Michaels & Vidal
[2022] FedCFamC1F 252
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Michaels & Vidal [2022] FedCFamC1F 252
File number(s): SYC 425 of 2016 Judgment of: REES J Date of judgment: 21 April 2022 Catchwords: FAMILY LAW – PROPERTY – BINDING FINANCIAL AGREEMENT – Application to set aside a financial agreement – Where the planned birth of a child in a same-sex relationship does not constitute a “material change in circumstances” or give rise to “hardship” – Unconscionable conduct not substantiated – Where the respondent’s first language is Country DD language – Where the respondent would not have been unable to understand the advice received including the consequences of entering the agreement if it was given in English and of the nature stipulated in Abrum & Abrum [2013] FamCA 897 – Where it would not be unjust or inequitable on the applicant to set the agreement aside –Agreement set aside pursuant to s 90UM(5)(A) of the Family Law Act 1975 (Cth).
FAMILY LAW – CHILD SUPPORT – Application for child support departure order – Where the Child Support Registrar hasn’t been served – Application dismissed.
FAMILY LAW – CHILD MAINTENANCE – No power to make a child maintenance order where there is a child support assessment in force – Application dismissed.
FAMILY LAW – PARENTING – Where the applicant seeks to increase his time spent with the child – Child’s expressed wishes for the current parenting arrangement to continue – Benefits of the child spending more time with the applicant are outweighed by other considerations – Orders for the child to spend a block of five nights per fortnight with the applicant from Term 1 2023 – Orders removing the child from the Family Law Watchlist.
Legislation: Child Support (Assessment) Act 1989 (Cth) s 117
Family Law Act 1975 (Cth) ss 60CC, 90UJ, 90UM
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.13
Cases cited: Abrum & Abrum [2013] FamCA 897
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Fewster & Drake (2016) FLC 93-745
Hoult & Hoult (2013) FLC 93-546
Lesley & Lesley [2015] FamCA 894
Logan & Logan (2013) FLC 93-555
Thorne v Kennedy (2017) 263 CLR 85
Division: Division 1 First Instance Number of paragraphs: 185 Date of hearing: 11, 12 & 14 April 2022 Place: Sydney Counsel for the Applicant: Ms Clifford Solicitor for the Applicant: Karras Partners Lawyers Counsel for the Respondent: Mr Cairns Solicitor for the Respondent: Harris Gomez Group Counsel for the Independent Children's Lawyer: Mr White Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 425 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MICHAELS
Applicant
AND: MR VIDAL
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
REES J
DATE OF ORDER:
21 APRIL 2022
THE COURT ORDERS:
1.That the child X born 2011 live with Mr Vidal and spend time with Mr Michaels in accordance with the current orders.
2.That from the commencement of Term 1 in 2023, X live with Mr Michaels on alternate weekends of each two week period from after school on Friday until school starts on Wednesday.
3.That, from 2023, where X has been in the care of Mr Vidal immediately before the start of the school term, X will be in the care of Mr Michaels on the first weekend of the school term and, if he has been in the care of Mr Michaels immediately before the start of the school term, then he will be in the care of Mr Michaels on the second weekend of the school term.
4.That the Watch List Order, being Orders 11 and 12 of the Orders made 22 March 2018, be discharged AND THE COURT REQUESTS THAT the Australian Federal Policy give effect to these Orders by removing the name of the child X (male) born 2011 from the Family Law Watchlist at all points of international arrivals and departures in the Commonwealth of Australia.
5.That Mr Vidal and Mr Michaels do all things necessary to obtain a current Australian passport for X which is to be held by Mr Vidal and provided to Mr Michaels when he travels with X.
6.That X be permitted to travel outside the Commonwealth of Australia with Mr Vidal or with Mr Michaels during any period of school holiday time when X is with Mr Vidal or Mr Michaels pursuant to these orders provided that:
(a)At least 30 days’ notice is given to the non-travelling party and that notice includes copies of the return travel bookings, a copy of the proposed itinerary and details of where and how X can be contacted during the trip.
(b)Telephone contact as specified in Order 21 continues during the trip unless X is on an aircraft at the time when the contact is to occur.
7.That the Financial Agreement signed by the parties on 27 February 2010 be set aside.
8.That the application of Mr Vidal for a Child Support Departure order is dismissed.
9.That the application of Mr Vidal for lump sum child maintenance is dismissed.
10.That the matter be referred to the Docket Registrar for directions in relation to the property proceedings.
THE COURT ORDERS BY CONSENT:
11.That the parties have equal shared parental responsibility for the long term care welfare and development of the child of the relationship, X born 2011 (“X”) in consultation with one another with regard to major long term issues.
12.That each party is to have sole responsibility for making decisions concerning other aspects of the care, welfare and development of X on a day to day basis during the periods when X is in their respective care.
13.That during the school holiday periods at the end of Terms 1, 2, and 3 X is to live with Mr Michaels for the first half of each school holiday period in even numbered years and the second half in odd numbered years and at other times as agreed between the parties.
14.That during the Christmas school holiday period X is to live with Mr Michaels as follows:
(a)In 2022, with Mr Michaels for the first two weeks, with Mr Vidal for the second two weeks then with Mr Michaels for half the remainder of the holidays and then with Mr Vidal for the balance of the holidays.
(b)In 2023 with Mr Vidal for the first two weeks, with Mr Michaels for the second two weeks, with Mr Vidal for half the remainder of the holidays and with Mr Michaels for the balance of the holidays.
(c)Commencing 2024, X is to live with Mr Michaels for the first half of each Christmas school holiday period in even numbered years and with Mr Vidal for the balance, and in odd numbered years X is to live with Mr Michaels for the second half of each school holiday period and with Mr Vidal for the balance.
15.That the school holiday period is defined as commencing at the conclusion of school on the last day X attends school in that term, and concluding at the commencement of school on the first day X attends school in the following term.
16.That changeover is to occur at 6:00pm on the mid-point of the school holiday period, and if there is an uneven number of school holiday days then X is to live with Mr Michaels for the extra night in even numbered years and with Mr Vidal in odd numbered years.
17.That X is to live with Mr Michaels on Father’s Day in each even numbered year from 9:00am until the commencement of school the following morning and with Mr Vidal on Father’s Day in each odd numbered year.
18.That X is to spend time with the non-resident parent on his birthday from 4:00pm until the commencement of school the following morning, or 9:00am if not a school day.
19.That in relation to Christmas, the parties are to alternate between having X in their respective care from 6:00pm on Christmas Eve until 3:00pm on Christmas Day, and from 3:00pm Christmas Day until 6:00pm Boxing Day, with X to be in the care of Mr Michaels from Christmas Eve in each even numbered year and from 3:00pm Christmas Day in each odd numbered year.
20.That in the event that the Easter weekend does not coincide with the NSW gazetted school holidays, X is to spend time with each party and is to be in the care of Mr Michaels from 9:00am Good Friday until 9:00am Easter Sunday in even numbered years, and from 9:00am Easter Sunday until the commencement of school Tuesday in odd numbered years and otherwise with Mr Vidal.
21.That each parent is to facilitate reasonable telephone contact taking place between X and the non-resident parent during the periods in which X is in their respective care, with the telephone call taking place at 7:30pm each alternate evening.
22.That each of the parties shall:
(a)Do all acts and things to ensure X’s attendance at agreed extra-curricular activities continues whilst he is in the care of that parent.
(b)Notify the other as soon as possible and in any event within two (2) hours of any serious injury or illness suffered by X whilst he is in the care of that parent.
(c)Notify the other of the name, address and telephone number of the child's treating doctor / doctors and health practitioners and authorise that doctor / doctors and health practitioners in writing to release to the other at any time particulars of his health or any treatment requested by the other party.
(d)Notify the other within 24 hours in the event that X is in need of any treatment by a healthcare practitioner, including medical, dental, orthodontic, optical or any form of counselling/therapy or if surgery has been recommended.
(e)Notify the other in writing within 7 days of any change of address, email or mobile telephone number.
(f)Provide an authority to the school attended by X authorising the other to obtain from his school particulars of X’s welfare and progress at the school, school reports, school photographs, details of upcoming functions or activities and any other information disseminated by the school to parents of child attending the school.
(g)Be at liberty to attend school functions to which parents are invited.
23.That both parties are to forthwith take all steps and sign all documents necessary to enrol X in B School (Suburb D Campus) (also known as C School) for 2023 for Years 7 to 10 and in B School Suburb E Campus for Years 11 and 12 and are restrained from enrolling him in any other school without written consent of both parties.
24.That in relation to all changeovers which do not take place at school, the parent who is about to commence a period of residence with X is to collect X from the other parent’s place of residence at the commencement of each residence occasion.
25.That within one month of the date of these Orders Mr Vidal is to do all things and sign all documents necessary to request that the Medical Officer of Health for the Government of F State, Health Department, Municipal Cooperation of City G issue a new Birth Certificate for X indicating that X’s fathers are Mr Vidal and Mr Michaels and Mr Vidal is to provide Mr Michaels with written evidence that the request has been made and provide him with progress reports in relation to the Application.
