Grier & Grier
[2022] FedCFamC2F 967
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Grier & Grier [2022] FedCFamC2F 967
File number(s): BRC 11873 of 2018 Judgment of: JUDGE PURDON-SULLY Date of judgment: 29 July 2022 Catchwords: FAMILY LAW – Parenting – where mother seeks to relocate from Town A QLD to City F QLD – where relocation not in the children’s best interests – where best interests of children require change of residence to the father notwithstanding their hitherto primary care with the mother – where adverse findings made with respect to the mother’s insight and parenting capacities – where children at risk of psychological and/or emotional harm in the primary care of mother – where mother does not comply with court orders – where equal-shared parental responsibility not in the children’s best interests Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) ss 4AB(2)(i), 60B, 60CA, 60CC, 61DA, 65D, 65DAB, 65DAA
Cases cited: AMS v AIF; AIF v AMS (1999) FLC 92-852
Brandon & Brandon (No.2) [2012] FamCA 374
Goode & Goode (2006) FLC 93-286
Jurss & Jurss (1976) FLC 90-041
MRR & GR [2010] HCA 4
Sayer & Radcliffe and Anor [2012] FamCAFC 209
U v U [2002] HCA 36
Division: Division 2 Family Law Number of paragraphs: 188 Date of last submission/s: 15 July 2022 Date of hearing: 28, 29, 30 June and 1 July 2022 Place: City F Counsel for the Applicant: Mr Linklater-Steele Solicitor for the Applicant: Wilsons The Family Lawyers Counsel for the Respondent: Mr Galloway Solicitor for the Respondent: HCM Legal Counsel for the Independent Children's Lawyer: Ms Lyons Solicitor for the Independent Children's Lawyer: Forest Glen Lawyers ORDERS
BRC 11873 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GRIER
Applicant
AND: MS GRIER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE PURDON-SULLY
DATE OF ORDER:
20 JULY 2022
THE COURT ORDERS BY CONSENT ON A FINAL BASIS:
Children’s time with the parents
1.That the children X born in 2014; and Y born in 2016, (“the children”) remain together on their birthdays.
2.That school holidays are deemed to commence at the conclusion of school for the school term and conclude at 5:00pm on the Sunday prior to the commencement of the school term.
Medicare Card
1.That within 24 hours of the date of these Orders the Mother will provide to the Father a photograph of the front and back of the Medicare card that the children are listed on.
THE COURT FURTHER ORDERS ON A FINAL BASIS:
2.That all previous parenting Orders be discharged.
3.That the father have sole parental responsibility for making decisions regarding the long term care welfare and development of the children.
4.That the Father, in the exercise of his sole parental responsibility for the long term care, welfare and development of the children must:
(a)Consult with the Mother in writing about any long-term decision that is to be made for the children, at least seven (7) days prior to making such decision, unless in an emergent circumstance;
(b)Consider any written response provided by the Mother providing her input into the long-term decision to be made for the children, with the Mother to provide her response to the Father within five (5) days;
(c)Inform the Mother in writing of the long-term decision made within 48 hours of such decision being made.
5.That notwithstanding orders 2 and 3 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the children when they are spending time with him.
6.That the children live with the Father with changeover to be on the date of these Orders with the father to collect both boys from school and the mother to provide to the father the boys clothing and belongings within 24 hours at a time when the children are at school.
7.That the children spend no time and have no communication with the Mother for a period of 28 days from the date of these Orders.
8.That the father be restrained and an injunction issue restraining him from relocating the residence of the children from Town A in the State of Queensland.
9.That the mother is to ensure that any bedroom where the children sleep has working lightbulbs and she be restrained and an injunction issue restraining her from removing or causing others to remove lightbulbs from the bedroom the children sleep.
Children’s time with parents
10.In the event the mother’s residence remains in Town A, during the school terms, the children will spend time with the mother each alternate weekend from after school Friday to before school Monday (extended to a Tuesday if the Monday is a public holiday or pupil free day) with the mother to collect the children from school and return the children to school.
11.In the event the mother relocates her residence to City F, during school terms the children will spend time with the mother in the weekend in the midway point of each school term from after school Friday to 6pm Sunday.
12.During the school holidays, the children will spend time with each parent for one half of the Summer, Easter, Winter and Spring school holiday time as follows:-
(a)With the mother for the first half in odd numbered years and the second half in even numbered years.
(b)With the father for the second half in odd numbered years and the first half in even numbered years.
(c)That during school holidays the mother’s weekend time in Order 9 or 10 (as the case may be) is suspended.
13.That the children will spend the Mother’s Day weekend in the care of the mother from after school Friday to before school Monday (if the mother resides in Town A) or until 6pm Sunday (if the mother resides in City F) and Order 9 or 10 (as the case may be is suspended).
14.That the children will spend the Father’s Day weekend in the care of the father from after school Friday to before school Monday and Order 9 or 10 (as the case may be is suspended).
15.The children will celebrate their birthdays in the care of their parents as follows
(a)If the birthday falls on a weekend when the children are in the care of the father, then with the mother from 2:00pm to 6:00pm;
(b)If the birthday falls on a weekend when the children are in the care of the mother, then with the father from 2:00pm to 6:00pm.
(c)If the birthday falls on a school day, then from afterschool to 6:00pm in the care of the mother.
16.That the children will changeover between their parents through school and if not a school day or outside usual pick up from school hours then inside the McDonalds at Town A and during changeover, both parents be restrained and an injunction issue restraining:
(a)either parent recording or filming themselves or any other persons present at a changeover event;
(b)on instructing and encouraging any other person present at changeover to record or film themselves or any other persons present at a changeover event.
Telephone/Video Communication
17.The children will communicate with the parent who does not have them in their care by video call or phone if video is not available each Wednesday with the call to commence between 4pm and 6pm. In the case of the mother, that will commence on 17 August 2022.
18.The children will communicate with the parent who does not have them in their care by video call or phone if video is not available on Christmas Day with the call to commence between 10:00am and 11:00am.
19.That for the purposes of the children’s communication with the other parent the parents will ensure they respect the children’s privacy when speaking with the other patent and not attempt to listen to, record or otherwise interfere with the children’s conversations.
Communication and Exchange of Information
20.These Orders are sufficient authority for any school attended by the children to release to the parents information in relation to the children’s educational progress and other school related activities and to supply each party with copies of school reports, photographs, certificates and awards as and when requested and at the expense of the party making the request.
21.Each party will advise the other of any change of contact telephone number, postal address or email, within twenty-four (24) hours of such change occurring.
22.The parents will advise one another immediately on the children experiencing any medical emergency or significant health event while the children are in their respective care and will provide particulars of any emergency treatment provided to the child and details of the relevant service provider/s.
23.The parents will advise one another within seven (7) days of any other non-essential medical/allied health treatment provided to the children and will provide the contact details of the relevant service provider/practitioner to the other party.
24.These Orders are sufficient authority to enable either party to obtain any and all information required by that party from the children’s treating medical or allied health practitioner as and when requested and at the expense of the requesting party.
25.That during the time the children are with either parent, that parent will:
(a)Respect the privacy of the other parent and will not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(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.
26.That the parents will communicate about the children via text message in emergency but otherwise via the “Our Children” website, with the Father to meet the cost of maintaining a subscription to this service.
27.That each parent must advise the other of:
(a)Any illness, accident or injury suffered by the children;
(b)Any medical or dental treatment provided to the children;
(c)Any medication the children are to take while the children are in the other’s parent’s care (including the dosage);
(d)Any special dietary requirements that apply to the children.
Therapeutic care
28.That within seven (7) days the Father will do all acts and things to secure the first available appointment for the children with the child psychologist at Town A Clinic for the purpose of therapeutic counselling, and with both parents to continue to facilitate the children’s attendance upon the child psychologist at Town A Clinic as directed by the child psychologist at Town A Clinic.
29.The parties share equally in the costs of the children’s therapy at Town A Clinic, with the other parent to reimburse the paying parent within seven (7) days of receipt of such invoice to the account nominated by the paying parent in writing.
30.That within fourteen (14) days the Mother will do all acts and things to ensure that she attends upon a counsellor and/or psychologist as directed by her general practitioner for the purpose of therapeutic counselling, with the Mother to meet the costs of same.
31.That the family reports of Mr C dated 27 February 2019, 5 April 2022 and 23 May 2022 and the Reasons for Decision and a copy of the Orders in this matter be released to the practitioners engaged with by the parties and the children pursuant to these Orders.
The children’s schooling
32.That the children attend a private school such as School G, Town A (where X is currently enrolled) and the parents be restrained and an injunction issue preventing the children’s enrolments being changed without the express written consent of the other parent.
33.That within fourteen (14) days of the date of these orders the parents will do all acts and things to ensure Y’s enrolment at School G, Town A is positively progressed, and not do or say anything to hinder such enrolment acceptance.
