Thomas and Stirling

[2015] FamCA 1220

FAMILY COURT OF AUSTRALIA

THOMAS & STIRLING [2015] FamCA 1220

FAMILY LAW – CHILDREN – Final parenting orders – post non-return under the 1980 Hague Abduction Convention – discrete issues – the school to be attended by the children – frequency and location of time spent – recognition under the 1996 Hague Child Protection Convention.

APPLICANT: Ms Thomas

RESPONDENT: Mr Stirling

INDEPENDENT CHILDREN’S LAWYER: Ms C Smith

FILE NUMBER: MLC 393 of 2013

DATE DELIVERED: 22 December 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 22 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: No Appearance

COUNSEL FOR THE RESPONDENT:	In person
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Victoria Legal Aid

Orders

IT IS ORDERED THAT

1. All previous parenting orders, be discharged.

2. The mother have sole parental responsibility in relation to the education of the children, S Thomas Stirling born … 2004 and M Thomas Stirling born …  2008 (“the children”) and the mother keep the father informed of all significant decisions in relation to the education of the children.

3. The mother and father have equal shared parental responsibility for all other decisions relating to the long term care welfare and development of the children.

4. The children live with the mother in Australia.

5. The mother be and is hereby restrained from changing the children’s place of residence from Australia without the prior written consent of the father or further order of this Honourable Court.

6. The child spend time and communicate with the father as follows:

   a) In Australia during the gazetted Australian school holiday periods at least twice per year and up to 4 times per year for a period of at least 7 nights and no more than 14 nights on each occasion;

   b) In Europe every second year commencing in 2016 at such times as may be agreed in writing between the parties with the parties to share equally in the costs of the children’s return flights to the father’s country of residence;

   c) At such further and other times as may be agreed between the parties in writing.

7. For the purposes of any time the children spend with the father in Australia pursuant to these orders:

   a) the father provide to the mother at least 30 days notice in writing of his intended travel dates, proposed itinerary, accommodation details and contact number for the duration of the time;

   b) the father facilitate the children’s attendance at school or any scheduled extra-curricular activities if such time occurs during the school term;

   c) the mother do all acts and thing necessary to make the children available.

8. For the purposes of any time the children spend with the father in Europe pursuant to these orders:

   a) the father and mother do all acts and things necessary to finalise all dates and arrangements for this time no less than 90 days prior to the intended travel;

   b) within 14 days of the mother providing to the father a quote for the children’s return flights to the father’s country of residence, the father do all acts and things necessary to electronically transfer to the  mother’s nominated bank account one half of the amount of the cost of these airfares;

   c) the father provide to the mother at least 90 days notice in writing of his proposed itinerary, accommodation details and contact number for the duration of the time;

   d) the mother, if accompanying the children, provide to the father at least 90 days notice in writing of her proposed itinerary, accommodation details and contact number for the duration of the time;

9. Changeover occur as agreed between the parties in writing and in default of agreement, the father shall collect and return the children from and to the mother’s residence for time spent in Australia and the father shall collect and return the children from and to an agreed place at the nearest international airport to his residence for time spent in Europe.

10. The mother facilitate the children’s communication with the father by way of telephone, internet, email and/or Skype at all reasonable times including but not limited to:

    a) Each Wednesday at 7 pm (Melbourne time);

    b) Each Sunday:

    i)      Whilst daylight savings is in effect in Victoria, at 9.00 am (Melbourne time);

    ii)     When daylight savings is not in effect in Victoria, at 5.30 pm (Melbourne time);

    c) On each of the birthdays of the children and the father;

    d) On further occasions of significance to the children and the father; and

    e) At such further and other times upon request of the children or as the parties may agree.

11. For the purpose of Skype and email communication pursuant to order 10 hereof, each parent:

    a) Maintain the equipment and services necessary at their respective homes to facilitate email and Skype communication;

    b) Forthwith notify the other and keep one another informed at all times of their email address and Skype user name;

    c) Offer such assistance to the children as may be reasonably required, both of a technical and non-technical nature, to promote successful communication by Skype and email; and

    d) In the event the children will not be available for the purposes of Skype communication with the father on any given occasion in accordance with order 10 hereof, the mother notify the father by email in advance and such communication occur at the same time the following day.

