Barilis & Barilis (No 2)
[2024] FedCFamC1F 588
•25 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Barilis & Barilis (No 2) [2024] FedCFamC1F 588
File number(s): MLC 9662 of 2021 Judgment of: BAUMANN J Date of judgment: 25 June 2024 Catchwords: FAMILY LAW – CHILDREN – Where the parents are entrenched in litigation – Final orders made in the best interests of the children Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 65Y Cases cited: Barilis & Barilis [2023] FedCFamC1F 526
Vallans & Vallans (2019) 60 Fam LR 193
Division: Division 1 First Instance Number of paragraphs: 56 Date of hearing: 25 June 2024 Place: Melbourne Counsel for the Applicant: Litigant in person Counsel for the Respondent: Litigant in person ORDERS
MLC 9662 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BARILIS
Applicant
AND: MS BARILIS
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
25 JUNE 2024
THE COURT ORDERS ON A FINAL BASIS:
1.That the mother exercise sole decision-making responsibility for the major long-term issues of the children, X born 2015, Y born 2016 and Z born 2019 (“the children”), save that the mother shall, prior to making the sole ultimate decision about any such major long-term issue:
(a)notify the father in writing of the decision intended to be made;
(b)invite the father to indicate his views in writing;
(c)seek the father’s written response in relation thereto within seven (7) days;
(d)consider, by reference to the best interests of the children, any such response prior to making any such decision; and
(e)advise the father in writing as soon as reasonably practicable of her ultimate decision.
2.That the children live with the mother.
3.That the children spend time with the father as may be agreed between the parents in writing, but failing agreement as follows:
(a)Each alternate weekend from after school Friday to before school Monday;
(b)For Orthodox Easter in 2025 from after school (or 3.00pm) Friday until 5.00pm Sunday, and each alternate year thereafter;
(c)For Orthodox Easter in 2026 from after school (or 3.00pm) Thursday until after school (or 3.00pm) Friday, and each alternate year thereafter;
(d)For half of the term one (1), two (2) and three (3) school holidays:
(i)in odd numbered years, from 10.00am on the first Saturday to 10.00am on the middle Saturday of these holidays; and
(ii)in even numbered years, from 10.00am on the middle Saturday of these holidays to 3.00pm on the day before school resumes.
Special days
4.That unless otherwise agreed in writing between the parents, regardless of any other Order herein, the children shall spend time with the parents:
(a)If not already in the mother’s care, for Mother’s Day from 5.00pm the day before Mother’s Day to 5.00pm on Mother’s Day;
(b)If not already in the father’s care, with the father for Father’s Day from 5.00pm the day before Father’s Day to 5.00pm on Father’s Day;
(c)For the end of term four (4) Christmas school holidays, in a week about arrangement as follows:
(i)In even numbered years, with the father from 10.00am on the first Saturday of the Christmas school holidays; and
(ii)In odd numbered years, with the mother from 10.00am on the first Saturday of the Christmas school holidays.
5.That the children’s usual alternate weekend time with the father shall recommence in the school terms as if the weekend time had not been interrupted by the school holidays.
Telephone/facetime communication
6.That the children shall communicate with the parents by telephone/facetime each Wednesday and non-contact Sunday at 6.00pm when the children are not in their care, with the parent who does not have care of the children to initiate the call to the other parent’s mobile phone.
7.That the children shall otherwise be at liberty to telephone/facetime the other parent at all reasonable times.
Changeover
8.That where changeovers do not occur at school, unless otherwise agreed in writing between the parents, changeovers shall occur as follows:
(a)The father shall collect the children from the mother’s residence when the children are due to come into his care; and
(b)The mother shall collect the children from the father’s residence when the children are due to come into her care.
Exchange of information and authorities
9.That the parents shall:
(a)keep each other informed at all times of their email address, landline contact telephone number and mobile contact telephone number, and advise of any changes thereto within forty eight (48) hours of the change; and
(b)keep each other informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children.
10.That other than in an emergency, the parents shall communicate by email communication or through a parenting app.
11.That the parents do all things necessary to ensure the other parent is listed as an emergency contact with all allied health care providers, medical practitioners, care providers, schools or extra-curricular activities that the children may attend from time to time.
