Goombe and Goombe and Anor

[2010] FamCA 736

FAMILY COURT OF AUSTRALIA

GOOMBE & GOOMBE AND ANOR [2010] FamCA 736

FAMILY LAW – CHILDREN – Application for final orders – Where a non-parent is involved – Only section 60CC(3)(m) to apply – Where both parties have neglected the children’s education – Whether the father would follow court orders for the children’s contact with the non-parent and encourage the relationship – Order for children to live with the non-parent and spend three out of four weekends with the father

APPLICANT: Mr Goombe

FIRST RESPONDENT: Ms Goombe

SECOND RESPONDENT: Ms Freye

INDEPENDENT CHILDREN’S LAWYER: Dixie Ann Middleton & Associates

FILE NUMBER: BRC 11600 of 2008

DATE DELIVERED: 20 August 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 12, 13 & 14 April & 2 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Smith

SOLICITOR FOR THE APPLICANT: Richard Gray & Associates

COUNSEL FOR THE SECOND RESPONDENT: Ms Hogan

SOLICITOR FOR THE RESPONDENT: Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Dixie Ann Middleton & Associates

Orders

1. The children A born … April 1999 and R born … December 2000 live with the second respondent Ms Freye.

2. Ms Freye be responsible for making the following decisions concerning the children:

   2.1      To ensure the educational requirements for the children are met;

   2.2      Any major medical treatment which is required by the children.

3. The father shall be responsible for making the following decisions:

   3.1      The children’s cultural upbringing.

4. Ms Freye shall inform the father of any decisions she makes in relation to the children’s education and health issues as soon as reasonably practical after making any such decision.

5. The father shall inform Ms Freye of any decision he makes in relation to the children’s cultural upbringing as soon as reasonably practical after making any such decision.

6. The father and Ms Freye shall have equal shared parental responsibility for all other decisions affecting the children save and except those which are specifically mentioned in these Orders.

7. The children spend time with the Applicant Father as agreed between the parties, but failing agreement as follows:

   7.1For the first, second and third weekends of each month from after school on Friday to the commencement of school on Monday during school terms, with the first weekend of each month to commence on the first Friday of the month;

   7.2For one half of the gazetted Queensland school holidays being first half in odd years and second half in even years;

   7.3School holidays are deemed to commence after school on the last day of the school term and to conclude at 5.00pm on the day before the first school day of the next school term.  The midpoint of the school holidays is deemed to be the middle day at 12 noon or if there is no middle day on the day following the midpoint at 12 noon.

   7.4That the children will spend Christmas Day with the party they are with.

8. Either party be at liberty to have telephone communication with the children during periods when they are not in their care between 6.00pm and 6.30pm on Tuesday and Thursday evenings with the person who wishes to speak with the children to initiate the call.

Changeovers

1. That unless otherwise agreed between the parties in writing, changeovers shall occur as follows:

   9.1Changeovers occurring on school days will occur at the children’s school/s;

   9.2All other changeovers are to occur outside the … Police Station in Brisbane.

Medical and Schooling

1. The children shall attend M State Primary School for their primary school education or such other school as may be agreed by the parties in writing.

2. That the parties shall keep each other informed of all details pertaining to the children’s doctors and health practitioners and each party must notify the other of any medical emergency affecting the children as soon as practicable.

3. This Order is to serve as authority to the children’s doctors and medical specialists to release information to the parties as may be requested from time to time concerning any relevant matters concerning the children.

4. This Order is to serve as authority to any health, educational or welfare professional or other professional attended by the children to list Ms Freye and Mr Goombe as emergency contacts.

5. This Order is to serve as authority to the children’s school/after school or before school care facility to provide to the parties all notices, letters, school reports, invitations to attend all functions, parent/teacher interviews or other activities to which the parties are invited and to permit the parties to discuss with both children’s teachers/after school or before school care providers their performance.

6. The parties are at liberty to attend all School and extra curricular activity functions to which parents are invited including, but not limited to, carnivals, sports days, fetes, concerts, plays and parent/teacher meetings.

