Boyle and Zahur
[2018] FamCA 200
•29 March 2018
FAMILY COURT OF AUSTRALIA
| BOYLE & ZAHUR | [2018] FamCA 200 |
| FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Where the mother seeks to temporarily relocate to Country H with the children aged 12 and 13 to live with her de facto partner who is on secondment there and the father opposes the relocation order – Where there is high conflict between the parents – Where at an initial hearing the mother’s application to relocate was refused but the Full Court has remitted the matter for rehearing – Where the mother seeks sole parental responsibility and the father seeks equal shared parental responsibility – Where the father seeks that the children live with him on a week about basis – Where, since the mother’s relocation application was initially dismissed, the father’s relationship with the children has deteriorated - Where the children have expressed their clear desire to relocate - Where it is in the best interests of the children to make an order for sole parental responsibility in the mother’s favour and to allow the children to relocate to Country H – Where an order is made to allow the children to be known by the surname which includes the mother’s surname. |
| Family Law Act 1975 (Cth) |
| Chapman and Palmer (1978) FLC 90-510 Jones and Dunkel (1959) 101 CLR 298 MRR v GR (2010) 240 CLR 461 |
| APPLICANT: | Ms Boyle |
| RESPONDENT: | Mr Zahur |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Lloyd |
| FILE NUMBER: | CAC | 429 | of | 2014 |
| DATE DELIVERED: | 29 March 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 19 - 21 March 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| COUNSEL FOR THE RESPONDENT: | Mr Cairns |
| SOLICITOR FOR THE RESPONDENT: | Concordia Legal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Jeanine Lloyd & Associates |
Orders
All previous orders be discharged.
The mother have sole parental responsibility for the two children B born in 2005 and C born in 2006 (“the children”).
The mother keep the father informed in writing and in a timely manner of any matter affecting the children’s long-term welfare and any decision she has made about any major long-term issue affecting the children including their education and health.
Whilst the children are attending school outside of Australia the mother is to, in a timely manner, send to the father by electronic means copies of all school reports for each of the children.
The mother is permitted to cause the children’s surnames to be known as or changed to Boyle-Zahur on all documents and records including the children’s birth certificates and passports.
The children are permitted to relocate from Australia to Country H for a period:
6.1.Until 17th January 2021; or
6.2.Upon the mother’s partner’s current secondment in Country H ending; or
6.3.Upon the mother’s relationship with her current partner ending (if it does)
whichever shall first occur.
The children live with the mother.
For the period that the children live outside Australia the father shall spend time and communicate with them as follows:
8.1.For a period of 4 weeks in Australia during Country H s’ summer school holidays once every 12 months commencing 2018 on the following conditions:
8.1.1.The mother is to give 3 months written notice to the father as to the dates she will be in Australia with the children;
8.1.2.The father is to, as soon as practicable, confirm in writing his availability to be with the children during that period but indicate any dates in this period he will be unavailable to be with the children;
8.1.3.The mother shall be responsible for the costs of the children’s travel to and from Australia (and her own if she travels with the children); and
8.1.4.In the event that the father is unable to have the children with him at any time or times in that 4 week period, then subject to any other agreement between the parties, the children are to be with their mother during those specific periods.
8.2.For any period in Country H, at the father’s expense, should he choose to visit the children in Country H upon the following conditions:
8.2.1.The father give the mother 3 weeks’ written notice of his intention to come to Country H and notice of the period he will be in Country H;
8.2.2.The father give the mother notice of the arrangements he proposes to accommodate the children whilst he is in Country H;
8.2.3.The mother is to attempt to negotiate with the children’s school reasonable time away from the children’s school during the period of time that the children will be with their father while he is in Country H; and
8.2.4.In the event that the children are required to go to school during periods of time the children are with their father in Country H the father is to facilitate the children’s attendance of school.
8.3.By Skype once per week at 8:00 am Saturday morning Country H time.
8.4.By telephone, email or any other electronic means at any reasonable time and at any time initiated by the children.
8.5.Such further or other times as agreed in writing by the father and the mother.
At least 14 days prior to the mother leaving Australia the parties are to provide each other with an email address to which they can correspond with one another about matters concerning the children and arrangements for travel and holiday periods.
At the expiration of the period at order 6, the children are to be returned by the mother to the Australian Capital Territory (ACT), Australia:
10.1.The children are to live with their mother;
10.2.The children are to spend time with their father as follows:
10.2.1.During school term:
10.2.1.1.Every alternate weekend from after school or 3pm on Friday until 5pm on Sunday;
10.2.1.2.Every Wednesday from after school or 3pm until the commencement of school on Thursday; and
10.2.1.3.At any other times as agreed between the parties.
10.2.2.Unless otherwise agreed, for the ACT school term holidays the children will spend time with the mother and the father as follows:
10.2.2.1.For the Term 1 and Term 2 school holiday periods:
10.2.2.1.1.For the first half with the mother in even numbered years;
10.2.2.1.2.For the second half with the father in even numbered years;
10.2.2.1.3.For the first half with the father in odd numbered years; and
10.2.2.1.4.For the second half with the mother in odd numbered years.
10.2.2.2.For the Term 3 school holiday period:
10.2.2.2.1.For the first half with the mother; and
10.2.2.2.2.For the second half with the father.
10.2.3.Unless otherwise agreed, for the Christmas school holiday period the children will spend time with the mother and the father as follows:
10.2.3.1.From the conclusion of school on the last day of Term 4 until 3pm on Christmas Day, 25 December, with the mother;
10.2.3.2.From 3pm on Christmas Day, 25 December, until 3pm on 16 January with the father, save for the operation of Order 10.2.3.4 herein;
10.2.3.3.From 3pm on 16 January until the commencement of school in Term 1 with the mother.
10.2.3.4.Unless otherwise agreed, the children will spend time with the mother from 3pm on New Year’s Eve until 10am on New Year’s Day in even numbered years.
10.2.4.Unless otherwise agreed, for the Easter long weekend the children will spend time with the mother and the father every year as follows:
10.2.5.From 9am on Good Friday until 10am Easter Saturday with the mother;
10.2.5.1.From 10am Easter Saturday until 9am Easter Sunday with the father;
10.2.5.2.From 9am Easter Sunday until 10am Easter Monday with the mother; and
10.2.5.3.From 10am Easter Monday until 5pm Easter Monday with the father.
10.2.6.Unless otherwise agreed, the children will spend time with the father on the following special occasions:
10.2.6.1.If … falls on a school day, from 3pm until 9pm;
10.2.6.2.If … falls on a weekend, from 3pm Friday until 5pm Sunday; and
10.2.6.3.On the eighth day of …, from 5pm until 9:30pm.
10.2.7.For Father’s Day the children will spend time with the father from 10am until 5pm, if not already spending time with the father.
10.2.8.For Mother’s Day the children will spend time with the mother from 10am until 5pm, if not already spending time with the mother.
10.2.9.For the children’s birthdays, the parent with whom the children are spending time with will make the children available to spend time with the other parent for a period of at least two hours at a time to be agreed between the parties, but failing agreement, from 4pm until 6pm.
