TENG & SHUE
[2020] FCCA 1841
•8 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TENG & SHUE | [2020] FCCA 1841 |
| Catchwords: FAMILY LAW – Parenting – final orders – discrete issues for Court to decide – where disagreement about Airport Watchlist order – where disagreement about overseas travel – where disagreement about issuance of Australian passport for each of the children – where disagreement about restraint on location of parties’ respective residences – where disagreement about telephone communication between the children and their non-live-with parent – where disagreement about restraint on quarrelling in front of children. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB |
| Cases cited: Grella & Jamieson [2017] FamCAFC 21 |
| Applicant: | MS TENG |
| Respondent: | MR SHUE |
| File Number: | SYC 3459 of 2015 |
| Judgment of: | Judge Morley |
| Hearing date: | 30 September 2019 |
| Date of Last Submission: | 4 November 2019 |
| Delivered at: | Sydney |
Delivered on: | 8 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Beck |
| Solicitors for the Applicant: | Lin Tang & Co |
| Counsel for the Respondent: | Ms Kaiti |
| Solicitors for the Respondent: | Lawside Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Maddox |
| Solicitors for the Independent Children's Lawyer: | John Spence & Associates |
ORDERS
THE COURT BY CONSENT ORDERS:
That the father MR SHUE born in 1981 (“the father”) have sole parental responsibility for the child X born in 2013 (“X”).
That the mother MS TENG born in 1986 (“the mother”) have sole parental responsibility for the child Y born in 2014 (“Y”).
That X live with the father.
That Y lived with the mother.
That X spend time with the mother and Y as follows:
(a)In 2019, from 1.00PM until 5.00PM on Saturdays;
(b)From 2020, from 12.00PM until 7.00PM on Saturdays;
(c)From June 2021, each alternate weekend from 12.00PM on Saturday until 6.00PM on Sunday, such that Y and X are together each weekend;
(d)From the June-July holidays in 2021 and each holiday thereafter, up to 12.00PM on Wednesday following X’s weekend with her mother, and for two such blocks in the Christmas holidays following X’s weekends with her mother;
(e)For a period of three hours on X’s birthday; and
(f)At any other times as agreed.
That Y spend time with the father and X as follows:
(a)In 2019, from 1.00PM until 5.00PM on Sundays;
(b)From 2020, from 12.00PM until 7.00PM on Sundays;
(c)From June 2021, from each alternate weekend from 12.00PM on Saturday until 6.00PM on Sunday such that Y and X are together each weekend;
(d)From the June-July holidays in 2021 and each holiday thereafter, up to 12.00PM on Wednesday following Y’s weekend with his father and for two such blocks in the Christmas holidays following Y’s weekend with his father;
(e)For a period of three hours on Y’s birthday; and
(f)At any other times as agreed.
That the father be at liberty to suspend orders 5(a), (b) and (c) on one occasion each year during school holidays provided he gives the mother 30 days written notice of such.
That the mother be at liberty to suspend orders 6(a), (b) and (c) on one occasion each year during school holidays provided she gives the father 30 days written notice of such.
That each of the parents keep the other parent informed at all times of their current residential address, email address, and contact telephone numbers, including mobile telephone numbers and advise the other parent within seven days of any change to those details.
That each of the parents shall as soon as practicable:
(a)Notify the other parent of any medical emergency affecting either of the children whilst in their care or any serious illness or injury suffered by either of the children whilst in their care, and each parent is entitled to attend any medical professional or hospital treating the child;
(b)Provide all authorities and directions necessary to all health professionals consulted by either child and provide to the other parent all information and material received from any health professional in relation to either child;
(c)Provide all authorities and directions necessary to any school attended by either child to authorise the school to provide all information about either child equally to each of the parents;
(d)Inform the other parent of any major events occurring in either child’s life including, but not limited to, the death of a family member or the remarriage of the parent.
That each of the parties is authorised to obtain, at that party’s own cost, information and copies of all documents relating to the care, welfare and development of each child from all schools and extra-curricular activities either child may attend and all treating medical and allied health practitioners either child may attend.
That each parent shall be entitled to fully participate in all and any parent/student activities at each child’s school. In this regard, the parents will use their best endeavours to give each other reasonable advance notice if either party is intending to attend such activity, and both parties shall do all things to ensure that they are kept up-to-date with school events by reading notices, activity emails and other information to which they have access.
Pursuant to section 121(9)(d) of the Family Law Act 1975 (Cth), the mother and father are each at liberty to provide a copy of these orders to each child’s school.
That each parent shall ensure that when the child is returned to the other parent they return the clothing and possessions that child arrived with at the commencement of his or her time with that parent.
That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence or within the hearing of either of the children.
That each of the parents is restrained from allowing either of the children to remain in the presence of, or within either child’s hearing of, any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.
