ZOTKIEWICZ and ZOTKIEWICZ
[2014] FCWA 36
•17 JUNE 2014
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: ZOTKIEWICZ and ZOTKIEWICZ [2014] FCWA 36
CORAM: WALTERS J
HEARD: 27 MAY 2014
DELIVERED : Ex tempore
PUBLISHED : 17 JUNE 2014
FILE NO/S: PTW 1930 of 2010
BETWEEN: MS ZOTKIEWICZ
Applicant
AND
MR ZOTKIEWICZ
Respondent
Catchwords:
FAMILY LAW – CHILDREN – application for parenting orders – where the father lives in Poland and the mother and the child the subject of the proceedings live in Australia – where the mother left Poland with the child in 2010 – where the mother commenced proceedings in the Family Court of Western Australia seeking parenting orders in relation to the child – where the father commenced similar proceedings in Poland – where the father then caused proceedings to be commenced under the 1980 Hague Convention on the Civil Aspects of International Child Abduction for the return of the child to Poland – where the father was successful in obtaining orders for the return of the child to Poland at first instance, but unsuccessful on appeal – where the father refuses to accept the decision of the Full Court setting aside the trial judge's order for the return of the child to Poland – where the father continues to regard the mother as having abducted the child from Poland in breach of the Convention – where the father does not accept that Australia has jurisdiction to make parenting orders in domestic child-related proceedings – where the father has refused to participate in the parenting proceedings in the Family Court of Western Australia – where the mother's application for sole parental responsibility and other parenting orders proceeded in the absence of the father – sole parental responsibility granted to the mother and orders made to the effect that the father spend time with the child as agreed between the parties
Legislation:
Family Law Act 1975 (Cth), Pt VII, ss 4(1), 60B, 60CA, 60CC, 60CC(2), 61DA, 61DA (3), 64B, 64B(3), 65D(1), 65DAA(1), 65DAA(2), 65DAA(5), 65DAC, 65DAE
1980 Hague Convention on the Civil Aspects of International Child Abduction
Category: Not Reportable
Representation:
Counsel:
Applicant: Ms S Welsh
Respondent: No appearance
Solicitors:
Applicant: Legal Aid WA
Respondent:
Case(s) referred to in judgment(s):
Champness & Hanson (2009) FamCAFC 96
Commissioner of Police & Zotkiewicz [2011] FCWA 5
Commissioner of Police & Zotkiewicz [2014] FCWA 5
Goode v Goode (2006) FLC 93-286
Jets & Maker (No 2) [2011] FMCAfam 1473
Marsden & Winch (No 3) [2007] FamCA 1364
McCall & Clark (2009) FLC 93-405
McLay & McLay (1996) FLC 92-667
Mills & Watson (2008) 39 Fam LR 52
MRR v GR (2010) 240 CLR 461
Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction and background
1In these Reasons, and unless otherwise indicated:
a)all statements of fact comprise findings of fact;
b)I have referred to the parties as the father and the mother (and I mean them no respect by doing so) – because it is less confusing than referring to them in other terms;
c)similarly, and although Australian law now refers to a child “spending time” with a person with whom the child does not live, I shall use the obsolete terms "access" or “contact” from time to time (because it is both more convenient and less grammatically challenging to do so); and
d)I have not drawn a distinction between proceedings or events in the Magistrates Court, 150 Terrace Road Perth and proceedings or events in the Family Court of Western Australia (given that the two Courts operate "in tandem" and exercise similar jurisdiction).
2There is a long history to this matter. I have alluded to that history in my previous judgment, delivered on 19 January 2014: see Commissioner of Police & Zotkiewicz [2014] FCWA 5. I shall refer to that judgment as "the January 2014 judgment".