10.2.10.Unless otherwise agreed, for the father’s birthday the children will spend time with the father:
10.2.10.1.From 3pm until 6pm if the father’s birthday falls on a school day; and
10.2.10.2.From 10am until 5pm if the father’s birthday falls on a weekend or holiday
if not already spending time with the father.
10.2.11.Unless otherwise agreed, for the mother’s birthday the children will spend time with the mother:
10.2.11.1.From 3pm until 6pm if the mother’s birthday falls on a school day; and
10.2.11.2.From 10am until 5pm if the mother’s birthday falls on a weekend or holiday
if not already spending time with the mother.
10.2.12.Unless otherwise agreed, or unless the collection or drop off coincides with school time, the father will collect the children from the mother’s residence at the commencement of his time with the children, and the mother will collect the children from the father’s residence at the conclusion of his time with the children.
Neither party is permitted to denigrate the other or his or her family members in the presence or hearing of the children.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Boyle & Zahur has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: CAC 429 of 2014
| Ms Boyle |
Applicant
And
| Mr Zahur |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The parents of two girls aged 13 and 12 intensely dislike one another and each rates the other as a very poor parent. That makes a decision about “temporary” international relocation problematic.
On 11 May 2017, after a three day hearing, Gill J dismissed the mother’s application seeking orders which would allow the children to relocate with the mother to Country H for the period of the mother’s partner’s secondment, which was then four years.
On the 14 December 2017, the Full Court allowed an appeal against Gill J’s refusal to allow the children to relocate and remitted the matter for rehearing.
At paragraph [91] the Full Court described the task on rehearing as follows:
… the task is to fashion orders which best meet the best interests of the children by reference to the proposals of the parties or those fashioned by the Court (subject to procedural fairness considerations) by reference to “the reality of the situation”.
“The reality of the situation” is the well-known expression used by the High Court in MRR v GR (2010) 240 CLR 461 at [15].
THE PROPOSALS OF THE PARTIES AND THE INDEPENDENT CHILDREN'S LAWYER
Mother
The full text of the orders sought by the mother at the commencement of the hearing are set out in Schedule 1. The mother made some changes to what she sought during the hearing and I shall summarise what her position was at the time of her final submissions.
The mother seeks an order for sole parental responsibility for the children. She did however agree to consult with the father by informing him of any decision about a major long-term issue regarding the children that she was contemplating, to give the father a reasonable time to provide his views on any particular proposed decision; for her to consider his views prior to making the final decision; and then to inform him of that decision as soon as was practicable after that decision had been taken. The Independent Children's Lawyer did not support a condition being placed upon an order for sole parental responsibility in the mother’s favour which required a process of prior consultation.
The mother seeks an order that would allow the children to live with her in Country H for a period ending 17 January 2021; the end of the partner’s secondment overseas; or the end (if any) of her relationship with her partner, whichever event first occurs. This proposal is based upon the mother’s expectation that housing will be provided for her and the children, she will be able to seek employment and she will have the financial support of her de facto partner. Those expectations were not the subject of challenge before me.
The mother proposes that she and the children fly back to Australia for a four week period in the children’s summer school holidays in Country H. This proposal is conditional upon the father having that period of four weeks available to be with the children or to have at least that period substantially available. The mother will be in Australia staying with friends and would be able to have the children back for some of that period if the father was unable to have the whole of the four week period away from work.
The mother would be responsible for the costs of the annual trip of the children back to Australia (which costs, the mother asserts, will be covered on her behalf by her partner’s employer).
The mother also wished to give the father an option of being able to come to Country H at his expense and upon giving her three weeks’ notice, the children would be made available to the father. It is to be acknowledged in that context that holiday breaks, apart from the major summer break in Country H, are far shorter than those we are accustomed to in Australia and so it is likely that any such opportunity that the father took would involve the children either receiving some dispensation from being at school or alternatively the father would be expected to facilitate the children continuing to go to school during the period he had them in his care.
The mother proposed that the children would communicate with their father by skype at 8pm Country H time each Friday evening.
The mother proposes that after 17 January 2021 the parties would revert to orders similar to those made by Gill J at the first hearing (The text of those orders are set out in Schedule 4).
Based upon what the mother says was an issue raised particularly by C, but also by B, the mother seeks an order that before the children first see their step-mother, the father shall contact the mother to arrange a suitable time for the children to see their step-mother and that the mother be permitted to be present at the first meeting.
The mother also during the hearing sought an order that the surname of the children be changed to Boyle-Zahur.
In circumstances where a decision is made that the children should remain in Australia, the mother has indicated that it would be her intention to remain in Australia and for the children to live with her.
At the commencement of the third day of the hearing the mother changed her position and sought that rather than an order being made for equal shared parental responsibility if the children were in Australia, that an order be made for sole parental responsibility.
Otherwise, in the event the children are not allowed to relocate, the mother would propose that the father’s time and arrangements in relation to communication be as set out in the orders made by Gill J. The mother would seek that the children be permitted to travel to Country I and Country H and any Hague Convention country for six weeks every two years.
The mother initially agreed that the father be permitted to take the children to the country in Asia for a similar six week period every two years (in the context that orders are made permitting the children travel every second year with the mother) but altered her position about that on the basis that the country was not a Hague Convention country.
Father
The amended orders the father sought on the final day of the hearing are at Schedule 2.
The father wants an order for equal shared parental responsibility.
He opposes any order that would allow the children to live with their mother in Country H and asserted that he was not in a position to live in Country H for the next three years.
The father seeks that the children live with him and the mother on a week about basis.
In the alternative the father proposes the children live with the mother and that orders be made for the children to spend time with him in accordance with Gill J’s orders.
The father sought specific orders relevant to the children’s schooling, medical and dental treatment, and non-denigration.
The father also sought orders that would allow him to take the children to the country in Asia for an extended period each second year commencing 2018.
The father opposes the order for the change of surname and opposes any order that the mother be present during the first meeting between his new wife and the children.
Independent Children's Lawyer
The Independent Children's Lawyer supported an order for the mother to have sole parental responsibility. As I have said, the Independent Children's Lawyer did not support any conditions that required prior consultation and a consideration of the father’s views about any proposed decision in respect of a major long-term issue affecting the children prior to a decision being made. The only condition the Independent Children's Lawyer would attach was that the mother keep the father informed of any matter affecting the children’s long-term welfare including their education, school and health. The Independent Children's Lawyer supported the mother’s application to change the children’s surnames.
The Independent Children's Lawyer did not support an order for equal shared parental responsibility in the event the orders required the children to remain in Australia.
The Independent Children's Lawyer supported the children’s relocation to Country H for a period of up to 17 January 2021 (or earlier if the mother’s partner’s secondment ends or the mother’s relationship with her current partner ends).
The Independent Children's Lawyer supported the children coming back to Australia during the summer holidays in Country H for a period of four weeks to be with the father, commencing this year. The Independent Children's Lawyer also supported orders for electronic communication.
The Independent Children’s Lawyer supported the father’s application for a non-denigration order. She acknowledged that it may have little effect but suggested it would be a reminder to the parties to attempt to deal with one another in a courteous and businesslike way in their roles as parents of the children.