That each child is at liberty to receive any reasonable gift from each parent and to bring that gift with him or her to each parent’s residence.
THE COURT FURTHER ORDERS:
That unless otherwise agreed between the parties in writing, changeovers at the start and finish of a parent’s time with the child will occur by the child being delivered to, and collected from, the other parent’s place of residence by the parent with whom the child lives.
That each of the parents is restrained from relocating either child’s place of residence outside the Sydney Metropolitan Area without the written and signed consent of the other parent.
That each of Ms Teng born in 1986 and Mr Shue born in 1981, their servants and agents are restrained, irrespective of any authenticated consent under section 65Y of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of either of the children X born in 2013 and Y born in 2014 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of X born in 2013 and Y born in 2014 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain each child’s name on that Watchlist for seven (7) years.
That each of the parents is restrained from quarrelling with the other parent in the presence of or within the hearing of either child.
That each of the parents must use their best endeavours to ensure that his or her relatives, partner, or associates do not quarrel with the other parent in the presence of or within the hearing of either child.
IT IS NOTED that publication of this judgment under the pseudonym Teng & Shue is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3459 of 2015
| MS TENG |
Applicant
And
| MS SHUE |
Respondent
REASONS FOR JUDGMENT
Introduction
On 30 September and 1 October 2019, I conducted a final parenting hearing under the Family Law Act 1975 (Cth) (“the Act”) between the applicant mother, Ms Teng (“the mother”) and the respondent father, Mr Shue (“the father”) concerning future parenting arrangements for their children, X, born in 2013, and Y, born in 2014. The interests of the children were represented at the final hearing by an Independent Children’s Lawyer (“ICL”).
The parties negotiated throughout the first day and reached an agreement in relation to parental responsibility, with whom each child would live, and the time that the other parent would spend with the children. The parties and the ICL reduced that agreement to writing, and it was tendered to the Court on the second day of the hearing. I initialled that document and dated it 1 October 2019.
The parties also reached agreement on a number of what I might call ‘ancillary’ parenting issues – how changeovers would occur (subject to the parties’ residential addresses), how each child would receive gifts from the parent with whom they do not live, suspension of time to allow a holiday to be taken, exchange of and mutual access to information, participation by each parent in the children’s school events and activities, and the return of clothing and possessions that children take with them when spending time with the other parent.
The parties’ consent position in relation to the live with/spend time with arrangements can be briefly summarised as follows:
a)That X would live with the father;
b)That Y would live with the mother;
c)That the X would spend time with the mother and Y:
i)For the rest of 2019 (noting this hearing took place in September/October 2019), from 1:00PM to 5:00PM on Saturdays (a total of four hours);
ii)From 2020, from 12:00PM to 7:00PM on Saturdays (a total of seven hours);
iii)From June 2021, on alternate weekends from 12:00PM on Saturday to 6:00PM Sunday, the first introduction of overnight time being a single occasion a fortnight;
iv)From the June/July 2021 school holidays, and each holiday thereafter, from 12:00PM on Saturday to 12:00PM on Wednesday (an extension of the regular alternate weekend time) with two such blocks in the Christmas school holidays;
v)For a period of three hours on X’s birthday; and
vi)At any other times as agreed.
d)That Y would spend time with the father and X:
i)For the rest of 2019, from 1:00PM to 5:00PM on Sundays (a total of four hours);
ii)From 2020, from 12:00PM to 7:00PM on Sundays (a total of seven hours);
iii)From 2021 and thereafter, “as for X except school holiday time follows Y’s time with the mother”.
iv)For a period of three hours on Y’s birthday; and
v)At any other times as agreed.
I indicated to the parties and the ICL that I had some reservations about making the orders sought by consent. On that basis, the parties sought to cross-examine the Family Consultant who had prepared a Family Report dated 23 November 2016 and an updated Family Report dated 29 July 2019. That cross-examination took place on the second day of the hearing.
At the end of the cross-examination of the Family Consultant on behalf of the parties and the ICL, I asked the Family Consultant a few questions, beginning with:
His Honour –Ms D, does this case baffle you?
Ms D – I think that’s an appropriate word, your Honour. Yes. Yes. It does. That probably came across in my report.
His Honour – So it’s not unreasonable that I am baffled also?
Ms D – That’s right.
His Honour – On all of the material you’ve seen, and in the course of your two sets of interviews and preparation of your reports, is it fair to say that of the usual risk elements that we come across, the only ghost of a one was the father somewhat harping on an occasion long ago when the mother went to hospital, which seemed to me to be counter‑indicative of mental health problems?
Ms D – Yes.
His Honour – And in all the material you’ve seen, and your interviews, is it fair to say that there would seem to be nothing about parenting capacity here which would necessarily limit the amount of time either child should spend with the other parent below the norm of alternate weekend, half the school holidays and so forth?
