KENTA & NEMELIA

[2015] FamCA 568

FAMILY COURT OF AUSTRALIA

KENTA & NEMELIA [2015] FamCA 568

FAMILY LAW – CHILDREN – Where the outstanding issues were narrowed substantially by the conclusion of the trial – Where the mother lives in the E Region and the father in Sydney – Where it is agreed that the younger child is to remain with the mother – Whether the elder child is to remain with the mother or live with the father for the last two years of his schooling – Competing proposals – Whether weight is to be given to the child’s wish for a change of residence – Impact of the children being separated – Where the younger child has experienced emotional difficulties – Best interests of the children –Where the father lacks insight into the psychological needs of the children – Where both parents have conducted themselves inappropriately during their post-separation conflict – Where the children are highly aware of the conflict between their parents– No risk of abuse in either household – Cost of children’s travel to spend time with the other parent – Where both parties are unemployed  – Mother to have sole parental responsibility of the children – No order made for the elder child to live with the father – Travel expenses to be shared – Father to pay costs of ICL.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 61DAA

MRR v GR (2010) 263 ALR 368

APPLICANT: Mr Kenta

RESPONDENT: Ms Nemelia

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 5874 of 2011

DATE DELIVERED: 21 July 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Stevenson

HEARING DATE: 23-25 June 2015

REPRESENTATION

APPLICANT: Mr Kenta appeared for and on his own behalf

RESPONDENT: Ms Nemelia appeared for and on her own behalf

INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:
Legal Aid NSW

Orders

By Consent:

1. All existing orders in relation to the children:

   ·F born on … 2000; and

   ·W born on … 2003

   (“the children”) are discharged.

2. The mother has sole parental responsibility for making decisions concerning major long-term issues in relation to the children with the parties to make such decisions as follows:

   (a)the mother will advise the father in writing of the necessity to make a decision, the proposed outcome of such decision, the reason for the proposed outcome, and shall provide the father with any documentation available to assist with the making of such decision;

   (b)the father will reply in writing to the mother within seven (7) days of receipt of such written advice and inform her therein of any information relevant to the making of such decision;

   (c)the mother will give consideration to the father’s reply in the making of the decision;

   (d)upon the mother having made the decision, the mother will write to the father and advise the father of the decision made and the reasons for the decision.

3. The children will live with the mother.

4. The children will spend time with the father during school holidays as follows:

   (a)for the whole of the Term 1 and Term 3 school holidays in 2015 and thereafter in alternate years;

   (b)for the whole of the Term 2 school holidays in 2016 and thereafter in alternate years;

   (c)for the second  half of the December-January school holidays in 2015 and thereafter in alternate years;

   (d)for the first half of the December-January school holidays in 2016 and thereafter in alternate years; and

   (e)at such other times as may be agreed.

5. ‘School holiday time’ is calculated as follows:

   (a)when a parent’s time falls in the first half of the school holiday period, from after school on the day the school term finishes and concluding at 5.00 pm on the day calculated to be half of the school holiday period;

   (b)when a parent’s time falls in the second half of the school holiday period, from 5.00 pm on the day calculated to represent half of the school holiday period with time ending at 9.00 am on the day prior to the first day of the new school term recommencing;

   (c)school holidays will be deemed to commence at close of school on the day the school term finishes and conclude at 9.00 am on the day prior to the new school term recommencing;

   (d)

   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 in that holiday period, the parent who has the

   
   

   second-half of that school holiday period will have the benefit of the additional night.

6. The parties will share the costs of the children’s return travel to Sydney pursuant to paragraph 4 of these orders in the following manner:

   (a)the father will purchase the tickets for the first trip the children make following the date of these orders and the tickets for each alternate trip thereafter;

   (b)the mother will purchase the tickets for the second trip the children make following the date of these orders and the tickets for each alternate trip thereafter; and

   (c)each parent will provide the other with the children’s tickets seven (7) days prior to the departure date.

7. Within seven (7) days of these orders, the mother will sign the appropriate authority at the children’s school to authorise provision to the father, at his expense, of copies of school reports, newsletters and any other document ordinarily provided to parents.

8. Within seven (7) days of these orders, the father will sign the appropriate authority at B’s school to authorise provision to the mother, at her expense, of copies of school reports, newsletters and any other document ordinarily provided to parents.

9. The mother is responsible for making decisions in relation to the day-to-day care, welfare and development of the children whilst they are living with or spending time with her.

10. The father is responsible for making decisions in relation to the day-to-day care, welfare and development of the children whilst they are living with or spending time with him.

11. The mother and father will:

    (a)keep the other parent informed at all times of their residential address, landline contact telephone number, mobile contact telephone number and email address;

    (b)keep the other parent informed of the names and addresses of the children’s treating medical or other health practitioners;

    (c)do all acts and sign all necessary documents to authorise any treating medical or other health practitioners to provide to the other parent any information that they are lawfully able to provide about the children;

    (d)inform the other parent as soon as reasonably practicable of any medical condition lasting more than 24 hours and significant health issues or illnesses suffered by the children; and

    (e)do all acts and sign all necessary documents to authorise staff at the children’s schools or educational facilities to provide to the other parent information about their educational or other progress and school-related activities.

