Bohler & Jugovac (No 2)
[2025] FedCFamC1F 116
•18 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bohler & Jugovac (No 2) [2025] FedCFamC1F 116
File number(s): SYC 5417 of 2021 Judgment of: ALTOBELLI J Date of judgment: 18 February 2025 Catchwords: FAMILY LAW – PARENTING –Where an oral interim application was pressed seeking greater time with the father –Where the application was sought on the final day of a part heard final hearing – Where the mother and the Independent Children’s Lawyer opposed the application – Where the Court made orders to extend the father’s time with the child pending the outcome of the substantive hearing Legislation: Family Law Act 1975 (Cth) s 60CC Division: Division 1 First Instance Number of paragraphs: 36 Date of hearing: 5 February 2025 Solicitor for the Applicant: Mr Jones of Jones Hardy Counsel for the Respondent: Ms Clarke Solicitor for the Respondent: Saint Rose Legal Counsel for the Independent Children's Lawyer: Ms Stolier Solicitor for the Independent Children's Lawyer: Mason Mia & Associates-Solicitors & Advocates ORDERS
SYC 5417 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BOHLER
Applicant
AND: MS JUGOVAC
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
18 FEBRUARY 2025
PENDING FURTHER ORDERS, THE COURT ORDERS THAT:
1.The matter is hereby adjourned to 4 August 2025 at 10:00 am to continue the current part-heard Final Hearing.
2.From the date of the making of these orders, X born 2020 ("the child") shall spend time with the Applicant ("the father") as follows:
(a)Week 1:
(i)8:30 am Tuesday until 3:30 pm Tuesday;
(ii)12:30 pm Saturday to 2:30 pm on Sunday with the father to facilitate the child's attendance at language school on Saturday; and
(iii)Such other times as agreed.
(b)Week 2:
(i)8:30am Tuesday to 8.30am Wednesday with the father to deliver the child to daycare/and or school on Wednesday; and
(ii)Such other times as agreed.
3.Commencing 25 April 2025, the child shall spend time with the father at such times as agreed but failing agreement as follows:
(a)Week 1:
(i)8:30 am Tuesday until 3:30 pm Tuesday;
(ii)Friday 3:30 pm until 3:30 pm Sunday with the father to facilitate the child's attendance at language school on Saturday; and
(iii)Such other times as agreed.
(b)Week 2:
(i)8:30 am Tuesday to 8.30 am Wednesday with the father to deliver the child to daycare/and or school on Wednesday; and
(ii)Such other times as agreed.
BY CONSENT AND PENDING FURTHER ORDER, THE COURT ORDERS THAT:
4.Handovers between the parents will occur outside N Cafe, O Daycare or the language school if the child is attending school, or such other place as agreed between the parties in writing.
5.In the event that either parent is unable to care for the child in accordance with these orders, then the parents are to provide each other with no less than four (4) hours' notice and the parent is to have the first right of refusal to care for the child prior to the parent making alternate care arrangements.
6.Each parent shall provide such consents and authorities as may be required:
(a)By any school attended by the child to enable both parents to receive feedback and/or reports relating to the child and to discuss her welfare and performance at the school with her teachers;
(b)The father may contact or correspond and attend with O Daycare ("the daycare") to engage with the educators in respect to the progress of the child;
(c)The father may attend events at the daycare that an ordinary parent would normally attend whilst their child is present or not;
(d)The school is to provide to the father the child's progress, newsletters, reports, photographs and details of special days and details of any school activities via email or the chosen daycare application; and
(e)The father be at liberty to discuss matters relating to the child with the child's school, teachers, principal, day-care and other care provider at any time.
7.The parent shall communicate via text message or such similar application as agreed between the parents in writing.
(a)The parents shall ensure that the other is kept informed of:
(b)Any medical problems or illnesses suffered by the child whilst in their care, such medical problems to include, but not be limited to, experiencing illness, injury, psychological distress and admittance to hospital; and
(c)Any medication that has been prescribed for the child and shall ensure the other parent is provided with this medication whilst the children are in the other parent's care.
