Alden & Bourne (No 2)
[2022] FedCFamC1F 775
Federal Circuit and Family Court of Australia
(DIVISION 1)
Alden & Bourne (No 2) [2022] FedCFamC1F 775
File number(s): BRC 6449 of 2020 Judgment of: BAUMANN J Date of judgment: 14 October 2022 Catchwords: FAMILY LAW – Parenting – Final orders made for the mother to relocate the child’s residence to Country C Legislation: Family Law Act 1975 (Cth) Cases cited: Aldridge &Keaton (Stay Appeal) [2009] FamCAFC 106
Alden & Bourne [2022] FedCFamC1F 717
Division: Division 1 First Instance Number of paragraphs: 11 Date of hearing: 10 October 2022 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 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, Life Law Solutions 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:
14 October 2022
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting Orders are discharged.
2.That the child, X born 2018 (“the child”) live with the mother.
3.That the mother is at liberty to relocate the child to live with her in Country C.
4.That the mother not relocate the residence of the child to Country C prior to 30 November 2022, with the mother to give the father at least fourteen (14) days’ notice in writing of the actual departure date.
Airport Watchlist
5.That the child be removed from the Family Law Watchlist and the Australian Federal Police is requested to give effect to this Order by removing the child’s name from the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia, in such time so as to allow the child to depart from the Commonwealth of Australia on or after 30 November 2022.
6.That in the event that the father has possession of the child’s passport, he is to provide same to the mother not less than seven (7) days prior to the mother’s advised date for departure from Australia to Country C pursuant to these Orders.
Parental responsibility
7.That subject to Order 8, the mother shall have sole parental responsibility for the major long term decisions of the child, however in the exercise of her sole parental responsibility, the mother must:
(a)advise the father of the decision that is required to be made concerning the child;
(b)seek the father’s input into that decision and for this purpose the father is to advise his response within seven (7) days or such earlier time as the mother advises in the event that the required decision is urgent;
(c)genuinely consider the input of the father;
(d)make the decision required; and
(e)communicate the decision to the father and demonstrate that the mother has genuinely considered the input of the father in making that decision.
8.That the mother communicate with the father concerning but not limited to:
(a)which school the child should attend, including the type of schooling and school to be attended;
(b)surgery, hospitalisation and medical treatment for any serious injury, illness, condition or disability including attendance of the child for whatever reason upon a child psychologist, counsellor, family therapist or psychiatrist;
(c)decisions about religion and religious education and observance by the child;
(d)decisions about the child playing or being involved in sporting, cultural, artistic or community activity including competition, training or meetings; and
(e)living arrangements, in terms of any changes thereto that would make it significantly more difficult for the child to spend time with the other parent.
9.That the mother not relocate the child’s residence from Country C without the prior written consent of the father.
10.That the mother and father each have sole parental responsibility for making decisions about the day to day care, welfare and development of the child during such times as the child is in their care.
Prior to the mother relocating the child’s residence to Country C
11.That the child spend time with the father and the paternal grandmother, as agreed, or failing agreement as follows:
(a)each weekend commencing Saturday, 15 October 2022 from 9.00am Saturday to 5.00pm Sunday, with overnight time to occur at the home of and in the presence of the paternal grandmother; and
(b)each Tuesday commencing 18 October 2022 from 9.00 am to 5.00pm;
(c)changeover shall be as agreed and failing agreement:
(i)at the entry to J Shopping Centre, K Street, Suburb L, Brisbane; and
(ii)changeover be conducted by or in the presence of the paternal grandmother, and the paternal grandmother be at liberty to be present during all daylight time the father and child are spending together pursuant to these Orders.
