FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Raakel & Raakel [2024] FedCFamC1F 156
File number(s): BRC 7555 of 2021 Judgment of: HOGAN J Date of judgment: 15 March 2024 Catchwords: FAMILY LAW – PARENTING – Where the mother seeks for the child to live with her and spend time with the father – Where the mother seeks a moratorium of two months – Where the father seeks for the child to remain living with him and spend time with the mother – Where there has been significant parental conflict – Where the child has a resistance to spending time with the mother – Where the mother contends the father has alienated the child – Where there have been significant environmental changes for the child, including international relocation – Where the mother has spent time with the child in accordance with consent orders made in April 2023 – Where the child is to continue to live with the father and spend time with the mother – Where an order for equal shared parental responsibility is in the child’s best interests Legislation: Family Law Act 1975 (Cth) Cases cited: Banks & Banks (2015) 93-637; [2015] FamCAFC 36
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Morden & Coad [2019] FamCAFC 233
U v U (2002) 211 CLR 238; [2002] HCA 36
Vigano & Desmond (2012) FLC 93-509; [2012] FamCAFC 79
Division: First Instance Number of paragraphs: 240 Date of last submission/s: 10 May 2023 Date of hearing: 11, 12, 13, 14 and 31 October 2022; 1 & 2 November 2022; 9 December 2022; 17 April 2023 Place: Brisbane Counsel for the Applicant: Ms Pendergast Solicitor for the Applicant: Barry Nilsson Lawyers and by way of written submissions sealed on 2 May 2023 and 10 May 2023 Counsel for the Respondent: Ms Fraser Solicitor for the Respondent: Australian Family Lawyers Qld – Brisbane and by way of written submissions sealed on 2 May 2023 and 10 May 2023 Counsel for the Independent Children's Lawyer: Mr Taylor Solicitor for the Independent Children's Lawyer: ELR Law ORDERS
BRC 7555 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RAAKEL
Applicant
AND: MR RAAKEL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
15 MARCH 2024
IT IS ORDERED BY WAY OF FINAL PARENTING ORDER THAT:
1.All parenting plans and previous parenting orders are discharged.
2.The mother and the father have equal shared parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)) for the child, X, born 2011 (“the child”) including decisions regarding:
(a)the child’s education, both current and future; and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health and mental health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for her to spend time with a parent.
3.In the exercise…
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CaseChat Overview and Summary
The primary legal issue the court had to decide was the allocation of parental responsibility and the specific parenting arrangements that would be in the child's best interests. This involved considering the child's need for stability, the parents' ability to co-parent effectively, and the impact of any proposed arrangements on the child's well-being. The court also had to address the mother's request for a two-month moratorium on spending time with the father, the father's request for the child to remain living with him, and the overall environment that would best support the child's development and relationship with both parents.
The court found that an order for equal shared parental responsibility was in the child's best interests. The arrangement included detailed provisions for the exercise of parental responsibility, day-to-day care, and specific time-sharing arrangements between the parents. The court determined that the child should continue to live with the father but spend time and communicate with the mother under specific conditions. The order included provisions for special occasions, holidays, and other times when the child could spend time with the mother. The court also mandated that the parents consult with each other, use communication tools, and engage in family dispute resolution to facilitate joint decision-making. Additionally, the court imposed restrictions on the parents' conduct to protect the child's relationship with both parents and ensure a stable and respectful co-parenting environment.
The final orders discharged all previous parenting plans and orders, established equal shared parental responsibility for major long-term issues, and detailed specific arrangements for the child's living situation, time-sharing, communication, and special occasions. The court also included provisions for international travel, the maintenance of the child's passports, and the sharing of medical and school information between the parents. The orders emphasised the importance of respecting the child's relationship with both parents and avoiding conflict in the child's presence. The court's decision aimed to provide a structured and supportive environment for the child while addressing the parents' respective needs and the child's best interests.
Orders
Orders of the court
BRC 7555 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS RAAKEL
Applicant
AND:
MR RAAKEL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
15 MARCH 2024
IT IS ORDERED BY WAY OF FINAL PARENTING ORDER THAT:
1. All parenting plans and previous parenting orders are discharged.
2. The mother and the father have equal shared parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)) for the child, X, born 2011 (“the child”) including decisions regarding:
(a) the child’s education, both current and future; and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health and mental health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for her to spend time with a parent.
