RAMA & DACE
[2019] FCCA 3733
•23 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAMA & DACE | [2019] FCCA 3733 |
| Catchwords: FAMILY LAW – Parenting – best interests of the child – competing applications for who the children should live with – who the children should spend time with – common application for shared parental responsibility – change of school – Father has child with new partner in Country A – significant change in Children’s lives – parties live in geographically disparate locations – whether passports should be issued for the children – Airport Watch List. |
| Legislation: Australian Passports Act 2005 (Cth), s.11 Evidence Act1995 (Cth), s.140 Family Law Act 1975 (Cth), Part VII, ss.11F, 60B, 60CA, 60CC, 61DA, 62G(2), 64B, 65D, 69ZW Hague Convention on the Civil Aspects of International Child Abduction |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Bell & Nahos [2016] FamCAFC 244 Goode v Goode (2006) 36 Fam LR 422 Mazorski & Albright (2007) 37 FamLR 518 McCall & Clark (2009) FLC 93 U v U (2002) 211 CLR 238 Ulster & Viney [2016] FamCAFC 133 Waterford & Waterford [2013] FamCA 33 |
| Applicant: | MR RAMA |
| Respondent: | MS DACE |
| File Number: | MLC 126 of 2014 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing dates: | 3, 4 and 5 April 2018, 5 June 2018, 17 August 2018 and 29 November 2019 |
| Date of Last Submission: | 29 November 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 23 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Eidelson |
| Solicitors for the Applicant: | Ebejer & Associates |
| Solicitor Advocate for the Respondent: | Mr Ngwenya |
| Solicitors for the Respondent: | Kaprivi Legal |
| Counsel for the Independent Children's Lawyer: | Mr Ham |
| Solicitors for the Independent Children's Lawyer: | Macgregor Solicitors |
ORDERS
All previous parenting orders be discharged.
Parental Responsibility
The Applicant (Father) and the Respondent (Mother) have equal shared parental responsibility for the children W, born 2007, X, born 2009, Y, born 2012 and Z, born 2013 (Children).
Living Arrangements and the Time the Children Spend with the Father
The Children live with the Mother.
The Children spend time and communicate with the Father as follows:
During Term Time
(a)During school terms on the first weekend after the school term has commenced from 6.30 pm Friday until 6:00 pm Sunday and each alternate weekend thereafter.
During Holiday Time
(b)For each of the school term and the long summer holidays on a week about basis with:
(i)The Mother to have the first week of the school holidays in odd numbered years; and
(ii)The Father to have the first week of the school holidays in even numbered years.
Special Days
(c)On each of the Children’s birthdays, if they are not already spending time with the Father, from 4:00 pm to 7:00 pm.
(d)For Christmas 2019, commencing 11:00 am Christmas Day until 11:00 am 26 December 2019 and each alternate year thereafter.
(e)For Christmas 2020, commencing 11:00 am 24 December 2020 until 11:00 am Christmas Day and each alternate year thereafter.
(f)On Father’s Day, should the Children not already be spending time with the Father, from 10:00 am until 6:00 pm.
(g)On the Father’s birthday, should the Children not already be spending time with the Father, from 4:00 pm until 7:00 pm.
(h)By telephone at all reasonable times, with the Father to initiate the call to the Mother’s mobile phone and the Mother to facilitate the call.
(i)As otherwise agreed between the parties in writing, including SMS text message.
The Father’s time with the Children provided for in Order 4(a) is suspended during the school holiday periods provided for in Order 4(b).
The Father must give the Mother at least 24 hours’ notice in writing (SMS text message) if he does not intend to spend time with the Children in accordance with Orders 4(a) to (g).
The Father’s time with the Children be suspended as follows:
(a)On Mother’s Day, should the Children not already be spending time with the Mother, from 10:00 am to 6:00 pm.
(b)On the Mother’s birthday, should the Children not already be spending time with the Mother, from 4:00 pm until 7:00 pm.
(c)For Christmas 2019, commencing 11:00 am 24 December 2019 until 11:00 am Christmas Day and each alternate year thereafter.
(d)For Christmas 2020, commencing 11:00 am Christmas Day until 11:00 am 26 December 2020 and each alternate year thereafter.
When the Children are spending time with the Father, the Mother be at liberty to communicate with the Children by telephone or video call at all reasonable times and the Father shall do all things necessary to facilitate such communication.
Education
The child W, born 2007 forthwith be enrolled at D School, Suburb G to commence year 7 in 2020.
The following children forthwith be enrolled at J Primary School, Suburb K:
(a)X, born 2009, to commence grade 5 in 2020.
(b)Y, born 2012, to commence grade 3 in 2020.
(c)Z, born 2013 to commence grade 1 in 2020.
The Father be authorised to request from the Principal of any school attended by the Children copies of school reports, newsletters, event notices, school photographs and the like at his respective cost. AND IT IS DIRECTED that either parent be at liberty to produce a copy of these Orders to the Children’s schools, by way of such authorisation.
Both parties be at liberty to attend the Children’s school events including, but not limited to, parent teacher interviews and other events organised by the schools.
Changeovers
The Father is to collect the Children from the Mother’s residence at the commencement of the time that the Father will spend with the Children and the Mother will collect the Children from the car park at Suburb G Shopping Centre at the conclusion of the Father’s time.
Communication
The parents shall advise each other of any change of telephone number, including land line number, email address and residential address within 48 hours of such change occurring.
Each parent shall inform the other as soon as practicable of any significant illness or injury requiring hospitalisation suffered by the Children or any of them that occurs whilst the Children are in their respective care, along with the names of any treating medical, dental or allied health professional so that each parent may liaise with the same.
Restraints on the Parents
Each of the Mother and the Father are hereby restrained by injunction from:
(a)Discussing these proceedings with the Children or in the presence of or hearing of the Children or any of them individually.
(b)Denigrating, abusing, belittling, insulting, denigrating or rebuking the other parent in front of the Children or any of them individually within their presence or hearing.
(c)Knowingly allowing any third party to act in non-compliance with this Order.
The parties, their servants and/or agents be restrained by injunction from removing or attempting to remove or causing or permitting the removal of the Children or any one of them from the Commonwealth of Australia without prior order of the Court or the prior written agreement of both the Mother and the Father and such agreement to be witnessed by a lawyer who at that time holds a current Australian Practicing Certificate.
For the avoidance of doubt Orders 10, 11 and 12 of the Orders of this Court made on 3 August 2015 requesting the Australian Federal Police to place the names of the Children on the Airport Watch List, remain in full force and effect.
Miscellaneous
All extant applications are otherwise dismissed.
The Order of Judge Hartnett (as Her Honour then was), dated 3 August 2015 appointing the Independent Children’s Lawyer be discharged.
Pursuant to r.21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.
AND THE COURT NOTES THAT:
A.Pursuant to ss.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 are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Rama & Dace is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 126 of 2014
| MR RAMA |
Applicant
And
| MS DACE |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant (Father) and the Respondent (Mother) are the parents of four daughters, W born 2007 (W), X born 2009 (X), Y born 2012 (Y) and Z born 2013 (Z)[1] (together the Children).
[1] Z is known as “Z” and also as “Z”.
The Father seeks orders that the parents have equal shared parental responsibility for W, X, Y and Z and that the Children live with him and spend time with the Mother on alternate weekends, for one week in each of the term holidays, on a week about basis during the long summer vacation and on special occasions.
The Mother also seeks orders that the parents have equal shared parental responsibility for W, X, Y and Z, however she seeks orders that the Children live with her.