7. In the event the school contacts or otherwise advises either of the parties about a significant issue concerning either of the children including their behaviour at school involving their teachers, their peers, or their progress then that party shall notify the other as soon as reasonably practicable (but within 7 days in any event) of the details of the notification and the concern and the other party is authorised to contact the school to discuss the matter directly.

Communication

1. That the parties be restrained from denigrating or bad mouthing any party to these proceedings to or in the presence or hearing of the children, or allowing any other person to do so.

2. That the parties are hereby restrained from discussing any adult issues including any proceedings between the parties to or in the presence or hearing of the children or permitting any other person to do so.

3. That the parties are hereby restrained from doing or saying anything to the children or in the presence or hearing of the children that undermines the other party’s relationship with the children.

4. For communication regarding the care, welfare and development of the children, the parties will use a communication book which will travel with the children.  The parties are to keep all entries in the book short and courteous.  The parties will include in the communication book details of any illness suffered by the children and any medication required by the children and the parties will endeavour to comply with any medication regime.

Travel out of the country

1. That should any party wish to travel outside of Australia with the children, the party will within 7 days of any request made in writing by another party, do all acts and things necessary to enable a passport for each child to be issued.

2. That once issued, the parties deposit the children’s passports with the Registrar of the Family Court who is hereby authorised to release the passports to either party only upon receiving written consent from the parties or by Order of this Court.

3. That if either party proposes to take the children for a holiday outside of Australia, they must provide to the other party no less than two (2) months in advance a draft itinerary of the proposed travel, and provide no less than one (1) month in advance a detailed itinerary of the proposed travel including details of the departure and return dates, flight numbers, accommodation details and copies of the relevant airplane tickets.

4. If the passport/s is/are released to either party:

   24.1Then that party shall hold the children’s passport on their undertaking to use such for the purposes of a holiday visit with notice to be provided to the other party;

   24.2That party is to deposit the child’s passport with the Registrar of the Family Court within seven (7) days of returning from the holiday outside of Australia.

5. If either party fails to consent to the release of the passport, the other party is at liberty to file an Application in the Family Court seeking the release of the passport.

6. The matter be listed for mention six months from the date of this Order at the request of the Independent Children’s Lawyer.

7. All outstanding Applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Goombe & Goombe and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11600  of 2008

MR GOOMBE

Applicant

And

MS GOOMBE

Respondent

And

MS FREYE

Second Respondent

REASONS FOR JUDGMENT

1. In relation to this case, I intend to set out originally the principles which I am to apply in relation to matters of parenting orders and I refer to it and incorporate the following paragraphs which is from an unreported Judgment of Murphy J delivered 16 July 2010 and being in particular paragraphs 17 – 25 of that Judgment.

Parenting Orders – Principles

The Act:  Objects, Principles and Considerations

1. Parenting orders, of whatever type, are driven by a determination of the best interests of the particular children who are the subject of the proceedings (Sections 60CA; 60CB; 61DA(1) & (4) and 65DAA). The issue of best interests is not left at large. The path to a decision about that issue is signposted by a number of mandatory considerations. Some considerations are marked as having primacy, whilst others are “additional” (s. 60CC).

2. The “primary considerations” have particular importance but, as the word “additional”, used in the following subsection, implies, they are to be considered in conjunction with the “additional considerations”.  The proper analysis of each represents not an end point in itself, but a pathway (albeit a mandatory pathway) to determining the best interests of children by according appropriate weight to those considerations relevant to the individual children and the particular circumstances in which they find themselves.

3. Further, “best interests” is not the application of a theoretical construct but, rather, the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular children of this particular parenting relationship. 

4. Importantly, analysis of the statutory considerations must also be consistent with the overall objectives of the Act (s 60B(1)). The statutory objectives are given light and shadow by the principles underlying them – which are also outlined in the Act (s 60B(2)). Together, they represent a number of obligations cast upon those responsible for the nurturing and care of children and rights enjoyed by those children accordingly. 

