Thompson and Alben

[2013] FCCA 95

FEDERAL CIRCUIT COURT OF AUSTRALIA

THOMPSON & ALBEN [2013] FCCA 95

Catchwords:
FAMILY LAW – Parenting – self-represented litigants – watch list order – high conflict – where mother declines to file a response – where proceedings conducted less adversarially.

Legislation:
Family Law Act 1975 Part VII Division 12A, ss.60CC, 65DAA, 69ZP, 69ZR, 69ZT & 69ZX

Applicant: MR THOMPSON

Respondent: MS ALBEN

File Number: SYC 3083 of 2012

Judgment of: Judge Altobelli

Hearing date: 28 February 2013

Date of Last Submission: 19 March 2013

Delivered at: Sydney

Delivered on: 11 April 2013

REPRESENTATION

The Applicant (self-represented)

The Respondent (self-represented)

ORDERS

1. The parents are to have equal shared parental responsibility for the child [X] born [in] 2002.

2. The child live with the Mother.

3. The child spend time with the Father:

   (a)Each alternate weekend during school terms from after school Friday when the Father will collect the child from school to Sunday evening at 5pm when the Father will deliver the child to the home of the maternal Grandmother; and

   (b)If the Father is unavailable to spend time with [X] pursuant to the preceding order, he will notify the Mother of this at the earliest possible opportunity; and

   (c)For one half of each school holiday period being the first half in 2014 and each even numbered year, and the second half in 2013 and each odd numbered year; and

   (d)For the purposes of the preceding order:

   (i)School holidays are deemed to commence after school on the last day of school term, and conclude immediately before school on the first day of school term; and

   (ii)If the Father is unavailable to personally care for [X] during school holidays it is his responsibility to make alternate care arrangements, which must be notified to the mother.

   (e)On Father’s Day between 9.00am and 6.00pm even if it does not fall on a weekend when [X] is spending time with him.

   (f)The Father’s time with [X] is suspended on Mother’s Day between 9.00am and 6.00pm if Mother’s Day coincides with a weekend when [X] is spending time with him.

   (g)From 3.00pm Christmas Day to 3.00pm Boxing Day, and from 3.00pm on New Year’s Eve to 3.00pm New Year’s Day on those years when [X] is spending the first half of the Christmas holidays with his Mother.

   (h)The Father’s time with [X] is suspended from 3.00pm Christmas Day to 3.00pm Boxing Day, and 3.00pm New Year’s Eve to 3.00pm New Year’s Day on those years when [X] is spending the first half of the Christmas holidays with his Father.

4. During the time the child is with the Father, the Father will ensure that he has adequate bedding.

5. Both parents are to ensure that they monitor the child’s use of all social media including the telephone to ensure that it is age appropriate and that neither will allow photos of the child to be posted on social media.

6. The Father is to ensure that the child attends his weekend sporting commitments.

7. Both parents are to ensure that the child is not exposed to passive smoking.

8. The Father is not to take the child to any Alcoholics Anonymous meetings or to otherwise expose the child to any age inappropriate material.

9. Both parties be restrained from:

   (a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the child.

   (b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the child or permitting any other person to do so.

10. Until 3 May 2016, the Applicant and the Respondent, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the child [X] born [in] 2002 (male) from the Commonwealth of Australia, without the written consent of both parents. 

11. The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either party from removing or attempting to remove the said child from the Commonwealth of Australia.

12. Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said child’s name on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia until the child turns 14 years old on 3 May 2016.

13. In relation to any proposed international travel by the other parent and child:

    (a)No later than eight (8) weeks prior to any planned travel of the child from Australia, the travelling parent must give the other parent written notice of his/her intention to travel internationally and to provide the other parent with all relevant information, including the itinerary, accommodation and contact details;

    (b)No less than four (4) weeks prior to departure, the travelling parent must provide to the other parent a photocopy of the child’s return ticket for the trip;

    (c)The travelling parent must provide the other parent with alternative contact arrangements to the reasonable satisfaction of the other parent.

14. The Mother be restrained from taking [X] to any gaol or correctional facility without the Father’s consent.

15. The Mother and Father be entitled to obtain directly from any school attended by the child or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.

16. Telephone communication is to occur as initiated by [X], with neither party to intervene.

17. Both parents are entitled to attend [X]’s extracurricular activities.

IT IS NOTED that publication of this judgment under the pseudonym Thompson & Alben is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA
AT SYDNEY

SYC 3083 of 2012

MR THOMPSON

Applicant

And

MS ALBEN

Respondent

ORAL

REASONS FOR JUDGMENT

1. This case is about [X], born [in] 2002, currently 10 years old but shortly to turn 11. The applicant is his father who lives in [omitted] in Sydney, is 52 years old and describes himself as a [occupation omitted]. The respondent is [X]’s mother who lives in [omitted] in Sydney, is 38 years old and describes herself as a [occupation omitted]. [X]’s parents married in 1999 and separated in 2004.