After the mother relocates the child’s residence to Country C
12.That unless otherwise agreed in writing between the parties, the father and/or the paternal grandmother shall spend time with the child, upon the giving of at least one (1) months’ notice in writing to the mother, on up to four (4) separate occasions each calendar year for up to two (2) weeks on each occasion and the child will spend time with the father at all times as agreed but failing agreement, as follows:
(a)should such time take place during school term time, the father shall ensure the child attends school, all school events and extracurricular activities; and
(b)until the child reaches the age of four (4) years or commences kindergarten:
(i)on the day immediately after the father arrives in Country C, from 9.00am until 1.00pm, and on the first occasion such time takes place, the visit will occur at a place nominated by the mother and that during the visit she is not visible to the child or involves herself in the visit thereafter; and
(ii)commencing on the third day after the father and/or the paternal grandmother arrives in Country C, and each alternate day thereafter, from 9.00am until 5.00pm with the person who travels.
(c)upon the child reaching the age of four (4) years or commences kindergarten, whichever is the earlier event, and provided the father and/or the paternal grandmother has travelled to Country C, to spend time in accordance with Order 12(b) on not less than two (2) occasions in the year immediately prior to the child turning four (4) years:
(i)on the first such visit after the child turns four (4) years:
A.on the day immediately after the travelling party’s arrival in Country C, from 9.00am until 1.00pm (day one); and
B.on day two from 9.00am until 5.00pm; and
C.for one (1) night from 9.00am on day four until 9.00am on day five; and for two (2) nights from 9.00am on day six until 9.00am on day eight; and
D.for three (3) nights from 9.00am on day nine until 9.00am on day 12.
(ii)on the second visit, after the time in Order 12(c)(i) and thereafter:
A.on the day immediately after the father’s arrival in Country C from 9.00am until 5.00pm (day one); and
B.for two (2) nights from 9.00am on day three until 9.00am on day five; and for three (3) nights from 9.00am on day six until 9.00am on day nine; and
C.for three (3) nights from 9.00am on day 10 until 9.00am on day 13;
(d)upon the child reaching the age of six (6) years, and provided the father and/or the paternal grandmother has travelled to Country C, to spend time in accordance with Order 12(c) on not less than two (2) occasions in the year immediately prior to the child turning six (6) years:
(i)for a two (2) week period with the father and/or paternal grandmother commencing on the day after their arrival in the child’s city or country of residence, (day one), provided that the child shall be returned to the mother from 9.00am on day seven until 9.00am on day eight.
13.That unless otherwise agreed in writing, the child shall communicate with the father and/or the paternal grandmother by telephone, Facetime, Skype or other suitable App at such times as are reasonable having regard to the age of the child and her routine, and for such duration as the child is engaging in the communication. For this purpose the father and/or the paternal grandmother shall initiate the communication and the mother shall ensure the child is available to receive the communication:
(a)on Tuesday and Sunday between 4.30pm and 5.30pm (Country C time) with the father;
(b)on Thursday between 4.30pm and 5.30pm (Country C time) with the paternal grandmother;
(c)on the child’s birthday (if the child has not otherwise spent time with the father and/or the paternal grandmother on that day) between 4.30pm and 5.30pm (Country C time); and
(d)on Father’s Day (when celebrated in Australia) between 4.30pm and 5.30pm.
14.That in the event the child is spending time with the father and/or paternal grandmother, the mother be at liberty to exercise telephone communication pursuant to Order 13 hereof at the same times as the father and/or paternal grandmother would otherwise do so.
Travel to Australia
15.That noting that for the mother to enter Australia, when she accompanies the child on travel from Country C to Australia, she will require a visa:
(a)the father shall give written notice to the mother not less than six (6) months prior to when the father seeks to spend time with the child in Australia. The father may nominate one (1) period each calendar year commencing 1 December 2023;
(b)within fourteen (14) days of receiving such notice, the mother shall apply to the Australian Department of Immigration for a visa for her to enter Australia ad a visa, if necessary, for the child. The mother shall be responsible for the costs of such applications;
(c)if the application is granted, then the mother shall give written notice to the father within seven (7) days of receipt of such conformation;
(d)when the window for entry into Australia is identified by the terms of the visa:
(i)the father shall nominate a period, not greater than three (3) weeks for the child to spend time with the father and/or paternal grandmother, which period shall be within the child’s school holidays unless otherwise agreed;
(ii)the father shall provide details in writing of the flight details for the child and the mother to fly to Brisbane and return to Country C for the contact period;
(iii)the father shall be responsible for the costs of the flights and shall have paid for the return flights, and provide evidence of such payment and seat allocation, not less than thirty (30) days before scheduled departure from Country C to Brisbane. The father shall not cancel the return flight;
(iv)the mother shall arrange, at her sole cost, accommodation for her time in Australia and provide the father details of the location where she and the child will be staying (when the child is not in the care of the father);
(v)unless otherwise agreed, during the up to three (3) week period in Australia each year, the time the child spends with the father and/or paternal grandmother shall be in accordance with the regime prescribed generally in Order 12; and
(vi)the father and the paternal grandmother are restrained and an injunction issues restraining either of them from seeking to impose an Airport Watchlist notice administratively. This Order does not seek to restrict any legitimate applications made to a court exercising jurisdiction under the Family Law Act 1975 (Cth).
