that he expressed some concerns about J being taken to another country, given that the mother’s current husband serves in the US military.
Given the father’s agreement with a large number of the orders sought by the mother, I will set out in these reasons the orders as sought by her.
1.That all previous Orders and Undertakings be discharged save and except for Order 3 of the Orders of Justice Jordan made on 7 August 2009 and Orders 2 and 8b of the Orders of Justice Jordan made on 6 February 2003.
2.That the child, [J] born […] May 2000, live with the Mother.
3.That the Mother have sole parental responsibility for making decisions in relation to major long term issues for the child including:
(a)The child’s education (both current and future); and
(b)The child’s religious and cultural upbringing; and
(c)The child’s health; and
(d)The child’s name; and
(e)Changes to the child’s living arrangements; and
(f)International travel.
4.That the child be permitted to travel internationally and live overseas with the Mother. That the Mother is not required to seek or obtain the Father’s consent for the issue of a passport or any future passports to enable the child to travel internationally or live overseas.
5.That the father shall communicate with the child on at least a fortnightly basis with the Father to initiate the calls at a time convenient to the said child (as notified by the Mother and specifically not between school hours on school days and not after 8.30pm at night in the child’s time zone). The Mother shall encourage the child to participate in such telephone calls initiated by the Father.
6.In the event that the child is not available to speak with the Father when the Father initiates telephone calls that the Mother shall facilitate the child ringing the Father at an alternative time should the child wish to do so.
7.That the Father be permitted to use other means of communication with the said child such as email and letter in order to develop and sustain a connection with the said child and that the Mother to ensure that the child receives same.
8.That the Father be at liberty to send the said child gifts and that the Mother to ensure the said child receives same.
9.The mother shall provide the Father a copy of any school term and semester report for the child.
10.That the mother is to provide the Father with particulars of the child’s residential postal address, email address and telephone number and notify him of any change to those details within 2 weeks of any change.
11.That the father is to provide in writing the particulars of his residential postal address, email address and telephone numbers to the Mother and notify the Mother of any change to those details within 2 weeks of any change.
12.No Contact Order be made; OR
That the mother and said child shall return to Brisbane Australia every alternate year commencing 2011 during the USA summer school holidays for a period of not less than 7 days to facilitate time spent with the said child and father. Such contact to be supervised at the [R] Contact Centre or with other supervisors as agreed between the parties until such time that the said child is ready to unsupervised contact with the father. The father is to pay one half of the said child’s contact and travel costs including return airfares between the child’s town of residence and Brisbane Australia. The father is to submit his half of costs to the mother at least 4 weeks prior to the child’s intended return to Australia.
13.That the father shall have unsupervised contact with the said child daily for 7 days during the bi yearly return visits. The duration of the daily visits during the bi yearly visits to be determined and agreed to by both parties and the child.
14.That in the event the Mother and the Father agree that the child is ready to have unsupervised time with the father, then the father shall have unsupervised time with the child for the duration and at times that both parents and the child agree to.
15.That both parties advise the other of any serious medical emergency or condition involving the said child.
16.That in the event the child requires medication during the child’s time with the Father, such medication and relevant dispensation instructions to accompany the said child at the commencement of the visits and any unused medication to be returned with the child at the conclusion of the visits.
17.The mother shall inform the father of her intention to bring the child to Australia at least 6 weeks prior the child USA summer school holidays and request payment in the amount of one half of the child’s airfares from the child’s residence to Australia to be made payable within 2 weeks from the day of the request. Once the father has submitted payment, the travel dates will be confirmed at least 2 weeks prior to the child’s arrival into Australia. Should the father fail to provide a payment of one half of the requested airfares within 2 weeks of the mother’s request, then the child will not be returned for Contact.
18.That neither party is to denigrate or insult the other party or their family in the presence of or hearing of the said child and is to use their best endeavours to ensure that others do not denigrate or insult the other party or their family in the hearing or presence of the said child.