2. The orders that the father seeks are set out in his application. The mother declined to file a response despite several directions to this effect.  The father filed two affidavits on 28 May and 15 February.  The mother filed three affidavits, hers of 20 November and 9 March and one from Mr R, sworn 20 November 2012. As it turns out the affidavits provided little information to guide the decision on the discrete issues I had to determine though they were useful by way of background and gave insight into the parent’s relationship, even though this was plainly obvious from my numerous interactions with both of them. In any event, the parents chose to proceed to a final hearing on the papers without cross-examination.  Indeed, the parents were rather insistent on the matter proceeding to a final hearing on the spot, even though the matter had not been listed on that day. 

3. Division 12A of Part VII of the Family Law Act contains procedures which were adopted eg. ss.69ZP, 69ZR, 69ZT and 69ZX. The issues that were to be determined were quite discrete ones. My role became part‑judge, part-facilitator and part-scribe, simply recording what was either neither in dispute nor in agreement. This is not a role I was necessarily happy to adopt but Division 12A permits it and the best interests of [X] mandated it. Rest assured, given the nature of the conflict between the parents, unless this procedure was adopted it is highly unlikely that there would be any acceptable orders in place for [X].

4. The applicable law in contained in Part VII of the Family Law Act. The relevant provisions at the time these proceedings were commenced include s.60CC and s.65DAA

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)    If:

   (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)    the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.

   60CC  How a court determines what is in a child’s best interests

   Determining child’s best interests

   (1)    Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)    The primary considerations are:

   (a)    the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:  Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   Additional considerations

   (3)    Additional considerations are:

   (a)    any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)    the nature of the relationship of the child with:

   (i) each of the child’s parents; and

   (ii)    other persons (including any grandparent or other relative of the child);

   (c)     the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (d)    the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i) either of his or her parents; or

   (ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)     the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f) the capacity of:

   (i) each of the child’s parents; and

   (ii)    any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)    the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   (h)    if the child is an Aboriginal child or a Torres Strait Islander child:

   (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)    the likely impact any proposed parenting order under this Part will have on that right;

   (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j) any family violence involving the child or a member of the child’s family;

   (k)     any family violence order that applies to the child or a member of the child’s family, if:

   (i) the order is a final order; or

   (ii)    the making of the order was contested by a person;

   (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)    any other fact or circumstance that the court thinks is relevant.

6. The most useful evidence in this case was the two Child Dispute Conference memoranda – that of 17 September 2012 and 14 November 2012, the later of which was child inclusive.  I will incorporate both of these into my oral reasons.  I note that the agreement purportedly reached on 17 September appears to have fallen apart but was then resurrected in part by 14 November.

7. The child-inclusive Child Dispute Conference report is both revealing and disturbing.  I will quote only one section of the memorandum, based on what the family consultant reports.  I quote:

   [X] reported that he has never seen his parents being nice to each other.  Asked what that was like for him, he replied that he is close to his grandparents and his grandmother helps him get on with life.  He added that if his grandmother were not there, he would be pretty sad.  [X] indicated that he views his parents as being just unable to get on with one another, even if they want to do so.  When asked what advice he might like the family consultant to give his parents, [X] simply suggested that they be advised to help me.

8. The family consultant then says:

   The family consultant formed the opinion that [X] actually finds the situation between his parents and his position in it emotionally difficult.

9. The father’s initial complaint historically was that there had been no contact for a substantial period despite what he regarded as a good relationship that he had with [X].  When the present proceedings commenced, his concern was that his contact was only resumed when litigation was imminent or ongoing.  Certainly contact had resumed by the time that the matter first came before me and continued during the course of the litigation.  Notwithstanding this, each parent had ongoing concerns about the other and were clearly fixated on the other’s faults; were quite oblivious to their own, and seemed ambivalent about any adverse impact on [X] of their ongoing feud.

10. Notwithstanding this, the parents did make some progress. On 17 September orders were made by consent, facilitated by myself.  These orders provided:

    1. The child [X] born [in] 2002 live with the Mother.

    2. The child spend time with the Father as follows:

    (a)  Each alternate weekend, during school terms, from after school Friday when the Father will collect the child from school to Sunday evening at 5pm when the Father will deliver the child to the home of the maternal Grandmother; and

    (b) Each alternate weekend during the school holidays, if the Father is reasonably available, from 3pm on Friday until 9am on Monday when the Father will deliver the child to home of the maternal Grandmother; and

    (c) For half of the forthcoming school holiday period only provided he is not working for the periods he spends time with the child.

