LANGDON & WATERHOUSE

FAMILY COURT OF AUSTRALIA

LANGDON & WATERHOUSE

[2018] FamCA 332

FAMILY LAW – CHILDREN – undefended hearing – where the father has not participated in the proceedings since orders made on 14 December 2017 – where the father has not complied with orders – where the father lives in Country D – where there have previously been Hague proceedings in Country D – where a declaration was made that the father had wrongfully retained the children from the jurisdiction of the Family Court of Australia – where the children have been in the mother’s sole care since they returned to Australia in December 2016 – where the father has not spent time with the children since December 2016 – where the father has failed to spend time with the children pursuant to interim orders made in June 2017 – where the father communicates with the children via Skype – where the mother seeks that the children’s time with the father be supervised in Australia – where the mother seeks a reduction in the frequency of the Skype communication between the father and the children – where the mother contends that the father has at times behaved inappropriately during Skype communication with the children and further that he has on occasions been abusive towards her – order made that the father communicate with the children via Skype once a week on certain conditions – where it is not in the best interests of the children for the parents to have equal shared parental responsibility – order that the mother have sole parental responsibility and that she give notice to the father of any proposed decision to be made in the exercise of her sole parental responsibility and she consider the father’s response – order that the children spend time with the father in Australia supervised.

FAMILY LAW – COSTS – where the mother seeks that costs of the hearing should be fixed in the sum of $1,650 and reserved – order made fixing and reserving the mother’s costs.

Family Law Act 1975 (Cth) ss 60B, 60CA, 61DA, 60CC, 117

Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405

APPLICANT:

Ms Langdon

RESPONDENT:

Mr Waterhouse

INDEPENDENT CHILDREN’S LAWYER:

Ebejer & Associates

FILE NUMBER:

MLC

6492

2016

DATE DELIVERED:

16 May 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

27 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Sweet

SOLICITOR FOR THE APPLICANT:

Coulter Roache Lawyers Pty Ltd

THE RESPONDENT:

No appearance

SOLICITOR APPEARING FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Ebejer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ebejer & Associates

Orders

That all previous parenting orders be discharged.
That the mother have sole parental responsibility for making decisions regarding the long term care, welfare and development of B born … 2011 and C born … 2013 (“the children”).
That prior to the mother making any decision regarding the children pursuant to order 2 hereof, save in the event of a medical emergency:-
(a)The mother provide the father with no less than 14 days’ notice in writing of any decision she proposes to make;
(b)The father provide a written response thereto within 7 days of receipt of the mother’s written proposal;
(c)The mother consider the response provided by the father pursuant to sub-paragraph (b) hereof, if any, prior to making a decision.
That the children live with the mother.
That the father be at liberty to communicate with the children by Skype each Monday between 6.30 p.m. and 6.45 p.m., save that the mother be at liberty to terminate the Skype communication in the event that during such communication the father seeks to discuss the matters referred to in order 8 hereof.
That the father be permitted to send cards and gifts to the children on special occasions, including on each of their birthdays, Easter and at Christmas.
That in the event the father travels to Australia to spend time with the children, such time occur in Melbourne and be supervised by such supervisor as agreed by the parties and in default of an agreement by Contact service 1 or Contact service 2 with the father to be solely liable for such costs of supervision.
That the father be and is hereby restrained from:-
(a)Discussing with the children or either of them:-
(i)These parenting proceedings or the parenting proceedings in Country D;
(ii)The documents filed in these proceedings or the parenting proceedings in Country D;
(iii)Any parenting decisions or issues which may arise from time to time between the mother and the father;
(iv)Any allegations that the children or either of them have been abused;
(b)Denigrating, belittling or rebuking the mother in the presence or hearing of the children;
(c)Questioning the children regarding allegations of abuse.
That the mother hold the children’s Australian passports and when those passports are required to be renewed that the mother is authorised and permitted to apply for and receive Australian passports for the children without the written consent of the father.
That the mother is permitted to travel outside of Australia with the children provided that she gives the father no less than 30 days’ notice in writing of her intended travel, such notice to include an itinerary and evidence of her purchase of return tickets to Australia.
That the father be and is hereby restrained by himself, his servants or agents from applying for and obtaining an Country D passport for the children and to give effect to this order the mother be at liberty to provide to the Embassy of Country D, … ACT the following:-
(a)A copy of these orders;
(b)The children’s original birth certificate;
(c)Full name, date and place of birth of the father;
(d)A letter of objection to the provision of passports for the children or either of them.
That the mother notify the father in writing as soon as practicable of any significant injury or illness affecting the children whilst in her care and provide to him details of all treating medical practitioners.
That the mother authorise any child-care/kindergarten or school the children may attend to provide the father with information usually available to parents, at the father’s expense.
That in the event that the father seeks to make any application with respect to these orders he file and serve within 28 days of the date of these orders:-
(a)An Application in a Case setting out with precision the orders he seeks;
(b)An Affidavit setting out:-
(i)his reasons for not complying with previous orders; and
(ii)the matters upon which he relies to support his application.
That 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.
That all extant applications be otherwise dismissed.
That the appointment of the Independent Children’s Lawyer be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC6492/2016

Ms Langdon

Applicant

And

Mr Waterhouse

Respondent

REASONS FOR JUDGMENT

introduction

The mother, Ms Langdon, by a Further Amended Initiating Application filed on 17 April 2018 seeks final parenting orders in respect of the children B, aged six years 10 months and C, aged four years eight months.
The father is Mr Waterhouse. He lives in Country D in Europe. He has taken no active part in these proceedings since they were allocated to my docket in December 2017. As a result, the mother seeks leave to proceed with her application for final parenting orders on an undefended basis. These are my Reasons for Judgment with respect to the mother’s applications.

