FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bilson & Trang [2023] FedCFamC2F 1734
File number(s): NCC 27 of 2019 Judgment of: JUDGE BETTS Date of judgment: 13 December 2023 Catchwords: FAMILY LAW – parenting – final orders – two children ages 10 and 5 – where the mother is primary carer and seeks to relocate from Town B to Sydney – where the Father is the biological parent of the youngest child only – where the Father opposes the relocation and seeks an increase in time with the youngest child – where the relationship between the parents was volatile and remains high conflict – where the youngest child has autism – where there mother’s attitude toward the father raises serious concerns as to her willingness and capacity to promote the father’s relationship with the child – best interests of child for mother to have sole parental responsibility, child live with mother in Town B area and have an increase in time with father. Legislation: Family Law Act 1975 (Cth) Cases cited: Adamson & Adamson (2014) FLC 93-622
U & U (2002) FLC 93-11
Zahawi & Rayne [2016] FamCAFC 90
Division: Division 2 Family Law Number of paragraphs: 272 Date of last submission/s: 5 July 2023 Date of hearing: 3-5 July 2023 Place: Newcastle Counsel for the Applicant: Mr Taylor Solicitor for the Applicant: Grace Family Law Counsel for the Respondent: Ms McKensey Solicitor for the First Respondent: Collett Lawyers Counsel for the Independent Children's Lawyer: Mr Squires Solicitor for the Independent Children’s Lawyer Legal Aid NSW ORDERS
NCC 27 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BILSON
Applicant
AND: MR TRANG
First Respondent
MR MURRAY
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
13 DECEMBER 2023
THE COURT ORDERS THAT:
1.All previous Orders in relation to the children X born in 2018 and Y born in 2013, are discharged.
2.That X and Y live with the mother.
Y
3.The mother have sole parental responsibility for Y.
4.Y spend time with the second respondent father, Mr Murray, as agreed in writing between the mother and the second respondent.
5.The mother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of NSW to change the name of the child Y Murray born in 2013 to Y Trang and it is requested that the Registrar of Births, Deaths and Marriages for the State of NSW, upon the Application of the applicant referred to herein, give effect to this Order by doing all acts and things necessary to register the change of name of Y Murray born in 2013 to Y Trang pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW notwithstanding that the consent of the second respondent has not been obtained.
6.Unless otherwise agreed in writing between the mother and the applicant father Mr Bilson, the child Y spend no time with him.
X
7.The mother have sole…
Continue reading Bilson & Trang
Sign in free to access the full text
- AGLC
- Bilson & Trang [2023] FedCFamC2F 1734
- Case
- [2023] FedCFamC2F 1734
- Decision Date
CaseChat Overview and Summary
The court found that it was in the best interests of both children for Y to live with the mother and for X to live with the mother as well, with sole parental responsibility assigned to the mother for both children. The court restrained the mother from relocating X outside a 50 kilometre radius of Town B, and ordered that Y not spend time with the father unless agreed in writing between the parents. The court set out detailed parenting arrangements for the father's time with X, specifying times during school terms and holiday periods. The court also addressed communication between the parents, restraining them from denigrating each other in the presence of the children and requiring the use of a co-parenting app for non-emergency communication. The court imposed various restraints on both parents, including restrictions on physical discipline, consumption of alcohol and illicit substances, and exposure to family violence.
The court further ordered that the children's passports be held in trust by a law firm and that the costs associated with obtaining and maintaining the passports be shared equally by the parents. The court also outlined procedures for travel with the children, including the requirement for a security bond when the mother travels to Country F. Finally, the court noted that when X is older and developmentally appropriate, each parent should enable X to communicate with the other parent as X wishes.
The final orders discharged all previous orders, assigned sole parental responsibility to the mother, set out detailed parenting arrangements for X and Y, restrained the parents from certain behaviours, and provided for the holding and use of the children's passports. The proceedings were removed from the list of active pending cases.
Orders
Orders of the court
NCC 27 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR BILSON
Applicant
AND:
MR TRANG
First Respondent
MR MURRAY
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
13 DECEMBER 2023
THE COURT ORDERS THAT:
1. All previous Orders in relation to the children X born in 2018 and Y born in 2013, are discharged.
2. That X and Y live with the mother.
Y
3. The mother have sole parental responsibility for Y.
4. Y spend time with the second respondent father, Mr Murray, as agreed in writing between the mother and the second respondent.
5. The mother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of NSW to change the name of the child Y Murray born in 2013 to Y Trang and it is requested that the Registrar of Births, Deaths and Marriages for the State of NSW, upon the Application of the applicant referred to herein, give effect to this Order by doing all acts and things necessary to register the change of name of Y Murray born in 2013 to Y Trang pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW notwithstanding that the consent of the second respondent has not been obtained.