The Children currently reside with the Father.
The Father is also seeking orders that in the event that the Mother does not sign passport applications for the Children within 7 days of receiving such applications, he be permitted pursuant to s.11 of the Australian Passports Act 2005 (Cth) to obtain the Children’s passports without the Mother’s consent.
Issues to be Determined
The following issues are in dispute between the parties:
a)Who the Children should live with.
b)The time the Children should spend with the parent with whom they are not living.
c)Whether the Father ought to be permitted to obtain Australian passports for the Children without the consent of the Mother.
Synopsis
I have determined that:
a)The Children should live with the Mother.
b)The Children should spend time with the Father:
i)During school term time, from 6.30 pm Friday until 6.00 pm Sunday each alternate week;
ii)For each of the school term and the long summer holidays on a week about basis;
iii)On special days which include the Christmas period between 24 to 26 December, the Children’s birthdays, the parents’ birthdays, Mother’s Day and Father’s Day;
iv)The Father’s application to be permitted to obtain Australian passports for the Children without the consent of the Mother be dismissed.
Background
The Father was born in 1981 in the Country L and is aged 38. In 1987 when the Father was aged 6 the Father’s family moved from Country L to Country GG as refugees in 1987 and then in 1992 they again moved as refugees to Country B[2].
[2] Father’s Affidavit, filed 9.1.14, at [42]-[44].
The Mother was born in 1982 in Country L and is aged 37. The Mother and the Father met in the Country B Refugee Camp in Country B in 2004. The parties married in Country B in 2006[3]. The Mother obtained a visa to Australia as a refugee and left Country B for Australia in 2006. The Mother then applied for a spousal visa for the Father[4].
[3] Father’s Affidavit, filed 9.1.14, at [28].
[4] Father’s Affidavit, filed 9.1.14, at [29].
W was born in Australia in 2007 and is aged 12.
The Father arrived in Australia in 2008 on a spousal visa which the Mother applied and paid for[5].
[5] Father’s Affidavit, filed 9.1.14, at [16]; Transcript (17.8.18) T 33:16-23.
X was born in 2009 and is aged 10.
The Father became a permanent resident of Australia in 2010[6].
[6] Transcript T 42:21-24.
In about 3 November 2010 the parties separated and the Mother, W and X went to live with the Maternal Grandmother in Suburb HH. The parties reconciled in February 2011[7].
[7] Father’s Affidavit, filed 30.6.17, at [21]-[22].
The parties separated again on 10 September 2011 (Second Separation). The Mother, W and X again went to live with the Maternal Grandmother[8]. At the time of the Second Separation the Mother was pregnant with Y.
[8] Father’s Affidavit, filed 30.6.17, at [23].
Y was born in 2012 and is aged 7. Y was born during the period of the Second Separation.
The parties reconciled in about February 2012[9]. In 2012 the family moved into the former matrimonial home at M Street, Suburb N (Suburb N Property)[10].
[9] Father’s Affidavit, filed 9.1.14, at [37].
[10] Father’s Affidavit, filed 30.6.17, at [26].
The Father became an Australian citizen in 2013[11].
[11] Father’s Affidavit, filed 30.6.17, at [10].
The parties separated again on 3 July 2013 with the Mother, W, X and Y going to live with the Maternal Grandmother[12]. At that time the Mother believed that the Father was having an affair with her Uncle’s wife, being her Aunt (Father’s Affair). The Father describes this woman as his niece. At this time the Mother was pregnant with Z[13]. The parties reconciled after a period of two weeks, however after about a week the Mother left the Suburb N Property again and returned to the Maternal Grandmother’s house, leaving the Children with the Father. The Mother returned to the Suburb N Property after eleven days[14].
[12] Father’s Affidavit, filed 30.6.17, at [27].
[13] Father’s Affidavit, filed 30.6.17, at [27].
[14] Father’s Affidavit, filed 30.6.17, at [27].
The parties separated in 2013 when the Mother was 9 months pregnant with Z. The circumstances leading to the final separation involved the parties arguing over the Mother’s allegations concerning the Father’s Affair. The police were called and they suggested that the Father leave the Suburb N Property to calm the situation, which he did. The Mother then left the Suburb N Property with the X, W and Y and went to live in a refuge (Final Separation). At that time X was aged 6, X was aged 4 and Y was aged 1. Z was born nine days after the Final Separation in 2013. The Father did not see the Children again until 30 August 2014[15].
[15] First Family Report, at [1].
In 2014 the Father travelled to Country B, Country A and Country L and did not return until the end of April 2015[16].
[16] Mother’s Affidavit, filed 30.5.15, at [17].
On 22 December 2015 Orders were made, at the request of the Mother for the Children to live with the Father, as the Mother said that she was suffering from stress. At the time the Children went to live with the Father at the Suburb N Property W was aged 9, X aged 7, Y aged 4 and Z aged 2.
The Father went to Country L again in 2016 and returned on 20 February 2017. During this time the Mother looked after the Children and they all stayed with the Mother’s cousin in Suburb O[17].
[17] Father’s Affidavit, filed 30.6.17, at [52].
Procedural History
This proceeding was commenced by the Father on 9 January 2014 when he filed an Initiating Application (Initiating Application) and an affidavit in support of the Initiating Application[18] (Father’s December 2013 Affidavit). The Initiating Application sought interim orders for:
[18] Father’s Affidavit, filed 9.1.14.
a) A Commonwealth Location Order requiring Centrelink to provide information in relation to the address at which the Mother and the Children may be located and that pursuant to s. 67N(2) of the Family Law Act (Act) this information may be provided to the Father’s solicitors.
b)The Children live with the Mother.
c)The Father spend time with W, X and Y as follows:
i)Each Wednesday from after school (or 4:00 pm if a non-school day);
ii)Each alternate weekend from 5:00 pm Friday until 6:00 pm Sunday;
iii)At such other times as agreed between the parties in writing including SMS text message.
d)The Father spend time with Z at such times as considered appropriate by the Court.
e) The Children be independently represented.
f)The Mother to attend upon a psychologist nominated by the independent children’s lawyer.
g)The parties and the Children pursuant to s.62G of the Act to attend upon a Family Consultant for the purposes of the preparation of a Family Report.
h)The Mother and the Father keep each other notified in relation to their respective telephone numbers, addresses and email addresses and notify one another in writing of any change within 48 hours of any change.
i)The Mother and the Father to have reasonable communication with the Children by telephone, email, SMS text messages and electronic means during times they are living with or spending time with the other parent.
j)The Mother and the Father to keep each other notified in relation to:
i) Any medical emergency or serious health issues affecting the Children whilst in their care;
ii) The full name and contact details of any medical practitioner or other health professional that the Children attend whilst in their care and authorise such practitioner to communicate with and provide information to the other parent.
k)The Mother and the Father to be permitted to attend any school or extra-curricular activities to which a parent would normally be invited to attend, including but not limited to parent-teacher interviews, concerts and sporting events and to receive all school newsletters, notices and school photographs (at their own expense).
In the Initiating Application the Father sought final orders that the parents have shared parental responsibility for the Children and the Children live with the Mother. The Father did not seek to particularise the final orders that he was seeking until a later date.
On 18 March 2014 the Court made a Commonwealth Location Order pursuant to s.67N(2) of the Act thereby ordering the Business Manager of Centrelink to provide to the Registrar of the Court such information as was contained in the records of the agency in relation to the address which the Mother and the Children may be found. The Mother was also ordered to file and serve a Response and an affidavit within 21 days of service of the Father’s documents on her.