19.That the father shall travel, at his own cost to the town where the mother and child are residing every alternative year commencing 2012 for a period of not less than 7 days to facilitate time spent with the said child and father. The father shall have contact with the said child daily for 7 days. The duration of the daily visits during the bi yearly visits to be determined and agreed to by both parties and the child. The father shall inform the mother of his intention to visit the child’s town of residence at least 6 weeks prior to this arrival.
20.That email is an acceptable form of written communication for the purpose of giving written notices in this Order.
21.That the father be responsible for the mother’s costs of and incidental to this application on an indemnity basis.
As will be clear, the ultimate orders made by me include a number of those orders made by consent, although I have reframed the wording of them somewhat. As will also be plain from those orders, and the parties’ agreement, the essential difference between them is how, when and the frequency with which J should spend face-to-face time with his father in Australia. The central issues confronting the Court, are, then, narrow, although in terms of the emotional and psychological ramifications for J, no less complex.
I should observe that each of the parties represented themselves at the hearing of this matter. Each did so perfectly adequately. I am aware of what has been said about the disadvantages associated with self-representation by parties, and in that respect, have referred in earlier decisions to what the High Court said in Neil v Nott (1984) 68 ALJR 509 and also to comments made by Wilson J in the United Kingdom. Wilson J, whilst noting that self-representation provides some disadvantages, also observed that it can provide for a court some advantages: for example, courts get to see parties involved in emotional litigation, unshrouded by legal expertise. As a result, the court has the opportunity to observe the interaction between parties whose communication and interaction will likely mark their future co-parenting of the child. Such is the case here.
I should also observe that I am, of course, cognisant of the statutory framework within which parenting proceedings must be conducted. In particular, I am acutely aware of the statutory basis for the ascertainment of a child’s best interests and the Considerations relevant to same enumerated in section 60CC, and that the task is to be conducted within the overarching requirements of the Objects and Principles of the legislation. I am, too, aware of what the High Court said recently in MRR v GR (2010) 263 ALR 368 in respect of the central role that section 65DAA plays in that context (in circumstances where that section applies).
So that there should not be any doubt about the principles, as I apprehend them, and the principles which I am applying in this case, I make it clear that my understanding of those principles is as outlined by me in, for example, Hardie & Capris [2010] FamCA 1046 where I also referred to the authorities binding upon me in that respect. Specifically, I am aware that I must apply a presumption that it is in J’s best interests that his parents have equal shared parental responsibility in respect of him.
That presumption can be rebutted. In my judgment, it is rebutted here.

Parental Responsibility

First, each of the parties acknowledge in the orders that the mother proposes, (which the father has indicated that he agrees to) that the lengthy history of the mother providing virtually all of the day-to-day parenting for J in a place significantly geographically remote from the father, means, as a matter of practical reality, that the mother has been making decisions in respect of major long-term issues for J by herself for the last seven years or so. That this situation will continue is not challenged by the father, because he concedes that an order should be made that J live with his mother, and that this should occur in the United States.
Nevertheless, the fact that the parties might agree about parental responsibility does not, in my view, necessarily rebut the presumption, nor does it absolve the Court from arriving at a decision about a fundamental aspect of the legislative requirements.
Here, the factor just referred to, together with the fact that, on any view of the evidence, the parties clearly have no practical ability to communicate at any level about J’s day-to-day care or major long-term issues affecting him, in my view make it plain that the parties could not, themselves and jointly, carry out the tasks which section 65DAC of the Act contemplates, must be taken by parties who share parental responsibility.
Secondly, there seems to me to be the potential for significant conflict in and about major long-term issues if an order is not made where parental responsibility is shared.
In my view, in this case J’s best interests plainly involve a rebuttal of the presumption of equal shared parental responsibility. As I’ve said in other decisions, it seems to me that an order for “sole parental responsibility” can arguably be seen to remove all “rights, duties and responsibilities” that the other parent has towards the child. That seems to me to be a significant interference with an individual’s human rights, and, therefore, a step which should not be taken lightly.