DOCUMENTS RELIED UPON
The parties agreed that the written and oral evidence and exhibits before Gill J and the reasons for judgment of the Full Court would form part of the evidence before me in the rehearing. Both parties rely upon three affidavits. Each parties filed updated financial statements (although the father’s was incomplete). In addition, by way of update, a family consultant has provided a limited issues report dated 9 March 2018, having interviewed both of the children. The full list of the documents relied upon by each of the parties is set out at Schedule 5.
SHORT HISTORY
The father was born 12 January 1969.
The mother was born 15 January 1973.
The parties married 26 January 2002.
The parties’ first child, B, was born in 2005 and is 13 years old.
The parties’ second child, C, was born in 2006, and is 12 years old.
The parties separated on a final basis on 7 August 2013.
CREDIT
The mother gave her evidence confidently and coherently. The father, on the other hand, and on more than one occasion, could not remember things that I expected he would. For example, the father was unable to recall whether or not he had had the children on an overnight basis in the past six weeks. Notwithstanding the father’s lack of memory about that, I find that he has not. There was considerable confusion (confusion which was not ultimately resolved) as to the dates when the father had travelled to the country in Asia since the separation. I am reasonably confident that he travelled to the country in Asia in January 2017 at which time he said he consummated his marriage and in October/November 2017 for the purposes of his father-in-law’s funeral. It is possible the father went to the country in Asia on a third occasion, which may have been associated with his betrothal to his new wife, however the father was not able to recall whether or not he had been to the country in Asia two or three times since separation.
I have on a number of occasions below made some specific findings where I have preferred the mother’s version of a particular event over the father’s version for reasons which I give. On those occasions I concluded the mother was a more reliable historian.
DETAILED CHRONOLOGY
The father was born in 1969 in a country in Asia.
The mother was born in 1973 in Country I.
In 1990 the father moved from the country in Asia to Australia.
In November 1999 the mother arrived in Australia on a working holiday visa.
The father proposed to the mother in October 2000.
The mother began residing in Australia on a permanent basis in around March or April 2001.
The parties married in 2002.
In or about 2004 the parties moved to Country I for approximately 5 years.
The parties’ first child, B, was born in 2005 in Country I and is 13 years old.
The parties’ second child, C, was born in 2006 in Country I, and is 12 years old.
Either in 2009 or 2010 the parties moved back to Australia.
The parties separated on a final basis on 7 August 2013.
From October 2013 the father spent each weekend from after school Friday until 5pm Sunday and Wednesday evenings from school until 7pm with the children.
In May 2014 the father’s time with the children changed to alternate weekends after school Friday until 5pm Sunday and every Wednesday evening after school until Thursday morning, and half the school holidays.
Final consent orders were made on 23 May 2014 which formalised the arrangement which was already in place.
The parties were divorced on either 17 or 18 October 2014.
On 19 October 2014, the father commenced a relationship with Ms P and, shortly after, was married in a religious ceremony.
On 29 November 2014, the mother commenced a relationship with Mr D.
In 2015 that B (then aged 10) had become aware that her father had an erection during the night whilst she was sleeping in the same bed as her father. The mother discussed this issue with her doctor who then reported the matter to Child Protection.
The mother alleged that in 2015 the father returned with a slashed back from a religious ceremony and he frightened the children when showing them.
The father alleged that in 2015 B arrived at his home with an infected wound which the mother had not taken seriously.
From March 2015, the mother and children began residing in Mr D’s home.
In December 2015, B had told her mother that the father asked B to massage his head and legs and that B noticed that her father had an erection.
In February 2016, Child Protective Services inspected the father’s home and spoke to him about the allegations. They decided to close investigation.
On 25 July 2016, Mr D is offered a posting in Country H.
On 3 November 2016, the mother says the children arrived home from their father’s upset and that B disclosed that the father had threatened to slap her.
On 2 and 3 January 2017, the father came to collect the children and the mother says that on both occasions the children refused to go with him.
On 18 January 2017, Mr D commenced posting in Country H.
The first hearing before Gill J took place on 21 to 23 March 2017.
On 11 May 2017, the orders and Reasons for Judgment of Gill J were made and published. The children were not allowed to relocate to Country H. On the same day the mother’s father suffered a stroke in Country I.
On 12 May 2017 the mother left to go to Country I with the children. They were away eight weeks, returning to Australia on 6 July 2017.
On 20 May 2017 the father spent overnight in Canberra Hospital as a result of chest pains. The father sent a message to the children that he was having a heart attack. The mother sent a text to the father which was very nasty and is set out below.
Upon her return, the mother was staying with the children in a motel. On 8 July 2017, the father attempted to pick up the children from the motel in which they were residing. The children refused to go with the father and he called the police. After speaking to the mother the police left and the children remained with the mother.
The father made no contact with the mother or children on his scheduled weekend between 14 and 16 of July 2017.
On 19 July 2017, the father went to C’s primary school. C declined to go and the father left. C sent a text to her father saying ‘leave me alone’.
From 28 to 30 July 2017 the father did not attend the children’s school to exercise contact.
On 5 August 2017, the father alleges that the mother involved B in the court proceedings by having her call her father and asks questions.
On 9 August 2017, the father spoke to C on the phone. C refused to go with him and he left.
From 11 to 13 August 2017 the father did not attend the children’s school to exercise contact.
On 16 August, the father attended B’s high school and texted her saying he was in the carpark. She refused contact with her father.
Between 25 and 27 of August, and on 30 August, the father attended both of the children’s school. Both children said no on both occasions for contact with the father.
On 3 September 2017 and upon the mother’s urging, the father spent 1 ½ hours with the children for lunch for Father’s Day.
In September 2017, the father attempted to collect the children for contact but they refused to attend. The father did not attempt to contact the children throughout the September and October school holidays.
On 9 October 2017, the Child Support Agency assessed the father’s liability as $8.05 a week, with arrears by the father totalling $1,997.12.
On 30 October 2017, the appeal was heard and the father called B for contact and she refused.
The father went to the country in Asia in November 2017.
On 22 November 2017 and after the father indicated he had brought back presents for the children from overseas, the children spent overnight time with their father.
On 14 December 2017, the case is remitted for rehearing by the Full Court.
On 14 December 2017 C graduated from Suburb M Primary School. The mother attended the ceremony and the father did not.
On 25 December 2017, the children spent from 3pm to 7pm with their father. The Orders provided that the children were to spend until 16 January 2018 with the father. The father had contacted the mother and asked her to come and pick up the children.
On 9 January 2018, the mother requested the police do a welfare check on the father because she had not had any communication from him since Christmas Day and, given his heart condition, she had concerns about his welfare. The father did not accept that the mother had his welfare at heart when she took that action. That day the mother received a text from the father stating that he will pick up the children on 15 January 2018. The mother responded by informing him that he had interpreted the orders incorrectly.
On 13 January 2018, the children wrote to their father about their desire to go to Country H.
During January 2018 the father failed to respond to an invitation extended to him by Relationships Australia to attend mediation.
In mid-January 2018, the father travelled to the country in Asia to get married.
According to the mother’s financial statement as at 31 January 2018 the father’s arrears of Child Support total $2,196.22.
On 2 February 2018, the father called B to tell her that he had purchased two new Apple 6S IPhones for them. The mother took the children to the father’s home to pick up the phones. The phone company informed the mother that both phones were on a $48 monthly plan in the father’s name.