12. A copy of these orders will be deemed as sufficient authority for:

    (a)any of the children’s treating medical or other health practitioners to release information to the other parent upon that parent’s request; and

    (b)staff at the children’s schools or education facilities to provide such information to the other parent as that parent may request.

13. The parties will not denigrate or insult the other parent in the presence or hearing of the children nor on any social media which can be accessed by the children and they will use their best endeavours to ensure that no other person does so.

14. Each parent be and is hereby restrained from:

    (a)       subjecting the children to any form of physical discipline or striking;

    (b)discussing these proceedings with the children or showing them any document pertaining to the proceedings; or

    (c)       questioning the children about which parent they wish to live with.

15. The children will communicate by telephone or Skype with their parents as follows:

    (a)       at such times as the children request;

    (b)the other parent is at liberty to telephone the children at all reasonable times and intervals but not later than 8.30 pm; and

    (c)in relation to each telephone call, the parent with whom the children are living will:

    (i)facilitate the child making the call;

    (ii)ensure that the children have privacy during such telephone calls;

    (iii)ensure that the children are not distracted or interrupted during such telephone calls.

16. Each parent is at liberty to travel with the children out of the Commonwealth of Australia when they are in the care of that party pursuant to these orders provided that:

    (a)the travelling parent gives at least twenty-eight (28) days written notice of the proposed dates of travel, the itinerary, the address and telephone number of the premises where the children will be staying and a mobile contact telephone number for the children;

    (b)       the travelling parent must not travel with the children to:

    (i)a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, unless agreed in writing by the mother and father; or

    (ii)any country which has issued a current travel warning by the Australian Department of Foreign Affairs and Trade of either “do not travel” or “reconsider your need to travel” to the intended country, unless agreed in writing by the mother and father.

    (c)when the children are overseas, the travelling parent shall arrange for them to telephone the other parent on at least one occasion each week; and

    (d)that the proposed period of travel will not occur during a period when the children are due to be in the care of the other parent in accordance with these Orders, unless agreed in writing by both parties.

17. Each parent will do all acts and sign all necessary documents within seven (7) days of a request by the other parent to ensure that the children have a current Australian passport at all times.

18. The mother will hold the Australian passports for the children unless the father requires the passports to travel overseas with the children pursuant to these orders and, in those circumstances, the mother will make the passports available to the father and the father shall return the children’s passports to the mother within seven (7) days of the children’s return to the Commonwealth of Australia.

19. In the event of any dispute regarding the interpretation of these orders, the parents will participate in appropriate Family Dispute Resolution.

20. Each parent shall contact the other as soon as is practicable, in the event of any medical or other emergency relating to the children.

21. The mother will ensure that W continues to attend for counselling with Dr A for as long as may be deemed appropriate by Dr A.

The court otherwise Orders:

1. Both parties will do all things necessary to cause F to attend all orthodontic appointments deemed necessary by Dr C in Sydney provided that:

   (a)       the parties will each pay for one half of F’s airfares; and

   (b)the father will use his best endeavours to ensure that F’s appointments with Dr C take place while he is in the care of the father in Sydney pursuant to these orders.

2. The father will provide separate sleeping accommodation for W at all times while she is in his care pursuant to these orders.

3. The father will pay to the Legal Aid Commission of New South Wales, on account of the costs of the Independent Children’s Lawyer, a sum of $3,803.25 within four (4) months of the date of these orders.

4. All outstanding applications and responses are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kenta & Nemelia has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5874  of 2011

Mr Kenta

Applicant

And

Ms Nemelia

Respondent

And

Legal Aid NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The Proceedings

1. These proceedings concern parenting orders in relation to two of the three children of Mr Kenta (“the father”) and Ms Nemelia (“the mother”).  The parties have three children:

   ·          B born in 1997 (18)

   ·          F born in 2000 (15); and

   ·          W born in 2003 (12).

   B is no longer the subject of the competing applications, as he attained the age of 18 years on 24 April 2015.

2. By the conclusion of the trial, the outstanding issues between the parties had narrowed substantially.  The Independent Children’s Lawyer (“ICL”) submitted a Minute of Proposed Orders which read as follows:

   1.That the Mother have sole parental responsibility for making decisions concerning major long-term issues in relation to the children namely, [F] born … 2000 and [W] born … 2003 (“the children”), with decisions to be made in respect of such major long-term issues as follows:

   a.The Mother shall advise the Father in writing of the necessity to make a decision, the proposed outcome of such decision, the reason for the proposed outcome, and shall provide the Father with any documentation available to assist with the making of such decision;

   b.The Father shall reply in writing to the Mother within 7 days of receipt of such written advice from the Mother with the Father to inform the Mother therein of any information relevant to the making of such decision;

   c.The Mother shall give consideration to the Father’s reply in the making of the decision;

   d.Upon the Mother having made the decision, the Mother shall write to the Father and advise the Father of the decision made and the reasons for the decision.

   2.The children shall live with the Mother.

   3.The children shall spend time with the Father during school holidays as follows:

   a.the whole of the Term 1 and Term 3 school holidays in 2015, thereafter in alternate years;

   b.the whole of the Term 2 School holidays in 2016, thereafter in alternate years;

   c.the second half of the December-January school holidays in 2015, thereafter in alternate years;

   d.the first half of the December-January school holidays in 2016, thereafter in alternate years;

   e.      At such other times as may be agreed.

