Alden & Bourne
[2022] FedCFamC1F 717
Federal Circuit and Family Court of Australia
(DIVISION 1)
Alden & Bourne [2022] FedCFamC1F 717
File number(s): BRC 6449 of 2020 Judgment of: BAUMANN J Date of judgment: 29 September 2022 Catchwords: FAMILY LAW – Parenting – Where the issue to be determined is whether the now three year old child should live with the father in Australia or the mother in Country C – Where the mother has currently no legal right to reside permanently in Australia –Assessment of the parent’s respective capacities to meet the child’s needs – Where Court supports as being in the best interests of the child, the mother’s proposal for the child to live with her in Country C – Where form of order requires further submissions before pronouncement. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA Cases cited: Goode & Goode (2006) FLC 93-286
Jones & Dunkel (1959) 101 CLR 298
Division: Division 1 First Instance Number of paragraphs: 94 Date of hearing: 23, 24 and 27 September 2021 Place: Brisbane Counsel for the Applicant: Ms Gover Solicitor for the Applicant: Legal Aid Queensland Counsel for the First Respondent: Ms Martinovic Solicitor for the First Respondent: Keyworth Harris & Lowe Family Lawyers Counsel for the Second Respondent: Ms Wardle Solicitor for the Second Respondent: G D Lawyers Counsel for the Independent Children's Lawyer: Mr Cooper Solicitor for the Independent Children's Lawyer: Ms Bush, NR Barbi Solicitor
Table of Corrections 13 October 2022 In paragraphs 49 and 55 Counsel’s name was corrected to show “Gover”. ORDERS
BRC 6449 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ALDEN
Applicant
AND: MR BOURNE
First Respondent
MS B BOURNE
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
29 SEPTEMBER 2022
THE COURT ORDERS:
1.That the proceedings are adjourned for the purpose of receiving further submissions as to the form of the Orders, consistent with these Reasons, to 2.15pm on Monday 10 October 2022
2.That the parties are required to attend personally before the Court with their legal representatives on 10 October 2022.
THE COURT NOTES:
A.That Order 1 has been amended pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Alden & Bourne has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Division 1) Rules 2021 (Cth) on 13 October 2022
BAUMANN J:
Introduction
When a child is conceived in a causal relationship whilst, as in this case, the father is visiting an area like Country C and connects with a mother who is a resident and citizen of Country C, it is hardly surprising that developing a co-parenting relationship for their daughter (now aged three years) presents significant challenges.
When you add to those obvious cultural and human challenges, that:
(a)an issue arises as to the father’s use of illicit substances and medicinal use of cannabis; and
(b)the father has experienced mental health issues; and
(c)the mother has no current right to remain long-term in Australia and wishes to return to her home where a child, of an earlier relationship, awaits; and
(d)the father is not prepared to sponsor the mother’s application, if made, for more permanent residency in Australia, and says he fears for his safety if he returns to Country C to live or even see the child; and
(e)the parents have meagre income and assets as would enable them to meet travel expenses (wherever the child might be ordered to live) into the future,
the complexities of this case for this much loved a little girl become obvious to everyone.
The Reasons which follow identify why the Court has decided it is in the child’s best interests to live with her mother in Country C. As will become apparent, the factual context provided by the evidence does not allow for an optimal outcome for the child – which would be for the parents to both remain in the one country, approximate to each other, so that the child can have a meaningful relationship with both her parents and extended family of each parent.
chronology
Statements of fact hereafter should be construed as findings of fact.
The mother, aged 35 years, was born in Country C where she was living when she met the Australian born father aged 33 years, in early 2018. At the time they met, the father was on WorkCover payments arising from a serious attack upon him in around 2015.
The mother, with the support of her family, was the carer of a daughter B (born in 2005). Although the parties conceived the child only weeks after meeting each other in Country C, the evidence does not suggest either party was intending to commit to a long-term relationship. I find neither party knew much about the other party when the mother fell pregnant.
It is not entirely clear if the father was aware the mother was a few weeks pregnant when he returned to Australia in early 2018 after a short holiday in Country S.
I find that when the father became aware the mother was pregnant with his child, discussions took place that resulted in the mother entering Australia on a visitor’s visa in late 2018, to enable her to be present in Australia to give birth to the child in Australia. The mother conceded that she felt the Australian health system was superior to that available to her and the child in Country C.
After arriving in Australia, and with the mother living with the father in the home of the paternal grandmother, Ms B Bourne, the father formed a view that the mother, an observer of the T Religion faith, held a very strong view about homosexuals, describing the mother as “homophobic”. The father, in the hearing, neither concedes nor denies that he is gay, and it is not necessary to make any such finding. I am satisfied however that preceding the birth of their daughter X in 2018, it became apparent to both mother and the father that the only significant common interest they had as a couple was X, although the father did contemplate living in Country C and operating some form of “virtual” business.
Between early 2019 and late 2019, the parties and the child undertook a number of trips, essentially:
(f)returning as a family unit to Country C in early 2019 (when the child was 4 months old);
(g)Returning to Australia in mid-2019 before returning to Country C weeks later; and
(h)Living in Australia from mid-2019 until approximately late 2019.
Sometime in late 2019, the father travelled from Country C to Country D to enable him to renew “offshore” his Country C visa.
In late 2019, the father returned to Australia and the mother and the child (then aged 12 months) remained in Country C. Since late 2019, the father has not returned to Country C and, as will be discussed later in these Reasons, he has deposed to having no intention to do so because of fears for his safety. On the evidence, I am satisfied that the father’s decision not to return to Country C was probably formed in early 2020.
To the mother‘s credit, in my view, she was alert to the needs of the child to continue to develop a relationship with the father and also the paternal grandmother, who I find had been supportive of the mother and child when they were in Australia at earlier times.
In early 2020, the father and the paternal grandmother informed the mother that the paternal grandmother had purchased tickets for the mother and child to come to Brisbane. The mother said she agreed to travel to Australia but for a short visit. She says, and I accept, when she came back to Australia in early 2020 she made it clear to the father she was not returning to live permanently in Australia. I infer once again she entered Australia on a tourist visa.
I accept that the relationship between the mother and the father in particular was not good and by the time of the events of mid-2020, the adult relationship between the parents had come to an end.
At this stage, X was only 18 months of age and still being breastfed.
A dispute arises as to whether the paternal grandmother told the mother to “get out” of her house where she was living – an allegation the paternal grandmother denies. What occurred however at separation is not in dispute. The mother left the home without the child and moved immediately into refuge accommodation. At the time of the hearing before me, the mother was still residing in refuge accommodation provided by a community group.
On 22 May 2020, the paternal grandmother filed an Application in which she sought orders inter alia for sole parental responsibility; that the child live with her and spend time with the father supervised by the paternal grandmother and spend time with the mother at a contact centre. Having retained the child in her care, I am satisfied the paternal grandmother’s major (but not only) concern was her belief that the mother intended to take the child back to Country C. The return airline tickets purchased by the paternal grandmother that facilitated the mother and the child coming to Australia were cancelled in respect of the return journey. I am not satisfied on the whole of the evidence that the paternal grandmother “tricked” the mother to come to Australia so she could effectively hold the child hostage in Australia, but when the parents’ relationship came to an end, the paternal grandmother could not allow her grandchild to leave the country.
Although the paternal grandmother had concerns about the mother, the fact that the paternal grandmother urgently sought orders for the child to live with her is partly explained by the Notice of Risk filed on 22 May 2020, where she says “[t]he [f]ather is currently suffering from poor mental health and does not have the capacity to care for the child at this time.” The paternal grandmother’s position at the final hearing is that the father now has the capacity to care for the child – with her support, which she happily offers - and is available to do so.
The mother, perhaps at the time unaware of the Application by the paternal grandmother, filed an Application on 29 May 2020 seeking a recovery order. It was clear the mother wished to return to Country C immediately and she deposed that her visitor’s visa would expire in mid-2020.
On 9 June 2020, Judge Spelleken made the following interim orders:
1.That the child [X] born in 2018 (“the child”) live with the mother.
2.That, to give effect to Order 1 herein, the father is to deliver the child [X] born in 2018 to the [Suburb E] Police Station located at [G Street], [Suburb E] by no later than 10:00am 10 June 2020.
3.That, should the father fail to comply with Order 2 above, a recovery order do issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force;
(a)To find and recover the child [X] born and to deliver the said child to the mother at the [ Suburb E] Police Station located at [G Street], [Suburb E], or other such places as the mother and the person effecting such recovery agree to be appropriate; and
(b)To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.
4.That the father, his servants and/or agents are hereby restrained from removing or attempting to remove or causing the removal of the children from the mother’s care until further order of the Court.
5.That the recovery order issued pursuant to paragraphs 3a-3b herein lie in the registry until 10:00am on 10 June 2020.
6.That the recovery order will issue in accordance with paragraph 5 upon the written confirmation from the solicitor for the mother outlining the failure of the father to comply with order 2 hereof.
7.That commencing 13 June 2020, the child spend time with the father each Saturday from 10.00am to 4.00pm at a location as agreed between the parties, but failing agreement, at [F Street] and that such time is to be supervised by the paternal grandmother.
