Bajek & Bajek (No 2)

Case [2024] FedCFamC1F 526

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bajek & Bajek (No 2) [2024] FedCFamC1F 526

File number(s): NCC 2589 of 2023
Judgment of: AUSTIN J
Date of judgment: 5 August 2024
Catchwords:  FAMILY LAW – PARENTING – Interim Orders – Where the anterior question about the Court’s exercise of jurisdiction was previously determined – Commonwealth Personal Protection Measures – Where the father resides in Australia – Where the mother and children have resided in Country B since July 2023  – Where the children have not spent time or communicated with the father for 12 months – Where the father sought orders comprising alternate regimes, depending on whether the children live in Country B or Australia – Where the father’s preference is for the children to live in Australia – Where the mother sought orders requiring the children to live with her in Country B and provision for the children to communicate with the father and spend supervised time with him should he travel to Country B – Where family violence was allegedly committed by both parties – Where no factual findings concerning allegations of family violence are presently feasible – Where the mother has unstable psychological health – Where the mother has limited financial resources – Where the children’s best interests are promoted by them remaining in the mother’s residential care  – Where forcing the mother to return to Australia could deleteriously affect her parenting capacity – Where the children have an emotional need to restore and maintain healthy relationships with the father – Ordered the parties retain parental responsibility for the children, however mother vested with sole decision-making authority in relation to the children’s education and place of residence – Ordered children live with mother, subject to certain geographical restraints – Ordered children spend time and communicate with the father, the terms of which vary depending on whether the children reside in Country B or Australia
Legislation:

Family Law Act 1975 (Cth) Pts VII, XIIIAA, ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DAA, 61DAB, 64B, 65AA, 65D

Family Law Amendment Act2023 (Cth)

Cases cited:

AMS v AIF (1999) 199 CLR 160

Bajek & Bajek [2024] FedCFamC1F 466

Sampson v Hartnett (No.10) (2007) FLC 93-350

U v U (2002) 211 CLR 238

Division: Division 1 First Instance
Number of paragraphs: 46
Date of hearing: 5 August 2024
Place: Newcastle
Counsel for the Applicant: Ms Evelyn
Solicitor for the Applicant: Koulouris & Associates Pty Ltd
Counsel for the Respondent: Ms Ticehurst
Solicitor for the Respondent: Legal Aid NSW

ORDERS

NCC 2589 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR BAJEK

Applicant
AND:

MS BAJEK

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

5 AUGUST 2024

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1.These orders relate to the parties’ children:

(a)X, born 2015; and

(b)Y, born 2017.

2.The parties shall each retain parental responsibility for the children, but the mother shall have sole decision-making authority for decisions related to the…

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AGLC
Bajek & Bajek (No 2) [2024] FedCFamC1F 526
Case
[2024] FedCFamC1F 526
Decision Date

CaseChat Overview and Summary

In the case of Bajek & Bajek (No 2), the Federal Circuit and Family Court of Australia (Division 1) was required to determine interim parenting orders for two children born in Australia to parents from Country B, who had been living in Country B since mid-2023. The father, residing in Australia, sought alternate parenting regimes based on the children's location, with a preference for them to live in Australia. The mother, residing in Country B, sought orders for the children to live with her and for supervised contact with the father. Both parties alleged family violence, but no factual findings were feasible at the interim stage. The mother's psychological health was unstable, and her financial resources were limited, while the children's best interests were seen to be promoted by remaining with her. However, the children's need to maintain healthy relationships with their father was also acknowledged.

The court determined that the children's best interests did not necessitate their return to Australia. Instead, they could maintain and restore their relationships with the father through regular electronic communication and in-person visits if he traveled to Country B. The court rejected the mother's request for sole parental responsibility and instead decided that both parents should retain parental responsibility. The mother was granted sole decision-making authority regarding the children's education and place of residence. The children would continue to live with the mother in Country B or Australia, depending on her choice, but with geographical restraints to facilitate contact with the father. Electronic communication with the father was set at twice a week, and in-person visits were scheduled for one day per week and one full week every three months if the mother chose to reside in Country B. If the mother moved back to Australia, the same visitation regime would apply.

The court's orders specified that both parents must keep each other informed of their contact details and the nearest police station. If the mother and children remained in Country B, they were to spend time with the father during his visits and communicate with him via audio/visual means when he was not present. If the mother and children moved to Australia, the children would spend time with the father during his visits and each Saturday from 9.00 am until 5.00 pm. All other interim applications were dismissed.

Orders

Orders of the court

NCC 2589 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR BAJEK

Applicant

AND:

MS BAJEK

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

5 AUGUST 2024

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1. These orders relate to the parties’ children:

(a) X, born 2015; and

(b) Y, born 2017.