34.In the event the children are unable to be accepted by School G, Town A, then the children attend School H unless otherwise agreed.
Other matters
35.The parents shall (when the children are in their care):
(a)Administer any prescribed medication in accordance with the prescribing doctor’s instructions;
(b)Use their best endeavours to ensure the children’s homework and projects are completed in a timely manner;
(c)Use their best endeavours to ensure that the children are able to attend their extracurricular activities;
(d)ensure that the children attends all sporting, musical, hobby events, practices and rehearsals when the children are with that parent;
(e)Not allow the said children to travel to, from or at the local shops, a shopping centre or other shopping venue alone and without the company of a responsible adult person.
36.The parents shall not (when the children are in their care):
(a)Smoke in the immediate presence of the children or allow others to do so;
(b)Expose the children to domestic violence or violent behaviour;
(c)Consume alcohol above the legal driving limit;
(d)Allow the children to remain in the presence of anyone using drugs of abuse;
(e)Use physical discipline on the child/children;
(f)Consume illicit drugs or allow the children to be in the presence of any other person doing so;
(g)That each parent will provide living essentials including beds, clothing, toiletries, toys, food and belongings for the children in order to maintain their comfort and reduce the need for packing and transfer of items between households.
International Travel
37.That each parent may, subject to an authenticated consent in writing, spend block holiday time with and remove the children from the Commonwealth of Australia in accordance with section 65Y of the Family Law Act 1975.
38.That when the children are spending time with a parent during any agreed holiday period, that parent will be at liberty to take the children outside of Australia and in relation to such travel the following conditions will apply:
(a)Not less than thirty (30) days before the travel date, the parent intending to travel with the children will make a written request to the other parent to spend block holiday time with the children and to take them outside the Commonwealth of Australia;
(b)Together with the written request, the parent intending to travel will provide to the other parent:
(i)the proposed travel itinerary;
(ii)a contact telephone number for the travelling parent and the children at the address at which they will predominately be based;
(iii)Within fourteen (14) days of receiving the written request in paragraph 31(a) and the information in paragraph 31(b) the non-travelling parent will advise whether they consent to the travel arrangement, with such consent not to be unreasonably withheld;
(iv)Within fourteen (14) days of the consent being provided, the travelling parent will provide to the other parent:
A.A copy of the full itinerary;
B.A copy of the return prepaid air travel tickets for the children and the travelling parent; and
C.Confirmation of travel insurance and overseas health insurance for the travelling parent and the children;
(c)During the trip, the travelling parent will arrange for the children to telephone/Skype/Video conference the other parent on at least two (2) occasions each week or at any other reasonable time;
(d)The parent travelling with the children will ensure the children are immunised appropriately for the country where the children will be travelling and both parties will consult each other in relation to the children being immunised prior to children travelling out of the country.
Australian travel document
39.That pursuant to section 11(1)(a) of the Australian Passports Act 2005, the parents consent to the children having or being issued with an Australian travel document.
40.That pursuant to section 11(1)(b)(ii) of the Australian Passports Act 2005 and these Orders, the children are permitted to travel outside the Commonwealth of Australia using an Australian travel document.
41.That the parents will do all acts and things and sign all documents necessary to make application or renewal application to the Australian Passport Office (or such other department or instrumentality administering the Australian Passports Act 2005) for the children X (born in 2014); and Y (born in 2016) (“the children”) to be issued with an Australian travel document.
42.That in the event that a parent refuses or neglects to sign any document necessary to issue X (born in 2014); and Y (born in 2016) (“the children”) with an Australian travel document despite the fact that by these Orders the parents have consented to an Australian travel document being issued, such refusal will constitute sufficient special circumstances for a party to seek that the Minister administering the Australian Passports Act 2005 give consideration to issuing an Australian travel document pursuant to section 11(2)(a) of the Australian Passports Act 2005.
43.That any Australian travel document be:
(a)held by the Father when the children are not travelling;
(b)be provided to the Mother upon compliance with Order 31(b)(iv) above.
Dispute Resolution
44.That the process to be used for resolving disputes about the terms or operation of these Orders will be as follows:
(a)the parents will consult with an agreed Family Dispute Resolution practitioner to assist with resolving any dispute or reaching agreement about changes to be made;
(b)they will pay the costs of the Family Dispute Resolution practitioner equally;
(c)in the event that they are unable for any reason to have an appointment with the agreed Family Dispute Resolution practitioner and cannot agree on an alternate Family Dispute Resolution practitioner, the Mother will nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
(d)the Father will choose one of the listed practitioners within seven (7) days of receipt of the list; and
(e)if the Father fails to choose then the Mother may choose.
45.That all outstanding applications be otherwise dismissed.
Discharge of Independent Children’s Lawyer
46.The Independent Children’s Lawyer be discharged after a period of three (3) months from the date of these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Grier & Grier has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE PURDON-SULLY
INTRODUCTION
These are parenting proceedings within the meaning of Part VII of the Family Law Act 1975 (Cth) (“the Act”) with respect to the parties’ two children X born in 2014 and Y born in 2016.
The children’s interests are separately represented by Ms Kendall Hawdon (“ICL”).
The parents and children live in Town A, located in Region J, Queensland
Pursuant to Consent Orders made by Judge Middleton on 20 November 2020 the children live with the mother and spend time with the father from after school Friday to before school Monday each alternate weekend and every Monday and Wednesday from 3.00pm to 6.00pm.
The issues in dispute are:
(a)Whether the mother is at liberty to relocate the residence of the children to City F. Her application is opposed by the father and the ICL;
(b)Whether the children should live primarily with the mother or father, the father and ICL seeking a change in the children’s primary residence and if the change is made in favour of the father whether there should be a moratorium on the mother’s time with the children as proposed by the ICL for 28 days, supported by the father;
(c)What Orders should be made for parental responsibility both parents seeking an Order for sole responsibility in their favour;
(d)What Orders should be made for phone time, the ICL and father seeking that that occur once a week and the mother three times a week and phone time on special occasions, the father and ICL agreeing that there should be phone time on Christmas day for the parent not spending time with the child on that day;
(e)How time on Father’s Day, Mother’s Day and the children’s birthdays should be shared and whether that time should also be on the parent’s birthdays as proposed by the mother;
(f)Whether the Christmas school holidays should be week about as proposed by the mother or halved between the parents as proposed by the ICL and father;
(g)Which school the children should attend, the ICL and father seeking that both children attend School G in Town A;
(h)Who holds the children’s passports – both parents agree that the children should be at liberty to take the children overseas although there are some differences with the wording of the Orders to facilitate that trave;.
(i)Whether the children engage in therapeutic care with a psychologist at Town A Clinic and the provision of various experts reports to that psychologist;
(j)What restraints should be made both parties seeking various restraints and the ICL seeking a restraint on the mother’s approach to the children’s fear of the dark.
Annexed to these reasons are the Orders sought by the ICL (Annexure A) and the mother (Annexure B) prior to the taking of oral submissions, the father agreeing with the orders sought by the ICL save that the father sought four additional orders which were made by consent. Those agreements related to the start and finish of holiday time, Christmas Day time, the children being together on their birthdays and the retention of a Medicare card.
FACTUAL BACKGROUND
The father is 50 having been born in 1971. He resides in the former matrimonial home in Town A. He conducts a business in partnership with his sister on leased land on his parent’s property outside of Town E, an hour and half’s drive each way from Town A. Whilst there is a possibility he will at some future stage live on his parent’s property in Town E his present intention is to remain living in Town A where he is a self-employed repair technician.
The father has a child aged 27 years from a previous relationship. They have some, albeit limited, contact.
The father is not currently in a relationship.
The mother is aged 38 having been born in 1983. She is originally from South Australia where her parents continue to reside. She has resided in Town A since 2010. She is employed as a fitness professional.
Since mid-2020 the mother has been in a relationship with Mr D. They have been engaged for over one year.
X attends School G, a private school in Town A. Y attends the local state school.
The parties commenced to cohabit in 2010, married in 2013 and separated on a final basis on 1 June 2018.
Since their separation the children have lived primarily with the mother.
The parties have effected a property settlement.
These proceedings have an unfortunate history. There was a four day trial in 2019 and 2020 before Andrew J. His Honour had not handed down a decision at the time of his death. It was determined that the matter should proceed by way of a re-hearing. Further trial dates of 4 to 7 May 2021 were aborted because of a dispute over whether Mr C, who had prepared two family reports, should prepare a third, the father’s appeal against a decision on that issue successful, a further delay thereafter occurring where the parties had requested time to explore a mediated settlement. Before that dispute resolution process could be undertaken, the mother unilaterally relocated with the children to City F leading to a fresh round of litigation with the mother ordered to return the children to Town A.
The second trial was heard in City F on 28, 29, 30 June and 1 July 2022 with oral submissions taken in Brisbane on 15 July 2022.