On 3 February, the mother and C attended the phone company as the phones were not working and had no SIM card. The father went and retrieved the SIM cards.
On 9 February 2018, the father attended C’s school and C refused contact. The father texted C with words which included, “…I have no choice but to start telling the truth are you ready for it ?????”
On 21 February 2018, the mother received a S60 IC Certificate and was informed that the father had declined to participate in mediation.
On 23 February 2018, the father attended school and saw B who declined contact. Father gave her some biscuits and sweets and then drove away.
On 23 and 24 February 2018, there was an incident involving B and C’s 12th birthday present.
On 28 February 2018 the children were interviewed by the family consultant for an updated report.
THE RECENT PATTERN OF THE CHILDREN’S TIME WITH THEIR FATHER
Justice Gill made orders in May 2017 which were in all relevant way identical to the orders made by consent by Judge Neville on 23 May 2014. These orders were revived when the Full Court set aside Gill J’s orders on 14 December 2017. The children have spent very limited face to face time with their father from early 2017 to date. At all relevant times, the orders provided that the children see their father, during school term time, each alternate weekend from after school on Friday until Sunday evening and every week from after school Wednesday to the commencement of school on Thursday. On the day after the orders were made by Gill J, the mother left Australia with the children as a result of her father’s sudden illness and spent eight weeks in Country I and the children did not see their father in that time. Upon their return, the children have only spent time with their father on three occasions, namely:
104.1.One and a half hours on Father’s Day 2017;
104.2.One overnight occasion in November 2017; and
104.3.Four hours on 25 December 2017.
In November 2017 the father had just returned from the country in Asia where he had spent two weeks with his new wife. Upon his return he contacted the children to say he had a number of presents to give them and the children went with him.
The father was due to have the children from 3pm on 25 December 2017 to 16 January 2018. The children went with their father at the time ordered on Christmas Day. However, at 18:14:36 the mother received a text from the father reading ‘Drop off the girls at 7:00pm at Suburb T Police Station’, the mother replies at 18:15:13 ‘Ok’. The mother picked the children up. Consequently the children returned home from their father’s residence and did not spend any of the block period of time that was scheduled with him.
A pattern developed whereby the father would attend the children’s schools at a time provided in the orders and would ask the children to get into his car and go home with him. The father had a pattern also of bringing food and other edible treats to the children which they in turn ate and shared with their school friends. When the children resisted his invitations to get into the motor vehicle with him, he would after a very short time, drive away and the children would then contact their mother to be collected by their mother. The mother’s evidence was that on almost all occasions she was not at the school at the same time the father was although she estimated that on three occasions she may have been in her car in the car park at that time but not visible to the father or the children. The father’s evidence was she was in the car park about 50 per cent of the time. The mother rejected the suggestion in cross examination that she regularly was present and interfered with changeover. I accept her evidence in that regard. Statements made by the children to Ms W are consistent with a finding that the mother had no immediate or direct involvement in the children’s attitude to their father at these times. The mother complained that the father was not sufficiently persistent or persuasive with the children in an effort to get them to participate in time with him. The mother denied, and I accept her denial, that she gave the father the “bird” on one occasion in the car park when he turned up at school on an occasion not provided for in the orders.
THE APPROACH IN CHILDREN’S CASES
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.
STATUTORY CONSIDERATIONS
Primary considerations
The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a))
At the current time the children do not have the benefit of having a meaningful relationship with their father in Australia. I accept the Independent Children's Lawyer’s submission that the reason for that stems from the intensity of the current conflict between the parties.
The father failed to produce any evidence in his case that would support the notion that if the children were not allowed to leave Australia, that anything about his face to face time with the children would change anytime soon. I support the Independent Children's Lawyer’s submission that in all likelihood the children’s current attitudes towards their father would only be entrenched and possibly damaged irreparably.
The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))
Up until the time of the hearing before Gill J the father was under the misapprehension that the mother had made allegations that he had been involved in inappropriate sexual conduct with B. That was a misunderstanding by the father which is discussed in further detail below.
There is no suggestion that the children need to be protected from physical or psychological harm as a result of being exposed to abuse or neglect or family violence. That is not to say that the children may not be at risk of serious long-term psychological harm arising out of the internecine warfare between their parents.
The additional considerations
Children’s views (s 60CC(3)(a))
Ms W stated in her report of 9 March 2018 that “[B] presented as mature, confident and articulate in expressing her views” and “[C] presented as mature and confident. She was softly spoken and thoughtful but articulate in expressing her views”.
Ms F in her January 2017 report makes clear that the children’s expressed views were clearly in favour of the mother’s proposal to relocate to Country H. Both children described their father in negative terms. Ms F concluded that the children “felt the only way to resolve their conflicted feelings was to take an extreme position, black/white, good/bad”. Ms F assessed that some of the children’s reluctance towards their father was sourced in fear of their father’s anger and a questioning of his control over many aspects of their lives. However, there is little evidence that the father has behaved in a way that would justify a finding that the children should fear him. It is likely that the children’s current passive aggressive attitude towards their father, demonstrated on his attendances on their school, has as its source the conflict between the parents in relation to international relocation, which I am asked to resolve.
Only weeks ago, each of the children had expressed a clear wish to Ms W that they be able to live in Country H with their mother and Mr D. They perceive such a move would be beneficial and would provide them with opportunities not available to them in Australia. Neither child wishes to travel to Australia to spend time with their father but the mother has indicated that she is confident that she will be able to get them do so once this court case has concluded. Both children stated that they are looking for a “new life”. Ms W opines that a factor in the wishes that have been expressed by the children is their assessment that their mother will be happier and less stressed if she were to live with her de facto partner in Country H.
The father entirely blames the mother for the expression of the children’s current views and their behaviour on all occasions when he arrives at school and requests them to spend time with him. He indicated it was his view that the reason the children tell him they do not wish to go with him when he asks them was because of his attitude to them relocating to Country H.
The father’s reaction to the children’s views is that the children are not old enough to understand what they will miss in Australia, particularly in relation to education and the things that he would be able to provide for them. He also is of the view that children should be taught that they can’t always have what they want.
The father asserted that the children lied to Ms W on a number of occasions. This includes when B described her father in the report as “angry all the time; he takes chances to hit on Mum” and when she said the father told her, “I have child depression because of Mum and that [C] has anxiety because of Mum”. B also said that her father tells her about court and has shown her child-support letters, bank statements and court documents such as affidavits. The father denied showing the children bank statements, but admitted on one occasion showing B a letter from Child Support. He also agreed that he left the appeal books on the kitchen table but he blamed the mother for providing that material to him at a changeover. The father also denied that he told B that they could change their surnames “over my dead body”, saying he had only ever said that once, and it was a reference to the children relocating, not to a change of surname. Whilst the children say negative things about their father, some of which are not justified, it is indicative of the “black and white” way the children currently view their parents’ conflict.
At [27] of the mother’s affidavit of 31 January 2018 the mother says that the children wrote a letter to their father on 13 January 2018 (Annexure W). The father agreed that he had received this letter and that it is in B’s handwriting.