2. The parties shall each retain parental responsibility for the children, but the mother shall have sole decision-making authority for decisions related to the children’s education and place of residence.

3. The children shall live with the mother, upon condition that:

(a) the mother must live with the children in either Country B or Australia; and

(b) if the mother chooses to live with the children in Country B, she is restrained from relocating their residence beyond a radius of 10 kilometres from the central post office at City C, Country B; and

(c) if the mother chooses to live with the children in Australia, she must establish their residence within, and is restrained from relocating their residence beyond, a radius of 100 kilometres from the central police station at City D, NSW.

4. The parties shall forthwith notify and keep the other informed in writing of:

(a) their current residential address;

(b) their current email address;

(c) their current mobile telephone number; and

(d) the address of the closest police station to the mother’s residence.

5. If the mother and children live in Country B then, whilst ever the father is physically present in Country B, the parties shall take all reasonable steps to ensure the children spend time with the father:

(a) for seven contiguous days not more frequently than once every three months on dates nominated by the father not less than one month in advance; and

(b) each Saturday from 9.00 am until 5.00 pm.

6. If the mother and children live in Country B then, whilst ever the father is not physically present in Country B, the parties shall take all reasonable steps to ensure the children communicate with the father by audio/visual means at 5.00 pm each Wednesday and each Saturday for no less than 15 minutes.

7. If the mother and children live in Australia then, whilst ever the father is physically present in Australia, the parties shall take all reasonable steps to ensure the children spend time with the father:

(a) for seven contiguous days in each of the Spring, Summer, Autumn and Winter public school holidays, commencing on the first Saturday of each holiday; and

(b) each Saturday from 9.00 am until 5.00 pm.

8. To implement Orders 5 and 7 hereof, the parties shall ensure the children are exchanged at the closest police station to the mother’s residence.

9. To implement Order 6 hereof, the mother shall establish the audio/visual connection with the father for the children.

10. Otherwise:

(a) the application for interim orders set out within the Amended Initiating Application filed on 21 May 2024 is dismissed;

(b) the application for interim orders set out within the Further Amended Response filed on 27 May 2024 is dismissed;

(c) the application for interim orders set out within Exhibit F1 is dismissed;

(d) the application for interim orders set out within Exhibit M1 is dismissed; and

(e) any and all outstanding applications for interim orders are dismissed.

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.

Background

Background to the litigation

These reasons explain parenting orders, made on an interim basis as “Commonwealth personal protection measures”, between the applicant father and the respondent mother in respect of their two children following on from an anterior decision to exercise jurisdiction pursuant to Pt XIIIAA, Div 4 of the Family Law Act 1975 (Cth) (“the Act”). Background The following background facts are lifted from the anterior judgment (Bajek & Bajek [2024] FedCFamC1F 466):3. The parties are of [Country B] heritage. They married in [Country B] in February 2014 and began cohabitation in Australia in [late] 2014. Their two children were born in Australia in […] 2015 and […] 2017.4. The parties and the children are all Australian citizens. None is a [Country B] citizen, though there is no immediate legal impediment to the mother and children continuing to live in [Country B] for the foreseeable future. It is unnecessary to explain why.5.The parties and the children travelled to [Country B] in [mid-]2023 for a holiday. They intended returning to Australia some weeks later [...] and had return flights booked for that purpose. While in [Country B], following an argument between the parties, the mother and children went to stay with maternal relatives.6.[In mid-]2023, the mother commenced proceedings in [Country B] seeking a domestic violence injunction against the father, an order granting her “temporary custody” of the children, and an order granting her legal guardianship of the children pursuant to s 21 of the Protection of Women from Domestic Violence Act 2005 (India) (“the Protection Act”).7.The [Country B] proceedings were commenced by the mother several days before the father returned alone to Australia, [in mid-]2023, though there is a factual dispute about precisely when he was served with process in the [Country B] proceedings. So far as can be discerned, the father has not engaged with the [Country B] proceedings, which are still pending.8.Soon after the father’s return to Australia, [in mid-]2023, he commenced these proceedings under the Act seeking parenting orders in respect of the children. The mother engaged with the proceedings in January 2024, initially submitting to the Australian jurisdiction and seeking competing parenting orders but, by May 2024, she raised an objection to the exercise of jurisdiction by this Court under the Act.9.Unlike Australia, [Country B] is not a signatory polity to the 1980 Convention on the Civil Aspects of International Child Abduction (“the 1980 Convention”) and so its provisions cannot be invoked by a central authority in [Country B], securing orders to enforce the children’s return to Australia. Nor is [Country B] a signatory polity to the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”), so there is no easy process for enforcing Australian parenting orders in [Country B].

