Umbridge and Umbridge

[2008] FamCA 870

FAMILY COURT OF AUSTRALIA

UMBRIDGE & UMBRIDGE [2008] FamCA 870

FAMILY LAW – CHILDREN – with whom a child spends time – best interest of the child – travel overseas – security for return of the child to Australia

Family Law Act 1975 (Cth) ss 60CA and 65L

APPLICANT: Mr Umbridge

RESPONDENT: Ms Umbridge

FILE NUMBER: SYF 7911 Of 1998

DATE DELIVERED: 14 October 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 14 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: M D Broun QC

RESPONDENT (IN PERSON)

Orders

1. That the mother may travel with … born … March 1994 (“the child”) to India, the United Kingdom and the United States of America on 14 November 2008 returning with the child to Sydney on 2 January 2009.

2. That the child is permitted to travel internationally on or before 14 November 2008 for the purpose of travel to India, the United Kingdom and the United States of America and return to Australia.

3. That until further order the mother shall deposit with the Registry Manager of the Sydney Registry of this Court (“the Registry Manager”) the passport of the child on the first working day following the child’s return to Australia and such passport shall be held by the Registry Manager in safe custody.

4. That the Australian Federal Police are requested to remove the name of the child born … March 1994 from the Airport Watch List at all points of international arrivals and departure in Australia for the period 14 November 2008 until 2 January 2009.

5. That the Registry Manager shall forthwith furnish a sealed copy of the Orders made this day to the Australian Federal Police.

6. That by consent the mother is permitted to uplift the child’s passport from the Registry Manager on or subsequent to 24 October 2008.

7. That pursuant to Notation A upon the child’s return to Australia pursuant to the Orders made this day the father shall forthwith provide a withdrawal of the caveat in registrable form and all documents completed and executed by him which remove the registration of the caveat.

8. That the legal costs, stamp duty and registration fees incurred by the parties for preparation and registration of the documents referred to in Notation A and Order 7 shall be paid by the mother and father equally.

9. That all parenting orders that either remain in operation or are made this day which provide for the child to reside with the father are suspended until 8 January 2009 whilst the child is overseas pursuant to these Orders.

10. That all current orders which provide for periods of time that may be spent by the child with the father are discharged.

11. That the child spend the following periods of time with the father:

During the New South Wales school term

(a)Two weekends out of four commencing on Saturdays at 10.00am and concluding Sundays at 6.00pm which shall take place in Sydney or for part of such periods in W as the father may determine following consultations he has with the child and upon him providing seven (7) days’ written notice to the mother for the first occasion of such weekends.  In the event of the child being unable to attend to commence such periods of time with the father then the mother provide the father with seven (7) days’ written notice indicating the reasons for the child being unable to attend or in the event of any serious illness injury to the child then such notice shall be given by the mother as soon as possible.

During the New South Wales school holidays

(b)For two weekends commencing 10.00am Saturday until 6.00pm Sunday in the April and July school holiday periods;  for five (5) successive days;  or otherwise as may be agreed between the parties after consultation with the child in the October school holidays and for 21 days successive or otherwise as may be agreed between the parties during the December/January school holiday period, subject to such 21 day period commencing on 8 January 2009.

(c)On Father's Day from 10.00am until 6.00pm in the event that the child is otherwise living with the mother.

(d)On the child’s birthday should it fall on a school day for three (3) hours from the conclusion of school on the day prior to her birthday, and in the event of the birthday falling on a weekend then for three (3) hours on the relevant weekend day upon the father giving the mother no less than seven days’ written notice and following consultation by the parties with the child.

(e)On the father's birthday for three (3) hours whether it be on a school day or during a weekend on the same terms as the last-mentioned Order.

1. That for such alternative or other periods of time as the parties may agree upon from time to time.

2. That the father have telephone and any other electronic communication with the child at all reasonable times.

3. That the orders that provide for periods of time that the child may spend with the father are suspended on Mother’s Day when the child shall be with the mother on that day from 10.00am until the commencement of the next period of time that the child is due to spend with the father pursuant to these Orders.

4. That in the event of the child’s birthday and/or the mother’s birthday falling on a day when the child is otherwise spending time with the father then the parties shall ensure that the child spend a period of three (3) hours with the mother on each of those occasions for a particular three (3) hour period as they may agree upon following consultation with the child.

5. That the Manager Child Dispute Services in the Sydney Registry of this Court or her nominee shall provide supervision of the parenting Orders made this day pursuant to s.65(L) of the Family Law Act.