THE COURT ORDERS:
8.That within twenty-four (24) hours of the date of this order, the Mother and the Father attend upon a General Practitioner to obtain a referral to a reputable pathologist in the local area for the purposes of undertaking supervised urine analysis testing for illicit drug and alcohol abuse. Such tests are to be verified by a certificate to include a temperature endorsement thereon, with a copy of the certificates so obtained to be forwarded to the solicitors for all parties within twenty-four (24) hours of receipt of said certificate.
9.That within forty-eight (48) hours of these orders the mother shall surrender the child’s passport to the Father or Paternal Grandmother, with the passport to be provided forthwith to the Father or the Paternal Grandmother’s solicitor.
10.That the Paternal Grandmother, noted as the Intervenor in these orders, be joined as a party to these proceedings.
11.That the matter is adjourned for mention to the Federal Circuit Court of Australia sitting in Brisbane at 9.30am on 15 June 2020.
Some days later on 15 June 2020, the Court appointed an Independent Children’s Lawyer; ordered a family report and placed the child on the Airport Watchlist.
On 19 November 2020, Family Mr H conducted interviews for a family report, which he published on 3 December 2020. By its release, the proceedings had been transferred to the Family Court of Australia (as it then was), because of the international component.
Competing interim applications by the father filed (12 January 2021) and the paternal grandmother by way of Response (filed 31 January 2021) to which the mother also responded on 1 February 2021, came before a Senior Judicial Registrar on 18 March 2021, when he made the following orders:
1.Paragraph 1 and 2, 5 to 8 of the Amended Application in a Case filed 1 February 2021 be dismissed.
2.The child [X] born in 2018 spend time with the father on two days in each week being, on Tuesday and Sunday, from 9.00am to 5.00pm on each day.
3.That the handover of the child pursuant to Order 2 is to occur at a location to be agreed and failing agreement in the entry to [J Shopping Centre], [K Street, Suburb L].
4.That the handover of the child be conducted by or in the presence of the paternal grandmother and the paternal grandmother is to be present at all times during the time the father and child are spending together pursuant to these orders.
5.Paragraph 7 of the Order dated 9 June 2020 be discharged.
6.Paragraph 2 of the Orders dated 19 October 2020 be discharged.
7.Paragraph 5 of Orders dated 15 June 2020 be discharged.
Airport Watch List
8.UNTIL FURTHER ORDER, the applicant is restrained and an injunction hereby issues restraining her, by herself and her servants and agents from removing or attempting to remove the chid [X] born in 2018 from the Commonwealth of Australia.
9.The Marshall of 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.
10.The solicitor for the applicant is responsible for forthwith advising the Marshal and the proper officer of the Australian Federal Police of the existence of these orders, and for serving a sealed copy of these orders upon the proper officer of any relevant police force as soon as practicable.
11.The Court requests that the Australian Federal Police place the names of the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.
12.That within 14 days the Father is to provide the Independent Children’s Lawyer, solicitors for the mother and the paternal grandmother with medical evidence explaining the existence of prescribed drugs in his urine sample so referred to in the Pathology Report accepted as Exhibit “1”.
13.The matter be placed on to the trial list to await allocation of a trial judge and trial dates on a date to be fixed and advised by the Court.
14.The application for costs of the Independent Children’s Lawyer is dismissed.
Next hearing
15.
The matter is listed for a further directions hearing before a Registrar on
29 June 2021 at 9:30amwith leave for the parties and their legal representatives on record to appear by telephone.
Relevantly, those orders have continued, which means that apart from the short period after the separation in May 2019, the child has not spent overnight time with the father and/or the paternal grandmother.
A trial commenced before me on 23 September 2021.
The Court regrets the delay in delivering Reasons for Judgment but notes, at least, the delay has given the child a frequent opportunity to spend time with the father and his family. No application to re-open the evidence has been made to the Court by any party.
Principles
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
Competing proposals
Annexed to these Reasons are the competing proposals, in some cases a primary proposal and alternate proposals (as the Court had directed in its trial directions made 2 July 2021, being:
(a)Appendix One – the mother’s proposals;
(b)Appendix Two – the father’s proposals;
(c)Appendix Three – the paternal grandmother’s proposals.
In final written submissions from the Independent Children’s Lawyer dated 27 September 2021, no form of order was tendered, however, the Independent Children’s Lawyer’s position is as set out in summary at paragraph 1, namely:
1. The ICL has filed a Case Outline, in the matter, which sets out her position that the child [X] born in 2018 (“the child”) should live with the father, in Australia. Having now had the benefit of two (2) days of trial and observing each of the mother and the father in the witness box, the ICL’s position changes only such that the child should live in Australia, the reasons for which will be set out in the points below. The ICL’s view is that the mother has greater opportunities to reside in Australia than the father in [Country C]
(my underlying)
The Case Outline of the Independent Children’s Lawyer filed 15 September 2021 was a lengthy document however, it was to a large extent reliant upon the family report, which I will demonstrate at the time of its publication, was based on a critical assumption that the mother could remain living in Australia.
The “Executive Summary” so described in the Independent Children’s Lawyer’s final written submissions could be interpreted that the Court has to decide which country the child should live in and then assess who is the best or available parent to offer primary care. If that is the intention of the submission, then with respect such an approach is contrary to law and misconceived.
The competing proposals identified reveal that of all the parties, the father was not able to, and he did not clearly, articulate his proposal if the child was to return to live permanently in Country C. I can understand that the father may be distressed in contemplating such a scenario, however the mother was able to consider her proposal if, against her wishes, the child continued into the future to live permanently in Australia.
The father’s failure in this regard is the subject of further comment at the end of these Reasons.
The Mother’s immigration status
As earlier alluded to in these Reasons, the mother’s capacity to remain in Australia permanently is a contextual issue of importance. It is a fact not in dispute that X enjoys both Australian and Country C citizenship.
At the time of the final hearing, the mother was able to remain in Australia under a tourist subclass 600 visa which was due to expire in late 2021. Annexure “B” to the mother’s affidavit was a copy of her visa. The visa restricts the mother from working in Australia. The mother receives Centrelink benefits as the child is in her care, and child support, at trial, from the father of $17.10 per fortnight. Otherwise, she relies on charitable support from a community organisation. She has a support of a friend Ms M (“Ms M”) to provide as required by the Australian government, a financial guarantee.
I accept that in early 2021, the mother (through her legal representative) requested advice as to whether the father would be willing to sponsor the wife if she applied for a 103 parent visa. The mother says that she had received no response – however the father’s position is crystal clear, where he deposes at paragraph 182 of his trial affidavit filed that “I will not be supporting Ms Alden in any application she seeks to make with immigration.”
In cross-examination he confirmed that was still his position.
The Court accepts that the requirements of sponsorship include an assurance that the sponsor will support the mother financially until X turns 18 years of age. This is an onerous financial commitment and one which the father, on the evidence, has no current capacity to offer, even if he wished to do so. The paternal grandmother does not offer to do so, and at paragraph 31 of her affidavit filed 3 September 2022, the mother explains why the organisation offering her refuge cannot do so.
At the time of the final hearing, the travel restrictions in place because of the Covid-19 pandemic (which in fact restricted travel for the mother and child essentially since March 2020) meant that a return to Country C was not an available option. Although no evidence since the trial has been offered on either of the following points, I find that:
(a)the mother, apart from the Airport Watchlist restriction, is not otherwise restricted now from returning to Country C with X; and
(b)the temporary residential status which has allowed her to remain in Australia (I infer, extended from time to time during the pandemic restrictions on travel), cannot be extended with any degree of certainty indefinitely; and
(c)no other person has come forward to offer to “sponsor” the mother and, as such, there is no likelihood of successfully applying for a parent visa to remain permanently in Australia.
The Father’s mental health issues
I accept the father did suffer, as he claims, a chronic injury when he “was hit in the back of the neck by a chunk of concrete” which damaged his neck. He now receives a disability pension. He says he has been in constant pain ever since. After being initially treated with morphine and ketamine, the father claims “the drugs became ineffective and through trial and error I found out that marijuana was good for chronic pain”. I deal with the evidence relating to the father’s use of medical marijuana below.
The mother, in her evidence, says the father has shown erratic and aggressive behaviour towards her, but to be fair, the limited relationship they had under the one roof (in two different countries and environments) makes it difficult for her to make a comparison. The father, who was represented at all times, did not provide any evidence from any health professional dealing with his current mental health. I can accept, at one level, a person who suffers chronic pain and is heavily medicated could demonstrate behavioural challenges. Add to those medical issues is the obvious frustrations and disappointment a person must deal with when, through no fault of their own, they are attacked and left with serious injuries from their early thirties.
This evidentiary deficiency, which the father could have covered with evidence from his treating health professionals, is even more troubling when the father reported to the family report writer (at paragraph 61) of being diagnosed with various mental disorders.
He claims the post-traumatic stress disorder was diagnosed in 2015. He told Mr H that “his mental health has stabilised and he denied having any thoughts of self harm or suicide” (paragraph 61).
Apparently the father was admitted to hospital in November 2018. Mr H refers, at paragraph 82 of his report, I infer, to records produced to him from the N Hospital (described as “collateral information”). No party, including surprisingly the Independent Children’s Lawyer, sought to tender the records from the Hospital. The father does not refer in any detailed way to this hospitalisation in his singular trial affidavit.