Changeovers
16.That once the mother relocates the child’s residence to Country C, the changeover location on occasions where the child is spending time with the father and/or paternal grandmother in Country C, shall be as agreed between the parties and failing agreement, at the child’s school or if it is a non-school day the mother will deliver the child to the father and/or the paternal grandmother at the start of the child’s time with the father and/or paternal grandmother and collect the child from the father at the end of the child’s time with the father and/or paternal grandmother.
17.That the father and/or the paternal grandmother shall give the mother at least twenty eight (28) days’ notice of their intention to spend time with the child in Country C, and in Australia, and shall provide the mother with details of where he/they/she is staying in Country C, and a contact mobile telephone number.
Special days
18.That on the child’s birthday and provided the father and/or paternal grandmother are in the same city as the child, the child spend time with the father and/or paternal grandmother from 3.00pm until 7.00pm.
19.That on the Australian Father’s Day and provided the father is in the same city as the child, the child spend time with the father from 9.00am to 1.00pm and from Father’s Day 2024 onwards from 9.00am to 5.00pm.
Schooling
20.That the mother and father ensure that the child learns the culture of the other parent’s native country along with their language in both written and spoken form.
Exchange of information
21.That the mother and father communicate about issues relating to the child using the TalkingParents App or such other application as can be agreed, and will do all acts and all things necessary to register an account within seven (7) days of the date of these Orders.
22.That the mother and father provide to each other the details of any proposed change in their residence no later than seven (7) days before the change of residence.
23.That the mother and father keep each other informed of:
(a)their email and mobile telephone number and those of the child as applicable;
(b)the email and mobile telephone number of any emergency contact that is either a family member, non-family member or appointed legal representative; and
(c)notify the other parent within twenty four (24) hours of any change.
24.That communication between the mother and the father only be by text message or email save for emergencies involving the child when telephone calls must occur, and the other parent is permitted to attend the emergency.
25.That in the event of the child being admitted to hospital for emergency treatment or being taken to a medical practitioner for urgent treatment following any accident, injury or sudden illness, the parent with the care of the child at that time shall immediately, by the best means available, notify the other party of the following details:
(a)The name and contact details of the medical professional administering the treatment;
(b)The medical or other complaints for which the child was taken to the medical professional;
(c)Any treatment and/or medication prescribed for or provided to the child and the reasons for the same; and
(d)The prescribing or provision of such medication and/or treatment; and if the child is admitted to hospital: the name and contact details of that hospital.
26.That the parents and the paternal grandmother be at liberty to send letters, cards and gifts to the child and the party having care of the child will ensure these are passed onto the child.
Authorities
27.That the child’s treating health practitioners are authorised by this Order to provide each parent with information that those practitioners are lawfully able to provide about the child.
28.That the parents shall inform each other within twenty four (24) hours of the child receiving any medical attention whilst in that parent’s care, including the names and contact details of any person providing such attention.
29.That any school, before/after school care provider, or vacation care provider that the child attends is authorised to provide to each parent information about the child’s educational progress and other related activities and to supply the other parent with copies of reports, photographs, certificates, and awards obtained by the child (at the receiving parent’s cost).
Passports and overseas travel
30.That each parent sign an application for a passport of any country for the child within seven (7) days of receiving the application from the other parent.