    3. During the time the child is with the Father, the Father will ensure that he has adequate bedding.

    4. Both parents are to ensure that they monitor the child’s use of all social media including the telephone to ensure that it is age appropriate and that neither will allow photos of the child to be posted on social media.

    5. The Father is to ensure that the child attends his weekend sporting commitments.

    6. Both parents are to ensure that the child is not exposed to passive smoking.

    7. The Father is not to take the child to any Alcoholics Anonymous meetings or to otherwise expose the child to any age inappropriate material.

    8. Both parties be restrained from:

    (a) Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the child.

    (b) Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the child or permitting any other person to do so.

    THE COURT FURTHER ORDERS THAT:

    9. The matter be adjourned to 21 November 2012 at 9:30am for mention.

    10. Pursuant to section 11F of the Family Law Act 1975 the parties attend a Child Dispute Conference with a Family Consultant in this Registry today and pursuant to section 11C of the Act such conference be reportable.

    11. Pursuant to section 11F of the Family Law Act 1975 the parties attend a Child Inclusive Conference with a Family Consultant in this Registry at a time and date to be determined by the Registry and pursuant to section 11C of the Act such conference be reportable.

    12. The Respondent is to file and serve a Response and Affidavit within 14 days.

    13. The Respondent is to forward to Chambers a minute of the Consent Orders agreed to at the Child Dispute Conference.

    THE COURT NOTES THAT:

    (a) The Father agrees to change the telephone number on the child’s existing iPhone.

    (b) The Court urges the parents to consider the impact on their son of the current very high level of acrimony that exists between them.

1. On 28 February this year, each party was sworn in at the bar table and what took place thereafter was on oath but with each party giving evidence of contentious issues, having the opportunity to ask questions as well as partly facilitated discussion.  I record the outcome of this in these reasons where the agreement is recorded.  I make those orders and they are reflected in the orders I made.  Where there is a dispute, I record the decision and the reason why.

2. Firstly, the parents agreed to equal shared parental responsibility.  Secondly, the parents agreed to continuation of Order 2(a) made on 17 September which relates to alternating weekend contact.

3. The father agreed to an order that he would notify the mother if he is unavailable for alternating weekend contact, but agreed also that this would only apply to weekend contact during the school term and thus, for example, if the father was unavailable during the school holidays, which I will discuss nextly, it was his responsibility to make alternate arrangements for [X]’s care, but on the basis that he was to notify the mother of these arrangements.

4. The parents agreed to share school holidays, with the mother to have the first half in 2013 and thereafter in each odd-numbered year, and the father to have the first half in 2014 and thereafter in each even-numbered year. In the orders I have defined school holidays as commencing from immediately after school on the last day of [X]’s school term and ending immediately before school on the first day of school term.  I make the observation that the parents’ chronic conflict means that there must be as much specificity in the orders as is possible, and that they must be kept physically apart to the extent it is possible to do so.

5. The parents agreed to the continuation of orders 3 to 8 of the orders made on 17 September.  I record that even if they had not done so, they are the orders I would make as being necessary and in [X]’s best interests on all the evidence before me.

6. Both parents want a watch list order made.  I have done so but only until [X] turns 14.  I do this recognising that [X] gets older, he will become increasingly autonomous and the watch list order becomes a vehicle for one parent to continue their conflict with the other.  The other reality in this case, this time a positive one for [X], is that he is likely to travel overseas with the consent of his parents, with either or both of them and perhaps independently, for example, with his school.  The watch list order can be overcome, of course, by the parents written consent.  I have made a specific order in relation to overseas travel.  I do this of the Court’s own motion, given the evidence before me.  The overseas travel will be permitted on these occasions;  that there be at least two months notice, that there be provision of all details relating to the trip including contact details and that there be provision of makeup time if contact is missed.

7. A contentious issue in this case is the father’s concern that the mother will take [X] to visit her husband, who is in a gaol in [omitted] on corruption and bribery charges. The father would prefer an order preventing this without his consent or as the mother would prefer, no restriction or alternatively, only to first tell the father about this. The order that I will make is that the mother is not to take [X] to see her husband or anyone else in a gaol or correctional facility without first obtaining the father’s consent.  It is not an unreasonable restraint in circumstances where her husband’s gaoling creates a poor role model for [X] and where so little evidence is presented by her about the nature of [X]’s relationship with her gaoled husband or the circumstances of his imprisonment. Indeed, the mother’s attitude about this issue manifested a real lack of insight about [X]’s needs and a prioritisation of her needs over those of her son.

