Austin & Austin
[2024] FedCFamC1F 664
•2 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Austin & Austin [2024] FedCFamC1F 664
File number(s): ROC 864 of 2022 Judgment of: BAUMANN J Date of judgment: 2 September 2024 Catchwords: FAMILY LAW – CHILDREN – Final Orders made by consent on first day of final hearing, allowing the children to relocate to the United Kingdom with the mother Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 2 September 2024 Place: Rockhampton Counsel for the Applicant: Mr G Kalimnios Solicitor for the Applicant: CQ Legal Counsel for the First Respondent: Ms R Stocks Solicitor for the First Respondent: Macrossan & Amiet Counsel for the Second Respondent: Mr S Moon Solicitor for the Second Respondent: DJP Lawyers Counsel for the Independent Children’s Lawyer: Mr J Todman Independent Children’s Lawyer: Ms Stewart, Queensland Legal Practice ORDERS
ROC 864 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR AUSTIN
Applicant
AND: MS AUSTIN
First Respondent
MS OTTOSEN
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
2 SEPTEMBER 2024
THE COURT ORDERS:
1.That all previous parenting Orders and parenting plans are hereby discharged.
2.That these Orders are subject to any agreement evidenced in writing as between the Applicant father, Mr Austin and the Respondent mother, Ms Austin.
Decision making
3.That the mother shall have sole decision-making responsibility for major long-term issues (as defined in s 4(1) of the Family Law Act 1975 (Cth) (“the Act”)) for the children, X born 2016 and Y born 2018 (“the children”).
Australian and United Kingdom passports
4.That pursuant to s 11(b) of the Australian Passports Act 2005 (Cth), the mother is permitted to solely apply for and/or receive the children’s Australian passports, notwithstanding the absence of the father’s consent, upon producing a copy of this Order.
5.That the mother is permitted to apply for and obtain United Kingdom passports for the children, notwithstanding the absence of the father’s consent, upon producing a copy of this Order.
Airport Watch List
6.That within seven (7) days of the date of this Order the children’s names be removed from the Australian Federal Police Family Law Airport Watch List.
Return of passports
7.That within seven (7) days of the date of this Order the Court shall return the children’s passports to the solicitor acting on behalf of the mother.
Relocation
8.That the mother is hereby permitted to relocate the children’s residence to the United Kingdom.
Living arrangements
9.That the children live with the mother.
10.That unless otherwise agreed in writing between the parents, the children shall spend no time with the father and paternal grandmother.
11.That unless otherwise agreed in writing between the parents and save for Order 12 herein, the children shall have no contact with the father and paternal grandmother.
Contact and communication
12.That the father and paternal grandmother shall be permitted to communicate with the children by post, gifts, cards, letters, photographs, and such communication shall be limited to each June and special occasions such as each of the children’s birthdays, Easter and at Christmas time each year, with the mother or the mother’s agent to provide such items to the child/ren after satisfying themselves that the letters, photographs, cards and/or gifts are child focused.
13.That the father and the grandmother shall be permitted, in lieu of a card or letter, to send a pre-recoded video message not exceeding five (5) minutes in duration, which shall be child focused and not contain any messages referencing the father and the paternal grandmother missing any of the children or spending time with any of the children.
14.That for the purpose of Orders 12 and 13 herein the father shall notify the mother in writing via the “AppClose” parenting App of items sent to the child/ren by himself or the paternal grandmother, and the mother or her agent shall, within seven (7) days thereafter confirm receipt of such items as identified by the father.
15.That the mother or her agent shall use their best endeavours to provide a photograph of the child/ren, with such items sent by the father and/or paternal grandmother via the “AppClose” parenting App.
16.That should any of the children express a wish to communicate with the father and/or the paternal grandmother, the mother shall take all necessary steps to facilitate such communication with the father and/or paternal grandmother via electronic or other means as may be agreed in writing with the father and/or paternal grandmother.
17.That to give effect to Orders 12 and 13 herein, the mother or her agent shall, within seven (7) days of the date of these Orders, provide to the father in writing via the “AppClose” parenting App, an address where any items may be mailed, to be received by the child/ren.
18.That the mother shall advise the father in writing of the date upon which the children are relocating to United Kingdom.
19.That within forty-eight (48) hours of a change of address, the mother shall advise the father in writing via the “AppClose” parenting App of such change to her address and within twenty-four (24) hours of receipt, the father shall provide that address to the paternal grandmother.
