Irvine & Irvine
[2021] FamCA 541
•5 August 2021
FAMILY COURT OF AUSTRALIA
Irvine & Irvine [2021] FamCA 541
File number(s): TVC 1322 of 2017 Judgment of: BAUMANN J Date of judgment: 5 August 2021 Catchwords: FAMILY LAW – PARENTING – Where the principles of Rice & Asplund are considered – Where COVID-19 international travel restrictions have prevented travel for the child with the mother as contemplated by final Orders made in 2019 – further orders made in relation to international travel.
FAMILY LAW – SPOUSE MAINTENANCE – Where the mother seeks further spouse maintenance after the expiration of a previous spouse maintenance Order – Application dismissed
Legislation: Family Law Act 1975 (Cth), 60B, 60CC Cases cited: Beckham & Quarrington (2019) FLC 93-913
Gadzen & Simkin (2018) FLC 93-871
Garrety & Steyn (No. 2) [2021] FamCA 277
Irvine & Irvine [2019] FamCA 627
Irvine & Irvine(No. 2) [2019] FamCA 855
Langmeil & Grange [2013] FamCAFC 31
Marsden v Winch (2009) 42 Fam LR 1
Miller & Harrington (2008) FLC 93-383
Poisat & Poisat (2014) FLC 93-597
Rice & Asplund (1979) FLC 90-725
Searson & Searson (2017) FLC 93-788
SPS & PLS (2008) FLC 93-363
Walden & Cooper [2020] FamCA 104
Number of paragraphs: 62 Date of hearing: 16 July 2021 Place: Townsville Counsel for the Applicant: Mr A Raeburn Solicitor for the Applicant: BJM Lawyers Counsel for the Respondent: Self-represented ORDERS
TVC 1322 of 2017 BETWEEN: MR IRVINE
Applicant
AND: MS IRVINE
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
5 AUGUST 2021
THE COURT ORDERS:
1.That the Reasons for Judgment delivered 5 August 2021 be published to the parties electronically, without the need for an appearance before the Court.
2.That by consent, as an alternative to the child, X born … 2016 (“the child”) spending seven (7) weeks each alternate year in Germany for a holiday (in accordance with Order 6 of the Orders dated 6 September 2019), and at the mother’s election, the child shall spend time with the mother in Germany for up to four (4) weeks during the Australian mid-term school holidays.
3.That for the purposes of Order 2 hereof, in the event the mother elects for the child to spend up to four (4) weeks during the Australian mid-term school holidays in Germany instead of the seven (7) weeks each alternate year for that year:
(a)the mother shall provide the father with sixty (60) days’ written notice of the dates upon which she intends to travel (“mid-year the German holiday”) which must include the whole period of the child’s end of term two (2) school holidays for the school the child attends at the time;
(b)the mother shall provide the father with a copy of the child’s travel itinerary and paid return ticket not less than thirty (30) days before departure;
(c)the mother shall meet the costs of the child’s travel;
(d)the mother shall provide the father with the child’s contact details for the duration of the travel;
(e)the mother shall ensure the child has FaceTime/Messenger/Skype or similar communication with the father at least twice each week, and in the absence of agreement on Tuesday and Friday; and
(f)all overseas travel shall comply with any international Covid-19 restrictions and requirements for travelling Australian citizens in place at the time of departure.
4.That the child shall spend time with the parents on special occasions as follows:
(a)With the father for Father’s Day (if the child is not already in the father’s care) from 6.00pm Saturday (the day before Father’s Day) to 6.00pm Sunday (Father’s Day); and
(b)With the mother on Mother’s Day (if the child is not already in the mother’s care) from 6.00pm Saturday (the day before Mother’s Day) to 6.00pm Sunday (Mother’s Day);
(c)If the child is not overseas for her birthday, with the parent she is not already in the care of, on her birthday from 1.00pm to 5.00pm.
5.That for the purposes of the end of term four (4) school holidays (Christmas school holidays):
(a)for the end of 2021 school term holidays, the child shall spend time with the father from 9.00am on 27 December 2021 to 4.00pm on 16 January 2022;
(b)from the 2022 end of school term holidays, if the child is in Australia, but would have ordinarily been with the mother overseas in that alternate year pursuant to Order 6(f) of the Orders dated 6 September 2019, the child shall spend time with the father from 9.00am on 27 December to 4.00pm on 16 January;
(c)in the alternate year when the child would ordinarily be in Australia, the child shall spend time with the father from 4.00pm on 23 December to 4.00pm on 12 January; and
(d)otherwise, when not in the care of the father, the child will be in the care of the mother.
6.That changeovers that do not occur at school shall take place at McDonalds, Suburb K (also known as McDonalds Location L).
7.That if either parent wishes to enrol the child in any extra-curricular activity which would require the other parent to facilitate the child’s attendance at that extra-curricular activity whilst the child is in their care (be that during school terms, weekends or holidays), before the child is enrolled in such extra-curricular activity, the parents are to agree to the child participating in such extra-curricular activity, and then shall use their best endeavours to ensure the child attends the activity as required.
Airport Watch List
8.That unless in accordance with the Orders dated 6 September 2019 or these Orders, or else subject to the written consent of both parents, each parent, MR IRVINE born … 1980 and MS IRVINE born … 1987, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the child from the Commonwealth of Australia.
9.That the Deputy Marshal of all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the child’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watch List until the child attains the age of 15 years (on 4 July 2031), or authenticated written consent of both parents.