3I see no reason to restate the matters contained in the January 2014 judgment, although I will record the following:
a)The father was born in Poland and is aged approximately 54 years. The mother was born in Belarus and is aged approximately 39 years. The father acquired Australian citizenship in 1983. The parties began living together in Poland in or about 1999 and married in that country [in] 2000.
b)[N Zotkiewicz] (["N"]) was born in Poland [in] 2004. He was later registered as an Australian Citizen by descent. The mother, the father and [N] continued to live in Poland until 6 December 2006. They then moved to Perth.
c)The mother was granted Australian citizenship in September 2009.
d)The mother and the father remained living in Perth with N until 24 October 2009, when they left Australia and travelled to Poland.
e)On 14 December 2009, and unbeknown to the father, the mother contacted the Australian Embassy in Warsaw seeking an emergency passport.
f)On 26 February 2010, the father filed for divorce in Poland. He may have sought other relief as well, but I am unaware of the precise orders applied for at that time.
g)On or about 31 March 2010 the mother left Poland with N, without the father's knowledge or consent. She brought N back to Australia, utilising the emergency passport. The father had retained N's primary passport.
h)These proceedings were commenced on 13 April 2010. I shall refer to them as "the current WA parenting proceedings". On 21 April 2010, orders were made to the following effect on an ex parte basis:
i)Until further order, N live with the mother.
ii)Until further order, the father be restrained by injunction from removing N from Australia.
iii)The Australian Federal Police be requested to place N's name on the Airport Watch List.
iv)Until further order, the father spend time with N as agreed between the parties.
i)The father has steadfastly refused to participate in the current WA parenting proceedings. In June 2010, he made a Request for Return under the 1980 Hague Convention on the Civil Aspects of International Child Abduction Convention ("the Convention") seeking the return of N to Poland. He also applied to the Circuit Court in Plock, Poland. In August 2010, that court made orders dissolving the parties' marriage "by the fault of the wife" and providing that –
i)the father be entrusted "with execution of parental authority over [N], establishing the place of residence of [N]" with the father;
ii)the mother be "deprived of the parental responsibility over [N]"; and
iii)the "costs of maintenance" of N be charged solely to the father.
j)The Polish Court did not deal with the issue of the mother's contact with N.
k)In February 2011, a judge of this Court (Crooks J) and ordered that N be returned to Poland. The mother then appealed. In July 2011, the Full Court allowed the appeal and set aside the orders made by Crooks J.
l)The citation for Crooks J's judgment is Commissioner of Police & Zotkiewicz [2011] FCWA 5. The Full Court's judgment has been reported as Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472.
m)Both Crooks J at first instance and the Full Court on appeal were aware of the existence of the Polish proceedings and the orders made in that country.
n)In July 2013, the State Central Authority (having received a request from its Polish counterpart) commenced proceedings under the Convention for orders relating to contact or access between the father and N. It was apparent from the Convention access application that the father acknowledged that N lives in Australia and that he sought orders for contact or access only.
o)The mother filed an answer to the Convention access application in October 2013. Among other things, she pleaded that the orders made in the current WA parenting proceedings in April 2010 remain in full force and effect and that the father should participate in those proceedings if he seeks to have contact or access with N. She sought an order that the Convention access application be dismissed and that procedural orders be made to enable the issue of the father's contact or access with N to be dealt with as a substantive issue in this Court.
4In the January 2014 judgment at [53], I wrote as follows:
… it is convenient to identify a number of matters that are, or should be, uncontroversial:
a)The April 2010 orders remain in full force and effect.
b)The April 2010 orders to the effect that N live with the mother and spend time with the father as agreed between the parties, and the watch list order made on that day, are all orders "until further order". It follows that they are not final orders.
c)The Polish orders were made at least three months after the April 2010 orders.
d)The Polish orders are not expressed to be interim orders or orders "until further order".
e)There has been no appeal from the orders of the Full Court made pursuant to the appeal judgment [in other words, the appeal from the orders made by Crooks J].
f)The Full Court held that the State Central Authority failed to discharge the burden of proving, on the balance of probabilities, that N was habitually resident in Poland. It follows that the mother's removal of N from Poland was not in breach of the Convention.