What I have therefore is Mr H’s summary of the Hospital records which is as follows (at paragraph 82):
82.[In late] 2018 the father presented to the emergency department within the [N Hospital]. It was reported that the father was clinically dehydrated and articulated a plan to complete suicide by inducing heatstroke. The hospital notes reflect that the father threatened to harm a staff member and presented as aggressive/argumentative.
In cross-examination by Counsel for the mother, Ms Gover, the father admitted he was “with anxiety”. Having the benefit of seeing him in the witness box, I have formed the strong impression that the father minimises his mental health challenges. Whilst I do not go so far as to make an inference (under the principles of Jones & Dunkel (1959) 101 CLR 298) that he produced no evidence from treating health professionals because they would not provide evidence to assist him, I do accept in part the opinion of Mr H that the father’s mental health is a “potential” risk. I cannot conclude, for lack of evidence that would have been available to the father but not adduced, that the risk is not a “substantive risk”. I have no corroborative evidence about whether or not the father “actively engages in therapy to address needs associated with mental health”, as suggested a paragraph 133 of the family report.
Of course, the hospitalisation was in late 2018 (prior to the birth of the child), but the father’s behaviour was sufficiently of concern to his own mother (who is very supportive of him) that she filed an application eighteen months later for the child to live with her – in part because of the father’s “poor mental health”. I regard this as a risk that I must take into account if the Court were to make the orders as he seeks.
For completeness, I do not accept the mother has “mental health” issues as the father asserts. The mother, as she sees the situation, is being held almost “captive” in a foreign country, unable to leave with her daughter and uncertain if she ever could. Her parental responsibilities in Country C and desire to return to her home there, I find, was an extraordinary pressure upon her, and yet apart from conflict with the father, there is no compelling evidence she has a history of mental illness in Country C or Australia.
Drug use
Mr H says (at paragraph 134) that he is “uncertain whether the father’s drug use presents a risk to X”. I accept the father did, as he admitted, grow marijuana in, it seemed for a time, his mother’s home. The paternal grandmother properly brought that enterprise to an end and I am not satisfied that the father continues to grow cannabis. I do not accept the mother, for a short period, was persuaded by the father to be a willing participant in the enterprise. The father’s attempts, in my view, to try and share the responsibility for his illegal acts with the mother, does him no credit.
The bigger ongoing issue is whether the father’s long previous history of the use of an illegal and addictive substance has entirely evolved into use of the substance under prescription for a medicinal purpose. The mother asserts, in effect, the father is masking his actual use of marijuana behind a cover of medicinal purpose. This is of course denied by the father.
I say on the evidence produced, including drug analysis through urine testing and the like, cannabinoids are being detected. As Exhibit 4 demonstrates, the father has a valid prescription for medicinal use of cannabis. It is not in dispute that the father also is prescribed other medication (see Exhibit 5).
However, in the absence of expert evidence from the health professional with the required expertise, I am not persuaded on the evidence and despite the submissions (and calculations) of Ms Gover, Counsel for the mother, that I can definitively find the father is using excessive quantities of cannabis perhaps in addition to the levels prescribed.
I have no concerns that the mother has any drug use issues now, although she conceded in cross-examination that she last used prohibited substances five years ago. I am not persuaded that the mother frequently used at times in Country C a local food item with some asserted side-effects, similar to drugs. The father’s attempts to compare the mother’s use of this plant with his own historical use of medication and illegal substances (before the prescribed medicinal cannabis), was simply unconvincing and bordering on desperate.
Before I deal with the parties’ competing proposals within the matrix of the primary and additional considerations, I will deal with the family report writer‘s opinion and his limited cross-examination next.
Family report
Mr H conducted interviews of the parties and observed X separately with all parties on 19 November 2020, before publishing a report dated 3 December 2020. Mr H (“the Court child expert”), identified the material he had read, including subpoenaed material (as earlier referred to in these Reasons).
After he prepared his report, and having observed that the report was based upon a belief the mother would be able to remain in Australia long-term, he was invited to give further consideration “about the benefits and the disadvantages” to the child if:
(a)she lived in Australia with the father and the mother returned to live in Country C; and
(b)she lived in Country C with the mother and the father remained in Australia.
(See Exhibit 1).
As I record, aware of this accepted difficult scenario, in cross-examination the Court child expert provided his opinion.
Of course, the Court is not bound to accept the opinions or recommendations of any Court child expert. In this case, at the time of observations, the child was nearly two years of age, and properly no interview of her was conducted.
However, where as in this case, the factual foundation identified by the Court child expert was broadly established on the evidence tested before me, it is appropriate to apply weight to the expert’s opinions.
It is not necessary to incorporate in these Reasons, significant portions of the family report, which all parties are familiar with, however I do note the following more significant observations and opinions arising from the report and Mr H’s cross-examination:
(a)Although Mr H did not identify any “immediate risks to X’s safety” in either parents’ care, based on the premise he understood to exist at the time of the interviews, he identified his major concerns in respect of relocation at paragraphs 25 and 26;
(b)The Court child expert noted the non-existent communication between the mother and the father, as well as the paternal grandmother (paragraphs 88 and 91);
(c)The father asserted at paragraph 94 that he does not communicate with the mother “due to her actions during the period they were in a relationship. He said that she perpetrated violence, controlled him and alienated him from others”. As I explain later in these Reasons, I do not accept the father’s description of the mother’s behaviour during the relationship;
(d)Although the paternal grandmother provided information about her concerns of the mother’s parenting (see paragraphs 99 and 100), this mostly related to a failure to provide “nutritious meals”, acknowledging the mother “cares for X, dresses her well and keeps her clean”;
(e)The Court child expert’s observations of the little girl with all parties separately were unremarkable and revealed the child warmly engaging with each person (paragraphs 110 to 129);
(f)The evaluation of the Court child expert, beginning at paragraph 130, identified that:
(i)X appears to have a positive relationship with all of her adult caregivers;
(ii)the co-parenting relationship is characterised “by mistrust“;
(iii)it is possible the child “has been exposed to violence during an important period of her development”;
(iv)although the report writer did evaluate the data available to him about the father‘s mental health (at paragraph 133) and the fathers alleged drug use (at paragraph 134), I have discreetly made findings above on these issues;
(v)for the reasons he sets out at paragraph 136, he acknowledged that his impression “that both parents were attempting to amplify concerns about the parent’s care of X… could be symptomatic of their recent separation and involvement in litigation”. I agree with this opinion. It is reflected in the negative tenor of the parties’ trial affidavits. I deal with the uncertainty expressed by Mr H (a paragraph 136) “about the mother’s willingness to support X’s relationship with the father” below;
(vi)for the reasons he set out of paragraph 138 of his report, the Court child expert also expressed uncertainty “about the father’s willingness to support X’s relationship with the mother”;
(vii)I agree with the expert’s observations at paragraph 139, and the material relied upon by the father and the paternal grandmother tested in cross-examination, supports a finding I now make that they do minimise “issues within their relationship or X’s relationship with them to avoid being criticised and/or to project a positive view of themselves to others”;
(viii)I accept the opinion of the Court child expert (at paragraph 141) that whilst the paternal grandmother “provided a more balanced view of X’s relationship with the mother” and “could identify the mother’s strengths as a parent”, the paternal grandmother, in failing to reveal the father’s issues in growing cannabis in her home and his suicidal ideation (and hospitalisation) in late 2018, does suggest, and on all the evidence I find, that the paternal grandmother has difficulty being firm with the father or being critical of his actions. As a mother, the paternal grandmother has witnessed, I find, the father’s past difficulties with drug use and the side effects arising from the workplace assault. It is only natural she would be sympathetic to her son’s plight. However, they are real issues that bear on the best interests of X;
(ix)the discussion by the Court child expert, a paragraphs 142 to 148, were clearly premised on a belief that the mother had a choice to remain in Australia, which is not the actual situation. As a result, the recommendation at paragraph 149 that “X lives with the mother in Australia” and the recommendations which follow were founded, without criticism of the Court child expert, on an unsafe premise. For these reasons, the opinions expressed under cross-examination must be given careful consideration;
(g)Under cross-examination, the following further relevant evidence was given by the Court child expert, namely:
(i)when invited by Mr Cooper, Counsel for the Independent Children’s Lawyer, to express a view on the scenario raised by Exhibit 1, the expert identified advantages and disadvantages and a continuing uncertainty about the mother’s capacity to support the father’s relationship with a child, before opining that he is “most concerned about X being separated from her mother”. Mr H also expressed concern about the father’s reluctance to support the mother’s immigration application;
(ii)under cross-examination by Ms Martinovic, Counsel for the father, Mr H, whilst excepting that he retained concerns about the mother and the father’s capacity to facilitate a relationship with the “absent” parent, and the effect on the child’s relationship with the father if the child were to live with the mother in Country C (for example a sense of abandonment; reduction in effective communication; how the father might grieve and demonstrate his feelings of loss from not seeing his daughter regularly), he maintained his major concern was with the child’s separation from the mother; and
(iii)under cross-examination by Ms Wardle, Counsel for the paternal grandmother, Mr H opined that wherever the child lives, it is important for X that her relationship with the paternal grandmother be preserved. Any “disconnection” with this loving grandparent will cause the child some distress he opined.
I accept generally the opinions expressed by Mr H and I agree that a separation of the child and the mother would be the most significant adverse effect the child could experience. It is, in my assessment, the primary reason why the father’s proposals are not in X’s best interests.