6. Unless otherwise agreed in writing between the mother and the applicant father Mr Bilson, the child Y spend no time with him.
X
7. The mother have sole parental responsibility for X.
8. In exercising parental responsibility in relation to X, except in cases of emergency, the mother will notify the father of any major or long-term decisions she intends to make for X no later than fourteen (14) days prior to the decision taking effect.
9. The mother is restrained from relocating X's residence outside of a 50 kilometre radius of Town B/Region C.
10. X spend time with the father as agreed in writing between the parents but failing agreement as follows:
During NSW school terms
(a) Until X commences Term 1 of Year 2 (in 2026) X is to spend each alternate weekend from the conclusion of school/daycare Friday or 3.00pm if a non-school or daycare day, until the commencement of school or daycare on Tuesday or 9.00am if a non-school or daycare day.
(b) Upon X commencing Term 1 of Year 2 in 2026, the father's alternate weekend time is to commence at conclusion of school on Thursday or 3.00pm if a non-school day until commencement of school Tuesday or 9.00am if a non-school day.
(c) As of X commencing year 1 in 2025, the father's alternate weekends during school term are to commence the first weekend in Term 1 and Term 4. Weekend time in Term 2 is to align with the weekend that does not include Mother's Day. In Term 3 the father's weekend is to align with the weekend that includes Father's Day.
During NSW school holiday periods
(d) During the New South Wales school holiday periods commencing in 2024 the time in Orders 10a and 10b is suspended and in lieu X shall spend time with the father as agreed in writing between the parents but failing agreement as follows:
(i) During the New South Wales Term 4 school holiday period in 2023 from 3.00pm on 24 December 2023 until 3.00pm on 29 December 2023 and from 3.00pm on 8 January 2024 to 3.00pm on 13 January 2024.
(ii) From 2024 onwards the father will have one week with X during the end of Term 1, 2 and 3 school holiday periods commencing at the conclusion of school on the last day of school Term and concluding at 3.00pm on the middle Friday of the holiday period.
(iii) During the NSW Term 4 holiday period in 2024 the father will have X from 3.00pm on the first Saturday after school finishes until 3.00pm on 24 December 2024. The father will have X from 3.00pm on 3 January 2025 to 3.00pm on 10 January 2025 and from 3.00pm on 17 January 2025 to 3.00pm on 24 January 2025.
(iv) During the NSW school Term 4 holiday period in 2025 and each odd year thereafter, the father will have X from the conclusion of Term on the last day of school until 3.00pm on the middle Saturday and in 2026 and even years thereafter the father will have X from 9.00am on the middle Saturday until 3.00pm on the last Friday.
11. If X is not already in the father's care, X is to spend time with the father on the first day of Naidoc week as agreed in writing between the parents but failing agreement from 3.00pm until 6.00pm on school days and 10.00am until 3.00pm on non-school days.
12. In order to facilitate the father's time with X, he will collect X from daycare or school at the commencement of the time and return X to daycare or school at the conclusion of the time. In the event the changeover occurs on a non-daycare or non-school day the parties will conduct changeovers inside the McDonalds at D Street, Town B.
CHANGE OF NAME REGARDING X
13. Within ten working days of the date of these Orders, the mother will complete the form required to register X's birth with the Registrar of Births Deaths and Marriages in NSW and her solicitor will send the form either electronically or by registered post to the father to sign.
14. Within five working days from receipt of the application from the mother pursuant to Order 13, the father will return the form signed by him to the mother's solicitor by registered post.
15. Within five working days from the receipt of the completed application form from the father pursuant to Order 14, the mother will apply to register X's name as "X Bilson-Trang" with the Registrar Births Deaths and Marriages NSW and will pay all associated costs.
16. The mother will provide the father with a copy of the registration within seven days of submitting to the Registrar of Births Deaths and Marriages.
17. Once issued, the mother will provide the father with a certified copy of X's Birth Certificate.
18. Pursuant to Section 28(5) of the Births, Deaths and Marriages Act NSW 1995, the Registrar will register X's name in the form specified in Order 15 of these Orders.
19. The mother shall serve a sealed copy of these Orders upon the Registrar Births, Deaths and Marriages of NSW.
AUTHORITIES
20. These Orders will be sufficient authority for any medical practitioner, allied health professional or ambulance officers who may treat the child from time to time to speak freely with the father about the child and provide the father (at his expense) with any information he may reasonably request about the child and any diagnosis and treatment the child may be receiving including providing a copy of any relevant report.