10.That the mother’s application to vary Orders 6 and 8 of the Orders dated 6 September 2019, such that the father contribute to the costs of the child’s overseas travel, be dismissed.
11.That the mother’s application that the child’s time with the father not increase past five nights per fortnight in accordance with the Orders dated 6 September 2019, be dismissed.
12.That the mother’s application for spouse maintenance be dismissed.
13.That all outstanding Applications and Responses be otherwise dismissed.
14.That upon Covid-19 international travel restrictions being lifted in Australia, in the event the parents are unable to agree as to further arrangements for the child to travel to and from Germany with the mother, the mother have leave and is at liberty to file an Initiating Application in relation to further orders for international travel for the child.
15.That should either parent file a new Application within three (3) years from the date of these Orders, such Application be listed, if possible, before the Honourable Justice Baumann for final determination.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Irvine & Irvine has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
The parents of X born in 2016 (and now aged five years) (“the child”) have been consumed by litigation in this jurisdiction for much of the child’s life. Importantly, Tree J conducted a trial in the Family Court of Australia in May 2019 resulting in a Judgment and Orders on 6 September 2019 (see Irvine & Irvine [2019] FamCA 627). Those Reasons resolved finally the mother’s application (withdrawn at/or prior to the hearing commencing) to relocate to her native Germany; made parenting orders in relation to the sharing of care for X leading up to a week-about order commencing in 2023 and also dealt with issues at the time of property division and spouse maintenance.
To give context to these Reasons, Appendix One are the Orders made by Tree J on 6 September 2019. A further dispute, particularly in relation to passports, enlivened the attention of Tree J and on 6 November 2019 – after the hearing had been completed – his Honour heard further evidence and delivered Reasons (see Irvine & Irvine (No. 2) [2019] FamCA 855) on 20 November 2019 that effectively inserted a further provision relating to passports/international travel, the effect of which is that the child’s passports, that were then, at that stage, held at the Townsville registry of the Family Court of Australia would be released to the mother forthwith and the mother thereafter hold the passports subject to terms of those Orders.
However, since that decision was made, there have been further applications to vary the Orders of Tree J, and those matters are the matters which occupied the Court’s judicial time in Townsville on 16 July 2021. The father, who is the Applicant in this application, was represented by Counsel, Mr Raeburn. The mother was unrepresented. I reserved my decision at the end of the hearing after hearing submissions and these are the Reasons that flow from that hearing.
ISSUES TO BE DETERMINED
In an effort to try and bring some order to the otherwise ongoing litigation, on 5 March 2021, during a case management hearing, an Order was made which identified the issues arising from the amended Initiating Application of the father filed 18 February 2021 and the amended Response filed by the mother on 23 February 2021. Appendix Two to these Reasons is a copy of the Order made 5 March 2021 which set out the various issues identified. That Order included a notation that the parties were encouraged to undertake community based mediation with an effort to resolving the matters which the Court has the power to determine so as to narrow the issues in dispute.
Although some movement on the issues was obvious on the evidence, essentially the parties have been unable to resolve the matters.
Statements of fact hereafter should be construed as findings of fact.
BACKGROUND
It is clear that since the decision of Tree J delivered in September 2019, the mother has felt often overwhelmed and despondent. Although the mother was able to exercise some time overseas in Germany for an extended period around Christmas 2019 in accordance with the said Orders J, the onset of the global pandemic in Australia from February/March 2020 have made the other Orders of Tree J relating to overseas travel by the child and the mother to Germany (including, importantly, the right for the child under the said Orders to spend six months in Germany before the child commenced school in Australia) has clearly not been able to be put into practical effect.
This has created enormous stress upon the mother who, although it appears she abandoned her relocation application before the hearing conducted by Tree J, nonetheless, on more than one occasion, gives evidence in this case which makes it clear she desires to spend significant time (if not relocate) to Germany. Her position is absolutely understandable bearing in mind that, although she is very articulate in English and a clearly intelligent lady, English is not her first language; she has no family support here in Australia and she desperately misses her motherland.
It is a theme of this litigation reflected in the material of the mother, although many aspects of her affidavit were ruled inadmissible as being irrelevant in accordance with Exhibit 1 (and where certain objections were taken by Counsel for the father), that she feels that she has been under constant bombardment from the father during the course of the litigation. The father is a professional by occupation who retained a solicitor and Counsel for the hearing. The mother feels totally disadvantaged by the ability of the father to marshal these resources and generally regards the family law system in Australia as unfair.
At the hearing before me on 16 July, I allowed the mother the support of a McKenzie Friend, but she still, at one stage (particularly when discussing the airport watch issue) became very distressed and highly emotional; started shouting at the Bench and continued to assert that this is a “domestic violence case”. As I say, the mother believes the father’s actions during and since the trial before Tree J amount to coercive and controlling behaviour towards her.
I saw both parties under cross-examination and although the evidence demonstrates they have been able to reach some compromises from time to time on small issues by negotiation, it is clear, high levels of mistrust and a general lack of respect for each other exist in this post-separation relationship.
The mother points to these issues and says that this makes any form of “co-parenting” virtually impossible. I will turn to this issue later in these Reasons.
PRINCIPLES TO BE APPLIED
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
ISSUES TO BE DEALT WITH
It is not necessary to analyse every section 60CC(2) and (3) consideration for every issue that I am required to determine. With each issue, I make findings about the evidence relevant to the issue with a view to leading to the conclusion I have reached within the matrix of the relevant considerations.