26.That each parent is to forthwith make an appointment with Dr H or such other specialist as recommended by him in writing and are to forthwith comply with any request by Dr H or such other paediatrician to assist the specialist to provide the parents with his diagnosis, prognosis and treatment recommendations (if any) in relation to X and thereafter each parent shall comply with any such treatment recommendations.
27.That, without admissions, Mr Michaels is restrained from consuming alcohol 24 hours prior to or during any period in which X is in his care.
28.That within 28 days of the date of these orders, and subject to any waiver of contribution by Legal Aid NSW, each of Mr Michaels and Mr Vidal pay to Legal Aid NSW their contribution towards the costs of the Independent Children’s Lawyer in the sum of $4,939.25 less any amount already paid to Legal Aid NSW by way of initial contribution.
29.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Michaels & Vidal has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
These proceedings concern the parenting arrangements for X who was born in 2011 and is now eleven years old and is the biological child of Mr Vidal. X was born as a result of a commercial surrogacy arrangement in India while Mr Vidal and his partner, Mr Michaels were living in a de facto relationship.
Because this is a matter that was originally filed in the Federal Circuit Court (as it was then named) and was transferred to the Family Court of Australia (as it was then named), I am satisfied that no issues arise as to jurisdiction.
By the commencement of the trial, most of the parenting issues had been resolved. The issues left to be determined was whether X should live with Mr Michaels for five nights or six nights in each fortnight and whether X could travel overseas.
I am also required to determine the application of Mr Vidal to set aside the Binding Financial Agreement (“the agreement”) into which he and Mr Michaels entered on 27 February 2010 and applications for a Child Support Departure Order or, in the alternate, lump sum child maintenance.
Mr Michaels relied on an affidavit sworn by him on 31 March 2021; a Financial Statement filed on 28 March 2021; an affidavit of the solicitor who acted for him in relation to the agreement and an affidavit of Ms J which set out her attempts to locate Mr K who was the solicitor who signed the certificate of advice to Mr Vidal and to locate Mr K’s file. Ms J was not required for cross-examination.
Mr Vidal relied on an affidavit sworn by him on 1 April 2021, a Financial Statement sworn by him on 31 March 2021 and an affidavit of Ms L who is Mr Michaels’ sister-in-law. She was not required for cross-examination.
The Court was assisted by an Independent Children’s Lawyer (“ICL”) for X and by three reports of Dr M who is a child and family psychiatrist appointed as single expert in the proceedings.
APPLICATION TO SET ASIDE THE BINDING FINANCIAL AGREEMENT
The bases upon which a Binding Financial Agreement can be set aside are found at s 90UM of the Family Law Act 1975 (Cth) (“the Act”) in the following terms:
(1)A court may make an order setting aside, for the purposes of this Act, a Part VIIIAB financial agreement or a Part VIIIAB termination agreement if, and only if, the court is satisfied that:
(a)the agreement was obtained by fraud (including non‑disclosure of a material matter); or
(b)a party to the agreement entered into the agreement:
(i)for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or
(ii)with reckless disregard of the interests of a creditor or creditors of the party; or
(c)a party (the agreement party) to the agreement entered into the agreement:
(i)for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a de facto relationship (the other de facto relationship) with a spouse party; or
(ii)for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 90SM, or a declaration under section 90SL, in relation to the other de facto relationship; or
(iii)with reckless disregard of those interests of that other person; or
(d)a party (the agreement party) to the agreement entered into the agreement:
(i)for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a marriage with a spouse party; or
(ii)for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 79, or a declaration under section 78, in relation to the marriage (or void marriage); or
(iii)with reckless disregard of those interests of that other person; or
(e)the agreement is void, voidable or unenforceable; or
(f)in the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out; or
(g)since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the de facto relationship) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (4)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or
(h)in respect of the making of a Part VIIIAB financial agreement—a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or
(i)a payment flag is operating under Part VIIIB on a superannuation interest covered by the agreement and there is no reasonable likelihood that the operation of the flag will be terminated by a flag lifting agreement under that Part; or
(j)the agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of Part VIIIB; or
(k)if the agreement is a Part VIIIAB financial agreement covered by section 90UE—subsection (5) applies.
Note: For child of a de facto relationship, see section 90RB.
(2)For the purposes of paragraph (1)(b), creditor, in relation to a party to the agreement, includes a person who could reasonably have been foreseen by the party as being reasonably likely to become a creditor of the party.
(3)For the purposes of the application of subparagraph (1)(c)(ii) to a Part VIIIAB financial agreement covered by section 90UE:
(a)the reference in that subparagraph to an order under section 90SM is taken to include a reference to an order (however described) under a corresponding provision (if any) of the non‑referring State de facto financial law concerned; and
(b)the reference in that subparagraph to a declaration under section 90SL is taken to include a reference to a declaration (however described) under a corresponding provision (if any) of the non‑referring State de facto financial law concerned.
(4)For the purposes of paragraph (1)(g), a person has caring responsibility for a child if:
(a)the person is a parent of the child with whom the child lives; or
(b)a parenting order provides that:
(i)the child is to live with the person; or
(ii)the person has parental responsibility for the child.
(5) This subsection applies if:
(a)at least one of the spouse parties to the agreement was not provided, before signing the agreement, with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages to that party of making the agreement; or
(b)if this advice was provided to at least one of the spouse parties to the agreement—that party was not provided with a signed statement by the legal practitioner stating that this advice was given to that party;
and it would be unjust and inequitable, having regard to the eligible agreed matters (within the meaning of section 90UE) for the agreement, if the court does not set the agreement aside.
(6)A court may, on an application by a person who was a party to the Part VIIIAB financial agreement that has been set aside, or by any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were parties to that financial agreement and any other interested persons.
(7)An order under subsection (1) or (6) may, after the death of a party to the proceedings in which the order was made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(8)If a party to proceedings under this section dies before the proceedings are completed:
(a)the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings; and
(b) if the court is of the opinion:
(i)that it would have exercised its powers under this section if the deceased party had not died; and
(ii) that it is still appropriate to exercise those powers;
the court may make any order that it could have made under subsection (1) or (6); and
(c)an order under paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(9) The court must not make an order under this section if the order would:
(a)result in the acquisition of property from a person otherwise than on just terms; and
(b) be invalid because of paragraph 51(xxxi) of the Constitution.
For this purpose, acquisition of property and just terms have the same meanings as in paragraph 51(xxxi) of the Constitution.
(Emphasis added)
Mr Vidal relies on ss 90UM(1)(g), (h) and s 90UM(5)(a) of the Act. He asserts that he was not given advice about the advantages of signing the agreement, or advice sufficient for him to understand the nature of the disadvantages. Further, he asserts that, at the time he signed the agreement, his command of the English language was not sufficient for him to understand the document.
Section 90UM(1)(g)
Mr Vidal relies on the fact that, over a year after the agreement was signed on 27 February 2010, X was born in 2011. Whilst it may be assumed that, in a heterosexual relationship, the birth of a child is an entirely likely and foreseeable occurrence, the same consideration would not necessarily be made in a same-sex relationship.
However, in this case, the birth of a child was both in contemplation and actively being planned.
Mr Vidal deposed:
127.[Mr Michaels] always knew that I had wanted to have children from the time we met, and we had discussed signing a Binding Financial Agreement (BFA) in these terms. Prior to signing the BFA, we had a discussion where he said words to the effect of “Signing the BFA is to protect any of our children in case I die, so that my family will not take money from you. If we don’t have a family, the money would be for you. My family won’t touch my money”.
128.In the relationship, as part of our plan to have children, we decided to hold a commitment ceremony. This occurred on […] 2009 in front of [Mr Michaels’] family and friends and involved the exchange of rings, with a priest in [Suburb N] who blessed the rings and us. At around this time, we were planning on starting the surrogacy process in India in March 2010.
129.In February 2010, we signed a contract with a surrogate solicitor to commence the surrogacy process.
X’s birth was not a change in the circumstances of the parties to the agreement.
Whilst Mr Vidal has caring responsibility for X, so does Mr Michaels.
Further, there is no evidence that Mr Vidal will suffer hardship if the agreement is not set aside. In Fewster & Drake (2016) FLC 93-745 (“Fewster”), the Full Court held that the words “as a result of that change” are critical. Their Honours said:
Those words provide a necessary link between the changing circumstances and the hardship. According to the clear terms of the subsection, the hardship must result from the material change in circumstances, and not from some other cause.
I accept, as the Full Court stated in Fewster, that there could be circumstances where, after an agreement is signed, a child suffers a life changing illness or injury, and that, as a result of being the carer of that child, a parent suffers hardship. I do not accept that the section is enlivened only because a child is born when the parties to the agreement contemplated such an event at the time.