Ms D – Yes. There’s absolutely nothing that was evident to me about the problems with parenting capacity that would result in some fairly standard orders being made, including but not limited to an equal time arrangement. The issue with these children however is that they have had such limited contact with the other parent that normally you would be saying, I think as I did in my first report before I essentially gave up, that it would be a graduated sort of period of exposure and time and then it would be fine. But I did give up, I think, in the sense that the parties – I think there are cultural considerations in this matter that are beyond my scope as an expert, that I only have a limited understanding of, and for me it was then about working within those cultural constraints to achieve something that I still think is in those children’s best interests, and that is to have the best possible relationship with each of their parents.
After the evidence of the Family Consultant, submissions in relation to the outstanding issues were made by counsel for each of the parties and counsel for the ICL. I then indicated to the parties that the consent position reflected in the terms tendered to the Court left me wondering if the orders so sought by consent were in the best interests of the children.
I indicated that I required submissions in relation to the possibility that I may make orders for more extensive time to be spent by the father with Y and by the mother with X than was sought by consent by the parties. The ICL’s counsel indicated that all relevant submissions on his instructions had been made, and I made directions for the filing of further written submissions in relation to the alternate orders I had suggested by 5 November 2019. The further written submissions were provided by counsel for each of the parents.
On the consideration of all of the evidence, of the Family Report dated 23 November 2016, the updated Family Report dated 29 July 2019, and all of the submissions, both oral and written, I have determined in this matter that it is probably in the best interests of the children to make the orders in relation to parental responsibility, with whom each of the children will live, and what time each of the children will spend with the other parent as sought by the parties in their consent document which I initialled and dated 1 October 2020.
The issues
The issues on which the parties did not agree remained as follows:
a)Overseas travel and a watchlist order – the mother sought an order removing the children’s names from the airport watchlist and enabling overseas travel with the children on certain conditions, whereas the father sought to have the children’s names maintained on the watchlist for a period of seven years from the date of final orders. The ICL supported the father’s position.
b)Issue of Australian passports for each of the children – the mother sought an order that the parties do all things necessary to obtain an Australian passport for each of the children, whereas the father, in keeping with his watchlist proposal, opposed any such orders, instead seeking that any application be made by consent of both parties. The ICL’s position was that if the children were to be maintained on the watchlist, there was no need for an order to be made providing for the issue of passports for the children.
c)Telephone communication – the mother sought an order that there be telephone communication or other electronic device communication between each parent and the children “at all reasonable times”, with the child’s other parent to provide any electronic devices for that communication. The father sought that there be no telephone or other such communication order. The ICL also opposed the mother’s position and adopted what the Family Consultant had said in the Family Report, that such an order for these particular parents would be a possible recipe for dissent.
d)Restraint on relocation – the mother sought an order restraining both parties from residing outside a radius of 15 kilometres from the other party’s residential address. The father sought an order restraining the parties from residing outside the Sydney Metropolitan Area without the written consent of the other parent. The ICL supported the father’s position, which was in line with a recommendation made by the Family Consultant in the updated Family Report.
e)Changeover – while the parties agreed on the mechanism of changeover (that the parent with whom the child lives would deliver the child to and collect the child from the other parent at the start and conclusion of the child’s time with his or her other parent), the mother sought that this order be made “subject to the Father’s primary residence is [sic] within 15 kilometres from the Suburb B Station”. Neither the father nor the ICL sought the change-over order have any geographic limitation, and both counsel made submissions in relation to the restraint on relocation with the operation of changeover in mind.
f)A restraint on quarrelling in the presence of either of the children – the mother sought an order originally phrased as “quarrelling in the presence of any child”, the father opposed the order, and the ICL did not buy into the argument.
Proceedings up to hearing
I normally give detail of the course of the proceedings from commencement to hearing in my judgments. In this matter, I will not.
The matter commenced on 29 May 2015 when the mother filed her initiating application, to which the father responded on 23 September 2015. Interim orders that I will detail later were made by consent on 28 September 2015, and the matter bounced through quite a number of further mentions before the Court at each of which the Court was assured the parties were pursuing mediation with a view to settling the matter. The matter eventually went to call-over on 3 May 2019, and was set down for the hearing before me on 30 September and 1 October 2019.
Materials relied upon
There is very, very little material by way of evidence in the documents relied upon by each of the parties at the hearing that is relevant to the matters that remain in issue. Nevertheless, I have read the entirety of the material referred to by the parties at hearing, had reference to the submissions both written and oral made by learned counsel, and had reference to the transcript of the cross-examination of the Family Consultant.