Background

The mother is the applicant in the proceedings. She is aged 36 years and is employed as a manager. She lives in Suburb E.
The father is the respondent in the proceedings. He is aged 35 years and is employed as a medical professional. He lives in F Town, Country D.
The parties commenced cohabitation in mid-2010 and married later in that year. Separation occurred in July 2016 and the parties were divorced in February 2018.
There are two children of the relationship, B, who is aged six years 10 months and C who is aged four years eight months. The children live in Suburb E with the mother. B is in Grade 1 at Suburb E Primary School and C has commenced four-year-old kinder.
The mother has re-partnered and since January 2018 has lived with her partner, Mr G.
In May/June 2016 the parties and children travelled to Country D from Melbourne following the cessation of the father’s employment in Melbourne. The parties separated in Country D in July 2016.
Following the parties’ separation in July 2016, the father filed an application for parenting orders in the County of F Town Circuit Court, Country D. The mother filed an application in those proceedings and also issued Hague proceedings in the High Court seeking the return of the children to Australia.
On 2 December 2016 the Court of Appeal in Country D ordered that pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 the children be returned to their place of habitual residence in Melbourne. A declaration was made that the father had wrongfully retained the children from the jurisdiction of the Family Court of Australia.
Upon the making of those orders the mother and children returned to Melbourne from Country D in mid-December 2016.

Procedural history

The mother commenced proceedings in this Court in July 2016.
On 22 March 2017 final property orders were made by consent. In addition, an order was made that the parenting proceedings be placed in the list of cases awaiting allocation to a judicial docket with priority from that date.
In May 2017 the father filed an Application in a Case in which he sought orders that he spend time with the children for the whole of the Term 2 Victorian term holidays, such time to be spent in Country D and that he be responsible for the costs associated with the children’s travel. That application was opposed by the mother.
On 1 June 2017 the interim applications were heard before Senior Registrar Fitzgibbon who made orders by consent that until further order:-
·The children live with the wife;
·The children spend time and communicate with the father by way of Skype each Thursday and Sunday at 7.00pm for no less than 15 minutes.
Orders were also made for the appointment of an Independent Children's Lawyer. The interim applications were otherwise adjourned to 20 June 2017.
Further interim orders were made on 20 June 2017 which provided for the father to spend time and communicate with the children as follows:-
·Each Thursday and Sunday by Skype at 7.00pm for no less than 15 minutes or such other time as agreed in writing between the parents;
·For seven consecutive nights and then a further consecutive three nights in the June/July 2017 school term holidays in Melbourne;
·During the long summer holidays in 2017/2018 in Melbourne for two periods of seven consecutive nights.
Orders were also made restraining the parties from removing the children from Australia as well as orders in relation to non-denigration of the other party, and for the provision of information between the parents regarding the children’s health and education.
Notwithstanding the orders made by consent for the father to spend time with the children in Melbourne during the June/July 2017 term holidays and the 2017/2018 long summer vacation period, the father spent no time with the children in accordance with those orders.
On 15 November 2017 the husband’s solicitors filed a Notice of Ceasing to Act.
On 14 December 2017 the matter was allocated to my docket and procedural orders were made for the filing of amended applications and case summaries. Pursuant to those orders, the father was to file and serve his Amended Response by 16 February 2018 and a brief summary of issues by 2 March 2018. The father has failed to file any document in compliance with those orders.
On 16 March 2018 the matter was listed for a First Day of Hearing before me. There was no appearance by or on behalf of the father at that hearing. Counsel for the mother submitted that in circumstances where the father has failed to comply with procedural orders that the matter should proceed on an undefended basis. That application was supported by the Independent Children's Lawyer (“the ICL”). Upon hearing submissions I made orders as follows:-
1.That the Respondent make file and serve on the Applicant and the Independent Children's Lawyer ("ICL") by 3 April 2018:
1.1An Amended Response; and
1.2An Affidavit in support of the Amended Response with such Affidavit to incorporate the considerations set out in Section 60CC of the Family Law Act1975 ("the Section 60CC Factors").
2.That the Applicant make file and serve on the Respondent and the ICL by 17 April 2018:
2.1Any Amended Application that she seeks to rely on; and
2.2An Affidavit in support of the Amended Application with such Affidavit to incorporate the Section 60CC Factors.
3.That on or before 20 April 2018, each party serve a Minute of the Order they seek on the other parties.
4.That the Respondent or his legal representative appear in person at the adjourned dated of 27 April 2018 at 10.30am.
5.That the ICL file and serve a bullet point outline addressing the Section 60CC Factors.
6.That the Applicant and the ICL's costs of this day are fixed in the sum of $1,163.00 in respect of each and reserved.
7.That the Application be adjourned to 10.30am on 27 April 2018.
AND THE COURT NOTES
A.That in the event that the Respondent fails to comply with paragraphs 1 and 4 of these Orders, the Applicant will seek leave to proceed with her Application on an undefended basis on the return date.
The father has filed no document in compliance with my orders dated 16 March 2018.
On 4 April 2018, being the date after he was to have filed his response and affidavit pursuant to the orders of 16 March 2018 the father sent an email to my Associate in which he stated:
…I cannot afford to get private representation as I still have legal cost [sic] outstanding from [Country D] and assits [sic] being sign over [sic] to [the mother]. I have applied for legal aid in Australia but I am having difficulty getting aid so I cannot represent myself until I get aid so I have not submitted my affidavits to get my fatherly rights. Would you please confirm you received this email.
In response to that email on 9 April 2018 my Associate forwarded an email to the father (which was copied to all parties) as follows:-
I acknowledge receipt of your email however I am unable to provide you with any legal advice in relation to your situation and the obligations set out in the Orders.
Further, please ensure that all correspondence with the Court is also simultaneously sent to the other parties and/or their legal representatives.
On 24 April 2018 the father forwarded by email a Request to attend by electronic communication. The first page of that form provides the following information to litigants:-
This request must be received by the court at least 7 days before the date fixed for the court event to which it relates, but at least 14 days before if it is for an appeal hearing. Before making this request you must advise the other party and seek their agreement to your proposal to attend/make a submission/adduce evidence by electronic communication.
Notwithstanding the information contained in the request form, the father’s request to attend electronically was made three working days prior to the listed hearing. Part E of that request confirms that the father advised the other parties of his intention to make the request on 23 April 2018.
At 4.34pm on 24 April 2018 in response to his Request to appear by electronic communication an email was forwarded to the father by the Court in the following terms:-
…
The Orders of 16 March 2018 provide that you or your legal representative personally attend at Court on the adjourned date, being 27 April 2018. Your application to appear by electronic means has not been granted. You must attend court personally or arrange legal representation.
Notwithstanding that communication on 26 April at 5.13 pm the father forwarded a further email to the court in which he stated:-
…
Find attached an update of my legal aid application for court I am still awaiting funding to be represented. I wouldn’t be present in court as I am in middle of my exams and as you are aware electronic means was refused.
Attached to that email was a letter from Victoria Legal Aid (“VLA”) to the father dated 26 April 2018. That letter indicates that the father was seeking a review of the decision to refuse legal assistance. It also stated that should the father’s application be refused the matter would be allocated to an independent reviewer and that there will be a delay in such review given VLA is awaiting the appointment of chair by the Attorney General’s Office.
Paragraph 4 of the Orders of 16 March 2018 required that the father or his legal representative appear in person at the adjourned hearing on 27 April 2018. Further, the notation to the orders gives notice to the father of the mother’s intention to seek to proceed on an undefended basis in the event of his non-compliance with those Court orders.
No appearance was entered by or on behalf of the father at the hearing. The father was called by my Court officer in the court precincts prior to the commencement of the hearing and there was no response to the call.
Upon commencement of the hearing, counsel for the mother submitted that the application should proceed on an undefended basis given the father’s non-compliance with my orders of 14 December 2017 and 16 March 2018. It was submitted that the mother had complied with those orders. Pursuant to order 2 of the March orders the mother filed an affidavit on 17 April 2018 in which she addressed the relevant s 60CC factors of the Family Law Act 1975 (Cth) (“the Act”) to be taken into account in relation to her parenting application. On the same date, she filed a Further Amended Initiating Application which sets out with precision the orders sought by her. Both documents were served on the father by email on 17 April 2018 (Exhibit W-1).
Further, on 20 April 2018 the mother’s lawyers forwarded an email to the father enclosing the Minute of Proposed Orders Sought by the mother (Exhibit W-2). I am satisfied that the mother has complied with the orders of 16 March 2018 and that the father has had notice of the orders she seeks.
It was submitted on behalf of the mother that she has been put to significant expense in respect of the parenting proceedings both in Country D and in Australia. The procedural history indicates that the father has taken no active steps in these proceedings since June 2017. Whilst the father had legal representation at the hearing before Senior Registrar Fitzgibbon on 20 June 2017 and orders were made that day which provided the father the opportunity to spend time with the children in Melbourne in the June/July 2017 term holidays and the 2017/2018 long summer holidays, the father has not availed himself of that opportunity