12.That this Order operates as any authority necessary for any allied health care provider including but not limited to medical practitioners, specialists or hospital treating the children and any care and/or educational facility which the children may attend upon from time to time to provide to the other parent such information as they may request regarding the children’s health, welfare and development at their own expense.
13.That both parents notify the other immediately, and if immediately is not possible, within four (4) hours, upon any of the children suffering any serious injury, illness, accident, or emergency whilst in their care and advise the other parent of the treatment provided and the contact details for the relevant medical service providers as soon as reasonably possible.
14.That in the event any of the children require medication, such medication and relevant dispensation instructions shall accompany the children at changeovers.
15.That each parent be at liberty to attend at all school functions and events that are normally attended by parents.
Other
16.That the children shall not be exposed to or attend the father’s Church.
17.That neither parent shall, when the children are in their care, be adversely affected by alcohol.
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 Barilis & Barilis 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 parents of X, born 2015, now aged nine, Y, born 2016, now aged eight, and Z, born 2019, now aged five, have been engaged in highly contested, highly emotional, totally intractable disputes since they separated in or about mid-2021.
It is not necessary to provide an extensive chronology because, essentially, the parties have, except for a couple of issues, which I will deal with shortly, adopted a draft minute of order produced to them by the Court for comment and marked as Exhibit 18 today. The need to do so was because of the inability (mostly through lack of legal representation, but not entirely) of the parties to properly articulate and identify their preferred parenting proposals.
BRIEF CONTEXTUAL SUMMARY
The father’s position, as I made clear at the commencement of the property and financial proceedings yesterday, gave me little assistance. Ultimately, for example, he confirmed that he was no longer pressing for an equal time arrangement but that he would consider his position. He then, over the luncheon adjournment yesterday; then sent a letter to the Court, which is marked Exhibit 2, in which he proposed an order containing a reduced the amount of time the children would spend with him.
The mother had always, and as her Application to the Court confirmed, supported the children having an ongoing relationship with their father. Her position, on the material, might be thought to have been challenged by some of the emotional comments that the mother has felt necessary to make towards the father. She is also an unrepresented litigant, and even though she acknowledged yesterday to me that she is somewhat enmeshed emotionally in these proceedings, and it has been difficult for her to sometimes separate what she sees as the great disadvantage her children of this relationship are suffering as a result of the catastrophic financial disaster that has caused these parties to be in the position they are at the moment.
However, the mother has always strongly opposed an equal time arrangement, which was one of the proposals ultimately suggested by the family report writer, Ms V. Ms V was not required for cross-examination in respect of her report that was filed in this Court on 6 November 2023.
The mother indicated to the Court, as the record will show, that she would support the children spending five nights a fortnight with the father but would prefer that time to be in a block. Her proposal was from Saturday to Thursday. On further engagement with the Bench, she saw some sense in perhaps the time starting from Friday afternoon after school until Wednesday - still a five-night block.
I am comfortably satisfied that the father (although he says he would want to have as much time with the children as possible) is not currently able, with all the other issues he is dealing with financially, to commit to a five night a fortnight arrangement. That would involve some significant travel. He, more than once, both in his very brief affidavit that he filed in this case and during his evidence, indicated he wanted simplicity and normality. The Court would be reluctant to make an order for the children to spend time with the father that he does not believe he can accommodate or has not sought.
Ultimately however, the father’s proposal to cease time at 5.00pm on a Sunday was modified by, again, exchanges with the Bench and adopted by the mother so that changeovers could occur at the children’s school on a Monday.
The parties were otherwise generally agreed that school holidays should be shared.
It has been a regrettable feature of this case, in its most recent stages, that the financially disastrous position of the parties, which will be the subject, ultimately, of a separate judgment of this Court, has caused enormous pressures upon these parties.
The mother is in a desperate financial situation. She is living in accommodation provided by her sister’s partner, itself being rented accommodation, but where she is not being required to contribute significantly. She had for most of the periods of separation resided in the home of her parents. That is not able to continue. I do not need to investigate why that is the case.
The mother is the primary carer now of four children. She has no job other than part-time in customer service. She relies upon Centrelink benefits. Most importantly, and despite constant urgings from her to the Court to make orders for such relief, she does not have a car.
The mother says that when she leaves the current temporary accommodation in July, she will need to move into crisis accommodation. She does not have certainty as to where that crisis accommodation will be.