For the record however, I do find that:
(a)the child will benefit (and has to date benefitted) from having a meaningful relationship with both the mother and the father (section 60CC(2)(a));
(b)the parents do not expose the child to the risk of physical or emotional harm or neglect, save that as the child grows older she will be more aware of her parents’ continuing conflict and the way they choose to engage in parental disputes, namely by words. They are, as already noted, both intelligent articulate adults capable of offering good parenting to X. Neither parent, on the evidence, has a reduced parental capacity by reason of mental illness, alcohol or illicit substance abuse, past criminal activity or allegations of sexual abuse.
In so many ways, therefore, X is indeed a fortunate young girl.
Dealing with the issues sequentially, I choose to deal with the issues that were identified in my Order of 5 March 2021 where the principles in Rice & Asplund (1979) FLC 90-725 arise. I incorporate in these Reasons, the statement by Austin J recently in the case of Garrety & Steyn (No. 2) [2021] FamCA 277, at paragraphs 10 to 12 which succinctly sets out the principles to be applied when considering whether there has been a material and substantial change of circumstances sufficient to warrant revisiting orders made on a final basis:
10I recite and apply the following principles as summarised in Walden & Cooper [2020] FamCA 104:
9.The infinite vicissitudes of life mean no parenting order can ever be truly immutable, which reality is recognised in the Act (s 65D(2)). However, it is well established that no parenting orders, intended to be final, will be revised unless an applicant seeking to vary the orders can demonstrate a material change of circumstance to warrant the revision (Rice & Asplund (1979) FLC 90-725 at 78,905 (“Rice & Asplund”); SPS & PLS (2008) FLC 93-363 at [1] (“SPS & PLS”); Marsden v Winch (2009) 42 Fam LR 1 at [48] (“Marsden v Winch”); Langmeil & Grange [2013] FamCAFC 31 at [43]-[48]; Poisat & Poisat (2014) FLC 93-597 (“Poisat & Poisat”)).
10.The question of whether there has been a change in circumstances of sufficient magnitude to warrant revision of existing orders may be determined either by way of preliminary enquiry or comprehensive hearing (Poisat & Poisat at [39]-[41]; Marsden v Winch at [46]-[47]; Miller & Harrington (2008) FLC 93-383 at [80]-[83] (“Miller & Harrington”)) but, at whichever stage the determination is made, the application of the Rice & Asplund guideline is merely a manifestation of the paramountcy principle (Poisat & Poisat at [18], [19], [40], [42]; Marsden v Winch at [55]; Miller & Harrington at [101]) and procedural fairness should always be observed (Marsden v Winch at [56]).
11In this instance, the mother moved to dismiss the father’s application by way of preliminary hearing based on evidence which is, as yet, untested. In doing so, the mother accepted she must accept the father’s evidence of changed circumstances at its highest (SPS & PLS (2008) FLC 93-363 at [81]; Searson & Searson (2017) FLC 93-788 at [11]).
12If the father’s evidence demonstrates a material change in circumstances, I must then consider whether the asserted need for variation of the existing orders outweighs the potential detriment to the children which the fresh litigation could cause (Marsden v Winch (2009) 42 Fam LR 1 at [50]).
It bears remembering that it is less than two years since Tree J pronounced Orders after a trial. The Orders he pronounced provided a graduating period of increased time between X and the father. The judgment of Tree J was not the subject of appeal. Therefore, in my view, the matters identified in the Order as requiring a threshold of Rice & Asplund is well and truly activated in respect of the following issues:
(a)The mother seeks that when she is able to travel, the Orders of Tree J be varied so as to impose upon the father an obligation to share equally in the travel costs. The mother’s position is that her financial situation is not as rosy as was found by Tree J, namely, that she would likely obtain employment. The mother is currently undertaking a TAFE course likely to be completed by July 2021. It is a course that she hopes will enable her to find employment as a public servant. I have no doubt she will be in a position to complete the course successfully. Accordingly, although it has not been possible for the mother to secure regular employment, by the time the travel can occur under current restrictions, the mother’s financial position is likely to be as Tree J predicted. In the circumstances, there is no material substantial change of circumstances that would persuade the Court to vary the order in relation to the mother paying solely all travel costs overseas;
(b)The mother seeks an order that the child’s time with the father should not advance past five nights per fortnight, meaning, in effect, that the Orders for a block time of six nights and equal time should be discharged. Whilst I accept that I do not have the benefit of a family report in this matter, bearing in mind the careful analysis undertaken by Tree J in his trial Reasons and the reasons why he moved gradually and increased incrementally the child’s time with the father, there is no evidence before me at this stage that would suggest the child would not benefit from, cope with and enjoy the time ordered by Tree J. The mother points to some anxiousness of the child that she might suggest, in a sense, is some form of separation anxiety, but the father disputes such concerns are observed by him in his household and the child’s presentation is at least more than likely a result of the conflict between the parties which the child needs to manage if she demonstrates some, as the mother deposes to, unsettledness.
Considering that the future increase in time is yet to arrive, it is premature at this stage – and there is no evidence to support at this stage – a variation of the Orders of Tree J. Accordingly, that application should be dismissed.
(c)One of the issues identified in the Order of 5 March 2021 (at Order 1(j)) was whether, as an alternative to the child spending seven weeks each alternate year in Germany for a holiday, the mother can elect to spend up to four weeks in lieu with the child in the mid-term Australian holiday. Of course, this will occur every second year. Through his Counsel, Mr Raeburn, the father indicated that, at this stage, he would have no objection to the mother having that election and an order in those terms will be made by consent.