The mother relied upon the following material:
a)Her Amended Initiating Application filed 19 September 2019;
b)Her Notice of Risk filed 29 May 2015;
c)Affidavit of the mother affirmed and filed 19 September 2019;
d)Case Outline prepared by her counsel, Ms Beck; and
e)Further written submissions dated 21 October 2019 prepared by her counsel, Ms Beck.
The father relied upon the following materials:
a)His Amended Response filed 14 June 2019;
b)His Notice of Risk filed 23 September 2015;
c)Affidavit of the father affirmed 29 August and filed 30 August 2019;
d)Affidavit of Ms C (the paternal grandmother) affirmed 29 August and filed 30 August 2019;
e)Case Outline document prepared by the husband’s solicitor; and
f)Written submissions dated 25 October 2019 prepared by the father’s counsel, Ms Kaiti.
The ICL relied upon the following:
a)Case Outline document prepared by Mr Maddox, counsel for the ICL;
b)Family Report dated 23 November 2016 prepared by Family Consultant Ms D; and
c)Updated Family Report dated 29 July 2019 prepared by Family Consultant Ms D.
The orders sought
The orders sought by the mother on the issues in contention between the parties were as follows:
a)That each party be restrained from relocating their residence more than 15 kilometres away from the other party’s current residential address;
b)That each child be at liberty to communicate with each parent by telephone or by other form of electronic communications “at all reasonable times”, and that such electronic devices for communications shall be provided by the parent with whom the child does not live;
c)That X’s passport and any subsequent renewal passports be retained at all times by the father until X attains the age of 18 years;
d)That Y’s passport and any subsequent renewal passports be retained at all times by the mother until Y attains the age of 18 years;
e)That all officers of the Australian Passport Office and any other regulatory body responsible for the issue of Australian passports are authorised and directed to issue a passport for X upon application by the father without the necessity for the mother to provide her written consent to the issue of such passport;
f)That all officers of the Australian Passport Office and any other regulatory body responsible for the issue of Australian passports are authorised and directed to issue a passport for Y upon application by the mother without the necessity for the father to provide his written consent to the issue of such passport;
g)That from the date of final orders, each party may remove the child living with that parent from Australia for the purpose of travelling overseas not exceeding 28 days per trip upon giving the other parent seven days written notice, and for not more than 56 days in total per calendar year;
h)That from the date of final orders each parent may remove the child not living with that parent from Australia for the purpose of travelling overseas not exceeding 28 days per trip and not more than 56 days in total per calendar year, provided that each parent provides their prior written consent;
i)That the orders in relation to each of the children spending time with the parent with whom they do not live be suspended in the event of any overseas travel pursuant to orders 17(g) and 17(h) herein;
j)That the children be removed from the airport watchlist;
k)“Either party shall be restrained from quarrelling in the presence of any child and shall use their best endeavours to ensure that the party’s relatives, partners and associates be restrained from doing so in the presence of any child.”[1]
l)In relation to changeover, unless the parties agree otherwise in writing, and subject to the father’s primary residence remaining within 15 kilometres of Suburb B Station, each party or their nominees shall:
i)Deliver the child with whom they live to the other parent’s residence; and
ii)Collect the child with whom they live from the other parent’s residence.
[1] Emphasis added.
The father sought the following orders in relation to the issues in contest between the parties:
a)The parents “and the children” be prohibited from residing outside the Sydney metropolitan area without the express written permission of the other parent.
b)That both children be placed on the airport watchlist for a period of seven years.
c)If either parent seeks to obtain a passport for the child in their respective care, that a passport shall not be issued without the consent of the other parent.
d)To facilitate time spent with the other parent, that unless agreed in writing otherwise between the parents, changeover shall occur as follows:
i)The father delivering and collecting X from the mother’s residence at the commencement and at the conclusion of her time with the mother; and
ii)The mother delivering and collecting Y from the father’s residence at the commencement and at the conclusion of his time spent with the father.
The ICL supported the father’s view on the following issues in dispute:
a)That the children be placed on the airport watchlist for seven years.
b)That no orders be made for overseas travel.
c)That no orders be made for telephone or electronic communication between the parents and the children.
d)That orders be made restraining the parents from moving to reside “outside the Sydney metropolitan area”.
e)That the order in relation to changeover be made without limitation on either parent’s residence.
In relation to the orders sought by the mother for the issuance of passports for the children, the ICL was of the view that if the children were on the watchlist for a period of seven years there would be no need for the children to have an Australian passport. Accordingly, the ICL opposed the mother’s orders sought in relation to passports.
The ICL did not engage in the dispute regarding the order sought by the mother restraining the parties from quarrelling.
As already stated, there was very little evidence in the material relied upon by the parties upon which to base an informed consideration of the primary and additional considerations in section 60CC of the Act, in determining the best interests of each of the children in relation to the matters in issue between the parties.
