FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Raju & Raju [2021] FedCFamC2F 158
File number(s): TVC 134 of 2019 Judgment of: JUDGE BOWREY Date of judgment: 20 October 2021 Catchwords: FAMILY LAW – parenting – children in primary care of Mother until late 2018 – Mother takes children to Country B in late 2018 and remains there – Father institutes parenting proceedings in Country B and Australia – children return to Australia several months apart and in Father’s primary care since then – question of parental responsibility, residence and spending time
FAMILY LAW – COSTS – whether any order for costs should be made in a parenting case – consideration of Mother taking children overseas and remaining there without Father’s agreement – Father’s need to commence Court proceedings – Mother wholly unsuccessful – costs calculated on relevant scale
Legislation: Family Law Act 1975 (Cth)
Child Protection Act 1999 (Qld)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Colgate-Palmolive v Cussons (1993) 46 FCR 225
Hawkins v Roe [2012] FamCAFC 77
Re F: Litigants in Person Guidelines [2001] FamCA 348
SCVG & KLD [2015] FamCA 687
SCVG & KLD [2017] FamCAFC 95
Division: Division 2 Family Law Number of paragraphs: 181 Date of hearing: 27-28 September 2021 Place: Townsville Counsel for the Applicant: Ms Black Solicitor for the Applicant: Sarinas Legal Respondent: The Respondent appearing on her own behalf Counsel for the Independent Children's Lawyer: Mr Raeburn Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
TVC 134 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RAJU
Applicant
AND: MS RAJU
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE BOWREY
DATE OF ORDER:
20 OCTOBER 2021
THE COURT ORDERS THAT:
1.All previous orders regarding the children X, born in 2006 and Y, born in 2011 (‘the children’) be discharged.
Parental Responsibility
2.The Father have sole parental responsibility for the children including but not limited to:
(a)the children's education, both current and future;
(b)the children's religious and cultural upbringing;
(c)the children's health;
(d)the children's names; and
(e)any changes to the children's living arrangements which make it significantly more difficult for the children to spend time with each parent.
3.In the exercise of his parental responsibility, the Father shall:
(a)Notify the Mother in writing prior to making decisions about major long-term issues for the children, including but not limited to decisions about the children’s education and health.
(b)Invite the Mother to indicate her views about the decision to be made. Should the Mother wish to respond, she must do so within seven (7) days of receiving notification from the Father.
(c)Take the Mother’s views into account in making such decisions.
(d)Inform the Mother in writing within seven (7) days after making the decision.
4.Notwithstanding Order 2 the Mother and Father be responsible for the day to day care, welfare and development of the children while the children are in their respective care.
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CaseChat Overview and Summary
The court determined that Mr Raju should have sole parental responsibility for the children. However, he must notify Ms Raju in writing before making decisions about major long-term issues, invite her to indicate her views, take her views into account, and inform her in writing after making a decision. The children will live with Mr Raju, and both parents are responsible for the children's day-to-day care, welfare, and development while in their respective care. The court set out detailed arrangements for the children to spend time with Ms Raju and travel with either parent. The court also restrained the parents from removing or attempting to remove the children from Australia until 2 December 2024.
Regarding costs, the court considered Ms Raju's unsuccessful outcome in the proceedings and ordered her to pay Mr Raju $28,649.50 within 60 days of the date of the order. The court noted that the particulars of the obligations created by these orders and the consequences of contravening these orders are set out in a document attached to the orders titled "Parenting orders - obligations, consequences and who can help."
Orders
Orders of the court
TVC 134 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR RAJU
Applicant
AND:
MS RAJU
Respondent
AND:
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE BOWREY
DATE OF ORDER:
20 OCTOBER 2021
THE COURT ORDERS THAT:
1. All previous orders regarding the children X, born in 2006 and Y, born in 2011 (‘the children’) be discharged.
Parental Responsibility
2. The Father have sole parental responsibility for the children including but not limited to:
(a) the children's education, both current and future;
(b) the children's religious and cultural upbringing;
(c) the children's health;
(d) the children's names; and
(e) any changes to the children's living arrangements which make it significantly more difficult for the children to spend time with each parent.