On 20 July 2022 I pronounced final orders in the matter. These are the reasons for my decision which should be read in conjunction with my oral reasons given on 20 July 2022.
THE LAW
The law is well known and does not require detailed repeating (see MRR & GR [2010] HCA 4 at [6] - [15] and Goode & Goode (2006) FLC 93-286 at [5] - [13]).
Section 60B of the Act details the objects of the Part VII of the Act which relate to children together with the principles underlying those objects.
Section 60CA requires the Court to regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child's best interests are listed in s.60CC.
Section 65D(1) provides that the Court may make such parenting order as it thinks proper, subject to the provisions of ss.61DA and 65DAB, the latter not relevant to the circumstances of this case.
Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. The presumption does not apply in the particular circumstances as outlined subsections (2) and (4).
The making of an order for equal shared parental responsibility requires the Court to follow the pathway in s.65DAA of the Act and consider whether the making of an order for equal time is in the best interests of a child and reasonably practicable and if not, consider whether an order for substantial and significant time is in the best interests of a child and reasonably practicable.
It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided by the same legislative pathway as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders. The Court faced with a parent wanting to relocate must consider the competing proposals of both parents on its merits in accordance with the prescribed legislative pathway (Sayer & Radcliffe and Anor [2012] FamCAFC 209 at [47] - [48]).
APPROACH
I propose to consider the relevant s.60CC(3) matters before I turn to the primary considerations under s.60CC(2) as findings with respect to the former will inform the latter.
I shall then consider parental responsibility, the Court’s findings under s.60CC relevant to the ultimate findings made in that regard.
PRELIMINARY OBSERVATIONS
This matter involves factual disputes on matters of relevance such that it is necessary to make some assessment of credit to enable findings to be made with respect to the considerations that will inform what orders to make in the best interests of the children. The nature of the evidence and allegations are such that there will be a particular focus on the mother’s conduct and capacities. To that end I am conscious that the authorities recognise that parents can present with strengths and weaknesses as people and parents and that, if possible, moderation should be the Court’s guide (Jurss & Jurss (1976) FLC 90-041); Brandon & Brandon (No.2) [2012] FamCA 374).
I have carefully considered the evidence over the course of a five day trial, together with the submissions made. I have been assisted by able Counsel. I do not propose to respond to each and every submission made, however I have considered all submissions in determining what orders will meet the best interests of X and Y.
SECTION 60CC(3) - ADDITIONAL CONSIDERATIONS
Section 60CC(3)(a) - any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
Other than as identified in these reasons, this is not a relevant consideration with respect to any parenting preference given the ages of the children and where any views expressed by them to that end are likely to be compromised by the influence of the mother and the children’s knowledge of and exposure to the parental conflict.
I place little weight on the views expressed by X in the letter written to the Judge on about 19 February 2022.[1] I find that the letter was instigated by the mother and the contents influenced by her. I find it was conduct on the part of the mother which was abusive of X in circumstances where she would have known that he was spending time with the father, would have known that his father would read the letter, and that X would likely have been anxious about that.
[1] Annexure -03 to the mother’s affidavit filed on 24 February 2022 (Exhibit 15) and Annexure -01 to the mother’s affidavit filed on 28 February 2022 (Exhibit 16)
The Court places weight on the evidence that suggests that X, in particular, is burdened by the parental dispute. The family report writer Mr C noted at [53] et seq of his third report dated 23 May 2022 that X’s reports and opinions were at times inconsistent; that he was “confused”; that he was feeling “overwhelmed” by the entrenched nature of the parental conflict, that he was sick of the parent’s arguments which made him “scared” and “very angry” (“I want to say to them, can they stop fighting. It’s getting worse than it was before”); where phone time on his account was a “drama”; where he knew each parent wanted him to live with them; where he felt pressured by his mother to write the letter to the Judge; where he had no one to talk to about his feelings and was getting frustrated and distracted at school, where he could not concentrate (“I can’t concentrate because I am thinking about all my worries”); where his homework was being negatively impacted; where his top three concerns were “the arguments” and where he spoke of Mr D’s involvement in the dispute and Mr D telling his mother and them what to do.
With respect to Y, aged 5 years and his stated preference to live with his mother, Mr C also opined at [75] of the same report: “…… a strong correlation between [Y’s] opinion, wishes and feelings and the impact of [Ms Grier’s] influence. It is noted that in 2019, both children’s parental bonds and attachments were intact”.
Mr C further opined at [49]: “….some indications to suggest that [Ms Grier] had intentionally sought to influence the children’s views, wishes and opinions, and [Y] in particular, did appear to align with her perspectives”.
I accept the evidence of Mr C, supported on the whole of the evidence before the Court, with respect to the mother’s influence on the children.
Section 60CC(3)(b) - the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child).
The children love both their parents.
The evidence does not support the mother’s concerns about the quality of the children’s relationship with the father or a lack of attachment.
Nor does the evidence support a finding that the children are fearful of the father, that he has inappropriately disciplined them, that he ripped the foreskin off Y’s penis, or that he has otherwise engaged in inappropriate behaviour of a sexual nature inter alia by taking photos of their private parts, pinching X’s bottom and showing these photos to his friends.
The father’s evidence that the children are “openly affectionate” towards him and able to seek “comfort during the times they are upset” from him[2] is supported by the evidence of the supervisor Ms K[3] and the family report writer, Mr C.
[2] Affidavit of the father filed 2 June 2022 at [534].
[3] Affidavit of Ms K filed 17 July 2019, annexure marked “2”.
Ms K reported observing a positive attachment between the children and their father. She gave evidence of their affectionate engagement with him and the father’s positive nurturing responses. Her observations accorded with those of Mr C in the family report interviews.
For example, Mr C opined that “[X] and [Y] both appear to have well-established bonds and secure attachments with each parent. They showed no fear or reservation towards either parent during the assessment.”[4]
[4] Report of Mr C at [104] annexed to his Affidavit filed 27 February 2019
In his most recent report he observed at [77] that the:
“…children seemed relaxed and comfortable spending time with [Mr Grier]. They settled immediately, seemed to have no reservations about spending time with him, and they appeared quite affectionate. During the interviews, the children were observed engaging in jovial conversations, playing contently, and cuddling on the couch while watching funny clips on YouTube with [Mr Grier].”[5]
[5] Report of Mr C dated 23 May 2022 at [77].
A Departmental record dated 5 May 2022[6] noted that during an unannounced visit on 22 April 2022, the children were observed by departmental officers to be “comfortable and happy around their dad”.
[6] Exhibit 3 at page 54.
Notwithstanding the children’s attachments with both parents, it is unchallenged that the mother was the children’s primary carer during the relationship, a care arrangement both parents viewed to be in the best interests of the children and one they continued following their separation. This is a significant consideration for the Court in its assessment of the parties’ proposals, particularly given the young ages of the children and where the proposal of the mother would continue a care regime with which they were familiar.
The children appear to have a developing relationship with the mother’s partner, Mr D. Mr C observed X to be affectionate with Mr D during the family report interviews. The evidence does not permit a conclusion however that the children have a significant attachment to him at, least at this juncture. His relationship with the mother is yet to stand the test of time. Notwithstanding their engagement, neither the mother nor Mr D evidenced firm plans to marry, the mother’s evidence to the effect that they were awaiting the outcome of these proceedings. Further, on her sworn evidence they did not reside together, Mr D living primarily in his residence attached to his business.
All proposals as to time would allow the children’s relationship with Mr D to develop if he remained a significant person in the mother’s life.
The children appear to have relationships with their maternal and paternal grandparents, and a paternal aunt, relationships that are important to them. The proposal of the mother to relocate would have some impact on the children’s hitherto regular time with their paternal grandparents and aunt, who all reside in the Town A area, a relevant consideration in circumstances where the children’s face to face contact with their maternal family is constrained by distance.
The mother’s primary proposal to relocate to City F would reduce the children’s time with paternal family members without the benefit of necessarily increasing their time with their extended maternal family.
The paternal grandmother
It is convenient at this juncture to discuss the allegations involving the paternal grandmother.
There is no persuasive evidence to find that the paternal grandmother, who the children affectionately call “Darling,” has acted or would act in a sexually inappropriate way with either child.
The mother would have the Court believe that she did not view the grandmother, who on her oral evidence was “kind”, as having attempted to kiss the boy’s penis. When asked about the incident by Mr C, X said it had never happened before or since, although he was adamant it had happened.
In light of the mother’s apology to the paternal grandmother in open Court, it is unexplained why an injunction restraining her from having contact with the children was made on an interim basis, let alone one that continued for some five months to trial, depriving the children of time with a familiar carer. It was not an order sought by either party on a final basis. Its review was recommended by Mr C in his report dated 23 May 2022, some five weeks before the trial. The orders sought by the mother in her affidavit filed 8 February 2022 opposing the father’s application for a recovery order shed no light on the matter as the orders were not annexed to the document. It was left to the Court to raise the matter and discharge the order, by consent.