3. In the exercise of Order 2, the parents shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a) each parent shall inform the other parent about the decision/s proposed to be made in writing; and
(b) the other parent must respond in writing to the requesting parent within seven (7) days informing them of their views about the decision/s proposed to be made; and
(c) each parent must make a genuine effort to come to a joint decision with the other parent; and
(d) if a joint decision is unable to be made then the parents shall attend with a Family Dispute Resolution Practitioner (at equal shared cost) in order to try and reach a joint decision.
4. Notwithstanding the provisions of the above orders:
(a) the father shall be responsible for the day-to-day care, welfare and development of the child at all times when the child is living with, or spending time with, him; and
(b) the mother shall be responsible for the day-to-day care, welfare and development of the child at all times when the child is living with, or spending time with, her.
5. The child shall live with the father.
6. The child shall spend time and communicate with the mother at all times as may be agreed between the parents in writing, but failing agreement:
(a) during school terms:
(i) in week 1: from after school or 3:00 pm until 7:30 pm Wednesday; and
(ii) in week 2: from after school or 3:00 pm Friday until before school or 9:00 am Monday.
(b) during the school holidays at the end of Term 1 in 2024:
(i) in week 1: from after school or 3:00 pm until 7:30 pm Wednesday; and
(ii) in week 2: from after school or 3:00 pm Friday until 5.00 pm on Tuesday.
(c) during the school holidays at the end of Term 2 in 2024:
(i) in week 1: from after school or 3:00 pm until 7:30 pm Wednesday; and
(ii) in week 2: from after school or 3:00 pm Friday until 5.00 pm on Wednesday.
(d) during the school holidays at the end of Term 3 in 2024:
(i) in week 1: from after school or 3:00 pm until 7:30 pm Wednesday; and
(ii) in week 2: from after school or 3:00 pm Friday until 5.00 pm on Thursday.
(e) during the school holidays at the end of Term 4 in 2024: for half of the school holidays, with such time to occur during each odd numbered week of the holidays, commencing from 5.00 pm on the Sunday immediately after the conclusion of the school term until 5.00 pm on the following Sunday and each alternate week thereafter;
(f) commencing with the school holidays at the end of Term 1 in 2025 and during each school holiday period thereafter: for the first half of each school holiday period in odd numbered years and for the second half of each school holiday period in even numbered years and with:
(i) each holiday period to commence after school on the last day of school term and to conclude before school on the first day of the next school term; and
(ii) changeover to occur at 5:00 pm on the middle day of each school holiday period and, if there is an uneven number of days in the school holiday period, the parent with the first half of the school holiday period shall have the extra day.
7. Notwithstanding any other Order, the child shall spend time with each of the mother and the father on the following special occasions as may be agreed between them in writing, and failing agreement, as follows:
(a) on the Christmas festive days:
(i) in even numbered years: from 10:00 am on Christmas Eve until 11:00 am on Christmas Day with the mother and from 11:00 am on Christmas Day until 8:00 pm on Boxing Day with the father; and
(ii) in odd numbered years: from 10:00 am on Christmas Eve until 11:00 am on Christmas Day with the father and from 11:00 am on Christmas Day until 8:00 pm on Boxing Day with the mother.
(b) on the Easter festive days:
(i) in even numbered years: from the conclusion of school (or 3:00 pm if a non-school day) on the Thursday immediately preceding Good Friday until 5:00 pm on Easter Saturday with the mother and from 5:00 pm on Easter Saturday until 5:00 pm on Easter Monday with the father; and
(ii) in odd numbered years: from the conclusion of school (or 3:00 pm if a non-school day) on the Thursday immediately preceding Good Friday until 5:00 pm on Easter Saturday with the father and from 5:00 pm on Easter Saturday until 5:00 pm on Easter Monday with the mother.
(c) on the child’s birthday:
(i) if the child is away on holidays with a parent pursuant to these Orders, then by telephone at 9:00 am with the other parent, otherwise from 9.00 am to 3.00 pm with the parent who is not already spending time with the child.
(d) on the celebrating parent’s birthday:
(i) from the conclusion of school (or from 3:00 pm if a non-school day) to 7:30 pm, if the child is not already in that parent’s care.