   4.‘School Holiday time’ shall be calculated as follows:

   A.When a parent’s time falls in the first half of the School Holiday period, from after school on the day the school term finishes and concluding at 5 pm on the day calculated to be half of the School Holiday period;

   B.When a parent’s time falls in the second half of the School Holiday period, from 5 pm on the day calculated to represent half of the School Holiday period with time ending at 9 am on the day prior to the first day of the new school term recommencing;

   C.School Holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9 am on the day prior to the new school term recommencing;

   D.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 in that holiday period, the parent who has the second-half of that School Holiday period will have the benefit of the additional night.

   5.The parties shall share the costs of the children’s return travel to Sydney pursuant to paragraph 3 of these orders in the following manner:

   a.The father shall purchase the tickets for the first trip the children make

   following the date of these orders and the tickets for each alternate trip thereafter;

   b.the mother shall purchase the tickets for the second trip the children make following the date of these orders and the tickets for each alternate trip thereafter;

   c.each parent shall provide the other with the children’s tickets 7 days prior to the departure date.

   6.Within 7 days of these orders, the mother shall sign the appropriate authority at the children’s school to authorise the school to provide the father, at the father’s expense, with copies of school reports, school newsletters and any other document ordinarily provided to parents.

   7.Within 7 days of these orders, the father shall sign the appropriate authority at [B’s] school to authorise the school to provide the mother, at the mother’s expense, with copies of school reports, school newsletters and any other document ordinarily provided to parents.

   8.That the Mother be responsible for making decisions for the day to day care, welfare and development of the children whilst the children are living with or spending time with the Mother.

   9.That the Father be responsible for making decisions for the day to day care, welfare and development of the children whilst the children are living with or spending time with the Father.

   10.The Mother and Father shall:

   a.Keep the other parent informed at all times of their residential address, landline contact telephone number, mobile contact telephone number and email address;

   b.Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children;

   c.Do all acts and sign all necessary documents to authorise any treating medical or other health practitioners to provide to the other parent any information that they are lawfully able to provide about the children;

   d.Inform the other parent as soon as reasonably practicable of any medical condition lasting more than 24 hours, significant health issue or significant illness suffered by the children;

   e.Do all acts and sign all necessary documents to authorise the children’s schools or educational facilities attended by the children to provide to the other parent information about the children’s educational or other progress and other school-related activities and/or circulars;

   11.A copy of these orders shall be deemed as sufficient authority to:

   a.Any treating medical or other health practitioners treating the children to release the children’s medical or other information to the other parent upon that parent’s request;

   b.The schools or any education facilities attended by the children to give such information to the other parent concerning the children as that parent may request.

   12.The parents shall not denigrate or insult the other parent in the presence or hearing of the children nor on any social media that can be accessed by the children and they shall use their best endeavours to ensure that no other person does so.

   13.Each parent be and is hereby restrained from:

   a.Subjecting the children to any form of physical discipline or striking;

   b.Discussing these proceedings with the children or showing them any document pertaining to the proceedings or

   c.Questioning the children about which parent they wish to live with.

   14.The children shall communicate by telephone or Skype with their parents as follows:

   a.At such times as the children request;

   b.Otherwise, the other parent is at liberty to telephone the children at all reasonable times and intervals, but not later than 8:30 pm;

   c.In relation to each telephone call, the parent with whom the children are living with shall:

   i.      Facilitate the child making the call

   ii.     Ensure that the children have privacy during such telephone calls;

   iii.     Ensure that the children are not distracted or interrupted during such telephone calls.

   15.That paragraph 1 of the orders made 23 January 2012 be and is hereby discharged.

   In the alternative:

   16.That paragraph 1 of the orders made on 23 January 2012 be varied as follows:

   That the Mother and the Father, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the names of the children on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch list until the court orders their removal.

   17.Each parent shall be at liberty to travel with the children out of the Commonwealth of Australia during the time that the children are with them  provided that:

   a.The travelling parent gives the other parent at least 28 days written notice of the proposed dates of travel, the itinerary, the address and telephone number of the premises where the children will be staying and a mobile contact telephone number for the children whilst travelling;

   b.      The travelling parent must not travel with the children to:

   i.      Any country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, unless agreed in writing by the Mother and Father; or

   ii.     Any country which has issued a current travel warning by the Australian Department of Foreign Affairs and Trade of either “do not travel” or “reconsider your need to travel” to the intended country, unless agreed in writing by the Mother and Father.

   c.When the children are overseas, the travelling parent shall arrange for the children to telephone the other parent during the trip on at least one occasion each week;

   d.That the proposed period of travel shall not occur during a period when the children are due to be in the care of the other parent in accordance with these Orders, unless agreed in writing by both parties.

   18.That each parent shall do all acts and sign all necessary documents within 7 days of a request by the other parent, including any passport applications, to ensure that the children have a current Australian passport.

   19.The Mother shall hold the Australian passports for the children unless the Father requires the passports to travel overseas with the children pursuant to these orders and in those circumstances, the Mother shall make those passports available to the Father and the Father shall return the children’s passports to the Mother within 7 days of the children’s return to the Commonwealth of Australia.

   20.In the event of any dispute regarding the interpretation of these orders, the parents shall participate in appropriate Family Dispute Resolution.

   21.Each parent shall contact the other as soon as is practicable, in the event of any medical or other emergency relating to the children.