I have concluded that the mother used the children’s alleged disclosures of January 2022, namely that their grandmother had tried to kiss their “privates”, for forensic advantage in her quest to remain in City F, the mother having unilaterally relocated with the children there contrary to a Court order that she knew restrained her from doing so.
It is clear that by 13 December 2021 the mother was wanting to change the care arrangements for the children then in force pursuant to Court Order, the records of L Family Services noting that she had so informed her case worker.
The mother’s evidence at [55] - [56] of her affidavit filed 8 February 2022 (in response to the father’s recovery application), namely that the trigger for the move away from Town A was after the children had made their disclosures to her in January about their grandmother, was disingenuous. It was the mother’s evidence at trial that she had made a decision to relocate to City F in early December 2021.
In light of that evidence and her further sworn evidence at [231] of her trial affidavit as to the timing of her decision to relocate, the likely purpose in informing the Court in her affidavit of 8 February 2022 of the disclosures about the grandmother and police investigation was to bolster her case for relocating on the basis of safety concerns.
She would have known that the restraint on the children being removed from Town A made any unilateral relocation problematic. Her diary note of late December 2021 made clear she had to prepare for a recovery application by the father.
What the mother’s evidence with respect to the disclosures about the grandmother did was to create a sense of urgency and the need for protective action by her, the Town A Police on her evidence having begun an investigation “immediately” because of the “seriousness” of the allegations; the police on her evidence wanting to interview the children “as soon as possible”; the Department notified; criminal charges not ultimately laid albeit not by reason of the a lack of veracity but because there was no actual “contact”, the safety concerns however remaining on her case as the grandmother’s conduct had occurred on “many” occasions according to the children, the children having to “hit her and run away” to protect themselves, and the father in the habit of leaving the children to be cared for by others.
I find that the mother had no genuine protective concerns about the grandmother, as the police records and her oral evidence under cross-examination make plain.
The notion that the mother was merely reporting to the police what the children had said to her, as opposed to making an accusation in those terms or asserting that what the children said was an objective fact, must be rejected. It ignores the evidence, if not the dictates of common sense. The contents of the letter dated 12 February 2022 sent by her then lawyers to the father’s lawyers when she failed to make the children available to him are at odds with the submission that she was the mere passive reporter of information relayed to her by the children.
It is a submission that seeks to absolve the mother, a free agent with independent will, from the need to apply some level of intellectual rigour and proportionate response to her parenting and problem solving.
It is no small matter to take a child, here children aged 7 and 5 to the police, children who on the evidence had already been exposed to police and Departmental interviews over earlier allegations.
It is no small matter to take children for police interview, the purpose of which was for them to recount or be questioned about their grandmother engaging in sexually inappropriate behaviour with them.
If the mother viewed the grandmother as a kind, hands on carer who she knew touched the boys in a caring and loving way and if she did not view the grandmother’s actions as malicious, as she informed the police in January 2022, it is unexplained why she took them to the police, at least without first speaking to the grandmother to obtain her version of the events.
This was, after all, the same grandmother who, as of 31 January 2019, the mother viewed to be a sufficiently safe, dispassionate care giver such that she consented to an Order of this Court that she be one of three supervisors of the children’s time with their purportedly violent father.
The mother would have known by the afternoon of the disclosures in January 2022 that if she wanted to suspend the father’s time it was necessary for her to bring an urgent application to the Court. She reported as much to her case worker. No application was filed.
She would have or should have known that she had an obligation to inform the father at the earliest, her poor relationship with him no excuse given her then legal representation. The father had a right to know of any allegation of sexual impropriety purportedly made by the children.
Had he been informed, it would have enabled him, for example, to speak to his mother, something the mother did not do, or speak to the police to provide relevant context to the disclosures, including the fact that he was present when the alleged impropriety occurred, a fact not known to the mother or the police at the time, however one that may have potentially avoided the children being interviewed.
The only reasonable inference to draw from the mother’s inaction in informing the father or in failing to bring an application to the Court, was that it was not in her interests to do so before she had relocated to City F, which she did, in secret, at the end of that week. It was a reason why she was likewise reluctant to have the police interview the grandmother before she had relocated.
The mother was aware of her obligations to make the children available to the father in January 2022, as she informed her case worker she was concerned about withholding them because of the Court Order. She withheld them anyway.
The Court rejects the mother’s denial that she knew there was no police investigation on foot on that date. The mother knew two days previously that the children had made no disclosures to the police in their formal interviews and that the police would not be taking further action.
The same day, the mother however asked her case worker to report the matter to the Department on her behalf. It is probable that the mother was seeking to engineer a referral by her case worker’s organisation as opposed to her making the referral because she perceived it to be the more forensically advantageous course. The questioned the utility of doing so in circumstances where the children had already been interviewed, had made no disclosures and the police investigation concluded with no further action to be taken. The mother made the notification herself two days later.[7]
[7] Page 45 Mother’s Affidavit filed on 8 February 2022, … January 2022 entry.
In summary, there was no persuasive basis for the children to be taken to the police. There was no persuasive basis for the father to be refused time with the children in January 2022. The allegations were not against him and could have been addressed by an undertaking, if necessary. The police investigation had by about two days previously concluded, before the mother relocated, the mother using the allegations for what advantage it afforded her in her quest to stay in City F, a decision to relocate already made by the mother in December 2021 and one unconnected to the disclosures against the grandmother in January 2022. There was no likelihood of a substantiated outcome of risk being returned by the Department in the circumstances.
Notwithstanding the father filing his Application for a Recovery Order on 25 January 2022 the father was only able to secure time with the children on 19 and 20 February 2022, and only then by providing undertakings, which could have been sought earlier, thus avoiding any disruption to the children’s time with him between 12 January and 19 February 2022.
Relevantly the father’s time was unsupervised, notwithstanding the mother’s asserted “grave concerns” and complaints in her affidavit of 8 February 2022 about the children in his care.
The effect of the restraint on the grandmother was not only to deprive the children of time with a kind and familiar carer, but to leave serious allegations against her hanging in the air until trial, allegations with the potential to not only impugn the good name and character of an 80 year old woman who had been subjected unnecessarily to police interview, but to undermine the trust the children placed in her. Like the mother, the grandmother lives in a rural community. The grandmother’s hurt and distress was palpable at trial, the grandmother observed to be in tears when the mother apologised to her in open Court, and whilst accepting the apology remarking at how hurt she had been by the allegations.
I place significant weight on these findings which support the proposal of the father and ICL.
Section 60CC(3)(c) - the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.
Both parents have taken the opportunity to spend time with the children. Both have sought to be involved in their lives.
The father’s contention that the mother has frustrated his ability to spend consistent time with the children and his ability to participate in decision making for the children and to keep him informed of relevant matters to do with the children is supported on the evidence.
The mother has failed to give due regard to the role of the father as an equal co-parent in decision making and parenting of their two children. I accept the evidence of the father that there were extended periods of time when he did not spend time with the children as a result of unilateral decisions by the mother.
The mother has failed to comply with Orders of this Court. I accept the chronology of the father with respect to incidents of the mother’s non-compliance. I accept the submissions on behalf of the ICL with respect to the mother’s attempts to abort the family reporting process.
It is not open to the Court to express a view on what legal advice the mother may or may not have received at the time of her relocation to City F, or what may have grounded advice purported to have been given to her, against a background of the parties’ legal representatives having sought an adjournment of the matter to enable settlement discussions to occur, the mother then represented by Counsel, a Court event that occurred around about the time the mother had determined to relocate if her evidence is accepted.
It appeared to be the mother’s view that if advised by her lawyer to do so, she was permitted notwithstanding a Court restraint and without first approaching the Court. That proposition is not accepted. Putting to one side the submissions made with respect to her ability to do so and the presence of her former lawyer in Court throughout the trial, the mother is a tertiary educated woman who holds multiple degrees and qualifications. At one time she had commenced a postgraduate program, interrupted only by her move to Town A.
She is not unintelligent. She would have had some understanding of Court process, having been involved in litigation since 2018. Throughout that time she has been represented by three firms of lawyers. She has been involved in contested hearings. In 2019 and 2020 she was involved in a four day trial before a Judge of this Court, during the course of which she was cross examined.
Her education and intelligence suggest an understanding of the Court’s expectation of her as a litigant. She was aware that she was restrained by Court Order from relocating the residences of the children from Town A. On her evidence she had read the two page document annexed to parenting Orders which inter alia included her legal obligation to comply strictly with the terms of a Court Order, the potential consequences if she failed to do so and what she could do if she wanted to change the Order, namely bring an application to the Court.
The father’s concerns about her would have been known to her, including his complaint that she had persistently without reasonable excuse failed to comply with Court Orders, having filed a Contravention Application to that end on 30 May 2019. The mother’s confusion under cross-examination about that application is not accepted. Her evidence at [70] of her trial affidavit made clear that she understood what contravening a Court Order meant as she complained about the father doing so.
