Gwendal & Maela
[2024] FedCFamC1F 422
•6 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gwendal & Maela [2024] FedCFamC1F 422
File number(s): TVC 379 of 2021 Judgment of: BAUMANN J Date of judgment: 6 June 2024 Catchwords: FAMILY LAW – PARENTING –Where the parties presented to the Court, on day two of the final hearing, proposed final consent orders – Final consent orders for the children to live in a week about arrangement made in the best interests of the children Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Vallans & Vallans (2019) 60 Fam LR 193 Division: Division 1 First Instance Number of paragraphs: 35 Date of hearing: 5 & 6 June 2024 Place: Townsville Counsel for the Applicant: Ms C Dart Solicitor for the Applicant: Ruhl Family Law Centre Counsel for the Respondent: Mr R Galloway Solicitor for the Respondent: Crosby Brosnan & Creen Counsel for the Independent Children's Lawyer: Mr A North Solicitor for the Independent Children's Lawyer: TLG Law ORDERS
TVC 379 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GWENDAL
Applicant
AND: MS MAELA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
6 JUNE 2024
THE COURT ORDERS BY CONSENT ON A FINAL BASIS:
1.That all previous orders are discharged.
Decision making
2.That the parents exercise joint decision making in relation to the major long-term issues relating to the care, welfare and development of the children, X born 2017 and Y born 2021 (collectively “the children”) including but not limited to:
(a)the children’s education (both current and future);
(b)the children’s religious and cultural upbringing;
(c)the children’s health;
(d)the children’s names;
(e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with either parent.
3.That except in the event of an emergency, the parents are to consult with each other about decisions to be made in the exercise of their joint decision making on the following basis:
(a)The parent proposing to make a decision (“originating parent”) will give the other parent details of the decision that needs to be made, what decision they propose to make and the reasons why they propose the decision be made in a particular way;
(b)The other parent will respond to the originating parent, if they wish to suggest any variation or alternative proposal within seven (7) days of receiving notice;
(c)The originating parent will consider any feedback given by the other parent by reference to the best interests of the child/ren;
(d)If the parents are not able to come to a joint decision, they shall participate in family dispute resolution as soon as practicable thereafter, with the originating parent to initiate such process within seven (7) days by nominating a panel of three (3) possible Family Dispute Resolution Practitioners (“FDRP”). If the other parent fails to choose an FDRP within seven (7) days, the originating parent may choose one (1). The costs are to be shared equally between the parents.
4.That notwithstanding Orders 2 and 3 hereof, the mother and father be responsible for the day-to-day care, welfare and development of the children whilst the children are in their respective care.
Living arrangements
5.That commencing 10 June 2024, the children live with each parent on an equal shared week about basis, with changeover to occur each Monday at the commencement of school (or 9.00am if a non-school/daycare day). Such care arrangements are to continue throughout every school holiday period until Y commences preparatory school and thereafter for all but the Christmas school holiday period each year.
6.That when the child Y commences preparatory school, then the children shall spend time with the parents during the Christmas School holidays as follows:
(a)With the father for the first half in even numbered years and with the mother in odd numbered years; and
(b)With the father in the second half in odd numbered years and with the mother in even numbered years.
7.That for the purpose of these Orders, the school holiday time shall commence:
(a)when a parent’s time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays;
(b)when a parent’s time falls in the second half of the holidays from 5.00pm on the day calculated to represent half of the holidays when contact shall end at 9.00am on the day the school term recommences; and
(c)school holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9.00am on the day the children return to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the father shall retain the additional night.
8.That in the event either parent is not able to care for the children for a period of more than two (2) nights, they shall offer the other parent, the opportunity to care for the child/ren. The other parent shall notify the parent as to whether they would like to care for the child/ren within forty-eight (48) hours of request.
Changeover
9.That unless otherwise agreed between the parents in writing, changeovers shall occur:
(a)at the children’s school/daycare on school/daycare days; and
(b)at all other times, at McDonalds Suburb B.