   22.That the mother shall ensure that [W] continues to attend for counselling with [Dr A] for as long as may be deemed appropriate by [Dr A].

   23.That [F] undertakes Orthodontic treatment on the [E Region]. The court Notes that his first appointment is scheduled for July 2015.

   24.In the alternative, that [F] attend upon [Dr C] in Sydney for his orthodontic treatment and  the father pay half the costs of [F’s] return airfares to Sydney for this purpose . The court NOTES that [Dr C] will be paying the other half.

   25.Order in relation to the costs of the Independent Children's Lawyer.

1. The mother consented to the orders proposed by the ICL and preferred the alternative set out in paragraph 15, which would cause the names of the children to be removed from the Watch List.  Her preferred option was that F undergo orthodontic treatment on the E Region rather than in Sydney.  Additionally, the mother sought an order that the father undergo therapeutic counselling.

2. The father consented to paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21 and 22 of the ICL’s Minute of Proposed Orders.  Accordingly the parties agreed that W will continue to live with the mother on the E Region.  The dispute in relation to F was confined to whether he should move to live with the father on 1 January 2017.  The father proposed that F receive orthodontic treatment in Sydney from his cousin, Dr C, and that the mother pay half of his airfares.  He sought a period of time in which to pay any amount which he may be ordered to contribute to the costs of the ICL.  The father proposed that the names of the children remain on the Watch List for twelve months.  He appeared to press his application for an order that the mother complete an anger management course.

3. The father helpfully prepared a Minute of Proposed Orders so as to reflect his proposal in relation to F.  This Minute read as follows:

   1.That the mother have sole parental responsibility for making major long term issues decisions for the child [F] until 1 January 2017.

   2.From 1 January 2017 [F] shall live with the father and both parents have equal shared parental responsibility for him.

   3.The child shall spend time with the mother during school holidays such that both [F] and [W] are all together and as follows:

   a.The whole of Term 2 school holidays in 2017

   b.The first half of the December-January school holidays in 2017-18

   c.At such other times as may be agreed.

   4.The mother shall pay for the cost of the child [F] (sic) return to the [E Region] pursuant to paragraph 3(a).

   5.The father shall pay for the cost of the child [F] (sic) return to the [E Region] pursuant to paragraph 3(b).

   6.The parent the child lives with shall hold the Australian passport for the child unless the other parent requires the passport to travel overseas with the child pursuant to this orders (sic) and in those circumstances the parent the child lives with shall make the passport available to the travelling parent with the child and this parent shall return the child’s passport to the parent that the child lives with within 7 days of the child’s return to the Commonwealth of Australia.”

Background

1. The father was born in 1960 in Country G and is currently aged 55 years.  His family, who are of Chinese heritage, migrated to Australia in 1969.  The mother was born in 1962 in Country H and came to Australia in approximately 1990.

2. The parties began to live together in 1993 or 1994 and married in Sydney in 1995.  They separated in August 2007 and were divorced by order of a court in Country I on 22 July 2010.

3. In 1997, the parties moved to Country J for the purposes of the father’s employment.  Between 1999 and 2005 or 2006, the family lived in Country I.  During this period, their son F was born and they adopted their daughter W.  In 2006, the family moved to Country I.

4. Both parties remained in Country I for approximately four years after their separation.  On 8 May 2011, the mother took F and W to Country H.  B remained in Country I with the father.

5. There was a dispute as to whether the father consented to the mother’s removal of F and W from Country I to Country H.  He maintained that he objected to this course, whereas the mother contended that she took the children to visit her family with his consent.  It is not necessary that I make findings in relation to that issue, given that the matters for determination narrowed substantially by the end of the trial.

6. The mother brought F and W to Australia on 26 June 2011 and settled on the E Region.  In September 2011, the father sent B to live in Sydney with his sister and brother-in-law, Mr and Ms K.  B lived with his aunt and uncle until mid-2012, while the father remained in Country I.

7. In June 2012, the father moved to Sydney and rented a two-bedroom apartment.  B went to live with the father at this point and has since remained in his care.

8. In 2010 and 2011, the parties engaged in litigation concerning the children in Country I.  On 4 May 2010, they consented to orders which provided that they have joint custody and that the mother have care and control of the children.  These orders provided further that the father have reasonable access and that he pay child support.

9. On 11 July 2011, a court in Country I ordered that the father have interim care and control of B and that the mother have reasonable access.  There was also an order that the mother deliver F and W to Country I or Country I.  The mother maintained that she was unaware of this court event and it is clear on the face of the orders that she was not present for this hearing.

10. On 23 September 2011, the father commenced the present proceedings.  On 23 January 2012, interim orders were made which, inter alia, restrained the mother from removing F and W from Australia.  The orders provided that they spend time with the father from 31 March 2012 until 15 April 2012.  In 2012, the mother unsuccessfully sought a change of venue to the Brisbane Registry.

11. On 29 October 2012, orders were made which provided that F and W communicate with the father by telephone on a daily basis and by Skype each Sunday morning.  These orders provided further that the children spend a block period of four weeks with the father during the 2012/2013 Christmas holidays.

12. On 13 February 2013, I made orders that F and W spend time with the father from 22 June 2013 until 7 July 2013.  I declined to make orders which would permit the father to remove the children from Australia, over the opposition of the mother, for this period of time.