I will now, in a narrative style, make findings within the matrix of the primary and additional considerations prescribed by the statute, and when so doing, rely upon but do not repeat earlier findings discreetly made in these Reasons above.
primary considerations
It is in X’s best interests to have the opportunity to develop and maintain a meaningful relationship with both the mother and the father as she will, as has already been demonstrated in her short life, benefit from such relationships.
Section 60CC(2)(b) requires the court to consider “the need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence”, which is to be given greater weight than s 60CC(2)(a). In respect of risks, on all the evidence, I find that:
(a)the father’s past mental health challenges make him vulnerable to an episode, as occurred in 2018. The failure by him to provide any probative evidence makes it impossible to predict the probability of further events. Compliance with his prescribed medication and ongoing therapeutic support (if it even is occurring now) is critical. Although the father draws support from his mother (with whom he lives), it is a complete unknown how he might cope with being a parent living, as he says is his aim, independently of his mother. His own self-assessment is not conclusive;
(b)for the reasons already expressed, I regard the father’s use of cannabis as still somewhat uncertain. The interrelationship with excessive cannabis use (if that is or was to occur) and his mental health creates a further concern to the Court – which might have been capable of explanation if the father had offered evidence on this issue from, for example, the health practitioner prescribing his medication – including medicinal cannabis;
(c)I accept the mother holds negative views about the father. Practising T Religion, her faith it seems does not support same sex relations (permanent or casual). I must note however, in circumstances where the father does not identify any sexual preference, his view that the mother is “homophobic” (even if true) does not of itself direct attention to the father. It is not unusual for parents, either from a faith perspective or not, to have different views on such issues;
(d)whilst I am satisfied that at times during the relatively brief periods the parents were in the same household (either in Country C or the paternal grandmother’s home in Brisbane) the child has been exposed to parental conflict, I am far from satisfied she has witnessed physical altercations as a baby (recalling that since May 2020 the parents have not cohabited). Although the effect of such exposure is difficult to assess, since she was 18 months of age and after she returned to her mother’s primary care, there is no evidence of conflict at changeovers and each parent provided a happy environment individually for X;
(e)to the extent the father asserts the mother “abandoned” her older child, B, I reject such assertion; and
(f)I do not accept, as the father professes to believe, that the mother has the contacts to, or a desire to, cause the father serious harm if he were to enter Country C – as he has done on numerous occasions before separation. It was a very serious allegation made by the father which fails for lack of any reliable probative evidence to support his allegation.
As to the nature of relationships, I accept the observations of the Court child expert and the parties’ evidence that X has a warm and loving relationship with the father, mother, and paternal grandmother. In the home of the paternal grandmother, where the father lives, his younger brother Mr O also resides, as does the partner of the paternal grandmother. No evidence offered suggests to the Court X has other than normal happy relationships with them.
The mother has been isolated from her daughter B (now aged 17) and other extended family, including the mother’s father who has been, on the mother’s evidence, a supporter, now for over two years. When living in Country C, I accept the mother’s evidence that X had the opportunity to engage with her sibling and the mother’s extended family. I accept B lives more independently and if the mother returns to Country C with X, opportunities to have the child and B spend time together may be infrequent. However, I am satisfied the mother has a good relationship with B, (sending money for her support) and do not accept the father’s evidence the relationship between the mother and B is in some way fractured. I accept the mother does appreciate the importance of the sibship relationships – despite the difference in age between the two girls.
Clearly, the geographical difference that has existed at times since the child was born, coupled with the poor communication, has meant that as the primary carer the mother has essentially been making major long term decisions about the child. The time the child has spent with the father since separation has been prescribed by Court Order. I accept the father has wished to spend more time with X, but no negotiated increase has occurred.
I find the father has paid the bare minimum of child support since separation – reflective of his reliance upon Government benefits. When in Country C, the mother says and I accept the father did not send funds to her, but again, on his case he had little capacity to do so.
In the analysis of the evidence below, when comparing the competing proposals, I will deal with the significant issue raised by s 60CC(3)(d) –namely, the likely effect of any changes in the child’s circumstances – which really lies at the core of the determination in this difficult case.
The evidence supports a finding that if, as is inevitable, the parents live thousands of kilometres and a long plane journey apart, real practical difficulties and expense exist with the child spending time with the parent they do not live with, including;-
(a)The father’s steadfast position that he will not travel to Country C to spend time with the child because of fears of his safety. Objectively, not subjectively as the father’s belief system seems to be based upon, I am not satisfied he is at risk at all or that, as he claims, the mother said she will have him killed (which the mother denies); and
(b)The mother’s difficulties in being able to remain in Australia for other than short periods, if the child lives in Australia; and
(c)The lack of financial capacity each parent has to fund regular trips (with accommodation) to the other country or for the child to travel. At her current age, and for some years to come, it will be necessary for the child to be accompanied by an adult;
(d)Even if good internet connection is available and each parent can access that service with an appropriate and reliable device (hopefully larger than a screen on a mobile phone), maintaining regular communication for this couple who are not communicating effectively at an adult level, will be problematic. As Mr H opined, and I accept, for a child as young as X, communication through an electronic platform is not a real substitute for physical interaction.
As to the capacity of the parents and the paternal grandmother to provide “for the needs of the child including emotional and intellectual needs”, I find that:-
(a)The mother says she has intentions to support herself and the child in her home country, doing in effect whatever she needs to do. I find this mother is both resilient and resourceful. It is quite unfair to point to the excellent social welfare system in Australia (which the father benefits from and even permits him to undertake tertiary education), as a basis for an inference the mother (like other Country C citizens) will be worse off because her country does not offer similar government support. There is no evidence when the father commenced the relationship with the mother that she was destitute or homeless. She says and I accept her evidence, that she has family support;
(b)The father is entirely untested as to his capacity to care for X without the support of his mother. I admire his enthusiasm to become a “parenting coach” however when considering his capacity to meet the physical needs of his daughter, I note little evidence of independent living. Furthermore, I regard the father’s mental health issues and reliance on medication, which needs constant attention by his health professionals (whoever they may be), as combining to create a degree of uncertainty as to his capacity to meet consistently the child’s emotional needs – particularly where the reality will be, that the child would be separated from her primary attachment figure – the mother.
I do accept that there are less uncertainties, on the evidence, about the capacity of the paternal grandmother – but she does not seek that the child live with her, rather she supports the father’s application. However, the presence of even an experienced parent such as the paternal grandmother (who is currently employed and has other parenting responsibilities to Mr O) if X were separated from the mother, would, I find manifest distress to the child, in a similar way as discussed if the child lives with her father.
Section 60CC(3)(g) requires the Court to consider “the maturity, sex, lifestyle, and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents”. In this regard, the evidence is that the father was a frequent visitor to Country C and had contemplated conducting some form of business from that country. When the parents conceived this child, both parents should have contemplated a child born of that, albeit casual union, would be required to span two very different cultures, religious practices, and lifestyles. The tenor of the evidence and case run by the father, his mother, and to some extent the Independent Children’s Lawyer, is that Australia is a better country to raise this child. A Court in Australia should be very cautious of making such a comparison – even if there was probative evidence of an expert nature produced (and there was not in this case) considering a range of factors. My impression from the father is that he regards Country C is a third world country.
The mother practices T Religion – as is the majority of residents in Country C – and the father’s attempt to criticise the mother’s faith is a concern. The father says he speaks little of the Country C language, and if the child lives with him in Australia, I have no confidence the father can access regular immersion for this child in the T Religion faith, the Country C language and its culture. The mother identified the availability of schools near her home in Country C, where the child can continue to develop her English speaking skills. The mother has revealed in this case, she is conversational in English and I accept she has a greater capacity to assist the child to develop and maintain the child’s English skills, than the father has to develop and maintain the child’s Country C language skills.
I do not ignore that if the child lives in Australia, there are parts of the Australian culture and traditions which the father will be able to expose the child to regularly.
As to the attitude to the child and the demonstrated responsibilities of each parent to parenting, I accept both parents, in the time the child has remained in Australia, have individually done their best – although the initial actions of the father to withhold the child (when she was being breast fed at the time) raises some concerns about his capacity to put the child’s needs above his understandable desires as a father.
The compliance since Orders were made with those Orders demonstrates in some ways that each parent supports the child’s relationship with the other parent. The distance between the homes that will be created (by reason of the laws in Australia relating to the mother’s ability to reside permanently in this country) will mean that regular physical time between the child and the non-resident parent will only be achievable if the parents can afford:-
(a)The mother travelling to Australia (if the child lives with the father) and being accommodated here from time to time. The mother’s proposals at least seek to give some thought to that eventuality;
(b)In comparison, if the child lives with the mother in Country C, and the father continues to be unwilling to travel there, the only time he can spend with X would be in Australia. As earlier noted, the father makes no proposals as to how these trips would be funded or facilitated by him (including for an accompanying adult). The paternal grandmother, at least, indicated if the child was to be permitted to live in Country C, she would make an effort to visit her granddaughter and the mother said, and I accept, that she would support contact visits during the periods the paternal grandmother and/or the father were in Country C.
There are no family violence orders, and I rely on earlier findings as to allegations each parent makes against the other of conflict during the brief and interrupted relationship where they were living under one roof.