6. That the proceedings be removed from the Active Pending Cases List.

NOTATIONS:

A.That by way of security for the child’s return from travel with the mother and in accordance with these Orders the Court notes the Undertaking of Mr M that he provides all necessary consent to the title to the property owned by him being Lot 11 in Strata Plan … being charged as security for the amount of seventy-five thousand dollars ($75,000.00) and the father may lodge a request in Form 11R and a caveat on the title to that property reflecting the interest in his favour created by that charge and this notation.

B.The father and the mother are prepared to be flexible in terms of any substituted or alternative arrangements for periods of time that the child should spend with the father having regard to the child's reasonable needs and activities.

C.The father will not insist on the periods of time that the child might otherwise spend with him pursuant to these orders, in the event that one or more of such periods clash with the child sitting for the AEMB piano examinations, Eisteddfod competitions and/or school examinations.

D.The father will ensure that the child support payments that he makes to the mother are made on the tenth day of each month.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYF7911 of 1998

MS UMBRIDGE

Applicant

And

MR UMBRIDGE

Respondent

REASONS FOR JUDGMENT

1. The proceedings between the parties are proceedings in which each sought parenting orders, implicitly, by way of discharge or variation of final orders made in 2000 following a contested hearing.

2. Since that time, the parties have been further engaged in intensive litigation, culminating in an appeal which was determined in the High Court.

3. Subsequent to that appeal being determined, there have been further interim proceedings which I have heard, including on 10 December 2007, when orders were made following an application by the mother, contested by the father, for her to have permission to take the child of the parties’ relationship born in March 1994 (who I shall refer to as “the child”) for holiday travel to India.

4. The orders made on 10 December 2007 were complied with in terms of the return travel by the child from Sydney to Mumbai, although there is controversy as to whether or not the orders which permitted periods of time to be spent by the child with the father were in fact fully complied with.

5. By memorandum dated 18 March 2008, Ms B, family consultant set produced a document described as “Children and Parents’ Issues Assessment” being Exhibit 1 which set out the issues which were the subject of discussion by the parties and the family consultant together with the child which resulted in agreement being reached in relation to a number of those issues.

6. Regrettably, that agreement was not immediately made the subject of terms of settlement or minutes of consent orders and no orders have been made reflecting that agreement or any variation thereof.  The parties attempted to do so on subsequent occasions.  However, drafts of proposed orders to reflect the agreement, and/or any variations were not agreed upon.

7. Consequently, the matter came before me today as day one of the hearing of parenting issues in accordance with the “Less Adversarial Trial” (“LAT”) procedure.

8. The mother was represented by Mr Broun of Queen's Counsel.

9. The father appeared in person.

10. With the agreement of the parties, I proceeded on a basis that differed from the usual approach under LAT procedure.

11. The approach undertaken by me, was to take the parties through each of the areas of agreement as recorded in Exhibit 1 and to consider, at the same time, the document filed in Court on behalf of the wife entitled “Terms of Settlement” and the document filed in Court on behalf of the husband (which although without a title, I have noted as being filed in Court by the father dated 14 October 2008).

12. I also received into evidence, the parenting questionnaires completed by each of the parties.

13. The procedure that was followed, with the consent of the parties, was that I would hear submissions from each of them as to the terms of orders which should now be made reflecting either:

    (a)agreement reached in accordance with Exhibit 1, or alternatively

    (b)as subsequently reached and otherwise to reflect in orders made by me upon determination of issues which remained in dispute.

14. To the credit of the parties, further matters which were in dispute at the commencement of the hearing resolved themselves during the course of submissions, and questions raised by me, reducing the number of issues for determination.

Issues for determination

1. The first of the issues relates to the proposed overseas travel by the child with the mother on 14 November 2008 to the United States of America via Mumbai and London with a view to the mother returning with the child to Sydney on 2 January 2009.

2. Following a short adjournment provided to the father during which he made enquiries of personnel in the principal’s office of the school attended by the child, the father was satisfied that the child’s examinations and any other aspects of the child’s education commitments would be completed prior to 14 November 2008.

3. Consequently, the father no longer objected to the mother’s proposed travel with the child overseas.

4. The issues that remained were whether or not the child’s name should be removed from the airport watch list, the circumstances of retention of the child’s passport, and the terms of any security for the child’s return.  I heard submissions in relation to each of those matters.

5. The mother’s position was that the matters of the airport watch list, holding of the passport, and security were no longer necessary given the long-term residence of the child with the mother in W and the recent compliance with orders which permitted the child to accompany the mother to India and return following the defended hearing which took place in December 2007.

6. Were it only a matter of considering recent events, then I would have been persuaded by the submissions made on the mother’s behalf.

7. However, this matter has had an unfortunate lengthy and intense history, involving proceedings for the return of the child, alleged abduction of the child by the mother, and alleged failure to comply with Court orders.  Those were all matters which were the subject of previous litigation in this Court, both at first instance, in the Full Court as well as in the High Court.