One of the issues that has been a tension, at least in the parenting arrangements, has been that the only way the children have been able to get from their home to their school is for the father to effectively undertake all the travel. He says he cannot accommodate that any longer. The mother’s understandable solution is for the father to purchase her a car. The father says he does not have the capacity to do so.
Again, in a judgment yet to be issued, once clarification of a tax debt is known (on the face of the current evidence, the father owes a substantial sum to the Australian Taxation Office, possibly in the region of $1.8 million), there are limited assets that have been identified in the property proceedings. It is a particularly grim situation.
I make those comments because one of the issues that was in dispute between the parties, but reflected in the draft minute, was who should make long-term decisions about these children.
This is the second occasion that I have seen the parties in the witness box. I have also seen their conduct as litigants in person, a very difficult thing for them to do.
The mother has spent enormous amounts of time in preparation for this case, involving substantial time looking at subpoenaed documents; tracking through bank records and the like. She has been doing this at all times while she has had substantial care of four children and living in desperate financial circumstances. She is a woman of amazing strength and character. However, those pressures have, on many occasions, caused her emotional reactions in Court.
The father has been seemingly more passive during these proceedings. In the earlier part of these proceedings, he had both solicitor and Counsel. That engagement and that discrete hearing was directed to who would receive an amount of approximately $1.3 million sitting in a trust account. For reasons delivered by the Court (see Barilis & Barilis [2023] FedCFamC1F 526), those funds were paid to the husband’s mother as a result of the security she had provided these parties for loans to purchase real estate, a very unsuccessful process, as my Reasons earlier had indicated.
The father’s preparation for this trial has been woeful. He turned up yesterday without even a pen or paper. He has, by directions of the Court, produced further information which have been made Exhibits. They all entirely relate to the financial circumstances, which I said we will deal with on another day. He presents to me, in the witness box, consistent with his medical certificate attached to his affidavit, a medical certificate which, though not probatively before the Court, is dated May 2024. That confirms his general practitioner states that he has been under the medical care of that practitioner for the last 10 years. The certificate says:
This is to confirm that the above named patient is under by medical care for the last 10 years. He has the following chronic health issues which is being treated by medications with on going reviews.
Over the last 2 and a half years he has been taking many hours each day to travel up to 4 hours to pick up his 4 children to and from school activities. Since the last few weeks he has been suffering from increased anxiety, depression and stress with insomnia. There were several occasions he almost fell asleep while driving. This is highly dangerous for him and his children if an accident occurs. He is approaching a mental exhaustion if the current situation is not addressed.
His ex-partner has refused to assist with looking after the children. As a [finance] professional with heavy responsibilities and workload this situation cannot continue.
From a medical point of view he needs to cease to continue with the current arrangement for the next 3 months to allow him to achieve full recovery. This will significantly reduce his health risks to himself and avoid a serious road accident that could risk his life and his children’s lives.
(As per original)
His demeanour in the Court, frankly, was concerning. He seems a completely defeated individual. He showed no energy during the proceedings. He was significantly cross-examined by the mother, his estranged wife, as best she could.
It is within this context that the Court is being asked, as it should, in this litigation to make final orders for parenting.
FORM OF ORDERS
The parties have been operating under interim consent parenting Orders made by Senior Judicial Registrar Glass (as he then was) on 13 April 2022. They provided for the parties to have equal shared parental responsibility, as was the statutory obligations at the time to consider; that the children live with the mother; and that the children spend time with the father in two blocks amounting to five nights a fortnight. There was a provision for extra time during the school holidays. As I indicate, those Orders are now two years old. They have not been varied other than for interventions by the Court relating to schooling.
Schooling
Schooling is a particularly difficult issue for these parents.
There is no doubt that it was their expectation that the children would be schooled in the private education system.
The mother has indicated that she and her sister had the benefit of a private education which she has greatly appreciated. She holds double degrees . She is clearly an intelligent lady. The father’s education is not known to me, but he is also a professional person with qualifications. They recognise the benefits for their children if private education can be provided to these children.