The text of that letter is as follows:
Hi dad,
It’s [B] and [C] here these are OUR words and feelings. The last year and a half for us has been absolutely horrible. We feel that the way you have been acting towards us, mum and our family in Country I is not ok. The way you pretend like nothing has happened on the phone, brush mum off in person and ignoring us. For example, this whole Jan holidays is wrong. We feel that you want to control us and decide what happens for us with no regard for the consequences of how we and other people will get affected and if it is the right decision or not.
We don’t and never will understand why you thing [sic] it’s a good idea to stop us from moving to [Country H] to have an amazing experience, to make new friends, figure out new things etc. We get that you will miss us but the way you have been showing you care is not there, just look at how you take action for seeing us, you walk away from school, shout down the phone, hang up on us, and upset mum with pointless arguments. We want a dad who can be there for us. We can see you whenever without worrying about you always getting angry and blaming mum for everything or seeing a random woman on day you call a ‘wife’.
You are putting us through all of this for no reason. You blame mum for things she hasn’t done. Mum is thinking about our futures, you’re not. If you want a fresh start with [C] and I, then you would put us first not yourself. We want to have this experience and share it with u. you’re not letting us do that. Please reconsider to make us happy.
He agreed the letter bears B’s signature. It appears that B has written C’s name on it as well.
The father agreed that he did not respond in any way to that letter. The father is of the view that what was in that letter was not a true reflection of the children’s views but a reflection through the children of the mother’s views.
I accept that the mother has played a part in the parental conflict which has in turn helped shape the children’s views, but I do not accept the father’s view the children are simply repeating the mother’s views. The children are reacting to the parental conflict.
Ms F’s reported that C told her, “I really want to go. I am so excited to go” and that “we’ve seen the International school on the Internet. They do the International Baccalaureate”. B told Ms W that when she travelled to Country I in mid-2017 she visited the International School and had researched it and was “excited about the prospect of attending the school and she believes it is a great opportunity for her”.
The Full Court observed at [81]:
… It is in our view made plain that the mooted damage arises from the children, otherwise exposed to the polarised opinions of their parents, being given the opportunity to express their views to the report writer in a neutral setting only to see those views ignored and them again being in the middle of the parental conflict swirling around them.
The children’s views have now been expressed on two separate occasions. The orders made after the first hearing were not in accordance with the children’s views. The children are now a year older and still express similar views. Their views need to be given some considerable weight given Ms W’s description of the maturity and confidence of each of the children.
Relationships of the children with the parents and other persons (s 60CC(3)(b))
Mother
The children have a positive relationship with their mother and feel understood and emotionally safe with her. She is the parent with whom they have their primary attachment.
Father
The children have an unsatisfactory relationship with their father and are currently reluctant to go with their father and spend time with him. I accept the Independent Children’s Lawyer’s submission that the relationship between the children and the father has not totally broken down. When he comes to their school they do not refuse to meet with him; they simply refuse to go with him. They accept the food and treats that he brings to them. I accept the father’s assertion that their refusal to go with him at the current time is, in large, a protest by them of him not agreeing to allow them to travel to Country H with their mother in accordance with their expressed views.
The father denied that he treats B and C in a different way. He said that he had different pet names for each of them and because B is a year older than C, he treats her as an “elder” daughter and C as a “younger” daughter.
The mother gives evidence that there is currently a difference in the level, nature and maturity of the electronic communication between each of the children. B stated in the updated family report that she receives no text messages from her father and that their telephone conversations are “brief and do not last longer than five minutes.” She perceives that her father treats C differently, saying "with me it's just shut up and do what you're told, and with [C] he sucks up to her and sends long text messages ranting and saying don't let your mother fill your head with things”. B being older has developed more independence in her views than C and is more directly assertive with her father. On occasions the father does not seem to have reacted to that as well as he might.
Counsel for the father said that any criticism of the father not being more assertive in insisting the children get into the car with him afterschool is unwarranted. I find that the father is behaving appropriately in not creating any pressure on the children to go in the car with him. The evidence he gave was that on each occasion he invites them to come with him and they decline and he doesn’t make a scene at the school in front of their friends.
Ms F in her first report refers to a relocation order as being a possible “circuit-breaker for the parental conflict”. I accept there is some force in the submission by the Independent Children’s Lawyer that the best way forward for the father’s relationship with the children is to create a circuit-breaker by making an order that changes the current dynamic that has not worked between the father and his daughters since Gill J orders made orders in May 2017.
Mother’s partner
Prior to the mother’s partner moving to Country H the mother and the children had lived with him, except for one short period, for about 2 years. During that period he played a significant role in their day to day lives. The children had a warm relationship with him and participated in activities with him.
Mother’s family in Country I
The mother has a close relationship with members of her family in Country I and a move to Country H will enhance the children’s opportunity, from time to time, to spend time with their extended maternal family.
Father’s new wife and paternal family
The father’s wife remains in the country in Asia. Australian visa requirements are still to be satisfied. The father said in March 2017 that his new wife would arrive in Australia in early 2018 but that has not yet happened. He indicated that he needed to prove to the immigration authorities that he had the capacity to support her and he needed $7,000 in order to make her application. He was waiting for his inheritance to be financially able to achieve these things. I have no basis upon which I could assess how long that might take before the father’s wife comes to Australia. It is however the father’s proposal that if the children remain in Australia and the children are with him for equal time or substantial and significant time that when his wife arrives, she will play a significant role in the children’s lives. He has informed the children about that.
The father confirmed in cross examination that he would find it highly uncomfortable (particularly given his cultural heritage) to discuss any issues with the children in relation to menstruation, but he saw his new wife as being able to assist him in that task.
The father accepted that he portrayed to his family in the country in Asia that he had an excellent relationship with the children and that clearly is a misrepresentation by him.
The extent to which each of the child’s parents has taken the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with and communicate with the children (s 60CC(3)(c))
There is no evidence since separation that the parties have cooperated in taking an opportunity to participate together in making decisions about major long-term issues in respect to the children. As I discussed below, the parties currently do not have the capacity to communicate in a way that would allow them to do so.
Extent to which each parent has fulfilled their obligation to maintain the children (s 60CC(3)(ca))
The mother has annexed at page 11 to her affidavit of 19 February 2018 a copy of a statement from Child Support for the period 1 March 2017 to 19 January 2018. In that period the father paid approximately $800. After a quick mathematical calculation was done, it was agreed during the hearing that in that period of 46 weeks the father on average paid less than $9 per week per child by way of child support.
The father’s evidence about the extent to which he has been employed on a casual basis was quite vague but he attempted to assert that because he was on Centrelink benefits for most of 2017 that he was just driving the minimum amount of time so that his benefits were not affected (that is earning about $100 per week).
The father’s current child support payments are in the order of $53 per week. He also pays about $42 per week by way of reduction in arrears. The current arrears of child support are about $1,900. The mother conceded that those arrears had been slightly higher in recent times and there had been some reduction in arrears.
The father’s current financial statement sworn 19 February 2018 indicates that his gross earnings from driving currently are $1,000 per week. He indicated that his expenses in relation to driving were $92 per week for hire purchase payments in respect of the car he is driving; $245 per week for fuel; $27 per week for registration and $69 per week for insurance. He has failed to record an expense for fuel or insurance on his financial statement. If the figures given in oral evidence can be relied upon, then the father is currently receiving pre-tax income of $567 per week.