I regard it as relevant to make some findings about enforceability of orders made by this Court, in Country C. In that regard, without any real assistance from the father or paternal grandmother, the mother offered some expert evidence which remains unchallenged.
As the affidavit of the mother’s solicitor Ms Danks-Brown filed 23 September 2021 sets out, difficulties were experienced in getting the funding (by Legal Aid) and then the consent of the father to the appointment of a single expert to provide an opinion about the enforceability of any orders of this Court in Country C if the child is permitted to return to Country C with the mother. As I had indicated to the parties at the Case Management Hearing on 2 July 2021, it would likely be of assistance to the Court, in circumstances where Country C is not a signatory to the Hague Convention, for evidence of this nature from a qualified legal practitioner to be produced.
Although I accept difficulties were experienced in having the Country C lawyer, Mr Q sign an Affidavit swearing to his opinions set out in the report dated 22 September 2021, for reasons which are revealed in the transcript, I allowed the mother to rely upon Mr Q’s evidence and he was not required for cross examination. The effect of this evidence is that:
(a)The Country C legal system applies the ‘Civil Law’ or ‘Continental Law’ principles (found in European countries such as France, Germany and Holland) rather than the Australian system originating from the United Kingdom and known as the ‘Common Law’ system;
(b)The court that has the authority to make stipulations regarding the recognition of children “out of wedlock”, for those who practice T Religion, is the religious court. However, as the father does not practice T Religion, the jurisdiction in respect of the child could be enlivened in an Country C District Court;
(c)Foreign parenting orders cannot be “registered” in Country C, however at paragraph 13.1 of the letter of advice Mr Q opines:
13.1“Whilst a foreign judgment will not be directly enforced in [Country C], a foreign judgment is accorded due weight and respect as a matter of comity and judicial deference in litigation concerning the subject matter of the judgment. The distinction is made in a fundamental aspect of [Country C] law promoting sovereignty in matters within [Country C]’s territory. In children’s matters the best interests of the child are of paramount importance.”
The totality of the evidence of Mr Q, who I find was qualified to offer the expert opinion, is that if the child lived in Country C and the mother did not comply with the Orders I make now, in a practical sense, there is little the father could do to “force” the mother to leave Country C and bring the child to Australia to spend time with the father, at least because:
(a)The parties have shown no inclination to reach agreement and therefore, the prospects of achieving a “notarised” parenting agreement as reference to by Mr Q is remote; and
(b)Although I am satisfied if the father was in Country C he could seek access to a District Court seeking orders in relation to the child, his refusal to enter Country C and his capacity to pay for legal representation in that country will be significant obstacles.
Those difficulties are a factor I take into consideration in the exercise of my discretion.
THE Critical finding
I have, during the course of these Reasons, identified a number of factors upon which findings have been made in an attempt to illuminate the pathway to my decision.
Although in many respects the parties construed this case as a “relocation” case, in my view, this is essentially a contested residence case because the mother has not been able to remain in Australia permanently. I would accept if the child remains living in Australia with the father, then the mother would do whatever she can to visit regularly and may seek to apply for residency, however there is no way of assessing her prospects of success in any such application without a sponsor. The father and the paternal grandmother are not prepared to assist the mother in that application as sponsors.
I find that the father is an untested primary carer and may still have struggles potentially with his mental health. The use of medication (including medicinal cannabis) if maintained and supported by other therapy may reduce his vulnerability however similar concerns about the mother do not arise in my view.
Mr H, when aware of the inability of the mother to remain predominantly in Australia, continued to express his major concern is the effect on the child of separation from the mother, who has been her primary carer since birth. I also find this is the major (but not only) concern with the father’s proposal.
The factor which moves the discretion I have to exercise in favour of the mother’s case in this difficult and less than optimal factual context, is that I find that whilst the child will suffer distress if separated from the father with no regular time with the father and paternal grandmother, that distress would be much more significant if the child were separated from the mother with no regular time with the mother.
Parental responsibility
I am satisfied that as the child will be permitted to return with the mother to Country C and where parental communication is ineffective, the mother should be vested with sole parental responsibility for major long term issues (as defined by the Act), but with an obligation to consult the father before a decision is made by her, other than in an emergency.
Form of orders
The Court has no evidence currently as to when the child can return to Country C – which is very much dependent on the mother’s intentions and her immigration status. The father’s failure to engage in any way with the mother’s proposal if the child were permitted to live in Country C is an issue that I need him to address. Whilst the form of the mother’s orders could be made, I regard it as in the best interests of the child to allow the father and paternal grandmother a brief opportunity to consider these Reasons, and if they wish, to have an opportunity to make further submissions, preferably orally, relating to:
(a)When the child should be permitted, in accordance with these Reasons, to return to live in Country C; and
(b)Whether it is in the child’s best interests to expand time spent with the father and paternal grandmother before the child returns to Country C to include overnight time; and
(c)Other variations to the form of order proposed by the mother, and being Appendix One to these Reasons.
I will accept any further oral or written submissions, including of course from the Independent Children’s Lawyer, on the form of order at 2.15pm on Monday, 10 October 2022.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 29 September 2022
APPENDIX ONE
If the child returns to Country C with the mother
Live with
1.That the child live with the mother.
2.That the mother be at liberty to return to Country C with the child.
Parental responsibility
3.That the parents have equal shared parental responsibility for the child and for that purpose the parents be jointly responsible for making decisions about major long term issues in respect of the child including but not limited to:
(a)The child’s future education;
(b)The child’s health issues;
(c)Changes to the child’s living arrangements which might make it significantly more difficult of the child to spend time with either parent.
4.The parties shall consult with each other about decisions to be made in the exercise of their shared parental responsibility as follows:
(a)They shall inform the other party about decisions to be made an any other information relevant to that decision along with the position in relation to the issue and seek the other party’s views on the subject;
(b)Within two weeks the other party shall response in writing setting out their views and any other information relevant to those views (or as soon as possible if it is a shorter timeframe).
(c)They shall consult with each other on terms that they agree to; and
(d)They shall make a genuine effort to come to a joint decision.
(e)If after taking the above steps, the parties are unable to agree, then the final decision shall be made by the mother.
Time with the father
5.That the paternal grandmother be at liberty to spend time with the child at such times as the child is spending time with the father.
6.That the father shall provide the mother with at least fourteen (14) days written notice of his proposed travel dates and upon receipt of such notice the mother shall ensure that the child is available for time with the father within those travel dates;
7.That the father spend time with the child as agreed between the parties by failing agreement as follows:
Until X commences kindergarten:
8.At such times as the father is able to travel to Country C, as often as practicably possible:
(a)from 9.00am to 5.00pm each day;
(b)Not less than two weeks each travel period; and
(c)Not less than three times per year.
After X commences kindergarten – July 2023
9.At such times as the father is able to travel to Country C, and as often as possible:
(a)From 10.00am on Friday to 3.00pm on Sunday;
(b)From Monday to Thursday from 10.00am to 5.00pm;
(c)Not less than two weeks each travel period; and
(d)Not less than three times per year.
After X Commences School – July 2025
10.At such times as the father is able to travel to Country C, and as often as possible:
(a)From after school on Monday until before school on Wednesday;
(b)From after school on Thursday until 3.00pm on Sunday;
(c)Not less than two weeks each travel period;
(d)Not less than three times per year.
Telephone/video time
11.That at such times as the child is in the mother's care, the father be at liberty to contact the child by telephone, social media, or videocall between I 0.00am and 10.30am (Brisbane time) until the child commences school.
12.Once X commences school the father shall be at liberty to contact the child by telephone, social media, or videocall between 4.30pm and 5.00pm Country C time (2.30pm to 3.00pm Brisbane time).
13.That when the child is in the father's care the mother shall be at liberty to contact the child by telephone, social media, or video call between 10.00am and 10.30am (Brisbane time).
14.That the parties are to facilitate telephone/social media/ or videocall time upon the child’s request at all times.
15.That the parties shall afford the child privacy whilst communicating with either parent.
Special occasions
Christmas
16.If Christmas Day is to fall on a day that the child is not spending time with the father then the father shall call the child on the telephone/social media/video call at 3.00pm and 4.00pm Country C time (5.00pm and 6.00pm Brisbane time).
Easter Sunday
17.If Easter Sunday is to fall on a day that the child is not spending time with the father then the father shall call the child on the telephone/social media/video call at 3.00pm and 4.00pm Country C time (5.00pm and 6.00pm Brisbane time).
Father’s Day
18.If Father’s Day is to fall on a day that the child is not spending time with the father then the father shall call the child on the telephone/social media/video call between 3.00pm and 4.00m Country C time (5.00pm and 6.00pm Brisbane time).
Father’s birthday
19.If the father’s birthday is to fall on a day that the child is not spending time with the father then the father is to call the child between 3.00pm and 4.00m Country C time (5.00pm and 6.00pm Brisbane time).
Mother’s birthday
20.If the mother’s birthday is to fall on a day that the child is not spending time with the mother then the mother is to call the child between 3.00pm and 4.00m Country C time (5.00pm and 6.00pm Brisbane time).
Paternal Grandmother’s birthday
21.If the paternal grandmother's birthday is to fall on a day that the child is not spending time with the father then the father and paternal grandmother are to call the child between 3.00pm and 4.00m Country C time (5.00pm and 6.00pm Brisbane time).
22.That changeover occur at the mother's residence.