In Fewster, turning to the question of the correct interpretation of “hardship” within s 90K(1)(d) of the Act their Honours said:
65.The husband correctly submits that the words “as a result of the change” indicate that the relevant hardship with which the section is concerned is the hardship which is caused by the change in circumstances. It is the changed circumstances which must give rise to the hardship, and not the agreement itself. It is to be recalled that, subject to compliance with the statutory requirements, people are free to enter such binding financial agreements as they see fit. There is no statutory provision which enables a binding financial agreement to be set aside merely because it is unfair: Hoult & Hoult (2013) FLC 93-546 at 87,283 and 87,296 - 87,298.
I do not accept that X’s birth or the responsibilities of his care, give rise to hardship for Mr Vidal.
This ground is not made out.
Section 90UM(1)(h)
The unconscionable behaviour upon which Mr Vidal relies is Mr Michaels’ statements to him, when the agreement was being discussed, that they would be together forever.
It is submitted on behalf of Mr Vidal that statement was an inducement to Mr Vidal to sign the agreement.
That proposition was not put to Mr Michaels in cross-examination.
Mr Vidal did not say that he signed the agreement because of the statement.
The next matter relied upon is that the solicitor who gave Mr Vidal advice was a friend of Mr Michaels.
Setting aside that Mr Michaels disputes that assertion, I do not accept the inherent assumption that, absent circumstances where there is evidence that the solicitor colluded with a party to give misleading or inaccurate advice, a solicitor who is a friend of one party cannot give independent advice to the other party. There is no such evidence here.
Lastly it was submitted that the fact that Mr Michaels encouraged Mr Vidal to use the solicitor, rather than his own preferred solicitor, and that Mr Michaels attended with him at the solicitor’s office (although he was not in the room while the solicitor was giving advice) and paid the solicitor’s account is evidence of unconscionable behaviour.
I do not accept that submission.
I note that Mr Vidal attended at the office of Mr Michaels’ solicitor with Mr Michaels although, similarly, Mr Vidal was not present when Mr Michaels signed the agreement.
In Thorne v Kennedy (2017) 263 CLR 85, the High Court, considering whether an agreement would be voidable because of duress, undue influence or unconscionable conduct, stated:
38.A conclusion of unconscionable conduct requires the innocent party to be subject to a special disadvantage “which seriously affects the ability of the innocent party to make a judgment as to [the innocent party’s] own best interests”. The other party must also unconscientiously take advantage of that special disadvantage. This has been variously described as requiring “victimisation”, “unconscientious conduct”, or “exploitation”. Before there can be a finding of unconscientious taking of advantage, it is also generally necessary that the other party knew or ought to have known of the existence and effect of the special disadvantage.
(Footnotes omitted)
Further, their Honours cited with approval the statement of Mason J in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 461 unconscionable conduct occurs when:
…the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position.
Other than his command of English, there is no evidence that Mr Vidal was subject to any special disadvantage or had been placed in disadvantageous position. Mr Vidal gave evidence that he understood, when he signed the agreement, that he would thereafter be prevented from claiming any part of Mr Michaels’ assets.
This ground is not made out.
Section 90UM(5)(a)
In Hoult & Hoult (2013) FLC 93-546 (“Hoult”), Thackray J, with (with the concurrence of Strickland and Ainslie-Wallace JJ) indicated that:
62.…once the party seeking to rely upon the agreement produces in evidence the certificate signed by the other party's solicitor, there is a forensic obligation on the other party to adduce evidence which would disprove, or at least throw into doubt, the inference or conclusion to be drawn from the certificate (especially when read with the recital in the agreement to the same effect).
His Honour continued:
63.This forensic obligation is properly conceptualised as the burden of introducing evidence and should not be confused with the burden of proof as a matter of law and pleading. For a discussion of the difference see Purkess v Crittenden (1965) 114 CLR 164 especially at 167-168 per Barwick CJ, Kitto and Taylor JJ and 170-171 per Windeyer J.
In Logan & Logan (2013) FLC 93-555, a differently constituted Full Court held:
50.Applying the principles emanating from Hoult, what the reliance by the husband on the certificate, and the recitals, does is satisfy the initial onus on the husband, and passes the evidentiary burden to the wife. The certificate gave rise to “an inference, a presumption of fact or a presumptio hominis” (paragraph 97) that the requisite advice has been. The question then becomes whether the wife has adduced sufficient evidence to displace that inference.
51.As was explained in Hoult in paragraphs 101 and 279, that does not then require an inquiry into the content of the legal advice, but just as to whether the advice was given.
Their Honours stated:
55.Thus, the question becomes whether this evidence satisfies the forensic obligation thrown on the wife by the presentation of the certificate. In answering that question it must be remembered that the obligation was not to prove that the advice had not been given, but to throw the matter into doubt, leaving the onus of satisfying the court that the advice had been given on the husband.
As to what constitutes the required advice, Aldridge J in Abrum & Abrum [2013] FamCA 897 (“Abrum”) stated:
39.In order to give advice about the effect of an agreement on the rights of a party, that is their rights under the Act in relation to property, a legal practitioner must establish what those rights are at the time the advice is provided. This is because s 90G(1)(b) requires advice to be given on the effects of the agreement upon the rights of that party and the advantages and disadvantages of the agreement. If their rights are not known then it is impossible to advise as to the effect of the agreement on them.
40.It is unhelpful to advise a person that a financial agreement might adversely affect his or her rights if those rights are not identified. A party must know more than some unknown or undefined right is being given up. He or she must have some idea, at least in general, of his or her present entitlements or rights (to use the words of the section) with which he or she may compare the provisions of the proposed financial agreement. It is only in that way that there can be actual advice about the effect of the agreement on those present rights.
I adopt his Honour’s statements.
Mr Vidal’s first language is Country DD language. At no stage in the process of preparing the agreement and signing it was he provided with an interpreter.
Annexed to the agreement is a certificate signed by Mr K of P Lawyers which states that Mr K advised Mr Vidal of the effect of the agreement and of the advantages and disadvantages of making the agreement.
Mr Michaels relies on the certificate as prima facie evidence that Mr Vidal received advice from Mr K as he certified.
Thus the onus is on Mr Vidal to demonstrate that he did not.
Mr K did not give evidence. It is an agreed fact that Mr Michaels’ solicitors went to a great deal of effort to locate Mr K but that he could not be found and nor could his file related to this matter be found by the solicitors who presently operate his former practice.
It is not relevant that the evidence about Mr K’s being unavailable to be called to give evidence was not adduced by Mr Vidal’s solicitors. The evidence establishes that Mr K could not be called and there can be no criticism laid at Mr Vidal’s feet for his failure to call the solicitor.
In his affidavit Mr Vidal deposed:
138.During the meeting, [Mr Michaels] and I sat in [Mr K’s] office while [Mr K] was reading the agreement. [Mr K] then asked [Mr Michaels] to go outside and wait. [Mr K] asked me:
“Do you know what the BFA means?”
I responded “No”.
[Mr K] then responded with words to the effect of “If you sign this document, you cannot ask [Mr Michaels] for money in the case of a split in the relationship”.
I answered words to the effect of “[Mr Michaels’] money is his money”.
I then signed the agreement.
139.I did not receive any written advice to complement this verbal advice. I did not understand the document that I signed nor its implications.
…
141.I was not given an opportunity to sight the agreement until the Solicitor informed me to sign the document.
142. I was not provided with a copy of the agreement after signing.
In cross-examination, Mr Vidal said that the only advice he was given by Mr K was that, if he signed the agreement, he could not make a claim against Mr Michaels’ assets and Mr Michaels could not make a claim against his assets. He said that the time taken for the part of the conference where he was given advice and signed the agreement was ten minutes.
Mr Michaels, who was in attendance at Mr K’s office, did not give any evidence about how long Mr K and Mr Vidal were in private conference without him although clearly he could have done so.
Mr Vidal’s evidence that the conference in which he signed the agreement and was given advice took ten minutes was not challenged in cross-examination.
Does Mr Vidal’s evidence displace the presumption created by the certificate?
On behalf of Mr Michaels, counsel submitted that Mr Vidal’s evidence should not be accepted because in some aspects it was contradicted by the unchallenged evidence of the solicitor who acted for Mr Michaels.
It must be borne in mind that Mr Vidal was giving evidence of events which happened over 11 years ago, relying on his memory. By contrast, Mr Michaels’ solicitor was a very experienced practitioner who had extensive and meticulous file notes and copies of correspondence. It is likely that her evidence would be more accurate.
Mr Vidal’s evidence at paragraph 141 of his affidavit that he did not receive a copy of the agreement until he was given it to sign, is contradicted by the evidence of Mr Michaels’ solicitor that she sent a copy of the final draft of the agreement to Mr Vidal on 29 January 2010 and that, after Mr Michaels signed the agreement on 27 February 2010, she handed the signed copy to Mr Vidal, telling him that he must now see his own solicitor. Mr Vidal also accepted, in cross-examination, that some handwritten comments on a draft copy of the agreement were written by him.
Mr Vidal’s evidence at paragraph 142 that he wasn’t provided with a copy of the agreement after he had signed it is also contradicted by the evidence of Mr Michaels’ solicitor that she sent a copy of the signed agreement to Mr Vidal under cover of a letter dated 1 March 2010.