Neither of the parties sought to cross-examine the other party and the mother did not seek to cross-examine the father’s witness, the paternal grandmother.
The Family Consultant was cross-examined on behalf of each of the parties and the ICL. The Family Consultant was asked some questions by me, following which there was some further cross‑examination of the Family Consultant on behalf of the ICL.
The mother was born in China and was 33 years of age at the time of the hearing. The mother came to Australia in 2002 and became an Australian citizen in 2007. She is employed on a full-time basis as a professional. She commenced that career in 2012 in the Sydney CBD and moved to employment in that capacity in Suburb B in 2018. The mother enjoys good health.
The father was born in China and was 38 years of age at the time of the hearing. He came to Australia in 2004 and became a permanent resident of Australia in 2006. He is a Chinese citizen.
The husband is a professional in full-time employment. From 2008 to 2019, he was in employment in that capacity at Suburb E and since June 2019, he has been in full-time employment in that capacity in Sydney.
The father enjoys good health.
The parties did not cohabit prior to their marriage. They married in 2013 at Suburb F. X was born in 2013 and Y was born in 2014, probably after the parties had separated. X was six years and two months of age at the time of the hearing and Y was five years and one month of age. Both children enjoy good health.
The wife asserts in paragraph 6 of her affidavit that the parents separated on a final basis in January 2015. She later asserts in paragraph 13 of her affidavit that the parties ceased any cohabitation in December 2013. The husband asserts in his affidavit that the parties separated in January 2014. Luckily, nothing turns in this matter on the date of separation.
At some time after separation, whenever that occurred, X began living full-time with the father and Y has stayed living full-time since his birth with his mother.
Following their separation the parties lived in close proximity to each other’s homes in Suburb B. However, in June 2018, the father moved to reside with X and his parents at Suburb G in a three‑bedroom apartment. The mother has remained living in Suburb B in a four-bedroom house.
In September 2014 the parents cooperated in having an Australian passport issued for X. X travelled to China with her paternal grandparents in 2014 and did not return to Australia until 2015. The father went to China and spent some time with X in February 2015.
The mother gives evidence that it was not so much a case of her consenting to X living in China, for what appeared to the wife to be an indefinite period with her paternal grandparents, but rather that, at that time, she genuinely felt that she had to do what she was told and cooperate.
The mother gives evidence that she is left with a lingering fear that X will once again be taken to China and may not be returned to Australia. She notes, as is the case, that China is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
From separation, whenever that was, until the proceedings were commenced and some interim orders were made on 28 September 2015, there was, it appears, a regular arrangement between the parties for each party to spend some very short time each week with the child who does not live with that parent.
Following the commencement of proceedings, and when the matter was before the Court for its first return on 28 September 2015, a Family Report was ordered. Orders were also made by consent between the parties and summarised as follows:
a)The parties have equal shared parental responsibility for each of the children;
b)That Y live with his mother and spend time with his father:
i)Each Tuesday and Thursday from 4.00PM until 7.00PM; and
ii)Each Sunday from 1.00PM until 5.00PM.
with changeover occurring at the mother’s home at the start and end of the father’s time;
c)That X live with her father and spend time with her mother:
i)Each Wednesday and Friday from 3.00PM until 6.00PM; and
ii)Each Saturday from 1.00PM until 5.00PM.
with changeovers occurring at the father’s home at the start and end of the mother’s time;
d)That both parties enrol in and complete the “123 Emotion Coaching” course;
e)An order placing each of the children on the airport watchlist; and
f)That the parties use a communication book for the benefit of the children.
The parties complied with the regime of spending time with the children until they made an alternate voluntary arrangement in January 2016. The arrangement provided that:
a)Y spent time with his father and X each Thursday and Sunday from 5.00PM until 7.00PM; and
b)X spent time with her mother and Y each Friday and Saturday from 5.00PM until 7.00PM.
The parents at that time were still living within walking distance of each other in Suburb B.
When the father moved with X and his parents to Suburb G in June 2018, the parties rearranged their agreement so that:
a)The father was spending time with Y only, on Sunday from 5.00PM until 7.00PM; and
b)The mother was spending time with X only on Saturday from 5.00PM till 7.00PM.
The father held a driver’s licence throughout the parties’ relationship and holds one following separation. The mother only obtained her driver’s licence in February 2019.
X attends school at H School. This year, she is in year one. At the time of the hearing, Y was intended to start kindergarten at Suburb B School this year.
The law
In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act.
The Court must give attention to section 60B of the Act that sets out the objects of Part IV of the Act relating to children. Those objects inform the making of parenting orders.[2] That section also contains the principles behind those objects. In this matter I have considered those objects and the principles behind those objects.
[2] Family Law Act 1975 (Cth) s 60B.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.
