FEDERAL CIRCUIT COURT OF AUSTRALIA
Bobal & Bobal [2021] FCCA 1851
File number(s): BRC 14871 of 2018 Judgment of: JUDGE SPELLEKEN Date of judgment: 11 August 2021 Catchwords: FAMILY LAW – parenting – final hearing – one child of the marriage – both parents seek an order for sole parental responsibility and for the child to live with them – allegations of family violence towards mother perpetrated by father – overseas travel – best interests Legislation: Family Law Act 1975, ss.4AB, 60B, 60CC, 61DA, 65DAA Cases cited: Carlson & Fluvium [2012] FamCA 32
MRR v GR (2010) HCA 4
Number of paragraphs: 91 Date of last submission/s: 4 December 2020 Date of hearing: 1 – 3 July and 3 & 4 December 2020 Place: Brisbane Counsel for the Applicant: Mr Bunning Solicitor for the Applicant: Simonidis Steel Lawyers Counsel for the Respondent: Ms Minnery Solicitor for the Respondent: Stone Group Lawyers ORDERS
BRC 14871 of 2018 BETWEEN: MR BOBAL
Applicant
AND: MS BOBAL
Respondent
ORDER MADE BY:
JUDGE SPELLEKEN
DATE OF ORDER:
11 AUGUST 2021
THE COURT ORDERS:
1.That all previous Parenting Plans and Orders be discharged.
Parental Responsibilities
2.The mother have sole parental responsibility for the child X born in 2015 (“the child”).
3.The mother shall:
(a)Consult with the father by email in respect to all “major long-term issues”, as that expression is defined in the Family Law Act 1975 for the child;
(b)Seek and consider the father's opinion in respect of the major long-term issues in question. The father is to respond to the mother by email within seven (7) days of receipt of the mother's communication advising whether he agrees with the mother's proposal or puts forward an alternate proposal and if so the reasons for his alternate position; and
(c)Inform the father of the outcome of her decision in respect of the major long-term issue in question.
4.That if no agreement can be reached between the parents in respect of a “major long-term issue” then the mother is to make the final decision.
Live with and spend time with arrangements
5.That the child live with the mother.
6.That the child spend time with the father as follows:
(a)Each alternate weekend from after school Friday until the commencement of school on Monday;
(b)During the Queensland gazetted school holiday periods as follows:
(i)In 2021:
A.September/October school holiday period for five (5) nights being the last five (5) nights of the school holiday period concluding at 5.00pm on the day before school recommences; and
B.December/January school holiday period for five (5) nights in the first, third and fifth weeks of the school holiday period.
(ii)From 2022 and thereafter, for the Term 1, 2. 3 and 4 school holiday periods:
A.The child will spend half of each school holiday with the Father. being the first half of each period with the Father in even numbered years and the second half in odd numbered years: and
B.The child will spend half of each school holiday with the Mother, being the…
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- Bobal & Bobal [2021] FCCA 1851
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CaseChat Overview and Summary
The court was required to determine several key issues, including where the child X should live, the allocation of parental responsibility, and the specific arrangements for the child's time with each parent, including during school holidays and special occasions. Additionally, the court considered provisions for telephone communication, overseas travel, and the exchange of essential information between the parents. The court also addressed the need for injunctions and restraints, particularly concerning the removal of the child from Australia and the conduct of the parents towards each other in the child's presence.
Justice Spelleken's reasoning was guided by the paramount consideration of the child's best interests, as stipulated by section 60CC of the *Family Law Act 1975*. The court accepted expert evidence that a stable environment was crucial for X and that a move to the father's primary care or equal time between parents would be unsettling. The court found that the mother's allegations of family violence were a true reflection of her experience, which, along with the father's concession regarding equal shared parental responsibility, rebutted the presumption of equal shared parental responsibility. Consequently, the court ordered that X live with the mother and that the mother have sole parental responsibility, with specific provisions for the father to be consulted on major long-term issues.