On 28 April 2014 the Father filed an Affidavit of Service where the process server deposed that on 23 April 2014 the Mother had been served with the Initiating Application, the Father’s December 2013 Affidavit and a copy of the Orders made on 18 March 2014.
On 29 April 2014 the proceeding returned again to Court. The Father was represented by Counsel and there was no appearance on behalf of the Mother. The Court made the following interim Orders:
a) The Children live with the Mother.
b)The Father spend time with the Children as agreed to between the parties.
c)The parties do all things necessary to enrol in and attend a Roundtable Dispute Management Conference by Victoria Legal Aid forthwith.
d)Each of the parties keep the other notified in relation to their respective telephone numbers, residential addresses and email addresses and notify one another in writing within 48 hours of any change.
e)The Mother file and serve a Response and affidavit within 21 days of service of the Orders upon her.
On 18 August 2014 the Father’s solicitors Marcou & Associates filed a Notice of Withdrawal as Lawyer. The proceeding next returned to Court on 21 August 2014. Both the Father and the Mother appeared unrepresented. The Court Ordered by consent that the proceeding be adjourned to 16 December 2014.
On 19 August 2014 the parties attended a Victorian Legal Aid Roundtable Dispute Management Conference[19].
[19] Father’s Affidavit, filed 16.7.15, at [32].
On 16 December 2014 the Father was represented by his previous solicitors and the Mother was unrepresented. The Court Ordered that the proceeding be adjourned to 15 June 2015 in the Duty List. The Court noted that the parties were to attend a Roundtable Dispute Management conference that day. The parties participated in mediation that day and reached an agreement that W and X would spend time with the Father each alternate weekend from Friday to Sunday and Y and Z would spend time with the Father each alternate week for a period of two hours. The agreement also provided that the Father could telephone or Skype the Children on Mondays and Wednesdays[20].
[20] Father’s Affidavit, filed 30.6.17, at [37].
On 18 December 2014 the Father filed an Application for Divorce. On 17 March 2015 a Registrar of the Court Ordered that the Application for Divorce be struck out with a right of reinstatement within six months of the date of the Order.
On 6 May 2015 the Father’s solicitors Marcou & Associates filed another Notice of Withdrawal as Lawyer and the Father again became unrepresented.
On 15 June 2015 the proceeding again came before the Court and on this occasion both the Mother and the Father were unrepresented. The Court ordered that the Mother file and serve a Response and an affidavit within 14 days. The proceeding was adjourned for mention to 3 August 2015 and listed for a final hearing on 1 February 2016, with an estimate of two days.
The Mother filed a Response (Response) and an Affidavit (Mother’s June 2015 Affidavit) on 30 June 2015. The Mother sought the following Interim Orders in the Response:
a)The Mother and the Father have equal shared parental responsibility for the Children.
b)The Children live with the Mother.
c)The Children spend time and communicate with the Father as follows:
i)During school term time each Saturday from 9:00 am to 8:00 pm;
ii)During school holidays each Saturday and two other days to be agreed between the parties from 9:00 am to 8:00 pm;
iii)Christmas Day and Boxing Day each alternate year from 9:00 am to 8:00 pm.
d) Changeover to take place from Street KK, Suburb PP.
e)The Father’s time with the Children be suspended on each Mother’s Day and the Mother’s time with the Children be suspended on each Father’s Day.
f)The parties be authorised to communicate directly with the Children’s school and receive directly from the school, copies of all notices, information, newsletters and school reports, details of parent interviews at the requesting parent’s expense.
g)The Father be required to provide to the Mother’s solicitor 24 hours prior notice if he is unable to attend to collect the Children. The Mother to provide similar notice to the Father if she cannot facilitate the collection of the Children by SMS text message.
h)Pursuant to s.62G(2) of the Act the parties and the Children attend upon a Family Consultant for the purposes of the preparation of a Family Report.
i)The parties keep each other notified in relation to any medical emergency or serious health issues affecting the Children whilst in their care and provide the full name and contact details of any medical practitioner or other health professional (including dentist) that the children attend whilst in their care and authorise such practitioner to communicate with and provide information to the other parent.
j)The parties and their agents be restrained by injunction from denigrating insulting belittling, rebuking or otherwise speaking negatively about the other party or their family or relatives in the presence or hearing of the Children.
k)The parties permit the Children to have reasonable communication with the other parent whilst the Children are in their care by telephone or Skype communication.
In the Response the Mother sought the same orders as final orders, apart from the order referred to in sub-paragraph (h) in the preceding paragraph.
On 16 July 2015 the Father filed a further affidavit (Father’s July 2015 Affidavit) and on 17 July 2015 filed an Amended Initiating Application (Amended Initiating Application). The Father sought interim orders that the Children spend time and communicate with the Father:
a)Each alternate weekend from Friday after school until Sunday 6:00 pm.
b)Half of the school holidays.
c)On Christmas, Easter, the Father’s birthday and the Children’s birthdays.
d)As otherwise agreed between the parties in writing, including SMS text messages.
In the Amended Initiating Application the Father sought final orders that:
a)The Mother and the Father have equal shared parental responsibility for the Children.
b)The Children live with the Mother.
c)The Children spend time and communicate with the Father in accordance sub-paragraphs (a) to (d) of the preceding paragraph.
d)The Mother and Father be permitted to attend any school or extra-curricular activities to which a parent would normally be invited to attend, including but not limited to parent-teacher interviews, concerts and sporting events and to receive all school newsletters, notices and school photos forms, at their own expense.
e)For the purposes of changeovers, the Mother to drop the Children to the Father at H Shopping Centre or Suburb P Shopping Centre and the Father to drop the Children to the Mother at the conclusion of time to the initial drop off point, otherwise at such venues as agreed between the parties in writing including SMS text message.
f)The Mother and the Father to provide each other with at least 12 hours prior notice if they require to cancel or reschedule time spent with the Children.
g)The Mother and the Father keep each other notified in relation to:
i)Their respective telephone numbers, residential addresses and email addresses and notify one another in writing of any change within 48 hours of any change;
ii)Any medical emergency or serious health issues affecting the children, or any of them, while in their care;
iii)The full name and contact details of any medical practitioner or other health professional (including dentist) that the children, or any of them, attends whilst in their care and shall authorise such practitioner to communicate with and provide information to the other parent.
h)The Wife, her servants and agents be restrained from:
i)Relocating the residence of the Children from more than 30 km radius of the Melbourne Central Business District;
ii)Denigrating the other parent or members of their family to or within the hearing or presence of the Children;
iii)From committing family violence to or in the presence or hearing of the Children;
iv)Discussing any family law matters relating to the Children.
The proceeding next came before the Court on 3 August 2015. The father was a self-represented and the Mother was represented by Kaprivi Legal, her current solicitors. The Court made interim Orders that:
a)Pursuant to s. 62G(2) of the Act the parties and the Children attend upon a Family Consultant for the purposes of a family report.
b)An Independent Children’s Lawyer (ICL) be appointed.
c)The parties, their servants and or agents be restrained from removing the Children from the Commonwealth of Australia.
d)The Children be placed on the Airport Watch List[21].
[21] Orders 10, 11 and 12 of the Orders made on 3 August 2015.