8. Another issue is special days. The parties seem to be in agreement about certain things that I will describe, but even if they are not, these are orders that I consider to be in [X]’s best interests.  When the orders provide for [X] to spend the first half of the Christmas holidays with his mother, then the father is to spend time with him from 3 pm on Christmas Day to 3 pm on Boxing Day and 2 pm New Year’s Eve to

   
   

   3 pm on New Year’s Day.  When the orders provide for [X] to spend the first half of the Christmas holidays with his father, then the mother is to spend time with him from 3 pm on Christmas Day to 3 pm on Boxing Day and then 2 pm New Year’s Eve to 3 pm New Year’s Day.  The parents did not raise the issue of Mother’s Day and Father’s Day and I will make what I consider to be the usual order and that is, unless the parents otherwise agree, Mother’s Day is with the mother and Father’s Day is with the father, even if this occurs on a weekend when [X] would be with the other parent.

9. I’m going to make further orders of the Court’s own motion to act as a preventative for further unnecessary conflict.  These orders are based on the father’s application filed 28 May.  I note once again that the mother declined to file a response, despite directions in this regard.  The orders therefore will deal with issues such as communication with each other about medical matters, sole parental responsibility in relation to day to day matters, telephone contact as initiated by [X] with neither parent to intervene and that both parents are entitled to attend all extracurricular activities as well as for the mother to provide or arrange for the provision of information about school and extracurricular activities.  The orders in question seem to be relatively uncontentious, but given the level of acrimony between the parents, I’m satisfied that they are in [X]’s best interests. 

10. It is somewhat artificial to apply s.60CC and other provisions to the facts of this case, given that the issues are so discrete and the mother’s proposals so amorphous. Doing the best I can, however, I’m satisfied that the orders provide that [X] will have the benefit of a meaningful relationship with both his parents: s.60CC(2)(a).

11. Nextly, I’m satisfied that there are no issues about protecting [X] from harm, other than the consequences to him of the continuation of his parents’ toxic conflict: s.60CC(2)(b). Nextly, to the extent that it is possible to do so, his views as reflected in the child-inclusive conference, are reflected in the orders that I make: s.60CC(3)(a). I observe that his greatest desire seems to be for his parents’ conflict to stop. Regrettably, there is little that orders can do to actually achieve that. I’m satisfied that the nature of [X]’s relationships with his parents is reflected in the orders, especially the time that they spend with each other: s.60CC(3)(b).

12. I note that the father contended that the mother was unwilling to facilitate [X]’s relationship with him (s.60CC(3)(c)), but the fact is that she has hitherto complied with orders. Contact has resumed and the available evidence seems to suggest that [X] enjoys his time with the father. My observations of the mother is that what the father perceives as her lack of willingness is probably more a stubborn insistence on having his relationship with [X] dictated on her terms. I note that none of the proposals or orders bring about changes in [X]’s life that will affect his relationship with either parent: s.60CC(3)(d).

13. I note that whilst there are some issues of practical difficulty and expense, these seem to be surmountable and have been managed by the parents: s.60CC(3)(e). I note to the extent that the mother expressly or impliedly raises issues about the father’s parenting capacity (s.60CC(3)(f), firstly it is inconsistent with the proposals that she puts to the Court, but in any event, there are safeguards in the orders that have been made. Both parents presented as combative and locked in their disagreements with each other and both presented at times as being unable to consider the impact of their conflict and their behaviour on [X].

14. Both parents presented with poor attitudes and irresponsibility as parents, the most obvious manifestation of which was the parental conflict that was evidenced in the child dispute conference memorandum: s.60CC(3)(i). The parents agreed to equal shared parental responsibility. The Act requires me to consider equal time. It was not sought and in any event, would not be either in [X]’s best interests or reasonably practicable. I’m required by the Act to consider substantial and significant time: s.65DAA(1). Equal time is neither in [X]’s best interests or reasonably practicable: s.65DAA(1)(a), s.65DAA(1)(b) and s.65DAA(5). I am required to consider substantial and significant time: s.65DAA(2). I’m satisfied that it is in fact the order that I am making, satisfied in the circumstances that it is in [X]’s best interests and that it is reasonably practicable.

15. I have made a watch list order and I’m satisfied that that is needed because of the history of travel of both parents and the mother’s connection to the United States of America.  I have made orders 4, 5, 6, 7, 8 and 9 of the Father’s application, believing that they are necessitated having regard to the evidence before me and in any event, do not appear to be contentious.  I have made order 13 and it is necessitated by reference to the matters that I have adverted to above, especially the parents’ inability to communicate.  In conclusion, using an imperfect process and one that reflects the fact that both parents were representing themselves, the Court has done the best it can to make orders that it considers to be in [X]’s best interests. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Altobelli.

Associate: 

Date:  22 April 2013