31.That should either parent refuse or neglect to sign an application for a passport of any country for the child within seven (7) days of receiving the application from the other parent, the Registrar of the Federal Circuit and Family Court of Australia (Division 1) is appointed to sign that application and do all acts and things necessary to ensure that the application is validly executed on behalf of the defaulting parent.
32.That upon receiving any new or replacement passport for the child the receiving parent is to provide the other parent with a copy of the passport.
33.That the child’s passport(s) is/are to remain with the mother.
34.That within seven (7) days of the date of these Orders, both parents shall do all acts and things and sign all documents to make application for an Australian passport for the child.
35.That the cost of the child’s Australian passport shall be paid for by the father.
36.That the child’s Australian passport shall be held by the mother.
37.That a copy of the child’s Australian, Country C or and any other passport in the child’s name be provided to the father provided the father does not have the original documents.
38.That for all overseas travel:
(a)the parent travelling with the child will give the other parent as much notice as possible and in any event, will give not less than twenty eight (28) days written notice by email of their intention to travel with the child; and
(b)the parent travelling with the child will, no less than twenty one (21) days prior to the departure date, provide copy of return airline tickets to include the departure date and the return date in respect of the country or countries the child will be travelling to, the dates on which the child will arrive and depart each country and a contact telephone number and address at which the child can be contacted; and
(c)the parent travelling to the child will give the other parent as much notice as possible and in any event, will give no less than twenty eight (28) days written notice by email of their intention to travel to visit the child.
Behaviour
39.That during the times the child is with any party that party shall respect the privacy of the other parties and the child and not question the child about the personal life of the other parties or the household in which the child spends time.
40.That in the event they are not already doing so, each party is to encourage and foster the child’s relationship with the other parties.
41.That without admission, neither parent abuse, insult, criticise or denigrate any other party, their respective partners, their family or their friends or any other person, nor expose the child to the conflict between the parents/parties, in the presence of, or hearing of, the child, and will use their best endeavours to ensure that no-one else does so, and will remove the said child from any environment where such behaviour is occurring.
42.That each of the parties is restrained from using any illicit substance and from exposing the child to illicit substance in any form when the child is in their care.
43.That the Independent Children’s Lawyer be discharged.
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
BAUMANN J:
After publishing Reasons in this matter on 29 September 2022 (see Alden & Bourne [2022] FedCFamC1F 717), the Court, for the reasons set out at paragraph 93, gave the parties an opportunity to reflect on the findings with a view to a affording them an opportunity to make further submissions as to the form of the order – which occurred on 10 October 2022.
I can well understand that the father (represented by Ms Martinovic of Counsel) and the paternal grandmother Ms B Bourne (represented by solicitor Mr Wooler) were so upset by the decision to permit the child to live in Country C with the mother, that even with legal representation they found it difficult to articulate a position.
Whilst they essentially conveyed their intention to appeal any orders I make (as they are perfectly entitled to do), I tried to explain to them I was not inviting their consent to the orders but wished to allow them to make any further submissions as to the form of the order.
Helpfully, the Independent Children’s Lawyer had prepared an order for consideration by the parties in an attempt to focus submissions.
The mother sought to rely upon a further affidavit of her solicitor which deposed inter alia to the following instructions from her client , the mother, in particular:
(a)X will start kindergarten in Country C in July 2023;
(b)Flights are available to return to Country C immediately; and
(c)Because there are now orders which “say I can go home”, the mother cannot remain in the refugee accommodation after late 2022, and the mother would like to leave “no later than the end of the same month”.
The father and the paternal grandmother objected to the mother relying on the affidavit of the solicitor (filed on 7 October 2022), and I was conscious of the need for procedural fairness but also the time limits which prevail, and indicated I was prepared to either:
(a)give the father and/or the paternal grandmother and opportunity to give evidence orally immediately; or
(b)would allow them to provide a further affidavit,
however, after taking instructions, the representatives for the father and the paternal grandmother did not wish to adopt either option.