I make it plain that I do not take the step lightly in the decision that I make, but I am convinced that an order effectively ceding those powers, duties and responsibilities to the mother is in J’s best interests.
However, the form of the order that I make– which, I should add, is something that the parties themselves contemplate –will see input from the father whilst ultimately ceding responsibility to the mother.
Accordingly, I make it plain that J’s best interests require the rebuttal of the presumption of equal shared parental responsibility and, in my view, require those decisions to be made by the mother with input from the father in the manner that the orders contemplate.

Best Interests and Time

A number of uncontroversial findings can be seen to underpin the current proceedings. First, as is clear, J has now lived in the United States with his mother, stepfather and young sister, currently aged two, for over seven years. He is plainly well established there. Save for the matter of what the father alleges to be the mother’s “influence” upon J, said to be productive of antipathy by J toward the father generally, and spending time with him in particular, the father does not seriously challenge that J is well settled and well cared for; nor does it seem to be challenged by the father that J enjoys a good and positive relationship with his stepfather and sibling.
Further, the father would appear to accept that there is a currently expressed estrangement between J and him. Moreover, he appears to accept what Ms B reports at paragraph 36 of her most recent report: namely, that J “clearly expresses a reluctance to spend time with his biological father.”
It should be noted that Ms B goes on to express opinions in respect of that, (although the father does not agree with the opinions that she expresses):
36.I have now had the opportunity to interview [J] in person. In the face-to-face interview, [J’s] presentation and comments were congruent with his previous telephone responses, and I assess these to be accurate reflections of his own feelings and wishes based upon his own experience of the situation. As in his telephone interview in person [earlier that year], [J] clearly expressed a reluctance to spend time with his biological father, whom he naturally, it would seem under the circumstances, perceives little more than a stranger. His reasoning appeared sound, as for whatever the reason [the father] has not communicated with him, and [J] has not seen any evidence that [the father] has tried to keep in contact with him over the years.
I have referred earlier to that last matter. The reference to the failure to contact J, expressed in that paragraph of Ms B’s report, can be seen to be a reference to the fact that the father has, despite court orders contemplating same and facilitating same, not been in contact with J by email, letters, telephone or the like except very infrequently.
Ms B records the father’s expressed reasons, at least insofar as it relates to J’s last email and the father’s subsequent email, as follows:
21.Regarding why he had not responded to [J’s] last email and not sent any further emails to [J] since February 2010, [the father] firstly said that he was not prepared to send emails via the [household of the mother and her partner] and wanted a direct email address for [J]. Then he said that he and [J] had “already ended on a rough note” in previous correspondence, and he had explained to [J] that he was “not pressing” him, so he “didn’t want to jeopardise” his relationship with [J]. [the father] explained further “I did not want to give his mother any more reason to distract…I am between a rock and a hard place with the mother monitoring and censoring everything.”
The fact of that limited communication, and the attitude of the father just expressed, needs to be seen, in my view, against the uncontroversial facts about the amount of communication from when J was a toddler to now.
Whatever might be said about the preparedness and capacity for each of the parties to promote and maintain such relationship as is possible between J and the father given their geographic separation, it is simply a fact that in the approximately seven and a half years that J has resided permanently in the United States:
·       There has been effectively no face-to-face time at all;
·       There has been very limited communication by telephone, email and the like; and
·       There has been little practical opportunity for face-to-face time during that period.
The issue is not what might be the rights or wrongs or the whys or wherefores of why very limited communication has taken place. Rather, the issue is J’s perception of that, and his perception of the actions and omissions of his father.
Further, in considering J’s emotional and psychological health, it is important to consider J’s actions or reactions to the fact of little time or communication between him and his father. In my view, the father has limited insight into this.
Put another way, in my view the father appears strongly focused on attributing blame or motive for why those events have unfolded in the manner in which they have, rather than taking J’s attitude on its own terms, expressed through the mind and mouth of a 10 year old, and dealing with it as one might on J’s own terms.

