SULLIVAN & DICKENS

[2016] FamCA 1180

FAMILY COURT OF AUSTRALIA

SULLIVAN & DICKENS [2016] FamCA 1180

FAMILY LAW – CHILDREN – best interests – spend time – division of time between parents in the school summer holiday period – child lives primarily with the mother – child has spent limited time away from mother – father wants to take the child overseas for holiday – child has never travelled overseas.

Family Law Act 1975 (Cth)

Banks & Banks [2015] FamCAFC 36
Goode & Goode [2006] FamCA 1346

APPLICANT: Mr Sullivan

RESPONDENT: Ms Dickens

INDEPENDENT CHILDREN’S LAWYER: Glezer Lanteri Associates

FILE NUMBER: MLC 571 of 2016

DATE DELIVERED: 2 December 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 2 December 2016

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Devine

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Glezer Lanteri & Associates

Orders

1. Paragraph 2 of the orders made 16 February 2016 be suspended during the Christmas school holiday period in 2016/2017 and recommence at the commencement of school as if the holiday period had not intervened.

2. During the Christmas school holiday period in 2016/2017 (commencing on 21 December 2016 and concluding on 1 February 2017), the child B born … 2010 (“the child”) spend time and communicate with each of the parents as follows:

   (a)with the father:

   (i)     from the conclusion of childcare or kindergarten (or of no childcare or kindergarten that day at 3.30 pm) on Wednesday 21 December 2016 until 3.00 pm on Christmas Day, 25 December 2016;

   (ii)    from 9.00 am on … 2017 (being the Father’s birthday) until 5.00 pm on … 2017;

   (iii)     from 5.00 pm on 15 January 2017 until 5.00 pm on 22 January 2017;

   (iv)   from 5.00 pm on 29 January 2017 until the commencement of school on 1 February 2017;

   (v)    by telephone each Tuesday and Thursday between 7.00 pm and 7.30 pm when the child is not in the father’s care, with the father to place the telephone call to the mother’s mobile telephone.

   (b)with the mother:

   (i)    from 3.00 pm on Christmas Day, 25 December 2016, until 9.00 am on 1 January 2017;

   (ii)    from 5.00 pm on 8 January 2017 until 5.00 pm on 15 January 2017;

   (iii)     from 5.00 pm on 22 January 2017 until 5.00 pm 29 January 2017;

   (iv)   by telephone each Tuesday and Thursday between 7:00 pm and 7:30 pm when the child is not in the mother’s care, with the mother to place the telephone call to the father’s mobile telephone.

3. Changeover occur at the front of Suburb E Primary School.

IT IS ORDERED BY CONSENT THAT

1. Without admitting the necessity for same, the Mother and the Father, their servants and agents, be and hereby are restrained from physically chastising and/or disciplining the child, or allowing any other person do to so.

IT IS FURTHER ORDERED THAT

1. All interim applications be otherwise dismissed.

2. By 4.00 pm on 3 February 2017 the father and the mother file and serve a financial statement that complies with Chapter 13 of the Family Law Rules.

3. All extant applications for final orders be adjourned for hearing in the Registrar’s Directions List at 9.30 am on 20 February 2017 to ascertain readiness of the matter for trial.

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 Sullivan & Dickens 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 571  of 2016

Mr Sullivan

Applicant

And

Ms Dickens

Respondent

REASONS FOR JUDGMENT

1. This matter was first listed for hearing before me on 7 November 2016.  Although the matter would normally have been listed for a final hearing, in circumstances where the father said that he wanted to seek interim orders, the matter was instead listed for an interim hearing before me today. 

2. On that date, I also made orders for the filing of any amended application in a case and any further affidavits in support of same, so as to refine the matters in relation to which the parties, and in particular, the father, sought interim relief.  On 11 November 2016, the father filed an Application in a Case and an Affidavit in support of that application. The mother filed a Response to that application and an Affidavit on 23 November 2016. 

3. The father in this case is 43 years of age and is a consultant, although he now says he has been unemployed for some months.  The mother, who is 48 years of age, also says that she is engaged in employment, albeit the material does not actually set out what she does.  As pointed out by Dr C, the single expert witness, there is very little which the parties agree about in this case, including, but not limited to, whether or not they were ever in a committed relationship.

4. Whether or not they were in a committed relationship, they have a child, B who was born in 2010 and has just turned six.  As submitted by counsel for the Independent Children’s Lawyer, to their credit, the parties were able to make arrangements for the child’s care without having to seek orders from this Court until early 2016.  Notwithstanding that it was not until early 2016 that these parties became involved in proceedings in this Court, there is an enormous degree of distrust between them, which Dr C’s evidence suggests is almost certainly contrary to the child’s best interests. 

5. These are, no doubt, matters that will be canvassed when the case is finally listed for a final hearing.  Although the father sought a raft of orders, many of which were in the same terms as the orders he seeks on a final basis, and in relation to which there was no evidence, the matter the Court is ultimately required to determine today is the question of how the time the child spends with each of his parents during the upcoming long summer vacation should be arranged.  On 16 February 2016, orders were made that provided as follows: 

   That [the child] spend half of all school or kindergarten holidays with each parent and commencing from the end of Term 1, 2016 and if the term ends before the adjourned date of hearing and if the date of the end of term is different between each kindergarten, then the half commences at the institution which first ends.

6. I am not totally satisfied I understand what that means, but it is fair to say that it was intended that the child would spend half of the school holidays with each of the parties.  The father, in his Application in a Case, although not all that clearly worded, sought permission to take the child overseas during the upcoming long summer vacation for what his counsel said was a period of 15 days in circumstances where it was submitted that the child had already spent a period of 12 days with the father. Albeit counsel ultimately conceded that the proposed trip was in fact 19 days and that the most time the child had previously spent with the father was 10, not 12 days. 