12. The mother shall ensure that all written and electronic communication and gifts sent by the father for the children are provided to the children forthwith upon receipt by her.

13. The parties shall communicate with one another by way of email relating to all issues concerning the children’s care, welfare and development, other than when urgent communication is required, which shall be by telephone.

14. Each parent keep the other informed at all times in relation to any significant issues concerning the children’s care, welfare and development and of matters of significance to the children.

15. Each of the mother and father be authorised to:

    a) Attend at and communicate with the staff of any school attended by the children;

    b) Receive copies of all school reports, school photographs and notices usually provided to a parent, at their expense (if any); and

    c) Provide a copy of these orders to any school attended by the children.

16. Each of the mother and father be authorised to:

    a) Receive medical information in relation to the children; and

    b) Provide a copy of these orders to any medical or other health practitioner attended by the children.

17. Each of the mother and father immediately inform the other in the event that the children or either of them are involved in any serious accident or suffer from any serious injury or illness whilst in their care respectively, and inform the other of any hospital and/or medical or other health professional attended upon by the children.

18. Each of the mother and father inform the other of:

    a) Any proposed change of address, immediately upon forming an intention to move;

    b) Any proposed change to the landline telephone number, mobile telephone number, postal address, email address or Skype user name within 24 hours of any such change occurring.

19. Each of the mother and father be and is hereby restrained by themselves, their servants and/or agents from denigrating the other parent or any other family member to the children in their presence of hearing and, to the extent possible, from allowing any other person to do so.

20. Each of the mother and father do all acts and things necessary and sign all such documents as may be required to ensure that the children at all times each hold a current Australian passport with any associate costs to be shared equally between the parties.

21. The mother retain the children’s passports during any periods of time the children spend overseas in their father’s care.

22. The mother provide to the father certified copies of the children’s passports upon a new passport being issued to the either of the children and/or upon the request of the father.

23. That Order 5 of the Orders of this Court dated 25 August 2015 be discharged and each of the mother Ms Thomas born … 1968 and the father, Mr Stirling born … 1972 and the children S Thomas Stirling born … 2004 and M Thomas Stirling born … 2008 be permitted to leave the Commonwealth of Australia, AND IT IS DIRECTED that the Australian Federal Police remove the names of the said children from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

24. A sealed copy of this order be sent electronically to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia AND IT IS REQUESTED that Australian Federal Police give force and effect to order 23 herein.

IT IS ORDERED BY THE COURT:

1. That the order appointing the Independent Children’s Lawyer be discharged.

2. That all extant applications be otherwise dismissed and this matter be removed from the docket of the Honourable Justice Bennett.

3. Certify for Counsel.

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

5. That the mother and father forthwith do all acts and things necessary to enable the registration of these orders in the relevant Courts in Austria and in the United Kingdom pursuant to Articles 24 and 26 of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”).

6. Pursuant to s 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.

IT IS DIRECTED:

1. That the proposed minute of orders as prepared by the independent children’s lawyer be marked Exhibit “A” and remain on the Court file.

2. The case outline prepared by the independent children’s lawyer be marked Exhibit “ICL1” and remain on the Court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:

Ms Thomas

Applicant

And

Mr Stirling

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me as the final hearing of the father’s initiating application filed on 21 August 2015 in which he seeks parenting orders in relation to S, who is 11 years old, and M, who is seven years old.  The father’s application came fairly promptly after the resolution of very long standing return proceedings under the Hague Convention on Child Abduction[1] (“1980 Convention”).

   [1] Full title of which is The Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980 (entered into force 1December 1983).

2. The application which had been taken by the State Central Authority at the behest of the husband failed, and the children remained in Australia. At the time, I expressed concern about the implications of the children remaining habitually resident in Austria and whether I had jurisdiction under section 111CD of the Family Law Act1975 (Cth) (“the Act”) to make orders based on the presence of the children in Australia.