In the circumstances as outlined, I do not accept that the mother would not have understood her obligation to comply with the restraining Order and that legal advice that she could do so even if given, not before the Court, absolved her from her responsibility as a litigant to comply or otherwise bring an application to seeks a lifting of the restraint.
I accept the evidence of the father that he has sought to participate in making decisions about the major long-terms issues in relation to the children, however, the mother has failed to include him in the process.[8] This has included decisions about the children’s education and their attendance on doctors and allied health professionals such as a psychologist, the latter of particular importance as both parents viewed it as in the best interests of the children to obtain that assistance.
[8]Affidavit of Mr Grier filed 2 June 2022, paragraph 552.
I accept that the mother has engaged in behaviour that has frustrated the father’s ability to obtain information to which he was entitled pursuant to Court Orders made in the best interests of the children. On the father’s evidence his knowledge of the children’s medical and other attendances was largely informed by the subpoenaed documents returnable in these proceedings.
I find that the mother has engaged in unilateral decision making with respect to school enrolments and that her failure to include the father in enrolment documents including as an emergency contact was purposefully exclusory.
The whole of the evidence suggests a level of purposeful resolve on the part of the mother with a focus on her own needs rather than the needs of the children, irrespective of what a Court Order says and irrespective of the impact on the children.
I accept the oral evidence of Mr C that the mother has become so “addled”, that she is unable to separate her needs from those of the children. That dynamic is unlikely to change in the future without the mother gaining insight into need for her to make some necessary adjustments, a process unlikely to occur without the mother engaging in therapeutic work with a skilled practitioner and. I accept the evidence of Mr C in this regard.
I accept the submission on behalf of Counsel for the father that the clearest example that the mother has lost all perspective and has learnt nothing over the past four years of litigation is the enlivening of allegations against the father of sexualised behaviour in his household that resulted in further Departmental investigation and interview of the boys at their school in early 2022, allegations similar to those agitated by the mother in 2020. It is evidence that supports the concerns of Mr C with respect to the mother’s insight and capacities.
There is no medical or other evidence that the mother has confronted the concerns that centre on her. There is no evidence that she has raised with her counsellors or support workers the matters that Mr C identified as being concerns for him. Indeed the evidence of the mother was that she had not fully read Mr C’s second report as it made her sick.
The notes from L Family Services, the mother’s support service, annexed to her affidavit filed on 8 February 2022 suggest they have been acting on the mother’s self-reporting without challenge and without being made aware of the views of Mr C, the police or Department. In the context of children having been exposed to interview by a number of authorities and the potential that that may present for systems abuse, it is of concern that the children were also interviewed by the mother’s case worker during her home visit with the family in January 2022.
Mr C, a social worker with over three decades of relevant experience, has undertaken three reports and had the benefit of seeing the family over the course over three years. His conclusions on the family dynamic and the risks posed by the mother to the children as outlined in his oral evidence at trial were cogent, persuasive and supported on the whole of the evidence.
I do not view that Mr C has demonstrated any antipathy towards the mother by the particular inclusions in his report to which he was directed by her Counsel.
Nor am I able to conclude that extraneous matters bore on his ultimate assessment and the opinions expressed and conclusions outlined in his report. Whether he fairly or unfairly postulated about her delayed travel because of flooding is irrelevant to the overall thrust and strength of his evidence.
The mother’s proposal that the children continue to reside with her, whether in City F or Town A, does not address her inability to acknowledge that the children have an affectionate and close relationship with their father, that what they say to her may be grounded in their understanding of her needs and their exposure to the parental conflict.
She lacks insight into the negative impact of her conduct on the children, her relocation to City F in January 2022, the reporting to the police of the disclosures about the grandmother, her instigation of X’s letter and her reporting to the Department of further allegations against the father in April 2022, representing a troubling escalation of her behaviours as the trial approached. I accept the evidence of Mr C that risks to the children have seriously elevated since 2019.
The report by the mother to the Department in April 2022 of fresh disclosures by the children, this time of the father photographing their private parts, pinching their bottoms and showing photos to their friends is particularly troubling. The Departmental records noted no disclosures made by the children and no immediate welfare concerns identified. No substantiated outcome of harm was returned, acknowledged by the mother.
Allegations of sexual impropriety can have a devastating impact on children, the ramifications potentially lifelong. Children of this young age cannot be expected to make the distinction Counsel for the mother sought to make on behalf of his client when they are taken to a police station and interviewed about their grandmother and her purported conduct towards them or when further interviewed a few months later by welfare officers about their father.
Given the history, the Court could have no confidence in the mother’s support and fostering of the children’s relationship with the father because her actions make clear that she places no value on it.
The Court could have no confidence in what she says she would do if permitted to relocate to City F because she places no value on Court Orders. She would have the Court accept that she is prepared to act on the advice of others, even when on her account she did not want to do so, even the advice of strangers, be it a Town A Hospital health worker, a support person, a Woolworths manager yet struggle with Orders of this Court made in the best interests of the children, often following a contested hearing, a Court whose assistance she seeks.
The problem for the children is not the disadvantages of life in a small country town as perceived by the mother. It is the mother’s poor insight and child focus. I accept the evidence of Mr C that distance between the parents is likely to make matters worse, not better, for the children.
Whilst the trial experience can provide parents with an opportunity to reflect on what if any adjustments should be made to their parenting approach, I accept the submissions on behalf of Counsel for the ICL that the testing of evidence over the course of four days did not present a moment of realisation or enlightenment for the mother, a conclusion supported by the final submissions advanced on her behalf on her instructions. She has learnt nothing. Her proposal presents more of the same for the children.
I place significant weight on these findings which support the proposal of the father and ICL.
Section 60CC(3)(f) - the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.
This is a significant consideration.
Both parents have the skill set to undertake the day to day parenting of the children. However, a significant issue in this case is the mother’s incapacity to elevate the children’s needs above her own and her consequential impaired judgment and proportional response with impacts for the children’s emotional and psychological well-being. I repeat and reply upon earlier findings relevant to this consideration.
I accept his evidence of Mr C that whilst the mother loves the children and they her, she is a parent who has lost her way, one who is not operating at a healthy emotional equilibrium. It is an unaddressed circumstance that has escalated and is causing harm to the children.
Whilst in a more finely balanced case the risks identified by Counsel for the ICL in the father’s household may have assumed greater weight – for example, his own investment in the parental conflict and his confrontational style experienced by others across a range of scenarios - the risk factors for the children in the mother’s household are much greater.
X is at breaking point in terms of his emotional stability and psychological function. It requires urgent response which includes consistent engagement in a therapeutic process with a skilled counsellor. He is desperate to resolve the challenges he is experiencing. He is having difficulty regulating his behaviour at school. His interview with Mr C evidenced the depth of his confusion and cry for help. On the evidence of Mr C if left unaddressed it is a problem which could translate into other areas including peer relationships and his ability to learn.
The mother is unlikely to be able to manage any therapeutic response for X as she has no insight into her part in the dynamic that is causing or contributing to it, a circumstance where she has required X to take a side. Her management of the children’s engagement with psychologists to date under her primary care has been neither consistent nor targeted and otherwise exclusory of the father.
She has also been neglectful in her duties as a parent by failing to report to X’s school that he did not have a mental health disorder, something she accepted in 2019 was the case but then did not communicate to his teachers. She was unable to concede at trial that, as a consequence, X may be treated differently given that the school record recorded that he had been diagnosed with a mental health disorder.
The mother evidences no insight into the dissonance between her purported desire for the children to have a relationship with the father and her evidence that he was an abusive and violent parent.
It is trite to say that shaking a baby and throwing the child onto a bed at age 10 weeks, torturing animals, exposing a child to animal mistreatment such that the child was mirroring that behaviour at age 2 years and up, admitting to fantasising about killing his eldest son and his mother or dissecting a human body and torturing people by tying them to a chair and cutting off their toes and fingers one day at a time, are allegations of the most serious kind.
They are allegations, if proven, that suggest a no time Order as opposed to the Orders to which the mother had previously consented and otherwise sought in these proceedings on a final basis.
The mother was unable to persuasively explain how her approach would support or be managed in the best interests of the children given the evidence she adduced with respect to the father.
Mr D’s tested evidence did not suggest that he would be a source of child focussed support or relief for the children within the mother’s household. Like the mother, he is entrenched in the dispute. Putting to one side a lack of persuasive evidentiary support to connect the father to the event, his belief that the father had left a bomb outside his business was remarkable for what it displayed about the thought processes that led him to that conclusion. The police did appear to take the complaint seriously, with no expected follow up by them or Mr D.