The father has had notice of the possibility of an undefended hearing in the event of non-compliance with Court orders since my orders dated 14 December 2017. Order 9 of those orders provides:-
If a party does not comply with paragraph 3 of these orders, the other party who has so complied may make an application to proceed on an undefended basis on the return date.
A similar notation is included in the orders made 16 March 2018.
Given the history of the proceedings, it was submitted that final orders should be made in the absence of the father. It was submitted that to do otherwise would visit an injustice on the mother both in terms of financial costs and also in terms of the emotional distress to her and the children occasioned by on-going Court proceedings.
The application to proceed on an undefended basis was supported by the ICL.
The ICL indicated that she had been in telephone and email communication with the father since orders were made on 16 March 2018.
The ICL confirmed that she had forwarded to the father and the mother’s lawyer by email her case outline on 23 April 2018 (Exhibit ICL-3). That email confirms the positon of the ICL with respect to the future conduct of the proceedings. She states as follows:-
…
The orders made by the Court on 16 March 2018 required you to file and serve your response material. I note you did not do this.
The orders also required [the mother] to file her material which she did.
The orders required each party, that is you, [the mother] and me to serve a Minute of Orders each party seeks on the other parties by 20 April 2018, you have failed to do this.
I suggest you obtain independent legal advice with respect to those orders and the consequence of not complying with order.
I will not be agreeing to any adjournment request and I will be asking the Court to proceed with this matter on Friday 27 April 2018.
The father responded to that email by email dated 23 April 2018 forwarded to the ICL and the mother’s lawyer. He states in that email as follows:-
…
I have concerns with some of the statement [sic] made on [sic] [the mother’s] affidavits as I referred to [sic] as a pathological lying behaviour. I would like Skype access to continue with [B] and [C]. I am far from happy about sole parenting but then I was never contacted about any parenting decisions by [the mother].
The problem is I cannot afford to get legal representation for the court [sic] I didn’t want to break court orders but it was ineligible [sic] unfortunately. I am also in the middle of my diploma/BA in counselling and psychotherapy xmas [sic] with finishes end of May…
….I plan on representing myself on skype on day [sic] I have to inquiry [sic] about it from the court. I am just wondering have you worked with this before.
The ICL replied to that email at 5.05pm on 23 April 2018 in the following terms:-
…
Again I cannot provide you with any advice. You should contact the Court about appearing by electronic means the orders stated you or your lawyer need to be present.
The ICL referred to that email communication in support of her application for the matter to proceed on an undefended basis. She expressed concern as to the impact of on-going proceedings on both the mother and the children. In circumstances where the father has not participated in the proceedings since orders were made on 14 December 2017 and has not spent time with the children since December 2016, it was submitted by the ICL that the time had come to bring these proceedings to an end.
Having regard to the communications passing between the father, the Court, the mother’s practitioners and the ICL, I am satisfied that the father has had notice of the hearing and of the intentions of both the mother and the ICL to seek to proceed with their applications on an undefended basis in the event of the father’s non-appearance.
Whilst the father has indicated in correspondence that he is hopeful of securing legal aid funding, the reality is that he has had opportunity to pursue such assistance since orders were first made by me on 14 December 2017. I note that the final property orders made by consent 23 March 2017 provide that he be paid the sum of $42,500 from funds held on trust for the parties. There is no evidence before the Court as to whether the father has exhausted those funds or whether they are available to him to meet the costs of representation in these proceedings.
It is evident from the correspondence produced by him that his previous application for funding from VLA has been refused and that he is now engaged in a review process. There is no indication as to when that review process will be concluded nor is there any evidence adduced by the father as to the likelihood of such review being successful. The father provides no evidence of his intentions with respect to these proceedings in the event that his application for legal aid funding is unsuccessful.
The father has failed to comply with orders that he file amended applications and affidavit material. He has failed to put any proposals before the Court in accordance with my orders.
Further, the father has failed to spend time with the children in accordance with orders made in June 2017.
The father has previously been represented by lawyers in Melbourne. It was open to him to have those lawyers represent him at the hearings on 16 March 2018 and 27 April 2018.
The parties have been engaged in litigation with respect to the children since July 2016, initially in Country D and upon conclusion of those proceedings since January 2017 in Melbourne. I am satisfied that the father has been afforded procedural fairness; he has had notice of the applications of the mother and the ICL and had ample opportunity to participate in these proceedings but has failed to do so. The children of the relationship have been subject to litigation for a period of almost two years. In circumstances where the father has not engaged in the litigation or complied with orders of the Court I am satisfied that it is appropriate that the matter proceed in his absence.
Given the father’s stated intention to obtain legal assistance, what I propose to do is make final parenting orders. In the event that the father seeks to make application with respect to those orders, I will give him opportunity to file such application within 28 days.
I now provide reasons with respect to the parenting orders.

