FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Dawbar & Hixson [2023] FedCFamC1F 900
File number(s): BRC 8189 of 2022 Judgment of: HOGAN J Date of judgment: 23 October 2023 Catchwords: FAMILY LAW – INTERIM – PARENTING – INTERNATIONAL REOCATION – Where the mother seeks to relocate the children to live in Country B for 18 months – Where the father opposes that application – Where the father has significant mental health issues – Where the children are currently spending supervised time with the father – Where relocation of the children to Country B until mid-2025 is found to be in the children’s best interests Legislation: Family Law Act 1975 (Cth) Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
U v U (2002) 211 CLR 238; [2002] HCA 36
Division: First Instance Number of paragraphs: 45 Date of hearing: 15 September 2023 Place: Brisbane Counsel for the Applicant: Mr Hanlon Solicitor for the Applicant: O’Sullivans Law Firm Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Fuller Solicitor for the Independent Children's Lawyer: JR Burns Law Pty Ltd ORDERS
BRC 8189 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HIXSON
Applicant
AND: MS DAWBAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
23 OCTOBER 2023
IT IS ORDERED BY WAY OF INTERIM ORDER THAT:
1.All previous interim parenting orders are discharged.
2.The children, X, born 2010, and Y born 2012, live with the mother.
3.The mother have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)) for the children.
4.Other than in emergency circumstances, the mother, prior to making a long-term decision, shall:
(a)inform the father in writing of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and
(b)allow the father fourteen (14) days after the provision by him of the information referred to above to respond to the same in writing; and
(c)consider the father’s response, if any, when coming to her decision about any such issue; and
(d)inform the father in writing of the final decision she has made with respect to that issue as soon as practicable thereafter.
5.The mother is at liberty to relocate the children to live with her temporarily in Country B, and for this purpose the children are permitted to leave the Commonwealth of Australia, provided that:
(a)the mother does not remove the children from Australia before a specified date in early 2024; and
(b)the mother ensures that the children return to live in Brisbane no later than a specified date in mid-2025.
6.Until the children depart Australia for Country B, they shall spend supervised time with the father, with such time to…
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CaseChat Overview and Summary
The court had to decide whether the proposed relocation was in the children's best interests, considering their current living arrangements, the father's mental health, and the potential impact of the move on the children's stability and relationship with both parents. The legal issues included the weight to be given to the father's mental health, the effect of the relocation on the children's relationship with him, and the practicalities of maintaining contact between the children and the father during and after the relocation.
Hogan J found that relocating the children to Country B for 18 months was in their best interests. The court acknowledged the father's mental health issues but determined that these could be managed within the proposed parenting arrangements. The court also considered the benefits of the relocation for the mother, which included access to better educational opportunities and family support, and found that these benefits outweighed the potential disadvantages. The detailed interim parenting orders included provisions for supervised contact between the children and the father, communication protocols, and restrictions on the father's ability to interfere with the children's travel or contact arrangements.
In conclusion, the court granted the mother's application for relocation, with specific conditions to ensure the children's continued contact with the father and to protect their welfare during the relocation period. The orders also included provisions for information sharing between the parents and the children's health and educational providers, and instructions for the Australian Federal Police regarding the children's travel.
Orders
Orders of the court
BRC 8189 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR HIXSON
Applicant
AND:
MS DAWBAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
23 OCTOBER 2023
IT IS ORDERED BY WAY OF INTERIM ORDER THAT:
1. All previous interim parenting orders are discharged.
2. The children, X, born 2010, and Y born 2012, live with the mother.
3. The mother have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)) for the children.
4. Other than in emergency circumstances, the mother, prior to making a long-term decision, shall:
(a) inform the father in writing of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and
(b) allow the father fourteen (14) days after the provision by him of the information referred to above to respond to the same in writing; and
(c) consider the father’s response, if any, when coming to her decision about any such issue; and
(d) inform the father in writing of the final decision she has made with respect to that issue as soon as practicable thereafter.
5. The mother is at liberty to relocate the children to live with her temporarily in Country B, and for this purpose the children are permitted to leave the Commonwealth of Australia, provided that:
(a) the mother does not remove the children from Australia before a specified date in early 2024; and
(b) the mother ensures that the children return to live in Brisbane no later than a specified date in mid-2025.