3. Article 5(2) of the 1996 Convention[2] provides that subject to article 7, where there is a change of the child's habitual residence to another Contracting State (in this case Australia), the authorities of the state of the new habitual residence will have jurisdiction.  Article 7(1)(b) provides that the Contracting State in which the child was habitually resident immediately before a wrongful removal or retention keeps its jurisdiction until the child has acquired a habitual residence in another State, and the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.  I am satisfied that this matter meets the relevant jurisdictional tests in as much as there is no extant return application under the 1980 Convention, and the father has clearly acquiesced to the jurisdiction in making his initiating application to this Court on 21 August 2015. 

   [2] Full title of which is The Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, opened for signature 19 October 1996 (entered into force 1 January 2002.

4. On 4 November 2015, I ordered that this matter be fixed for final hearing before me today at 4.00 pm, estimated to take one half a day.  The father was to file and serve an address for service in accordance with the Family Law Rules – that would be an address for service of documents within Australia – and do so by 20 November 2015.  The order provided that if he failed to do so, the mother and/or the Independent Children's Lawyer would have liberty to apply to have the matter proceed on an unopposed basis.  Both make that application now in reliance on the father’s failure to serve address for service within Australia.

5. In anticipation of the final hearing scheduled for today, the father was to file and serve by not later than 20 November 2015 any amended application or response and all affidavit material or proofs of evidence in support of his case.  The mother was to do likewise by 4 December 2015.  The mother did so.  The father has failed or neglected to do so.

6. A number of matters were previously agreed by the parties as a result of mediation and out-of-court negotiations.  In the minute of order which the Independent Children's Lawyer hands up and asks that I make, previous orders are repeated as paragraphs 10 to 19 inclusive.  Counsel for the Independent Children's Lawyer has replicated the previous consent orders in the document, mindful of the fact that it is preferable that there be only one document sent for recognition to Austria.  An interim order such as that made on 25 August 2005 which was made in the context of an interim determination is likely to fall foul of the recognition provisions in force in Austria. 

7. The matters that are in issue today are whether the mother is to have sole responsibility in relation to education of the children and how many times the mother is required to travel to Austria for the purpose of the father exercising time with the children and under what circumstances.  I have the helpful case outline of the Independent Children's Lawyer.

8. As with any parenting decision, I make orders having regard to the best interests of the children as the paramount consideration.  I am required when making a parenting order to apply the presumption that there ought to be joint parental responsibility in relation to children, unless it is an interim hearing (which this is not), there has been family violence (of which I am not satisfied), or the best interests of the children indicate otherwise.

9. The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive. I have regard to the relevant additional considerations in the context of evaluating the primary considerations, namely, securing for the children what benefit that may flow from having a meaningful relationship with both parents and deciding what is necessary to ensure that each child is protected from harm.

10. I am satisfied that it is in the children’s interests to have a meaningful relationship with the father.  Nevertheless the findings in Ms E’s Family Report suggest that the father has shown an air of indifference during the parental relationship and a determination that his lifestyle and choices “should not be eroded by the imposition of family”.[3]  The Report goes on to say that post-separation, “although appearing upset about his children’s absence from his life, [the father] cannot report anything missed, except his awareness that they are no longer present”.[4] From the Report it appears the father does not enjoy the confidences of his children nor do they rely on him, nor have any expectation of him “other than a weary sense that he will ultimately disappoint them”.[5]

    [3] Family Report, 21 July 2014 [105].

    [4] Ibid [107].

    [5] Ibid [109].

11. Further, Ms E reports at [110]:

    Sadly for [the father] there is no history of his attunement to the needs of others and his focus on sexuality as a dominant theme in relationships with women generates concern around the appropriateness of his fathering ability with two young girls. [The father’s] emotional disconnection and disassociation from others raises concerns about his capacity to both focus on his children’s needs rather than his own and to be emotionally available to his children. It is not just the [the father] has been an absent father, when present he acts without regard for the children’s long term psychological health and well-being and his capacity to form meaningful relationships is clearly impaired.

12. The mother in her affidavit sworn 4 December 2015 deposes that the children have spent time with the father during his visits to Australia, and she facilitates the communication between the children and the father via Skype twice a week. In a note on the contact log for 19 August to 29 November and annexed to the affidavit says “times and midweek days change as the father chooses when contact is made. He is often unavailable when the girls expect to speak to him”.[6]

    [6] Affidavit of the mother, sworn 4 December 2015, Annexure 4.  