13. On 27 March 2013, F travelled to Sydney to undergo orthodontic treatment by the father’s cousin, Dr C.  The father failed to meet F at the airport and he was collected by his uncle, Mr K.

14. The proceedings were fixed for final hearing before me to commence on 4 July 2014.  Regrettably, the trial dates were vacated because of the necessity for an updated Family Report.  Ultimately, an updated report was released on 28 October 2014 and the proceedings were listed for final hearing to commence on 23 June 2015.

15. On 17 November 2014, orders were made which provided for F and W to spend time with the father during the 2014/2015 Christmas school holidays.  They spent approximately five weeks in Sydney with the father.  They also spent one week with the father in Sydney in April 2015.

Approach to these proceedings

1. In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings.  Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests. 

2. The Court must have regard to the objects of Part VII, as contained in s 60B(1) and the principles underlying those objects, as set out in s 60B(2).  Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.

3. Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility.  This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence.  The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

4. If a parenting order provides for equal shared parental responsibility, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (s 65DAA(1)).  If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicability” are defined in s 65DAA(3),(4) and (5).  There is no temporal definition of “substantial and significant time”. 

5. In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:

   8. Subsection (1) of s 65DAA is headed “Equal time” and provides:

   If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Subsection (3) explains what is meant by the phrase “substantial and significant time”.

   9. Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents.”

   …

   13. Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”

   …

   15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible…”

The evidence and witnesses

1. The applicant father relied on the following affidavits:

   1.Mr Kenta (the father) sworn or affirmed on 14 February and 2 June 2015

   2.Ms K (the father’s sister) sworn or affirmed on 20 May 2015

   3.Ms L (the father’s friend) sworn or affirmed on 27 March 2015

   4.Dr C (the father’s cousin and orthodontist) sworn or affirmed on 27 May 2015.

   All of these witnesses gave oral evidence.

2. The respondent mother relied on the following affidavits:

   1.Ms Nemelia (the mother) sworn or affirmed on 26 March 2014, 9 April 2014 and 28 May 2015

   2.        Ms M (the mother’s friend) sworn or affirmed on 20 May 2015

   3.Mr Nemelia (the mother’s brother) sworn or affirmed on 1 June 2015.

   All of these witnesses gave oral evidence.

3. I had the benefit of two Family Reports dated 22 April 2012 and 28 October 2014 prepared by Family Consultant Ms N.  The Family Consultant gave oral evidence in response to questions from each of the parents and the ICL.

Primary Considerations

1. The father alleged that the mother has subjected the children to physical abuse.  He filed a Notice of Child Abuse or Family Violence on 17 March 2014 in which he contended that he observed bruising, which he claimed was inflicted by the mother, on all three children between August 2007 and April 2011.  In cross-examination by the ICL, however, the father conceded that “there is no evidence at all that she has assaulted the children in the last few years”.

2. It may be that the mother subjected the children to inappropriate physical discipline during the period when the family lived in Country I.  It may also be the case, as the mother suggested, that a maid employed by the family in Country I hit the children without the parents’ authority.  Whatever may have been the true situation, I am satisfied and I find that none of the children have been subjected to physical abuse by the mother since the commencement of these proceedings.  I am satisfied that there is no present need to protect any of the children from a risk of physical abuse by the mother.

3. Certain actions taken by the father when dealing with his belief that the mother subjected the children to physical abuse give rise to real concern as to his insight into their psychological needs.  In 2010, the father made a video of W in a completely unclothed state, while he pointed out bruises said to have been inflicted by the mother (Exhibit 4).  Disturbingly, the father caused F to be present on this occasion.

4. In cross-examination by the ICL, the father said that he made this video because “I had to show evidence”.  The father then conceded that he consented to orders for the children to live with the mother on 9 February 2010, despite his alleged awareness of the mother’s physical abuse of the children.

5. The Family Consultant watched this video and a film of W spending time with the father.  In the second video, W extols the characteristics of the father and heaps lavish praise upon him (Exhibit 7).  When asked to comment on these videos, the Family Consultant said:

   This is an example of adults again involving children in their dispute.  It is making [F] a witness against his mother and that is emotional abuse.  Both videos show a lack of boundaries.

6. The father conceded in cross-examination by the ICL that he posted the video of W (Exhibit 4) on the internet.  He seemed to suggest that it was acceptable for him to do so because he placed the video on a secure site.  I consider that this choice on the part of the father illustrates his lack of insight into the impact of his conduct on the children.

7. The father conceded that he provided a copy of this video to the ICL, who told him that “it was totally inappropriate” and should be taken down immediately.  The father admitted in cross-examination that he allowed the video to remain on the internet for “some weeks”.  He offered no explanation for doing so.

8. The father maintained that he was the victim of family violence inflicted by the mother.  He made a video of the mother pounding on the door of his apartment in Country I, whilst wailing and shrieking very loudly (Exhibit 2).  The children were inside the premises and must have been frightened by the mother’s behaviour, which prompted a neighbour to phone the police.

9. Concerningly, the mother attempted to shift blame for this incident from herself to the father.  In response to questions by the ICL she said:

   He chose not to open the door.  I said ‘let me take them to church’ and he said ‘no’, then I lost it.  I thought ‘how long will he allow me to do this noise when the children are there?’

   Obviously, the mother could have diffused this situation at any time but elected to continue with her behaviour.