Orders Sought

The mother seeks orders in the terms of a Minute of Order served on the father and tendered at trial (Exhibit W-3). That Minute provides as follows:-
1.That the Mother shall have sole parental responsibility for the children of the marriage namely:-
1.1[B] (“[B]”) born …2011; and
1.2[C] (“[C]”) born … 2013
(collectively referred to herein as “the children”).
2.That the children live with the mother.
3.That in the event that the Father travels to Australia to spend time with the children, that the time occur in the Melbourne area and be supervised by such supervisor as may be agreed between the parties and in default of agreement by [Contact Service 1] with the Father to meet the cost of the supervisor.
4.That the Father be at liberty to contact the children by Skype each Monday between 6.30pm and 6.45pm unless as otherwise agreed between the parties.
5.That the Mother hold the children’s Australian passports.
6.That the Father be hereby restrained from applying for and obtaining [a Country D] passport for the children.
7.That the Mother keep the father informed in relation to the children’s education, health and current address.
8.That the Father be restrained from questioning the children in relation to what he deems as allegations of abuse.
9.That the Mother is authorised and permitted to apply for and receive and renew if necessary an Australian passport for the children without first obtaining the written consent of the father.
10.That the Mother be permitted to remove the children from the Commonwealth of Australia for holidays.
11.That for the purposes of paragraph 10 herein, the mother provide the Father with 30 days’ notice of her intention to travel overseas with the children and provide the father with the dates of travel and a contact telephone number and email address.
12.That to give effect to the restraint on the Father of obtaining [a Country D] passport for the children, the mother be at liberty to provide the following to the Embassy of Country D, … ACT 2600:-
12.1      A copy of the Final Orders made in this matter;
12.2      The children’s original birth certificates;
12.3      Full name, date and place of birth of the father; and
12.4      A letter of objection to the provision of passports for the children.
13.That the father pay the Mother’s costs of and incidental to this application.
14.That all extant Applications be dismissed.
15.That the Independent Children's Lawyer be discharged.
16.That 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 the 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.
The orders sought by the ICL are in similar terms to those of the mother. They are contained in the Minute of Proposed Orders tendered at the hearing (Exhibit ICL-2). The most significant difference between the positions of the mother and the ICL is the mother seeks orders for the continuation of an order that the father communicate with the children by Skype. The ICL makes no provision for such order, but during the course of her submissions confirmed that she would not oppose such order being made given the mother’s commitment to that communication continuing.
Although the father did not appear at the hearing I note that he filed a Response to Initiating Application on 3 March 2017. That document sought parenting orders in the following terms:-
·That the parties have equal shared parental responsibility for the children;
·That the children live with the mother;
·That the children spend time and communicate with the father as follows:-
(e)In [Country D] for the June school vacation;
(f)In 2017 and each alternate year, for five weeks during the long summer school vacation;
(g)In 2018 and each alternate year, for four weeks during the long summer school vacation;
(h)By Skype each Thursday and Sunday for a minimum of 30 minutes commencing at 7.00pm Australian time.
That document discloses that the father joins with the mother in seeking orders that the children live with the mother. Further, it is common ground between the mother and father that the children should continue to communicate with the father by Skype. There are differences as to the timing and frequency of that communication but both parties propose that it occur on an at least weekly basis.
The principal issues between the parents relate to:-
·The allocation of parental responsibility; and
·The location and frequency of time between the father and children and whether such time should be supervised.