That was further evidenced, in my view, by the father’s oral evidence before me. I asked the father about his role, if any, in developing the attitude that J expresses to both Ms B and, indeed, to the father directly. His immediate response to a question by me about any role he may have played, was to talk about the mother’s role, as he asserts it, in that process. The inability to focus immediately on J and what he might be able to do, irrespective of what the mother does or doesn’t do, is, in my view, significant, and entirely consistent with Ms B’s observations during the interviews for her reports.
Having said that, a number of things must be observed. First, it is, in my view, a very difficult matter for any father to deal with when a child is taken, in this case with his consent, at a very young age to live in a place where, all else being equal, regular face-to-face time is extremely difficult. Secondly, as will have been observed, the initial orders provided for the father’s consent to the mother living overseas with J, but also provided that the mother would return to Australia on two occasions each year for a period of five weeks on each visit. The mother, by her own admission, never complied with that order. By her admission, that order was ignored, and, from the time she went to live in the United States, she facilitated time, or sought to facilitate time on only one occasion each year.
No doubt, moving to a new country with a young child and a new relationship creates its own difficulties. Those difficulties include the financial impost of travelling large distances, particularly where that travel also includes a young child. Nevertheless, her attitude and behaviour hardly seems likely to have been helpful for the fostering of mutual trust and cooperation between the parties; immediately after consent orders were made in 2003 the proposed two visits a year for a significant period of time became one.
So, too, the contemplation by the father that his young child would live overseas, but, in return, as it were, he would see the child twice per year for a reasonably lengthy period of time, is an entirely different situation to contemplation of that child living overseas where there is one visit a year for a relatively short period of time.
I take those matters into account. I take them into account because it seems to me that those sorts of issues have, understandably, played upon the father, and have, understandably in my view, not engendered great faith or trust in the mother’s attitude towards promoting him to J and promoting time between J and him.
Having paid due regard to that, two things, in my view, should be said, and I make specific findings in respect of each of them. First, as I have earlier indicated, I consider that the father’s attempts to contact and maintain a relationship with his son have been wanting. I will give one example, although there are more.
When asked what he might do in circumstances where J was expressing some reluctance to spend time with him or to have a relationship with him, he referred to what he said was an army expression, namely, “persistence does beat resistance.” As I said to him at the time, that did not seem to me to be an appropriate or child-focused attitude, in the sense that it did not seem to me to pay due regard to how a 10 year old child might feel. Moreover, it seems to me plain that, with some child-focussed thought, a father might contemplate that a child who lives in the United States happily with a sibling and a stepfather, might nevertheless have significant ambivalent attitudes underlying his day-to-day expressions of emotion and the like. Great sensitivity is required.
Like all other qualities, sensitivity is possessed by people in varying amounts. Courts should, in my view, be cautious about making judgments about matters such as sensitivity. Nevertheless, within a broad spectrum of capacities and a broad spectrum of what might be expected of ordinary loving parents, (“good enough” parents) it seems to me that the father shows a significant lack of insight into what might be going on in the mind of his 10 year old son. His attitude, as it seems to me, is very much about fairness toward him, or about the rights and wrongs of decisions taken now many years ago, rather than on J and how he may be feeling and thinking.
As but one example of that, when asked about any proposed financial contribution to travel fares and the like, in circumstances where, as I have said, payments of child support have been sporadic at best, and where, on his own admission, he has made no contribution to things such as the sport which his child plainly loves, he said that he wasn’t prepared to pay, for example, half the fare.
When that was explored with him by me, I ultimately put to him this proposition; “Your attitude, then, is “she went, she pays.” He agreed.
I can understand parties being troubled by making significant financial contributions to children who they see very infrequently. I can also understand that a decision taken in 2003, with emotional and other circumstances pertaining at that time, might be reflected upon differently as the years pass. I suspect, strongly, that the geographic distance between Australia and the United States has seemed to the father greater in recent years than it was in 2003.