g)The Full Court also held that N had been habitually resident in Australia for three years before the family travelled to Poland in October 2009, and that he did not acquire habitual residence in Poland during the period of approximately 5 months between his arrival in that country in October 2009 and his removal from it in March 2010: see the appeal judgment at [118].
h)It is clear beyond argument, therefore, that N has been habitually resident in Australia at all relevant times. Most importantly, it is clear beyond argument that N was habitually resident in Australia when the Convention access application was filed and at all times since then.
i)The father has stated clearly and consistently that the Convention access application is about access or contact only. The father has also stated clearly and consistently that:
i)he does not accept the Full Court's orders;
ii)he regards the mother as having abducted N from Poland in breach of the Convention;
iii)he does not accept that Australia "has jurisdiction" over N in any domestic child related proceedings;
iv)he does not "submit to any Australian domestic proceedings in relation to ... custody of [N]";
v)he relies upon the Polish orders as comprising "a final parental order ... made absolute" by the Polish Court; and
vi)he does not resile from his criticisms of the mother – as a parent and as a person – raised in the original proceedings (being the proceedings the subject of the first instance judgment and the appeal judgment).
j)The father has clearly argued that it would be in N's best interests to be removed from the mother's care and to live with him in Poland. In doing so, he has consistently raised issues regarding the fitness of the mother to have the day-to-day care of N.
k)The father has presented no proposal whatsoever as to how the Polish orders might be reconciled with the April 2010 orders [made in the current WA parenting proceedings] in the event of N travelling to Poland for the purpose of contact. Nor has he presented any proposal as to how the Polish orders might be reconciled with any orders that this Court might make as a consequence of the Convention access application. To this extent, the father's approach is disingenuous, if not duplicitous.
5The State Central Authority advised this Court in December 2013 that it was not prepared to pursue the Convention access application. It was later given leave to withdraw from the proceedings.
6In the January 2014 judgment, I held that the father did not have standing to pursue the Convention access application in his own right. I also held that he could not take over the conduct of the proceedings, even though they had been regularly commenced by a responsible Central Authority. Ultimately, I dismissed the Convention access application. In doing so, I said at [102]-[103]:
I have given the State Central Authority leave to withdraw from the proceedings. The father does not have standing to pursue the Convention access application in his own right. If I am wrong in that regard, then this Court should decline to deal with the Convention access application – which should be dismissed. The [current WA parenting proceedings] provide an appropriate vehicle for this Court to consider and determine the dispute between the parents regarding all aspects of N's parenting. Issues such as the most appropriate forum for determining the parenting dispute and the status of the Polish orders can be raised and considered in the context of [the current WA parenting proceedings]. ..
The father has every right to participate in [the current WA parenting proceedings]. He should now do so.
7In the January 2014 judgment at [105], I wrote:
I shall deal with [the current WA parenting proceedings] on 18 March 2014. I will consider any application the father is minded to make (as part of those proceedings) at that time. Similarly, I will consider any application that the mother is minded to make (as part of [the current WA parenting proceedings]) at that time. If the father elects not to participate in [the current WA parenting proceedings], then it is likely that the mother will seek final parenting orders on 18 March 2014. If the father elects to participate in the WA parenting proceedings, then it is likely that I will make appropriate interim and/or procedural orders with a view to facilitating the resolution of the parties' parenting dispute.
Orders of 18 March 2014
8When the current WA parenting proceedings came before the Court on 18 March 2014, the father was called but did not appear. Given the time that had elapsed since the commencement of the current WA parenting proceedings, however, it was clear that the mother was seeking orders which differed from those originally sought in April 2010. In those circumstances, the mother was directed to file an amended application initiating proceedings, together with a supporting affidavit, by not later than 11 April 2014. The proceedings were then adjourned to 27 May 2014 for further hearing.