In particular, the mother in her affidavit refers to her specific concerns about Y and how he might cope if he has to change schools. She supports those concerns with paediatric advice. I am satisfied that a change of schooling is probably not ideal for any of these children. The mother raised with the father, why, on the evidence, as seems is the case, X, Y and Z are being treated differently than W (the father’s daughter from an earlier relationship, who is still maintaining private education). Frankly, the father was unable to give an adequate response. I can understand why the mother sees how her three children in this relationship are being treated differently, but ultimately the right to private education is a contractual right. It arises from parents being able to afford to pay and directly pay school fees to an institution, and that institution by contract agreeing to educate the children.
The evidence at the moment, and this will become a matter that will be dealt with again when I deal with child support issues in the financial judgment, is that the father was paying the school fees to the end of the 2023 school year, but he says that he has not had the moneys to pay this year and they have been paid by his mother – an 83-year-old. No grandparent has a legal obligation to pay for the school fees of their grandchildren. Payment of school fees is a matter for the parents, although I accept many parents get support from grandparents because of a family desire for education and private education.
However, as I have said on more than one occasion to the mother, with very little acknowledgement because of her distress about the outcome for her children, throughout Australia the State provides a capable and competent education system for those children whose parents are unable to offer their children private education. There is no right that exists in law in Australia for children to attend private education. There is a right for them to be educated. As difficult as it is for this mother, she is, I think, slowly coming to terms with the real prospect that these children will need to move to the public education system. I take that into account when I have proposed the orders which the parties have made submissions on, which is Exhibit 18.
Decision making and living arrangements
In my view, it is in the best interests of the children that the mother have sole decision making responsibility for major long-term decisions, but that she should only do so after consulting the father.
I am concerned with the history of litigation, which, in the father’s case, has cost many thousands of dollars in legal fees, and in the mother’s case, with at least $44,000 owing to former solicitors (who intervened in the proceedings) and probably other costs as well. She has, for the last at least 12 months or more, been unrepresented. The thought that these parents will return to the Court to argue over parenting issues, I find very disconcerting and likely to be disadvantageous to the children.
In my view, the best way of overcoming that prospect is to appoint one person to be the person who would, in the ultimate result, make a final major long-term decision, after consultation. I am aware of decisions such as Kent J’s decision in Vallans & Vallans (2019) 60 Fam LR 193, which talks about the effect on a parent who might appear to have been excluded from decision-making, but frankly, in my view, the mother has had to make most of the big decisions for these children recently and there is nothing in the decision-making she has exercised as yet has raised any concern.
The children will be living with her for most of the time. It is practical and appropriate to vest sole decision making upon the mother. I accept that is a change from the interim position that the parties agreed to, but things are different because I have had the benefit of seeing these parties in the witness box. I have very real concerns about their capacity to communicate in the future, particularly as it may well be that the economic situation will not improve.
Risk factors raised on the material
The mother says in her material, without much evidence to support it, that she is concerned the father would expose the children to the teachings of his Church. In his evidence in the witness box, the father agreed that he would not expose the children to the beliefs of that faith.
The mother did not raise any issues with the father in the witness box about his current use of alcohol. She points to her concerns about what she says was excessive use of alcohol by the father during the relationship. I am prepared to accept that as this relationship started to deteriorate, the stresses in the relationship may well have caused the father to drink more than he should have. However, when I asked the mother to point in her affidavit to examples of evidence of current excessive alcohol, she is unable to do so. Nonetheless, the fear remains. It is a fear that arises from her lived experience of the relationship.
I note that Ms V, who, as I say, prepared the family report, procured at the cost of the father, did not make any recommendations in relation to alcohol use. Her recommendations, in fact, ultimately provided that the children should live in a week about arrangement, but as I have indicated, that is no longer a proposition that the father sought to maintain.
Having heard the mother’s submissions, however, and with the consent of the father, I will make an order about the children not being exposed to excessive use of alcohol when the children are in either parents’ care. Alcohol is a legal substance in Australia. Parents are entitled to drink at their home. We have traffic laws that seek to prevent parents from driving when they are affected by alcohol. Police are the people who enforce those requirements.
My focus must be on the children. I accept that if there was evidence that the children were coming home to the mother regularly complaining about the father’s use of alcohol and his behaviour, I would have concerns, but there is no evidence of that, and more particularly, since the interim Orders were made over two years ago, where the father has had extensive unsupervised time, there is no current evidence of difficulties. That is not to say that the father may not drink alcohol when he had not had the children with him. He, of course, will have the children with him less now. There is no reason why he should be affected by alcohol when the children are with him for the limited period that they now will be.