5. The statutory Objects and Principles are unifying aims, but attempts to meet the Objects, and to accord with the Principles, will vary from parent to parent and child to child.  The individual characteristics or idiosyncrasies of parents will invariably mark the parenting relationship. Where parental conflict (particularly significant conflict) intervenes, differences in belief systems, personality, psychopathology, attitude and the like are thrown into sharp focus. The circumstances in which aims – statutory or otherwise – are satisfied, or not, must vary with the individual parents and children and with their particular circumstances.

6. Decisions about the best interests of individual children, arrived at by weighing those Objects and Principles, and the statutory Considerations are given further statutory direction and specificity by further statutory requirements which:

   (a)direct a court to presume (rebuttably – s 61DA(4)) that shared parental responsibility is in a child’s best interests (s 61DA(1)); and

   (b)require, consequentially, the court to consider whether an equal time order is in the best interests of the children (s 65DAA(1)); and

   (c)if not, require the court to consider whether a child spending “substantial and significant time” (s 65DAA(2) (as defined – s 65DAA(3)) with each parent is in the children’s best interests; and

   (d)require the court to consider the extent to which parents have fulfilled their parenting obligations, particularly in the post-separation period (s 60CC(4) and (4A).

7. The two requirements earlier referred to, relating to the amount of time children spend with their separated parents, are each governed, in turn, by a consideration of not only whether either is in the children’s best interests but, also, whether each is “reasonably practicable” (s 65DAA).

8. The determination of “reasonable practicability” is, also, not left at large but is circumscribed by a number of statutory factors, including geographic distance, capacity to implement the relevant arrangements; the capacity of the parents to communicate with each other in the future; the impact on the children and any other matters which the court considers relevant (s 65DAA(5)).

9. Ultimately, the court must bring a consideration of all of the statutory matters to a practical and enforceable conclusion in the individual circumstances of conflicted parents who, by definition, cannot agree sufficiently to do so themselves. 

10. In Donnell v Dovey (2010) 42 FLR 559, the Full Court emphasised that the use of the word “parent” in section 60CC cannot be extended to include a third party. Rather, circumstances pertaining to a non-parent would be addressed in s 60CC(3)(m) and deemed to be an additional consideration rather than a primary consideration. However, an additional consideration is not less significant than a primary consideration – this has been affirmed by the Full Court on several occasions: Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane (2009) FLC 93-404 per May and Thackray JJ at [84] and Aldridge & Keaton [2009] FamCAFC 229 at [74] and [75].

11. Consequently, I am not bound to consider the matters as set out in those various sections and sub-sections which only refer to parents.  Notwithstanding this, I believe that those matters which have been incorporated in the division dealing with children are important and that they should apply as guidelines to any Court in its coming to a decision with whom the children should live with.  I am of the opinion that they will be able to assist me in coming to a determination which I hope is proper in all the circumstances of this case.

12. In the somewhat peculiar facts of this case, however, the parents are parties – the father being the applicant, the mother being the first respondent but the mother, as will appear from the evidence here in after, is in Africa and has taken no part in these proceedings.  Consequently, it would appear to me as though I am faced with the principles as enunciated in Donnell v Dovey since the dispute is between a parent and a non-parent. 

13. The applicant, herein after referred to as the father, was born in Africa.  He says in his affidavit material that on 28 November 2002, as a result of a war in Africa, he moved to a refugee camp in January 2003.

14. Thereafter, he resided there until April 2005 when, through the refugee programme, he was able to come to Australia with half of his family, namely E, C and N and a young girl named B (not his child).  The convoluted relationships are particularised in paragraphs 5 to 16 of his affidavit filed on 23 February 2010, at my last reading it appears as though he has had five children from three different mothers.

15. B, who came to Australia with the father was, in fact, the daughter of the second respondent, Ms Freye.  He alleges that he left A, who was born in April 1999 and R, who was born in December 2000 in the refugee camp.  The mother of whom is the First Respondent.

16. He says that notwithstanding that he was residing in Australia since 2005, he forwarded monies to the mother of A and R, who is the First Respondent, Ms Goombe.  Not long after he came to Australia, the father started to apply for the remainder of his family to come to Australia.