Counselling
20.That the children shall attend upon a counsellor until the children’s counsellor is of the view that the children no longer require counselling, and the mother shall follow all recommendations made by the children’s counsellors.
21.That the mother shall attend upon a counsellor to support her own emotional issues and to gain insight as to how to support the children with their emotional issues, until her counsellor is of the view that counselling is no longer required.
22.That the mother shall provide a copy of these Orders and the family report dated 4 September 2023 to the counsellors of both the children and the mother.
23.That the father and paternal grandmother are at liberty to provide a copy of these Orders and the family report dated 4 September 2023 to any counsellor they may engage with respect to better communicating with the children.
Communication between the parents
24.That except in the circumstance of an emergency, the parents shall utilise the “AppClose” parenting App for all communication in accordance with these Orders, with the parents to enrol with such service within (7) seven days of the date of this Order.
25.That in the case of an emergency which directly or indirectly involves or concerns any of the children, the mother shall communicate to the father the nature of the emergency, including but not limited to the medical condition, needs and welfare of the children arising from the emergency as soon as is practicable, but within twenty-four (24) hours of the emergency using the “AppClose” parenting App or such other communication which provides the fastest and most direct mode of communication.
Exchange of information
26.That within fourteen (14) days of receipt of the children’s school reports, the mother or her agent shall upload such reports to the “AppClose” parenting App.
27.That as soon as reasonably practicable, but no later than twenty-eight (28) days after the provision of the children’s yearly school photograph, the mother or her agent shall upload a copy of the school photograph of the children to the “AppClose” parenting App.
Restraints
28.That pursuant to s 68B of the Act, the mother is restrained and an injunction hereby issues restraining the mother from changing the current names of the children as their names are currently listed on their birth certificates and from causing the children to be known by any other names for official, educational, sporting or health purposes.
Non-denigration
29.That during the time the children are with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent 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 in the hearing or presence of the children;
(d)not discuss these proceedings with the children and not show the children any document pertaining to these proceedings; and
(e)not discuss, with the exception of what may be required for clinical/counselling purposes, these proceeding with or in the presence or hearing of the children, and will ensure no other person discusses the proceedings in the presence or hearing of the children, including but not limited to issues involving why the parents’ relationship ended, any allegations or perceptions of domestic and family violence, or child support.
Dispute resolution
30.That in the event there is a dispute about the children or about the interpretation, implementation or enforcement of these Orders, before making any further Application to a Court, the parents shall:
(a)either attend personally or via electronic means, counselling or mediation with an organisation recognized under the Act or by the Commonwealth Attorney- General; or
(b)participate in family dispute resolution with a Family Relationship Centre, or a person authorised under s 10G of the Act.
31.That the costs associated with participating in meditation pursuant to order 30 herein shall be shared equally between the parents.
IT IS NOTED:
A.That at the Final Hearing which occurred on 2 September 2024, the Court was not asked by any party to make any findings or conclusions regarding the truth or otherwise of the allegations of the mother relating to domestic violence and sexual abuse, nor was the Court asked to make any finding that the children’s reactions are caused by the father or paternal grandmother.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Austin & Austin has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J
The parties, who have two children – X, who is now aged nearly eight, and Y, who is aged six years – separated when the children were three years and an infant respectively, in October 2019. It was a short relationship conducted in rural Australia – the mother having come to Australia from the United Kingdom in 2012 with a desire to remain in Australia.
On the mother’s evidence, which is untested, it was not a happy relationship for most of the time. She claims – and this evidence was not tested – that she had been the victim of significant family violence in the form of both physical, sexual, financial, and coercive behaviour of the father. The father denied those allegations.
The mother further asserts in her affidavit that arising from an initial disclosure made by the eldest child X in April 2023 – I note, when the child was aged six a and had been separated from the father since October 2019 and had had no time with the father since October 2020 – and for the first time, the mother asserts an allegation of inappropriate behaviour by the father was made. That allegation has hung over the father’s head since then.
I have not seen the Department records or the Police interviews. The child being so young, one can only speculate that, perhaps, the interview was not of such strength that prompted the Police to prosecute the father. The evidence is that no prosecution was ever launched.
For some time, the paternal grandmother, who became a party to the proceedings on her Application, was spending time with the children, but that also ceased.