10.That changeovers may be facilitated by a nominee of the parent, provided they are known to the child/ren.
Special occasions
11.That notwithstanding what is otherwise stated in these Orders, the children spend time with the parents on special occasions as follows and the following apply no matter what is stated in the abovementioned paragraphs:
(a)For Christmas as follows:
(i)In 2024 and each even year thereafter the father is to have the children in his care from 5.00pm 23 December until 5.00pm 26 December; and
(ii)In 2025 and each odd year thereafter the mother is to have the children in her care from 5.00pm 23 December until 5.00pm 26 December.
(b)At Easter as follows:
(i)In even numbered years, with the father from 9.00am on Good Friday until 4.00pm on Easter Monday; and
(ii)In odd numbered years, with the mother from 9.00am on Good Friday until 4.00pm on Easter Monday.
(c)On the child X’s birthday, both children will spend time with the parent that they are not with that day from 12.00pm until 7.30pm;
(d)On the child Y’s birthday both children will spend time with the parent that they are not with that day from after day care or school until 6.00pm if a day care or school day, or from 12.00pm until 7.30pm if not a day care or school day;
(e)On Mother’s Day, the children are to be with the mother from 9.00am until 5.00pm;
(f)On Father’s Day, the children are to be with the father from 9.00am until 5.00pm;
(g)On the father’s birthday with the father from after day care or school until 6.00pm if a day care or school day, or from 12.00pm until 7.30pm if not a day care or school day; and
(h)On the mother’s birthday with the mother from after day care or school until 6.00pm if a day care or school day, or from 12.00pm until 7.30pm if not a day care or school day.
Communication
12.That the parent with whom the children are not living shall be permitted to have telephone communication with the children each Wednesday and Friday between 5.00pm and 5.30pm.
13.That both parents are to make the children available and provide a quiet environment for the purpose of telephone communication.
14.That the children be at liberty to have telephone communication with the parent they are not living with at all reasonable times that they express a wish to do so and the parent they are with shall facilitate this.
Exchange of information
15.That the parents shall:
(a)for the purposes of communicating and sharing information regarding the children the parents will use “Our Family Wizard” and shall:
(i)register with that service within seven (7) days of the date of these orders; and
(ii)ensure that a subscription is maintained at all times; and
(iii)bear their own costs.
(b)keep the other parent informed at all times of their residential address, email address or telephone number (including mobile telephone), including any changes; and
(c)keep the other parent informed of and supply the other parent with, the dates and times of the children’s school, daycare, sporting and extracurricular activities.
16.That in the event any of the children are injured or there is any medical or health matter concerning any of the children, the parent having the care of the children at that time must notify the other parent with respect to such matter as follows:
(a)Should the injury, medical or health matter include any of the children being taken to any hospital or receiving care from a Paramedic/Ambulance the parent who has the care of the children is to notify the other parent immediately; or
(b)Should the injury, medical or health matter not involve any of the children being taken to any hospital however, receiving medical assistance from a Medical Practitioner then the parent who has the care of the children is to notify the other parent within seventy two (72) hours of becoming aware of the matter.
Authorities
17.That these Orders operate as authority for all care providers (including but not limited to doctors, health professionals, counsellors) to provide any information concerning the children to both the father and the mother. Any costs incurred in obtaining any documentation from any care provider will be the responsibility of the parent making the request.
18.That this Order is authority for the children’s school or day care to provide both parents with copies of all school reports, any other reports on the children’s progress and behaviour issues, school newsletters, and parent letters. Each of the parents are to authorise the children’s school or day care to provide copies of such documents as required from time to time.
19.That the parents have leave to provide a copy of these Orders to any care provider for the children.
Obligations of the parents
20.That neither parent shall relocate the permanent residence of the children outside of the City C region (being more than sixty (60) kilometers from the City C Central Business District) without first obtaining the consent of the other parent.