13. In this case, the wife seeks sole parental responsibility in relation to education, but is content for all other major long-term decisions to be a matter of equal shared parental responsibility.  In relation to education, the husband is a teacher in Austria.  The wife proposes that the children attend X School in the Greater Melbourne area.  It is a non-denominational, fee paying school.  It is the school that the mother says is situated the closest to her place of accommodation.  It is the mother’s alma mater, she attended there for the last six years of her secondary education.

14. The exercise of discretion between private and non-fee paying schools often comes down, primarily, to proximity to the primary carer’s residence and secondly, to responsibility for ongoing payment.  In this case, the mother says that her father will assist her with payment of fees.  On that basis, I am not satisfied that the economic cost is something I need to take into account.  This is not a child support application; it is a parenting application.  X School is a reasonably mainstream school, with no particular concentration of which I am aware in relation to religious teaching.  It is a school close to the mother.  I take into account that the convenience for the mother of having the children attend a school close-by is a matter of significant benefit to her, but through her, also the children, who will be able to mix and recreate with children who also live in that area.

15. As indicated, the father had until 20 November 2015 to put in any evidence in support of his opposition to the orders sought by the mother.  The father has expressed his views in correspondence, which is in evidence before the Court.  However, the views are somewhat ambiguous and selective.  He says that he does not object to the oldest child attending the school, providing he does not have to pay.  The father is silent on the proposal for the younger child.

1. In any event, the father will not be called upon to pay as part of this determination of the case.  I am satisfied that it is, as I said, a fairly mainstream school, and the father had adequate opportunity between 4 November 2015 and 20 November 2015 to adduce evidence in opposition to the mother’s proposal if he wanted to do so.  He has failed or neglected to do so, and in that respect I infer that the evidence would not necessarily have assisted the father.  As it is, the father’s proposal seems to be more about paying for the school than the school itself, therefore I will accede to the mother’s application in relation to school.

2. In determining parental responsibility, s 61DA of the Act provides that when making a parenting order[7], I must apply a presumption that it is in the best interests of the girls for the parents to have equal shared parental responsibility. 

   [7] Family Law Act (Cth) s 64B(2)-(4A) defines “a parenting order” and what a parenting order may provide.

3. Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[8] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-

   …issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:

   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 that make it significantly more difficult for the children to spend time with a parent.

   This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents. 

   [8] Family Law Act 1975 (Cth) s 61B.

4. Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[9]  The concept of shared parental responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[10] and to ‘make a genuine effort to come to a joint decision about that issue’.[11]  These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared. 

   [9] Family Law Act 1975 (Cth) s 65DAC(2).

   [10] Family Law Act 1975 (Cth) s 65DAC(3)(a).

   [11] Family Law Act 1975 (Cth) s 65DAC(3)(b).

5. The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-

   a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[12] or abuse of the child or another child who is a member of the parent’s family;[13]

   b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[14] or;

   c)Where evidence is adduced, upon which the court is satisfied 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.[15] 

   [12] Family Law Act 1975 (Cth) s 61DA(2)(b).

   [13] Family Law Act 1975 (Cth) s 61DA(2)(a).

   [14] Family Law Act 1975 (Cth) s 61DA(3).

   [15] Family Law Act 1975 (Cth) s 61DA(4).

6. Having regard to the lack of communication between the parties and the remote approach of the father to the day-to-day care of the girls, I am satisfied that it would not be in the children’s best interests for the parents to have shared parental responsibility.  The resolution and determination of the Hague proceedings were delayed and prolonged in this Court whilst the father pursued seemingly technical and impractical appeals in Austria.  Each judicial determination in Austria was predicated on the children residing in Australia but the father pressed on.  The father stated to the court in Austria that he did not object to the children remaining in Australia.  I am satisfied that there is an appreciable risk that the father may apply the same lack of common sense to consultations with the mother if the parents retained joint parental responsibility.  I am satisfied that he mother should have sole parental responsibility for the children. 