The Court also made interim Orders by consent that may be summarised as follows:
a)The Mother and the Father have equal shared parental responsibility for the Children.
b)The Children live with Mother.
c)The Children spend time and communicate with the Father:
i)Each alternate weekend from Friday after school until Sunday 4.00 pm;
ii)Half of all school holidays;
iii)On Christmas, Easter, New Year’s Day, the Father’s birthday and the Children’s birthdays, as agreed between the Mother and the Father;
iv)Telephone communication at reasonable times;
v)As otherwise agreed between the parties in writing, including SMS text message.
d)The Mother and Father be permitted to attend any school or extra-curricular activities to which a parent would normally be invited to attend, including but not limited to parent-teacher interviews concerts and sporting events and to receive all school newsletters, notices and school photos forms, at their own expense.
e)For the purposes of changeover, the Mother drop the Children inside the nearest local police station and the Father drop the Children at the conclusion of time at the initial drop off point.
f)The Mother and the Father to provide each other with at least 12 hours prior notice if they require to cancel or reschedule time spent with the Children.
g)The Mother and the Father keep each other notified in relation to:
i)Their respective telephone numbers, residential addresses and email addresses and notify one another in writing of any change within 48 hours of any change;
ii)Any medical emergency or serious health issues affecting the children, or any of them, while in their care;
iii)The full name and contact details of any medical practitioner or other health professional (including dentist) that the Children, or any of them, attends whilst in their care and shall authorise such practitioner to communicate with and provide information to the other parent.
h)The Mother, her servants and agents be restrained from:
i)Relocating the residence of the Children from more than 30 km radius of the Melbourne Central Business District;
ii)Denigrating the other parent or members of their family to or within the hearing or presence of the Children;
iii)From committing family violence to or in the presence or hearing of the Children;
iv)Discussing any family law matters relating to the Children.
i)The parties do all things necessary to have the Father’s name placed on the birth certificate of the child Z.
On 19 November 2015 a Registrar of the Court adjourned the Father’s application for divorce to the final hearing which was listed on 1 February 2016.
On 23 November 2015 the first Family Report, prepared by Family Consultant Mr Q, was released.
The matter next came before the Court on 9 December 2015. On that occasion the Father appeared in person and the Mother and the ICL were legally represented. The Court made a Divorce Order by consent. The Court also vacated the final hearing date of 1 February 2016 and adjourned the proceeding to 22 December 2015.
On 22 December 2015 the matter again came before the Court. The Father appeared in person and the Mother and the ICL were legally represented. The Court made Orders that may be summarised as follows:
a)The Father and the Mother have equal shared parental responsibility for the Children.
b)Until further order the Children live with the Father.
c)The Father to collect the Children on 23 December 2015.
d)Until further order, the Children spend time with the Mother as agreed in writing or by text message between the parties.
e)The proceeding be adjourned to 9 March 2016 in the Duty List.
The Orders made on 22 December 2015 included the following notation by Judge Hartnett (as Her Honour then was):
A. Neither parent wants the children to live with them. The Respondent mother submits she is suffering from stress.
On 9 March 2016 when the matter again came before the Court the Father appeared in person and the Mother and the ICL were legally represented. The Court made Orders by consent that may be summarised as follows:
a)The matter was listed for final hearing on 14 December 2016.
b)Pursuant to s.62G(2) of the Act the parties and the Children were ordered to attend upon a family consultant for the purposes of the preparation of a family report.
c)Until further order, the Children spend time and communicate with the Mother as follows:
i)In alternate weeks from the conclusion of school on Friday until 6.00 pm on Sunday;
ii)For half of each school holidays;
iii)On each of the Children’s birthdays at times to be agreed;
iv)By telephone at all reasonable times with the Father and his relatives to facilitate the calls;
v)As otherwise agreed between the parties in writing including SMS text message.
d)For the purposes of changeover, the Mother to collect the Children from school on Fridays. Changeover on non-school days to occur on alternating basis between the Suburb QQ Police Station and Suburb G Police Station.
e)The parents to keep one another informed as to their telephone numbers and residential addresses.
f)The parents were authorised to communicate directly with the Children’s school, kindergarten and other institutions and to receive copies of notices, newsletters, school reports and all other documents usually provided to parents.
g)Each parent to, as soon as practicable, notify the other of any emergency in relation to the Children.
h)Mutual non-denigration orders.
i)Each parent be at liberty to communicate with the Children by telephone and/or Skype at all reasonable times whilst they are in the care of the other parent.
On 21 November 2016 the second Family Report, prepared by Family Consultant Ms R (Second Family Report), was released.
On 30 November 2016 the Father filed a trial affidavit (Father’s November 2016 Affidavit), which he prepared himself as a self-represented litigant. On 9 December 2016 the Mother filed her trial affidavit (Mother’s December 2016 Affidavit).
On 14 December 2016 the matter was listed for final hearing. The Father appeared in person and the Mother and the ICL were legally represented. The Court adjourned the proceeding to 2 August 2017 for final hearing. The Court also made Orders by consent which may be summarised as follows:
a)The Father and the Mother have equal shared parental responsibility for the Children.
b)Until further order the Children live with the Father.
c)Until further order of the Children spend time and communicate with the Mother as follows:
i)From the conclusion of school on Friday until 6.00 pm on Sunday in two out of three weeks during school term, to extend to 6.00 pm on Monday if it is a non-school day;
ii)For one half of each of the school term holidays;
iii)For one half of the long summer vacation;
iv)For three hours on or around each of the Children’s birthdays;
v)By telephone at all reasonable times;
vi)As otherwise agreed between the parties in writing including by SMS text message.
d)For the purposes of changeover the Mother will collect the Children from school on Friday and the Father shall collect the Children from the Mother on Sunday. Changeover on non-school days to occur on an alternating basis between the Suburb QQ Police Station and the Suburb G Police Station.
e)The parents to keep one another informed as to their telephone numbers and residential addresses.
f)The Mother to engage in personal counselling and a Family Support Service and to authorise the ICL to liaise with and communicate with the personal counsellor and the Family Support Service.
g)The children W, X and Y to attend children’s counselling for assistance with understanding their experiences in relation to family separation. The details of the Children’s counselling arrangements to be conveyed to the ICL and to the other parent.
h)Upon commencement of the 2017 year, the parties do all such things necessary to ensure that W and X enrol in a tutorial or homework club and the parties do all things necessary for the Children to attend such tutorial or homework club.
i)The Father and the Mother each separately attend a parenting orders program for support on developing effective co-parenting relationship and for understanding the children’s additional developmental needs post separation. Each parent to provide the other and to the ICL with a copy of the certificate of successful completion of such program.
j)The ICL be authorised to provide a copy of the family report to Counsellors working with the family.
On 11 May 2017 the Court advised the parties that the final hearing listed for 2 August 2017 had been re-listed to 6 July 2017.