8. Whilst I do not suggest that a party, who for whatever reasons has stimulated such litigation, should forever and a day be subject to various injunctions, nonetheless, they are matters which I must give considerable weight, for the purpose of arriving at an ultimate determination.

9. There was no submission made to me that compliance with orders in the same terms as those made in December 2007 would create hardship for the mother or represented areas of difficulty from a practical viewpoint.

10. The mother’s friend, Mr M, who had been a party to the proceedings before me in December 2007 is not a party to the proceedings which are required to be determined by me today.

11. Nonetheless, senior counsel for the mother informed me that if it was considered appropriate then Mr M was willing to give an undertaking to provide security on the same terms as those made the subject of relevant orders on 10 December 2007.

12. I did not receive a written form of undertaking from Mr M.  However, I have assumed that it was implicit from senior counsel's submissions that he was making those submissions on the basis of instructions from Mr M, as no doubt, otherwise he would have informed me that that was not the situation.

13. Consequently, I will make orders in relation to the airport watch list, the holding of the child’s passport, and security in similar terms to those made on 10 December 2007.

14. In my view, the child has suffered more than enough from the years of conflict between her parents, and the anxiety that no doubt the parties have experienced as a result of those conflict, which implicitly must have been felt by the child.

15. I consider that it will alleviate, to a large extent, any anxiety that the father may have regarding the return of the child to Australia given the unfortunate history of the past substantive proceedings which were determined in this Court and in the High Court.

16. As I have already emphasised, there is no submission made that the mother would suffer hardship or any undue prejudice should orders of that type be made, especially given that those orders were made, and to her credit complied without any difficulty.

17. The next issue relates to the matter of school holidays.

18. The agreement recorded in Exhibit 1 is that the child spend two weekends from Saturday morning to Sunday early evening with the father in the April and July school holiday periods;  one week in October;  and three weeks in December or January or both;  and that there be consultation by the parties with the child for the purpose of refining those particular periods having regard to the child’s reasonable activities and requirements.

19. The parties were in agreement, so far as the two weekends in April and July are concerned, given that each of them expressed the view in the documents referred, that the periods concerned should be from 10.00am Saturday until 6.00pm the next day.

20. There was an issue in relation to October school holidays and the period of time in the Christmas school holidays.  So far as the former was concerned, the mother’s proposal was that it be for two weekends in October.  The father’s proposal was that it be five days in October.  Consequently, so far as the number of days were concerned, the parties in reality were really in dispute over the question of an additional day.  Ultimately, the submissions made on the mother’s behalf appeared to recognise that this should be a matter for the exercise of discretion without the need to place a great store on whether it be five days or four days represented by two weekends.

21. Having regard to the fact that the agreement previously reached by the parties was for one week in October, I give considerable weight to that agreement and have concluded that the father’s current proposal is two days less than what had been previously agreed.

22. Consequently, the order that will be made shall reflect a five day period in the October school holiday period, with the qualification that the parties consult with the child from time to time in order to define or designate the five days to meet her reasonable requirements during school holiday periods.

23. So far as the Christmas school holidays are concerned, I have concluded that it is in the child’s best interest for there to be the 21 day period sought by the father as opposed to the 15 day period sought by the mother.

24. There were arguments of substance put forward in support of both propositions.

25. However, my conclusion is dictated against the agreement reached by the parties three weeks ago as reflected in Exhibit 1.  I also take into account that the agreement referred to in Exhibit 1, followed consultations with an experienced family consultant, in which the parties and the child took part.  The consultations gave the child an opportunity to express her views which are summarised in the document.  In the circumstances it seems to me that the period of 21 days sought by the father is reasonable and in the child’s best interests.

26. The parties are agreed that in view of the lengthy air travel that the child will be undertaking on return from the United States of America on 2 January 2009, the commencement date for the forthcoming Christmas school holiday period of 21 days should be 8 January 2009.

27. The next issue relates to the periods of time that the child should spend with the father during school term.  Exhibit 1 recorded that the agreement was to be two weekends out of four in Sydney from Saturday morning until Sunday evening, and the parties consult with and take note of the child’s views including her reasonable activities, social and otherwise.

28. The mother’s approach was that the relevant periods of time should be one weekend from 10.00am Saturday until 6.00pm Sunday, and during one other weekend each month being on a Sunday from 11.00am until 6.00pm.

29. The father’s approach was that the relevant periods be each alternate weekend from 10.00am Saturday till 6.00pm Sunday and a further Sunday period from 10.00am until 6.00pm in either Sydney or Wollongong.

30. The mother’s position was that her change of approach to the periods of time the child spends with the father during the school term reflect what she understands the child’s current views.