In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper.[3] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[4]
[3] Family Law Act 1975 (Cth) s 65D(1).
[4] Family Law Act 1975 (Cth) s 65D(2).
In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings. [5]
[5] Family Law Act 1975 (Cth) s 60CC.
Section 61DA provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[6]
[6] Family Law Act 1975 (Cth) s 61DA.
The presumption, when applying, may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[7]
[7] Family Law Act 1975 (Cth) s 60B.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DAA, the Court must consider:
a)Whether the child spending equal time with each parent would be in the best interest of the child;[8] and
b)Whether the child spending equal time with each of the parents is reasonably practicable.[9]
If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.[10]
[8] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[9] Family Law Act 1975 (Cth) s 65DAA(1)(b).
[10] Family Law Act 1975 (Cth) s 65DAA(1)(c).
If the Court does not make an order for the child to spend equal time with each of the parents, then the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable and, if the answer to both is yes, the Court is to consider making an order to provide for the child to spend substantial and significant time with each of the parents.
What is meant by substantial and significant time is set out in section 65DAA(3) of the Act and includes days that fall on weekends and holidays, days that do not fall on weekends or holidays, the child being able to be involved in occasions and events special to the parents, the parents being able to be involved in occasions and events of particular significance to the child, and the parents being able to be included in the child’s daily routine.
If the Court does not make an order for the child to spend substantial and significant time with each of the child’s parents, the Court must then go on to determine what parenting orders are proper in the best interests of the child, per section 65D.
As to what is ‘proper’, and how the Court’s discretion is to be exercised, I note the comments of the Full Court of the Family Court of Australia in the decision of Grella & Jamieson:[11]
A discretionary judgment concerning the parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[12]
[11] Grella & Jamieson [2017] FamCAFC 21.
[12] Grella & Jamieson [2017] FamCAFC 21, [18].
Section 60CC – the primary considerations
The issues remaining to be determined by the Court are:
a)What orders are appropriate in relation to overseas travel and/or the airport watchlist;
b)What orders are appropriate in relation to the issuing, or not, of Australian passports for each of the children;
c)What restraint is proper to be made on the parties moving their place of residence (usually I would add the words “if any” after “restraint”, but both parties and the ICL seek restraints);
d)Whether there should be a specific order for telephone or electronic communication between parents and children;
e)Whether there should be an alternate changeover arrangement if the father moves to reside more than 15 kilometres from Suburb B Station (the terms of any such order not posited by the mother); and
f)Whether there should be a restraint on the parents quarrelling in the presence of either child or allowing any other persons to quarrel in the presence of either child.
I am still required to follow the legislative pathway and consider such of the primary and additional considerations, as are set out in section 60CC of the Act, to make findings so as to determine what orders are proper in the best interests of the children.
The primary considerations under the Act are the benefit of the children having a meaningful relationship with both of their parents and any need to protect either of the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.[13]
[13] Family Law Act 1975 (Cth) s 60CC(2).
Each of the parties filed a Notice of Risk in this matter. The mother’s Notice of Risk filed 29 May 2015 does not assert that there is any risk to the children. The father’s Notice of Risk filed 23 September 2015 does not assert that there is any risk to the children.
The parties reached a consent arrangement in relation to parental responsibility, with whom each of the children would live, and what time each of the children would spend with the parent and sibling with whom they do not live. They invited the Court to make orders in accordance with that consent arrangement.
That arrangement is that the father have sole parental responsibility for X, the mother have sole parental responsibility for Y, X live with her father, Y live with his mother and that each child spend time with the other parent on a graduating basis as follows:
(a)X with her mother (and Y):
(i) In 2019, from 1.00PM until 5.00PM on Saturday;
(ii) In 2020, from 12.00PM until 7.00PM on Saturday;
(iii)From June 2021, on alternate weekends from 12.00PM Saturday to 6.00PM Sunday;
(iv)In 2021, from the June-July school holidays and each holiday thereafter up to 12.00PM Wednesday following X’s weekend with mother, plus two such blocks in the Christmas holidays following X’s weekends with the mother;
(v) For a period of three hours on X’s birthday; and
(vi) At any other times as agreed.
(b)That Y spend time with his father (and X):
(i) In 2019 from 1.00PM to 5.00PM on Sundays;
(ii) In 2020 from 12.00PM until 7.00PM on Sundays;
(iii)From June 2021, alternate weekends starting 12.00PM on Saturday until 6.00PM on Sunday. That is to take place on the alternate weekend to when X is with her mother so that the children are together each weekend;
(iv)In 2021 from the June-July holidays and each holiday thereafter up to 12.00PM Wednesday following Y’s weekend with his father, plus two such blocks in Christmas holidays following Y’s weekend with his father;
(v) For a period of three hours on Y’s birthday; and
(vi) At any other times as agreed.