9The orders of 18 March 2014 provided for personal service on the father of the amended application and supporting affidavit to be dispensed with on certain conditions – namely that the mother was to provide copies of the relevant documents to the father in Poland by post and by email. She was required to send the documents, and email them, by not later than 4 PM on 16 April 2014. I otherwise refer to the orders of 18 March 2014 for their full terms and effect.
10I am satisfied that the orders made on 18 March 2014 have been complied with, in particular in relation to service. In that regard I refer to the affidavit of [Ms F] filed on 16 April 2014, which affidavit deposes to compliance with the orders of 18 March 2014.
11The father was called earlier today and did not respond to the call. I am satisfied that he is well aware of the existence of the current WA parenting proceedings and the fact that they are listed before the Court today.
12It is clear beyond argument that the father has been given every opportunity to participate in the current WA parenting proceedings. For reasons best known to him, he has elected not to participate. Indeed, he has resolutely refused to participate.
The mother's application
13The mother filed an amended application initiating proceedings on 10 April 2014. She seeks the orders set out in the minute attached to that application. Relevantly, she seeks orders that she have sole parental responsibility for N, who is nearly 10 years of age. She also seeks that N live with her and she sets out in the attachment her proposals as far as contact – to use the old term – is concerned.
The mother's evidence
14In support of her initiating application, the mother has filed an affidavit, which she swore on 10 April 2014 ("the mother's affidavit"). At [3], the mother confirms that the decision of the Full Court of 8 July 2011 reasonably accurately summarises her relationship with the father and the movements of N and the mother from his birth until 2011. The history of the orders and court events is set out in the subsequent paragraphs of the mother's affidavit. That history reflects, at least to some extent, the matters discussed in the January 2014 judgment.
15In her affidavit at [16], the mother describes the current arrangements for N. She has been his primary caregiver since he was born. The mother deposes to the fact that she does not intend to move from Australia. The mother and N live in this State at an address that is not known to the father. It comprises a two-bedroom home, which is relatively new. It is fully furnished.
16N attends a school that is close to his home. According to the mother, N enjoys school; he has many friends and he plays with them regularly. N is in year 4. The mother says that N is progressing well and that he is an average student. It would seem that N prefers sport to academic pursuits, but, in general, there is no evidence that he is doing other than progressing satisfactorily with his education. He is healthy and there are no ongoing medical issues.
17Insofar as contact with the father and the father’s family is concerned, the mother deposes, at [20], to N last seeing his half-sister, [J], just before Christmas last year. It would appear that N also talked to his father via Skype around the same time. There were problems with that communication, however, which are described in the mother’s affidavit. It would seem that the father tends to have difficulty holding his tongue when speaking with N, and their last conversation appears to have upset the child. That is regrettable, and clearly not in N’s best interests.
18The mother also deposes to the fact that she is happy for the father and J to see N but she requests that she be given a minimum of two weeks' notice of any proposed contact so that supervision can be organised. Additionally, the mother deposes that she has no objection to either the father or J contacting N on the mother’s telephone. She deposes to the fact that they are aware of her telephone number.
19As far as face-to-face contact is concerned, the mother deposes, at [21], to the fact that the father has not had face-to-face contact with N since early to mid‑2011. The father was in Australia at that time because of his involvement in the Hague Convention proceedings. The father has family in Australia and, according to the mother, he used to visit his family regularly. It would appear that he no longer does so. As well as his daughter, J, J’s mother and her family live in Australia.
20In [23], the mother deposes to the fact that she and the father do not get along well. They are clearly unable to discuss day-to-day and long-term welfare issues regarding N. Their discussions tend to end in disputes or, as the mother describes it, a fight. She says that the father is regularly abusive towards her and critical of her parenting of N. I have no doubt that that is the case: I commented on this subject in the January 2014 judgment. The father regards the mother as a bad mother. She asserts that he has described her as an alcoholic who cannot look after N or make appropriate decisions for him.