(e) on Mother’s Day and Father’s Day:
(i) with the celebrating parent from after school on the Friday immediately prior to Mother’s Day or Father’s Day until before school (or 9.00 am if a non-school day) on the following Monday.
8. The child shall spend time with the mother at all other times she expresses a wish to do so and the parents shall ensure they facilitate such time as is reasonably practicable.
9. The father shall actively encourage the child to spend time with the mother.
10. Unless otherwise agreed between the parents in writing, where time is scheduled to commence or end at the beginning or conclusion of school, changeover will take place at school, otherwise changeover will take place at McDonalds’s Suburb C.
11. For the purpose of changeover:
(a) neither parent will approach or follow the other parent and will, as far as practicably possible, remain near their vehicle; and
(b) each parent shall ensure that the child takes with her to each parent’s household any prescribed medication; and
(c) the parents shall use their best endeavours to facilitate that the pet dog (as the case may be) remain with the child during time she spends with each of the parents at each parent’s household.
12. The child shall be permitted to communicate with the parent with whom she is not then living or spending time, at all reasonable times and during such communication, each parent will respect the privacy of the child.
13. With the exception of an emergency or time-sensitive issues, each parent shall communicate about the care, welfare and development of the child with the other parent by way of the communication application, “Our Family Wizard” or such other communication application as agreed between the parents in writing.
14. The costs of utilising the communication application be shared equally between the parents.
15. In the event of emergency, the parents are at liberty to telephone or text the other parent.
16. Unless otherwise agreed between the parents in writing or recommended by Dr B in writing:
(a) the parents shall do all such acts and things necessary to ensure the child continues to attend on Dr B for psychology sessions as and when recommended by Dr B, with the net costs of such attendance (after any Medicare or Private Health Rebate) for the child to be paid equally by the parents; and
(b) the parents shall attend upon Dr B at such frequency and in such manner as recommended by Dr B, with the attending parent to be responsible for the net costs of such attendance after any Medicare or Private Health Rebate.
17. The parties have leave to provide a copy of the Orders made 15 March 2024 and the Reasons for Judgment published in support of the same to Dr B.
18. The mother and father shall:
(a) keep the other informed at all times of their contact telephone number and email address and will notify the other of any change in their details within twenty‑four (24) hours of any such change; and
(b) keep the other informed at all times of their residential address and will notify the other of any change to their residential address at least fourteen (14) days prior to that change occurring; and
(c) keep the other informed of the names and addresses of any treating medical or allied health practitioners who treat the child; and
(d) inform the other as soon as practicable of any medical emergency involving the child, including the name of the treating doctor, hospital and contact number, if known.
19. During the time the child is with either parent, that parent will:
(a) be respectful of the child’s relationship with the other parent and promote the child’s relationship with the other parent; and
(b) speak respectfully of the other parent and not make comments to the child, or to any other person within the child’s hearing, that criticise, demean, belittle or ridicule the other parent, their family or partners, and each parent will remove the child from the presence of any other person making such comments to the child or within the child’s hearing; and
(c) refrain from questioning the child regarding the other parent or the other parent’s personal life; and
(d) not discuss any issues between the parents with, or in the hearing of the child; and
(e) not use the child to communicate messages to the other parent relating to any issue between the parents; and
(f) not discuss the issues the subject of these proceedings with the child other than in the course of participation in a therapeutic process facilitated by a qualified therapist.
20. Each parent is restrained and an injunction issue restraining both parents from:
(a) filming or audio recording, by any means, the other parent without the express written consent of the other parent; and
(b) allowing the child to film or audio record, by any means, the other parent without the express written consent of the other parent.
21. Should either parent wish to remove the child from the Commonwealth of Australia for the purpose of international holiday travel:
(a) the travelling parent must first obtain the other parent’s written consent and will provide the other parent with not less than sixty (60) days written notice of the intention to travel overseas with the child including by providing the proposed destination country/countries and the dates of travel; and
(b) if the travelling parent wishes to take the child out of Australia for the purpose of an overseas holiday at times when the child is not in that parent’s care, the travelling parent will also provide the other parent with any proposed arrangements to make up the other parent’s time with the child; and
(c) the parent receiving the request must respond within seven (7) days of receiving the request and will not unreasonably withhold their consent.
22. Unless otherwise agreed to by the parents in writing, each parent is restrained from taking the child to any country which is not a signatory to The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, or which is listed as “Do Not Travel” on the Smart Traveller government website.