The court made detailed orders regarding the child's time with the father, including alternate weekends and a division of school holidays from 2022 onwards. Provisions were also made for telephone communication, special days, and changeovers. Significant emphasis was placed on overseas travel, with stringent conditions including surety payments and authenticated consent from both parents, and an injunction was issued restraining the removal of the child from Australia without such consent until the child turns eighteen. The court also ordered that the child's name be placed on the Family Law Watchlist. Finally, the court ordered that all previous parenting plans and orders be discharged and that all outstanding applications be dismissed.
Orders
Orders of the court
BRC 14871 of 2018
BETWEEN:
MR BOBAL
Applicant
AND:
MS BOBAL
Respondent
ORDER MADE BY:
JUDGE SPELLEKEN
DATE OF ORDER:
11 AUGUST 2021
THE COURT ORDERS:
1. That all previous Parenting Plans and Orders be discharged.
Parental Responsibilities
2. The mother have sole parental responsibility for the child X born in 2015 (“the child”).
3. The mother shall:
(a) Consult with the father by email in respect to all “major long-term issues”, as that expression is defined in the Family Law Act 1975 for the child;
(b) Seek and consider the father's opinion in respect of the major long-term issues in question. The father is to respond to the mother by email within seven (7) days of receipt of the mother's communication advising whether he agrees with the mother's proposal or puts forward an alternate proposal and if so the reasons for his alternate position; and
(c) Inform the father of the outcome of her decision in respect of the major long-term issue in question.
4. That if no agreement can be reached between the parents in respect of a “major long-term issue” then the mother is to make the final decision.
Live with and spend time with arrangements
5. That the child live with the mother.
6. That the child spend time with the father as follows:
(a) Each alternate weekend from after school Friday until the commencement of school on Monday;
(b) During the Queensland gazetted school holiday periods as follows:
(i) In 2021:
A. September/October school holiday period for five (5) nights being the last five (5) nights of the school holiday period concluding at 5.00pm on the day before school recommences; and
B. December/January school holiday period for five (5) nights in the first, third and fifth weeks of the school holiday period.
(ii) From 2022 and thereafter, for the Term 1, 2. 3 and 4 school holiday periods:
A. The child will spend half of each school holiday with the Father. being the first half of each period with the Father in even numbered years and the second half in odd numbered years: and
B. The child will spend half of each school holiday with the Mother, being the first half of each period with the Mother in odd numbered years and the second half in even numbered years.
Telephone Communication
7. That the child is to communicate with the father by telephone each Wednesday between 6:00pm and 6:30pm when the child is in the mother’s care, with the father to initiate the communication to a phone number provided by the mother in writing.
8. The child is to communicate with the mother by telephone each Saturday between 6:00pm and 6:30pm when the child is in the father's care, with the mother to initiate the communication to a phone number provided by the father in writing.
9. Each parent shall:
(a) Ensure that the child is available to receive the telephone call;
(b) Arrange for the child to return the telephone call to the other parent on the following night if, for any unforeseen reason, the communication is missed; and
(c) Ensure that the child has privacy during the conversation and that the conversation not occur on speakerphone and neither parent shall record the conversations.
Special days
Indian religious, traditional celebrations and festivals - Diwali, Navratri and Janmashtami
10. For the Indian religious, traditional celebrations and festivals being Diwali, Navratri and Janmashtami, the child's birthday, the mother's birthday and the father's birthday the child shall spend time with the parents as follows:
(a) Should the day fall on the weekend or a non-school day, the child shall spend time with the parent with whom he does not wake up with between 12:00pm and 6:00pm on that day; and
(b) Should the day fall on a school day, the child shall spend time with the parent with whom he does not wake up with between 3:00pm and 6:00pm on that day.