Nevertheless, at some point this father, like all parents, needs to understand that the essential requirement of parenting is reasonable selflessness. The essential requirement of parenting is the absolute necessity to put a child’s needs, perceptions and emotional vulnerabilities ahead of feelings of hurt, disappointment, anger and the like ‑ however understandable, or perhaps justifiable, those feelings might seem to be. Putting aside those things is indeed, the very stuff of parenting.
As previously indicated, some of these issues, at least, have been played out in respect of J’s enduring interest in Sport 1. The mother expresses concerns at the costs associated with visiting Australia in these proceedings, and that those expenses have rendered it necessary for the family to cut back on some living expenses, including some expenses, I gather, associated with J’s Sport 1.
That a 10 year old boy who is plainly talented at, and indeed, one might say, obsessed by, a particular sport might be, in effect, preoccupied by it, should come as no surprise to any father focusing on their child’s best interests. Indeed, it might be observed that it is entirely unsurprising that such a preoccupation in a child who clearly receives very significant positive feedback in respect of his talents (he has been selected in representative sides and, for example, received messages of congratulations from the mayor) is predominated over, at one end of the spectrum, more mundane tasks such as completing homework or the like, or, at the other end of the spectrum, spending time with his father.
Yet these considerations do not appear to inform the father’s attitudes, behaviours and actions (or inactions), or, if they do, they appear to have very little impact upon him. Indeed this enduring interest of J’s does not seem to have formed the foundation of any attempts to communicate with J on J’s terms.
I again emphasise that I am not seeking to be unduly critical of the father. I have no doubt that he loves J dearly and would like nothing more than to have an ongoing, meaningful relationship with him, as he should.
Moreover, I have no doubt that the father desires as close a connection at a psychological and emotional level that the geographic separation between he and J permits.
But, like all parents, the essential prerequisite to parenting is, as I’ve said, maintaining a reasonable degree of selflessness and the capacity to predominate a still young child’s best interests and needs ahead of one’s own understandable reactions and emotions.
Lest it be thought that these are theoretical considerations, it is important to bear in mind, as I said to the father during the course of the hearing, what J himself is saying. It is to be noted, for example, that Ms B read to the father, during the interviews for the August 2010 report, what J had said in the March 2010 interviews. It is important to quote it here.
…[J] told me that what would change his mind would be if [the father] “started calling every week, emailed me and asked about me, listened to me and would not make excuses.”
The father might have a view, (which, indeed, he expressed to Ms B) about what he ought or ought not do in terms of communicating with J, or what may or may not be in J’s best interests as a result. Whatever might be the rights and wrongs of his views, for the moment, right now, what is important is that J doesn’t share them. J is saying, “If you are fair dinkum about wanting a relationship with me, communicate with me more.”
I have some concerns that the mother has, at times, reacted to the father’s attitudes and actions in a less than adult or child-focused way. Nevertheless, on balance, I ultimately accept the opinion of Ms B about the mother’s underlying attitude to J establishing and maintaining a relationship with his father.
In that respect, I think it important to again emphasise that the self-representation of the mother gave me an opportunity to assess not only what she said, but the emotions which associated her expression of those things. I gained the distinct impression that the mother was serious and sincere about saying that she, in fact, wanted J to establish and maintain a meaningful relationship with his father. I gained the distinct impression that she was serious and sincere about a desire on her part to have the father maintain regular contact with J (albeit via means the geographic separation between them demands).
I want to make specific reference to two parts of Ms B’s most recent report. The first relates to something J said, the associated need, in my view, for the father to listen carefully to what J is saying. Ms B refers to it this way:
26.When I gave [the father] some feedback that [J] had expressed to me in interview his acute disappointment and distress at the thought of not being able to play [Sport1], [the father] leaped on [J’s] comments as proof that his mother had been bad-mouthing [the father], and did not display any empathy or understanding of his son’s pain. [The father] remained convinced that [J’s] perception is being totally altered.