17. He posted to Africa, application forms for the grant of a humanitarian visa for his wife (ie the First Respondent), the two children and the oldest daughter, K and his grandson, J.  It appears that K died.  He alleges the application forms were to be collected by friends on behalf of his wife, these friends included Ms Freye, the Second Respondent.  He concedes that Ms Freye assisted the family.  B, the Second Respondent’s daughter, to which I referred before, came out to Australia with the father and it is alleged by him that he looked after her but she commenced to rebel and she left his house and moved out with a friend.

18. In paragraph 6 of his affidavit of 23 February 2010, he alleges that the Second Respondent wrote to him a letter pretending to be his wife and enclosed a photograph of Ms Freye – I don’t see what he means me to infer from this other than, in fact, Ms Freye did come out to Australia on a refugee visa and it must have been known to the applicant that in fact it was Ms Freye, since he is to support the application for the visa and to identify the parties on such visa as being people whom is “sponsoring” to come to Australia.

19. He was informed by the Multicultural Development Association that his family ie, as he says, the First Respondent and the two children, would arrive on 13 August 2008.  This appeared to be incorrect and on 14 August he received further information that they were in Queensland and he says that it was only at this time he professes that he was shocked at meeting Ms Freye, not his wife, and then endeavoured to let the police know that Ms Freye had fraudulently come to Australia posing as my wife.  But after consultation with them and with him, the police took no further steps in the matter.

20. He goes on to set out in paragraph 41of the aforesaid affidavit that is which concerned him particularly in relation to Centrelink payments.  Ms Freye alleges that she was welcomed into the house of the Applicant Father but he made untoward advances to her and as a result thereof she left.

21. She indicates that she did not in any way abandon the children, whom she knew well, and that she attended each day when the Husband was absent to look after the children.  She subsequently took possession of the children on or about 8 December 2008 and that the children were taken into her possession when the Father was at work.  He again alleges that he made certain complaints to the police and was informed that the matter was an Immigration matter and was not a police matter.

22. I must say after having seen the witnesses in this case, particularly the Father and Ms Freye, I am more probably of the belief that the claims made by Ms Freye are true.  May I say, that the thing that concerns me, is notwithstanding that Ms Freye came into Australia by way of masquerade, she was HIV positive as at the time of the application for a visa.  Dr O is of the view that Ms Freye is of no risk to the children – see transcript of evidence at page 5, line 10.  This has been noted by the proper authority and it was indicated to the Immigration Department that in fact this woman would, in all probability, cost the tax payers of Australia some $250,000.00 because of the necessity of treatments which I assume she gets free.

23. To me, this is quite staggering, however, that the Immigration Department allowed this woman to proceed.  I have been informed that there is little likelihood of her visa being withdrawn, notwithstanding the fact the Immigration Department is now aware that she was not the person she was purported to be and was aware that in fact she was suffering from AIDS.

24. Subsequent to the above date, the children have resided generally in the hands of Ms Freye until such time as they were separated.  The child, A, who is closer to the Father than R, residing with the Father and R residing with Ms Freye – this occurring about 05/09.  This was commented upon by Mr F in one of his reports and he was of the view that the children should, as far as practical, be put back together.

1. As a result of an Order made on 14 July 2009 by Justice O’Reilly the children were reunited but that they spent the weekends with the Father and the school week with Ms Freye.  Talking of schooling, it is of concern to me that the children when coming to Australia were virtually illiterate and notwithstanding their first language was English, they were very hard to understand (their second language is African)– see Mr F’s first report.

2. It appears that they have had a very fractured education since coming to Australia.  I think it is that A has been to six or seven schools and R to four.  They are not developing as they should develop and is a concern to me, that notwithstanding the fact that they have been here for almost two years, their English is poor and as I have said they are tantamount to being illiterate, notwithstanding their ages.  This is something which I have to take into consideration.