His joint approach with the mother to the children’s bed time routine, by threatening to punish the children by turning off a light, when they were known to be afraid of the dark, raised concerns about his own insight. The Court shares the ICL’s concerns in that regard. Placing a child in a dark room or threatening to do so when they are already fearful of the dark is abusive conduct and threatening that outcome as a consequence of bad behaviour is equally abusive.
The mother’s capacity to foster a relationship between the children and the father is a significant consideration for the Court given the strength of the children’s attachments. Her capacity is compromised as a consequence of her being overwhelmed in her own psychological self and adult focus. She is wholly negative about the father. Whilst the father’s views about the mother are not positive, it is unclear how much those views have been infused or fashioned by her conduct over a long period of time. It must be remembered that at the first trial the father was not seeking a change of residence. But for the support of his lawyer in carrying a large proportion of his fees, the father could have been forgiven for giving up long ago, by reason of frustration, if not exhaustion.
The children’s ability to have a relationship with both parents is more likely to occur in the primary care of the father than the mother, the father being the more capable and able parent, a parent more likely to ensure that the children have an opportunity to have a relationship with both their parents.
I place significant weight on these findings which support the proposal of the ICL and father.
Section 60CC(3)(ca) - the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
This is not a relevant consideration in my assessment of the competing proposals.
Both parents have met their obligations in this regard. The father is meeting his assessed child support obligations. He pays for X’s private school fees.
Section 60CC(3)(d) - the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
This is significant consideration.
Whilst the proposal of the mother would continue a familiar care arrangement for the children, it will not produce a better outcome for them. It is a proposal that has more to do with meeting the mother’s needs than the needs of the children, City F not the first place to which she has sought to relocate with them. Relieving her perceived unhappiness in Town A is also unlikely to assist the children. Her propensity towards elevating her adult needs over the children’s best interests will likely continue. It has now reached a point where it overrides the benefits afforded to the children of maintaining her primary care of them where they are at risk of psychological or emotional harm. The mother’s rejection of Court authority further elevates the risks to the children.
I repeat and rely upon earlier findings in this regard, findings which cumulatively make a consideration of the benefits that would flow to the children of their residence in City F largely moot, as it would be in the primary care of the mother.
Her proposal to relocate would present a significant change for children who have lived their whole life in Town A. It would involve a change of residence, a change of school that is in X’s case is attuned and responsive to his particular needs, a disruption to their routines and extensive community extra-curricular engagement and particularly reduced time with a parent to whom they are attached and increased travel time to facilitate that.
The father’s proposal will also present a significant change for the boys. It may even be met with some resistance, by X in particular, in circumstances where the boys love their mother, are aware that she wants them to live with her and where they will spend less time with her. Whilst not an untested parent, the father is an untested primary care parent. He is likely to need some support in his care of the boys, given his full time work. He will need to become more involved at the children’s school. He will need to temper his confrontational style and develop some insight into the impact of that on others.
I am unable to conclude however that these factors present as a significant disadvantage on his proposal such as to suggest that the change should not be made. There is no persuasive evidence to conclude that he would not be able to meet the parenting challenges that may arise. To his credit, he has been committed to maintaining a relationship with the children. The history of this litigation suggests a level of resilience in his part. Mr C did not have any concerns about the father being able to adjust to a primary role of carer.
Further and relevantly, on the evidence of Mr C, the father’s management style may present with some benefits for the children, the boys likely to respond more favourably to a more directed management approach. The mother has evidenced some difficulties managing the boy’s disruptive behaviours at times. I am not prepared to discount the use by her of physical discipline in her management of the children’s behaviours, contrary to their best interests. X’s account to Mr C in that regard was detailed and persuasive.
The proposal of ICL and father for the children to spend time with the mother on alternate weekends and on holidays and special occasions would enable the children’s bond with her to continue while limiting the impact on the children of her problematic behaviours.
How the mother may react to a change in residency and whether it may further elevate and/or condense her behaviours in the time she has with the boys is an unknown, as is what, if any, risk that may present to the children. Mr C expressed some concerns to that end because in his view the mother does not want the father/child relationship to work. He was concerned about the mother’s use of physical discipline and the children being locked in a room, denied by the mother, albeit information provided voluntarily by X which contradicted her denial.
These unknowns however do not present as a significant disadvantage to making a change in their primary residence.
If that was to occur, I accept that a short moratorium on the mother’s time may assist the children in settling in and adjusting to the father’s home, the duration of that time one that would need to appropriately balance the children’s ages, their attachments to their mother and X’s feelings of already being overwhelmed.
Whilst it was submitted on behalf of the mother that there is no evidentiary support for the time period sought by the ICL, and further, that the father’s changed position as to that time period from 14 to 28 days reflects poorly on him, the difference between the two periods is marginal. I do not view that the proposal of the ICL lacks evidentiary support where a change in residence would represent a significant change for the boys, where there may be some push back by X, and where the boys would be supported by the engagement of a psychologist.
The proposal of the ICL and father for phone time is to be preferred. The mother’s proposal is not supported by her own detailed evidence of the problems that currently exist with phone time. I accept the evidence of Mr C that the difficulties that the father has experienced are unlikely to present if he were to have primary care of the children. The proposal of the ICL and father that reduces phone time to once a week appropriately balances the considerations. Phone time is meant to benefit the children. From X’s perspective he is not currently deriving those benefits with the frequency of the time currently ordered. The proposal of the ICL is more likely to respond to what X views as the “drama” of phone time where he is attuned to the conflict and fearful that anything he says or does is going to get one of his parents into trouble.
Whether in City F or Town A the children attending the same school is supported on the evidence. It was the mother’s evidence that if the children attended a City F school then they should be together as they rely upon each other for emotional support. The difficulties however the children are experiencing at school are likely a product of exposure to parental conflict, a change of school to City F unlikely to remedy that circumstance and not outweighed by the benefits afforded to them of a specialty school focus on the evidence of the mother.
I place significant weight on these findings which support the proposal of the ICL and the father.
Section 60CC(3)(e) - the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
On the proposal of the mother there are practical difficulties in the children spending frequent time with the father (which they currently enjoy) which do not exist on the proposal of the father and the ICL give the proposed distance between the parent’s residences on the proposal of the mother if permitted to relocate.
I find those difficulties would substantially affect the children’s right to maintain personal relations with the father on a regular basis in their best interests given the Court’s earlier findings and where the children’s presentations support them having fulsome time with the father on a regular basis.
Section 60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
I repeat and reply upon earlier findings in this regard.
The proposal of the ICL and father will more likely ensure the children receive counselling support. X’s presentation in particular suggests some urgency. The father is best placed to arrange for that assistance, with the psychologist to be provided with copies of the Court Order, these reasons, all three family reports and the police and Departmental material under subpoena.
I place significant weight on these findings which support the proposal of the father and ICL.
Section 60CC(3)(h) - if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right.
This is not a relevant consideration.
Section 60CC(3)(i) - the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
The mother has evidenced a poor attitude to her parenting responsibilities inter alia by reason of her failure to comply with Court Orders made in the best interests of the children, her frustration of the father/child relationship and her conduct as particularized which has amounted to abuse.
I repeat and rely upon earlier findings relevant to this consideration.
I place significant weight on these findings which support the proposal of the father and ICL.
Section 60CC(3)(j) - any family violence involving the child or a member of the child's family.
Section 60CC(3)(k) - if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter.
There are no current family violence Orders.
The Court is unable to conclude according to the requisite civil standard (s.40 of the Evidence Act 1995 (Cth)) that the father has engaged in the conduct asserted by the mother, namely that he was the perpetrator of physical and psychological abuse of her and the children or engaged in inappropriate sexual behavior towards the children, conduct that would meet the definition of family violence under s.4AB of the Act.
Whilst the Court acknowledges that allegations of family violence do not often permit corroboration, given the seriousness of the mother’s allegations against the father, in light of the inconsistencies and inaccuracies in her evidence, given her inability to make reasonable concessions (for example with respect to the need to pass on information to the school that X did not have a mental health disorder), where the Court has made adverse findings with respect to her adult focus, and where there is evidence that does not support some of the allegations made, it is necessary to approach the mother’s evidence with caution.
For example, the father’s denial of an assault by him of the mother at an M Community Centre changeover was corroborated by evidence of Mr N whose children were attending a sports class at the time. The police record of their investigation of the incident records that permission was given by the mother for the father to lean into the car to say goodbye to the children and that the father had a large and heavy build. It was noted that an independent witness who was present nearby was interviewed and saw no sign of aggression or assault. Further it was noted by the police that the mother had no visible injuries and had reported the matter 20 hours after the event. The complaint was recorded as unsubstantiated with no further action taken.[9]
[9] Exhibit 3 at page 78.
I otherwise repeat and reply upon earlier my earlier discussion and findings relevant to this consideration.