On 30 June 2017 the Father filed a Further Amended Initiating Application (Further Amended Initiating Application) seeking final orders that:
a)The Mother and the Father have equal shared parental responsibility for the Children.
b)The Children live with the Father.
c)The Children spend time and communicate with the Mother as agreed between the parties in writing and failing agreement:
i)Each alternate week from 10:00 am Saturday until 6:00 pm Sunday;
ii)For half of the school term and long summer holidays by agreement and failing agreement on a week about basis;
iii)On each of the Children’s birthdays from 4:00 pm to 7:00 pm;
iv)From 11:00 am Christmas Eve until 11:00 am Christmas Day commencing 2017 and each alternate year thereafter;
v)From 11:00 am Christmas Day until 11:00 am Boxing Day commencing 2018 at each alternate year thereafter;
vi)On Mother’s Day, should the Children not already be spending time with the Mother, from 10:00 am to 6:00 pm;
vii)On the Mother’s birthday should the Children not already be spending time with the Mother, from 4:00 pm to 7:00 pm;
viii)By telephone at all reasonable times with the Mother to initiate the call to the Father’s mobile phone and the Father to facilitate the call;
ix)As otherwise agreed between the parties in writing including SMS text message.
d)The Mother’s time with the Children be suspended on Father’s Day from 10:00 am to 6:00 pm.
e)For the purposes of changeover, the Mother to collect the Children from the Father’s residence at the commencement of time and the Father to collect the Children from the car park at Suburb G Shopping Centre at the conclusion of the Mother’s time.
f)The parents to notify each other of any changes to their telephone numbers and residential addresses within 48 hours.
g)The parents be authorised to communicate directly with the Children’s school, kindergarten and other institutions, and to receive copies of notices, newsletters, school reports and all other documents usually provided to parents.
h)Each parent, as soon as practicable to notify the other of any emergency in relation to the Children.
i)Mutual non-denigration injunction.
j)Each parent be at liberty to communicate with the Children by telephone and/or Skype at all reasonable times whilst they are in the care of the other parent.
On 4 July 2017 the Mother filed an Amended Response (Amended Response) seeking final orders that:
a)The Mother and the Father have equal shared parental responsibility for the Children.
b)The Children live with the Mother.
c)The Children spend time and communicate with the Father as follows:
i)Each alternate weekend from Friday after school until Sunday 6:00 pm;
ii)Half of all school holidays, each first week;
iii)On all even years all day: Christmas Day, Boxing Day, Easter, New Year’s Day, the Mother’s birthday, and the Children’s birthdays.
d)Telephone communication at reasonable times.
e)Otherwise as agreed between the parties in writing including SMS text message.
f)For the purposes of changeover, the Mother and Father to facilitate pickup and drop-off at the parents’ homes and if not agreed at the nearest police station.
g)The Father’s time to be suspended on each Mother’s Day and the Mother’s time to be suspended on each Father’s Day.
h)The Mother and Father keep the other notified in relation to any medical emergency or serious health issues affecting the Children whilst in their care.
i)Otherwise in accordance with the orders sought in the Father’s Further Amended Initiating Application referred to in sub-paragraphs 51(f) to (j).
On 6 July 2017 the proceeding came before the Court for final hearing. On this occasion all parties were represented. The Court made the following orders:
a)The proceeding be adjourned to 6 June 2018 for final healing with priority.
b)Pursuant to s. 62G(2) of the Act the parties and the Children attend upon a Family Consultant for the purposes of an updated family report.
On 28 July 2017 the Court advised the parties that the proceeding had been relisted to 29 January 2018. On 13 December 2017 the Court further advised the parties that the proceeding had been relisted to 3 April 2018 as the Court was unable to complete the updated family report prior to the adjourned date of 29 January 2018.
On 8 February 2018 Court ordered that the Mother and Father attend Family Dispute Resolution Service at Victoria Legal Aid after the release of the third Family Report and before the date of the final hearing.
On 23 March 2018 the third Family Report, again prepared by Family Consultant Ms R (Third Family Report), was released.
The first occasion that this matter came before me was at the commencement of the final hearing on 3 April 2018. On that day the Father’s Counsel opened the Father’s case, the Father gave limited evidence and was then cross-examined by the Solicitor for the Mother and by Counsel for the ICL. The Mother then gave limited evidence. The Mother was assisted by an interpreter whilst giving evidence, although she gave some evidence herself in English. The Mother was cross-examined by Counsel for the Father.
On the second day of the final hearing the Mother continued to be cross-examined by Counsel for the Father and then Counsel for the ICL. The Court was advised by Counsel for the ICL that Ms R, the Family Consultant who prepared the Second Family Report and the Third Family Report had become unwell and would be unavailable to attend Court in the near future. The hearing was therefore adjourned to 5 June 2018 for a further hearing of one day.
On the third day of the hearing, 5 June 2018, the Mother’s cross-examination by Counsel for the ICL continued. The Mother was then given leave to adduce evidence from Ms S, who had provided counselling to the Mother in 2017. The Mother’s solicitors had not filed an affidavit by Ms S but had instead annexed a report prepared by Ms S, dated 5 December 2017 to the Mother’s Affidavit, filed 26 March 2018 (Ms S Report)[22].
[22] Affidavit of the Mother, filed 26.3.18, Annexure “A”.
Ms S adopted the Ms S Report, gave evidence as to her qualifications and experience and was then cross-examined by Counsel for the ICL and for the Father.
The Solicitor for the Mother then sought leave to adduce viva voce evidence from the Mother’s sister who had attended Court that day with the Mother’s brother. There was no affidavit filed in relation to this proposed witness and the application to adduce viva voce evidence was made without notice to any of the other parties or to the Court. The application was refused by the Court on the basis that there had been an adjournment of the proceeding since 4 April 2018 and the Mother’s solicitors had sufficient time to prepare and serve any further proposed affidavit of the witness on the other parties, before seeking leave of the Court to adduce evidence from the proposed witness[23].
[23] Transcript T 293:1-28.
Ms R was then cross examined by Counsel for the ICL and the Father and by the Solicitor for the Mother. The proceeding was unable to be concluded that day and was adjourned to 17 August 2018 for a further hearing of one day.
On the fourth day of the final hearing, 17 August 2018, each of the parties made their closing submissions. Judgment was then reserved.
Judgment was delayed because in early 2019 I became unwell and required serious back surgery in May 2019 and I then required a significant period of leave subsequently to recuperate.
On 26 August 2019 I held a directions hearing in this matter. After hearing submissions from the parties I Ordered that:
a)The matter be listed for further hearing on 29 November 2019 at 10.00 am, with an estimate of one day.
b)Each party to provide to the ICL within seven days the full name and date of birth of any person living in their household at any time when the Children were living in or visiting the household.
c)Pursuant to s.69ZW of the Act it was requested that the Department of Health and Human Services provide specified documents to the Court.
d)Pursuant to s.11F of the Act the parties and the Children attend upon a Family Consultant of the Court for the purposes of a child inclusive conference on 20 November 2019 and that the Family Consultant provide a written memorandum as soon as practicable.
e)The Applicant and Respondent file and serve updating affidavits by 7 October 2019.
On 6 October 2017 the Mother filed an affidavit (Mother’s October 2019 Affidavit)[24].
[24] Mother's Affidavit, affirmed 6.10.19, filed 26.11.19.
On 7 October 2019 the Father filed an Affidavit (Father’s October 2019 Affidavit) which set out the final orders that he sought. On 9 October 2019 the Father filed an Application in a Case (Application in a Case) seeking orders that:
a)He be permitted to obtain W and X’s passports without the Mother’s consent pursuant to s. 11 of the Australian Passports Act 2005 (Cth) (Passports Act).
b)In the event that any of the Children require a passport or a new passport in the future, the Mother sign the passport application within seven days of receiving the application.
c)In the event that the Mother does not sign the passport application, the Father be permitted pursuant to s.11 of the Passports Act to obtain the Children’s passports without the Mother’s consent.
d)Orders 10, 11 and 12 of the Orders made on 3 August 2015 be discharged and the Children be removed from the Airport Watch List.
e)The Father be permitted to take W and X from the Commonwealth of Australia for a period of three weeks during the 2019 long summer holidays for the purpose of a holiday to Country A and Country B[25].