The time that each child will spend with the parent with whom they do not live, pursuant to the orders agreed between the parties, is so short that there must be doubt that meaningful relationships can be maintained.[14]
[14] Family Law Act 1975(Cth) s 60CC(2)(a).
I asked the Family Consultant during her evidence if the time so proposed was adequate for the children to form a meaningful relationship with the parent with whom they do not live. She responded:
I don’t think that it’s enough time. It’s enough time to have a nice relationship. The time you might spend with a grandparent or the time you might spend with a family member. In terms of an attachment relationship, no, there isn’t enough time.
On that basis, I find that it would be disastrous for even this inadequate amount of time to be interrupted by either or both children being taken overseas for any amount of time. This consideration tends in favour of the children being placed and maintained on the airport watchlist and against the orders as sought by the mother for overseas travel and issue of passports being made. If overseas travel with one or both of the children is proposed by either parent in the future whilst the watchlist order is in force, that parent must seek further orders of the court, either by consent or on a contested basis.
There is a benefit to each child in having a meaningful relationship with both of their parents. On the evidence, and the Family Consultant’s evaluation, it is doubtful that either child currently has a meaningful relationship with the parent with whom they do not live. It is questionable as to whether or not a meaningful parent-child relationship will develop on the basis of the parties’ proposed spend-time-with orders. What will be the result in relation to the children’s sibling relationship can only be pure conjecture at the moment.
The Family Consultant was aware of the parties’ positions in relation to with whom each child would live and what time the other party would spend with the child at the time of the interviews for the updated Family Report, dated 29 July 2019. She recommends that:
a)X live with her father and that he have sole parental responsibility for her;
b)Y live with his mother and the mother have sole parental responsibility for him; and
c)That each child spend one night per fortnight with the parent with whom they do not live from 12.00PM on Saturday until 6.00PM on Sunday with the outcome that the children spend this time each weekend together.
The parties have adopted those recommendations, except that they have delayed the recommendation for the time to be spent between child and non-live-with parent until June 2021.
Section 60CC – additional considerations
The additional consideration of the likely effect of any change in the children’s circumstances, including the likely effect on the children of any separation from either of his or her parents and any other person with whom they have been living, is relevant to the contested issue of overseas travel as against being maintained on the watchlist.[15] Therefore, it is also relevant to the issue of passports.
[15] Family Law Act 1975 (Cth) s 60CC(3)(d).
As I have commented above, given the paucity of the time to be spent by each child with the parent with whom they do not live, travel overseas for even a period of weeks is too long a break. That is especially so given the proposed yearly limit of 28 days per trip, twice per year.
Accordingly, under this consideration, I find it is in the best interests of the children that they be maintained on the watchlist and not to make orders sought by the mother in relation to overseas travel, but to leave any consideration of issue of passports and overseas travel for either agreement between the parties or further order of a Court if no agreement is reached.
Of course, if a final order is made for the children’s names to be maintained on the airport watchlist for any period of time – the father seeks, and is supported by the ICL, a period of seven years – it is not open to the parties to arrange for the children to be taken outside of Australia simply by agreement between them. They would have to approach the Court to obtain an order by consent in those circumstances, for the purpose of removing the children from the watchlist for the purpose of any agreed travel.
I hope the parents take close note of this comment so that there is no unhappy scene at an airport or cruise dock consequent upon a misapprehension that a document signed by the other party is enough to get around the children’s names being on the watchlist.
At the moment, there is no practical difficulty or expense in either child spending time with the parent with whom they do not live given that the parents live in fairly close proximity – Suburb B and Suburb G.[16] The mother seeks to keep the parties living within 15 kilometres of each other, and the father seeks to have the parties remain living within the Sydney metropolitan area.
[16] Family Law Act 1975 (Cth) s 60CC(3)(e).
The Family Consultant, in the updated Family Report, recommends that the parties be prohibited from moving outside the Sydney metropolitan area without the express written permission of the other. The ICL supports the Sydney metropolitan area restraint as opposed to the 15 kilometres restraint.
The evidence of the parties does not assist. There is nothing suggested in evidence to the effect that either party intends to move away from their current place of residence. There is no evidence in relation to difficulties or expense in relation to any move by the father more than 15 kilometres from the mother’s place of residence but still within the Sydney metropolitan area.
Accordingly, I find that this consideration tends toward a finding that it is in the best interests of the children that the parents be restrained from moving outside the Sydney metropolitan area, rather than the extremely restrictive restraint sought in the mother’s order. I do not find it is necessary in this matter to go into detail on the law relating to the making of coercive orders in relation to where parents of children must (or may not) live, suffice it to say that there are no circumstances presented on the evidence, let alone extraordinary circumstances, that would seem to justify a restrictive order of the nature sought by the mother.