Now, even if the mother has been less than fulsome in her support of J’s perception of the father, or has been less than fulsome in her support for J communicating with the father, I find it difficult to understand how the father would react in that way to what was put to him by Ms B. Again, I refer to the example I provided earlier when I asked the father to attribute to himself those aspects of his behaviour that have contributed to J’s estrangement, and his immediate response, was to refer to things which the mother had done or not done.
It will be plain, then, that I agree with Ms B’s opinion expressed at paragraph 38 of her most recent report:
…[The father] displayed a strong sense of entitlement to see his son, and comes from a perspective of defensiveness, mistrust and blame. In the middle of all this, a 10 year old child without an established connection to a man who happens to be his biological father, and who purports to care about him, but from [J’s] perspective has not demonstrated any active interest in him…
It will also be plain that, as I have said, I agree with Ms B’s opinion and observations that the mother “did encourage [J] to consider the positives of establishing some contact with his father”, and I regard it as significant that Ms B records J as having confirmed this. Again, I emphasise that such a position is consistent with my own observations and findings about the mother.
The confluence of circumstances and findings just referred to find reflection in many of the statutory Considerations.
Ultimately, however, the issue is a narrow one, albeit no less complex. In circumstances where J will, on both parties’ case, continue to live in the United States with his mother and stepfather and sibling, and in circumstances where there is a large geographic separation between J and his father as a result, and consequent significant practical and financial difficulties associated with maintaining face-to-face physical contact, what orders best promote J’s relationship with his father and his best interests, in circumstances where he expresses reluctance to have a relationship with his father, and where, on any view, there is currently an estrangement.
It seems to me important to take account of J’s current age and stage of development. He will shortly be on the cusp of puberty. The adolescent stage of children’s development is, of course, a very different stage of their development to the pre-adolescent stage. The nature of the relationships between adolescents and their parents, and, in particular, adolescents and their father, change as a result. The needs of the relationship change as a result. Those matters are, in my view, important to bear in mind in deciding (a) whether there should be an order for time, and (b), if so, what it should be.
In that respect, it should be observed that the mother’s orders provide, as a first alternative as it were, an order that there should be no order in respect of time between J and the father. I did not take the mother to mean, in seeking that order, that there should be no time between J and his father; rather, the thrust of the order was, as I perceived it, twofold: first, the financial and other practical difficulties associated with mandatory time in Australia created difficulties for the mother and J, and secondly, the nature of the currently estranged relationship between the father and J dictated that J should, as it were, have a greater say in whether there should be time between he and the father.
As I made plain during the course of the hearing, in my view a 10 year old child needs firm direction by parents as to what they consider to be in his best interests. In circumstances where a court disagrees with a parent about what is in a child’s best interests, it seems to me that a child needs firm direction from the court about what is considered by the court to be in the child’s best interests.
I do not consider it to be in J’s best interests that he should, effectively, determine the time, and the circumstances of the time, between he and his father.
It may well be that, at some future time, the seeds that are sown now will bear fruit, including, perhaps, J deciding as a mature teenager that he doesn’t wish to see his father, or, alternatively, J deciding as a mature teenager that he wants to spend significant time with his father. At this age and stage of his development, in my view, he should not have that decision-making ‘power’ or responsibility.
I am strengthened in that finding by the fact that it is an opinion expressed by Ms B, who was firm in her evidence that, at this age and stage of development, J should not be given the opportunity to decide for himself whether, and on what terms, he should see his father.
In fairness to the mother’s position, her alternative position contemplated ordered time, and in that respect, it will be observed that the time proposed is bi-yearly. Again, that might be seen to be a reflection of practical considerations, including financial considerations, and J’s expressed attitude.
Again, Ms B was firmly of the view that, at this age and stage of his development, and given the precarious nature of the relationship between J and his father, more regular time than bi-yearly should be effected. I agree. Accordingly, I have, as will be observed, made provision for that time to occur yearly.