[25] It is noted that the Application in a Case at order 5 states the “2018 long summer holidays”. This is an error.
On 26 November 2019 the Mother filed a Response to an Application in a Case opposing the orders sought by the Father in the Application in a Case. The Mother also filed a document entitled Proposed Final Orders by Respondent Mother (Mother’s Proposed Final Orders).
On 21 November 2019 the Child Inclusive Conference Memorandum to Court Family Report, prepared by Family Consultant Gee (Section 11F Memorandum), was released.
The final day of the hearing of this proceeding took place on 29 November 2019. Neither of the parties or the ICL sought to cross- examine Mr T, the Family Consultant who prepared the Section 11F Memorandum[26]. Counsel for the Father did not seek to cross-examine the Mother[27]. The Solicitor for the Mother did not seek to further cross- examine the Father[28].
[26] Transcript (29.11.19) T 2:14-16; T 7:26-28.
[27] Transcript (29.11.19) T 7:16.
[28] Transcript (29.11.19) T 12:22-26.
The Father’s Counsel pursued the Father’s Application in a Case by way of submissions. Counsel for the ICL made submissions in support of the orders that the Father sought in the Application in a Case. Counsel for the Mother made submissions opposing the orders the Father sought in the Application in the Case.
The Court made Orders that:
a)Until further order, the parties, their servants and/or agents be restrained by injunction from removing or attempting to remove or causing or permitting the removal of the Children from the Commonwealth of Australia, without prior Order of the Court or the prior written agreement of both parties.
b)The Application in a Case be dismissed.
c)Judgment be reserved.
The parties and the ICL were advised that the reasons for the dismissal of the Application in a Case would be included in this Judgment[29].
[29] Transcript (29.11.19) T 25:1-2.
Legal Representation
Before proceeding further in this Judgment comment should be made concerning the parties’ legal representation during the preparation for the final hearing and the final hearing of this matter. The Father and the ICL each had the benefit of being funded by Victoria Legal Aid[30]. Each were therefore able to retain Counsel who specialise in family law, have each been in practice for some forty years and are experienced Counsel.
[30] Transcript (26.8.19) T 4:7-17.
Conversely, the Mother had to pay for her own legal representation. As will be seen later in this in this Judgment, the Mother has been on a very modest income. It was evident during the conduct of the trial that the Mother’s case was being conducted on a ‘shoestring budget’. It was also evident that the Mother had retained lawyers who were not as experienced in the family law jurisdiction as the Father’s lawyers, the ICL and Counsel retained by the ICL.
The Father has been critical of the Mother for at times not spending as much time with the Children on weekends as was allowed pursuant to Court Orders. The Father has repeatedly complained that the Mother “[…] has been busy with work”[31]. The Mother explained when giving evidence on a number of occasions, that she had to work to earn money to pay for her legal fees[32]. I have taken the Mother’s need to earn money to pay her legal fees into account when considering s.60CC(3)(c)(ii) and (iii) of the Act.
[31] Father’s Affidavit, filed on 22.3.18, at [12]. See also the Father’s Affidavit, filed 30.6.17, at [53].
[32] For example Transcript T 190:12-15; T 224:20-23.
The Proposals of the Parties at Trial
I turn now to each of the parties’ proposals as submitted to the Court on 29 November 2019.
Father’s Proposal
The Father’s proposal was articulated in the Father’s October 2019 Affidavit at paragraph 50. The Father’s Counsel confirmed that the Father continued to seek these orders[33]. The Father’s proposal is the same as the orders the Father sought in the Further Amended Initiating Application, referred to in paragraph 50, save that:
a)The Father seeks orders that the Children spend time with the Mother each alternate week from Friday 6:30 pm until Sunday 6:00pm.
b)The Father also seeks as final orders the same orders he sought in the Application in a Case in relation to the Children’s passports, as referred to in sub-paragraphs 67(a) to (c) (Father’s Proposal).
[33] Transcript (29.11.19) T 7:30-8:3.
The Father’s Counsel advised the Court that if it was ordered that the Children live with the Mother, the Father sought the “mirror image” of the orders sought in paragraph 50 of the Father’s October 2019 Affidavit[34].
[34] Transcript (29.11.19) T 8:29-34.
Documents Relied Upon by the Father
The Father relied on the following documents:
a)Further Amended Initiating Application.
b)Father’s December 2013 Affidavit.
c)Father’s July 2015 Affidavit.
d)Father’s November 2016 Affidavit.
e)Father’s Affidavit, filed 30 June 2017.
f)Father’s Affidavit, filed 22 March 2018.
g)Father’s October 2019 Affidavit.
h)Case Outline of the Applicant Father, filed 3 July 2017.
Mother’s Proposal
The Mother relied upon the orders set out in the Mother’s Proposed Final Orders (Mother’s Proposal). The orders sought in this document were the same as the orders sought in the Mother’s Amended Response referred to in paragraph 52.
The Mother’s Counsel advised the Court that if it was ordered that the Children live with the Father, the Mother sought an order that the Children’s time commence with her on each alternate Friday at 5.00 pm and conclude on the Sunday at 6:00 pm[35].
[35] Transcript (29.11.19) T 19:15-18.
Documents Relied Upon by the Mother
The Mother relied upon the following documents[36]:
a) Amended Response.
b) Mother’s June 2015 Affidavit.
c) Mother’s December 2016 Affidavit.
d) Mother’s Affidavit, filed 4 July 2017.
e) Mother’s Affidavit, filed 26 March 2018.
f) Mother’s October 2019 Affidavit.
g) Case Outline on Behalf of the Respondent Mother[37].
h) Mother’s Proposed Final Orders.
[36] Outline of Case for the Applicant Mother, received in Court on 26 August 2018 and not filed, at [1]-[5] and T10:1-11:1.
[37] Outline of Case for the Applicant Mother, received in Court on 26 August 2018 and not filed.
ICL’s Proposal
The ICL agreed with the Father’s Proposal[38]. Counsel for the ICL also sought an order that if either party was proposing to travel overseas with the Children, that they give the other parent 45 days’ written notice and a copy of the proposed travel itinerary[39].
[38] Transcript T 2:6-13:46; T 38:35-43; (29.11.19) T 3:25-4:25.
[39] Transcript T 12:42-45.
Evidence
The standard of proof in this case is the balance of probabilities: s.140 of the Evidence Act1995 (Cth).
Section 140 of the Evidence Act1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
The Mother and the Father relied upon their affidavits. The evidence set out the history of their relationship and I do not propose to repeat it in this judgment.
In Bell & Nahos[40] Strickland J addressed the obligations of a trial judge as follows:
[…] it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
[40] [2016] FamCAFC 244.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
I can see no error here in her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to the reach her decision[41].
[41] Ibid., at [28]-[29].
Both the Mother and the Father gave limited evidence and were cross-examined. I therefore had the benefit of observing both parties in the witness box for a period of time and observing their demeanour in the Court throughout the proceeding.
The Father
The Father omitted relevant and significant evidence from the Father’s July 2015 Affidavit in relation to his relationship with Ms U. The Mother deposed in the Mother’s June 2015 Affidavit that the Father had married his Region N, Country L fiancée whilst on his holiday to Country B, Country A and Country L from 2014 to 2015[42]. In response the Father said:
During my time over in Country L did meet another woman but we are not engaged[43].
[42] Mother’s June 2015 Affidavit, at [17].
[43] Father’s July 2015 Affidavit, at [14].