Evidence

Evidence Before The Court

Consideration of the parties’ applications for interim parenting orders was consensually put to one side while the anterior question about the Court’s exercise of jurisdiction was determined. It having since been determined that jurisdiction under the Act should be exercised, it now falls to consider what orders should be made on an interim basis to govern parenting arrangements for the children.Proposals and evidence At least until just before the hearing, the parties’ respective proposals were about as polarised as could be imagined. The father initially sought the interim orders set out within his Amended Initiating Application filed on 21 May 2024. In effect, he wanted the children returned to Australia within seven days and for them to then live with him. If the mother refuses to comply, he wanted a recovery order issued. He proposed an embargo of three months duration on any contact between the children and the mother, but restoration of their interaction thereafter on a graduating basis. At the commencement of the hearing, the father instead sought the orders set out within the Minute of Orders he tendered (Exhibit F1), which comprised alternate regimes. Preferentially, he wants the children to live in Australia with the mother, if she is willing to do so, but otherwise with him in Australia if the mother chooses to live in Country B. If the Court concludes the mother should not be compelled to return the children to Australia then, given he apparently intends to stay in Australia, he wants regular electronic communication with them and regular personal interaction with them when he visits Country B. In support of his application, the father relied upon:(a)his affidavit filed on 25 June 2024;(b)paragraphs 79–82 of the mother’s affidavit filed on 25 January 2024 (Exhibit F2); and(c)some physiotherapy notes dated 22 May 2023 (Exhibit F3). The mother initially sought the alternate interim orders set out within her Further Amended Response filed on 27 May 2024. She wanted orders to confirm the children must live with her and that she has sole parental responsibility for them, together with a declaration that the children neither spend time nor communicate with the father. At the commencement of the hearing, the mother instead sought the orders set out within the Minute of Orders she tendered (Exhibit M1). She still wants orders requiring the children to live with her in Country B and for her to have sole parental responsibility for them, but she now countenances the children having regular electronic communication with the father and them also spending supervised time with him if he chooses to visit Country B. In support of her application, the mother relied upon:(a)her affidavit filed on 24 June 2024;(b)some records of the State child welfare agency (Exhibit M2); and(c)paragraphs 6 and 30 of the father’s affidavit filed on 21 August 2023 (Exhibit M3).Legal principles This interim dispute was heard after 6 May 2024, being the date upon which the Family Law Amendment Act 2023 (Cth) commenced operation to amend provisions of the Act, so the new provisions apply.

Decision

Reasons for decision

But the children’s best interests do not demand their return to live in Australia. They can recover their relationships with the father if they communicate with him regularly and, subject to him travelling to Country B, they are able to see him regularly. The paternal family apparently live in Country B in relative proximity to the maternal family, so the father is able to stay with his own family if he wishes to travel to Country B periodically for visits with the children. The cost of airfares is the only real expense for the father, but he sold the former family home in Australia and kept the net proceeds of sale so he has the capital to cover that expenditure.Conclusions The mother sought an order for her to have sole parental responsibility for the children, but the issue was not addressed in submissions by either party. The mother’s proposal for her to have exclusive parental responsibility for the children in all respects and for all parental responsibility to be confiscated from the father is rejected. The parties should retain their parental responsibility for the children, but since the mother will likely remain living with the children in Country B and the father will continue living in Australia for the foreseeable future, the mother should have sole decision-making authority in relation to decisions about the children’s education and place of residence. The children should continue to live with the mother. She may choose whether they remain living in Country B or move back to Australia, but it must be a choice between those two alternatives to avoid the father having to chase her around those countries or other countries on the globe. If she chooses to live in Country B, her place of residence is confined to a geographical area near to where she currently lives to make it easier for the children to spend time with the father when he travels to Country B to see them. If she chooses to move back to Australia, she must live within a confined geographical area near to where the family formerly lived. The area in Australia is large enough for her choose to reside in Sydney, or other designated areas of New South Wales. Again, that will make it easier for the children to spend time with the father on a weekly basis. The mother agreed she could not argue against such restraints. The mother must immediately restore the children’s electronic communication with the father, but it should be twice each week – not just once per week as the mother proposed. There is no need for it to be three times per week as the father proposed. It is the mother’s responsibility to ensure the children’s electronic communication with the father is established on each occasion. Such communication should occur when the children and the father are in different countries. It is not necessary if they are in the same country and the children spend regular time with him. If the mother and children live in Country B then, whenever the father visits Country B, the children shall spend time with him on one day each week and for one full week not more frequently than once every three months. One day each week should be sufficient for the children to restore and retain their loving relationships with the father and they should additionally have the benefit of occasional longer stays with him. If the mother and children move back to Australia, then the same regime will apply.

Ratio Decidendi

Legal Principle Established

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