Father’s Day
11. For Father's Day, should Father's Day not fall during a period in which the child is spending time with the father pursuant to the terms of this Order, then the child is to spend time with the father on Father's Day from 9.00am until the commencement of school on the Monday after Father's Day
Mother's Day
12. For Mother's Day should Mother's Day not fall during a period in which the child is living with the Mother pursuant to the terms of this Order, then the child is spend time with the Mother on Mother's Day from 9.00am until the commencement of school on the Monday after Mother's Day
Changeovers
13. Changeover shall take place at the child's school on the days the child attends. If the child is not attending school changeover is to take place at the McDonalds Family Restaurant located at B Street, Suburb C.
Overseas travel, passport and Overseas Citizen of India card/document
14. Within seven (7) days of the date of these Orders the father shall do all acts and things including signing all documents so as to cause his solicitors Simonidis Steel Lawyers to release and provide the child's passport to the mother.
15. Within seven (7) days of the date of these Orders the father shall do all acts and things including signing all documents so as to cause his solicitors Simonidis Steel Lawyers to release and provide the child's Overseas Citizen of India card/document to the mother.
16. That pursuant to Section 11b(b)(i) of the Australian Passports Act 2005 (Cth), the child X born in 2015, is permitted to travel internationally.
17. The mother MS BOBAL if necessary is authorised to apply for an Australian passport for the child X born in 2015.
18. The mother is to be responsible for the safe custody of the child's passports (save for when the child is permitted to travel pursuant to these Orders) and the father is to do all things to return the child’s passports to the mother forthwith and within twenty-four (24) hours of the child’s return to Australia following any travel.
Child’s overseas travel with the mother and father
19. Before the mother or father are allowed to remove the child from the Commonwealth of Australia to any country which is a signatory to The Hague Convention or India the parents are to apply to have this Order resealed in India and first await the outcome of that application. Each parent is to bear their own costs of that application.
20. The mother and father are at liberty to take the child out of Australia for holidays and other short periods of time subject to the following and not before 2022:
(a) Unless otherwise agreed in writing between the parents the mother and father are not permitted to travel with the child to any country which is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction except for India:
(b) Unless otherwise agreed in writing between the parents:
(i) The duration of any overseas trip will not exceed one (1) week in the case of the Term 1. 2 and 3 school holiday periods and three (3) weeks in the Term 4 school holiday period.
(c) The travelling parent is provide to the other parent, in writing, with the following at least three (3) months prior to the first intended day of travel (and where less than three (3) months’ notice is given, only if the non-travelling parent is agreeable), with such notice to include:
(i) A draft itinerary showing the departure and return dates, the country or countries to which the travelling parent and child will travel and the approximate dates on which the child will arrive and depart each country;
(ii) Details of the proposed flights;
(iii) A phone number and address at which the travelling parent and the child can be contacted in each country.
(d) At least thirty (30) days prior to the child’s travel out of Australia with the travelling parent, that parent pay sixty thousand dollars ($60,000) surety into the bank account nominated by the non-travelling parent. The surety held in the non-travelling parent’s bank account is to be released to the other parent upon the child's return to Australia and the return of the child's passports to the mother.
21. The travelling parent is to provide to the other parent a copy of the airline tickets and full travel itinerary for the child not less than fourteen (14) days prior to departing Australia.
22. The travelling parent is to advise the other parent forthwith and within twenty-four (24) hours of any changes to the details in Order 21.
23. The travelling parent is to ensure that the child is able to contact the other parent as reasonably requested by the child.
24. The non-travelling parent is at liberty to communicate with the child by phone, Skype, FaceTime or similar means, on at least two (2) occasions per week during the period of travel and the travelling parent is to ensure the child is available to receive the call.
25. If both parents have arranged overseas trips for the child for the same period then, unless the parents agree otherwise, each parent can only travel with the child when he is due to be with them pursuant to this Order. The parent who provides the notice in accordance to Order 20 to the other parent first will be permitted to travel with the child overseas for the relevant period.