3. It is not for one moment suggested that either of the parties are innocent of failing to ensure the children attend school.  The children’s attendance record whilst in the possession of Ms Freye is not good neither is it good whilst in the possession of the Father and that, of course, was the child A.

4. I must, however, compliment both the Applicant, the Father, and Ms Freye in that they are endeavouring to seek gainful employment and, in fact, did seek gainful employment and obtained it.

5. The Father is a process worker and Ms Freye has been studying with a view to getting a position in aged care.  I compliment them for that.  It must be exceptionally difficult to be in a comparatively strange country and to seek work – perhaps they have a greater work ethic than a considerable other number of people in this country. 

6. There are, as is usual in cases such as this, claims and counter claims made by the respective protagonists in that it is alleged by the Father that the children are not adequately looked after by Ms Freye;  that she has burnt them;  that she hits them;  that B, Ms Freye’s daughter to whom I have already referred, has on occasions been nasty to the children, particularly A.  As I have said, admittedly, they both complain of lack of schooling and that is a concern to me.

7. One thing is patently clear in this case, both adults are unable to rationally discuss the welfare of the children without allegations and counter allegations being made.  The applicant has made it quite clear to me on his evidence notwithstanding nothing has been said particularly that he considers that Ms Freye has little or no reason to be involved in the welfare of the children since she is not a blood relation and she manipulated her coming to Australia.

8. He gives me the impression that he considers the Father’s role to be dominant and that there should be no attempt by non-blood relation to in any way interfere with his so-called rights and that is his right to possession and parenting of the children.  I make it quite clear to him in case he has any other views to the contrary, that is not the case in Australia, that in fact the welfare of the children overcomes all other so-called rights – parents do not have rights as far as I am concerned, in my Court they have duties and the duties are very extensive and very onerous and if, in fact, he does not recognise that he is not worthwhile being a father – see Gronow v Gronow (1979) 144 CLR 513 – whilst this case particularly refers to mothers, I can see no reason why the same principles do not apply to fathers.

9. I have been assisted particularly by the reports of Mr F.  His report indicates and I refer in particular to the report dated 10 March 2010 that this is a particularly difficult case.  His recommendations are, in fact, set out at paragraph 69 of that report and it is predicated by his view that if the Father can respect orders and promote a relationship between the children and Ms Freye that the children live with him.

10. If I am satisfied that he cannot do that, then they should live with Ms Freye.  He emphasises and makes it quite clear that the children have had a stable relationship with Ms Freye, subject of course to the times when they were separated, that she has, in effect, been their primary care-giver since their arrival here in Australia.  It appears as though she had a fair bit to do with them prior to coming to Australia whilst in the refugee camp.  I am unable to find that she was the primary caregiver there since their mother was also there.  She also presents with warmth and availability – see paragraph 60 of Mr F’s report dated 10 March 2010.

11. She has done what appears to be her very best, although, she is failing I believe in the educational qualifications of the children – equally, of course, I am satisfied that the Father has not done enough to assist these children in a very difficult part of their life.  It is quite clear on the evidence before me that A has a primary relationship with her Father, whereas R has a primary relationship with Ms Freye.

12. I am particularly impressed, however, with Mr F’s report wherein at paragraph 49 of the aforesaid report he says:

    Ms [Freye] entered the room and there was a silent, somewhat awkward transition between the adults of [the father] left and she entered.  The children did not shift in their demeanour.  Once he was gone, the children smiled and warmly engaged with her.  Ms [Freye] had the children engage in competition to draw the best picture of her.  The children quite playfully did so.  They chatted quickly to each other.  They asked her for food and she found some fruit in her bag for them.

    The children appeared to happily leave with their father that day and they were able to wave goodbye to Ms [Freye] in the waiting area.

13. It has been the case in this Court that I have frequently said that if the parties could overcome the obvious antagonisms that they have to each other they would possibly be able to offer to the children a lifestyle which would be superb for them.  They would have the love and care of their Father – they would have the love and care of a person who, in effect, has adopted the role of a surrogate mother in Ms Freye.  They enjoy their contact with Ms Freye – R more than A – and they enjoy their contact with their Father – A more than R.