21.That each parent be restrained from:
(a)denigrating the other parent and their family in the presence or hearing of the children. If any other person denigrates the other parent or their family in the presence or hearing of the children, the parents are to remove the children from that person’s presence;
(b)questioning the children about the personal life of the other parent;
(c)discussing these legal proceedings or other adult issues at changeover, or in the presence or hearing of the children;
(d)physically discipling the children;
(e)exposing the children to domestic or family violence; and
(f)denigrating the other parent and their family to third parties including service providers.
Children’s health
22.That the parents do all acts and things to arrange for the children to be immunised for Meningococcal, Polio, Measles, Mumps, Rubella, Diphtheria, Tetanus, Pertussis, Varicella and Papaloma Virus:
(a)at the times recommended by the children’s general medical practitioner for the purposes of the catch-up schedule;
(b)at future times as recommended by the Australian Government Department of Health and Aged Care ; and
(c)with the recommended number of doses to be given to each child.
23.That except in the event of an emergency, the parents agree to have the children treated by Dr D of E Medical Practice at City C or another general medical practitioner of that practice, unless otherwise agreed between the parents in writing.
24.That the parents appoint Dr F, at G Clinic to be engaged so as to test the children as to whether they have any allergies. The father is to make an appointment with Dr F in consultation with the mother so that both parents can attend the appointment and the parents are to request that Dr F undertake testing of the children to see if the children have any allergies. This Order is authority for both parents to be provided with the results of the test.
25.That in the event Dr F is unwilling or unable to test the children pursuant to Order 24 hereof, the parents agree to engage the following specialists in the following order:
(a)Dr H at J Medical Centre;
(b)Dr K at L Health Clinic; or
(c)Dr M at N Centre; or
(d)Such other specialist as can be agreed between the parents if none of those are willing or able to assist.
26.That in the event the results of the allergy testing indicate that the children do not have an allergy or intolerance, then the parents will be restrained from:
(a)telling the children that they have an allergy or intolerance;
(b)informing third parties that they children have an allergy or intolerance.
27.That the parents will do all acts and things necessary to comply and follow all recommendations made by care providers for the children including but not limited to the giving of medications, therapies and all that may be required for the children, and both parents agree to adhere to and provide to the children the medications, therapies and all that may be required. The parents will sign all such documents that are required for compliance with this paragraph.
28.That the parents will do all acts and things necessary to request that X’s Psychologist, Ms O of P Psychology explain to X that he is not responsible for his parents’ separation.
29.That the parents shall:
(a)keep the other parent informed of the names and addresses of any treating medial practitioner and/or healthcare practitioners who treat the children; and
(b)in making appointments for the children, the parent making the appointment is to where practicable provide the other parent with written notice of the appointment and the opportunity to also attend. Where the other parent is unable to attend, the parent is to advise the other parent of any attendances on such practitioners and any advice given to the parent.
Children’s education
30.That the parents do all acts and things to arrange for both parents to be listed as emergency contacts with the children’s school and day care.
31.That the parents shall be at liberty to nominate up to two (2) people to be able to collect the children from school/daycare on their behalf and the consent of the other parent is not required.
32.That unless otherwise agreed between the parents in writing, they shall do all acts and things to:
(a)continue X’s attendance at Q School;
(b)continue Y’s attendance at R School, Suburb S for daycare/kindergarten; and
(c)enrol Y at Q School for his primary school education and facilitate his attendance at that school for primary school.
Travel within Australia
33.That if either parent intends to take the children out of City C but within Australia for a period in excess of four (4) consecutive nights or more, they are to provide the other parent with at least fourteen (14) days’ notice of their intention to travel and thereafter provide the other parent with the following information prior to their departure:
(a)Where the child/ren will be travelling to;
(b)Contact details for the locations the children will be staying but only if the parents mobile telephone number will not be available; and
(c)If the children are flying, then flight details and copies of the flight itineraries of the child/ren are to be provided.
Passports and overseas travel
34.That the parents will do all acts and things necessary to arrange the cancelation of the Australian passports and any other passports for the children.
35.That the parents are restrained by injunction from making an application for any passport from any country including but not limited to Country CC, Australia and any other country that a parent may be entitled to apply for a passport for the children.