Specific Orders
23.That each parent be responsible for ensuring that the child attend all schooling, training sessions, or extracurricular activities that the child may be enrolled in and required to attend whilst in their care:
24.hat each party be permitted to attend any schooling or extracurricular activities or events to which parents are usually invited.
25.That in the event that the child suffers any injury, illness or emergency whilst in either party’s care, that parent shall be required to inform the non-caring parent as soon as reasonably practicable, but not more than twelve (12) hours later.
26.That the parties hereby authorise the child’s treating physicians, medical practitioners, school and care providers etc to release such information concerning the child as either parent may request at their own respective cost and these Orders shall be of sufficient evidence to constitute that authority.
27.That the parents be restrained from denigrating each other in the presence, sight, or hearing of the child or knowingly permitting any other person to do so.
28.That the parties will keep each other informed of their residential address, phone numbers, and email address and inform the other parties of any change within 48 hours of such change occurring.
29.That the father be restrained from using any illegal or non-prescribed substances at such time as the child is in his care.
30.That within 48 hours of the date of this order the parties shall do all things necessary to effect the removal of the child’s name from the Airport Watchlist.
31.That within 48 hours of the date of this order the father shall deliver the child's passport to the mother.
32.That the independent children’s lawyer be discharged.
33.That all previous orders be discharged.
IF THE CHILD REMAINS IN AUSTRALIA WITH THE MOTHER
Live with
1.That the child live with the mother.
Parental responsibility
2.That the parents have equal shared parental responsibility for the child and for that purpose the parents be jointly responsible for making decisions about major long term issues in respect of the child including but not limited to:
(a)The child’s future education;
(b)The child’s health issues;
(c)Changes to the child’s living arrangements which might make it significantly more difficult of the child to spend time with either parent.
3.The parties shall consult with each other about decisions to be made in the exercise of their shared parental responsibility as follows:
(a)They shall inform the other party about decisions to be made an any other information relevant to that decision along with the position in relation to the issue and seek the other party’s views on the subject;
(b)Within two weeks the other party shall response in writing setting out their views and any other information relevant to those views (or as soon as possible if it is a shorter timeframe).
(c)They shall consult with each other on terms that they agree to; and
(d)They shall make a genuine effort to come to a joint decision.
(e)If after taking the above steps, the parties are unable to agree, then the final decision shall be made by the mother.
Time with the father
4.That the paternal grandmother be at liberty to spend time with the child at such times as the child is spending time with the father.
5.That the father spend time with the child as agreed between the parties by failing agreement as follows:
Commencing in January 2022 - When X is three (3) years old.
6.From 9.00am on Sunday until 9.00am on Monday each week; and
7.From 9.00am on Thursday until 5.00pm on Thursday each week.
Commencing in July of 2022
8.From 9.00am on Sunday until 3.00pm on Tuesday each week.
Telephone/video time
9.That at such times as the child is in the mother's care, the father be at liberty to contact the child by telephone, social media, or videocall between 10.00am and 10.30am (Brisbane time) until the child commences school.
10.Once X commences school the father shall be at liberty to contact the child social media, or videocall between 4.30pm and 5.00pm Brisbane time.
11.That when the child is in the father's care the mother shall be at liberty to contact the child by telephone, social media, or video call between 4.30pm to 5.00pm Brisbane time.
12.That the parties are to facilitate telephone/social media/ or videocall time upon the child's request at all times.
13.That the parties shall afford the child privacy whiles communicating with either parent.
Special Occasions
Christmas
14.That the child spend from 4.00pm on Christmas Eve each year until 12.00pm on Christmas Day with the father.
Easter
15.In even numbered years from 3.00pm on the afternoon of good Friday until 10.00am on Easter Sunday with the father;
16.In odd numbered years from 10.00am on Easter Sunday until 5.00pm on Easter Monday with the father.
Mother’s Day
17.If Mother's Day should fall on a day that the child is not spending time with the mother then the child shall spend time with the mother from 9.00am to 5.00pm
Father’s Day
18.If Father’s Day is to fall on a day that the child is not spending time with the father then the child shall spend time with the father form 9.00am to 5.00pm.
Father’s birthday
19.If the father's birthday is to fall on a day that the child is not spending time with the father then the child shall spend time with the father from 3.00pm to 7.00pm.
Mother’s birthday
20.If the mother’s birthday is to fall on a day that the child is not spending time with the mother then the child shall spend time with the mother from 3.00pm to 7.00pm.
Paternal Grandmother’s birthday
21.If the paternal grandmother’s birthday is to fall on a day that the child is not spending time with the father then the father and paternal grandmother shall spend time with the child from 3.00pm – 7.00pm.
School holidays
22.Once the child commences school then for school holidays the usual arrangements suspended and the following provisions will apply to the father:
(a)For the gazetted school holidays in between school terms:
(i)In the even numbered years for the first half of the school holidays commencing on the First Saturday at 9.00am and ending on the second Saturday at 5.00pm;
(ii)In the odd numbered years commencing with Second Saturday at 5.00pm and ending on the last Sunday at 5.00pm.
(b)For the Christmas holiday period on an alternate week basis commencing at 9.00am on the first Saturday and ending the following Saturday at 5.00pm and so forth until the end of the holidays.
Changeovers
23.That changeover occur at the J Shopping Centre, K Street, Brisbane.
Specific Orders
24.That each parent be responsible for ensuring that the child attend all schooling, training sessions, or extracurricular activities that the child may be enrolled in and required to attend whilst in their care:
25.That each party be permitted to attend any schooling or extracurricular activities or events to which parents are usually invited.
26.That in the event that the child suffers any injury, illness or emergency whiles in either party’s care, that parent shall be required to inform the non-caring parent as soon as reasonably practicable, but not more than twelve (12) hours later.
27.That the parties hereby authorise the child's treating physicians, medical practitioners, school and care providers etc to release such information concerning the child as either parent may request at their own respective cost and these Orders shall be of sufficient evidence to constitute that authority.
28.That the parents be restrained from denigrating each other in the presence, sight, or hearing of the child or knowingly permitting any other person to do so.
29.That the parties will keep each other informed of their residential address, phone numbers, and email address and inform the other parties of any change within 48 hours of such change occurring.
30.That the father be restrained from using any illegal or non-prescribed substances at such time as the child is in his care.
31.That the independent children’s lawyer be discharged.
32.That all previous orders be discharged.
IF THE CHILD REMAINS IN AUSTRALIA AND THE MOTHER IS UNABLE TO REMAIN IN AUSTRALIA
Live with
1.That the child live with the father for as long as he lives in the home of the paternal grandmother.
2.That if the father leaves the home of the paternal grandmother, then the child live with the paternal grandmother.
3.That the father be at liberty to spend time with the child as can be facilitated by the paternal grandmother.
Parental responsibility
4.That the parents have equal shared parental responsibility for the child and for that purpose the parents be jointly responsible for making decisions about major long term issues in respect of the child including but not limited to:
(a)The child’s future education;
(b)The child’s health issues;
(c)Changes to the child’s living arrangements which might make it significantly more difficult for the child to spend time with either parent.
5.The parties shall consult with each other about decisions to be made in the exercise of their shared parental responsibility as follows:
(a)They shall inform the other party about decisions to be made an any other information relevant to that decision along with the position in relation to the issue and seek the other party's views on the subject;
(b)Within two weeks the other party shall response in writing setting out their views and any other information relevant to those views (or as soon as possible if it is a shorter timeframe).
(c)They shall consult with each other on terms that they agree to; and
(d)They shall make a genuine effort to come to a joint decision.
(e)If after taking the above steps, the parties are unable to agree, then the final decision shall be made by the mother.
Time with the mother
6.That the child spend time with the mother as can be agreed between the parties, but failing agreement:
7.At such times as the mother is able to travel to Australia, as often as practicably possible:
(a)from 9.00am Sunday until 3.00pm Friday each week;
(b)Not less than two weeks each travel period; and
(c)Not less than three times per year.
Telephone/video time
8.That at such times as the child is in the father's care, the mother be at liberty to contact the child by telephone, social media, or videocall between 10.00am and 10.30am (Brisbane time) until the child commences school.
9.Once X commences school the mother shall be at liberty to contact the child by telephone, social media, or videocall between 4.30pm and 5.00pm Brisbane time.
10.That when the child is in the mother's care the father shall be at liberty to contact the child by telephone, social media, or video call between 4.30pm to 5.00pm Brisbane time.
11.That the pa1iies are to facilitate telephone/social media/or videocall time upon the child's request at all times.
12.That the parties shall afford the child privacy whiles communicating with either parent.
Special occasions
Christmas
13.If Christmas Day is to fall on a day that the child is not spending time with the mother then the mother shall call the child on the telephone/social media/video call between 3.00pm and 4.00pm Country C time (5.00pm and 6.00pm Brisbane time).
Easter Sunday
14.If Easter Sunday is to fall on a day that the child is not spending time with the mother then the mother shall call the child on the telephone/social media/video call between 3 .OOpm and 4.00pm Country C time (5.00pm and 6.00pm Brisbane time).
Mother’s Day
15.If Mother's Day is to fall on a day that the child is not spending time with the Mother then the Mother shall call the child on the telephone/social media/video call at 3.00pm and 4.00pm Country C time (5.00pm and 6.00pm Brisbane time).