Documents Relied upon

The mother relies upon the following documents in support of her application:-
·Amended Initiating Application filed 17 April 2018;
·Affidavit filed 17 April 2018;
·Affidavit filed 2 February 2018;
·Summary of issues filed 8 March 2018;
·Exhibit W-1 - An email from the mother’s lawyer to the father dated 17 April 2018;
·Exhibit W-2 - An email from the mother’s lawyer to the father dated 20 April 2018; and
·Exhibit W-3 – The mother’s proposed Minute of Orders.
The ICL relies upon the following documents:
·Case outline filed 23 April 2018;
·Exhibit ICL-1 - Email from the father to the Court dated 4 April 2018;
·ICL-2 - Minute of Proposed Orders of the ICL; and
·ICL-3 - Emails passing between the parties and the ICL dated 23 April 2018.

Legal principles

Section 60B(1) of the Act sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):-
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA of the Act). Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return to the primary and additional considerations in detail below.
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA of the Act). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. For the reasons set out below I am satisfied that it is not in the children’s best interests for the father and the mother to have equal shared parental responsibility in relation to the children.
Findings are made on the balance of probabilities having regard to the evidence. In what follows, statements of fact constitute findings of fact.
The issues can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2) of the Act.

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

Ordinarily it is in a child’s best interests to have a meaningful relationship with both parents. The question of what is a meaningful relationship was considered by Brown J in Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At paragraph 26 of that judgment her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child.
In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 the Full Court considered the interpretation of s 60CC(2)(a) and concluded that:-
119. … the preferred interpretation of the benefit to a child of having a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ...
…
122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
(Original emphasis)
The children have been in the mother’s sole care since they returned to Australia in December 2016. It is submitted and I accept that the children have a meaningful relationship with the mother due to her role in providing for all of their day to day physical, intellectual and emotional needs.
Since June 2017 the children have been communicating with the father by Skype each Thursday and Sunday for no less than 15 minutes. Notwithstanding the orders that the father spend time with the children in Melbourne during holiday periods, the father has not availed himself of that time and indeed, has spent no time with them since they left Country D in December 2016. As a consequence, the mother submits that the children do not have a meaningful relationship with the father.
Nonetheless, the mother is supportive of the children continuing to communicate with the father by Skype. This is an order also sought by the father in his response to which I have already referred. The mother expresses some concerns as to the manner in which the father communicates with the children during such Skype sessions. For example, at paragraph 29 of her affidavit filed 17 April 2018 she deposes that:-
[The father] makes inappropriate comments to them during the Skype conversations including asking them questions such as “who is touching you?” and “are people touching you on your private parts?” or words to that effect. I have observed that when [the father] makes these types of comments the children walk away from the telephone laptop.
(emphasis omitted)
Notwithstanding the concerns raised by the mother with respect to the manner in which the father communicates with the children at times, she maintains that it is in the children’s interest for them to continue to have the opportunity of communicating with the father by Skype. Further, the mother makes proposals for the father to spend time with the children in Australia, albeit that such time be supervised. It is her position that the relationship between the father and the children should be maintained and that they continue to have an opportunity to develop a meaningful relationship with the father.

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

The mother deposes as to concerns for the children’s well-being when in the father’s care. Those concerns are set out at paragraphs 32 to 41 of her affidavit filed 17 April 2018. She there deposes to issues relating to:-
·    The father allowing B to sit on his lap without a seatbelt while driving;
·    The father physically disciplining the children, including smacking B on the bottom with such force as to leave a handprint;
·    The father accessing pornographic websites resulting in the mother having to alter the settings on the father’s phone so as to ensure the children were not exposed to that content;
·    The father asking the children inappropriate questions during Skype communication; and
·    The father drinking alcohol to excess and becoming verbally abusive towards the mother in the children’s presence.
At paragraph 35 of that affidavit the mother deposes that during the relationship the father verbally abused her, calling her names such as “slut” or “whore”. The mother deposes that on occasion she barricaded herself in a bedroom with the children to prevent the father abusing her. The mother deposes that she felt scared and threatened by the father when he was intoxicated.

As a result of the father’s behaviour, the mother seeks orders that the father’s time with the children occurs in Melbourne and be supervised so as to ensure that they are protected from physical or psychological harm.
The ICL also raises concerns as to the father’s behaviour towards the mother and supports the mother’s application that the children’s time with the father be supervised. In support of that proposal the ICL relies upon the emails forwarded by the father to the mother, being annexures KL-1 and KL-2 to the mother’s affidavit filed 2 February 2018. The ICL submits that those emails are on their face abusive and denigrating of the mother’s care of the children. Those emails were also forwarded to the children’s maternal grandmother. In his email to the mother dated 23 January 2018 with the subject “Have you changed” (Annexure KL1) the father writes:-
…
You can contact me on a bogus email if you want. I was just wondering when I said to the court in [Country D] the truth about what I seen [sic] you doing to children eg suffocation of [B] in bedroom of [Suburb H] home and when on couch, slaping [sic] [C] across face pulling [C’s] hair pinching children placing hot spoon on childrens hand and laughing at them shaking children when wouldn’t sleep when babys [sic], yelling at them, recking [sic] house, fondling children, telling children sexual content and showing them witch [sic] is actually sexual abuse, highly manipulation of children witch [sic] is emotional abuse, these are only a small few examples don’t want keep you all day
I wonder if you love a child why would you hurt it?
You often asked me is [C] like that because I good [sic] pissed when I was pregnant with him and harmed him I saild [sic] no he is just the way he is I still think the same
So I am wondering why your barrister stood up in court and said I was making you out to be a psychopath what di [sic] you think ?
Do I believe your [sic] a psychopath I believe your behaviors [sic] that you learnt have to change example controlling your emotions such as anger hurt and pain I believe they can be changed
So have you changed or are you still using the excuse your quote “you cannot change whats [sic] in your DNA” because you don’t want to change
I know reading this is going to trigger your emotions and you will be thinking about it before you go to asleep to night [sic] and next night and on as I know you [sic] ?
I accept the submissions of the ICL that the emails forwarded to the mother are by the father are offensive and a form of harassment likely to impact on the mother and therefore the children. I am satisfied having regard to the unchallenged evidence of the mother as to the father’s abusive and threatening conduct and the submissions made by the ICL that there is a need to protect the children from exposure to physical or psychological harm when in the father’s care. Accordingly, I am satisfied that there should be orders for the father's time to be supervised.
Given the mother’s commitment to supporting the father’s Skype communication with the children I am satisfied that such communication should continue save that in the event that the father communicates with the children in a manner which denigrates the mother or her parenting, discusses these proceedings, or engages in discussion which is not child-focussed or contains inappropriate content, the mother should be at liberty to terminate that communication. I raised with both counsel for the mother and the ICL my concerns that such condition be placed upon the Skype communication. Both confirmed their support for such limitation on the father’s Skype communication with the children.
I must now consider the additional considerations pursuant to s 60CC(3) of the Act.