36.That each parent, MS MAELA born 1988 and MR GWENDAL born 1987, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of the children, X born 2017 and Y born 2021 from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this Order by placing the children’s names on the Family Law Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until the Court orders their removal.
Parenting Coordinator
37.That subject to the availability of the service, waitlists and the family being assessed as suitable for the provision of its services, the parents agree to appoint Ms T of U Lawyers (“the Parenting Coordinator”), and for this purpose each party shall:
(a)telephone U Lawyers within seven (7) days to arrange an appointment for an intake interview;
(b)promptly supply all requested information, records, and a copy of this Order to the Parenting Coordinator;
(c)attend appointments as required by the Parenting Coordinator;
(d)comply with the guidelines of the Parenting Coordinator’s Process and abide by the Parenting Coordinators Agreement;
(e)comply with all reasonable requests and directives of the Parenting Coordinator; and
(f)unless later agreed between the parents, the parents shall equally meet the fees of Parenting Coordination for joint sessions and each meet their own costs for individual sessions and pay all accounts rendered by U Lawyers for parenting coordination services in a timely manner; and
(g)the parents are at liberty to provide to the Parenting Coordinator copies of any documents filed in these proceedings, any Court Orders, and any relevant expert reports that the Parenting Coordinator reasonably requests, and only such documents as they request.
38.That the parents may request a report outlining the Parenting Coordinator’s recommendations and any additional relevant information from time to time.
39.That the parents authorise and consent to the Parenting Coordinator consulting and/or meeting with, or obtaining relevant information from, any relevant third parents, including the children, their school(s), and any health care professionals for the children or the parents, and will sign authorities to that effect if requested by the Parenting Coordinator.
40.That the parents acknowledge that the parenting coordination process is non-confidential, including as between the parents, and is intended to assist the parents in the implementation of the parenting Orders in the following manner:
(a)Developing and instituting guidelines for the implementation of the parenting Orders or parenting plans already in force;
(b)Developing and instituting guidelines for communications between the parents;
(c)Identifying, creating and implementing strategies for resolving conflicts between the parents;
(d)Providing information as to resources which may be available to the parents to assist with the improvement of their communication and/or parenting skills;
(e)By issuing recommendations on minor matters and/or proposed protocols that the Parenting Coordinator believes would be in the best interests of the children in the implementation of the parenting Order or parenting plan and, in the event the Parenting Coordinator issues such recommendations or proposed protocols, they shall provide the parents with written reasons for that recommendation or proposed protocol.
41.That if the Parenting Coordinator at any time declines or is unable to continue to provide services to the parents, then the parents will do all acts and things necessary to appoint Ms V or Ms W as the Parenting Coordinator.
Costs
42.That each parent bear their own costs of and incidental to these proceedings.
THE COURT ORDERS ON A FINAL BASIS:
43.That pursuant to s 114Q of the Family Law Act 1975 (Cth), the parents be at liberty to provide a copy of these Orders to:
(a)the children’s school/day care and medical providers; and
(b)Centrelink.
44.That the Registry Manager is requested to return the children’s passports to the Department of Home Affairs upon confirmation of their cancellation by the father.
45.That the Independent Children’s Lawyer be discharged.
IT IS NOTED:
A.That the father, his mother, Ms Z and his sister, Ms AA do not pose a risk of harm to the children.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gwendal & Maela has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral Reasons delivered)BAUMANN J:
Australia is a country which has been enriched by people who have chosen Australia to be their home. Children of migrants had no such choice. They were brought here by their parents. In this case, the mother came to Australia, as I understand it, as a qualified professional, obviously wanting to see one of the great wonders of the world, no doubt, the Great Barrier Reef and other parts of Australia. She met the father.
I have not had the benefit of seeing both parents in the witness box, but there are some differences in these parents and, whilst people are attracted to the notion of differences, sometimes they are not. Nonetheless, they believed they were entering into a long-term relationship when they conceived and married in 2016 and then enjoyed the birth of their son, X in 2017 and then Y in 2021. Obviously, the relationship had difficulties. Whether they were cultural, or whether they were a by-product of different educational standards, I do not really need to decide.