14. I do believe that, in this case in particular, the children being somewhat at a loss – they have been taken away from a culture in Africa and brought to Australia in 2008 – that it is necessary for them to have a meaningful relationship not only with their father but with all other people, in particular Ms Freye, who are endeavouring to make their transition from Africa to Australia as seamless as possible.  Consequently, I consider that and do so.

15. The difficulty here in this case is the intransigent attitude of the father towards Ms Freye.  He is of the view that Ms Freye, not being the children’s mother or being of any blood of the children, really has no duties or rights at all in relation to the children and should not be considered as a person who could possibly be a carer of the children in either the long term or short term – see paragraphs 62 & 66 of Mr F’s report dated 10 March 2010.

16. For a relationship to exist between Ms Freye and the father and the children of each of these parties, other than for the First Respondent, it will be necessary for the father to change his views in relation to the welfare of the children vis-a-vis Ms Freye.  He has indicated in Court and also through his Counsel that he is changing and that he considers that it is essential that he encourage the relationship between the children and Ms Freye and that he would do so. 

17. I have some doubts about this gentleman.  This gentleman gave me the impression that he considered himself to be dominant – that anything he said should be followed and that I doubt whether he would encourage the relationship between the children, particularly R and Ms Freye.  This looms large in Mr F’s report and I refer to his final report in which he indicates at paragraphs 62 and 63 and, in particular, I emphasise the opinion of Mr F in the report dated 10 March 2010 in which he says at paragraph 66:

    I am of the view that both children are more likely to be accepting of a structure in which they live primarily with their father at this stage, if it is the case that they can regularly and frequently spend time with Ms [Freye] …..

    Clearly the challenge for [the father] would be to be able to put aside his mistrust of Ms [Freye] and allow the children to enjoy their time with her and have affections for her.  If he unable to do this, or the Court lacks assurance that he can do so, the children may be better off remaining in the primary care of Ms [Freye].

18. He goes on further to say in paragraph 69 with a sub-heading

    Recommendation

    It is recommended from this assessment that if the Court is assured that the father can respect orders and promote a relationship between the children and Ms [Freye]:

    (a)the children live with [the father].

    and it goes on.  

19. I have already indicated my doubts about whether the father can, in fact, respect the orders of this Court in relation to any orders for contact that I may make and secondly, whether he will endeavour to promote a relationship between the children and Ms Freye.  Both of those matters are matters which, of course, loom large and also, in particular, the second of the matters, that is promoting a relationship, is in fact one of the prime concerns of section 60CC(2)(a).  Notwithstanding it appears that as a result of the authority referred to above that it need not necessarily be used in this case because there is only one parent. 

20. Insofar as the father’s attitude, Mr F in his final report indicates at paragraph 58 that in his opinion it appears that the father attempts to assert his dominance over the views of the children.  For instance, he has threatened one of the children with returning to Africa and that has been accepted by Mr F, he having seen and heard the children, albeit with some difficulty – see paragraph 56.

21. Mr F is also of the view that – see paragraph 61:

    It is quite clear from the comments of the children that he has engaged in a relentless attempt to have them reject Ms [Freye].  [A] does her father’s bidding in this respect. [R] has become withdrawn and fears the consequences of speaking her mind.

22. Needless to say, I am satisfied that the relationship between the father and Ms Freye appears to be almost poisonous.  I refer in particular to paragraph 47 of Mr F’s final report and those matters to which I have referred where the children, particularly F, feels overborne by the father’s attitude to her as well as to Ms Freye.  I also note earlier in this report at page 5, paragraph 23, Mr F says in his interview with the father that:

    He said “I am begging down on the floor to give the children to me.  The children should have nothing to do with [Ms Freye].”

23. This and the other attitudes exhibited by the father towards Ms Freye have caused Mr F a deal of concern and he suggests, in his view, that the children would experience intense feelings of confusion and loss if Ms Freye is no longer part of their lives – see paragraph 55.  He goes on further to say:

    They have been dependent on her and despite the efforts of the father to undermine the relationship, they continue to trust her.