10. The father made the video of the mother banging on the door and wailing and shrieking in the presence of the children.  He edited the video and inserted subtitles in Spanish and English, then sent a copy to the mother’s family in Country H.  In cross-examination by the ICL, the father said that he did so

    
    “to show them what she is like”

    and conceded that he posted this video on the internet.  The Family Consultant observed that “it is not a positive thing for the children”, because the video could have been circulated widely and indiscriminately once sent to the mother’s family and posted on the internet.

11. In 2015, the father was in the audience of a television program.  He asked this question of the panel:

    Latest available research from the ABS 2012 personal safety survey and the Australian Institute of Criminology indicate at least one in three victims of family violence and abuse in intimate relationships is male;  with the perpetrators being often female.  I should know – I’m a victim, I was assaulted and suffered from psychological abuse but nobody believed me – not the police or social workers, the court system, not even some of my friends.  I ask the panel, how do we raise awareness to recognize and help male victims of family violence without taking away the good works so far in stopping violence against women?

12. During cross-examination by the ICL, the father said of his appearance on the television program:

    I appeared on [television program] and came out as a victim of violence.  I raised the issue of the children being embarrassed with the [show’s] producer, I don’t think I embarrassed any of the children.  I dispute that it was clear that I was talking about the mother.

    B obviously watched this program and read blogs posted after the broadcast.  He entered the blog and stated “I am proud of my father”.

13. The Family Consultant was asked about the likely impact on the children of the father’s appearance on this program and the comments which he made in a public forum.  The ICL drew the attention of the Family Consultant to the father’s evidence that he believed that there would be no embarrassment to the children because he did not identify the mother.  The Family Consultant said:  “it showed very limited understanding of this exposure” and appeared to be “a larger example of [the children’s] involvement in conflict”.

1. Despite these various examples of ill-considered and inappropriate conduct displayed by both parents, I am satisfied that there is no present need to protect the children from a risk of abuse in either household.  It seems to me that the parties’ competing proposals, which would see the children spend extended and unsupervised school holiday time with the other parent, amount to concessions to that effect.

2. Additionally, I consider that the competing proposals of the parties can only be construed as a concession that the children will benefit from a meaningful relationship with each of their parents.  I would observe that it is open to each of the parties to take positive steps to promote the children’s relationship with their other parent by protecting them from exposure to their conflict and lack of trust in each other.

Additional considerations

1. The only independent evidence of the children’s views in relation to parenting arrangements came from the Family Consultant.  The father and Mrs K gave evidence of an alleged conversation with F in December 2014, during the course of which he allegedly expressed a wish for a change of residence.  For reasons which appear below, however, I have reservations as to whether F was able to express his genuine feelings on this occasion.

2. In the April 2012 report, F said that he wished to live with the father but the Family Consultant had reservations as to the genuineness of his stated views.  She reported as follows:

   43.… He opened the conversation with one unprompted message that he repeated at the end of the interview, that he wants to live “mostly with Dad – sixty percent in Dad’s house and forty percent with Mum”.  “It can’t be fifty/fifty;  it has to be more with Dad, sixty/forty”.

3. The Family Consultant reported further:

   45.[F] was also contradictory about how much he wanted to live with his father as opposed to his mother.  He was that it was “boring” but “good” living on the [E Region].  He said that he liked living with his father but did not remember a time in the past when he lived with his father.  When asked how he would feel if the judge said that it would be best if he lives on the [E Region] with his mother, [F] exclaimed that he would be “happy!” but quickly corrected himself and said that he would be “sixty percent sad and thirty percent happy”.  [F] appeared confused and under pressure to get a particular message across about percentages.

4. When asked to comment on these statements by F, the Family Consultant said:  “Language involving percentages does not come naturally to children.”  She was of the view that adult conversation was likely to have been the source of F’s remarks.

5. In relation to W, the Family Consultant reported in 2012:

   48W also seemed aware of parental dispute.  [W’s] understanding is that her father wants her to live in Sydney with him.  She said she wants to live in Sydney with him but appeared distressed about the fact that living with her father would mean that she would not live with her mother on the [E Region].

   49.When asked about her three wishes, [W] said that, firstly, she would like to live with her father and, secondly, she would like her mother to live with them.

6. The Family Consultant reported as follows on her 2014 interview with F:

   29.[F] described a positive relationship with his mother.  He indicated that she loves and cares for him, such as looking after him when he is sick and allowing him some freedom to spend time with his friends.  [F] appeared particularly thoughtful when talking about his relationship with [Mr Kenta].  He said that he had “drifted from dad” and wants to get close to him again in the same way that [B] is close to his father.  He said that at the moment he communicates with his father via Skype and, while these conversations are “good and enjoyable”, they are “not enough” because he would prefer to be able to do things with him and would, indeed, one day like to live with him.  There seemed no urgency in [F’s] wish to live with his father.  He said that it would “definitely keep me happy if I’m with my dad for the holidays”.

7. The Family Consultant reported as follows in relation to her 2014 interview of W:

   32.[W] seemed a little confused about how to describe the relationships she has with each of her parents.  Overall, she thinks that her father gets “frustrated” with her and that she and her mother tend to “fight a lot” and that her mother smacks her.  [W] seemed to think that she is required to “pick” which parent she would like to live with and this is apparently, from [W’s] perspective, one of the topics she and her counsellor spend time discussing.  W said she is confused about where she should live.  However, she appeared very excited about the prospect of the imminent holiday with her father and otherwise described being generally “settled” on the [E Region] and at school, while also having some difficulties with her friends.”