I find, firstly, that the mother’s conduct in disrupting the children’s time with the father and preventing them from having time with him ordered by the Court in their best interests, and secondly, the disruption in the children’s time with the paternal grandmother as a result of the mother’s reporting of the allegations with respect to her to the police and the Court which led to a restraint on her time with the children would meet the definition of family violence as outlined in s.4AB(2)(i) in that it was conduct that prevented the children from making or keeping connections with family members. There is no evidence that the mother opposed the making of that restraint.
I place significant weight on these findings which support the proposal of the father and ICL.
Section 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
This is a significant consideration.
The proposal of the father and ICL is least likely to lead to further litigation, the mother’s proposal presenting risks for the children in her primary care as earlier identified.
The Court otherwise repeats and relies upon findings with respect to the Court’s confidence in the mother’s compliance with its Orders.
The Order most likely to reduce the impact of the parental conflict and provide a level of stability and security for the children, children who are at breaking point, is the proposal of the ICL and father.
I place significant weight on these findings which support the proposal of the father and ICL.
Section 60CC(3)(m) - any other fact or circumstance that the court thinks is relevant.
Whilst it is the children’s best interests that is the paramount consideration, it is not the sole consideration, the legitimate interests and desires of each of the parents relevant to what parenting arrangements would serve a child’s best interests (AMS v AIF; AIF v AMS (1999) FLC 92-852 per Kirby J at [144]; U v U [2002] HCA 36 per Hayne J at [170]). Where however there is a tension between a parent’s interests and rights and the children’s welfare and rights, priority must be accorded to the latter.
The mother is under no obligation to provide compelling reasons for her proposed relocation. However that is not to suggest that her reasons for relocating are wholly irrelevant when properly evaluating the competing proposals before the Court in determining which proposal will meet the best interests of the children (U v U (supra) per Gaudron J at [35] – [37]). For example, the mother’s evidence is that there are better opportunities for her in City F and it will otherwise offer her family a better life. She is desperate to remove herself from Town A and put distance between herself and the father. Her emotional wellbeing and her coping are important considerations for the Court given the close relationship the children have with her and where she deposes to the difficulties of living in a “fishbowl”.
I am, however, unable to conclude that the mother’s emotional wellbeing or her parenting would be negatively impacted if she decided to continue to reside in Town A if the boys’ residence was maintained there, such that it favours permitting the relocation of the children particularly in light of earlier findings on parenting capacity. She adduces no persuasive evidence to suggest otherwise.
The evidence suggests a person with talent, drive and engagement notwithstanding her unhappiness in living in Town A. She has a history of securing a variety of employment. She now works as a fitness professional, a similar type of employment to that secured in City F albeit without what she views as advancement opportunity. Whilst her work as a fitness instructor does not accord with her professional background, fitness appears to now be a passion she seeks to pursue.
(i)the proposed travel itinerary;
(ii)a contact telephone number for the travelling parent and the children at the address at which they will predominately be based;
(iii)Within fourteen (14) days of receiving the written request in paragraph 31(a) and the information in paragraph 31(b) the non-travelling parent will advise whether they consent to the travel arrangement, with such consent not to be unreasonably withheld;
(iv)Within fourteen (14) days of the consent being provided, the travelling parent will provide to the other parent:
A.A copy of the full itinerary;
B.A copy of the return prepaid air travel tickets for the children and the travelling parent; and
C.Confirmation of travel insurance and overseas health insurance for the travelling parent and the children;
(c)During the trip, the travelling parent will arrange for the children to telephone/Skype/Video conference the other parent on at least two (2) occasions each week or at any other reasonable time;
(d)The parent travelling with the children will ensure the children are immunised appropriately for the country where the children will be travelling and both parties will consult each other in relation to the children being immunised prior to children travelling out of the country.
Australian travel document
38.That pursuant to section 11(1)(a) of the Australian Passports Act 2005, the parents consent to the children having or being issued with an Australian travel document.
39.That pursuant to section 11(1)(b)(ii) of the Australian Passports Act 2005 and these Orders, the children are permitted to travel outside the Commonwealth of Australia using an Australian travel document.
40.That the parents will do all acts and things and sign all documents necessary to make application or renewal application to the Australian Passport Office (or such other department or instrumentality administering the Australian Passports Act 2005) for the children X (born in 2014); and Y (born in 2016) (“the children”) to be issued with an Australian travel document.
41.That in the event that a parent refuses or neglects to sign any document necessary to issue X (born in 2014); and Y (born in 2016) (“the children”) with an Australian travel document despite the fact that by these Orders the parents have consented to an Australian travel document being issued, such refusal will constitute sufficient special circumstances for a party to seek that the Minister administering the Australian Passports Act 2005 give consideration to issuing an Australian travel document pursuant to section 11(2)(a) of the Australian Passports Act 2005.
42.That any Australian travel document be:
(a)held by the Father when the children are not travelling;
(b)be provided to the Mother upon compliance with Order 31(b)(iv) above.
Dispute Resolution
43.That the process to be used for resolving disputes about the terms or operation of these Orders will be as follows:
(a)the parents will consult with an agreed Family Dispute Resolution practitioner to assist with resolving any dispute or reaching agreement about changes to be made;
(b)they will pay the costs of the Family Dispute Resolution practitioner equally;
(c)in the event that they are unable for any reason to have an appointment with the agreed Family Dispute Resolution practitioner and cannot agree on an alternate Family Dispute Resolution practitioner, the Mother will nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
(d)the Father will choose one of the listed practitioners within seven (7) days of receipt of the list; and
(e)if the Father fails to choose then the Mother may choose.
Discharge of Independent Children’s Lawyer
44.The Independent Children’s Lawyer be discharged.
ANNEXURE B
ORDERS SOUGHT BY THE RESPONDENT MOTHER
IF RELOCATION IS PERMITTED
1.That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born in 2014 and Y born in 2016.
2.That the process for the Mother making a decision about a major long-term issue of the children shall be as follows:
(a)The Mother will inform the Father about the decisions to be made;
(b)The Mother will invite the Father’s input regarding the decision;
(c)The Mother will consider the Father’s input when making the final decision; and
(d)The Mother will inform the Father of the final decision made.
3.That notwithstanding orders 1 and 2 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the children when they are spending time with him.
4.That the mother shall be permitted to relocate to City F, Queensland with the children.
5.That the children shall spend time with the Father as follows:
(a)For three weekends in each school term as nominated by the father in writing no less than two weeks prior to the proposed weekend with the father to pick up the children from after school on a Friday and the Mother to collect the children at 3pm Sunday at McDonald’s Town A.
(b)For the Easter school holiday period, the children will spend time with the Father for the first half of that period and the second half with the Mother;
(c)For the June/ July school holiday period, the children will spend the first half of the holiday period with the Father and the second half with the Mother;
(d)For the September/October school holiday period, the children will spend the first half of the holiday period with the Father and second half with the Mother;
(e)the Christmas school holidays shall be spent in a week-about arrangement with the children to spend the first, third and fifth weeks of the school holidays with the Father in all even numbered years and the second, fourth and sixth week in all odd numbered years and with the Mother at all other times.
CHANGEOVERS
6.That unless otherwise agreed, changeovers are to be facilitated as follows:
(a)If a school day, at the children’s school and/ or day care; or
(b)During the school holidays, the Father will pick the children from City F McDonalds and the Mother will collect them at Town A McDonalds.
7.That the parent who does not have the child in their care shall be at liberty to communicate with the child by telephone at any reasonable time on the following special occasions:
(a)Christmas Day;
(b)Easter Sunday;
(c)The child’s birthday;
(d)The parent’s birthday;
(e)Father’s Day; and
(f)Mother’s Day.
EXCHANGE OF INFORMATION AND AUTHORITIES
8.The Mother and Father shall:
(a)Keep each other informed at all times of their postal address and contact telephone number and inform the other party in writing within 24 hours of any change;
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child.
(d)This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.
(e)Authorise, by this Order, the schools or day care centres attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost).
(f)Communicate about issues concerning the long term, care, welfare and development of the children and any proposed changes or swaps to the contact arrangements, by way of a communication book which will travel with the children.
9.That both parties be at liberty to obtain information regarding the children’s health and medical issues, and this Order can be regarded as authority for the relevant medical practitioner or hospital to provide relevant information about the children to either parent (at the requesting parent’s cost).
10.That both parents are at liberty to:
(a)Contact the school or day-care provider about the children’s progress and to obtain copies of all school information including newsletters, reports, photographs and details of any school activities;
(b)Attend at all school or day care functions and events to which parents are invited; and This Order be regarded as authority for the school or day care provider to provide relevant information about the children to their parent.
11.That the parents will communicate about the children via text message in emergency but otherwise via the “Our Children” website, with the Father to meet the cost of maintaining a subscription to this service.