21Notwithstanding that apparent view of the mother on the part of the father, he has consistently refused to involve himself in the current proceedings, notwithstanding being given every opportunity to do so over an extended period. In those circumstances, I reject the father’s criticisms of the mother. He has had every opportunity to put forward his case in these proceedings, and to enable it to be tested in an appropriate manner, but he has chosen not to do that. I am certainly satisfied that the mother and the father are unable to communicate effectively and that they would not be able to make arrangements that might be considered in N’s best interests. I am satisfied that an order for sole parental responsibility would be the only practical and reasonable approach. In the highly unusual circumstances of the current WA parenting proceedings, equal shared parental responsibility could not possibly work, and could not possibly be in N's best interests.
22In [24], the mother deposes to the fact that N has not needed to see a psychologist or a counsellor for an extended period, but the mother is aware that she can have up to 10 counselling sessions through Medicare if N requires such assistance at some time in the future.
23In the same paragraph, the mother deposes to the types of comments made by the father to N and, in particular, the comments made shortly before Christmas during the last Skype telephone contact between N and his father. Relevantly, the father told N that the mother was a liar, that N has no future in Australia, that the mother has no money, and that N’s friends are unable to come over to visit him or play with him because the mother has no money for afternoon tea. The father also told N not to listen to the mother and, according to the mother, the father attempted to bribe N to agree to go to Poland at some time in the future.
24In [25], the mother deposes to the fact that she supports N through her single parent pension. She has a small income, and she also receives $280 per month child support from the father. It would appear that the father is in arrears of child support to the extent of approximately $3800. The question of child support, its quantum and arrears is currently before the Child Support Registrar and is not a matter that this Court need concern itself with at this stage. Suffice it to say that the father is paying child support, although the mother would argue that it is not adequate child support. There is no suggestion that the mother is unable to properly maintain N on the income presently available to her, and taking into account the benefits that she has.
25The mother speaks in subsequent paragraphs of the fact that she does not intend to travel overseas with N and that she is comfortable for his passport to remain in the registry of this Court, which is where it currently resides pursuant to pre‑existing orders. In [27], the mother asks that her own passport be returned to her. The Court can see no reason why that should not occur.
26Commencing at [28], the mother lists certain concerns that she has. She argues that N would not cope – physically or emotionally – with living in Poland or spending time with his father in Poland without her. N does not speak Polish. He has not been to Poland since he was four and a half years old and would have no recognition of the country. The reality is, however, that the father has not participated in these proceedings and he has not put forward any proposals to the effect that N should spend time with him in Poland.
27I am aware, of course, of the existence of the orders made in Poland in August 2010 – to which reference is made above, and in the January 2014 judgment. One of the matters that the father could have achieved, had he elected to participate in the current WA parenting proceedings, is some resolution of the apparent conflict between the orders of this Court and the orders of the Polish court. The father has elected not to participate in these proceedings, however, and therefore this Court can do nothing more than deal with the matter on the basis of the evidence before it.
28The mother deposes, in [29] and [30], to her concerns about the father taking N back to Poland if he has the opportunity to do so, and her concerns that if she were to return to Poland she could potentially face prosecution for her actions from 2010. That is not to say that this Court is of the view that the mother has in fact behaved in an inappropriate manner; the Court is simply recording the concerns raised by the mother.
29I make no finding as to whether the mother has or has not behaved in an inappropriate manner. The fact of the matter is that the removal of N from Poland to Australia has already been the subject of litigation in this Court and on appeal and there is nothing further that needs to be said about that subject. It has been dealt with in the appeal judgment and, to a lesser extent, in the January 2014 judgment.
30Clearly, N’s best interests are the paramount consideration in the current proceedings.
Parenting orders – the law
31The following summary of the law is based on similar summaries in my decisions in Mills & Watson (2008) 39 Fam LR 52 and Jets & Maker (No 2) [2011] FMCAfam 1473.
32Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Part VII of the Family Law Act 1975 ("FLA").