3. In the exercise of his parental responsibility, the Father shall:
(a) Notify the Mother in writing prior to making decisions about major long-term issues for the children, including but not limited to decisions about the children’s education and health.
(b) Invite the Mother to indicate her views about the decision to be made. Should the Mother wish to respond, she must do so within seven (7) days of receiving notification from the Father.
(c) Take the Mother’s views into account in making such decisions.
(d) Inform the Mother in writing within seven (7) days after making the decision.
4. Notwithstanding Order 2 the Mother and Father be responsible for the day to day care, welfare and development of the children while the children are in their respective care.
Living and Care Arrangements
5. The children live with the Father.
6. Each parent shall take the children or either of them to any school, sporting or extra-curricular activity during the time the children spend with that parent.
7. Unless otherwise ordered, Mr Raju born in 1972 and Ms Raju born in 1973, their servants and/or agents be and are hereby restrained by injunction from removing or attempting, causing or permitting the removal of the children X born in 2006 and / or Y born in 2011 from the Commonwealth of Australia prior to 2 December 2024.
Family Law Watchlist
8. It is requested that the Australian Federal Police give effect to this order by placing or retaining the names of the children referred to in paragraph 7 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the period until 2 December 2024.
Time with Mother
9. The children spend time with the Mother as agreed between the parents in writing and if no agreement, then as follows:
(a) From the conclusion of school or 3:00pm on Wednesday until before school or 8:30am Monday, each alternate week and commencing Wednesday 27 October 2021.
(b) If the Monday referred to in (a) is a holiday or pupil free day, the children shall spend time with the Mother until before school or 8:30am on the Tuesday.
(c) For one half of the school holidays at the end of Terms 1, 2 and 3, and 4 being the second half of the school holidays in odd numbered years commencing in 2021 and the first half of the school holidays in even numbered years commencing in 2022.
(d) Notwithstanding any other order, each year from 5:00pm on Saturday until 5:00pm on Sunday on the Mother’s Day weekend.
(e) Notwithstanding any other order, each alternate Easter from 5:00pm on Thursday until 5:00pm on Easter Monday, commencing in 2022 and in even numbered years thereafter. If Easter falls during the school holidays at the conclusion of Term 1, the time in this sub-paragraph shall form part of the Mother’s time for that holiday.
(f) On each of the children’s birthdays, both children shall spend time with the Mother for three hours as agreed and failing agreement from 5:00pm to 8:00pm.
(g) The Mother shall return with the children to Town C on the weekends she spends with the children pursuant to (a), (b), (c) to the extent that the children may be with the Mother in the second half of school holidays as referred to in (c) and (d), by 6:00pm on Sunday prior to the commencement of a school week.
(h) The Mother shall advise the Father via the Talking Parents Application, when she and the children return to Town C on a Sunday as referred to in (g). The Father is not required to reply.
Christmas Arrangement
10. Should the parents and the children be in the same locality on Christmas Day, the children shall spend not less than three (3) hours with the parent they are not otherwise with on Christmas Day. If no agreement, that time spent shall be from 12 noon to 3:00pm.
Changeovers
11. If changeover is to occur at the commencement or conclusion of school it shall occur at the school which the children attend.
12. During school holidays and on other occasions while the children are not at school, changeovers shall occur at McDonald’s in Town C.
13. The Mother shall be responsible for the collection and delivery of the children at the times set out in paragraph 9.
14. Any toys, clothing and personal items sent with the children at the commencement of each visit shall be returned with the children at the end of each visit, unless otherwise agreed.
Travel
15. If either parent wishes to travel with the children, any such travel shall occur during the children’s time with that parent pursuant to this order, unless otherwise agreed between the parents in writing.
16. If either parent intends to travel with the children away from the City D – Town C districts, that parent shall provide the other parent with the addresses of where the children will stay and shall advise a contact telephone number for the children. The information referred to in this paragraph may be sent to the other parent via the Talking Parents application.