Mr Vidal’s evidence in relation to the copy signed by Mr Michaels, in cross-examination, is set out below:
[Counsel for Mr Michaels] …You tried to contact [your previous solicitor] but you couldn’t get a hold of her?
[Mr Vidal] Because I didn’t have the paper.
[Counsel for Mr Michaels] Okay. Once you got the paper did you try again?
[Mr Vidal]I never get the paper. I have it because [Mr Michaels’ solicitor] give it to me. As soon we get home, [Mr Michaels] took it and he brought it to the solicitor. And the solicitor handed to him and I never saw the paper any more.
[Counsel for Mr Michaels] …I am going to suggest to you that’s not right.
[Mr Vidal]Okay, that’s what I recorded. I asked [Mr Michaels], I want to go to my solicitor because she helped me to buy my house, she helped me to buy an investment and she will explain to me. [Mr Michaels] said “no, you going to use [your previous solicitor] to sell you property”. I went with [Mr Michaels] to see my solicitor one month after I sign this paper, for me to sell my property. And I said “why I cannot go?” [Mr Michaels said “no, I already organise with [Mr K] for you to go to his office”. [Mr Michaels] went with me there and he brought the paper and put it to [Mr K] in the office. [Mr Michaels] was there and he did say “I will pay for it” and he paid with Commonwealth card.
The assertion that Mr Michaels took the signed document and kept it until he gave it to Mr K was not put to Mr Michaels in cross-examination.
In cross-examination, Mr Vidal said that, when he consulted his previous solicitor, who had acted for him on the purchase of a property, he had been assisted by a Country DD language speaking friend who accompanied him to conferences with the solicitor. He uses a Country DD language speaking accountant for financial advice and preparation of yearly accounts, tax returns and the like.
I accept the unchallenged evidence of Mr Michaels’ solicitor that she was able to converse with Mr Vidal without an interpreter. Indeed, Mr Vidal gave his evidence and was cross-examined in the proceedings without the assistance of an interpreter.
However, Mr Michaels’ solicitor was not explaining complex legal issues to Mr Vidal or interpreting the effect of documents to him.
In the course of Mr Vidal’s oral evidence I expressed, on a number of occasions, my concern that he did not correctly understand what was being put to him and I accept his evidence that his command of English is better now than it was 11 years ago.
I have no confidence that, had Mr Vidal received advice in English of the nature that is stipulated in Abrum, he would have been capable of understanding it.
I do not accept that Mr Vidal received advice as stated in the certificate of Mr K or that he understood the consequences of entering into the agreement.
The requirement of independent legal advice is an important and crucial safeguard to a person who is entering into an agreement to oust the jurisdiction of the Court to adjudicate upon property rights that have accrued by virtue of living in a de facto relationship with another person. It is also equally important that the person who proposes to enter into such an agreement understands the advice that he or she receives.
I do not accept that Mr Vidal received the advice about the effect of the agreement on the rights of that party and about the advantages and disadvantages to that party of making the agreement.
Accordingly, the agreement is not a Binding Financial Agreement.
SHOULD THE AGREEMENT BE DECLARED BINDING?
Section 90UJ of the Act provides:
90UJ When financial agreements are binding
(1)Subject to subsection (1A), a Part VIIIAB financial agreement (other than an agreement covered by section 90UE) is binding on the parties to the agreement if, and only if:
(a) the agreement is signed by all parties; and
(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and
(c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
(d) the agreement has not been terminated and has not been set aside by a court.
Note: For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995.
(1A) A Part VIIIAB financial agreement (other than an agreement covered by section 90UE) is binding on the parties to the agreement if:
(a) the agreement is signed by all parties; and
(b) one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and
(c) a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and
(d) the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and
(e) the agreement has not been terminated and has not been set aside by a court.
(Emphasis added)
Counsel for Mr Michaels submitted that it would be unjust and inequitable if the agreement were not binding because Mr Michaels did all that he was required to do to satisfy the requirements of a valid Binding Financial Agreement. There is some force in that argument.
However, I consider that the consequences for Mr Michaels if the agreement is not declared binding, that is, that Mr Vidal might bring an application for property settlement, must be weighed against the consequences for Mr Vidal of having signed away significant rights of which he was not aware without proper legal advice. Those consequences outweigh any injustice to Mr Michaels.
There is no evidence that Mr Michaels has done anything in reliance on the agreement that was to his detriment.
In the event that Mr Vidal institutes proceedings seeking an adjustment of property interests, then a court will determine, as between Mr Michaels and Mr Vidal, what is a just and equitable distribution. It was not argued that result alone would be an injustice to Mr Michaels or that such a result would be inequitable.
The agreement signed on 27 February 2010 is not a Binding Financial Agreement.
CHILD SUPPORT DEPARTURE APPLICATION
An application for a child support departure order is made pursuant to the provisions of s 117 of the Child Support (Assessment) Act 1989 (Cth). Rule 1.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides that the Child Support Registrar must be served with such an application and is entitled to intervene. No notice has been given to the Child Support Registrar.
I adopt, with respect, the reasoning of McClelland DCJ in Lesley & Lesley [2015] FamCA 894 where his Honour said:
59.Failure to serve the Registrar in accordance with the Rules is fatal to the Court dealing with the application at this time. Requiring service to be effected is not simply insisting on ritualistic compliance with the Rules for the sake of mere compliance. Non-service on a person or entity that has a statutory right of intervention is a fundamental denial of natural justice that, in the absence of urgency, prevents the Court from dealing with that aspect of the application. In Child Support Registrar & Nixon, the Full Court said:
…given the emphasis placed by the High Court in both Taylor and Allesch v Maunz on the right of a party to be heard when an order is to be made affecting that party, we accept that where a party has not been given notice of the proceedings in which the order was made, and thus not been heard on the making of the order, that that is a matter which should be given very significant weight in the exercise of the discretion to set aside the order. As his Honour did not refer to the fact that the order had been made without notice to the Registrar, it has to be assumed that he gave this fact no weight, and thus his discretion must be regarded as having miscarried on account of his failure to have regard to this important matter.
We add that we do not accept, as we understood to be submitted by the respondents, that a distinction should be drawn between a party to the proceedings as opposed to a third party.
(Footnotes omitted)
This application has not been served upon the Child Support Registrar.
The application will be dismissed.
CHILD MAINTENANCE APPLICATION
It is conceded that there is no power to make a child maintenance order where there is in force a child support assessment.
PARENTING
Prior to the commencement of the trial, Mr Michaels sought sole parental responsibility for X and that the child live with him.
Mr Michaels proposed that X spend time with Mr Vidal on alternate weekends from after school on Friday until Monday morning during school terms and for half of all school holiday periods. He proposed contact on special occasions.
Mr Michaels sought an order that Mr Vidal do all things necessary to request the Indian authorities to issue a new birth certificate for X showing Mr Michaels as a parent.
Mr Vidal also sought sole parental responsibility for X and that the child live with him.
He proposed that X spend time with Mr Michaels during school terms each alternate weekend from after school Friday until Monday morning and overnight from after school each Tuesday until Wednesday morning, a continuation of the arrangement that has been in place for the last five years. He did not propose that X spend any holidays with Mr Michaels or any of the special days such as Christmas, birthdays or Fathers’ Day.
At the commencement of the final hearing, the position of each had modified and they agreed to a suite of orders proposed by the ICL. The only matters that were left for determination was whether X would spend five days or six days in each fortnight with Mr Michaels and whether X could travel overseas.
X refers to Mr Vidal as “Papa” and to Mr Michaels as “Daddy” or “Dad”.
In April 2016, Mr Michaels and Mr Vidal were interviewed for the preparation of a Child Dispute Conference Memorandum (“the CDC”).
Each alleged that the other had perpetrated family violence. Mr Vidal alleged that Mr Michaels drank to excess. Each alleged a history of mental health difficulties in the other. Mr Vidal alleged that Mr Michaels had a history of suicide attempts. Under the heading “Future directions” the reporter stated:
•Recommend that an ICL be appointed due to serious allegations
•Evidence from police and mental health records may assist.
•There are serious allegations raised in this matter which require further careful assessment. Recommendation that a single expert report is requested to address
•Allegations of family violence and its impact upon [X]
•Allegations of serious mental health concerns and its impact upon [X]
•Allegations of [Mr Michaels’] alcohol use and its impact upon [X]
•Due to the allegations raised, Family Consultant intends to make a Child Protection Report.
...
The allegations which were made in the course of that interview have been maintained in the affidavits of each of them and in their interviews with Dr M.
THE EVIDENCE OF DR M
Dr M is a child and family psychiatrist who was appointed as the single expert in these proceedings. She has conducted interviews and prepared reports in 2017, 2020 and 2021.
In preparation for the first report, dated 23 May 2017, when X was six years old, Dr M interviewed the parties and X in April 2017 and also spoke to Mr Michaels’ general practitioner and X’s teacher.