However, in respect of that yearly time, Ms B made recommendations which, in my opinion, bear consideration. Ms B recommended, in the second of her two reports, that there be regular communication between the father and J “on at least a fortnightly basis”, and that:
…[The father] use other means of communication with [J] on a regular and consistent basis, such as email and letter, in order to develop and sustain a connection with [J].
The recommendations also contemplated yearly time as earlier indicated, coinciding with the American summer school holiday period. In respect of that time, however, Ms B proposes two caveats: first, she contemplates that time occurring on the proviso that; “…[The father] has consistently communicated with [J] by telephone, email and other agreed means.” Secondly, Ms B contemplates that time being supervised. I will deal with the second of those matters first.
It is uncontroversial, certainly in these proceedings and certainly as far as Ms B was concerned, that supervision at a contact centre does not provide an ideal environment in which time can be spent between a 10 year old child and his father. That is all the more so, in my view, where there are no direct allegations of risk associated with the time between father and child. Here, insofar as it is said that there is a risk, the mother nominates two things: first she says that there has been family violence in the past that has resulted in protection orders being taken out by her, and as she expresses it, she is concerned that if J is defiant or seeks, as it were, to get his own way, that the father could become violent.
I obviously take into account those sorts of concerns, because all such concerns of that type are serious and significant. However, as against that, I am aware of the fact that this man’s time with his child is precious, both by definition and by reason of the separation between them. And, as he acknowledges, the nature of the relationship between he and the child is precarious. Each of those matters, in my view, serves to alleviate very significantly the risk that might otherwise be said to be needed to be met by supervision.
Ms B raises a more subtle concern that founds the need for supervision.

She says that J’s relationship with his father is at the moment precarious and although this boy is talented at what might be seen to be a very vigorous, indeed brutal, physical sport, he is, nevertheless, emotionally still vulnerable and attempting to deal with a complex of emotions relating to his relationship with his father. Also, because there are large periods of time separating the periods of face-to-face time between J and his father, that J needs to feel secure and comfortable about spending time with his father, and this, too, is pointed towards that occurring in what might be seen to be a protected or neutral environment.
It seems to me that those points are well made. Nevertheless, I am extremely troubled by the artificial nature of the time spent at a contact centre in circumstances where I assess there to be no “danger”, in the traditional sense, associated with time. There are also some practical difficulties which are well known to this Court associated with facilitating time at contact centres. They provide a potential another theatre of conflict between the parties and/or providing a foundation for time not to occur. I am not persuaded that time should be supervised in that sense.
I am, however, persuaded that there is a need for J to feel comfortable in terms of initial periods of time spent with his father. I will make provision, therefore, in the orders to attempt to deal with that issue in two ways.
First, I will limit the amount of time that J spends with his father initially to two hours. Secondly, I will provide that, during the two weeks that visits to Australia will occur, J will have two days where he doesn’t see his father separating each period of time when he does. Thirdly, in the first instance, the first visits will have a person who J feels comfortable with being in the near vicinity.

It seems to me that orders of that type strike a balance between, on the one hand, the considerations referred to Ms B and the mother, and on the other, attempting to facilitate as natural and “normal” a period of time as the circumstances might permit.
The second matter referred to Ms B troubles me. It seems to me to be plainly in J’s best interests that his father communicate with him regularly on the basis that there is a need for the father to demonstrate to J on J’s terms that he cares about him, that he wants to develop a relationship with him, that he’s interested in him and the like. It is not for me to tell this father how to behave in that respect. The issue is, what is in J’s best interests (to the extent that orders might accommodate them).
That decision is easy. It is plainly in J’s best interests that his father communicates with him regularly, and that he communicate with him via a means that allows the communication to be fulsome and meaningful. Fortunately, there is now the technology so as to facilitate video and audio communication, and neither party could see a bar to that occurring. Indeed, as the orders will reflect, each of them consent to communication taking place regularly by that means.
However, the father, for reasons which he considers to be right – and he is J’s father – says that, in the past, he has considered it better for J for him not to communicate regularly. Of course, he was entitled to make that decision as his father.