In relation to health insurance payments, the father said that whilst the parties were together they had health insurance. On separation the mother wanted the father’s name removed from her health insurance card. He agreed to do that but then took out his own insurance but paid an additional premium to obtain duplicate cover for the children. He indicated that he currently pays $96 a fortnight. He was able to say that about half that payment related to his own health insurance and half related to the additional cover for the children. He conceded that it was not possible to make a claim on both the mother and the father’s health insurance policies for the one medical or dental procedure. He conceded therefore that he was paying approximately $48 per fortnight that provided no benefit for the children. He agreed that the mother had asked him to make a contribution towards the payment of the children being covered on her health card in the sum of $35 per fortnight but that he had refused to do so. This is just another example of the dysfunctionality of the parent’s relationship. The father was of the view that the mother could have taken the children off her health card and allowed him to cover them and because she didn’t he wasn’t going to do it nor was he going to make any contribution to the cost to the mother of the health cover she paid for the children.
The father failed to provide a complete financial statement. Part of the financial statement that sets out the father’s liabilities is missing. The father is expecting $125,000 from an inheritance which is reliant upon some property in the country in Asia being sold but says that he owes money to people in Australia. I have no details as to what those loans are. His oral evidence was that he will have about $50,000 left when he repays those loans.
Likely effect of any change in the children’s circumstances (s 60CC(3)(d))
I find that if the mother’s application for relocation is granted the mother’s depression, anxiety and stress will be reduced and she will be more available as a parent to the children. Allowing the children to move offers the prospect of a “circuit-breaker” in the currently stalled relationships between the children and their father.
Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e))
The hearing proceeded on the basis that there was no possibility that the father could live in Country H for the period of the secondment of the mother’s partner.
The father did not embrace the mother’s proposal that he be able to visit the children in the Country H. At the first hearing the father was dismissive of the suggestion that he would be able to meet the children at a halfway location. Currently the father is working for himself, and therefore can structure his work and non-work time as he pleases. I am less than convinced that the father could not organise himself to take advantage of the mother’s proposal that he visit the children in Country H. He will have the financial capacity to do so when he receives his inheritance and he is also now apparently working more consistently which means his regular income is higher. Looking forward, the father hopes he can obtain some type of more permanent employment commensurate with his previous experience, but I acknowledge that may impact upon the flexibility he has to have time away.
In final submissions, counsel for the father challenged the mother’s capacity to fund an annual trip back to Australia for the children to see their father.
The mother’s evidence was that as Mr D’s de facto partner, she had an entitlement to return to Australia once a year with her children paid for by the Commonwealth Government. The mother led no other evidence to support that contention including any evidence from her de facto partner or evidence from a government department. Counsel for the father made a submission, referring to Jones and Dunkel (1959) 101 CLR 298 that the court would find that any evidence from the mother’s de facto partner or a government department would not assist the mother’s case. Whilst I acknowledge the force of that submission I have regard to the fact that the mother is now self-represented, and in this re-hearing the father gave no warning that he would expect the mother to provide that evidence at either of the pre-trial events before me. It has been part of the mother’s proposal for the children to return to Australia during the summer holidays in Country H since September 2016. Her ability to fund that part of her proposal was not made an issue at the first hearing. Whilst the mother was asked in cross examination during the first hearing why she had not filed a corroborative affidavit by her de facto partner, no Jones v Dunkel submission was made at that hearing. Further the father makes no offer to financially contribute himself to the cost of the children’s flights to Australia. I also take into account that the mother expects she will be able to find employment in the Country H and has Mr D as a financial resource independent of any funding for travel the government might provide. The mother said during her cross examination at the first hearing that Mr D’s employer would pay for the mother and the children’s accommodation with Mr D along with other living expenses.
It is the father’s own assessment that the main reason the children aren’t going with him is because of the conflict in relation to the children’s relocation. Logically, if that conflict is resolved, that motivation for the children not going with him will no longer be there and their willingness to be with him will have some chance of improving. I also accept there would be some attraction for the children to come back and visit Australia to see friends that they have here during the period of time. Counsel for the father submits that if the mother is unable to get the children to comply with the current orders in Australia, then the court would find that it would be unlikely she would be able to ensure that the children get on a plane for a 26 hour flight. The mother mentioned two reasons which would give the court confidence she could. Firstly, that allowing the children to go overseas with her would be a “circuit-breaker” which is words Ms F used. Secondly, she said the children would be keen to visit with some of their friends back in Australia.
On balance it is more likely that the relationship will be fostered if the children are allowed to go and acknowledging the risks, I find the mother has sufficient control over the children to get them on a plane back to Australia once a year.
The capacity of each of the parents (and any other person) to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f)) and the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s 60cc(3)(i))
The mother’s emotional and psychological health
The parties separated in 2013. The father accepted that he had not raised any issue in relation to the mother’s mental status and the effect it might have on her ability to parent until after the mother had commenced proceedings in 2016.
The mother agrees that in 2012 she was in a bad psychological state. She attributes that to psychological and verbal abuse from the father. She said that things came to a head when C said to her one day “mum you look sad”. She sought professional assistance at that time. The mother was diagnosed with “Major Depressive Disorder” and in 2012 was prescribed medication which, she said, “lifted the fog”.
The father had expressed concern that the mother had suffered schizophrenia. His position before Gill J was that, if the mother did suffer from mental illness, he should have sole parental responsibility and sole care of the children.
Dr E, a forensic psychiatrist appointed at the request of the father, states that the mother suffered from depression “in the context of the perceived dysfunctionalities in her marital life, stress/exhaustion from role overload and decisions about leaving the marriage”. The symptoms of depressed mood, anergia, indecisiveness, loss of libido, loss self-esteem and insomnia continued for about 12 months, but started improving following treatment with antidepressant medication prescribed by her GP.
At the time of hearing this matter, the mother was still distressed by the fact that prior to the hearing before Gill J the father had issued a subpoena to the Department of Immigration and Border Protection seeking material in relation to her sister with a view of attempting to establish that she too suffered from schizophrenia or some other serious mental illness. He was apparently hoping to establish some family history of schizophrenia. That subpoena was objected to and that objection was upheld. The material was not released to the father.
By the end of the trial before Gill J, given the evidence of Dr E, the father ceased to assert that the mother had schizophrenia.
The mother has however had a history of suffering from depression and taking medication for that illness. The forensic psychiatrist indicated that the mother’s current condition was well maintained and the main risk to the mother was the continuing stress of this litigation and her inability to be able to move to Country H.
It is not appropriate in the context of this hearing to make a general standalone order allowing the father to take the children to the country in Asia each alternate year for a period of six weeks. I will not make an order in the form sought by the father in this hearing about the children being permitted to travel to the country in Asia with him.
I certify that the preceding two hundred and eighty-six (286) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 29 March 2017.
Associate:
Date: 29.3.2017
SCHEDULE 1 – PROPOSED MINUTE OF ORDERS SOUGHT BY THE APPLICANT MOTHER
That the mother have sole parental responsibility for [B] and [C].
A signed Statutory Declaration from [Mr Zahur] 4 weeks prior to our departure from Europe to Canberra each year stating that [Mr Zahur] will be on leave from work when the girls spend time with him in Canberra.