In her summary of the current concerns of each party, Dr M wrote:
[Mr Vidal] described
1.When [X] is with [Mr Michaels], he could take [Mr Michaels’] drugs or be given drugs. Asked if [Mr Michaels] would give them to [X], [Mr Vidal] replied “he tried to kill me, could try to kill [X]”.
2.He does not know what [X] has been exposed to in [Mr Michaels’] house, where [X] will not eat. [Mr Michaels] provides spoilt fruit and old sandwiches for [X's] lunches.
3.While with [Mr Michaels], [X] has not been washed, was sent to school with dog poo on his uniform and once had his uniform on over his pyjamas. In 2015, [X] went to school in a nappy, despite being toilet trained since he was two years old.
[Mr Michaels] described
1.“[Mr Vidal] is brainwashing him to say things... [Mr Vidal] has coached and coached and coached” him.
2.[X] is dropped off at [Mr Vidal’s] friend [Ms Q’s] home around 6.30-7.00AM. [Ms Q] “screams” and drives [X] to school without having him in a child seat. In her home he watches TV until [Ms Q’s] two children get out of bed, while [Ms Q] has twice removed small laminated photographs of [Mr Michaels] and [X], which were on a ring attached to the handle of [X’s] bag. [X] was “so tired”: by the time he starts school at 9.20 he has “already done two hours”.
3. The previous week [X] had been left at school after classes were out.
4.“[Mr Vidal’s] circle of friends”, two of whom have been in gaol [...] A man who has had serious drunk driving offences often sleeps in [X’s] bedroom on a blow-up mattress.
5. “[X] sees parents who can't be in a room together... not with each other”.
6. He is isolated with [Mr Vidal] and has the same three friends.
Dr M noted that X said he wanted to change the fact that his Papa and his Dad keep fighting.
She stated that X was attached to both Mr Vidal and Mr Michaels and one of his wishes was to be “with my Papa and Dad forever”.
Dr M’s second report was prepared after she interviewed X with Mr Vidal in July 2020 when X was nine years old. Mr Michaels cancelled his appointment to attend on Dr M on 7 July 2020 because of illness and he failed to attend an appointment with Dr M and X on 3 August 2020.
By the time of the second report, X had been in counselling with Mr R who is a clinical social worker, for 18 months.
Dr M noted that, when she spoke with X in the company of Mr Vidal:
To an enquiry about any problems, worries or upsets in his family, [X] referred to a “fight” between his parents around 2015/l6 and he did not “know who to believe... they both say (the other) held up a knife and chased each other around the bench... blame each other”.
Continuing, [X] queried whether it was in 2014 that “[Mr Michaels] hit [Mr Vidal] with a hammer”. He mentioned a punch at the dinner table, when “the cops said you're a man and should defend yourself” to his Papa.
He launched into another incident (“the second time...”), talking without hesitation, as if by rote. During this monologue, [X] spoke without any verbal expression or accompanying affective reactivity.
Dr M also spoke to X alone. She assessed the child as a “confident, well regulated, healthy nine year old” and described him as “articulate”.
X explained to Dr M that he spends nine nights with Mr Vidal and five nights with Mr Michaels in each fortnight and asked if he wanted to change that arrangement he said that he wanted to “keep like it is”.
Given three wishes, X’s second wish was for:
“…the Court to stop”. To a query about the effect of Court on him and his fathers, he stated it was... “like a waste of time. My Papa says [Mr Michaels’] a troublemaker... Court a waste of time and money. Daddy wishes it would stop, he’s done nothing”.
X described Mr Vidal as, “fun, someone who can take care of me, safe, be comfortable with, makes me laugh, get out more”.
He said of Mr Michaels that Daddy and he “build cubby houses, watch movies, stay home more” and with him he felt “safe, happy, comfortable”. He said Daddy used to take him to swimming and soccer, but this stopped because of the coronavirus.
Asked which parent hits the hardest, X said “Papa, not often... sometimes on the back or arm. Daddy hits stuff when he gets angry” and he nominated Mr Vidal as the angriest person.
X was asked about an event where it was alleged his head was between Mr Michaels’ legs and X said “I don't remember. My Papa said that was Daddy two years ago. He told me three to five months ago”.
X told Dr M that, when he was in the care of Mr Michaels, he did not play soccer or go swimming and did not have sleepovers with friends. With Mr Vidal, X said he has sleepovers with friends and talks to family on the telephone as well as play dates with “lots and lots of friends”.
X told Dr M that he preferred the pattern of activities with Mr Vidal to the lesser activities with Mr Michaels.
Dr M reported:
Following my reference to [Mr R] saying he (X) worries about Daddy, [X] stated he did not remember what he told him before reporting he sometimes worried about both of his parents. He referred to “[Mr Michaels]” having headaches and Papa did “not like being in the same room as my Dad”.
He volunteered they saw another doctor last year because he “got distracted a lot in class”. At the one appointment when he saw this paediatrician, he sat between his fathers. He reported, “when Papa said something to the doctor, Dad said don't believe his fibs. Papa (then became) annoyed and told the doctor not to believe [Mr Michaels]”.
X told Dr M that the incident made him “confused and worried”.
Dr M spoke with X’s teacher and reported:
[Mr S] reported academically [X] is above average and gifted in Maths. His behaviour sometimes required correction and [Mr S] believed a further paediatric review of X’s attention difficulties was required.
X has never said anything negative about either parent and [Mr S] had no welfare concerns. His lunches seem fine.
In his interview alone with Dr M, Mr Vidal told Dr M about, “subpoenas to the ‘mental clinic’, police and GP, as well as the history of how [Mr Michaels] tried to kill himself and [Mr Michaels’] alcohol problems”. Dr M noted:
Reporting trying to help [Mr Michaels] before [X] was born, [Mr Vidal] described their dispute over the child's name. When he had not agreed to [Mr Michaels’] suggestion of [“X”] ([after Mr T]), [Mr Michaels] tried to kill himself – he “took pills”, dressed in his dead former partner [Mr T’s] clothes and held the container holding [Mr T’s] ashes.
Questioned about the details of this event, [Mr Vidal] was adamant they were correct. He reported the ambulance and police came and took photographs of [Mr Michaels] in bed holding the ashes. He was told by police to get a family member to come and take them and [Mr Michaels’] nephew came. He said he did not know why these photographs have not been made available by police.
Discussing his current concerns about [X], [Mr Vidal] referred to his concerns [X] was at risk in [Mr Michaels’] care because of previous behaviours by [Mr Michaels] (which he experienced) and because of more recent reports from [X] about [Mr Michaels]. [X] has said [Mr Michaels] slept during the day and he was alone in the house.
[X] also mentioned [Mr Michaels] was vomiting a lot but… had stopped urinating on the kitchen floor. [Mr Vidal] alleged [Mr Michaels] urinated on the floor throughout their relationship when he was intoxicated and used a lot of medicine. In June 2020, [X] reported [Mr Michaels] was upset with him and locked him in the car for about ten to fifteen minutes at a shopping centre.
Dr M reported:
Asked if he had any current concerns about [Mr Michaels], [Mr Vidal] referred to [Mr Michaels] failing to pick up [X] on twenty-one occasions, opining he believed this happened because [Mr Michaels] was “drunk”. He mentioned [Mr Michaels’] alleged risky behaviours, sleeping during the day, locking [X] in a car and possibly being intoxicated while [X] was in his care.
Following my comments [Mr Michaels’] liver function tests, full blood tests and CDT results have not shown evidence of harmful alcohol use, [Mr Vidal] stated blood tests only stay positive for twenty-four hours. From further discussion, it seemed he was referring to police breath and blood tests and had not understood how they differ from the medical tests.
Adamant [Mr Michaels] drank three to four bottles of alcohol “everyday” while they were together, [Mr Vidal] said if [Mr Michaels] has stopped, he was “pleased”. He added one “can’t just stop” and reiterated he saw [Mr Michaels] drinking these excessive amounts.
Referring to [Mr Michaels’] “mental problems”, he asserted [Mr Michaels] was diagnosed with Bipolar Disorder and had been “talking with [Mr T] for one and a half years”. To a query about this diagnosis, [Mr Vidal] insisted it was the case and, while he did not know who made the diagnosis, indicated it occurred while [Mr Michaels] was in the [V Clinic].
He then described an incident, when he had a car accident near the Clinic. After [Mr Michaels] came to him, [Mr Michaels] began crying because of the proximity to the Clinic and pointed out a person he said was his psychiatrist.
Questioning if “what he did to me, (was he) now doing to [X]?”, [Mr Vidal] stated he wanted to make sure his son was OK with [Mr Michaels]. He added, even though [Mr Michaels] was not the biological father, he has never wanted [X] to stop seeing him. He asked if it was OK for a person who has tried to kill himself to care for a child and seemed surprised when told “yes, if the person was now stable”.
Dr M stated:
Discussing why, during the family interview, he confirmed [X's] statement he did not want [X] to stay overnight with [Mr Michaels], [Mr Vidal] stated on the Tuesdays he was with [Mr Michaels], there was a lot of trouble with his lunches, he has gone to school with his pyjamas under his uniform (not for years), his uniform has been dirty (three or four times this year) and [Mr Michaels] once sent him to school in the incorrect uniform (as [Mr Michaels] has not bought him any uniforms). [Mr Vidal] said if he took [X] to school every day he can take care of his uniform and food.