CIVILITY IN COMMUNICATIONS
12.That during the time the child is with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Encourage and not undermine the child’s relationship with the other parent
COMMUNICATION WITH PARENTS
13.The children shall communicate with the parents on the telephone at such times as the child reasonably requests but otherwise between 5.30 and 6.00 pm each Monday, Thursday and Saturday with the parent to initiate the call, and in relation to such communication each parent shall:
(a)Ensure that the child is available to receive the telephone call;
(b)Arrange for the child to telephone the other parent on the following night if, for any unforeseen circumstance, the child misses the telephone call from that parent;
(c)Ensure that the child have privacy during the conversation, to the extent practicable given their age not interfere with the telephone call.
General
14.That each parent must advise the other of:
(a)Any illness, accident or injury suffered by the child;
(b)Any medical or dental treatment provided to the child;
(c)Any medication a child is to take while the child is in the other’s care (including the dosage);
(d)Any special dietary requirements that apply to the child.
15.The parents shall (when the child is in their care):-
(a)Administer any prescribed medication in accordance with the prescribing doctor’s instructions;
(b)Use their best endeavours to ensure the children’s homework and projects are completed in a timely manner;
(c)Use their best endeavours to ensure that the children are able to attend their extra-curricular activities;
(d)ensure that the child attends all sporting, musical, hobby events, practices and rehearsals when the children are with that parent
(e)Not allow the said children to travel to, from or at the local shops, a shopping centre or other shopping venue alone and without the company of a responsible adult person
16.The parents shall not (when the child is in their care):
(a)Smoke in the immediate presence of the child or allow others to do so;
(b)Expose the child to domestic violence or violent behaviour;
(c)Consume alcohol above the legal driving limit;
(d)Allow the child to remain in the presence of anyone using drugs of abuse;
(e)use physical discipline on the child/children;
(f)Consume illicit drugs or allow the child to be in the presence of any other person doing so.
(g)That each parent will provide living essentials including beds, clothing, toiletries, toys, food and belongings for the children in order to maintain their comfort and reduce the need for packing and transfer of items between households.
Passport
17.That the Father sign all documents, give all consents and do all necessary things requested by the Mother to enable the child to be issued with an Australian passport within fourteen days of being provided with the necessary documents by the Mother.
18.That in the event that the Father refuses or neglects to sign any document necessary to issue X (born in 2014); and Y (born in 2016) (“the children”) with an Australian travel document, such refusal will constitute sufficient special circumstances for a party to seek that the Minister administering the Australian Passports Act 2005 give consideration to issuing an Australian travel document pursuant to section 11(2)(a) of the Australian Passports Act 2005.
19.That any Australian travel document be held by the Mother when the children are not travelling and to be provided to the Father only when he wishes to travel overseas with the children.
IF RELOCATION IS NOT PERMITTED
1.That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born in 2014 and Y born in 2016.
2.That the process for the Mother making a decision about a major long-term issue of the children shall be as follows:
(a)The Mother will inform the Father about the decisions to be made;
(b)The Mother will invite the Father’s input regarding the decision;
(c)The Mother will consider the Father’s input when making the final decision; and
(d)The Mother will inform the Father of the final decision made
3.That notwithstanding orders 1 and 2 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the children when they are spending time with him.
4.That the children live with the Mother
5.That the children spend time with the Father at all such times as agreed between the parents and failing agreement as follows:
During the Gazetted School Term
(a)From 3.00pm Friday until before school on Tuesday, continuing each alternate weekend thereafter.
During School Holidays
(b)For the Easter school holiday period, the children will spend time with the Father for the first half of that period and the second half with the Mother;
(c)For the June/ July school holiday period, the children will spend the first half of the holiday period with the Father and the second half with the Mother;
(d)For the September/October school holiday period, the children will spend the first half of the holiday period with the Father and second half with the Mother;
(e)the Christmas school holidays shall be spent in a week-about arrangement with the children to spend the first, third and fifth weeks of the school holidays with the Father in all even numbered years and the second, fourth and sixth week in all odd numbered years and with the Mother at all other times.
(f)School holidays shall be deemed to commence at 3.00pm on the day the school term finishes and conclude at 8.30am on the day school resumes and in the event there is an uneven number of nights the Father will retain the additional night and changeover is to occur on the prescribed day at 3.00pm.
Special Holidays
6.That notwithstanding any of the provisions contained in these Orders, unless otherwise agreed in writing, the children shall spend time with and communicate with the parents as follows:
(a)In relation to Father’s Day, with the Father from 9.00am to 5.00pm;
(b)In relation to Mother’s Day, with the Mother from 9.00am to 5.00pm;
(c)In relation to the children’s or a parent’s birthday:
(i)If a child’s birthday falls during the school week, from after school to 6.00pm with the non-live with parent;
(ii)If a child’s birthday falls on a non-school day, from 9.00am to 12.00pm with the non-live with parent;
(iii)If the Father’s birthday falls during the school week, from after school to 6.00pm with the Father;
(iv)If the Father’s birthday falls on a non-school day, from 9.00am to 5.00pm with the Father;
(v)If the Mother’s birthday falls during the school week, from after school to 6.00pm with the Mother;
(vi)If the Mother’s birthday falls on a non-school day, from 9.00am to 5.00pm with the Mother;
CHANGEOVERS
7.That unless otherwise agreed, changeovers are to be facilitated as follows:
(a)If a school day, at the children’s school and/ or day care; or
(b)If a non-school day, at the Town A McDonalds.
TELEPHONE COMMUNICATION
8.The children shall communicate with the parents on the telephone at such times as the child reasonably requests but otherwise between 5.30 and 6.00 pm each Monday, Thursday and Saturday with the parent to initiate the call, and in relation to such communication each parent shall:
(a)Ensure that the child is available to receive the telephone call;
(b)Arrange for the child to telephone the other parent on the following night if, for any unforeseen circumstance, the child misses the telephone call from that parent;
(c)Ensure that the child have privacy during the conversation, to the extent practicable given their age not interfere with the telephone call.
COMMUNICATION AND EXCHANGE OF INFORMATION
9.These Orders are sufficient authority for any school attended by the children to release to the parents information in relation to the children’s educational progress and other school related activities and to supply each party with copies of school reports, photographs, certificates and awards as and when requested and at the expense of the party making the request.
10.These Orders are sufficient authority for both parents to attend the children’s schools and/ or day care centres for the purposes of collecting the child/ren and dropping off the child/ren to the same.
(a)Each party will advise the other of any change of contact telephone number, postal address or email, within twenty-four (24) hours of such change occurring.
(b)The parents will advise one another immediately on the children experiencing any medical emergency or significant health event while the children are in their respective care and will provide particulars of any emergency treatment provided to the child and details of the relevant service provider/s.
(c)The parents will advise one another within seven (7) days of any other non-essential medical/allied health treatment provided to the children and will provide the contact details of the relevant service provider/practitioner to the other party.
(d)These Orders are sufficient authority to enable either party to obtain any and all information required by that party from the children’s treating medical or allied health practitioner as and when requested and at the expense of the requesting party.
11.That during the time the children are with either parent, that parent will:
(a)Respect the privacy of the other parent and will not question the child about the personal life of the other parent;
(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
(d)given their age not interfere with the telephone call.
General
12.That each parent must advise the other of:
(a)Any illness, accident or injury suffered by the child;
(b)Any medical or dental treatment provided to the child;
(c)Any medication a child is to take while the child is in the other’s care (including the dosage);
(d)Any special dietary requirements that apply to the child.
13.The parents shall (when the child is in their care):-
(a)Administer any prescribed medication in accordance with the prescribing doctor’s instructions;
(b)Use their best endeavours to ensure the children’s homework and projects are completed in a timely manner;
(c)Use their best endeavours to ensure that the children are able to attend their extra-curricular activities;
(d)ensure that the child attends all sporting, musical, hobby events, practices and rehearsals when the children are with that parent
(e)Not allow the said children to travel to, from or at the local shops, a shopping centre or other shopping venue alone and without the company of a responsible adult person
14.The parents shall not (when the child is in their care):
(a)Smoke in the immediate presence of the child or allow others to do so;
(b)Expose the child to domestic violence or violent behaviour;
(c)Consume alcohol above the legal driving limit;
(d)Allow the child to remain in the presence of anyone using drugs of abuse;
(e)use physical discipline on the child/children;
(f)Consume illicit drugs or allow the child to be in the presence of any other person doing so.
(g)That each parent will provide living essentials including beds, clothing, toiletries, toys, food and belongings for the children in order to maintain their comfort and reduce the need for packing and transfer of items between households
Passport
15.That the Father sign all documents, give all consents and do all necessary things requested by the Mother to enable the child to be issued with an Australian passport within fourteen days of being provided with the necessary documents by the Mother.
16.That in the event that the Father refuses or neglects to sign any document necessary to issue X (born in 2014); and Y (born in 2016) (“the children”) with an Australian travel document, such refusal will constitute sufficient special circumstances for a party to seek that the Minister administering the Australian Passports Act 2005 give consideration to issuing an Australian travel document pursuant to section 11(2)(a) of the Australian Passports Act 2005.
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