33The Full Court carefully analysed the structure and effect of Part VII in Goode v Goode (2006) FLC 93-286. It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to s 64B (which includes, among other things, a list of the matters with which a parenting order may deal). For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
34Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long-term issues in relation to the child” [s 64B(3)]. Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health. A proposed change to a child's name, or proposed changes to a child's living arrangements which would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long-term issues. But a parent's decision to form a relationship with a new partner is not, of itself, a major long-term issue in relation to a child ─ even though such a decision could involve a major long-term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent): see the definition of "major long-term issues" in s 4(1).
35If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long-term issue regarding a child, then the relevant decision must be made jointly. Further, an order for equal shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long-term issue, and to make a genuine effort to come to a joint decision [s 65DAC]. Such consultation is not required in relation to issues that are not major long-term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent [s 65DAE].
36As has long been the case, the child’s best interests remain the paramount consideration in the making of parenting orders. That principle is set out in s 60CA:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
37The objects of Pt VII, and the principles underlying it, are set out in s 60B. They are important.
38The objects of Pt VII are set out in s 60B(1). They are:
… to ensure that the best interests of children are met by:
•ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
39The principles underlying these objects are set out in s 60B(2). They are:
... that (except when it is or would be contrary to a child's best interests):
•children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
•children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
•parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
•parents should agree about the future parenting of their children; and
•children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
40Given that all the expressed objects of Pt VII are directed towards ensuring that a child’s best interests are promoted, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in s 60CC, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests. The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".
41The primary considerations are set out in s 60CC(2). They are:
a)the benefit to the child of having a meaningful relationship with both of his or her 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.
42The additional considerations are set out in s 60CC(3). They include:
a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
b)the nature of the child’s relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
c)the extent to which each parent has taken (or failed to take) the opportunity to participate in making decisions about major long-term issues regarding the child, and to spend time or communicate with the child;
d)the extent to which each parent has fulfilled (or failed to fulfil) his or her obligations to maintain the child
e)the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
f)the likely effect of any changes in the child's circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
g)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);
h)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);
i)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);
j)in the case of an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her indigenous culture;
k)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
l)any relevant family violence, or family violence order;
m)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"; and
n)any other fact or circumstance that the court considers relevant.
43The long list of additional considerations makes it clear that the court is required to focus on – among other things – each party’s "track record" as a parent.
44Although the primary considerations are listed before the additional considerations, they will not always "outweigh" them: see Champness & Hanson (2009) FamCAFC 96 at [101]. Clearly, the primary considerations "should be accorded particular importance in determining what order will best promote the interests of the child", but they will not always determine the outcome of the proceedings. Thus, in Marsden & Winch (No 3) [2007] FamCA 1364, the Full Court said at [78]):
…[the Court is] obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as [it thinks] appropriate in arriving at the result most likely to promote the child's best interests. … [Particular emphasis must be placed on the primary considerations] not only because the legislature has identified them as "primary" but also because they are manifestly of the utmost importance in determining what outcome will best advance the child's best interests.
45In considering the first of the primary considerations (being the benefit to a child of having a meaningful relationship with both of his/her parents) the "preferred" approach is to "consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents" – although an approach which involves examining evidence of the nature of the child's relationship as at the date of the hearing in order to make findings based on that evidence and to frame orders accordingly may also be relevant in certain circumstances: see McCall & Clark (2009) FLC 93-405 at [117-22]. Irrespective of the approach to be adopted, the benefit to a child of a meaningful relationship with his/her parents is not a legislatively defined presumption, or even an assumption.
46In Goode, the Full Court summarised the above process at [10]:
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined are the factors in ss 60CC ... The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.
47Notwithstanding the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper: see, in a different context, McLay & McLay (1996) FLC 92-667 at 82,901. Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the court may make such parenting order as it thinks proper [s 65D(1)].
48When making a parenting order, the court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility [s 61DA]. Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
49The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence. In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.