Mr Vidal told Dr M that he had not sought to stop overnight time between X and Mr Michaels but that how much time X should spend with Mr Michaels was “a hard question to answer”.
Mr Vidal told Dr M that he feared Mr Michaels might kill X because Mr Michaels had said to him “If X’s not for me, he’s not for you”. Mr Vidal said that Mr Michaels regarded X not as his son but as “a reincarnation of another person”.
In relation to the failed appointments with Mr Michaels, Dr M stated:
[Mr Michaels’] failure to attend the 3 August appointment without explanation is clearly a cause of concern. Arranging this assessment resulted in several telephone calls between Mr Michaels and myself. During the first, to evaluate his COVID risk before the 7 July appointment, he disclosed he and [X] were unwell earlier in the week and had negative COVTD tests. He assured me they were recovering from their symptoms and the appointment was confirmed.
On 7 July, [Mr Michaels] left a message cancelling the appointment because he had been unwell overnight. When contacted, he was sobbing and apologetic and was advised to consult with his GP. Telephoned a week later, he stated he had experienced an asthma attack.
On 3 August, [Mr Michaels] told [X] they would see each other at the rescheduled appointment when [X] was dropped at school. Two hours later he left an undecipherable voicemail message on my telephone and did not return two later requests to call [Ms U]. Nor did he contact [Mr Vidal], who brought [X] to the appointment.
When contacted several days later, GP [Dr W] was surprised at his lack of contact (“unlike him”) and noted that [Mr Michaels] had consulted another GP in the practice at 1.00 am on 3 August. He presented with insomnia and was prescribed Stilnox. [Dr W] reported [Mr Michaels’] alcohol use was not currently excessive and his last CDT and LFTs (September 2019) were normal.
Telephoned on 12 August, [Dr W] stated on 10 August he learnt [Mr Michaels] was admitted to [Y Hospital] on 8 August after a fall. He was found to be hyponatremic, probably as a side effect of his diuretic medication, and had injuries from the fall.
Discussion with [Y Hospital] resident [Dr Z] on 19 August confirmed [Mr Michaels] was admitted on 8 August with mild confusion (which quickly resolved) and a fracture dislocation of his shoulder, which was reduced under general anaesthetic. He was being discharged to [BB Hospital].
Dr M spoke to Mr Michaels by telephone on 31 August 2020 when he was an inpatient in hospital receiving treatment to prevent further injury to his shoulder. Dr M stated:
Discussing his failure to attend on 3 August, [Mr Michaels] reported he was in a lot of pain which, he believed, arose from some vertebral fractures caused by his osteoporosis. He explained not mentioning his pain to the GP he saw that morning by saying he did not want to spend time talking about it.
Mr Michaels told Dr M that he had spoken to X and asked him where he wanted to live. X told Mr Michaels that he wanted to stay at his current school with his friends. Dr M noted:
Crying, [Mr Michaels] said he knew at this time [X] has to be with [Mr Vidal] because of his hospitalisation and [X’s] wish to be with his friend.
Dr M continued:
[Mr Michaels] again raised the alleged issues of [Mr Vidal] extorting large sums of money from him; not telling him he was dishonourably discharged from the [defence force] possibly evading Tax; once holding his cousin hostage in [Country DD]; drinking and gambling with his friends; [Mr Vidal’s] mean behaviours towards his employees and being violent towards him during their relationship. He asserted [Mr Vidal] was “a thug and bully”.
Mr Michaels told Dr M that he was anxious that, if he didn’t go to the Court, Mr Vidal would tell X that he [Mr Michaels] didn’t want him. He said he wanted to spend as much time as possible with X including half of the school holidays.
Dr M reported her conversation with Mr R:
Anxiety has also been questioned in [X], who has counselling with [Mr R]. When contacted, [Mr R] indicated he believed [X’s] difficulties related to his parents’ high conflict, with [X’s] main worries being [Mr Michaels’] health and his fathers’ relationship.
Elaborating, [Mr R] thought [X] feared confrontation between his parents because of their past violence and worried about “Papa” being hurt. [X] experienced tensions going between them but had not expressed any fears for himself.
[Mr R] has not worked with the parents and has not seen [Mr Michaels]. He commented on their need for strong boundaries. At this stage, it would be very appropriate for [Mr R] to address [X's] concerns with both parents and assist them to provide [X] with the support and reassurance he needs. His development will be negatively impacted by their conflict.
[X] has not referred to [Mr Michaels’] drinking and, while [Mr Michaels] seemed to sleep a lot, [Mr R] believed it was not to the point of [X] being neglected.
Still wanting time with both parents, [X] was clear he enjoyed the different experiences they provide for him. Home based (perhaps more so because of COVID and changes in the community) with [Mr Michaels], [X] takes comfort in sleeping with him, playing with him and the dog and having a lot of screen time.
Scared of the dark, [X] also sleeps with [Mr Vidal], who provides him with more contact with family and friends and is apparently more attentive to his homework (which has been a source of conflict).
Dr M commented:
Of note was [X's] preference not to have the more lengthy holiday time with [Mr Michaels]. While it seems he enjoys the break from [Mr Vidal’s] busy schedule, he currently did not want the more insular time with [Mr Michaels] to extend to a week (this time preference might change when he returns to his soccer and swimming).
It is more age appropriate for [X] to be strengthening his relationships with peers, their families and his family and to be outside exercising rather than being home based with a parent and screens for extensive periods.
This balance needs to be developed by the parents working with [Mr R], particularly given [X] is sleeping with them. He must learn to be able to healthily separate and individuate from them in the years ahead.
Dr M stated that, if Mr Vidal’s allegations about Mr Michaels’ failure to pick up X on 21 occasions; standing outside Mr Vidal’s flat for lengthy periods; not supporting X’s counselling with Mr R; not contributing to child support; not responding to an offer of extra time and locking X in the car are factual, they indicate a lack of appropriate child focus by Mr Michaels. She stated, “If Mr Michaels repeatedly failed to collect X because he was unwell, then he must honestly review his capacity to spend time with X, given his age and health”.
However, Dr M said:
However, I continue to have concerns about the veracity of some of [Mr Vidal’s] allegations, for example his certainty a diagnosis of Bipolar Disorder was made on [Mr Michaels] (no medical record of this diagnosis available). He incorrectly reported to the school counsellor [Mr Michaels] had months long hospital admissions in the past.
Dr M said:
It is understandable [Mr Vidal] has not been reassured [Mr Michaels’] excessive alcohol use and suicidality are past, not current, behaviours if [Mr Michaels] has been as unpredictable as he alleged. [Mr Michaels’] failure to attend without explanation the 3 August appointment for this assessment supports his belief [Mr Michaels] can be erratic.
Dr M concluded:
[X’s] wish is to continue to live with [Mr Vidal] and attend the same school as his friend. These wishes need to carry significant weight, given both parents have worthwhile relationships with him and have positive and negative aspects to their parenting of him.
Unfortunately they do not work together to further [X’s] interests. However, I would be reluctant to support one of them having sole parental responsibility as it is likely the other parent’s opinions would be dismissed.
[Mr Michaels] appeared to be mindful of the bigger picture for [X], as was evident in his consideration of [X’s] secondary school being reputable, rather than just convenient for the parents. He has been supportive of [X’s] interests and the games they play together.
Although he clearly mistrusts [Mr Vidal], he has left him to carry the majority financial responsibility for [X], as well as transporting him to see [Mr R]. I am very concerned about his unclear reasons for missing his appointment on 3 August, his emotional distress from an asthma attack on 7 July, his current difficulties, [X’s] description of their current activities together (suitable for limited periods only), and [Mr Vidal’s] allegations.
I question his judgement when he apparently accepted a prescription on 3 August from the GP of Stilnox, despite his former partner [Mr T’s] dependency and death from Stilnox.
Given all of the above, I can no longer support [X] living with [Mr Michaels]. However, he must continue to spend significant amounts of time with him. There possibly may be less conflict between the parents if [X] does not have the midweek overnight time with [Mr Michaels]. Instead one afternoon a week they could spend some hours together after school.
[Mr Vidal’s] parenting capacity has been revised since 2017 as he and [X] appear to have many social supports in the community. He has ensured [X] kept in contact with [Mr Michaels’] extended family. He clearly wanted to return to visit [Country DD] with [X].
He continues to provide financially, supports [X’s] counselling and clearly has a warm and affectionate relationship with [X]. He must be open to [X's] need for ADD medication, if recommended by Dr [H].
Change in the parental discord has not occurred. Both parents need to be aware of the effects this has on [X]. They need to work with [Mr R], to ensure their difficulties do not further harm the son they both love. They must help [X] to feel secure, so he starts sleeping independently, and reflect with [Mr R] on [X's] needs during adolescence.
Dr M recommended that X live with Mr Vidal and spend alternate weekends with Mr Michaels.