6. Until the children depart Australia for Country B, they shall spend supervised time with the father, with such time to be supervised either by an independent adult supervisor agreed by the parents in writing or, failing that, at a Contact Centre agreed between the parents in writing and, subject to availability, as follows:
(a) for up to four (4) hours per week at such times and day that the independent supervisor or Contact Centre may direct; and
(b) to celebrate Christmas Day (on a day between the parties and that the Contact Centre can accommodate), for up to four (4) hours at such times and on such days that the independent supervisor or Contact Centre may direct.
7. After the children move to live in Country B, they shall spend supervised time with the father at all reasonable times as may be agreed between the parents in writing and failing agreement as follows:
(a) in Australia, for twelve (12) hours during three of the Country B school holiday periods each year, with the mother:
(i) to provide six (6) weeks’ notice in writing of the travel dates; and
(ii) to be responsible for the costs of the children’s flights to and from Australia.
(b) on any occasion the father is in Country B, for four (4) hours per week, with the father:
(i) to provide six (6) weeks’ notice in writing of the travel dates; and
(ii) to be responsible for the costs of his flights to and from Australia.
(c) in the event the father moves to live in Country B at a place reasonably proximate to where the children are living, for four (4) hours per week.
8. In order to facilitate the children spending supervised time with the father, any independent adult supervisor agreed between the parents in writing shall provide an undertaking in the terms of Notation A to the Order made on 23 November 2022 to the Independent Children's Lawyer before that person supervises the children's time with the father.
9. The father shall communicate with the children by telephone, Skype, FaceTime or other similar means not less than one day per week at such time as agreed by the parents in writing and on the children’s respective birthdays and on Christmas Day and, in order to facilitate this:
(a) the mother shall initiate the communication; and
(b) the mother shall make the children available to receive the communication; and
(c) the mother shall arrange for the children to contact the father fifteen (15) minutes later if, for any unforeseen circumstance, the father misses the communication.
10. The children are at liberty to communicate with the father at all reasonable times and, to the extent that it is necessary, the mother shall facilitate such reasonable communication.
11. During the time the children spend time with or communicate with either parent, that parent shall:
(a) respect the privacy of the other parent and not question the children about the personal life of the other parent; and
(b) speak of the other parent respectfully; and
(c) not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
12. Upon receiving a copy of this Order, the Australian Federal Police shall remove the names of the children, X, born 2010, and Y, born 2012, from the Airport Watchlist at all points of international arrival and departure in Australia.
13. Pursuant to section 68B of the Family Law Act 1975 (Cth):
(a) the father is restrained and an injunction issue restraining him from taking any action, or causing any other person to take action to place the names of the children X born 2010 and Y born 2012, on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia following the removal of the names from the same; and
(b) the father is restrained and an injunction issue restraining him from approaching or coming within 100 metres of any place where the children might reside from time to time; and
(c) the father is restrained and an injunction issue restraining him from approaching or coming within 100 metres of any place where the children attend school.
14. The mother and father shall:
(a) keep the other parent informed at all times of their residential address and landline contact telephone number and of any changes within forty-eight (48) hours of any change occurring; and
(b) keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children; and
(c) inform the other parent as soon as reasonably practicable of any significant medical condition, significant health issue or serious illness suffered by the children.
15. By this Order, any treating medical practitioner or allied health professional is hereby authorised to release to both parents such medical information about any medical emergency, significant health issue or significant illness suffered by either child as they are lawfully able to provide about the child.
16. By this Order, any school, educational facility or extra-curricular activity provider at which a child attends is authorised to provide each parent with such information as they are lawfully able to provide about the child, including any school reports, photographs, certificates obtained by the child and any newsletters, notices or other correspondence, documents or information relating to the child.
17. If there is a cost associated with the provision of any information or documents by a child’s doctors, health care and other treatment providers or school, educational facility, or extra-curricular activity provider, that expense shall be borne by the parent requesting the information.
18. In the event that any party seeks an order that another party pay the costs of and incidental to the Amended Application in a Proceeding filed 28 June 2023:
(a) any such party shall, within fourteen (14) days of today, file and serve written submissions in support of such application for costs; and
(b) the party against whom an order for costs is sought shall, within a further seven (7) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking an order for costs; and
(c) the party seeking an order for costs shall, within seven (7) days of being served with the submissions relied on by the party against whom an order for costs is sought, file and serve any further written submissions, strictly in reply, to the submissions served by the party against whom an order for costs is sought,
and any such application for costs shall be considered in Chambers.
19. All outstanding applications for interim parenting orders are otherwise dismissed and removed from the list of cases requiring finalisation.
20. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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