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 Bohler & Jugovac has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
ORAL REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
The following oral reasons are provided in this matter. Unless indicated to the contrary, the following represents findings of the Court. This case is about X, born 2020 (“X”), who is currently four but rapidly heading towards five years of age. The issue the Court had to decide is whether to further extend X’s time with Mr Bohler (“the father”), pending the conclusion of part heard proceedings. The substantive issue of the part heard proceedings is whether Ms Jugovac (“the mother”) should be allowed to relocate to Japan with X on a final basis. The substantive proceedings have been adjourned to 4 August 2025 for an additional three days.
By way of background, the father is the applicant. He was born in Country C and moved to Australia in 2010. He is 43 years old, has permanent residency, and has applied for Australian citizenship. It appears that he runs his own business and has a flexible work schedule. The mother is the respondent. She was born in Japan and moved to Australia in late 2018 on a working holiday visa. She is 37 years old and now has permanent residency in Australia. She has limited and unstable employment here, although she is a certified health professional in Japan.
The father and mother (“the parents”) met in Sydney in 2019. The mother fell pregnant shortly thereafter. In early 2020, the mother returned to Japan to visit family with the father intending to travel to Japan shortly after. However, due to travel restrictions arising from the COVID-19 pandemic, the father’s flights were cancelled, and the mother was unable to return to Australia due to her pregnancy. The father obtained a travel exemption and was able to travel to Japan for X’s birth. As the parents were not married at the time of X’s birth, the father was not permitted to have his name on X’s birth certificate under Japanese law. The parents became engaged in Japan in mid-2020 but have not married.
The father returned to Australia in mid-2020 due to work commitments. The mother and X remained in Japan before returning to Australia in mid-2021. The parents then lived together, with X, in a rented unit in Suburb D NSW.
Dr F, (“the Single Joint Expert”) prepared a Family Report dated 10 April 2024 (“the Single Joint Expert Report”). The Single Joint Expert described X, at the time, as being a shy child who was quite reserved in her communication. He further elaborated that X would opt for one to two words to communicate and noted that she speaks both Japanese and English. At the time of interviews with the Single Joint Expert, X was only three years old and therefore, was not interviewed alone.
The current spend time arrangements as between the father and X are as follows:
·Each weekend from 12:30 pm Saturday to 2:30 pm on Sunday; and
·In each alternate week, Tuesday from 8:00 am to 6:00 pm.
The father noted, during submissions, that his Tuesday time with X had only reduced to alternate weeks since December 2024, allegedly as a result of the mother’s unilateral actions. That is an assertion he makes, but no finding can be made about this.
THE PROPOSALS
The father proposed, in effect, that his time with X increase to three nights per fortnight, as follows:
·In week 1:
·from 8.30 am on Tuesday until 6:00 pm on Tuesday;
·from 3.30 pm on Friday until 3.30 pm on Sunday with the father to facilitate X’s attendance at Japanese school on Saturday; and
·at such other times as agreed.
·In week 2:
·from 8.30 am on Tuesday to 8.30 am on Wednesday, with the father to deliver X to daycare and/or school on Wednesday; and
·at such other times as agreed.
The mother proposed that X spend time with the father two nights each fortnight as follows:
·In week 1:
·from 8.30 am Saturday to 3.30 pm on Sunday with the father to facilitate X’s attendance at Japanese school; and
·at such other times as agreed.
·In week 2:
·from 8.30 am on Tuesday until 8.30 am on Wednesday, with the father to deliver X to daycare and/or school; and
·at such other times as agreed.
The Independent Children’s Lawyer expressed support for the mother’s position at present; however, was supportive of the father’s time with X progressing. The Independent Children’s Lawyer was of the view that the time ought to progress to three nights per fortnight in April 2025 around Easter. In relation to the father spending time with X each Tuesday, the Independent Children’s Lawyer was not averse to this time continuing. It was also noted that X had been used to spending Tuesdays with the father in the past, and whilst it was the mother’s case that the weekly Tuesday time had ceased due to the father commencing overnight time, nonetheless, it was observed that daytime contact is a very different experience for a child.