17. If the parents reach agreement about international travel for the children prior to 2 December 2024, the conditions that shall apply are outlined in the following paragraphs.
18. Upon the non-travelling parent filing an Affidavit in this Court deposing that they agree to the proposed international travel for the children, setting out details of the proposed travel including all information to be provided by the travelling parent, the Court may based on that Affidavit make an order removing the children from the Family Law Watchlist for the dates of travel set out in the Affidavit.
19. During periods that a parent has the children in his or her care pursuant to this Order or at other times agreed in writing between the parents, each parent is permitted to travel overseas with a child or the children upon the following conditions:
(a) if a parent wishes to travel overseas with the Children:
(i) the travelling parent shall give the non-travelling parent four (4) months written notice of the intended travel, including details of intended dates of travel and destination with such notice to be given via the Talking Parents application;
(ii) the non-travelling parent is to respond in writing within seven (7) days via the Talking Parents application confirming that they have notice of the intended travel and consent to the Children travelling overseas. The non-travelling parent shall not unreasonably withhold consent to the Child/Children's travel;
(b) Not less than thirty (30) days prior to the intended date of departure, the travelling parent is to provide to the other parent:
(i) a written itinerary for travel, including flight details and accommodation;
(ii) a copy of the return ticket to Australia for the Children and the travelling parent;
(iii) a contact number or numbers and addresses at which the Children and the travelling parent may be contacted while overseas.
(c) The travelling parent must take into account any existing Australian Government travel alert or travel warning (however described) and they are restrained from travelling with the Children to areas that are assessed by the Australian Department of Foreign Affairs and Trade as being subject to the following travel advice levels:
(i) Level 3 (Reconsider your need to travel); and / or
(ii) Level 4 (Do not travel).
(d) While overseas the travelling parent shall facilitate the children communicating with the other parent by telephone or video call at least twice per week.
20. Neither parent shall unreasonably withhold consent to obtaining passports for the children and / or the children’s overseas travel should this involve:
(a) School organised travel.
(b) The children travelling with the Father to the United States to visit members of the Father’s family.
Communication
21. The children shall be able to communicate by telephone or video call with either parent at any reasonable time.
22. When the children or either of them are with the Father, the Father shall facilitate and make the children available to communicate with the Mother via telephone or video call as agreed between the parents and with the Mother to initiate the call. If no time is agreed, calls may be made each second day with the changeover day being counted as day one, between 5:00pm and 5:30pm.
23. When the children or either of them are spending time with the Mother, the Mother shall facilitate and make the children available to communicate with the Father via telephone or video call as agreed between the parents and with the Father to initiate the call. If no time is agreed, calls may be made each second day with the changeover day being counted as day one, between 5:00pm and 5:30pm.
24. For the purpose of telephone / video communication:
(a) Except in the event of an emergency, telephone communication between the child and a parent shall be to the mobile telephone of the child or of the parent should the parent’s telephone be used for the call, with the parent then handing the telephone to the child without comment.
(b) The parent the children or child are with shall ensure that the children are able to speak to the other parent in a quiet environment.
(c) If the children miss the call, the parent they are with shall ensure that the children telephone the other parent as soon as possible.
Exchange of Information
25. The parents shall:
(a) Communicate with each other about non-urgent issues relating to the children, by the Talking Parents application. Each parent shall within seven (7) days of the date of this order, do all things necessary to register on and with the Talking Parents application.
(b) Communicate with each other about urgent issues relating to the children by Talking Parents application or mobile phone text message.
(c) Not require the children to pass on messages or information to the other parent.
(d) Keep the other parent informed at all times of their residential address and mobile telephone number.
(e) Keep the other parent informed as to the names and addresses of any treating medical practitioner and/or healthcare practitioners who treat the children.
(f) Inform the other parent as soon as reasonably practical and on the same day, about any injury or illness affecting the children that requires any medical or hospital attention.
(g) Keep the other parent informed of and supply the other parent with, the dates of the childrens’ school, sporting and extra-curricular activity.