50In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the court that that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility [s 61DA(4)].
51Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise), the court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable and in the child's best interests. If it is both of these things, then the court must consider whether it should make an order to that effect: s 65DAA(1). If the court comes to the conclusion that an order for equal time should not be made, it must then go on to consider whether the child spending "substantial and significant time" with each parent would be both reasonably practicable and in the best interests of the child. If it is both of these things, then the court must consider whether it should make an order to that effect: s 65DAA(2).
52In MRR v GR (2010) 240 CLR 461, the High Court said at [13] and [15]:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order (for equal time). ... A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. ... If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. ...
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. (Emphasis added.)
Discussion
53I need not progress seriatim through the various stages of the process described above because it is clear beyond argument, on the basis of the history of the proceedings as recorded in the judgment of the Full Court and the January 2014 judgment (and further, in the affidavit of the mother filed on 10 April 2014), that it is in N’s best interests to continue to live with the mother in Australia.
54The reality is that the father has presented absolutely no alternative to that arrangement. It would appear, based on the evidence before the Court, that the current arrangement is working satisfactorily and in the best interests of N. There is no reason, therefore, to change that arrangement. The father has not taken advantage of the opportunities presented to him to put forward proposals for N’s welfare and he has elected not to contact his son for an extended period. These are matters that called for an explanation – which the father elected not to provide.
Orders
55I turn, therefore, to the orders contained in the attachment to the mother’s amended initiating application.
56The first order sought is that all previous orders concerning the care of N be discharged. I propose to order that all previous parenting orders be discharged. Secondly, there will be an order that the mother have sole parental responsibility for N and that N live with her.
57The next order sought is paragraph 4, which is to the effect that the father be at liberty to telephone N each Tuesday between 4 pm and 5 pm Perth time. I propose to make an order in those terms. In other words, there will be an order in terms of paragraph 4 of the attachment to the initiating application.
58Paragraph 5 reads:
For the purpose of telephone calls in paragraph 4, the father is to call the mother on her telephone and the mother will hand her phone to N.
59I will make an order in those terms.
60The next order sought is paragraph 6. That reads that:
The father be at liberty to spend time with N in Australia, under the supervision of an approved agency or the mother at such times and dates as are agreed with the mother.
61There will be an order in those terms. In my view there is an unacceptable risk of N being removed from the mother’s care and, indeed, being removed from the country if the father’s time with N is not strictly supervised. Moreover, there is an unacceptable risk of the father saying wholly inappropriate things to N, as the mother has described in her affidavit. The father seems unable to control his emotions where N is concerned and, in my view, it is in the best interests of the child to ensure that untoward events do not occur when he spends time with his father. My view in that regard may change over time if the father can demonstrate that he can behave responsibly when he spends time with N.
62The present position, of course, is that the father has not participated in these proceedings at all in spite of having been invited to do so on a number of occasions. It follows that he has not presented any argument as to why supervision should not occur as requested by the mother. As I indicated at the commencement of these Reasons, I am satisfied that he is well aware of the orders she is seeking.
63In paragraph 7, the mother seeks that, for the purposes of paragraph 6, the father is to provide the mother with two weeks' notice in writing of his planned dates to travel to Australia and his proposals as to when he wishes to see N. In my view, that is a sensible arrangement and there will be an order to that effect.
64The next order is paragraph 8, which is to the effect that N’s name is to remain on the airport watch list. So that all the orders are in one place, and given that I have discharged all previous parenting orders in relation to N, I will also discharge any watch list order that currently exists and remake the order as part of these orders. Therefore, there will be the usual watch list order as it relates to N. That will, of course, prevent both parties from removing N from Australia. To the extent that there is a previous order to the effect that N’s passport is to be held in the registry of this court, I will again discharge that order and remake it so that we will have a single omnibus order dealing with arrangements for N.