On our return to Canberra at the end of the deployment that the court orders of 11 May 2017 be reinstated.
Before the children first see their step mother, the father shall contact the mother to arrange a suitable time for the children to see their step mother and that the mother is permitted to be present at the first meeting.
That the Applicant Mother have sole parental responsibility.
That the children be permitted to live in Country H for 4 years whilst the Applicant Mother’s partner is posted to Country H.
That the children spend time and communicate with the Respondent Father as follows:
a.Once a year in Australia during the children’s school holidays as agreed between the parties;
b.As agreed between the parties should the Respondent Father wish to visit the children in Country H.
c.by Skype once a week.
In respect of order 3a the cost of the children’s airfares to Australia shall be met by the Applicant Mother.
That upon the completion of the posting and return to Australia, the children shall spend time with their father pursuant to orders of 11 May 2017.
SCHEDULE 2 – FATHER’S PROPOSED MINUTE OF ORDER
The mother, [Ms Boyle], born … 1973, (the mother) and the father, [Mr Zahur], born … 1969, (the father) have equal shared parental responsibility for the children, [B], born … 2005, and C, born … 2006, (the children).
The children live with each parent on a week about basis with change overs to occur on Sunday afternoon at 5pm.
IN THE ALTERNATIVE THE FOLLOW APPLIES:
The children live with the mother.
The children spend time with the father as follows:
a.Every alternate weekend from after school or 3pm on Friday until 5pm on Sunday;
b.Every Wednesday from after school or 3pm until the commencement of school on Thursday; and
c.At any other times as agreed between the parties.
Unless otherwise agreed, for the ACT school term holidays the children will spend time with the mother and the father as follows:
a.For the Term 1 and Term 2 school holiday periods:
i.For the first half with the mother in even numbered years;
ii.For the second half with the father in even numbered years;
iii.For the first half with the father in odd numbered years; and
iv.For the second half with the mother in odd numbered years.
b.For the Term 3 school holiday period:
i.For the first half with the mother; and
ii.For the second half with the father.
Unless otherwise agreed, for the Christmas school holiday period the children will spend time with the mother and the father as follows:
a.From the conclusion of school on the last day of Term 4 until 3pm on Christmas Day, 25 December, with the mother;
b.From 3pm on Christmas Day, 25 December, until 3pm on 16 January with the father, save for the operation of Order 6 herein; and
c.From 3pm on 16 January until the commencement of school in Term 1 with the mother.
Unless otherwise agreed, the children will spend time with the mother from 3pm on New Year’s Eve until 10am on New Year’s Day in even numbered years, commencing on 31 December 2018.
Unless otherwise agreed, for the Easter long weekend the children will spend time with the mother and the father every year as follows:
a.From 9am on Good Friday until 10am Easter Saturday with the mother;
b.From 10am Easter Saturday until 9am Easter Sunday with the father;
c.From 9am Easter Sunday until 10am Easter Monday with the mother; and
d.From 10am Easter Monday until 5pm Easter Monday with the father.
Unless otherwise agreed, the children will spend time with the father on the following special occasions:
a.If [a religious holy day] falls on a school day, from 3pm until 9pm;
b.If [a religious holy day] falls on a weekend, from 3pm Friday until 5pm Sunday; and
c.On the eighth day of [religious festivities], from 5pm until 9:30pm.
For Father’s Day the children will spend time with the father from 10am until 5pm, if not already spending time with the father.
For Mother’s Day the children will spend time with the mother from 10am until 5pm, if not already spending time with the mother.
For the children’s birthdays, the parent with whom the children are spending time with will make the children available to spend time with the other parent for a period of at least two hours at a time to be agreed between the parties, but failing agreement, from 4pm until 6pm.
Unless otherwise agreed, for the Father’s birthday the children will spend time with the father:
a.From 3pm until 6pm if the father’s birthday falls on a school day; and
b.From 10am until 5pm if the father’s birthday falls on a weekend or holiday
if not already spending time with the father.
Unless otherwise agreed, for the mother’s birthday the children will spend time with the mother:
a.From 3pm until 6pm if the mother’s birthday falls on a school day; and
b.From 10am until 5pm if the mother’s birthday falls on a weekend or holiday
if not already spending time with the mother.
Unless otherwise agreed, or unless the collection or drop off coincides with school time, the father will collect the children from the mother’s residence at the commencement of his time with the children, and the mother will collect the children from the father’s residence at the conclusion of his time with the children.
NOT WITHSTANDING ORDERS 2 TO 15; THE FOLLOWING ORDERS ARE SOUGHT:
The parents are permitted to attend any school attended by the children and to attend any school event occasion which parents are invited to.
The parents will advise each other as soon as possible by the best available means in the event of the following occurring:
a.Either child being injured or falling serious ill;
b.Either child requiring urgent medical treatment by a doctor or ambulance crew; or
c.Either child being admitted to hospital.
The parents are permitted to attend any special medical appointments for the children and the parents will advise each other of any such appointments not less than three days prior to any such appointment.
The parents are at liberty to obtain all medical records and to consult with the children’s medical and dental practitioners to obtain any information he or she may require and service of a sealed copy of these Orders upon such medical or dental practitioners is sufficient authority for that purpose.
The parents will not denigrate each other or the other parent’s family in the presence of the children nor allow another person to do so.
The mother is permitted to remove the children, [B], born … 2005, and C, born … 2006, from the Commonwealth of Australia only to countries which fall within The Haque [sic] Convention for a period of six weeks each alternate year provided that she returns the children to Australia by the end of that six week period and, unless otherwise agreed, that the periods occur within the children’s school holidays.
The father is permitted to remove the children, [B], born … 2005, and [C], born 24 February 2006, from the Commonwealth of Australia only to countries which fall within The Haque [sic] Convention and [the country in Asia] for a period of six weeks each opposing alternate year in correlation with paragraph 20 above provided that she returns the children to Australia by the end of that six week period and, unless otherwise agreed, that the periods occur within the children’s school holidays.
For the purpose of the Orders set out in paragraphs 20 and 21 the father is permitted the six weeks travel with the children commencing in the year 2018 and the mother is permitted the six weeks travel with the children commencing the year 2019.
To facilitate the operation of the above order two Orders at paragraphs 20 and 21; the time that the father and mother spend with the children is suspended for the period that they are removed from the Commonwealth of Australia.
SCHEDULE 3
Orders sought by the Independent Children's Lawyer
That all previous orders be discharged.
That the mother have sole parental responsibility for the two children [B] born … 2005 and [C] born … 2006 (“the children”).
That the mother keep the father informed of any matter affecting the children’s long term welfare including their education, schools and health.
That the mother is permitted to cause the children’s surnames to be known as Boyle-Zahur in respect of all documents and records and that on the children’s birth certificates and passports the children’s surnames can be changed from Zahur to Boyle-Zahur.
That the children are permitted to temporarily relocate from Australia to [Country H] for a period until 17th January 2021. (The Independent Children's Lawyer added the further condition during final submissions “or upon the mother’s partner’s current deployment in [Country H] ending or upon the mother’s relationship with her current partner ending (if it does) whichever shall first occur )
That the children live with the mother.
Neither party is permitted to denigrate the other or his or her family members in the presence or hearing of the children.