Authorities
26. Any educational and / or childcare institution attended by the children is hereby authorised and empowered to provide to each parent any information about the children’s educational progress and school related activities and to supply each parent with copies of school reports, photographs, certificates and awards obtained by the children. The cost of obtaining any of the information or documents referred to in this paragraph shall be paid by the parent making the request for same.
27. Any medical and / or healthcare practitioner treating the children is hereby authorised and empowered to provide to each parent any information about the children that such practitioners may lawfully provide about the children. The cost of any such information shall be paid by the parent making the request for same.
28. Each parent is authorised to discuss matters concerning the children’s health directly with the children’s medical and / or healthcare practitioner, at that parent’s cost and each parent is authorised to discuss matters concerning the children’s education directly with the children’s school.
29. Subject to the privacy and non-denigration paragraphs of this order, the parents are at liberty to attend the children’s school, sporting and extra-curricular activities.
Privacy, Non-denigration
30. During the time the children spend with either parent, that parent shall:
(a) Respect the privacy of the other parent and not question the child about the personal life of the other parent.
(b) Speak of the other parent respectfully.
(c) Not denigrate or insult the other parent or the other parent’s family in the presence or hearing of the children and use his or her best endeavours to ensure that other persons do not denigrate or insult the other parent or the other parent’s family, in the presence or hearing of the children.
(d) Not discuss these court proceedings with the children.
(e) Not involve the children in or discuss with them, any issues about the personal adult relationship between the parents.
Injunctions
31. The Mother shall not:
(a) Approach the Father’s residence except by prior written invitation or agreement of the Father.
(b) Approach the Father in a public setting such as at the children’s school or sporting or extra-curricular events.
(c) Apply for any passport for or on behalf of the children or either of them, in any country including Australia and / or Country B.
Passports
32. In relation to the children’s passports:
(a) the Mother shall sign and provide any documents necessary to the Father, within fourteen (14) days, in relation to any passport renewals or further applications;
(b) the Father shall meet the costs associated with lodging any passport applications for one or both Children.
33. In the event of the Mother's default of paragraph 32 of these Orders, these Orders specifically authorise the Father to dispense with the need to obtain the Mother's signature on any passport applications or obtain any documents from the Mother necessary to lodge the passport applications.
34. It is ordered and declared that the Father may do all acts and sign any documents necessary to obtain or renew the passports for each child as may be necessary without the requirement of any signature by the Mother.
35. The Father be permitted to hold the children’s passports.
36. The Father shall provide the children’s passports to the Mother when the children change over to her at the start of her time for any overseas travel. The Mother shall return the children’s passports to the Father when the children change over at the end of the children’s overseas travel time with the Mother.
Counselling
37. Pursuant to the Father’s sole parental responsibility referred to in paragraph 2 the Father is entitled to arrange psychological and / or other counselling for the children or either of them as he deems fit or as recommended by the children’s medical practitioner/s.
38. Both parents attend within three (3) calendar months from the date of this order, relevant components of the Triple P Parenting Program (also available online at https://www.triplep-parenting.net.au/qld-uken/triple-p/) with particular focus on developmental guidelines for school aged children and young adolescents as well as for teens. Each parent shall provide to the other within seven (7) days of receipt, a copy of the certificate of completion of parenting program.
Independent Children’s Lawyer
39. The Independent Children’s Lawyer be discharged.
Costs Order
40. The Mother shall pay to the Father within 60 days of the date of this order, the sum of $28,649.50.
AND THE COURT NOTES THAT:
A. Paragraph 9(g) is to ensure that the children are properly rested for the start of the school week.
B. In relation to the children spending one half of school holidays with each parent pursuant to paragraph 9(c) of this order, the Father indicated that his work roster may be eight days on, six days off, on some occasions. The Father indicated that if so, he was content for the children to spend time with the Mother for the whole of the period of his work roster during school holidays, resulting in the children spending more than one half of relevant school holidays as applicable, with the Mother.
C. Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the document attached to these orders titled “Parenting orders – obligations, consequences and who can help”.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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