During the trial Counsel for the Mother produced copies of the following documents which had been posted on the Father’s Facebook page on 17 May 2015[44]:
[44] Exhibit R1; Transcript T 37:10-33; T 34:7-10.
a)Photos of the Father and Ms U. The Father identified Ms U in these photos as being “my partner”[45]. The photos were pictures of:
[45] Transcript T 33:5-24.
i)The Father and Ms U with the Father wearing a suit and Ms U wearing a wedding dress;
ii)Ms U wearing a long blue dress and prominently displaying a ring on a finger on her left hand;
iii)Ms U wearing a long red dress.
b)Facebook posts dated 17 May 2015 which said:
i)Ms V: Wow beautiful wife ;
ii)Mr AA: You have a beautiful wife. Congragulations!;
iii)Ms BB: very accurate nature;
iv)Ms CC: Beautiful;
v)Ms DD: Congrats, your wife is beautiful.
When faced with this evidence at trial the Father said that it was “[…] not a legal marriage” and said that they “[…] did not obtain any marriage certificate”[46]. The Father could not say otherwise whilst on oath and giving evidence, as the Divorce Order in relation to his marriage to the Mother was not made until December 2015.
[46] Transcript T 34:37-45.
The Father said that he went to a wedding studio with Ms U when he was in Country L, where they dressed up in wedding clothes and had their photo taken. The Father acknowledged that one of the photos was of Ms U displaying a wedding ring[47]. When cross-examined by Counsel for the ICL, the Father said that Ms U had been selected as a Wife for him by his parents and that he had accepted the selection. The cross-examination then proceeded as follows:
[47] Transcript T 38:5-26.
Counsel: So do you have to do an outward sign of accepting the selection made by the parents?
Father: Yes. You have to do it when - because when the girl is selected and you have accepted her, you have to show that yes, you have a commitment of marrying her in the future, and that’s not the final. The final has come after you have a conversation, a long period of time with the girl, study yourself and then come and get the final… which has not happened in our case, but I do accept that the parent choose her. We take that photos, and she is there […][48].
[…]
[48] Transcript T 96:20-28.
Counsel: Has she expressed a desire to you to come to Australia?
Father: No[49].
[49] Transcript T 103:43-44.
When being cross-examined by Counsel for the Mother, the Husband said that he did not have any intention to bring Ms U to Australia, saying that she was still a student and needed to go back to school[50].
[50] Transcript T 35:6-14.
This evidence stands in stark contrast to the evidence in the Father’s July 2015 Affidavit that he was “not engaged”[51]. I find that the Father’s evidence concerning his relationship with Ms U in the Father’s July 2015 Affidavit was deliberately intended to mislead the Court about the status of his relationship with Ms U.
[51] Father’s July 2015 Affidavit, at [14].
The Father was interviewed for the Second Family report on 3 November 2016. Ms R reported:
He has a girlfriend who lives in Country L who he is in contact with, however he said they do not have any current plans for her to immigrate to Australia. [The Father] explained that the paternal grandparents selected his girlfriend as someone who might potentially be his future partner but he has not yet decided whether she is suitable. [The Father] said his girlfriend is 19 years old and is currently completing school[52].
[52] Second Family Report, at [9].
[…]
In a discussion about [the Mother’s] claim that [the Father] had already remarried in Country L, [the Father] reported that he had no current plans to remarry or for his current girlfriend to immigrate to Australia. He acknowledged that the paternal grandparents had selected his current girlfriend with the intention that she would become his future bride, and that he was currently in contact with her. When the writer raised concerns about the challenges associated with a 19 year old woman becoming stepmother to four children, [the Father] explained he had no intentions of expecting his new partner to be exclusively responsible for caring for the children and that he had not yet decided whether he would marry his girlfriend[53].
[53] Second Family Report, at [35].
This account provided by the Father on 3 November 2016 to Ms R again stands in stark contrast to the evidence produced at trial and referred to in paragraph 91.
At the time of writing the Second Family Report, Ms R was however not persuaded by the Father’s account of his relationship with Ms U. Ms R said:
However there is a subtlety to the Father’s claims and they appear inconsistent with his behaviour in returning to full-time study, his reliance on others to provide care for the children, and his accounts about his future plans to focus his efforts on developing financial resources to meet the children’s future needs[54].
[54] Second Family Report, at [35].
In the Second Family Report Ms R concludes:
If the children remain living primarily with [the Father], there are a number of indications, albeit denied by him, that they are likely to experience another change in primary caregiver after he remarries[55].
[55] Second Family Report, at [90].
The Father continued to obfuscate and fail to provide accurate information concerning his relationship with Ms U throughout the course of this proceeding. This obfuscation was deliberate and intentional. It was designed to ensure that the Court did not give any serious consideration to the prospect of the Children having a change in primary caregiver if they remained living with the Father, when Ms U migrated to Australia on a spouse visa.
In the Third Family Report Ms R reported:
[The Mother] expressed the view that [the Father] remarried in Country L in early 2017, and claimed that the maternal uncle had a photograph of the wedding. [The Mother] was also aware that [the Father] now has another child. She reported that she had not spoken to the children regarding their father’s remarriage or their baby half-sister[56].
[56] Third Family Report, at [47].
During the final hearing of this matter the Father admitted during cross-examination that he had a daughter with Ms U by the name of “C”, who was born on 2017[57]. There was no reference to this evidence in any affidavit material filed by the Father prior to the commencement of the final hearing. In particular there was no reference to:
a)The fact that Ms U was pregnant with the Father’s child in the Father’s Affidavit, filed 30 June 2017; or
b)The birth of C in 2017 in the Father’s Affidavit, filed on 22 March 2018.
[57] Transcript T 100:32-41.
I find that these were deliberate and material omissions from the Father’s affidavits filed on 30 June 2017 and 22 March 2018, in order to mislead the Court about the status of the Father’s relationship with Ms U.
The Father was again questioned about his relationship with Ms U when interviewed by Ms R for the Third Family Report on 13 March 2018. Ms R reported:
[The Father] is still in a relationship with his girlfriend in Country L, and said that in 2017, his girlfriend gave birth to their child. [The Father] has not informed the children that they have a baby sister, and he reported that there are no plans for his girlfriend to immigrate to Australia[58].
[58] Third Family Report, at [5].
In the evaluation in the Third Family Report Ms R said:
[…] it appears that [the Children] are facing a similarly significant change in their lives if they remain in the care of [the Father]. [The Father’s] account that he has a girlfriend in Country L but there are no plans for her to immigrate to Australia appears inconsistent with his account that they have a child together. He has not informed the children that they have a baby sister and this prevented the writer from exploring the children’s relationships with or attitudes towards their stepmother and sister. The suggestion from [the Father’s] accounts is that their relationships are minimal if non-existent […] A number of concerns are raised by the inconsistency of [the Father’s] accounts. He demonstrated a limited understanding that introducing the children to their stepmother and baby sister prior via Skype would likely assist the children to adjust to the significant changes in their family constellation. It is also possible that the children’s awareness of their baby sister and potential new stepmother may have impacted on their accounts at interview[59].
[59] Third Family Report, at [100].
At the trial of this matter the Father gave evidence that he had told the Children the week before the commencement of the trial about the birth of the child C[60]. The Father said that the Children already knew about the birth of their step-sister, as the Mother had already told them. This claim was not put to the Mother in cross-examination.
[60] Transcript T 101: 1-8.