What is clear, however, is that as the relationship broke down by around about March 2021, the father had become concerned that the person he chose to be the mother of his children, a person from Country CC, may well leave Australia and with her take the child, X. These proceedings were commenced by the father, at around the time of separation, by filing an Initiating Application in March 2021, the effect of which was to restrain the mother from removing the children from Australia.
It seems to me from the history that, at least initially, there was a recognition of the importance of the children having a real opportunity to connect with their Country CC heritage, an important and valuable heritage, no less important and no more valuable than what the father and his extended family offer to these children in Australia. That can be reflected in the Orders made by Judge Bowrey who, on 29 July 2022, was offered and made the first form of consent orders that these parties said were in the best interests of the children.
Those consent orders provided that the children would live with the mother in City C and the father would have extensive unsupervised time. More importantly, for the purposes of how we have gotten here today, those Orders provided for an overseas holiday for the mother and the children, initially commencing mid-2022 for about six weeks, with the Order providing, by consent, for further holidays in 2022, 2023, 2024, 2025 and even up to 2026. I can only infer that it is that the mother did not return from Country CC when she lawfully removed the children and went there in mid-2022, that so affected the level of trust and respect between these parents, that it has fuelled this litigation now for nearly two years.
In between that time, the mother in one paragraph of her affidavit, which I read, identified the reasons why she was not able to return. That was never tested. The father, of course, in his affidavit, a much longer affidavit, but very particularly dealing with all the events and all the ways the father used authorities in Australia to try and get the mother to return with the children – a real difficulty in terms of jurisdictional limits. Nonetheless, the mother on more than one occasion indicated she would return and did not.
Again, a further erosion in the trust and respect between these parents, whose relationship had been perhaps quickly formed and not totally cemented, either with or as a complete result of orders made by a District Court in Country CC for the return, particularly of the children, occurred before the return of the children to Australia. That must have been a very difficult thing for the mother, although I must say I was surprised, and no explanation in her material was offered that I could see, as to why, when the father and his mother returned to Australia with young X and even younger Y in mid-2023, it was two months later before the mother returned to Australia.
In my view, whilst I accept that the mother raised concerns about the father, it was totally inconsistent, in my view, with those concerns being expressed that she could remain in Country CC for two months allowing children who had not seen their father for 10 months really, to be in his sole care. That was an issue that, no doubt, I would have had to turn my mind to on the evidence. Be that as it may, the mother has now been in Australia since mid‑2023, the children since two months earlier. That is not that long ago. Things are still very raw in this litigation. The lack of trust is palpable. The lack of mutual respect, at least, is at a low level.
The parties went through a family report interview where experienced social worker, Ms DD, having interviewed the parties in about November 2023, delivered a report on 5 January 2024. Whilst it says many things, it was clear from the report that the report writer did not support the mother relocating the children to Australia unless the Court made orders that were based upon the mother’s case about the history of the relationship.
I can say that my concerns about relocation were that the father's relationship with the children would be interrupted. Their relationship has now developed some significant momentum as a result of him returning with the children from Country CC, and then as a result of Orders made on an interim basis by Judge Bowrey on 16 September 2023 that the children live with him for nine nights a fortnight. It is not possible to know, and we may never know, whether there has been damage to the relationship of these children with each of their parents as a result of the periods of no time with the other parent in the circumstances that occurred.
I agree with the submission made by Ms Dart of Counsel for the father that whilst these children seem happily to not be children with extensive additional needs, they have had quite a disrupted last two years of their life when the mother left for the holiday, and the father expecting her return in mid-2022.
Within that context, I am being asked to consider making final orders which the parent have agreed to. They have done so, as Mr Galloway of Counsel for the mother says, after a significant amount of discussion. No doubt, the Independent Children’s Lawyer, Mr North of Counsel as her representative and advocate today, with Ms Geysen being in Brisbane, have played their part in those negotiations.