31. Counsel had proposed to tender a letter from the child which was to support that approach.  It must be remembered that the child is only 14 years of age.  Quite clearly, an early teenage child may well have the maturity and intelligence to put forward her views.  However, evidence from a child under the age of 18 years is not permitted except by leave of the Court.

32. A letter being put forward in that fashion is a way of introducing such evidence.

33. In my view, it is particularly concerning that the child should be further embroiled in litigation by a letter being sought from her which helps to support one parent against the other.

34. I indicated to the parties that if this was an issue which was irreconcilable then I would consider the appointment of an independent children’s lawyer on the child’s behalf or arrange for a further child dispute conference with the family consultant so that the child could attend as she had done in March last to make her current views known.

35. Neither of the parties made any subsequent submission that I should follow either of those courses.  On reflection, I considered that was the proper approach in this matter because the spectre of ongoing litigation given the history of these proceedings to date would only have created further pressure and tension for each of the parties as well as the child.

36. The history of litigation between the parties is that little opportunity is lost from time to time to find an issue to litigate in this Court.  Consequently, it must be in the child’s best interests to determine litigation as quickly as possible provided that reasonable opportunity is provided for evidence or to follow the procedure that has occurred today by consent by way of hearing detailed submissions from each of the parties.

1. The father emphasised to me that he wishes to be flexible so far as the periods of time that the child spends with him, although he would like there to be what he described as “safety net” so that if matters could not be agreed from time to time at least there were orders made which reflected the periods of time that the child should spend with him.  That would ensure that there will be ongoing benefit of a meaningful relationship between the father and child.

2. The father also raised with me the question of notice that he should receive regarding whether the child has particular activities which might interfere with the periods of time that she would spend with him whether in Sydney or W.  Therefore, I will make an order which provides for appropriate written notice to be given by the mother to the father.

3. The father has also indicated that whilst from a practical viewpoint an overnight weekend would have to be spent in Sydney given that he does not have accommodation in W.  On the other hand, the father is prepared to consider reasonable requests for part of the weekend to be spent in W with the child so that she could engage in such activities that seem to be desirable in her best interests.

4. Having regard to the agreement reached as per Exhibit 1, notwithstanding the proposals for lesser periods of time put forward on behalf of the mother and for increased periods of time put forward by the father, I will make orders reflecting the agreement. That is, two weekends out of four from Saturday 10.00am until Sunday 6.00pm to take place in Sydney and/or W by arrangement between the father and the child from time to time.

5. Issues also arose in relation to the periods of time that the child might spend with each of the parties on her birthday, the parents’ birthdays, Father’s Day and Mother’s Day.  Ultimately, all of those issues were resolved during the course of submissions.

6. It was clear from the documents filed in Court by the parties that they were in agreement regarding the periods of time that the child should spend with the each party as appropriate on Father’s Day or Mother’s Day.

7. There had been an issue as to the period of time of three hours that the child should spend with the party with whom the child would not otherwise be then residing on the child’s birthday or on the birthday of that particular parent.  Again, to the credit of the parties, and in particular the father, who withdrew from his position to the extent that he was agreeable to the period of three hours being spent with him on the child’s birthday and/or his birthday, if it occurred during school term, to be on the day prior to the relevant birthday.  There will be orders made to that effect.

8. The mother had also raised an issue regarding the payment of child support on the tenth day of the month.  The father said that was a practice which he had adhered to for some time and had no objection to it being noted that he would continue to provide the requisite cheque for child support to the mother on or before the tenth day of each particular month.  I will note that agreement.

9. In paragraph 2.6 of the mother’s document entitled “Terms of Settlement” it was confirmed to me by agreement that in the event of any examinations taking place which conflicted with the period of time that the child might otherwise spend with the father then that period of time should be suspended to enable her to continue to reside with the mother on the occasion of such examinations.  The father agrees with that approach.

10. Paragraph 10 of the mother’s document entitled “Terms of Settlement” sought that the orders may be made be reviewed when the child is due to meet preparation for school certificate examinations and Higher School Certificate examinations.  In order to achieve what is sought in paragraph 10 the orders that will be made would have to be interim orders because otherwise there is no legal avenue for review.

11. The other alternatives are that final orders are made and if necessary the parties can make a fresh application provided they can show significant change of circumstances.

12. I do not consider it to be in the child’s best interest for litigation to be prolonged between the parties and should be avoided especially given the history of the intense litigation between these parties over some years and the tension and pressure that the child must have been experiencing as a result.

13. I explained these matters to senior counsel for the mother, as well as to the father being unrepresented.  I was informed that the approach referred to in the previous paragraphs namely to make final orders, was one which was supported by each of them.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  21 October 2008