26. In the event the child fails to return to Australia following his travel with the travelling parent on or before the date provided in the authenticated consent, the non-travelling parent is hereby entitled to use the surety to cover any airfares, travel expenses, accommodation expenses, legal fees and similar expenses of the non-travelling parent to have the child returned to Australia.
Authenticated consent
27. Upon the mother and father’s compliance with:
(a) Order 20 and 21 of these Orders, the mother and father are to do all such acts and things to provide to the Australian Federal Police, their authenticated consent and for such purpose the following shall apply:
(i) The authenticated consent must be in writing;
(ii) It must state clearly the date upon which the child is to depart Australia and the date upon which the child is to return to Australia:
(iii) That the travelling parent has complied with the conditions set out in these Orders;
(iv) It must be signed by both the mother and the father;
(v) The mother and father’s signatures must be witnessed by a Justice of the Peace (Qualified) or Australian Legal Practitioner who is to confirm on the authenticated consent that they have viewed either a valid, unexpired Australian Passport or valid Australian driver's license for each of the mother and father upon them each signing the document;
(vi) Once signed, the authenticated consent must be provided to the Australian Federal Police forthwith by email (AOCCAlerts@afp.gov.au and copied to both parents) or such other means as directed by the Australian Federal Police; and
(vii) Thereafter, if required, the parents are to do all acts and things and sign all documents as directed by the Australian Federal Police and co-operate with the Australian Federal Police, to ensure the said child's name is temporarily lifted from the Family Law Watchlist to enable the travel to take place.
Family Law Watchlist
28. That:
(a) Until further Order, or in the absence of any further Order subject to the authenticated consent (as defined in Order 27 of these Orders) of all parents required to provide consent by Part VII of the Family Law Act 1975, each party MR BOBAL born in 1981 and MS BOBAL born in 1987 and their servants and agents be and are hereby restrained by injunction, (other than with the authenticated consent of these Orders), from removing or attempting to remove or causing or permitting the removal of X born in 2015 from the Commonwealth of Australia until the said child is eighteen (18) years of age;
(b) Other than with authenticated consent in accordance with the Orders, X born in 2015 be and is hereby restrained from leaving the Commonwealth of Australia;
(c) AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist for the said period, or until the Court orders its removal.
Exchange of information
29. The father is to keep the mother informed at all times of his address, mobile telephone number and email address and is to inform the mother in writing (by text message or email) of any change within twenty-fours (24) hours of any change.
30. The mother is to keep the father informed at all times of her mobile telephone number and email address and is to inform the father in writing (by text message or email) of any change within twenty-fours (24) hours of any change.
Medical issues
31. That the parents inform the other immediately by telephone or text message should the child suffer an illness (other than minor childhood ailments), be hospitalise or should any major injury occur while the child is in their care with such notification to include the name and details of any relevant medical practitioner or institution.
32. That each parent will keep the other informed of the names and addresses of any treating medical or other health practitioner/s who treat/s the child. The father is to use the General Practitioner and/or other health practitioners the mother uses for the child. The mother is to keep the father informed in the writing of such health practitioners.
33. That this paragraph is an Authority for either parent to obtain from any treating medical practitioner, hospital and/or healthcare professional any information concerning the health of the child, at the expense of the parent requesting such information and/or documents.
Parties’ communication
34. The parents use their best endeavours to personally communicate with one another by email in relation to all parenting issues, inclusive of the child's social events except in the event of any urgent circumstances surrounding the child, in which case the parents may contact each other by SMS text message or telephone. The mother and father's communication is to be in a civil manner.
Authority education and extra-curricular activities
35. This paragraph shall be sufficient authority for any educational institution or extra- curricular organisation attended by the child, to provide both parents with information about the child's educational progress and other school related activities, copies of school reports, school photographs, school correspondence, school newsletters, certificates and awards obtained by the child at the requesting parent's cost.