Based on the findings already made in the Reasons for Judgment, and using the Independent Children’s Lawyer’s draft order as a helpful template, I pronounce the orders which appear at the commencement of these further Reasons which I find are in the best interests of X, and set out some additional findings to support those orders as follows:
(a)The mother will be permitted to leave Australia with the child no earlier than 30 November 2022, which will allow the mother to make suitable arrangements (including to begin steps to achieve an identity card for the child). I am aware of the “evidence” that the mother may not be able to remain in refuge accommodation (where she has remained since May 2021) but do not believe it likely that remaining until at least 30 November 2022 will cause the mother and the child to be “evicted”;
(b)Delaying the departure will permit the arrangements for overnight time set out in the Orders to occur which I regard as in the child’s best interests. Although initially the mother opposed overnight time commencing, further submissions from the mother’s Counsel, Ms Gover, indicated the mother would not oppose overnight time commencing;
(c)I am not prepared to order the time be delayed until after Christmas Day 2022 which was the only real submission the father’s Counsel was instructed to make;
(d)All overnight time in Australia shall occur at the home of the paternal grandmother and with her being present. The paternal grandmother’s experience as a parent is likely to be of support to the child, and I believe also the father, as the child adjusts to having a night away from her primary carer, the mother;
(e)I have increased the time for notice to spend time from two weeks to a month, which I regard as more appropriate;
The Independent Children’s Lawyer proposed arrangements for the child to spend time in Australia commencing December 2023 “for at least one block period of time totalling a maximum of three (3) weeks” in the period between 1 December to 31 January on dates nominated by the mother, with a child to be accompanied by the mother. The proposed order does not specify who should meet the costs of travel and the mother’s cost of accommodation whilst remaining in Australia, for such yearly “visits”. This is a difficult issue, on the evidence, and I make these findings:
(a)I accept it is ideal for the child to spend time in Australia with the father and the paternal grandmother, however sadly the evidence suggests at this time the father will not travel to Country C to spend time with his daughter after she returns to live in Country C;
(b)As a result, it is impossible to be satisfied, without regular visits, at what age or how the child will adjust to spending a large block of time with the father and/or the paternal grandmother if no physical time is occurring in Country C where the child will live;
(c)For the entirety of the mother’s period in Australia post separation, she has lived in refuge accommodation without any offer of financial support from either the father (save for the very modest child support deducted from his government benefit), or the paternal grandmother, who of course had no legal duty to do so. With that history, I infer that it is unlikely that the father will offer to make any real support payments for the child living with the mother in Country C. The mother will not have the capacity to pay for airfares (for both the child and herself as the appropriate accompanying person) as well as accommodation when in Australia;
(d)Although the mother says the child should not be permitted to travel unaccompanied until she is 18 years of age, if a relationship between the father and the child has been nurtured and developed (as difficult as that will be to achieve), then the child should be able to travel alone earlier than 18 years of age. However she is not yet four years of age and predicting when she could travel unaccompanied is too speculative to prescribe at this time;
(e)Before the mother could accompany the child from Country C to Australia to spend time with the father and/or paternal grandmother, the mother will be required to apply for and secure a visa in Australia. I have no evidence as to the costs of such application or the possible delays in processing an application for a visa. Of course, there is also no evidence offered to the Court as to the prospects of obtaining such visas – on multiple occasions.
Doing the best I can in this very difficult case (where again I note the mother has no right to remain in Australia permanently), I make the order about travel to Australia set out in the Orders – acknowledging the difficulty with enforcement in Country C – because it is in the best interests of the child, if possible, for her to send time with the father and paternal grandmother in Australia at least annually.
Because of the clear indication by the father and his mother to appeal the Orders now made permitting the child to live in Country C, Ms Gover for the mother contended that it might be “tidier” to pronounce the Order but stay its operation to permit an appeal to be filed and determined.
I refuse to do so, as I am not satisfied that such an approach is appropriate. Now that the Orders are pronounced, time limits will commence. If any appeal is filed, then of course, and I accept, an application for a stay as likely to be filed and it will be listed quickly and decided on the usual well known principles (see for example Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106).
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 14 October 2022
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