I was presented with an order that does not carry the signature of the Independent Children’s Lawyer. The transcript will identify that, whilst the position of the Independent Children’s Lawyer was neither to oppose nor consent to the order, I did not find that position acceptable. As all good advocates must do when confronted by a Judge who was not happy with an answer, Mr North gave me the answer.
The answer was that the Independent Children’s Lawyer in her independent role had concerns about the week-about arrangement the parents had agreed to; did not have concerns about the children being restrained from moving or just having a holiday in Country CC; did agree with the children not relocating, but as a result of poor parental communication and other issues, had some concerns about whether the parents were able to, in a future practical way, make effective joint decisions. I understand the concerns of the Independent Children’s Lawyer and take them in to consideration. They are not, however, for the reasons I will now explain, sufficient to persuade me not to make these orders.
Let me deal with the three or four major issues in this way, and I do so because, as I have indicated to Mr Galloway in open court today, I have been around long enough to know that the whole pressure of litigation and coming to trial can create a tension that parents particularly feel a need to compromise with a degree of reservation, such that the true effect of the orders sometimes breaks down quite quickly. Everyone at the bar table being all experienced lawyers, both solicitors and barristers, will be involved in cases where final orders were made and that in a short period of time the parties seem to be back having more fights. The job of a Court exercising this jurisdiction is not to make consent orders, other than those which the Court can be satisfied are likely to be sustainable because, if they are not sustainable, then they are orders which will inevitably involve the parents and, therefore, their children, X, who is now seven years age, and Y, who is only approaching his third birthday, being the subject of more conflict between the parents.
The Court cannot, with a view to finalising matters, ever be comfortable in making orders which they do not believe are sustainable. However, for these reasons, I am prepared to accept, more likely than not, that these orders will be sustainable, but there are issues which need to be worked on. They are these:
(a)I take on board that the parents have agreed. They are the ones who day in, day out, must perform the parental duties that are necessary to nurture and support their children reaching their potential. The mother is, on all accounts from her background, intelligent and articulate. She has been in my court unrepresented. I can attest to her capacity to articulate. She brings to the parenting arrangement significant skills, insight and love;
(b)The father is not, on the evidence, as educated in a formal way as the mother, however he is a hard worker from a local family who have done well, who support him, and he also loves and cares for these children deeply. They are different parents, each of whom have things they can offer. By reaching this agreement today, they are saying to the Court, and in particular to their children through the Court, that they will use their best endeavours to make these orders work. I am prepared to accept that is their intention;
(c)It is not either unusual or unnatural for a person born in another country to not only wish to share with their children the delights of their heritage and their upbringing, the cultures of their country of origin in the same way that we so proudly do with our children in Australia. When parents decide to have children with someone they know is from another country, they can only expect, and should expect, that tension will arise somewhere in the life of that relationship about at least travel overseas. Why should these children be robbed of the Country CC heritage that they have? Of course, they should not. But I am comfortable in knowing that the mother, both in terms of her encouragement of the spoken Country CC language in her home; by no doubt observing Country CC traditions which are important to her because they are what she did as a child, and by what seems to be a very close relationship with her mother and extended maternal family, noting that her own mother has visited Australia regularly, will do the best she can in Australia to keep reminding the children of the importance of their Country CC heritage;
(d)I am not satisfied from the limited cross-examination of the father that I did see, that he seeks to diminish that ancestry. The bottom line is these children have a Country CC mother and Australian father and that will not change. It is within that context that the mother’s decision, reflected in this order to remain in Australia, I think needs to be recognised, and she needs to have credit for that. I give it to her. I give it to her because, unless you are from another country it is difficult, I think, to understand the pull of your country of origin as a human emotion;
(e)However, the clearest example of her capacity to put the interests of the children first are, in my view, her decision that the children will, at this stage and for the foreseeable future, be brought up in Australia. The father has had a significant, and no doubt emotional and difficult, adjustment to make. My view from the evidence, including the family report, is that perhaps he was not always as sympathetic to the challenges of his wife bringing up children in a new country, perhaps isolated from her own family, and in a regional area, as beautiful as City C is, which does not always provide the same sorts of cultural connection that the mother might have wanted with her Country CC heritage. He often worked away. He had family here, who in the evidence I have seen, was supportive of him and the grandchildren. He had recognised the importance of the children connecting with their Country CC heritage by consenting to the Orders in July 2022 that provided for overseas holidays.