8. In her oral evidence, the Family Consultant expressed the view that the children were “more settled by the time of the 2014 report” and “had a sense of what might work for them.”  In her report, the Family Consultant opined:

   40.The interviews and observations revealed that [F] and [W] seemed to yearn for time with [Mr Kenta] and a better relationship with him.  They indicated that they wished to spend as much time with him (and [B]) as is possible.  [F’s] wish to live with [Mr Kenta] appeared authentic but the greater wish for now seemed to be for him to be able to spend holiday time with [Mr Kenta].

9. The father and his sister Mrs K both gave evidence of an alleged conversation with F in December 2014, during which he allegedly expressed a wish for a change of residence.  In her oral evidence Mrs K said:

   The discussion came around to [F] being happy in Sydney and where he would live.  That resulted in some comments about him wanting to be with his father.  I asked him directly if that is what he wants and he said yes.

10. The father was present on this occasion, as were W and Mr K.  There was no evidence of the surrounding conversation and, on Ms K’s own evidence, she elicited F’s agreement that he wished to live with the father.  I have real reservations as to whether F felt free to express his genuine views on this occasion.

11. Both of the children indicated clearly to the Family Consultant that they miss their brother B and would like to spend more time with him.  To her credit the mother arranged for B to travel to the E Region during the July 2014 school holidays, at her expense, to spend time with F.  W was to spend these holidays with the father.

12. The Family Consultant expressed serious concerns at the prospect of a separation of F and W, in accordance with the father’s proposals.  In her oral evidence, she said:

    I would say [F] and [W] are close, the sibling bonds are probably some of the securest in the family.  I would have great concerns about separating them.

    She added:

    [W] has sustained losses in her life:  her adoption, moving countries, missing [B] and missing dad so I would not like to see her lose her brother.

13. The Family Consultant was asked for her opinion as to the father’s proposal that F and W live with him and B.  She said:  “All three siblings living with the father would be a great upheaval, a left-field option.”  The Family Consultant gave this evidence before the father ameliorated his position during the course of final submissions.

14. It was common ground between the parties that W has experienced emotional difficulties in recent times.  To the mother’s credit, she arranged for her to consult a psychologist early in 2014.  W’s problematic behaviour has included lying, cheating, stealing and conflict with F.

15. In 2014. W wrote a very concerning letter at her school.  Inter alia, she stated:

    “Want to die.  I hate my life”

    “Feel like killing myself”

    “I want to commit suicide”

    The Family Consultant opined that this note “shows overwhelming distress in [W]” and added that she was “pleased that she is seeing a psychologist”.

16. W’s problematic behaviour and the contents of this letter prompted her psychologist, Dr A, to formulate a safety plan.  The Family Consultant was shown this safety plan (Exhibit 12) and said that her initial reaction was “good job”.

17. The father appeared to believe that the Family Consultant made a recommendation for orders that F live with him for the final two years of his secondary education.  In the 2014 report, the Family Consultant wrote:

    42.      As the children get older, and their relationships with [Mr Kenta] are better consolidated, it may be easier for them to alternate school holidays with him and have half of the Christmas holidays with him.  In accordance with [F’s] wishes, after a year of his spending substantial blocks of time with [Mr Kenta], once he has completed junior high school, it may be appropriate to consider whether he might benefit from living in Sydney with [Mr Kenta] to complete his last two years of high school.

18. In her oral evidence, however, the Family Consultant stated clearly that she made no recommendation for such an order.  She said in answer to questions from the father:  “I left this open for consideration by you as parents, not by the court, with what I’ve seen today, I would be inclined to say let’s just do this once and for all.”

19. The cost of the children’s travel between Sydney and the E Region was a significant issue in the proceedings.  The father has been unemployed since April 2014 but hopes to re-enter the workforce by approximately September 2015.  He proposed that the parties share equally the cost of the children’s travel.

20. The mother likewise is unemployed and her income consists of government benefits, together with board paid by a foreign student.  She gave evidence that she intends to find paid employment at the end of these proceedings.  Her proposal was that the father meet all costs of the children’s air travel.

21. I have referred above to evidence which casts doubt on the capacity of each of the parties to provide for the children’s needs.  Additionally, concerning matters arose in relation to the father’s care of B since 2012.

22. In April 2014, the father permitted B to travel to Country I alone at the age of 17 years.  The Family Consultant said, in response to questions from the father:

    If your purpose was for him to demonstrate independence, that is a different kettle of fish, I would not consider that a good reason for him to go alone at 17.  It sounds as if he is carrying quite a load for a young fellow who should be concentrating on his studies.  Does he need to have tests applied at this age?  I would suggest you need to take off as much stress as you can.

23. Regrettably, B’s performance at school is poor and, in the opinion of the Family Consultant, reflects the pressure which he experiences in the father’s household.  I accept, however, that B’s poor school performance is a matter of genuine concern for the father and that he is taking active steps to address this issue.