It seems abundantly apparent from the material and whether it is, as the father suggests, because of the effect of the divorce and him taking up a new relationship or whether, as the mother strongly asserts in her affidavit, as a result of the father’s inexcusable behaviour towards her and the children, the mother was unable in any form, it seems, to encourage and support the children having any relationship with the father. It was further manifest by her decision in April 2021 to move from the City B area to City C. That distance again would have provided an impediment to ongoing time in a practical sense.
The father, of course, can take no credit for being so idle in the way he prosecuted any desire he may have had to have a relationship with his children. Even though separation occurred in October 2019 and there was, for a limited period of time, time he spent with his daughters, generally in the company of his mother, even when time ceased in October 2020 and, I note, previously had been made more difficult, perhaps, by Covid-19 – but I am not totally convinced about that – the father really did nothing.
He says his reasons for not doing anything to protect his children’s right that they have a relationship with him, provided it was safe – a right which he has done nothing to protect, in my view, on the evidence – was because he was fearful that allegations the mother said she would make against him of rape and other serious abuse would be pursued.
Rather than face those consequences in the interests of his children, as I say, he basically chose to do nothing until he brought an Application in August 2022, by which time the mother had made it abundantly clear of her intention to seek to return to her country of origin, the United Kingdom.
The consent orders which are presented today for determination by me still require me to be satisfied that the orders are in the best interests of the children. I take on board that the parties are all competently represented by Counsel and their instructing solicitors and that they have shaped these orders, no doubt, on instructions and with a couple of small alterations which the transcript will reveal. I propose to make the orders.
STATUTORY PATHWAY
Section 60CC(4) of the Family Law Act 1975 (Cth) (“the Act”) provides as follows:
Consent orders
(4)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
I cannot be satisfied on the evidence that the father is a risk to these children, and I make no such finding. If the evidence had been tested, that may have been a finding open to the Court but, at this stage, in my view, it is not.
I do accept that the father can say – noting he has had no real relationship with his children now for over three years; and further noting that as he generously acknowledges in his affidavit, that the mother is a good mother who cares for the needs of the children and provides for them emotionally and physically – that he is happy to allow, in some ways, the mother to return to the country of origin and to her family. I have no doubt that the mother will be much happier there and, most likely, the children will be happy as well, but I often remark in these sorts of difficult cases from time to time, you cannot change history.
Children have a right, provided it is safe, to a relationship with people significant to their care, welfare and development. That is the right which the Court is bound to protect through the process of litigation. Often, as in this case, an Independent Children’s Lawyer is engaged to act as, in a sense, an honest broker and to promote proposals which are in the best interests of the children. I note that the orders I am being asked to make today have the consent of the Independent Children's Lawyer and Counsel retained by her.
My strong impression is that unless the mother forms a different view about the importance to these children’s identity and the history of how they were created and their life in Australia alike, there is every prospect that these children may never have a relationship with their father.
Sometimes, it is said to me that all will turn out okay when the children are old enough as an adult to seek out those persons with whom they have had no relationship. Courts like this can never know whether that, in fact, is true. There is a significant distance between Australia and the United Kingdom and in the way that the mother’s material presents to me, along with her actions in terms of chronology, that would suggest she cannot genuinely see any value in the children having a relationship with their father.
The mother is a young woman, more than capable of re-partnering which may offer to the children a person who may choose to take on the role of a father figure. That will also have the effect of further possibly diminishing any role that the biological father of these children will ever play in their life.
I accept, as Mr Kalimnios of Counsel appearing on behalf of the father says, that, in a sense, the orders are an acceptance of a practical reality.
The father is a man of modest means, living in rural Queensland. His capacity, even willingness, to travel to the United Kingdom is not clear at all. It seems unlikely it will occur.
There is no doubt there was a desire from the mother, who came to this country with a hope of a better future, and from the father of creating a future together and for the children that were born to them. That it has not worked out that way is, in many ways, disappointing for the parties but particularly disappointing for the children. The strength of the mother’s parenting, however, will, most likely to some degree, cover many of these gaps in the children’s development.
I am not satisfied, however, that results where one party is so clearly airbrushed from the life of the children can ever be found to have no long-term effects on children.
I make the orders not because the parties just say I should, but because:
(a)in circumstances where the mother is so desperate to return to the United Kingdom for the reasons she outlines; and
(b)where the father has not really pursued avenues for spending time with the children with any great vigour,
why should the mother be required to remain in this country when the father does little to promote relationships with the children which could have been nurtured more or at least fought for, if they remain in the country.
I will cause my orders to be published with these Reasons.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 24 January 2025
0
0
1