Dr M’s most recent report is dated 9 September 2021. The updated report was requested by Mr Michaels because he had not participated in the interviews in 2020.
Dr M interviewed Mr Michaels alone and with X and spoke to X’s paediatrician, school teacher and to Mr R.
Dr M reported:
Alleging [X] was “terrified” of [Mr Vidal], [Mr Michaels] gave an example of how, when [X] dropped his iPad, he became anxious and wanted it to look the same after it was repaired so [Mr Vidal] would not find out. On another occasion, in 2020 when his school sent home letters of complaint about his behaviour, [X] had not wanted one to be sent to [Mr Vidal].
Reiterating [X] was “terrified” and “scared of Papa”, [Mr Michaels] opined [Mr Vidal] was “a very angry person”, who punished [X] by sending him to his room, not allowing [X] to sleep with him and allegedly once did not speak to [X] for three days. He referred to [Mr Vidal] “force feed(ing)” [X] before providing a detailed description of mealtimes in his own home, exclaiming “we love food... to be enjoyed”.
…
Asked about feedback from [X’s] counsellor [Mr R], [Mr Michaels] alleged [Mr R] was “shocked” by “[Mr Vidal’s] lies and fantasies”. He opined [Mr Vidal] “flips, accuses me of what he did”, adding he learnt from his “reading” [Mr Vidal] was “a narcissist, had Cluster D (he could not explain this) and Napoleon Syndrome”.
Mr Michaels asserted that Mr Vidal was “toxic” and that members of his family who had sworn affidavits in support of Mr Vidal’s case did so under his influence.
Since the 2020 report, Mr Michaels had engaged with Mr R “multiple times”.
Dr M assessed X and stated:
[X] presented as a contained, thoughtful, healthy ten year old with minimal affective reactivity.
Discussing his wishes for his living arrangements, [X] without hesitation stated he knew what he wanted. He said to “keep how it is” during school term and in the holidays. He correctly reported the current routine and explained his preference by saying it had “been like this since me and Papa left so (I’m) use to it”.
Volunteering he was wondering if he should change the arrangement, [X] stated “because this will affect what I’m doing and so I want to make sure it’s what I want to do”. To a query how uncertain he felt, he replied “I’m sure” the arrangement remaining the same was what he wants.
[X] agreed to discuss the positives and negatives about his parents’ homes. He described:
“Papa’s home”
i) positives
•get to see lots of friends nearby – go to the park and stuff
•Papa helps with things like homework
To a query about other activities they do together, he mentioned doing puzzles and watching a quiz TV programme, Papa “sometimes plays with me on my devices” or they go to the park/play with the soccer ball, watch movies together.
To enquiries about the nature of their emotional engagement, [X] responded “most of the time just laugh, happy. When I’m in trouble (at school) he gets angry”, which [X] is aware of because of “the tone of his voice does some things angrily (for example slam a door) screams at me, swears”.
ii) negatives
•their apartment was a “bit tight, squeezy”
•“just me and him and our birds, kind of lonely”
•sometimes his father is “stressed... very quiet” because he does not have enough money
“Daddy’s home”
i)positives
•go to the park more often - kick a ball, soccer training, walk the dog, go on the equipment
•swimming lessons
•garden sometimes
•watch movies together
•go to restaurants, theatres
Asked about their interactions, he replied they are “happy, laugh... sometimes get into arguments” because they are “annoyed” at each other and Daddy gets angry sometimes.
ii)negatives
•“sometimes he hits me” on the shoulder or back, “not hard, not hurt... very few times”. When “I’m not focused, he’s annoyed. Sometimes I hit him back”, both are “frustrated”
•“arguments, raised voice. He does swear but not at me”. About three times he “called me bloody stupid, said I piss him off”
•“once he left me in the house” and went for a walk with […] the dog
•“talked bad about Papa […]”, once called Papa fat.
X told Dr M that Mr Michaels calls him when there are “bad things” in the news about Country DD and says “Don’t tell Papa”. Mr Michaels told X that he hated being in Country DD and was too scared to go to the shops because there were people in the streets “killing others”.
X told Dr M that he worried about both parents and described being relaxed and comfortable in both homes. He reported that both of his parents get angry and can stay angry for more than 24 hours.
He told Dr M that he “felt happy about his life” but that he was worried about what his parents would say when they had read what he told her.
X said that he can talk to Mr R about his feelings. X said that he knew Mr Michaels “wanted to swap the time around” but repeated that he wanted to stay with Mr Vidal. Dr M wrote:
Invited to send his own Message to the Judge, [X] decided not to. To a query, he stated he did not want to talk to Dad about the interview because “he wouldn't like what I said about him”. He confirmed everything he said was true.
Dr M spoke to X’s teacher who said she had no concerns about him and that there was no evidence he was being neglected. Dr M noted:
She described [X] as “clever, capable, pushes boundaries, can be rude and defiant” as he “argues a lot... answers back... disrespectful”. She held no academic concerns for him (“can sit and focus... cluey”) and he was “socially OK” with his peers.
Dr H who is X’s paediatrician described his first assessment of X in June 2019. Dr M reported:
First assessing [X] on 19 June 2019, [Dr H] described how, during the interview, [X’s] parents had a “slinging match” in his office, when they made multiple allegations about each other and he thought there was going to be violence.
Forming an opinion that [X] had an Attention Deficit Disorder (ADD), [Dr H] recommended medication, which [Mr Michaels] agreed to but [Mr Vidal] did not. When contacted, [Dr H] stated he would only commence treating [X] if “all agreed... parents and teacher”.
Of her conversation with Mr R, Dr M reported:
[Mr R] reported that, since our contact in 2020, he saw [X] with his parents, alternating each parent at appointments. The parents continue to make allegations about each other and, according to [X], they say angry things about the other.
Both fathers appear “dedicated to [X]”, with [Mr Michaels] connecting with him through “nice activities”. [X] was happy holidaying with [Mr Michaels] in [City AA]. [Mr R] believed [X] had a “reasonable relationship” with both of them and there were “benefits” to him spending time with both.
Questioning the “complexity of change for [X]”, [Mr R] commented on [Mr Vidal] being his primary carer since the parents separated. He opined traffic between their two homes was “very bad” during school times, making a week about living arrangement not feasible, particularly in the context of the secondary schools each parent has proposed for [X].
Dr M was asked to comment on the mental state of each parent. She wrote:
I am unaware of any current acute issues with [X’s] parents’ mental health. [Mr Michaels] reported his full recovery from his physical and mental health problems present around the time of the previous assessments. He continued a low dose on an antidepressant which should not impair his parenting.
Last year’s events and his past psychiatric history indicate he must be vigilant about medication and mental health reviews.
[Mr Michaels] remains intensely preoccupied with having [X] restored to his majority care, while [Mr Vidal] persisted (at the previous assessment) in making unsubstantiated allegations about [Mr Michaels’] mental health. Both allege the other is a threat to [X].
Dr M was also asked to comment on X’s mental health needs and stated:
[X] would benefit from ongoing sessions with [Mr R], a neutral person who can assist him to process the different views and behaviours of his parents and reflect on his own actions.
[X] needs his parents to genuinely engage with [Mr R], to think about his development and their parenting, particularly given the approach of adolescence.
CONSIDERATION
The primary considerations as outlined by s 60CC of the Act provide:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Having regard to the ambit of the dispute, Dr M’s evidence was that either proposal in relation to the time spent with Mr Michaels during school term time was adequate to maintain X’s relationship with him, that relationship being well established.
In relation to the risk to X from being exposed to family violence, Dr M wrote in her most recent report:
Given the ongoing significant conflict between [X’s] parents, which he is not protected from, [X] has already experienced developmental adversity. Adverse childhood experiences (ACEs) can have negative, lasting effects on health, wellbeing (behaviours) and opportunity (life potential) as “these exposures can disrupt healthy brain development, affect social development, compromise immune systems, and can lead to substance misuse and other unhealthy coping behaviours”
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;
Dr M stated:
[X] is a bright, articulate ten year old who can be assertive and may become defiant and disrespectful (feedback from his current teacher). He stated a clear preference for the current living arrangements (living with [Mr Vidal] and spending five non-consecutive nights a fortnight with [Mr Michaels]) to continue during term time and to extend into school holidays (not the current week about during holidays).
At interview, [X] seemed thoughtful about how change in his residency would affect “what (he’s) doing”. His resolution was the same as when he was seen in July 2020 – he did not want change. His views should be given weight by the Court and his parents, although at ten he would not have the cognitive and emotional maturity to consider all factors which contribute to his long-term best interests.
I accept the evidence of Dr M.
X has made his views clear since at least July 2020 and his position has solidified according to Dr M’s December 2021 report. X has not suggested that he would like more time with Mr Michaels although his comment to Dr M that “he did not want to talk to Dad about the interview because ‘he wouldn’t like what I said about him’”, suggests that X has done so with considered understanding of the hurt this will cause to Mr Michaels.
The burden of living with, and dealing with, the blatant hostility between his two carers has been borne by X for more than six years. He will start high school in 2023.