Each of the parents must, of necessity, be conceding that the other parent has adequate parenting capacity and has an appropriate attitude to the children and to the responsibilities of parenthood.[17]
[17] Family Law Act 1975 (Cth) s 60CC(3)(f).
There are no allegations of family violence.[18]
[18] Family Law Act 1975 (Cth) s 60CC(3)(j). See also Family Law Act 1975 (Cth) s 60CC(3)(k).
While it would be preferable in most cases to make orders that would be least likely to lead to the institution of further proceedings in relation to the children, in this particular matter I find that it is in the best interests of the children not to make an order allowing overseas travel on conditions, as sought by the mother. I find that it is in their best interests to maintain their names on the airport watchlist for a period of seven years, as sought by the father and the ICL.
While those circumstances may well lead to the institution of further proceedings if either parent proposes overseas travel and does not have the cooperative consent of the other parent to remove the child or children’s names from the airport watchlist, for the reasons I have set out above, that is the order that will be made.
Section 61DA – parental responsibility
The parents seek by consent to have orders made that the father have sole parental responsibility for X and the mother have sole parental responsibility for Y. I find in those circumstances that the presumption in section 61DA of the Act, that it is in the children’s best interests for their parents to have equal shared parental responsibility for each of them, is rebutted.
Therefore, I will make the orders sought by consent by the parties, and I do not need to consider the matters relating to equal time and substantial and significant time set out in section 65DAA of the Act. I can indicate that on a consideration of those matters, in consequence of the consent orders sought by the parties, I would have found that neither equal time nor substantial and significant time is in the best interests of the children.
That finding would have occurred because on all of the evidence, I would find that whatever order may be made by the Court, the parents will likely follow their own path and continue to parent each of the children separately. I would have found that the parents will follow the regime for each of the children spending time with their non-live-with parent in accordance with the agreement reflected in their consent orders and disregard, as they would be entitled to do, any more extensive orders for spending time made by the Court.
However, in the event that the parties fell into a disagreement, even over some minor point – “let him/her eat beans”, “I do not want him/her to eat beans” – then the Court orders may be used as a weapon of coercion by one parent against the other. The circumstance of the children’s living separately and spending minimal time with their non-live-with parent is bad enough without providing fodder for conflict.
Resolution of the issues
As indicated above, I find that it is in the best interests of the children that an order be made as sought by the father that they be maintained on the watchlist for a period of seven years and that no orders be made in relation to overseas travel or for issue of passports.
I find that it is in the best interests of the children to make changeover orders as sought by each of the parents, but without the condition sought by the mother, that the father reside within 15 kilometres of Suburb B Station. I will make an order that unless otherwise agreed each party deliver the child who lives with that parent to, and collect that child from, the other parent’s residence for changeovers.
I find that it is in the best interests of the children to make an order that the parents are each restrained from relocating either child’s place of residence outside the Sydney metropolitan area.
I find that it is in the best interests of the children that no order be made in relation to telephone or other electronic communication. I make that finding on the basis of the evidence given by the Family Consultant during her cross‑examination, where in response to a question by counsel for the ICL:
Mr Maddox – Do you have any view about whether telephone communication between the non-resident parent and the child would be a good outcome for the children, in their interest?
Ms D – My view is that it wouldn’t. I think that the parties at the moment would struggle to facilitate that in a positive way and where there’s any issue that might arise in terms of the telephone contact or FaceTime or Skype or whatever being not good quality, it’s my view that it’s best not to have it at all as long as there is that regular time occurring, then I think that should suffice.
In relation to the mother’s application that there be a restraint on the parents quarrelling in front of the children, I find that such an order is in the best interests of the children. Once again, this is based upon the evidence given by the Family Consultant in cross-examination where, in response to a question from counsel for the mother, which I paraphrase as the Family Consultant being asked if there was any reason she could think of why such an order is not a good idea, she said:
I think if the parties have had a history of conflict in front of the children, my fervent hope is always that they will realise the impact of their conflict on the children and cease and desist. Sometimes people need a gentle reminder in the form of an order that they shouldn’t do that.
Rather than the order sought by the mother, which on its terms restrains each of the parents from quarrelling with anyone in front of any child, I will make an order restraining each of the parents from quarrelling with the other parent in the presence of or within the hearing of either child.
Conclusion
I considered long and hard whether or not I should make spend-time-with orders providing for time for each child with the parent with whom they do not live greater than, even considerably greater than, the amount of time provided in the consent orders presented by the parties. I have decided, for the reasons I have indicated, not to do so.
I consider as indicated earlier, that any orders I may make in that regard other than the orders agreed to by the parties will not be followed by the parties – and if that is their mutual agreement and arrangement, that is their right. I have therefore decided not to pursue that empty exercise.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 8 July 2020