This order should not be seen as trying to constrain, for example, the mother from having a glass of wine occasionally, but she herself would accept that it would not be appropriate if she was adversely affected by alcohol when the children are in her care. She will have every second weekend and half of the holidays in which she will be able to engage in social conduct which might involve some additional alcohol if that was her choice.
Travel
The orders do not make provision for international travel.
Section 65Y of the Family Law Act 1975 (Cth) (“the Act”) provides that children of Australia are not entitled to leave Australia without the consent of both parents or by Court order. They do not need consent to go for a holiday within Australia. All Australian citizens have right of movement under our Constitution. However, if in the future a parent wishes to take a trip overseas, they will need to obtain an order of the Court or the consent of the other parent. The mere securing of a passport, which is a travel document to leave the country, is not the same as consent under s 65Y of the Act.
I make this observation because these parties who are unrepresented may need to reflect on these Reasons, which will be published.
I have chosen to make simple orders in this case which are reflected in at Exhibit 18, rather than attempt to contain these parents in every possible future parenting conflict. I could not possibly, it seems to me, be confident I could anticipate every one of these events. These parents have been highly conflictual, but I am satisfied they are good parents who love their children.
Notwithstanding the difficult financial situation the family is now in, of which, as I say, I will say more at a later stage, it is not the law of this country that because people are in difficult financial circumstances, children should not have the right which the law gives to them of having a relationship, provided they are safe, with their parents and other people significant to their care, welfare, and development.
Making that observation and the comments I have made, I have, of course, had in mind the statutory pathway now set by the Parliament.
STATUTORY PATHWAY
Since 6 May 2024, the statutory pathway for parenting orders has altered. Now, there are just two objects in section 60B of the Act:
(a)s 60B(a) is to ensure the best interests of the children are met; and
(b)s 60B(b) is to give effect to the Convention on the Rights of the Child.
The general considerations contained in section 60CC(2) prescribe that, for the purposes of the best interests consideration, the Court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
I have turned my mind to the general considerations set out in s 60CC(2).
I am concerned, and I put it to the father during the course of his evidence, that a reduction in time between the children and himself will be an adjustment for these children. Their comments to Ms V, and the evidence generally, suggests that these children (difficult as it has been) have weathered the conflict of their parents and have maintained a relationship with both their father and their mother.
This is a case where there is an absence of any evidence that the arrangements ordered on an interim basis have broken down. There are no contravention applications or enforcement applications. I think the evidence allows me to form the view that when the children are with their mother, they enjoy their time, respect her and love her, as she does them, and when they are in the care of their father, they enjoy that time, respect him and love him, as he does them.
I put to the father about the effect on his children of a reduction in time – a significant reduction in time and frequency. He returned to the difficulties about travel. In my view, his response was not particularly child focused. It was effectively saying, “I will see my children less because the mother will not make an effort to get the children to me.” That may not have been the message he wanted to deliver, but that is the message I got.
The child Y has some additional needs. However, they are not so significant that I believe the reduction in time will have an adverse effect upon him. I do not accept the issue of safety raised by the mother, other than her concerns about alcohol, which I have referred to above.
I am satisfied these parents have the capacity to provide for the children’s development, psychological, emotional and cultural needs. My impression from all the evidence is that these parties come from strongly enriched Country O backgrounds. The extent to which the grandparents, if alive, and extended family play a role in the life of the children is a little uncertain, but culturally, it is to be expected that they do have a lot to do with their extended family.
It is in the best interests of these children to have a relationship with both parents. I am comfortable that the mother will be the primary carer. She has, under enormous pressures and difficulties, always focused on her children’s needs. Notwithstanding the challenges of the future, which may not improve, I have every confidence that she will always be focused primarily on her children.
For the Reasons I have given, the orders which I make today are those set out in Exhibit 18 with the slight amendment discussed. There is one other amendment I wish to make to that, and that is that the parents shall communicate, other than in an emergency, by email communication, either through a parenting app or by sharing a current and maintained email address.
I find the orders which appear at the commencement of these Reasons are in the best interests of the X, Y and Z at this time.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 4 December 2024
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