Father’s birthday
16.If the father’s birthday is to fall on a day that the child is not spending time with the father then the father is to call the child between at 3.00pm and 4.00pm Country C time (5.00pm and 6.00pm Brisbane time).
Mother’s birthday
17.If the mother’s birthday is to fall on a day that the child is not spending time with the mother then the mother is to call the child at 3.00pm and 4.00pm Country C time (5.00pm and 6.00pm Brisbane time).
Paternal Grandmother's Birthday
18.If the paternal grandmother's birthday is to fall on a day that the child is not spending time with the father then the father and paternal grandmother are to call the child between 3.00pm and 4.00pm Country C time (5.00pm and 6.00pm Brisbane time).
Changeovers
19.That changeover occur at the J Shopping Centre, K Street, Brisbane.
Specific orders
20.That each parent be responsible for ensuring that the child attend all schooling, training sessions, or extracurricular activities that the child may be enrolled in and required to attend whilst in their care:
21.That each party be permitted to attend any schooling or extracurricular activities or events to which parents are usually invited.
22.That in the event that the child suffers any injury, illness or emergency whiles in either party's care, that parent shall be required to inform the non-caring parent as soon as reasonably practicable, but not more than twelve (12) hours later.
23.That the parties hereby authorise the child's treating physicians, medical practitioners, school and care providers etc to release such information concerning the child as either parent may request at their own respective cost and these Orders shall be of sufficient evidence to constitute that authority.
24.That the parents be restrained from denigrating each other in the presence, sight, or hearing of the child or knowingly permitting any other person to do so.
25.That the parties will keep each other informed of their residential address, phone numbers, and email address and inform the other parties of any change within 48 hours of such change occurring.
26.That the father be restrained from using any illegal or non-prescribed substances at such time as the child is in his care.
27.That the parties are to share the costs of the mother's travel to Australia equally, including but not limited to:
(a)Flights
(b)Accommodation; and
(c)Visa and immigration fees.
28.That the independent children's lawyer be discharged.
29.That all previous orders be discharged.
APPENDIX TWO
Parental responsibility
1.That the Father have sole parental responsibility for long term issues regarding the child X born in 2018 (“the child”).
Live with/time with orders
2.That the child lives with the father.
3.That the mother is to provide the father of her travel itinerary, one (1) month before she is to travel to Australia.
4.That the child spend time with the mother whilst she is in Australia at all such times as may be agreed, but failing agreement, as follows:
(a)That the child will spend time with the mother in each alternate weekend commencing from after school on a Friday until before school on the following Monday.
Telephone communication
5.That the child shall communicate with the mother by telephone call/Skype/Facetime or other means of electronic communication each Wednesday night between 6.00pm and 7.00pm (Queensland Time) and in relation to such communication the father shall:
(a)Ensure that the child is available to receive the telephone call/Skype/Facetime or other means of electronic communication.
(b)Arrange for the child to telephone/Skype/Facetime or other means of electronic communication the other parent on the following night, if for any unforeseen circumstance, the child misses the telephone call/Skype/Facetime or other means of electronic communication from the father; and
(c)Ensure that the child has age-appropriate privacy during the conversation.
Collection and delivery
6.That changeover will be at the child's school, or at a place agreed to by the parties.
Specific issues orders
7.That the mother and Father shall:
(a)Keep the other parent informed at all times of their residential address, mobile and landline contact telephone number and of any changes to the same within forty-eight (48) hours of any change occurring.
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child within 48 hours of the date of these Orders and within 48 hours of any change to the above.
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.
(d)That this order is sufficient authority for the child’s school/s to give each party information about the child's education progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child at the requesting party’s cost.
8.That each parent is at liberty to attend any school event such as parent teacher interviews, sports carnivals, assemblies, fetes, musical or drama productions, awards functions and participate in any volunteer capacity in which parents may ordinarily be at liberty to participate at the child’s school/s including tuck shop/canteen duties, clean up days and excursions.
9.That during the time the child is with either parent, that parent shall:
10.Respect the other parent's privacy and not question the child about the personal life of the other parent.
11.Speak of the other parent respectfully and refer to the other parent as “mum”, “dad”, “mummy” or “daddy” as the case may be: and
12.Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent to or in the presence of the child.
13.That each of the parties are restrained from using physical discipline on the child and will do all acts and things to ensure that no third party uses physical discipline on the child.
14.That each of the parties are restrained from discussing these proceedings with or in the presence of or the hearing of the child.
15.That the parents be restrained, and an injunction be granted restraining the parents from using or being affected by illegal or illicit drugs or alcohol above the legal limit for driving whilst in the presence of the child.
16.That the parents immediately remove the child from any situation in which illicit or illegal drugs are being used or sold by other parties or alcohol is being consumed above the legal limit for driving.
P Pty Ltd Website
17.That for the purposes of communicating and sharing information regarding the child the parties will continue to use the services of P Pty Ltd and each party shall pay any subscription fees associated with this themselves.
18.That both parties shall utilise the services of P Pty Ltd for the following:
(a)to keep the other informed of an email address and contact telephone number and shall update their details within seven (7) days of any change occurring.
(b)to inform the other parent of any injury or illness within twenty-four (24) hours and of any treatment plan for the children as directed by the children’s doctor or medical professional and inform the father when the illness has subsided; and
(c)to communicate with each other at least once each week for the purposes of exchanging any information relevant to the children’s education, health and welfare (including behaviour), developmental milestones and any significant events in the children’s lives, including extra-curricular activities.
Conduct of the Parents
19.That during the time the child are with either parent, the parent shall:
(a)respect the privacy of the other parent and their family and not question the children about the personal life of the other parent;
(b)speak of the other parent and their family respectfully;
(c)not denigrate or insult the other parent or their family in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent or their family in the hearing or presence of the child;
(d)not attempt to discuss any issues in dispute between the parents, with the child, or allow a third party to do so;
(e)not attempt to discuss any adult issues with the children, or allow a third party to do so;
(f)not expose the child to cigarette smoke in confined spaces, including but not limited to inside residences or motor vehicles;
(g)not take illicit drugs whilst caring for the children or twenty-four (24) hours prior to caring for the child; and
(h)not expose the child to any person who they reasonably believe to be under the influence of illicit drugs.
20.In the event of any dispute as to the interpretation, implementation or enforcement of this order including any claim by a party that it should be varied the parties shall first attend family dispute resolution (FDR) with a FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment the party raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other party within 14 days.
21.That until further order the Mother MS ALDEN, her servants or agents, be and are hereby restrained from removing or causing the removal of the child X born in 2018 from the Commonwealth of Australia.
22.That until further order each party, MS ALDEN born in 1986 (“the Mother”) and MR BOURNE born in 1988 (“the Father”) their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child X born in 2018 from the Commonwealth of Australia for a period of 10 years.
23.AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s names on the Watchlist for the said period, or until the Court orders its removal.
Alternate Orders
24.That if the mother remains in Australia after 6 October 2021, the child X born in 2018 live with the father.
25.That the Father have sole parental responsibility for long term issues regarding the child:
(a)Schooling of the children including decisions about the type of schooling, and the schools at which the children will attend;
(b)Surgery and hospitalisation and medical treatment for any serious injury, illness or disability;
26.The Mother and Father have equal shared parental responsibility for the following major long term issues of the children, including but not limited to:
(a)Decisions about religion and religious instruction of and observance by the children; and
(b)Decisions about the children playing or being involved in any sporting, cultural, artistic or community activities including competition, training or meetings.
27.The Mother and Father have sole parental responsibility for the day-to-day care, welfare and development of the child whilst she is in their respective care.
28.That the mother spend time with the children at all such times as agreed to between the parties but failing agreement as follows:
(a)On each alternate weekend, commencing from 4.30pm Friday until 7.00am Monday, with changeover at McDonald's.
29.That in the school holidays, the mother spends time with the children as follows:
(a)with the father having the first half in odd years and the second half in even years and the mother having the second half in odd years and the first half in even numbered years,
(b)That the children are at liberty to telephone their parents if they are not with the parent on the parent’s birthday.
(c)Changeover shall occur at McDonalds, on school holidays at 4.30pm on a day equal to halfway through the holidays.
APPENDIX THREE
A.The preferred Orders of the Second Respondent is that the child live in Australia and are as follows:
Parental Responsibilities
1.That the Applicant and First Respondent have equal shared parental responsibility for X (the child) born in 2018 and for that purpose the parents be jointly responsible for making decisions about major long term issues in respect of the child including but not limited to:
(a)The child’s future education;
(b)The child’s health issues; and
(c)Changes to the child’s living arrangements which might make it significantly more difficult for the child to spend time with either parent.
2.That the parties shall consult with each other about decisions to be made in the exercise of their shared parental responsibility as follows:
(a)They shall inform the other party about decisions to be made and any other information relevant to that decision along with their position in relation to the issue and seek the other parties views on the subject;
(b)Within two weeks the other party shall respond in writing setting out their views and any other information relevant to those views (or as soon as possible if it is a shorter timeframe).
(c)They shall consult with each other on terms that they agree to; and
(d)They shall make a genuine effort to come to a joint decision.
(e)That notwithstanding the provisions of clause 2:
(i)The Mother shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her; and
(ii)The Father shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with him.