As already indicated, the events that went on for some 10 months, from at least approximately mid-2022 until the children returned to Australia, were no doubt difficult for both parents, but particularly, in my view, difficult for the father and his family, who must have felt terribly frustrated; unable to move forward; not knowing what to do; trying to maintain a relationship electronically with the children that he felt was being interrupted, and having a real fear, no doubt, that he would never be able to undertake the role as a hands-on parent that he so desperately wanted, and which the parents had agreed they would both do when they presented the orders to Judge Bowrey in July 2022.
The Independent Children’s Lawyer raises concerns about week-about. To some degree, the report writer, whilst having a recommendation as an option for equal time, was not seen to support particularly in her affidavit a week-about time. Courts are concerned when young children who best develop from having a solid primary base are expected, notwithstanding the quality of their parents, from moving from one home to another.
However, I think the answer to why I am prepared to accept week-about for children of this age, particularly Y, is that with both parents now being and remaining in the City C area and being active in the children's life – and I am thinking that will also, of course, be their extracurricular life as they get older – the disruptions which the children had through the months in Country CC without the father, and in the period of months in Australia without the mother, and then until the orders were made by a Judge, that must have been very difficult for these children.
I hope that the parents have learned something from their contribution to that difficulty. However, the reason I am prepared to make, notwithstanding concerns of the Independent Children’s Lawyer, an order for week-about now is that I think these children will cope over time more easily with week-about. I think it is preferable and in their best interests and with the parents’ support, as is reflected in the order to have week-about now rather than to try and see some sort of graduation, which is only going to likely prolong the parties getting on with the job of parenting.
Communication is a difficulty in this case. As I have made clear, the communication between these parents can only improve if a level of respect and understanding return to their relationship. Clearly, when parents have separated and have made the choice they do not wish to maintain their intimate close relationship, communication is often tested. However, they should not find it difficult, and from their backgrounds, in my view, have the capacity to communicate respectfully. They are their children’s greatest role models.
They are young children. The father has a role, as every father in Australia has, to demonstrate by his behaviour and by his actions and by his words how much it is important for his sons to respect women, to treat them properly, to respect their mother and to respect their Country CC heritage. He needs to do that because, clearly, they will look to him as a role model, and part of the problem with the domestic violence problem we have in this country is often attributed to the role model that certain parties played in the life of their developing children.
But the mother also is an important role model for these children. She is a strong, independent, intelligent, and resourceful lady. She values education no more, but certainly significantly, as does the father. She shows the benefit of an education. She would not have got there without a strong work ethic, which the father also has demonstrated. But she must now embrace the qualities that the father brings to these children and the extended paternal family bring to these children, not in a competitive way, not in a quest to find superiority, but in a celebration of the various ways in which the parties enrich the life of their children.
Whilst there is a restraint in the orders about moving the children’s residence from the greater City C area, it is in my view inevitable that at some point in time these parents will need to again confront the reality of these children’s ethnicity and heritage, a connection with their Country CC roots. I have contemplated and taken submissions as to whether I should limit the airport watch order, as is the practice encouraged of the judiciary in Australia.
Because of the recent history, remembering how recently it was that the mother returned, and the reasons why that has caused the father the lack of trust, it is impossible, I think, on the evidence, to make a decision about when might be a time for these children to travel, but I am just observing that, in my view, this issue is inevitably going to arise. If the father has any comfort, the Hague Convention did operate ultimately in this case, but nonetheless, for children of this age, the next few years should be dedicated to, in X’s case, furthering his education, his interest in other issues, sport, music, and the like. Y will also need to be prepared for beginning school, which might be in 2025 or probably more likely 2026, so he can join his brother maybe at the Q School, or some other institution, and get the benefits of what I still regard as an excellent public education system, which has much to be celebrated. As to whether these parties ultimately choose another form of education, is a matter for another day.