23. The travelling parent must provide to the other parent at least thirty (30) days before travel with the child:
(a) copies of return travel tickets for the child; and
(b) flight details; and
(c) a travel itinerary and will notify the other parent of any material change to the itinerary; and
(d) details of all main accommodation and a contact telephone number(s) for the child while travelling; and
(e) a copy of travel insurance certificate or formal confirmation for the child.
24. Should the travelling parent fail to provide the information outlined in the preceding Order by the specified date, or other date as agreed to between the parents in writing, the parent receiving the request is at liberty to withdraw their consent for the child to travel.
25. During the trip, the traveling parent will arrange for the child to telephone or video call the other parent at all reasonable times the child requests and no less than every Wednesday.
26. Each parent agrees that they shall maintain the child’s Australian Travel Document (passport) and British passport with no less than six (6) month’s currency and shall renew that passport as required from time to time, with each parent to pay one-half of the cost of renewing the child’s passport on each occasion.
27. Each parent will do all acts and sign all documents necessary to apply for an Australian passport and/or British passport and/or renewal of the child’s passport within twenty‑one (21) days from receiving a written request from the other parent.
28. The father shall retain the child’s passports in his possession and release the passport to the mother no later than thirty (30) days prior to the intended departure date or within two (2) days upon written request from the mother if a visa is required for entry into the country of destination and the original passport is required.
29. The mother shall return the child’s passports to the father within seven (7) days after the child returns to the Commonwealth of Australia.
30. The travelling parent shall meet all visa costs, including providing funds (in advance where possible) to the other parent where they incur costs for the visa application and in relation to the issue of any applicable visas for the child:
(a) the travelling parent shall provide a copy of the applicable visa application; and
(b) if applicable, the parent to whom the visa application is presented shall sign the application and return it to the travelling parent within seven (7) days of receipt of the visa application and otherwise do all things necessary for the visa to issue.
31. Each parent is restrained and an injunction issue restraining them from using the child’s passports without the other parent’s knowledge and consent as provided for under this Order.
32. Each parent shall do all things and sign all documents necessary to give effect to these Orders within seven (7) days of being requested to do so by the other parent.
33. The name of the child, X, a female, born 2011, be removed from the Family Law Watchlist and the Australian Federal Police is requested to give effect to this Order by removing the child’s name from the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
34. The father shall hold and be entitled to possession of the following documents relating to the child and, in order to facilitate this possession, the mother shall do all things necessary to cause Barry Nilsson to return the same to the father within seven (7) days of the date of this Order:
(a) Birth Certificate; and
(b) Passport; and
(c) UK National Insurance Card; and
(d) UK Redbook – Immunisation Record; and
(e) US Social Insurance Card; and
(f) Australian Citizenship Certificate; and
(g) All expired passports.
35. The father will make any of the documents relating to the child referred to in the preceding Order available to the mother within seven (7) days of receiving a written request that he do so and, failing further agreement in writing, the mother shall then return such documents to the father.
36. By this order, any school at which the child attends is authorised to provide both parents with copies of school reports, school photographs and any other document regarding the academic progress or achievements of the child and notification of events such as parent/teacher events, sports day and concerts.
37. By this order, any medical practitioner, hospital and/or health care professional upon whom the child attends is hereby authorised to provide both parents with all such information about the child’s health as they are lawfully able to provide.
AND IT IS FURTHER ORDERED THAT
38. Each parent has leave to provide a copy of this Order to any school or educational facility or sporting or recreational club at which the child attends.
39. Each parent and the Independent Children’s Lawyer has leave to provide a copy of the reports prepared by Dr B, the order made on 15 March 2024 and the Reasons for Judgment published in support of the same to any therapist upon whom the parents and/or the child attend for the purpose of therapy and to the Department of Child Safety, Seniors and Disability Services (by whatever name that Department is known), the authority of any State or Territory responsible for child protection and, if necessary, to any member of the Queensland Police Service, the police service of another State or Territory and the Australian Federal Police.
40. Save as is otherwise ordered herein, no party is permitted to use the documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.
41. The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
42. All outstanding parenting applications are otherwise dismissed and removed from the list of cases requiring finalisation.
43. Pursuant to s 65DA(2) and s 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
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Decision
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