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

B is currently aged six years and 10 months and C is aged four years and eight months.
The mother deposes at paragraph 43 of her affidavit filed 17 April 2018 that the children have expressed on a number of occasions their wish to remain living in Melbourne.
The ICL met with the children in December 2017. It is her view that little weight can attach to any views expressed by the children, having regard to their age and maturity. Nonetheless the ICL submitted that both children appeared content with their life with their mother and presented as polite young boys.
Having regard to the ages of the children I accept that little weight can attach to any views expressed by them.

(b)the nature of the relationship of the child with:

each of the child's parents; and
other persons (including any grandparent or other relative of the child)

(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:

to participate in making decisions about major long-term issues in relation to the child; and
to spend time with the child; and
to communicate with the child

Save for the mother’s affidavits there is little evidence before the Court to assist me in making findings as to the nature of the children’s relationship with their parents and other family members. The mother deposes that she has been the children’s primary care-giver at all times.
She has been solely responsible for all aspects of the children’s care since their return to Melbourne in December 2016. The mother deposes that she enjoys a close and loving relationship with the children and that the children similarly have loving relationships with her partner and his parents.
The mother also deposes that the children spend time with the maternal grandmother usually twice per week and enjoy close relationships with the maternal aunt and uncle and their cousins.
I accept the mother’s unchallenged evidence as to her relationship with the children.
The father has failed to avail himself of the opportunity to spend time with the children in accordance with the orders of June 2017. The children have spent no time with the father or members of his family since their return to Melbourne in December 2016.

(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

The mother has been principally responsible for the children’s financial support since their return to Australia in December 2016.
The mother deposes at paragraph 91 of her affidavit filed 17 April 2018 that she last received child support from the father in April 2018 when he paid to her the sum of $35 for the two children. Further, the mother deposes that since the father was assessed to pay child support through the Department of Health and Human Services in April 2017 the total amount of child support paid by him is $403.

(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

The orders sought by the mother will formalise what has been the existing arrangements for the children with respect to their care since December 2016. Further, she proposes to continue to facilitate Skype communication between the children and their father as has been in place since June 2017, save that the mother proposes that that time be reduced to one occasion per week and that it occur between 6.30pm and 6.45pm, rather than 7.00pm as is currently ordered. That change is sought to accommodate the children’s night-time routine. The mother contends that the reduction in frequency of time from twice to once per week is appropriate due to her concerns about the father’s inappropriate questioning of the children during that communication and the impact of that behaviour upon the children.
Further, the mother proposes that the father have the opportunity to spend time with the children should he elect to travel to Australia, but that such time be supervised given her concerns as to the father’s conduct towards the mother and children to which I have already referred.
It is submitted on behalf of the mother that should the father elect to travel to Melbourne that he be responsible for the expense of such travel and the costs of supervision of this time.
The mother’s proposals with respect to the father’s time and communication with the children are supported by the ICL.
There is no doubt that the geographical distance between the father and the children is an enormous hurdle to him spending frequent time with the children.
The weekly Skype communication as proposed by the mother will enable him to maintain connection with the children and support the maintenance of his relationship with them. I accept the unchallenged evidence of the mother as to the father’s inappropriate questioning of the children during Skype communication. Given those concerns and having regard to the children’s young ages, I consider that it is in their best interests that such time be limited to once per week. Such communication will support their relationship with the father as they will have the opportunity to share with him the events of the past week.
The reality is that these parties lived in Melbourne prior to their separation and the children were born in Australia. The father has elected to remain in Country D following the determination in the Court of Appeal in Country D that the mother and children be permitted to return to Australia. In circumstances where he pays nominal child support for the children I am satisfied that it is appropriate that any expenses associated with his travel to Australia to spend time with the children should be borne by him.

(f)the capacity of:

each of the child’s parents; and
any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

The mother has attended to all aspects of the children’s care, both physical and emotional since her return to Melbourne with them in December 2016. She deposes that she provides the children with a stable, safe, secure home environment, that she enjoys a close and loving relationship with them, and further, notwithstanding her concerns regarding the father and what she deposes as to her experience of verbal and physical abuse during the relationship with him, she continues to support his on-going communication with the children. The mother’s evidence in that regard is unchallenged.
Having regard to those matters I am satisfied that the mother has demonstrated her strong capacity to meet all of the children’s needs and further her positive attitude towards her parental responsibilities.
The mother submits that the father has demonstrated poor insight as to the children’s needs. She is critical of the manner in which he has communicated with the children during Skype communication. She relies upon paragraph 11 of her affidavit filed 2 February 2018 in which she deposes as to inappropriate questions posed to the children by the father during Skype communication such as “Who is touching you?” and “Are people touching you on your private parts?” or words to that effect. I accept that unchallenged evidence. The mother also contends that the father’s failure to spend time with the children pursuant to the June 2017 orders is evidence of the father’s inability to understand the emotional needs of the children and further demonstrates his poor attitude to his responsibilities.
I am satisfied that the father’s conduct both as to the manner in which he has communicated with the children and in failing to spend time with the children as ordered, indicates that he has little insight as to the needs of the children.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

The children’s father was born and currently resides in Country D. The father’s extended family also reside in Country D.
To date the children have visited Country D on two occasions. The mother deposes that she is committed to ensuring that the children are familiar with their Country D heritage and that they will participate in special occasions. I accept that evidence.