The presumption of equal shared parental responsibility

1. The parties and the ICL agreed that the mother should have sole parental responsibility for W, subject to her advising the father of necessary decisions and taking into account his views.  The parties agreed that the mother should have sole parental responsibility for F until 1 January 2017.  The father proposed that F would then move to live with him and that he should assume sole parental responsibility.  The ICL proposed that the mother have sole parental responsibility for F.

2. It seems to me to be appropriate that the mother have sole parental responsibility for the children, in circumstances where the parties live a considerable distance apart and have little trust in each other.  They do not presently appear to have the capacity to communicate effectively in relation to major issues concerning the children’s welfare.

3. As there will be no order for equal shared parental responsibility, I am not required to consider whether it is in the children’s best interests and reasonably practicable that they spend equal or substantial and significant time with each parent. I am at liberty to determine what parenting orders are in their best interests by reference, inter alia, to the primary and additional considerations set out in section 60CC of the Act.

Conclusion as to parenting arrangements

1. As noted, the principal issue ultimately was whether there should be orders for F to move to the primary care of the father on 1 January 2017.  On that date, F will be approximately eight weeks short of his 17^th birthday.

2. In my view, it would be unusual and ill-advised for a court to make an anticipatory order of such a nature.  It is impossible to predict what might be F’s attitude to this proposal in January 2017.  If he wished to move to the primary care of the father, there would be little point in the mother attempting to force him to remain with her on the E Region.  On the other hand, if he wishes to stay with the mother in Queensland, the father would be hard-pressed to force him to live in Sydney.

3. I will not accede to this application of the father.  Otherwise, it seems to me that the orders proposed by the ICL will meet the best interests of the children.

Outstanding issues

F’s orthodontic treatment

1. There was a dispute between the parents as to the organisation of orthodontic treatment required by F. The father proposed that this treatment be carried out in Sydney by his cousin, Dr C, and that the mother pay half of F’s airfares. The mother proposed that F receive treatment on the E Region through the auspices of the Queensland public health system.

2. Dr C gave evidence to the effect that he is prepared to provide treatment to the value of approximately $10,000 at no cost to the parties.  He indicated that he would bill that amount to the father, who could pay the debt when and if he finds himself in a financial position to do so.  Dr C said that he would require appointments with F every six to eight weeks and generously offered to pay half the cost of his flights.

3. The mother gave evidence that F has an orthodontic appointment on the E Region in July 2015, after having been on a waiting list for three years.  She described Dr C’s offer as “very kind” and conceded that “he is a good professional”.  The mother’s initial objections to Dr C providing F’s treatment appeared to be that he is “very inflexible with appointments” and that she would struggle to meet the cost of flights to and from Sydney.

4. There was no evidence in relation to the expertise and experience of the E Region orthodontist who would provide the treatment, nor as to his or her intended procedure.  Dr C set out his intended treatment program in his affidavit and oral evidence.  The mother made a concession that Dr C has a high level of professional capability.  In these circumstances, I will order that F’s orthodontic treatment is carried out by Dr C.

5. It should be possible to schedule some of F’s appointments with Dr C when he is in Sydney during school holidays to spend time with the father.  It seems to me that the father should arrange flights to Sydney and return trips should be booked by the mother.  In re-examination, the mother said:  “I accept [Dr C’s] offer but I would like to be part of it.  I will pay one way and [Dr C] the other way.”

Anger management course for the mother

1. The father sought an order that the mother attend an anger management course.  He tendered an email from an organisation known as The Hart Centre which provides this service (Exhibit 15).  The cost for each appointment is $155 which would result in a net charge to the mother of $91, according to the ICL.

2. I am reluctant to impose this cost on the mother in her current financial circumstances.  There was no evidence from the father of any recent conduct on the part of the mother, which would suggest that she requires such an intervention.  She sees her general practitioner regularly for management of her depression, which means that there is some monitoring of her general condition.

Counselling or psychiatric treatment for the father

1. The mother sought an order that the father undergo treatment by a therapeutic counsellor or a psychiatrist.  There was no indication from the father that he would consent to this order or engage meaningfully in such a process.

2. The Family Consultant doubted that such an order would serve any useful purpose.  She said:  “It may be helpful for the father to receive counselling but he would need to know that it would be for the benefit of the children and I am not sure that he would think that.”  In these circumstances, I will not order that the father undertake therapeutic counselling or psychiatric treatment.

Provision by the father of a separate bed for W

1. The father conceded that there have been occasions when W has shared his bed and explained that she has done so only when there is no other available sleeping accommodation.  The mother sought an order that the father provide W with a separate bed, but was at pains to point out that she imputed no sinister motive or conduct at all by that request.  The mother indicated that her concern was to safeguard W’s privacy.

2. In my view, W has a right to privacy as suggested by the mother.  She is now twelve years old and it is entirely appropriate that she has her own bed.  I will make the order sought by the mother.

Costs of the ICL

1. The ICL indicated that the mother has received a waiver but that she sought a payment of $3,803.23 from the father.  In light of his evidence of an imminent return to the paid workforce, I will order that the father pay this amount within four months.

Airport Watch List

1. I am not satisfied that either party is a flight risk and note that the parties agreed that each may travel overseas with the children.  The orders proposed by the ICL, and to which each parent offered consent, would restrict overseas travel to countries which are signatories to the Hague Convention.  In these circumstances, I will discharge the order which placed the names of the children on the Watch List.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 21 July 2015.

Associate:

Date:  21 July 2015