But the father is on notice that, as a result of his decision to have children with a Country CC national, the offspring of that relationship have a right at some point in time to have travel to Country CC considered, but not now. I am not prepared to even give an indication of when because I think that really is a decision the parents need to make, and they can because notwithstanding the Airport Watchlist order, which prevents in a practical way people leaving the country, the Family Law Act 1975 (Cth) (“the Act”) requires, under section 65Y, for parents to agree for children to leave the country, and the Airport Watchlist just prevents it. These parents can always agree at some future point in time.
Finally, I think the parties should have the opportunity to demonstrate they can make joint decisions on major long-term issues. Major long-term issues as currently prescribed by the Act are set out in order 2 that they have agreed to. Major long-term decisions are not whether they play soccer or rugby. Major long-term decisions are not about what toothpaste they use, and they may not even be about their diet, except that is an issue that needs to have a context within a health diagnosis, which the parents have agreed to undertake.
As the reporter writer in her report identified, and with which I agree, we have two parents who have come from different backgrounds and are different and, therefore, parent slightly differently. Why should one parent be seen to have (just because communication is difficult) the right to be the person who makes all the major decisions? Even though the presumption for equal shared responsibility no longer applies in this country, nonetheless, the importance of people, particularly those who are having equal time arrangements, having an opportunity to reach a decision about major long-term decisions is just common sense.
In Vallans & Vallans (2019) 60 Fam LR 193, Justice Kent (as he then was) identified that one of the other issues that Courts need to consider when dealing with the issue of making joint decisions is the sense of disempowerment and exclusion that can occur when one party has the power under orders to make major long-term decisions, even with consultation with the other parent. It may be in the history of this matter that along the pathway of these children’s development, the parties do not take accord of what I am saying and the lessons of the past, become so totally enmeshed in their own view of superiority that a Court might need to start looking at parental decision-making differently. But, in my view, they both want to be involved and should both be involved. The test will be whether they can do so effectively. In that regard, I do acknowledge that the parties are agreeing to use a parenting coordinator, although she is in another area of Queensland, and that is a reflection, it seems to me, of a growing tendency, which I support and which the parents support, of trying to find ways in which they can manage a dispute without regarding Court as the first option.
When you look at what these parties have paid in legal expenses, which I have seen on the filed costs notices which I will not repeat (but they are substantial costs) and they are substantial because these are not rich people. They have probably had the support of family or in some way other persons. They are better to use their money to provide things to their children than being involved in more disputes.
I am not going to say more about the legislative pathway other than, of course, it is different than it was when this litigation began, but it always has the same destination – what orders are in the best interests of children?
Neither of these children are Aboriginal and so those aspects of s 60CC do not apply. I am now, of course, conscious of the fact that I am being asked to make a consent order. Section 60CC(4) says that I do not need to apply all the provisions of s 60CC in a consent order, although I have turned my mind to all of them. I have decided to deliver reasons because I am anxious to try and prevent these parents from too easily being able to enliven the Court’s decision. Rice & Asplund (1979) FLC 90-725 is now codified in s 65DAAA, which would require a substantial and material change of circumstances to occur from today.
The purpose of doing reasons, in my view, like I have today, is so that anybody asked to consider a new application down the track has some context for why I made the orders and the concerns I had, which I have on balance been persuaded should not prevent me from making the orders in the best interests of these children. That may become relevant on another day. I do not know.
I thank the parties and the Independent Children’s Lawyer, of course, for their assistance in this case. These are two precious little boys who have much to look forward to. They do live in a great country. They live in a great area of our great country. They are not in any sense under-loved, and the parents are able, I think, if they work together, to help their boys achieve their potential, which is what every parent wishes.
I make the orders which have been offered and I also discharge the Independent Children’s Lawyer.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 27 June 2024
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