7. The next matter that I have to decide is how frequently the father gets to see the children and when.  It is common ground that the father attends Australia for a month each year at the minimum.  He attended in 2013 around the month of July, around 2014 around September and most recently in July 2015.  In the father’s application initiating proceedings, he seeks that the mother transport the children to Austria for the purpose of spending time with him twice per year at her expense.  The mother opposes that and says that there should be time with the father and the children in Australia, as well as in Austria.

8. For the last three years, the father has spent extensive time with the children in Australia, although these times have not been pursuant to any orders.  It appears to me that the parties, and through them, the children, would benefit from some certainty.  The mother seeks that the father can have time at least twice per year and up to four times a year in Australia of at least seven nights and no more than 14 nights on each occasion upon giving notice and being responsible for his own airfare and facilitating the attendance of the children at school or for any scheduled extra-curricular activities.

9. The mother also proposes that every second year the children can travel to Europe and spend time with the father there.  She proposes that the cost of the transportation of the children will be shared between the parents in equal proportions.  There are no specific times set by the mother for those periods of time in Europe. 

10. The father has had an opportunity to put evidence before the Court in the event that he wants to pursue a case otherwise and explain why I ought not make the orders sought by the mother.  He has not filed any material.  He sent a record of his last holiday with the children and suggested it speaks for itself.  It seems to me that the mother’s proposal is a sound one and one to which she and the Independent Children's Lawyer have given some thought, so, therefore, I will make orders in those terms.

11. The mother seeks the recognition of the orders pursuant to the 1996 Child Protection Convention.[16]  The exceptions for recognition of orders are quite narrow.  They are as follows:

    [16] Full title of which is The Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, opened for signature 19 October 1996 (entered into force 1 January 2002).

    Article 23(2)

    Recognition may however be refused

    a) if the measure was taken by an authority whose jurisdiction was not based on one of the grounds provided for in Chapter II;
    b) if the measure was taken, except in a case of urgency, in the context of a judicial or administrative proceeding, without the child having been provided the opportunity to be heard, in violation of fundamental principles of procedure of the requested State;
    c) on the request of any person claiming that the measure infringes his or her parental responsibility, if such measure was taken, except in a case of urgency, without such person having been given an opportunity to be heard;
    d) if such recognition is manifestly contrary to public policy of the requested State, taking into account the best interests of the child;
    e) if the measure is incompatible with a later measure taken in the non-Contracting State of the habitual residence of the child, where this later measure fulfils the requirements for recognition in the requested State;

    f) if the procedure provided in Article 33 has not been complied with.

    The father is not before the Court today.  The mother and the Independent Children's Lawyer have made application to have the matter dealt with on an unopposed basis.  In order to have been before the Court, the father had to file an address for service nominating an Australian address.  He failed to do so.  There has been no recent contact from the father with the Court.  The last contact from the father with the Independent Children's Lawyer was yesterday when he sent a journal of three of his last holidays spent with the children in Australia and referred to that as being all he had left to say on the outstanding issues.  On 25 August 2015, the parties were able to agree to a great many things.  It was just the two matters which I have decided today which were outstanding.  So, whilst the father has not been heard today, he has been given an opportunity to be heard and not taken that opportunity.

12. Under Australian domestic law, an independent children's lawyer can be appointed.  Where one has been appointed, such as here, the role of an independent children's lawyer is to deal impartially with the parties, ensure that any views expressed by the children are fully put before the Court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the Court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for each of the children the trauma associated with proceedings[17] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[18]

    [17] Family Law Act 1975 (Cth) s 68LA(5)(d).

    [18] Family Law Act 1975 (Cth) s 68LA(5)(e).

13. The views of the children have been accessible to the Court through the Independent Children's Lawyer’s submissions, but also through a lengthy report by Ms E, a family consultant in the employ of the Court.  Finally, I am satisfied that I have jurisdiction to make the orders set out above on the basis that the father has consented to the authority of this Court to do so by instituting the parenting proceedings, which I have now decided.

14. I conclude that there should be no impediment to recognition of these orders pursuant to the Child Protection Convention.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 22 December 2015.

Legal Associate:

Date: 4 March 2016