21. These Orders will be sufficient authority for the school/daycare/preschool attended by X from time to time to provide the father upon issue a copy of each school report, school newsletter, school photographs, report/s on progress and/or behaviour issues at school, any notification to parents of events affecting the child and events to which parents are normally invited.
22. The mother will do all things necessary and required to provide a copy of these Orders to all medical practitioners/allied health professionals/schools and daycares that X attends or has interactions with, and to the NDIS.
23. This Order authorises the NDIS to provide the father with any information concerning X as reasonably requested by the father (at his expense) including providing the father with copies of any reports the NDIS considers appropriate.
COMMUNICATIONS
24. All communication between the parents except in the case of emergency, occur through use of the co-parenting App "AppClose".
25. Both parties keep the other informed of their contact phone number, email address and residential address and notify the other of any change to those details within twenty-four (24) hours thereof.
RESTRAINTS
26. The mother is hereby restrained from using physical discipline (including biting or pulling hair) against X or allowing or causing any third party to do so.
27. Both parents are restrained from denigrating the other in the presence or hearing of X or from allowing X to remain in the presence or hearing of a third party who does so.
28. The father is hereby restrained from consuming illicit substances when X is in his care or in the twenty-four (24) hours before.
29. The father is hereby restrained from consuming alcohol while X is in his care, or from being in any way affected by alcohol when X is in his care.
30. Each party is restrained from wilfully exposing X to "Family Violence" as defined in section 4AB of the Family Law Act, a copy of which section will be attached to the Order.
PASSPORTS AND TRAVEL
31. The parties are at liberty to do all things and sign all documents to cause an Australian Passport to be issued for X and to thereafter ensure that X continues to hold a valid Australian Passport.
32. The costs associated with the application for a passport and its renewal are to be shared equally between the parties.
33. Within two (2) business days of receipt of X's passport, the mother must:
(a) Provide a certified copy of X's passport to the father;
(b) Make arrangements for the passport to be delivered to the offices of "E Lawyers" in Town B.
34. Thereafter, unless otherwise agreed in writing, the parties will ensure that X's passport is held in safe custody at E Lawyers, subject to these Orders.
35. The parents will equally share all reasonable costs incurred by E Lawyers in relation to storage and release of X's passport, trust account fees and any other associated costs.
36. Unless otherwise agreed in writing X is hereby permitted to travel overseas in the care of either of his parents, during the time the travelling parent would ordinarily spend with X, provided the travelling parent has written to the other parent with the following information, not less than three months before the intended departure date:
(a) The time and date of departure from Australia and time and date of return to Australia; and
(b) The address and contact details of where X will be staying throughout the trip including the names of hotels and other accommodation; and
(c) A copy of the flight or other transport details and any available itinerary; and
(d) A certified copy of X's current passport if the parent does not already have one;
(e) Should the mother wish to travel overseas she will pay by way of a security bond the sum of $25,000.00 into the trust account of E Lawyers (or another law firm as agreed between the parties in writing) before travelling with such funds to be distributed as follows:
(i) To be repaid to the mother within fourteen days of X's return to Australia;
(ii) To be released to the father within fourteen days of X not returning on the day that he was due to return to put towards the costs of initiating legal proceedings to recover X and/or the costs of travel overseas for the purpose of recovering X and returning him to Australia.
37. Unless otherwise agreed in writing, upon the non-travelling parent being provided with the information in Order 36 above, both parents will authorise E Lawyers to release X's passport to the travelling parent within seven days of a request.
38. The travelling parent must return X's passport to E Lawyers either in person or by registered post, within seven days of X arriving back in Australia.
39. In the event of the hospitalisation or death of the Maternal Grandfather or Maternal Great Grandmother, the mother is at liberty to travel to Country F for up to two weeks (unless otherwise agreed in writing with the father) with X in order to visit the family or attend the funeral provided that the mother gives notice to the father at least forty-eight hours prior to departure and lodges a security bond of $25,000.00 into the trust account of E Lawyers prior to departure with such funds to be distributed as follows:
(a) To be repaid to the mother within fourteen days of X's return to Australia;
(b) To be released to the father within fourteen days of X not returning on the day that he was due to return to put towards the costs of initiating legal proceedings to recover X and/or the costs of travel overseas for the purpose of recovering X and returning him to Australia.
40. In the event that the mother travels to Country F with X pursuant to Order 39 during time that X would ordinarily be with the father, then the parties will arrange for X to spend "make-up time" with such makeup time to be provided within three months of the mother's return to Australia.
41. The proceedings be removed from the list of active pending cases.
NOTATION:
A. When X is older and when it is developmentally appropriate, the Court expects that each parent will enable X to telephone or communicate with the other parent by electronic means at any reasonable time that X expresses a wish to do so.
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.