MATTERS THAT DO NOT REQUIRE THE APPLICATION OF THE RICE & ASPLUND PRINCIPLES
It is apparent from the Orders of Tree J that there were a number of specific days that were not dealt with in the Orders. In so saying, that is not to be construed as any criticism of the Orders of his Honour. The Court does not know whether he was asked to make any orders. However, it is quite common and particularly thought usually desirable where there are high levels of conflict post-separation between the parents, to specify time on some special or specific days. Accordingly, after hearing the evidence and the submissions, I make the following findings and will make the following orders.
Mother’s Day and Father’s Day
In 2021, there have been disputes about Mother’s Day and Father’s Day. The dispute in relation to Father’s Day 2021 was resolved by an order I made on an interim basis on 16 July 2021 but it was emblematic of the inability of these parties to sensibly negotiate issues. In respect of Father’s Day this year (5 September 2021), the mother, knowing that the proceedings were on foot and the issue of Father’s Day was an issue, gave evidence ultimately that she had made a booking for the child to spend the Father’s Day weekend in Town M with her.
I say “ultimately” because the mother did not reveal this booking in her evidence-in-chief or in her cross-examination or questioning. She did so when the evidence was complete and from the bar table. This was a disappointing turn of events in the mother’s case because, under oath, she indicated a preparedness to agree to an order that the father spend the Father’s Day this year with the child when she ought to have known (although she claimed she forgot) that she had already made a booking for the child and her to be in Town M, a distance of over five hours’ travel from Town A.
The transcript will reflect that the Bench expressed its concerns about the mother’s lack of candour in the witness box on this issue. Nonetheless, with the father being able to offer the child a one on one experience the following day (Monday, 6 September), the mother’s arranged weekend excursion to Town M, which the child had been informed of and no doubt was looking forward to, was able to proceed. I give credit to the father for his concession in that regard.
However, it is abundantly apparent that this issue meant that providing for Mother’s and Father’s Day each year is imperative so as to avoid further conflict. Commencing 2022 and thereafter, if the child is not by dint of the alternate weekend period in the care of the parent for the Mother’s/Father’s Day as would be in her interest, the child shall spend time with the parent from 6.00pm Saturday to 6.00pm Sunday.
Child’s birthday
The child’s birthday is likely to always occur in the second half of the mid-year school holiday period. Of course, if the mother is in Germany, having elected in that particular year to take a full week mid-year holiday to Germany rather than a seven week end of year holiday to Germany, the child will be out of the country for her birthday.
I propose to make an order, effectively, that if the child is in Australia for her birthday, then she will spend from 1.00pm to 5.00pm on her birthday with the parent she is not otherwise in the care of at that time.
It seemed to be agreed that changeovers that do not take place at school take place at McDonalds Suburb K (also known as McDonalds Location L).
Christmas Day and Christmas holidays
The issue of Christmas Day and Christmas school holidays is also problematic. Clearly, if the mother elects and is able to travel to Germany in accordance with the Orders of Tree J for seven weeks every alternate year, the child will be in Germany for the Christmas period and the school holidays of that year. In alternate years, of course, the child will be in Australia. It seems logical, therefore, to provide and make clear that if the child is in Australia for the end of term school holidays, then:
(a)if the child would have been entitled to be with the mother in Germany on that alternate year, the child shall spend the Christmas special days with the mother; and
(b)on the alternate year, the child shall spend the Christmas special days with the father.
On this basis, each party could plan well in advance the child’s festive activities. The mother indicated that consistent with a commonly known European tradition, Christmas Eve (24 December) is generally when Christmas is celebrated in her household. In Australia, young children often look forward to Christmas morning where generally gift giving occurs. With a view to simplifying future arrangements, I propose to order that in the year when the father spends time with the child for Christmas (being the alternate year) then his school holiday period commence and extend for 21 days from 4.00pm on 23 December. If the child, however, is to spend time with the mother over that Christmas as earlier indicated (and the child is in Australia), then the father’s time shall commence at 9.00am on 27 December and proceed for 21 days.
This means that in a generally six week holiday block the father would spend half of the holidays with the child and at a time when he says it is likely his practice will be closed or less busy and therefore he is able to devote himself to spending time with the child. It also would mean that in each year the mother would have the responsibility of preparing the child for the new school year from the home which has generally been the child’s primary residence. For the end of year 2021/22 school year, I propose to order that the child shall spend three weeks with the father from 9.00am on 27 December 2021.
These rulings and orders deal with the specific extra orders sought by the father that were the subject of further evidence.
The child spending time for six months in Germany
As already indicated, the Covid-19 restrictions have prevented the mother from being able to leave Australia and return to facilitate the Order made by Tree J. On its face, however, that Order has now expired because the child will, in 2022, commence school at a school agreed between the parents. The mother’s application is to preserve her right to take the child to Germany for six months in the future.
The father expresses concerns about that right being able to be extended and/or being exercised for at least the reasons that:
(a)it is uncertain when it can occur;
(b)it is uncertain how such an extended period of time out of Australia will affect the father’s relationship with the child; and
(c)there is no evidence as to how it could affect the child’s capacity to engage with peers and her education.
In my view, to try and speculate if a six month period of time out of Australia in Germany for the child would be in her best interests, at this stage, is inappropriate and highly speculative.