That for the period that the children live outside Australia the father shall spend time and communicate with them as follows:
i.For a period of 4 weeks in Australia during the summer school holidays in [Country H] once every 12 months commencing 2019 (amended to 2018 in oral submissions) with the mother being responsible for the costs of the children’s travel to and from Australia.
ii.For a period as agreed by the father and the mother in [Country H] at his expense should the father choose to visit the children in [Country H].
iii.By Skype once per week at 7:00am on Saturday eastern standard time in Canberra. (amended to being 8:00pm Friday [Country H’s] time in final submissions)
iv.By email at any reasonable time by electronic means or by telephone.
v.At any time initiated by the children.
vi.Such further or other times as agreed in writing by the father and the mother.
SCHEDULE 4 – THE TEXT OF JUSTICE GILL’S ORDERS AND NOTATIONS MADE 11 MAY 2017
The mother, Ms Boyle, born … 1973, (the mother) and the father, Mr Zahur, born … 1969, (the father) have equal shared parental responsibility for the children, B, born … 2005, and C, born … 2006, (the children).
The children live with the mother.
The children spend time with the father as follows:
(a)Every alternate weekend from after school or 3pm on Friday until 5pm on Sunday;
(b)Every Wednesday from after school or 3pm until the commencement of school on Thursday; and
(c)At any other times as agreed between the parties.
Unless otherwise agreed, for the ACT school term holidays the children will spend time with the mother and the father as follows:
(a) For the Term 1 and Term 2 school holiday periods:
(i)For the first half with the mother in even numbered years;
(ii)For the second half with the father in even numbered years;
(iii)For the first half with the father in odd numbered years; and
(iv)For the second half with the mother in odd numbered years.
(b) For the Term 3 school holiday period:
(i)For the first half with the mother; and
(ii)For the second half with the father.
Unless otherwise agreed, for the Christmas school holiday period the children will spend time with the mother and the father as follows:
(a)From the conclusion of school on the last day of Term 4 until 3pm on Christmas Day, 25 December, with the mother;
(b)From 3pm on Christmas Day, 25 December, until 3pm on 16 January with the father, save for the operation of Order 6 herein; and
(c)From 3pm on 16 January until the commencement of school in Term 1 with the mother.
Unless otherwise agreed, the children will spend time with the mother from 3pm on New Year’s Eve until 10am on New Year’s Day in even numbered years, commencing on 31 December 2018.
Unless otherwise agreed, for the Easter long weekend the children will spend time with the mother and the father every year as follows:
(a)From 9am on Good Friday until 10am Easter Saturday with the mother;
(b)From 10am Easter Saturday until 9am Easter Sunday with the father;
(c)From 9am Easter Sunday until 10am Easter Monday with the mother; and
(d) From 10am Easter Monday until 5pm Easter Monday with the father.
Unless otherwise agreed, the children will spend time with the father on the following special occasions:
(a) If a religious holy day falls on a school day, from 3pm until 9pm;
(b) If a religious holy day falls on a weekend, from 3pm Friday until 5pm Sunday; and
(c) On the eighth day of religious festivities, from 5pm until 9:30pm.
For Father’s Day the children will spend time with the father from 10am until 5pm, if not already spending time with the father.
For Mother’s Day the children will spend time with the mother from 10am until 5pm, if not already spending time with the mother.
For the children’s birthdays, the parent with whom the children are spending time with will make the children available to spend time with the other parent for a period of at least two hours at a time to be agreed between the parties, but failing agreement, from 4pm until 6pm.
Unless otherwise agreed, for the Father’s birthday the children will spend time with the father:
(a) From 3pm until 6pm if the father’s birthday falls on a school day; and
(b)From 10am until 5pm if the father’s birthday falls on a weekend or holiday
if not already spending time with the father.
Unless otherwise agreed, for the mother’s birthday the children will spend time with the mother:
(a) From 3pm until 6pm if the mother’s birthday falls on a school day; and
(b)From 10am until 5pm if the mother’s birthday falls on a weekend or holiday
if not already spending time with the mother.
Unless otherwise agreed, or unless the collection or drop off coincides with school time, the father will collect the children from the mother’s residence at the commencement of his time with the children, and the mother will collect the children from the father’s residence at the conclusion of his time with the children.
The parents are permitted to attend any school attended by the children and to attend any school event occasion which parents are invited to.
The parents will advise each other as soon as possible by the best available means in the event of the following occurring:
(a)Either child being injured or falling serious ill;
(b)Either child requiring urgent medical treatment by a doctor or ambulance crew; or
(c)Either child being admitted to hospital.
The parents are permitted to attend any special medical appointments for the children and the parents will advise each other of any such appointments not less than three days prior to any such appointment.
The parents are at liberty to obtain all medical records and to consult with the children’s medical and dental practitioners to obtain any information he or she may require and service of a sealed copy of these Orders upon such medical or dental practitioners is sufficient authority for that purpose.
The parents will not denigrate each other or the other parent’s family in the presence of the children nor allow another person to do so.
BY CONSENT IT IS ORDERED THAT
The mother is permitted to remove the children, B, born … 2005, and C, born … 2006, from the Commonwealth of Australia on 12 May 2017 for a period of six weeks provided that she returns the children to Australia by the end of that six week period.
To facilitate the operation of the above order the time that the father spends with the children is suspended for the period that they are removed from the Commonwealth of Australia.
The mother is permitted to remove the children B, born … 2005, and C, born … 2006 from the Commonwealth of Australia each calendar year on up to two occasions for a period of up to six weeks in aggregate provided that on each occasion she returns the children to Australia at the end of the period and, unless otherwise agreed, that the periods occur within the children’s school holidays.
To facilitate the operation of the above order that the time that the father spends with the children is suspended for the period that they are removed from the Commonwealth of Australia.
IT IS FURTHER ORDERED THAT
The Application for Costs filed by the mother on 10 May 2017 is adjourned to 2:15pm on 18 August 2017.
IT IS NOTED THAT
The solicitor for the mother will promptly advise the Court and the other parties in the event that the mother does not wish to proceed with that application.
SCHEDULE 5
The documents upon which the mother relies include:
1.1.Judgment of Honourable Justice Gill, delivered 11 May 2017,
1.2.Judgment of the Full Court, delivered 14 December 2017,
1.3.Affidavit of Ms Boyle, dated 31 January 2018,
1.4.Affidavit of Ms Boyle, dated 19 February 2018,
1.5.Affidavit of Ms Boyle, dated 26 February 2018, and
1.6.Financial Statement of Ms Boyle, dated 31 January 2018.
The documents upon which the father relies include:
2.1.Affidavit of Mr Zahur, dated 11 July 2017,
2.2.Affidavit of Mr Zahur, dated 24 July 2017,
2.3.Affidavit of Mr Zahur, dated 14 August 2017, and
2.4.Financial Statement of Mr Zahur, dated 26 February 2018.
Expert reports:
3.1.Report of Ms F dated January 2017, and
3.2.Limited Issues Report of Ms W dated 09 March 2018.
Transcripts:
4.1.Transcripts appearing before Gill J 21, 22 and 23 of March 2017.
Exhibits before Gill J.
Exhibits tendered during the hearing.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Procedural Fairness
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