Absent evidence that the current parenting arrangement for X has any detrimental effects on his welfare, considerable, if not dominant, weight must be given to his views. Further, before making changes to the arrangements which X says are in accordance with his wishes, I would need to be satisfied that there would be no detrimental effects on X of doing so.
After hearing the evidence of Dr M, both of the parents and the ICL adopted her evidence that, when X starts high school, it would be appropriate that the days he spends with Mr Michaels, whether five or six, are spent in a block period.
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
Dr M assessed X as having a “worthwhile” relationship with each of his parents and, apparently, a positive relationship with extended family members and friends.
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Mr Michaels is currently assessed to pay no child support for X. He has paid for medical insurance and medical and dental expenses for X and for some fees associated with schooling. Mr Vidal has borne the majority of the costs of X’s care and is currently assessed to pay child support to Mr Michaels.
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Dr M stated:
Change will destabilise [X’s] current routines and expectations of contact with his friends, which appear to be very important to him. He consistently refers to being “use to” his current lifestyle as the reason for not wanting change to the living arrangements. He does not want to choose between his parents.
Not supporting his preferences may result in [X] feeling not heard/what he wants does not count, with consequent negative impacts on his self-esteem and trust in adults in authority (which includes his parents).
There is no ascertainable benefit to X in increasing the time he spends with Mr Michaels by one night each fortnight. I accept that to do so might be detrimental for the reasons Dr M gives.
Ms L deposed to a warm and loving relationship between her family and Mr Vidal and X which has continued after the separation of Mr Michaels and Mr Vidal. She deposed that her family has “very limited” contact with Mr Michaels whom she had not seen for “some years”.
the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs;
Dr M stated:
Both parents provide for his intellectual needs, with [Mr Michaels] in particular exposing him to a wide range of arts and cultural activities. Presumably [Mr Vidal] has included [X] in [Country DD] cultural activities.
[X’s] behaviours in the classroom are a concern because he becomes disrespectful to his teacher and peers. His psychological needs are not being adequately met if these behaviours become entrenched ways of dealing with things he feels challenged by.
Undoubtedly, the manner his parents communicate with each other around has contributed to any propensity in [X] to not be civil to others. They have been poor role models. Of note, during his adolescence it can be expected he will become more testing of limits and his parents will need established, constructive, authoritative techniques to manage him, not acting out their anger, as appears to happen currently.
I accept the evidence of Dr M that neither parent has been prepared to modify his behaviour so as to protect X from the hostility between them that has been marked from the time of the CDC and throughout the three sets of interviews with Dr M. X’s counsellor and his paediatrician have both commented on the level of hostility between the parents displayed in front of X and X has spoken to Dr M of his distress at their hostility. Each appears to involve X in criticisms of the other parent although I note that in the interviews for the 2021 report by Dr M, X reported Mr Michaels criticising Mr Vidal but not Mr Vidal criticising Mr Michaels.
Mr R told Dr M that X reported to him that both of his parents said angry things about the other.
In her 2020 report, Dr M said of X:
…He clearly was well aware of the parental discord and legal proceedings, with both parents apparently open about their negative opinions about the other. This causes distress in [X] and is detrimental to his development.
Also in her 2020 report, Dr M reported Mr R as saying that X’s difficulties related to the high conflict between his parents and that one of his main worries was the relationship between his parents. She commented that X’s development will be negatively impacted by the conflict between his parents. Dr M stated:
Change in the parental discord has not occurred. Both parents need to be aware of the effects this has on [X]. They need to work with [Mr R], to ensure their difficulties do not further harm the son they both love. They must help [X] to feel secure, so he starts sleeping independently, and reflect with [Mr R] on [X's] needs during adolescence.
Despite these clear warnings from Dr M and from Mr R about the effect of their conflict on X, it would appear that neither parent is either willing or able to modify his behaviour for the sake of X’s well-being.
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;
Mr Vidal is from Country DD and has extended family in Country DD. He would like to be able to travel to Country DD with X. The evidence does not suggest that, in the care of Mr Michaels, there will be any interaction with Country DD culture and it is of some concern that X reports Mr Michaels speaking negatively about Country DD to X.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
In her 2021 report, Dr M stated:
The allegations each parent made about the other raised concerns about how child focused they are able to remain…
Both parents continued to raise their allegations as recently as the 2021 interviews with Dr M.
Dr M is concerned that, although his paediatrician has recommended that X take medication for Attention Deficit Disorder (“ADD”), Mr Vidal has refused to allow it. This issue has now been addressed by the consent orders.
any family violence involving the child or a member of the child’s family;
Dr M stated:
I have referred to the fact ACEs can have lasting effects on a child’s health, behaviours and life potential. Ongoing conflict between [X’s] parents will undermine his sense of safety, stability and bonding. He will not learn how to manage conflict in his relationships from them.
Nothing that occurred in the hearing of this matter gives me any confidence that either Mr Michaels or Mr Vidal understands the effect on X of their behaviour towards each other and the effect of their involvement of X in their hostility.
Since this has been made entirely clear by both Dr M and Mr R, since at least 2017, sadly for X, nothing that I say is likely to produce any different result.
CONCLUSION
I accept that there are benefits for X of spending more time with Mr Michaels but those benefits are outweighed by other considerations.
Dr M said that when X goes to high school he will want to spend more time with his peers and have more commitments involving his friends. Those friends and peers are located in the area where X lives with Mr Vidal and his commitments are likely to be in that area as well.
Dr M said:
[T]hat’s a valid reason for a child to stay more time in one household where the friendship groups are and where there’s ease of connection with them, as opposed to being quite a distance.
Mr Michaels’ case is that the travel time from his home to X’s high school will be about 45 minutes. Mr R, in conversation with Dr M, suggested that, on some occasions, the time may be an hour. Travel to school of that length, whether it be 45 minutes or an hour, may be burdensome to X if he feels that travel time is time keeping him away from his friends. It is desirable to limit the number of days that X has to travel.
X has very clearly said that he does not want more time with Mr Michaels. Dr M described X’s views as “a quite mature reflection”.
I will order that, from the start of Term 1 in 2023, X will spend five consecutive nights in the care of Mr Michaels in each alternate week of the school term.
OVERSEAS TRAVEL
Although neither Mr Michaels nor Mr Vidal sought orders relating either to the facilitation or restraint of overseas travel, it was clear throughout the proceedings that this was an issue to be determined and each parent was cross-examined about it. Further, in the ICL’s Minute of Orders, the ICL sought orders to facilitate overseas travel.
For the avoidance of doubt, leave was granted to counsel for Mr Vidal to make an oral application for orders to facilitate travel.
Mr Vidal would like to be able to take X to Country DD to spend time with his extended family there. He does not oppose X travelling overseas with Mr Michaels.
Mr Michaels opposes any overseas travel for X on the basis, he says, that Mr Vidal would abduct X and not return from Country DD. He opposes the removal of X’s name from the Family Law Watchlist.
There is little evidence to support Mr Michaels’ assertion that X is at risk of abduction. Mr Vidal agreed that he had said to Mr Michaels when they were together “You will spend the rest of your life wondering what X looks like” because he was scared.
Country DD is a signatory to the Hague Convention in relation to child abduction as is Australia.
Mr Vidal has lived in Australia since 1997, some 25 years. He runs his own business. He has family and friends in Australia. He is an Australian citizen.
X is an Australian citizen.
In cross-examination by counsel for the ICL Mr Vidal said that he wanted to take X to Country DD during school holiday periods but that he wanted to live in Australia. He envisioned travelling to Country DD for a period of weeks, not months, so that X would know his family in Country DD and experience the culture. He agreed that he would only be able to travel during school holidays when the orders provided for X to be with him.
Since the orders that will be made about the time X spends with each parent are the orders that Mr Vidal proposes, there is no reason to suppose that he will remove X from Australia to frustrate those orders.
In cross-examination by counsel for the ICL, counsel suggested to Mr Michaels that there might be benefits for X of a holiday with Mr Vidal in Country DD and he answered “No”. Counsel then asked, “You don’t think that him having contact with Mr Vidal’s friends and relatives in another country may be beneficial to X?” and he answered, “that would be, but he would also lose me”.
Mr Michaels maintained that he does not believe such a trip would be a holiday and that X would never be returned if he went to Country DD.
I do not accept that there is any objective basis for Mr Michaels’ asserted fears.
There is a real risk of further litigation if no order is made. Counsel for Mr Michaels submitted that the proper course was to leave X on the Family Law Watchlist and that either parent could, if they could not agree on overseas travel, make a fresh application. Section 60CC(3)(l) of the Act emphasises the benefit of making an order that would be least likely to lead to further proceedings and it is highly unlikely that Mr Michaels will ever consent to X’s travelling to Country DD, thus making it likely that there would be further proceedings.
The orders will permit both Mr Vidal and Mr Michaels to travel overseas with X during school holiday periods and for them to do whatever is required to obtain a passport for X.
I certify that the preceding one hundred and eighty-five (185) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 21 April 2022
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