(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

the nature of the order;
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
any findings made by the court in, or in proceedings for, the order;
any other relevant matter

As noted earlier, the mother deposes as to having been subjected to verbal abuse and intimidation by the father during the relationship, particularly when the father was intoxicated. The evidence of the mother with respect of those matters is set out in her affidavit filed 17 April 2018 (paragraphs 32 to 41 inclusive). I accept that unchallenged evidence.
Currently, there are no family violence orders in place.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

There can be no doubt as to the desirability of orders which finalise these parenting proceedings. The father has failed to file documents in compliance with orders made in December 2017 and March 2018.
Further, he has failed to spend time with the children pursuant to interim orders made in June 2017. It is against that backdrop that I am persuaded that it is in the interest of this family and the children the subject of this application that the proceedings be finalised.
The children were the subject of proceedings in Country D which were conducted between July and December 2016. They have also been the subject of these proceedings which commenced in July 2016. Having regard to that litigation history, I am satisfied that the mother and father have been affected by the proceedings and in turn that the proceedings have likely had an adverse effect upon the children. I am therefore persuaded that it is in the children’s best interests that there be orders made finalising these proceedings.

(m)any other fact or circumstance that the court thinks is relevant.

There are no other relevant facts or circumstances.

Conclusion

The mother seeks orders that she have sole parental responsibility for the children. That is an application which is supported by the ICL.
The father in his original response filed, sought an order for equal shared parental responsibility.
In circumstances where the father resides in Country D and the mother is responsible for all aspects of the children’s day-to-day care, I am satisfied that pursuant to s 61DA(4) of the Act the presumption in favour of equal shared parental responsibility is rebutted. In my view it would be contrary to the children’s best interest were there to be a sharing of those responsibilities given the practical difficulties which arise as a result of the geographic distance between the children’s parents. Further, I am satisfied having regard to the offensive manner in which the father has communicated with the mother by email and his failure to engage in these proceedings that it would be contrary to the children’s best interests were there to be shared parental responsibility.
The reality is that the mother has effectively been exercising sole parental responsibility since her return to Australia with the children in December 2016. It is the mother who is in a position to attend upon schools, medical practitioners and other experts who may be involved in the care of the children and therefore it is she who will be possessed of information necessary to make decisions regarding the children’s long-term care, welfare and development. Nonetheless I recognise the father’s desire to continue to remain involved in the children’s lives to the best of his ability. Therefore I propose to make an order that, save in the event of an emergency, the mother give written notice to the father of any proposed decision to be made in the exercise of her sole parental responsibility, such notice to be given in writing 14 days prior to the implementation of such decision and that the father provide any written response thereto within seven days of receipt of the mother’s proposal. There will be an order that the mother consider the views of the father prior to making a sole parental responsibility decision.
The mother seeks an order that the children continue to live with her. Again, that is an order supported by the ICL. It is also the order sought by the father in his Response to Initiating Application filed 3 March 2017. All of the evidence before me confirms that the children are being well cared for by the mother. She is responsible for and has attended to all of their emotional, intellectual and physical needs. The ICL submits that her impression of the children during a meeting with them was that they are happy and well cared for by the mother. Having regard to the evidence and submissions made by the ICL, I am satisfied that it is appropriate that there be a final order that the children live with the mother.
The mother proposes that there be orders permitting the father to spend time with the children in Australia on a supervised basis. It is submitted on behalf of the mother that in circumstances where the children have spent no time with the father since December 2016 and having regard to their young ages, any time between the father and the children should occur in Australia and be supported by supervision. The mother contends that the father has at times behaved inappropriately during Skype communication with the children and further that he has on occasions been abusive towards her. Accordingly the mother is concerned that the father may behave in an uncontained and inappropriate manner in the children’s presence and it is for those reasons that she seeks an order for supervision.
The ICL expresses similar concerns as to the father’s behaviour in the presence of the children and supports the application of the mother that the father’s time be supervised. Having regard to the unchallenged evidence of the mother as to the father’s behaviour both during Skype communication and in his interactions with her during the relationship, I am satisfied that such order is in the children’s best interests. Further, I am satisfied having regard to the young ages of the children that it is appropriate that the father’s time occur in Australia. This is consistent with the orders previously made with respect to the father’s time on 20 June 2017.
The mother also seeks orders restraining the father from discussing parenting issues and allegations of abuse with the children. I am satisfied having regard to the unchallenged evidence of the mother as to the discussions between the father and the children which indicate the father does seek to question the children with respect to allegations of abuse, that such order is appropriate and in their best interests. Accordingly I will make an order as sought by the mother.
The mother seeks a reduction in the frequency of the Skype communication between the father and the children. Pursuant to the current interim orders the father communicates with the children by Skype on two occasions per week. The mother seeks to reduce that to one occasion per week. In her affidavit filed April 2018 the mother deposes as to the children often having little to say to their father during Skype communication. She deposes that this is in part due to their ages, that they do not have sufficient concentration to enable lengthy Skype communication, and further that the, at times, inappropriate questioning and comment from the father affects the children and often curtails effective communication. For those reasons the mother proposes that the Skype communication occur on one occasion per week. That application is supported by the ICL.