On its face, the Order of Tree J has expired. However, I indicated to the parties that I propose, noting the mother’s desperate desire to engage for cultural and understandable reasons the child in a German Country immersion (which, of course, includes important time with extended maternal family in Germany) that the mother ought have leave to bring an application when Covid-19 restrictions allow travel to occur and when it will be possible to consider, at the time of proposed travel, whether it is still in the best interests of the child that travel for such an extended period be permitted.
This might include the need, at that time if pressed by the mother, evidence from the child’s school and/or a Family Consultant. On current indications, it is likely to be more than 12 months or even two years before the mother can afford and the child can travel safely from Australia to Germany and return with certainty. The current situation is that Australian citizens cannot leave Australia without obtaining an exemption. There is no evidence that this child has an exemption or that an application for an exemption has been even made. Furthermore, it would not be, in my view, in the child’s best interests to permit the child to travel outside of Australia until a confirmed return and paid flight between Australia and Germany is available.
Also, the Court would have to consider if quarantining of international travellers were to be maintained for an extended period, the effect on the child of being placed in quarantine, no doubt with the mother, for a period upon return. At this point in time, there are a number of Australian citizens who cannot return to Australia, even though there is a desire to do so and they can afford to do so. As to when that may change is uncertain. For these reasons, it is, in my view, premature to speculate and/or to determine whether it would be in the best interests of the child to spend six months in Germany as the mother seeks and as Tree J thought appropriate but only in circumstances where his Honour ordered it occur prior to her formal schooling in Australia commencing.
The Orders will provide the mother with an opportunity to bring such an application, and if possible, for such application to be listed before me if filed because of my understanding of the background of this matter.
Airport Watch List
Consistent with the strong desire to travel overseas and because of events that occurred on or about 14 March 2020, a very significant and highly emotional issue has arisen as to whether the child should be on the Airport Watch List. Tree J, when he made his Orders for overseas travel being permitted on certain conditions, made no order for a PACE Alert. Even when he dealt with the dispute about passports, he seemed, at that stage, content that the mother would leave Australia and return in accordance with Orders, noting, of course, that Germany is a Hague Convention country.
However, the evidence reveals that on or about 14 March 2020, the father did administratively apply for a PACE Alert to be lodged and his application to Australian Border Force or other appropriate authority at the time was successful. The circumstances for him taking that action on the evidence before me succinctly put are as follows:
(a)The mother had arranged and had notified the father that she intended to leave Australia on 5 April 2020 to undertake the six month visit to Germany before the child commenced schooling;
(b)There was a dispute between the parties as to whether the mother did comply with Order 8(vi) of Tree J’s Orders, namely the requirement to provide to the father a copy of the itinerary and return and the departing tickets. I do not need to determine that issue for the purposes of this discussion. Paragraph 39 of the father’s affidavit in this case set out an exchange of text messages between the parties. This is important because the orders of Tree J provided that the child was to spend one week with the father before she departed Germany. Had it been possible for the child to leave Australia on 5 April 2020, achieving that week with the father would not have been a problem;
(c)However, at least by late on 13 March 2020, the father became aware that the mother had unilaterally changed the booking with a view to leaving Australia on or about 14 March 2020. At 9.30am, the mother informed the father by text message that she had rescheduled the flights from 5 April 2020 to 14 March 2020, that day. This was a Saturday. The father moved into action, contacting authorities and placing an administrative PACE Alert on the system. It was a matter of great shock, disappointment and frustration to the mother that she and the child were intercepted at the airport prior to boarding their airplane on the evening of 14 March 2020.
The mother says that she incurred substantial financial costs (estimated to be $10,000 by her) but no evidence in respect of those costs or refunds was before the Court. The mother no longer pressed, though she had indicated earlier she would do, that the father reimburse her for those costs. The Court had identified in the Order of 5 March 2021 that such an order appeared to be beyond power. Nonetheless, as it turned out, international travel from Australia without the restrictions which now exists ceased from 17 March 2020, and as indicated, it has not been possible to be activated at this stage.
It is not to the point, although it appears clear, that if the mother had not been restrained from leaving the country on 14 March 2020 with the child, that she would likely not have been able to return to Australia now or for the foreseeable future. I do not believe on the evidence that I should see the mother’s actions as other than an attempt to leave the country in accordance with the Order of Tree J. Although the father said she did not strictly comply with the Order, in the end result, her restraint arising from the PACE Alert has prevented the child spending substantial time out of Australia, and with no opportunity to spend time with the father overseas either. He would not, for example, have been able to travel to Germany during this period.
Whilst there was a benefit for the child travelling to Germany as Tree J sets out in his Reasons at paragraph 116, it not having occurred has meant that the child has been able to continue to spend time with the father increasingly and for her benefit. I was unable to understand in the circumstances therefore, why the mother has been so upset about, effectively, the father’s application that the PACE Alert be applied judicially. It may be that the application of it administratively, causing the issues that it did for the mother and the child on 14 March 2020, continue to pervade her thinking.
However, I am satisfied that before this child leaves the country, it is important that it be clear that it is in accordance with the Orders of the Court and/or if varied, with the consent of the father. As I say, I do not regard the mother’s actions on 14 March 2020 in trying to leave the country were motivated by any expectation that Australia would three days later close down and be closed down to international travel for what may be upwards of two years from that date. However, I could not comfortably allow this child to be removed from the country other than in accordance with the Orders and/or with the consent of the father and mother. Accordingly, in my view, it is not about whether the mother is a flight risk, but in the circumstances of this low trust; high conflict relationship which currently exists, the child, who is both an Australian and German citizen and who has, by reason of Tree J’s Orders, very inclusive time with the father, should not leave the country unless it is in accordance with Orders.