65Paragraph 10 provides that the respondent and his agents be restrained by injunction from removing N from N’s school and the Commonwealth of Australia. Paragraph 10(b) is unnecessary because the provisions of the Family Law Act prevent children from being removed from the country without the permission of the parent who has parental responsibility for the child and, in any event, a watch list order is in effect. I do not, therefore, propose to make an order in terms of paragraph 10(b). As far as paragraph 10(a) is concerned, there does not appear to be any ground given in the affidavit to warrant such an injunction and I do not propose to make those orders. As such, there will not be an order in terms of paragraph 10.
66Paragraph 11 provides that the father is to be restrained by injunction from applying for any further passports or travel documents for N and the mother cause a sealed copy of these orders to be served on the embassy of Poland in Canberra and the Department of Foreign Affairs and Trade in Perth. In my view, that is a sensible order and I will make that order.
67Further, I will make an additional order that the father cause any passport that he currently holds for N, being a passport issued by Poland or by any other country, to be delivered up to the Registrar of this court forthwith. I will review the drafting of that order, but the effect of it is that if the father has a passport for N that is issued by the Republic of Poland or by another country, then he must forthwith deliver that passport and the injunction will restrain him from applying for any further passports. If he wishes to be involved in N’s life in that sense, then, of course, he has always had the opportunity to participate in these proceedings.
68There will be an order in terms of paragraph 12. I am not sure that the mother’s name is on the airport watch list but if it is, it will be removed and there will be an order in terms of paragraph 13 which is to the effect that the registrar of this court is to release the mother’s passport to her.
69I propose, therefore, to make the following orders:
a)All previous parenting orders be discharged.
b)The mother have sole parental responsibility for the child of the marriage, N ZOTKIEWICZ born [in] 2004 ("N").
c)N live with the mother.
d)The father be at liberty to telephone N each Tuesday between 4.00 pm and 5.00 pm Western Australian time and, for the purpose of the said telephone calls, the father must telephone the mother on her telephone and the mother must forthwith and her telephone to N.
e)The father be at liberty to spend time with N in Australia under the supervision of either an approved agency or the mother, at such times and on such dates as shall be agreed with the mother from time to time.
f)For the purposes of paragraph 5 above, the father must provide the mother with not less than two weeks’ notice in writing of –
i)his planned dates for travel to Australia; and
ii)his proposals as to when he wishes to see N.
g)All previous Airport Watch List orders be discharged.
h)Until further order, both parties, their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove the said child, N ZOTKIEWICZ born [in] 2004 from the Commonwealth of Australia.
i)The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said child’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watch List until further order of the Court.
j)All previous orders relating to N's passport or passports and the mother's passport or passports be discharged.
k)The Registrar of the Family Court of Western Australia is hereby authorised and directed to release the mother’s passport to the mother.
l)The father must forthwith sign all such documents and do all such acts and things as shall be necessary to cause all N's passports presently in his possession or under his control, including any relevant Australian or Polish passport or passports and any other passport or passports issued by any other country relating to N ("N passports"), to be delivered up to the Registrar of the Family Court of Western Australia – to be held pursuant to the provisions of paragraph 12 below.
m)The mother must forthwith sign all such documents and do all such acts and things as shall be necessary to cause all N's passports presently in her possession or under her control to be delivered up to the Registrar of the Family Court of Western Australia – to be held pursuant to the provisions of paragraph 13 below.
n)N’s passports must remain and be held securely in the Registry of the Family Court of Western Australia, unless otherwise ordered by this Court.
o)The father be restrained by injunction from applying for any further passports or travel documents for N, and the mother cause a sealed copy of these orders to be served, as soon as practicable, on –
i)the Embassy of Poland in Canberra; and
ii)the Department of Foreign Affairs and Trade in Perth.
p)The Australian Federal Police be requested to remove the mother’s name from the Airport Watch List, and the mother do supply the Australian Federal Police with a sealed copy of this order.
q)All extant applications otherwise be dismissed.
I certify that the preceding [69] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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