Extra-curricular activities
36. Neither parent is to enrol the child into extra-curricular activities that fall during the time the child is in the care of the other parent unless otherwise agreed in writing between the parents.
37. As to the agreed extra-curricular activity that the child is enrolled in, the parent who is caring for the child when the extra-curricular activity is to occur is take the child to his activity so that the child can attend and continue to participate.
38. Unless otherwise agreed to in writing by the mother and father, only the parent who is caring for the child when the extra-curricular activity or school event to which parents are invited to attend is to take the child and to attend the activity.
Injunctions and restraints
Video recording the Mother
39. The father is prohibited from video recording or engaging another person to video record the mother.
Foreign/overseas parenting applications
40. That the mother and father are restrained and an injunction is issued restraining the mother and father from filing any application for any parenting matters in any foreign/overseas courts.
Non-denigration
41. The parents whilst in the hearing or presence of the child:
(a) Not speak disrespectfully of the other parent:
(b) Not speak in a manner that denigrates or insults the other parent: and
(c) Use their best endeavours to ensure that other persons do not denigrate or insult the other parent in the hearing or presence of the child.
42. The parents whilst in each other's presence or while facilitating telephone communication involving the child or between themselves:
(a) Shall speak to each other respectfully:
(b) Shall treat each other in a civil and courteous manner: and
(c) Shall not discuss proposed arrangements with the child prior to discussing them with the other parent where the issue requires the consent of or notice of the other parent.
Resealing Order in India and Jurisdiction
43. The mother and father do all acts and things including signing all documents so as to apply for a copy of this Order to be resealed in India in the Family Courts of India. Each parent is to bear their own costs and incidentals to such application.
Finalising matter
44. That all outstanding applications be dismissed.
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
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
I have already made a finding and accept Ms K’s clear evidence that X has a close relationship with each of his parents.Section 60CC(3)(d) requires me to consider the likely effect of any change in X’s circumstances, or in his separation from one parent, or from any other child or person with whom he has been living Ms K in her first report was of the view, which I accept, that the March 2019 orders for equal time by May 2019 moved X’s time with his father too far too soon. Ms K was clearly also of the view expressed in both her second report and under cross-examination that it is important for X at his age to have a stable environment and that X is settled in the primary care of his mother. It was also her view which I accept that it would be unsettling for X to make an order that X move to his father’s primary care or to live equally between his parents. In relation to equal time I note paragraph 7.6 of Ms K’s second report where she opines that parental conflict leads to poorer outcomes for children and that she saw no sign that the mother and father could manage equal time in a way that would be in X’s best interests.Section 60CC(3)(j) requires me to consider any family violence to X or a member of the his family I have already made a finding in relation to family violence in this matter.WHERE X SHOULD LIVE Whilst there were questions put to Ms K about the benefits to X of spending equal time between his parents I understand the father’s position to be that he seeks an order for X to live with him. As referred to earlier the basis for that application was the father’s case that the mother has not and will not support X’s relationship with him moving forward and that this will, if it has not already, have an impact on X’s relationship with him. It is his view that the mother’s actions in these proceedings have been, as I indicated earlier, litigation-induced, insincere and disingenuous. I do not accept the father’s case in that regard nor do I accept that the mother has not supported or will not support X’s relationship with the father moving forward. I have also found that the mother’s allegations of family violence were not as the father claims false allegations to convince me to make the orders she seeks for X to live with her, but in fact a true reflection of her experience of the father’s violence towards her during the relationship and after separation. Taking into account all of the evidence before me and the findings I have made in this matter, it is my view that it would be in X’s best interests to live with the mother.PARENTAL RESPONSIBILTY Neither the mother nor father propose an order for equal shared parental responsibility and given the findings that I have made of family violence in the relationship between the mother and father clearly the presumption of equal shared parental responsibility is rebutted. In relation to this issue, Mr Bunning on behalf for the father conceded that an order for equal shared parental responsibility is not maintainable on the facts of either party’s case including his client, the father.