7. In his Affidavit in support of that application filed 11 November 2016, the father deposed as follows:

   The care that the father seeks over the summer holidays is as follows; The first night of the school holidays is Wednesday the 21st of December. The last night is Wednesday the 1st of February. Total is 43 nights. The father would like [the child] for 1 night from 5pm Christmas Eve until 3pm Christmas Day. The father’s birthday is [early in the year]. The father would like [the child] for 2 nights from 5pm Saturday …until 5pm Monday the … 2017. Then, the father would like [the child] for 18 nights from l0am Saturday the 14th of January until Thursday the 2nd of February, taking him to his first day of school in the morning. The father would also like permission to take [the child] overseas during the 18 nights in his care.

8. To be fair to the father, although he did not adduce any evidence as to the proposed overseas travel, he did depose that they would be overseas for 18, not 15 days.  The tenor of counsel for the father’s submission that the mother’s rejection of his travel plans was somehow unreasonable is difficult to sustain in circumstances where there was no sworn evidence as to the planned overseas travel upon which she could be reasonably expected to base her decision. 

9. Having raised my concerns about the lack of evidence with respect to the proposed overseas travel, the father sought and was given leave to tender some emails and an itinerary prepared by his travel agent.  Significantly, that itinerary was limited to the flight details, does not contain any other information that one might expect when determining an application such as this one, such as where the father and the child will be staying and contact details.  Counsel for the Independent Children’s Lawyer also submitted that the father had made no proposals with respect to any communication between the child and the mother during the proposed overseas travel.

10. This is a significant issue in this case, in circumstances where this child lives primarily with the mother, even on the father’s case has spent, at most, 10 days away from the mother and has never travelled overseas.  The orders I am being asked to make are parenting orders and as such, I must apply the legislative pathway identified by the Full Court in Goode & Goode [2006] FamCA 1346 (‘Goode’). In particular, I must consider, in determining what is in the child’s best interests, the matters in s 60CC of the Family Law Act 1975 (Cth) (‘the Act’). That being said, as the Full Court said in Banks & Banks [2015] FamCAFC 36 (‘Banks’), that is to the extent that the limited nature of the issues in the case dictate.

11. It was submitted by counsel for the father that the child is a competent and mature child who would benefit enormously from the proposed overseas travel with the father.  Whilst the evidence is yet to be tested, the evidence of Dr F and Dr C suggest to the contrary.  Both Dr F and Dr C describe the child as a little boy with significant behavioural issues, including possible anxiety, and with some significant psychological and emotional vulnerabilities.

12. The father also seeks to rely upon the evidence of Dr G, and reference is made to a report prepared by Dr G in Dr C’s report. However, there is a significant issue as to the admissibility of any report prepared by Dr G where leave was not sought to adduce adversarial expert evidence, and as to the weight to be given to that report in circumstances where Dr G has not interviewed the mother. 

13. Although I have no doubt that the father loves the child, and that the child loves the father, and it may well be that the child will in future benefit from travelling overseas with the father for an extended period, this is not a matter which was addressed by either Dr F or Dr C, and there is simply no evidence before me based upon which I could conclude that it would be in the child’s best interest, even if arrangements were to be put in place for him to be in regular communication with the mother, for him to travel overseas with the father at this time.

14. In the face of criticism about the length of the proposed overseas trip, the father amended his proposal, proposing instead that he return to Australia on 23 January 2017, rather than on 1 February 2017 as he had initially proposed.  Although this addresses some of the issues, in my view it does not address the question of how the child might cope, not only away from his mother for a significant period, but more importantly in an unfamiliar environment in circumstances where he has never travelled overseas either with the father or the mother before.

15. I am satisfied that until these issues can be addressed, and the evidence tested, the proposed overseas travel is premature. In all of the circumstances, I propose to err on the side of caution and make orders in terms of the minute of orders prepared by counsel for the independent children’s lawyer and as adopted by the mother. the child is young; there will no doubt be many occasions in the future when he will have the opportunity for overseas travel.  The orders proposed by counsel for the Independent Children’s Lawyer provide for the child to spend, effectively, half of the forthcoming or upcoming long summer vacation with each of the father and the mother, albeit not for the extended periods proposed by the father.

16. Those orders also address the issues of Christmas time, and time on the father’s birthday.  I also raised with counsel for the father the issue of how, in the circumstances where he’s unable to pay child support, he can afford the not inconsiderable cost of an overseas skiing holiday.  As a result of these issues being raised with the father, he sought and was granted leave to file an affidavit in which he deposed to having recently signed a five month contract for which he said he would be paid approximately $50,000.  Although it was submitted by his counsel that this was good news for the mother as well, I note that there was no proposal made by the father to pay the outstanding child support arrears.

17. In my view the Affidavit, whilst not pivotal to the outcome of this particular application, raised more questions than it answered.  Firstly, it is clear from that Affidavit that the other party to the contract has not actually signed that contract.  I note that although the father now submits that if the contract does not go ahead, the proposed overseas travel will also not be possible, this raises the question as to when the father signed the so-called contract, and why he did not depose to the travel being contingent upon that contract going ahead.

18. In any event, it is clear that the father has not yet paid for the proposed overseas travel and that, accordingly, he will not suffer any financial loss in the event that the child and he are not permitted to travel overseas on this occasion.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 2 December 2016.

Associate: 

Date:  24 August 2017