It is a simple process to inform border force authorities if the child can again travel either for the seven week vacation or the four week vacation or for some other agreed arrangement, for the parties to let the authorities know so that travel can be effected. This is nothing more than a statement of the principle set out in section 65Y of the Act. Accordingly, for these reasons, I propose to impose transparently and openly an Airport Watch List order with a sunset clause being when the child turns 15 years of age.
The Airport Watch List does not prevent the mother bringing an application to seek orders for travel overseas outside the current Orders (as earlier contemplated). Merely, it operates as a restriction from travelling outside the country without the consent of the parents or an order of the Court.
Extra-curricular activities
Finally, in respect of parenting issues, two other issues arise. A dispute has arisen as to extracurricular activities. The Order of Tree J provides for inclusive care arrangements. This inevitably means that the child will be engaged, most likely, in sport, music or other activities for her benefit that would transpire over weekends when the child will be with one parent or the other. They may include training and/or practices during a school week.
Common sense would suggest that neither parent ought to be able to commit the child, even if the child desperately wants to do an activity, to an extra-curricular activity unless both parents agree. This is because, for the child to be able to commit to such an activity, the parents will need to commit to supporting her training and performances often on a weekend. If they cannot do so, then the child will almost be restricted to individual pursuits because she will not be able to confidently be a member of a team or a team activity such as an orchestra or the like.
At the moment, this little girl is heavily involved in dance, which the mother says, and I accept, she very significantly enjoys. The child is likely to be engaged in learning to swim effectively. Many of these classes and lessons take place during a school week. The parents should commit to supporting activities like this, however, if they cannot do so, then, clearly, the child will only be able to attend those classes or activities supported by a parent during that parent’s time with the child. This is not a good outcome but children in Australia are consistently being prevented from activities that occur on a weekend because of either an unwillingness by a parent to support that activity by attending at games or matches during the time the child is in their care, or just a general inability as a result of other weekend activities that the family are engaged in that weekend.
With a view to making it clear the Court’s position as articulated, I make the order which appears at the commencement of these Reasons in relation to the obligation for the parents to agree on extracurricular activities before the child is enrolled if the activity involves a commitment by both parents to supporting the child’s attendance at training or performances during the time the child is in their care. I do not propose to make any order in relation to the costs of such activities as this is a child support issue and best dealt with in that regime.
First right of refusal
The mother sought an order that she have first “right of refusal” to care for the child if the father was unable to do so. It is apparent from her evidence that she has a significant concern with the involvement of the paternal grandparents to some degree with X. Although on one assessment of the evidence this may seem to have its foundation in a faith-based dispute (the father being an Anglican; the mother practising as a Catholic and the paternal grandparents following a Pentecostal church), it appears to be deeper than that.
The mother’s material suggests that she regards the grandparents as interfering. However, the father says, and I accept, that there are benefits to X in developing a relationship with the grandparents who are proximate to where she lives; wish to spend time with her; have the time to spend time with her and enjoy her activities. I also note that it provides some support to the father. Clearly, the mother does not have the benefit of that support in Australia from her own family and that is disappointing for her and for the child.
However, because the mother cannot, sadly, activate such support from her own family in Australia, does not mean that the child should lose the support, love and engagement with available grandparents in Australia just because her parents are not available. By the time of final submissions, it seemed agreed that if the child was leaving the Town A area overnight for a period, then the parent ought give to the other parent notice of that parent’s non-availability. In my view, it would not be appropriate and in X’s best interests if she was to remain in Town A and a parent was to be outside of Town A for no longer than two nights, that the child remain in the care of either the grandparents or another trusted adult nominated by that parent who is leaving at that time temporarily. If longer than two nights, then the other parent should be offered the opportunity to care for X for the period the other parent is either away of unavailable personally to care for her.
Where communication is so poor between these parents, a “first right of refusal” (in the form of immediate change of care) is both problematic and, in my view, disruptive. This child will, as she grows older, be likely to have sleepovers at friends’ homes. The parent with the day-to-day parental responsibility of the child because the child is in their care under the Orders made by the Court, is entitled to make appropriate decisions about where the child should be even if the parent is available for a short period. I see nothing in the evidence of the parties to suggest that they would make inappropriate decisions in this regard, and, in the father’s case, the likely beneficiary might, from time to time – and currently would be – his parents.
The mother’s position, as articulated, was that if the child is not with the father, the child should be with the mother, even going so far as to suggest that the child spending time with her was both more important and of more benefit than the child spending time with any other person, including the father. I do not accept that proposition.
SPOUSE MAINTENANCE
The Orders of Tree J provided, for the reasons identified, that the mother be entitled to a period of periodic spouse maintenance and property adjustment paid in a lump sum. The Order (Order 18) for payment of $250 per week should be seen in the context of Order 16 where the father was to pay to the mother the sum of $125,342.85 by way of property adjustment.
The periodic maintenance order continued until 6 March 2020. I explained to the mother that s 83 of the Act allowed her to seek a variation of that Order as of right before the Order had expired. Whether, of course, the Order would have been extended or varied if an application had been made before 6 March 2020, is uncertain. The mother did not bring an application for spouse maintenance until she filed her amended Response on 23 February 2021. Accordingly, she cannot, as a matter of statutory construction and law, exercise the right to seek to vary the spousal maintenance Order made by Tree J. In the circumstances, her application should be seen as a fresh application for spouse maintenance outside of the time limits provided by the Act for the institution of such proceedings (s 44(3)).