24. This is of grave concern to me and as I have said I do have some doubt as to whether the relationship between the children and Ms Freye will, in fact, be encouraged by the father. 

25. There of course looms large the difficulty that the parties have in relation to their working.  The Father, initially, had great problems with his work since he would be absent for a considerable time of the day when the children were awake.  He gave evidence that he would rely upon C, who is his son, and since he had no material before me in the original hearing, I indicated I would like something further about him.

26. A further short report was given by Mr F wherein he indicated that the children have a close, loving, warm and excited relationship between themselves and C – equally they get on very well with B to whom I have referred.  Consequently, I am more than satisfied that should the parties be unable because of work commitments to supervise the children that, in fact, B and C would be available.  Although, I cannot for one moment consider that they should be available for the rest of their lives to do so.

27. The Father has put before me some further material in which he indicates that as a result of his overture to his employers, regrettably he indicates in his affidavit sworn and filed 1 July 2010 that his employers were unable to offer him positions where he would be able to spend more time with the children.  He has, therefore, made further enquiries and appears to indicate to me – see paragraph 6 – that he will be able to receive employment with a maintenance company.

28. He would, as is said in paragraph 8, have casual work from Monday to Friday doing maintenance and mowing.  The rate would be about $18.00 per hour and he would be working for about 25 to 30 hours per week.  If, in fact, that is the case it appears that my concerns about the children being supervised by other than the Father are overcome.

29. I have no hesitation in saying that I would think that on the evidence before me, Ms Freye would put the children’s welfare first and would ensure if she unable as a result of her work and/or study commitments to supervise the children would ensure that B would do so.

30. The matters, as I have said, which I have to refer in section 60CC have been adequately referred to in my view and highlighted by Ms Freye’s submissions

31. Whilst I have not, as I have indicated in paragraph 55, particularised clearly those matters which concern me in section 60CC but as I have said I accept the Independent Children’s Lawyer’s submissions.  I further emphasise that the matter which has concerned the most is that I am satisfied that the father would not encourage the relationship of the children with Ms Freye, who has a great deal to give to them.

32. As I have said, I am concerned about the education question.  I do not believe that the education has been considered deeply enough by the parties.  I do not consider that either of them have done as much as they should and I indicate that this matter will be brought back before me in a period of about six months to ascertain whether or not the children’s education requirements have been complied with by Ms Freye.

33. Notwithstanding as I have found that this matter is really an application between a parent and a non-parent because the parent ie the First Respondent is a party, it is necessary for me to consider the presumption which is set out in the Act and that is that there should be equal shared parental responsibility unless there are matters which concern me sufficiently to indicate that the presumption has been overruled.  I think it would be farcical in a case such as this to suggest that there should be equal shared parental responsibility dealing with the long term matters of the children where one of the parents is in Africa. 

34. It is sufficiently notorious for me to say that communication between Australia and Africa would not be all that could be desired.  It would be impossible, one would have thought, for the parents to discuss with any degree of facility the long term care and responsibility and the general care and responsibility of these children.  I consider that the presumption has been clearly overturned.

35. I am further satisfied that the authority of MRR v GR [2010] HCA 4, whilst technically should apply in that I have to be satisfied that since I am not making an order in relation to either equal shared parental responsibility or equal time between the applicant and the first respondent, that it is necessary for me to consider whether in fact there is substantial contact between the parties.

36. I am of the view that it is totally unnecessary for me to consider this since there will be no opportunity for me to order that the children have contact with their mother who is resident in Africa, unless on occasions where they trip overseas. Consequently, I am also of the opinion that no contact having been ordered that it is not reasonably practical for such contact to take place.

37. Since I am satisfied that the father will not advance the welfare, I feel that I am persuaded that the children should remain in the possession of Ms Freye and that they should spend time with their father from immediately after school on Friday to the commencement of school on Monday and that that be three weekends out of every four.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 20 August 2010.

Associate: 

Date:  20 August 2010