Spend time arrangements
3.That the living arrangements for the child shall be as agreed between the parties but, failing agreement, as follows:
(a)From 1 October 2021 live with the father and spend time with the mother:
(i)Each Tuesday, Saturday and Sunday from 9.00am to 5.00pm.
(b)From 1 January 2022 live with the father and spend time with the mother:
(i)Each Tuesday from 9.00 am to 5.00pm; and
(ii)Each Saturday from 9.00 am to Sunday at 5.00pm.
(c)From 1 April 2022 live with the father and spend time with the mother:
(i)Each Tuesday from 9.00 am to 5.00pm; and
(ii)Each Friday from 4.00 pm to Sunday at 5.00 pm.
(d)From 1 June 2022 live with the father and spend time with the mother from:
(i)Each Tuesday from 9.00 am to 5.00pm; and
(ii)Each Friday at 4.00 pm to Monday at 9.00 am.
(e)From 1 January 2023 live with each party in alternating weeks with changeover to occur each Monday at 5.00pm.
4.The paternal grandmother shall spend time with the child during the time the child is with the father by agreement.
5.Should the mother leave Australia temporarily:
(a)On her return the mother shall recommence spending time and communicate with the child using the same time frames (being three months for each frame) as those for the mother in Order 3(a) to 3(e).
Changeover
6.That changeover will occur at the entrance to J Shopping Centre, K Street, Brisbane.
Telephone/video/social media
7.That when the child is spending time with the mother in accordance with Order 3 the father and/or the paternal grandmother shall be permitted to call, skype, video call or use any social media to contact the child on Monday and Saturday between 10.00am and 10.30am until the child commences school if the child has not spent time with them on that day. Once school commences then between the hours of 4.30 pm and 5.00 pm.
8.That the parties are to facilitate communications at the child’s request at all times.
9.The parties shall afford the child privacy whilst communicating with either parent and neither party shall record those conversations.
10.The parties shall ensure that the communicating device for the purpose communication is operational to allow such communication to occur.
School holidays:
11.Once the child commences school then for school holidays, the normal arrangements will be suspended and the following provisions will apply to the mother:
(a)For the gazetted school holidays in the Christmas period, notwithstanding Order 4(b)(ii) of these Orders:
(i)In even numbered years commencing with the first Saturday at 9.00am and then to the third Saturday that follows thereafter at 5.00pm.
(ii)In odd numbered years commencing with the fourth Saturday (being the same Saturday in 1l(a)(i) at 9.00am and then to the last Saturday that follows thereafter at 5.00pm.
Special occasions:
12.Any provision under this Order that is inconsistent with this section shall be suspended so that the mother and the father shall spend time and communicate with the child as per the following special occasions:
13.For the mother during the Christmas period:
(a)In even numbered years from Christmas Eve at 9.00am to Christmas Day at 2.00pm.
(b)In odd numbered years from Christmas Day at 2.00pm to Boxing Day at 5.00pm.
14.For the mother during the Easter period:
(a)In even numbered years from the Thursday prior to Good Friday at 9.00am to Easter Saturday 5.00pm.
(b)In odd numbered years from Easter Saturday at 4.00pm to Easter Monday at 5.00pm
15.Mother’s Day and Father’s Day:
(a)That, should Mother’s Day fall on a weekend when the mother is not spending time with the child, then the child is to be returned to the mother at 9.00am.
(b)That, should Father’s Day fall on a weekend when the father is not spending time with the child, then the father is to spend time with the child on that day from 9.00am to 5.00pm.
16.Father’s birthday:
(a)That, should the father's birthday fall on a day the child is not spending time with the father, then the father is to spend time with the child from 9.00am to 5.00pm.
17.Mother’s birthday:
(a)That, should the mother’s birthday fall on a day the child is not spending time with the mother, then the mother is to spend time with the child from 9.00am to 5.00pm.
18.Paternal grandmother’s birthday:
(a)That, should the paternal grandmother’s birthday fall on a day the child is not spending time with the father, then the father and the paternal grandmother is to spend time with the child from 4.00pm to 7.00pm.
Orders for parental communication:
19.That each parent shall ensure that the child attend all and any classes, training sessions, rehearsals or any other activity with respect to extracurricular activities and commitments that they may be enrolled in and required to attend whilst in their care.
20.That when the child is in either of the parents’ care he will ensure that the child attends all and any classes, training sessions, rehearsals or any other activity with respect to extracurricular activities and commitments that she may be enrolled in and required to attend.
21.That each party be permitted to attend any school assembly, parent/teacher interview, sporting event or any other school function that parents may typically attend.
22.That, in the event the child suffers any significant injury, illness or emergency whilst in either party’s care, the non-caring party shall be notified by the caring party as soon as is practicable, but in any event not later than 12 hours, of the nature of the injury, illness or emergency and of the name of the treating hospital and/or medical physician.
23.That the parents hereby authorise the child’s treating physicians, medical practitioners, school and care providers to release such information concerning the child as either may request at their own respective cost and these Orders shall be of sufficient evidence of and constitute, this authority.
24.That the parents are hereby restrained from denigrating each other in the presence, sight or hearing of the child or knowingly permit any other person to do so.
25.That the parties will keep each other informed of their residential address, phone numbers and email addresses and inform the other parties of any change within 48 hours of such change occurring.
26.The child shall attend a daycare, kindergarten, pre-school or school within 15 kilometers of the paternal grandmother’s residence.
27.That, until further Order the mother, Ms Alden, born in 1986, her servants and/or agents be and are hereby restrained by injunction, and irrespective of consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove the child, X, born inr 2018, from the Commonwealth of Australia.
28.That the Marshall of 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 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.
29.That the Court requests that the Australian Federal Police place the names of the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.
30.The Independent Children's Lawyer be discharged.
31.All previous Orders shall be discharged.
Alternatively:
B.Should the child live in Country C:
Parental responsibilities
1.That the father and the mother have equal shared parental responsibility for the child, X (the child) born in 2018, and for that purpose the parents be jointly responsible for making decisions about major long term issues in respect of the child including but not limited to:
(a)The child’s future education;
(b)The child’s health issues; and
(c)changes to the child’s living arrangements which might make it significantly more difficult for the child to spend time with either parent.
2.That the parties shall consult with each other about decisions to be made in the exercise of their shared parental responsibility as follows:
(a)They shall inform the other party about decisions to be made and any other information relevant to that decision along with their position in relation to the issue and seek the other parties views on the subject.
(b)Within two weeks the other party shall respond in writing setting out their views and any other information relevant to those views (or as soon as possible if it is a shorter timeframe.
(c)They shall consult with each other on terms that they agree to; and
(d)They shall make a genuine effort to come to a joint decision.
(e)That notwithstanding the provisions of clause 2:
(i)The father shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with him; and
(ii)The mother shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her.
3.That the child live with the mother in Country C.
4.That the child travel to Australia and spend time with the father as can be agreed between the parties but failing agreement:
(a)Every 3 months for a period of two weeks at the mother’s cost.
(b)For every school holiday for the entirety of that school holiday period at the mother’s cost.
Changeover
5.That changeovers will occur at the Brisbane airport.
6.That the father and paternal grandmother shall be permitted to call, skype, video call or use any social media to contact the child on Monday, Wednesday and Saturday between 10.00am and 10.30am until the child commences school if the child has not spent time with them on that day. Once school commences then between the hours of 4.30 pm and 5.00 pm Country C time.
Telephone/video/social media
7.That the parties are to facilitate communications at the child's request at all times.
8.That, when the child is spending time in accordance with Order 3 then the party not spending time with the child shall be permitted to call, skype, video call or use any social media to contact the child on Monday and Saturday between 10.00am and 10.30am until the child commences school if the child has not spent time with them on that day. Once school commences then between the hours of 4.30 pm and 5.00 pm.
9.That the parties are to facilitate communications at the child's request at all times.
10.The parties shall afford the child privacy whilst communicating with the parent and neither party shall record those conversations.
11.The parties shall ensure that the communicating device for the purpose communication is operational to allow such communication to occur.
12.The parties shall afford the child privacy whilst communicating with either parent and neither party shall record those conversations.
Orders for parental communication:
13.That each parent shall ensure that the child attend all and any classes, training sessions, rehearsals or any other activity with respect to extracurricular activities and commitments that they may be enrolled in and required to attend whilst in their care.
14.That each party be permitted to attend any school assembly, parent/teacher interview, sporting event or any other school function that parents may typically attend.
15.That, in the event the child suffers any significant injury, illness or emergency whilst in either party’s care, the non-caring party shall be notified by the caring pa1ty as soon as is practicable, but in any event not later than 12 hours, of the nature of the injury, illness or emergency and of the name of the treating hospital and/or medical physician.
16.That the parents hereby authorise the child's treating physicians, medical practitioners, school and care providers to release such information concerning the child as either parent may request at their own respective cost and these Orders shall be of sufficient evidence of, and constitute, this authority.
17.That the parents are hereby restrained from denigrating each other in the presence, sight or hearing of the child or knowingly permit any other person to do so.
18.The parents shall not physically discipline the child nor permit any other person to discipline the child.
19.That each party is hereby authorised to obtain from the child's school/day care and extracurricular activities all notices, letters, reports and invitations and to attend interviews or other activities to which parents are invited.
20.That the parties encourage and foster the child's relationship with the other party.
21.The Independent Children's Lawyer be discharged.
22.All previous Orders shall be discharged.