But, there is an interrelationship between that issue and J effectively being told that he has to spend face-to-face time with his father in Australia. It seems to me appropriate that, in order for that face-to-face time to take place in Australia, which at the moment is contrary to J’s expressed wishes, to effectively compel the father to show J that he wants to, can and will communicate with him regularly prior to, and for the purpose of, that time taking place.
Accordingly, I have made provision in the orders, for this year and the next, for there to be a specified minimum number of communications. I have done so, however, in this way: I do not see it as my role, or, indeed, the role of the Court, to force a father, who makes a decision to not communicate with his son, to do so. However, it does seem to me, consistent with the Court’s overriding obligation to make orders in J’s best interests, that if he makes that choice, J should not be, as it were, forced to spend face-to-face time with him in Australia.
Ms B is plainly of the view that the regular, meaningful communication between the father and J should be a precursor to face-to-face time, and I agree with that opinion. I therefore will provide that, in the event that there is not a minimum number of communications or attempts at communications, then the face-to-face time in Australia need not take place.
I emphasise: the orders provide that time should take place at all such times as might be agreed between the parties. In saying what I’ve just said, I do not for a moment suggest that there should not be attempts made by the mother, and indeed by J, to spend time with his father; that is not the issue. The issue is when the orders provide that such time must occur. In my judgment, if J is to, in effect, be ordered to have time with his father, there should be the precondition for regular communication to which I have just referred.
A matter not referred to by Ms B in her report, but an issue live between the parties, is the cost of travel.
I have already indicated that the father’s attitude, as expressed in his own words in the witness box is, effectively, “she went, she pays.” I reiterate that feelings of anger, frustration and the like might be seen to be productive of that comment or comments of that type. However, in terms of orders that might provide for J’s best interests, that attitude has no place. It is not a matter of rewarding or punishing those who either behave in a particular way, or rewarding or punishing people who may have more or less money than the other, but, what is frequently forgotten, as it seems to me, is that when payments in respect of time are being discussed, is that where a child is 10, it is important for him to see that time is sought by, and properly facilitated by his father.
It seems to me that the provision by the father of some monetary contribution towards that trip is a proper and overt manifestation to J that his father – who at the moment will, on his case, have some difficulties in meeting the payment – nevertheless prepared to put other matters aside and predominate the need for a relationship with J by contributing in at least some respects to the costs of travel.
I have therefore ordered in the first year that the father pay $850 towards airfares, and, in the second year and thereafter, that he should pay $1000. I emphasise that this does not meet the costs, nor does it in fact meet half the costs in all likelihood, but it seems to me to be a reasonable amount for a father, who is not otherwise paying child support on a regular basis, to be able to save and contribute toward the time with his son, if time with his son is properly predominated as a priority in household expenditure.
Finally, I am conscious of the fact that, by the year 2013, any time coinciding with the US summer holidays will see J aged about 13. Accordingly, I have sought to simplify the orders in 2013 and onwards by predominating J’s wishes from that time.
It seems to me that the wishes of a 13 year old are an entirely different matter to those of a 10 year old. Secondly, it seems to me that, by then, there will have been ample opportunity for the father to communicate regularly in the manner in which the orders contemplate, and for there to have been two compulsory visits to Australia to which the father has contributed, both by communication regularly with his son and by making a modest financial contribution.
Accordingly, it seems to me that, by that time, it is appropriate for J’s views to play a very significant role in whether time in that summer holidays occurs, and thereafter. It is for that reason that I have expressed the orders differently, in respect of the period 2013 and thereafter, than the orders within the years which precede them.
I should finally mention, because the mother represents herself, that in the orders sought by her she seeks an order for costs, and that costs be paid on an indemnity basis.
The usual position in this Court is dictated by section 117 of the Act. I can see nothing in the evidence before me, whether by reference to section 117(2A) or otherwise, that would justify an order for costs in this case. That application will then be dismissed, and, for the purposes of clarity, I will make an order that there be no order for costs.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 1 April.

Associate:

Date: 13 April 2011