As such, the principles enunciated recently in Beckham & Quarrington (2019) FLC 93-913 (adopting earlier statements of a different Full Court in Gadzen & Simkin (2018) FLC 93-871 at paragraphs 29 to 37) apply and require the Court to consider issues such as:
(a)whether hardship would be caused to the Applicant or a child. In this regard the Applicant had the right to file an application before 6 March 2020, but failed to do so and apparently met her expenses between March 2020 and her Application in February 2021, without the previous payment of $250 per week;
(b)whether the Applicant has a claim with a reasonable probability of success; and
(c)the reasons for the delay in commencing proceedings (to vary or extend) within the time permitted.
The decree of dissolution of marriage issued on 18 July 2018 and would have become absolute one month thereafter. Accordingly, any application for spouse maintenance ought to have been commenced, and in fact was commenced within the application that Tree J dealt with, by 18 August 2019. The mother says that she will suffer hardship if she is unable to secure further maintenance. There is a prejudice to the husband in respect of the maintenance application because he was entitled to expect that his maintenance obligation, which evinced the finality principle set out in s 81 of the Act, came to an end in March 2020.
I accept that the mother, on her financial material, has modest means, although, as indicated, the completion of her TAFE course to become a public servant should enliven her ability to obtain some form of employment. There are no issues in respect of her health that would seem to prevent her from attaining employment. I accept that she has, to a large degree, been distracted from perhaps pursuing employment because of the litigation in which she cannot afford representation and therefore must attend to herself.
However, the exercise of the discretion then would not be appropriate to allow the mother in these circumstances to commence fresh proceedings for spouse maintenance where an Order had been made; had been complied with and has expired. Accordingly, the mother’s application for spouse maintenance in accordance with the principles identified shall by dismissed.
For the reasons I now give, the Orders appearing at the commencement of this Judgment are the Orders I make to finalise these applications.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 5 August 2021
APPENDIX ONE
PARENTING
1.All previous parenting orders be discharged.
2.The parents have equal shared parental responsibility for the child X born … 2016 (‘the child’).
3.As of the commencement of school term 1, 2023 the child shall live with the Mother and the Father on an equal time basis, being for a period of 7 consecutive days in each fortnight with each parent commencing after school on a Friday.
4.Prior to the commencement of equal time provided for in order 2 herein, the child shall live with Mother and spend time with the Father as follows:
(a)In 2019;
i.In each fortnight from 10am Saturday until 5pm Sunday in week 1;
ii.10am Sunday until 7pm Monday in week 2;
iii.In each week from 3pm Wednesday until 7pm Thursday; and
iv.Upon the Father providing the Mother with 60 days written notice, for 7 consecutive days
(b)Commencing as at 1 February 2020;
i.In each fortnight from 10am Saturday until 5pm Sunday in week 1;
ii.10am Sunday until 7pm Tuesday in week 2;
iii.In each week from 3pm Wednesday until 7pm Thursday; and
iv.Upon the Father providing the Mother with 60 days written notice, for 2 periods of 7 consecutive days.
(c)Commencing as at 1 February 2021;
i.In each fortnight from 3pm Friday until 9am Tuesday;
ii.In each week from 3pm Wednesday until 7pm Thursday; and
iii.Upon the Father providing the Mother with 60 days written notice, for 3 periods of 7 consecutive days.
(d)Commencing as at 1 February 2022;
i.In each fortnight from 3pm Friday until 9am Thursday;
5.That commencing in 2022, the child shall live with each of her parents as follows;
(a)During each shorter school holiday period on an equal time basis being for a period of 7 consecutive days in each fortnight with each parent commencing 5pm Friday and;
(b)During each December/January school holiday period with the Father for the first half of each school holiday period falling in even numbered years and the second half of each school holiday period falling in ending in odd numbered years.
6.The Mother shall be at liberty to travel to Germany with the child in each second calendar year for a period of up to 7 consecutive weeks on the following conditions;
(a)The Mother to provide the Father with 60 days written notice of the dates upon which she intends to travel (‘the German holiday’);
(b)The Mother to provide the Father with a copy of the child’s travel itinerary and tickets;
(c)The Mother to meet the costs of the child’s travel;
(d)The Mother to provide the Father with the child’s contact details for the duration of the travel;
(e)The Mother to ensure the child has Facetime/Messenger/Skype or similar communication with the Father at least twice each week and in the absence of agreement on Tuesday and Friday;
(f)The German holiday may only occur in the December/January Queensland gazetted school holiday period in each alternate year and shall not occur during the first half of the December/January school holiday period in years ending in an even number,
(g)The Father to be entitled to nominate 2 additional periods of 14 consecutive days for the child to spend with him in the period prior to the child’s travel or in the 9 months following the child’s travel, provided those times do not consecutively join other school holiday periods provided for in these orders.
7.The child shall have telephone/Facetime/Skype or similar means of communication with the Father at all reasonable times on at least 2 occasions each week.
8.That the mother may spend one period of extended time with the child in Germany on the following conditions:
(a)No later than 30 June 2020 the mother may notify the father of her intention to enrol the child for a period of preparatory schooling in Germany that does not exceed 6 months duration from the time of departure from Australia to the time of return to Australia.
(b)The mother is to provide the father with a copy of the child’s travel itinerary and tickets.
(c)The mother is to meet the costs of the child’s travel.
(d)The mother is to provide the father with the child’s contact details for the duration of that period.