Orders 2 –6 sought by the parents are identical, and accordingly, those orders will be made by consent. The totality of the testing of the evidence is unfinished. The father’s cross-examination has concluded; however, the mother’s cross-examination remains incomplete. In these circumstances, the Court declines to make any observations or findings about the evidence given by the father, as assessment of it will be dependent on the evidence of the mother.
THE APPLICABLE LAW
The applicable law is contained in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The relevant section is s 60CC of the Act:
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
General considerations
(2) For the purposes of paragraph (1)(a), 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.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
(Emphasis in original)
THE SUBMISSIONS
The father
The father made the following submissions in support of his interim application.
He pointed out that the mother’s proposed final orders contemplate three nights per fortnight with the father, which is consistent with the recommendations of the Single Joint Expert. Indeed, at paragraph 143 of the Single Joint Expert Report, it suggests that X spend increasing time with the father over the next few years. The father submits that the mother’s interim proposal is disingenuous in circumstances where she is seeking three nights on a final basis. The father submits that the mother agreed to the father spending two consecutive nights during the past school holiday period. Further, it was asserted that any impact upon X from having increased time with the father would be moderated by the ongoing family therapy. Such therapy is supported by the parents.
X has enjoyed time with the father on Tuesdays for over three years, and this arrangement only ceased in December 2024. The basis for the mother’s proposal in seeking to limit the father’s Tuesday time on a weekly basis is unclear, especially in circumstances where the updating affidavit of evidence provided by the father suggests that X is doing very well during her time with him.
The father should be spending each Tuesday with X in accordance with the orders made on 13 May 2024, particularly where the mother has not made any application to set aside those orders. The father provided the Court with two emails dated 18 December 2024 and 16 January 2025 respectively, (Exhibit A2). The email dated 16 January 2025 states that the father does not agree with the proposal for alternating Tuesdays with X. As foreshadowed, it is not possible to make findings in relation to how this came to be. In any event, the interviews with the Department of Communities and Justice by the mother contain references of reports made by the mother such that, X’s anxieties had improved, that she was no longer experiencing nightmares or is inconsolable and that the therapy is progressing well.
The father also pointed out that the mother’s case does not suggest any risk of harm to X relating to spending time with the father, and, that it was not beneficial for X to have prolonged periods between spending time with the father. The father highlighted that on the mother’s proposal, X would have a gap of 10 days between spending time with the father, whereas the existing arrangement has always involved short but frequent time.
The mother
The mother made the following submissions in support of her interim application.
That the orders of 13 May 2024 were varied by agreement and regrettably, there is no order that reflects that variation. The mother submits that the variation of the father’s Tuesday time was implemented by agreement and on the basis that overnight time was commencing.
Further, it is noted that the mother allowing X to spend two consecutive nights with the father in the school holidays days, and further time in the context of Christmas and New Year celebrations, is to her credit. But in any event, the context of that time, namely holiday time, needs to be appreciated.
The mother tendered a document titled P Psychology Report dated 9 July 2020, prepared by Ms Q, a clinical psychology registrar (“Ms Q”) (Exhibit R2). The mother contended that Exhibit R2 sounds a cautionary note about the time with the father progressing too quickly.
The summary and conclusions of Ms Q at page 5 of Exhibit R2, suggested that:
…[the] behavioural manifestations are explained better by adjustment difficulties relating to significant life changes, including: relocation from Japan, environmental and routine changes, increased separation from primary attachment figure and constant changes in paternal visitation schedule.
The mother further referred the Court to a document titled Learning Story Report dated 24 May 2024 (Exhibit R3). Exhibit R3, noted that X started to become unsettled in April 2024 and that there was an instance on 15 May 2024 when X struggled to separate from the mother. The mother suggests that X being unsettled on Wednesdays is a recurring theme and this forms part of her resistance to weekly Tuesday time for the father. The mother submitted that she enjoys her time with X on Tuesdays. As the primary attachment figure, the mother submitted that her proposal should be afforded greater weight. However, the mother did put forward a secondary position should the Court reinstate Tuesday time, and that is for the time to occur with the father between 8.30 am and 3.30 pm.
The Independent Children’s Lawyer
The Independent Children’s Lawyer made the following submissions in support of her position.