There is no challenge to the mother’s evidence as to the nature of the father’s communication with the children by Skype or as to the impact upon them of such communication. Accordingly, I accept the mother’s evidence regarding the Skype communication. Having regard to that evidence, I am satisfied that it is appropriate that the father’s Skype communication occur on one occasion per week as sought by the mother. As discussed previously, I am satisfied that such communication should continue save that in the event that the father communicates with the children in a manner which denigrates the mother or her parenting, discusses these proceedings, or in a manner that is not child-focussed or with respect to matters that are inappropriate, the mother should have the right to terminate that communication
During the course of submissions I raised with the mother’s lawyer and the ICL whether it was appropriate to make an order facilitating the father forwarding cards and gifts to the children. Both conceded that an order enabling the father to provide cards and gifts to the children on special occasions, including birthdays, Christmas and Easter would be appropriate. Accordingly I will make an order in those terms.
The mother also seeks orders that she retains the children’s Australian passports and that she be permitted to seek a renewal of those passports without the father’s consent. She also seeks the opportunity to travel outside of Australia with the children upon 30 days’ notice in writing of such proposed travel. In circumstances where the children live with the mother I am satisfied that it is appropriate that she retain their current Australian passports. I am also satisfied that it is appropriate that she be permitted to apply for a renewal of such passports without the father’s consent in circumstances where I will be making orders that she have sole parental responsibility.
I am also satisfied that the mother should have the opportunity to travel outside of Australia with the children provided that she gives the father no less than 30 days’ notice in writing of her proposed travel together with an itinerary. I will also make orders requiring her to provide to the father evidence of arrangements for return travel to Australia. In my view it is important that if the opportunity arises, the children be able to undertake overseas travel with the mother. Such travel can only benefit the children.
Orders are also sought restraining the father from obtaining an Country D passport for the children. Given the history of this matter with the father commencing proceedings in Country D seeking to retain the children in that country contrary to the mother’s wishes, I am satisfied that an order in those terms is appropriate.
Finally, the mother seeks orders that the father be provided notice of any illness or injury to the children and that he have authority to communicate with the children’s school. I am satisfied that such orders are in the children’s best interests. It is important that the father have the opportunity to be engaged in all aspects of the children’s life. Ensuring he is notified of any significant medical event and enabling him to communicate with the children’s educators will support the father’s engagement with the children.
The mother also raised the issue of costs in the course of her submission. It was submitted on her behalf that costs of the hearing should be fixed in the sum of $1,650 and reserved. Section 117(1) of the Act provides that save for in circumstances that justify an order for costs, each party to proceedings under this Act should bear his or her own costs. In determining whether such circumstances exist, the Court must have regard to the matters identified in s 117(2A) of the Act. The principal circumstance relied upon by the mother is the father’s conduct in the proceedings to which I have referred. In circumstances where I propose to make orders on a final basis, thereby ending these proceedings, I am not satisfied that it is appropriate to depart from the usual order as to costs.
Accordingly, I make orders as follows:
1.That all previous parenting orders be discharged.
2.That the mother have sole parental responsibility for making decisions regarding the long term care, welfare and development of B born … 2011 and C born … 2013 (“the children”).
3.That prior to the mother making any decision regarding the children pursuant to order 2 hereof, save in the event of a medical emergency:-
(a)    The mother provide the father with no less than 14 days’ notice in writing of any decision she proposes to make;
(b)   The father provide a written response thereto within 7 days of receipt of the mother’s written proposal;
(c)    The mother consider the response provided by the father pursuant to sub-paragraph (b) hereof, if any, prior to making a decision.
4.That the children live with the mother.
5.That the father be at liberty to communicate with the children by Skype each Monday between 6.30 p.m. and 6.45 p.m., save that the mother be at liberty to terminate the Skype communication in the event that during such communication the father seeks to discuss the matters referred to in order 8 hereof.
6.That the father be permitted to send cards and gifts to the children on special occasions, including on each of their birthdays, Easter and at Christmas.
7.That in the event the father travels to Australia to spend time with the children, such time occur in Melbourne and be supervised by such supervisor as agreed by the parties and in default of an agreement by Contact Service 1 or Contact Service 2 with the father to be solely liable for such costs of supervision.
8.That the father be and is hereby restrained from:-
(a)Discussing with the children or either of them:-
(i)     These parenting proceedings or the parenting proceedings in Country D;
(ii)    The documents filed in these proceedings or the parenting proceedings in Country D;
(iii)   Any parenting decisions or issues which may arise from time to time between the mother and the father;
(iv)   Any allegations that the children or either of them have been abused;
(b)Denigrating, belittling or rebuking the mother in the presence or hearing of the children;
(c)Questioning the children regarding allegations of abuse.
9.That the mother hold the children’s Australian passports and when those passports are required to be renewed that the mother is authorised and permitted to apply for and receive Australian passports for the children without the written consent of the father.
10.That the mother is permitted to travel outside of Australia with the children provided that she gives the father no less than 30 days’ notice in writing of her intended travel, such notice to include an itinerary and evidence of her purchase of return tickets to Australia.
11.That the father be and is hereby restrained by himself, his servants or agents from applying for and obtaining an Country D passport for the children and to give effect to this order the mother be at liberty to provide to the Embassy of Country D, … ACT the following:-
(a)A copy of these orders;
(b)The children’s original birth certificate;
(c)Full name, date and place of birth of the father;
(d)A letter of objection to the provision of passports for the children or either of them.
12.That the mother notify the father in writing as soon as practicable of any significant injury or illness affecting the children whilst in her care and provide to him details of all treating medical practitioners.
13.That the mother authorise any child-care/kindergarten or school the children may attend to provide the father with information usually available to parents, at the father’s expense.
14.That in the event that the father seeks to make any application with respect to these orders he file and serve within 28 days of the date of these orders:-
(a)    An Application in a Case setting out with precision the orders he seeks;
(b)   An Affidavit setting out:-
(i)     his reasons for not complying with previous orders; and
(ii)    the matters upon which he relies to support his application.
16.That 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.
17.That all extant applications be otherwise dismissed.
18.That the appointment of the Independent Children’s Lawyer be discharged.

I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 16 May 2018

Associate

Date: 16 May 2018

[2018] FamCA 332

16 May 2018

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