(e)The mother is to ensure the child has Facetime/Messenger/Skype or similar communication with the father twice a week and in the absence of the agreement on Tuesday and Friday.
(f)If the father elects to travel to Germany during this period, then for such periods as he may be in Germany, he shall give to the mother not less than 14 days written notice of his arrival and the place or places where he will be living.
(g)When the father is in Germany, he may spend such time with the child as may be agreed between the parents in writing, but no less than a period of 3 days in each week from Thursday afternoon at 4:00pm to Sunday morning at 9:00am provided that on days when the child is attending school he ensures that the child is delivered to or picked up from school on Thursday or Friday as the case may require.
(h)If the period of time that the father spends in Germany incorporates a period of school holiday time, then the child shall spend one-half of that period with the father.
(i)If the mother elects to implement this order, then in the year that she does so, she shall not also spend time with the child in Germany in accordance with order 6.
9.The parties advise each other of any changes of telephone number, or residential address within 24 hours of such change occurring.
10.The parties communicate about matters relating to the child using the online communication book “Talking parents”. The communication book should detail issues about the child, such as:
(a)Any school events;
(b)Any medical issues;
(c)Food allergies;
(d)Celebrations;
(e)Photographs; and
(f)General parenting updates.
11.The parties not criticise or denigrate the other party or the other parties’ family in the presence of, or within the hearing of the child.
12.These orders shall, without more, act as authority to the child’s schools to provide each parent (at that parent’s expense) information about the child’s education’s progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the child and other school communications ordinarily provided to parents.
13.These orders shall, without more, act as authority to each of the child’s medical practitioners (including counsellors and psychologists) to provide to each parent (at that parent’s expense) information about the child’s medical condition, treatment and copies of medical records and reports.
14.The parties will ensure that the schools attended by the child, and the child’s usual treating medical practitioners (including counsellors and psychologists) are provided with a copy of these orders.
15.The Independent Children’s Lawyer is discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
PROPERTY AND MAINTENANCE
16.Pursuant to s 79, father is to pay to the mother the sum of $125,342.85 within 3 calendar months.
17. Otherwise each party are to retain the property presently in their names, or in their possession, and remain solely liable for any debts in their name.
18.Until 6 March 2020, the father is to pay the mother the sum of $250.00 per week by way of spouse maintenance.
OTHER ORDERS
19.Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.
20.Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
APPENDIX TWO
1. That the Court noting the amended Initiating Application filed by the father on 18 February 2021 and the amended Response filed by the mother on 23 February 2021, the Court identifies the following issues that would need to be considered as:
Matters where the principles of Rice & Asplund may not apply
- the father’s Application for specific orders in relation to special events, days and the like;
- as a result of Covid-19 challenges, whether the ability for the child, X born … 2016 (“the child”) to spend six (6) months in Germany as provided for by the Orders of the Honourable Justice Tree made 6 September 2019 must occur before January 2022 or can occur after January 2022 and the conditions of such travel;
- whether an order should be made for the child’s name on the Airport Watchlist (placed administratively and not by order of the Court) to be removed;
- the mother’s Application for specific telephone orders for the child to speak to her;
- whether orders ought be made in relation to the child’s enrolled or extracurricular activities;
- whether the parents are obliged to provide each other with details of where the child and that parent is living and where the child will be on holidays; and
- whether the mother should have the first right of refusal to care for the child if the father is unavailable or when he chooses to permit the child to spend time with extended family.
Matters that would require the threshold of Rice & Asplund to be overcome
- whether the costs of travel imposed by the Honourable Justice Tree in his final Orders should be varied so that the costs of travel are shared equally;
- whether the child’s time with the father should not advance past five (5) nights per fortnight, meaning that the Orders for the block time of six (6) nights and equal time should be discharged; and
- whether as an alternative to the child spending seven (7) weeks each alternate year in Germany for a holiday, the mother can elect to spend up to four (4) weeks with the child in the mid-term Australian school holidays overseas.
Matters which appear beyond power
- the Application by the mother that the father pay her $10,000 as a refund for missed flights;
- the mother’s Application for the father to contribute to private school or kindergarten education and be responsible if the child is absent from kindergarten more than forty two (42) days per financial year;
- the mother’s Application for spousal maintenance, where the previous spouse maintenance order has expired (see s 83 of the Family Law Act 1975 (Cth)) and where no Application for leave to proceed out of time has been made; and
- the mother’s Application for “sole custody of the child” which is not a remedy available under the Family Law Act 1975 (Cth).
2. That the matters which cannot be resolved by agreement and are within power will be listed for determination and hearing for no longer than half a day in the Townsville sittings in the week commencing 12 July 2021.
3. That if the mother presses for matters which require application of the principles of Rice & Asplund, a Rice & Asplund hearing will also be conducted in the Townsville sittings in the week commencing 12 July 2021.
4. That these proceedings be adjourned for further directions at 9.30am on 13 May 2021 in the Family Court of Australia at Brisbane for the purpose of determining what evidence will be adduced in respect of the issues still in dispute.
5. That the parties have leave to appear by telephone on 13 May 2021 by using the Microsoft Teams telephone conferencing system as follows:
a. They shall each telephone +61 2 … (including any international dialling codes if calling from outside of Australia) by 9.25am on 13 May 2021;
b. They shall each then enter the pass code …#; and
c. Hold the line until the Court is ready to connect and proceed with the matter.
IT IS NOTED:
A. That the parties are encouraged to undertake community based mediation with an effort to resolving the matters which the Court has the power to determine, so as to narrow the areas of dispute.
6
1