The Independent Children’s Lawyer supports the progression of time between X and the father but agrees with the mother that the progression must occur slowly.
The issue in respect to the increase of time is not one of risk but rather finding a suitable pace for the progression of time for X. The Independent Children’s Lawyer was supportive of the father having weekly Tuesday daytime with X.
OBSERVATIONS
The Court makes the following observations from the evidence before the Court. There appears to be ongoing communication difficulties and lack of trust between the parents. This is a factor that cannot be ignored. The mother’s anxiety in relation to an extension of time is real and reasonable, both based on judicial experience and the Single Joint Expert Report.
The ongoing family therapy provides the potential for growth of resilience, both for X and for the mother. A number of observations need to be made about Exhibit R2. Exhibit R2 is based on reports made by the mother and was produced at her request. There was an observation of X with both the mother and the father. It is entirely unremarkable, in the sense that, there was initial clinging behaviour towards the mother and initial discomfort with physical proximity towards the father, both of which subsided and improved with time.
It was observed that there was an appropriate separation response when the mother left the room. Whereas the mother reports anxiety symptoms upon X’s return from spending time with the father, Exhibit R2 reports no anxiety symptoms during time with the father. Further, Exhibit R2 recorded that X’s teacher (“Ms R”), observed initial mood disturbances following visitation changes, with recent improvement noted. Ms Q concludes on page 4 of Exhibit R2 that, “based on comprehensive assessment results, the child’s clinical presentation is most consistent with adjustment disorder with mixed anxiety and depressed mood.”
Ms Q recommends individual therapy, parental support, parental education programs and additional resources. She makes no recommendation about X’s time arrangements with the father, as is entirely appropriate.
The Court has concerns about the methodology used by Ms Q to reach her conclusion. For example, the Child Behavioural Checklist, which resulted in a diagnosis that X was in the clinical range for depressive problems, anxiety problems and Autism Spectrum Disorder (“ASD”) was based entirely on a form completed by the mother only. The ASD indicia are quickly dismissed in the summary and conclusions and downgraded to behavioural manifestations better explained by adjustment difficulties. Furthermore, the diagnosis that X is in the borderline clinical range for depressive problems and ASD was based entirely on a teacher report form completed by Ms R.
On close analysis, therefore, Exhibit R2 does not sound a strong cautionary note. Indeed, if it were taken literally, it is hard to understand why the mother would make the proposal that she, in fact, makes. The inference is that even the mother does not place much weight on Exhibit R2. It is hard to see why X should not spend every Tuesday with the father, given that it is already a regular part of her routine and is not an extension that is so great as to cause discombobulation for her.
The father’s proposal makes for a long day, being from 8.30 am to 6:00 pm each Tuesday. The alternate proposal by the mother provides for 8.30 am to 3.30 pm on Tuesdays. The Court agrees with this proposal. This alternate proposal might assist with managing the mother’s anxiety more than X’s needs but is appropriate in the circumstances. Both parents propose that in week 2, X’s time with the father on Tuesdays should become overnight, with X being delivered by the father to daycare school on Wednesday. That order will be made and is to commence immediately. Further extension of overnight time is not contraindicated on the evidence before the Court, but there is benefit to X and the mother with postponing the commencement to the weekend after the Easter weekend, being 25 April 2025. The father proposes from 3.30 pm Friday to 3.30 pm on Sunday, each alternate week, with X continuing to attend her Saturday Japanese school. The Court believes that this is in X’s best interests.
This means that as from 25 April 2025, X will be spending each alternate Tuesday night with the father and each alternate Friday and Saturday night with the father. This is a total of three nights per fortnight. She will also have the benefit of each Tuesday day with the father.
The Court does not lose sight of the substantive application for international relocation and recognises that the proposals made by the parties may have been made with a view regarding the substantive issue before the Court.
The Court does not regard these further interim orders as inconsistent either with the mother’s proposal or the father’s proposal in the substantive proceedings. Specifically, these orders will neither make it harder or easier for the mother’s or the father’s application to be dealt with on its merits based on the evidence, and having regard to the best interests of the child.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 26 February 2025
0
0
1