When I questioned the Father about his intentions towards Ms U, he first agreed that he had committed to the relationship and then said that he had still not decided whether to bring her to Australia or not[61]. I found the Father’s evidence in relation to the status of his relationship with Ms U when I questioned him to have been wholly evasive and unconvincing. I did not believe that he had not decided to apply to bring Ms U to Australia.
[61] Transcript T101:15-102:14.
In the Father’s October 2019 Affidavit he deposed:
I am still in relationship with my fiancée, MS U, who lives in Country A (sic)[62].
[…]
She and I have a child together, C who is currently two years old.
The other children know about C. They speak to Ms U and C almost every weekend, and I speak to Ms U nearly every day.
[…]
At the moment they are no concrete plans for Ms U to come to live in Australia (sic). The delay has been because it costs a lot of money to bring an application for a visa for a person to come to Australia and also because her mother was sick and so the time was not yet right.
I have done the citizenship paperwork for C so she is an Australian city by descent.
[62] Father’s October 2019 Affidavit, at [28].
[…]
I intend that Ms U and C will come to live in Australia in the next few years, once my financial circumstances can support them[63].
[63] Father’s October 2019 Affidavit, at [28], [30], [31], [33]-[35].
The Father was interviewed for the Section 11F Memorandum on 20 November 2019. Family Consultant Mr T reported:
The father has a wife and young child in Country L whom he wishes to see. He states he and the children talk regularly on the phone with them and he wishes all to meet when they are able[64].
[64] Section 11F Memorandum, at [10].
As I have noted in paragraph 70, Counsel for the Father did not seek to cross-examine Family Consultant Mr T at the hearing on 29 November 2019. Therefore Mr T’s reference to Ms U as the Father’s Wife in the Section 11F Memorandum remains unchallenged.
I consider it more likely than not that the Father married Ms U during his visit to Country L between 2016 and 2017, referred to in paragraph 23. I have arrived at this conclusion on the basis that:
a)The Divorce Order in relation to the Father’s Marriage to the Mother was made on 9 December 2015 and consequently the Father was free to re-marry.
b)The child C was born in 2017, therefore was conceived during the Father’s visit referred to in the preceding sub-paragraph. The pregnancy is indicative of an increased commitment between the Father and Ms U.
c)The Father’s persistent failure to properly disclose material matters concerning his relationship with Ms U to the Court throughout this proceeding.
d)The reference to Ms U as being the Father’s ‘Wife’ by Mr T in the Section 11F Memorandum after interview with the Father.
I do not believe that the Father will be waiting for the next “few years” before he applies to sponsor Ms U to migrate to Australia. One of the purported reasons for the delay in Ms U migrating to Australia, the illness of her Mother, no longer exists with the passing away of her mother[65]. The Father deposes that he talks to Ms U “nearly every day”[66]. In my opinion it is more likely that not that the Father will be undertaking everything within his power to arrange for Ms U and C to migrate to Australia as soon as possible after Judgment in this proceeding is delivered.
[65] Father’s October 2019 Affidavit, at [29].
[66] Father’s October 2019 Affidavit, at [31].
As a result of the Father’s calculated and persistent non-disclosure of evidence in relation to his relationship with Ms U, I find him to have been wholly untruthful in relation to this matter. Where the Father’s evidence differs to that of the Mother’s evidence, I prefer the Mother’s evidence.
The Mother
The Mother endeavoured to answer questions in English at the commencement of her cross-examination on 3 April 2018, however she soon requested the assistance of the interpreter. The Mother had some difficulty giving evidence whilst under cross-examination. The difficulties were particularly acute when being cross-examined by Counsel for the Father. This cross-examination lasted for most of the day on 4 April 2018. Counsel for the Father adopted quite an aggressive style of cross-examination of the Mother. The Interpreter had some difficulty on occasions understanding English words and often asked for questions to be repeated[67]. Counsel for the Father also had persistent difficulty in adapting his cross-examination by using shorter sentences with non-complex words for the Interpreter[68]. I formed the opinion that it was also possible that some of the questions were being interpreted to the Mother with a different emphasis to that being given by the cross-examiner, whether it be Counsel for the Father or the ICL. Consequently the Mother often seemed to be answering a slightly different question to that asked by Counsel.
[67] For example: Transcript T 145:12-25; T 153:9-12; T 153:37-154:5.
[68] For example: Transcript T 131:45-132:35; see also T 140:29-141:1; 164:42-165:4.
The Mother had never given evidence before[69]. In my view the Mother was often genuinely trying to be helpful by giving additional evidence, however this resulted in answers which were not specific to the question being asked. This happened on a number of occasions and created the appearance of the Mother being non-responsive to questions. On some occasions the Mother was simply being non-responsive and had to be reminded to answer the actual question asked. The Mother became emotional at times. A degree of antagonism developed between the Interpreter and Counsel for the Father[70]. Ultimately later in the afternoon on 4 April 2018 the Interpreter complained to me that he was having difficulties and that Counsel for the Father was suggesting that “[…] maybe I’m not interpreting what he actually asked me to interpret”[71] and that Counsel was making him feel “[…] uncomfortable in this situation of interpreting”[72]. I then had to intervene to reduce the antagonism that the Interpreter was experiencing towards Counsel for the Father[73]. The antagonism between the Interpreter and Counsel for the Father did not assist the clarity with which the Mother’s evidence was adduced under cross-examination by either Counsel for the Father or Counsel for the ICL.
[69] Transcript T 220:11-12.
[70] For example: Transcript T 153:41-155:10.
[71] Transcript T 199:19-21.
[72] Transcript T 199:33-34.
[73] Transcript T 198:45- 200:14.
On occasions the Mother was prone to exaggerate, however I found the Mother to have been a truthful witness. Where her evidence differs from that of the Father’s evidence, I prefer the Mother’s evidence.
Ms R – Family Consultant
Ms R was cross-examined by Counsel for the ICL and the Father and also the Solicitor for the Mother. Ms R impressed as competent and truthful professional witness, who was prepared to make concessions where appropriate.
Ms S
Ms S was cross-examined by Counsel for the ICL and the Father. Ms S had counselled the Mother over fourteen sessions from 4 July 2017 to 28 November 2017. As the Mother’s counsellor Ms S was clearly not providing an independent forensic opinion on the state of the Mother’s mental health. Ms S impressed as a competent and professional witness.
The Law
The principles governing the Court’s decision in this proceeding are set out in Part VII of the Act. The Court in determining this application must consider what orders are in the Children’s best interests: s.60CA of the Act. What this means in individual cases is determined by a number of statutory provisions.
The objects of Part VII of the Act are set out in s.60B(1) and assist in clarifying what Part VII aims to achieve to ensure that the best interests of children are met. There are also principles that underlie these statutory objects: s.60B(2).
Section 65D of the Act gives the Court power to make a parenting order which is defined by s.64B(1).
In determining what is in the Children’s best interests the Court must consider the matters set out in s.60CC of the Act. Section 60CC sets out the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the Children. Each of those matters where relevant must be considered and assessed in the context of the respective proposals. The Court must then determine which of the proposals is in the Children’s best interests.
The Court is not bound by the parties’ respective proposals (AMS v AIF[74] and U v U[75]).
[74] (1999) 199 CLR 160.
[75] (2002) 211 CLR 238.
In applying the primary considerations the Court is to give greater weight to the considerations set out in s.60CC(2)(b): s.60CC(2A).
The Full Court in Goode v Goode[76] mandated that the legislative pathway must be followed in all parenting cases[77]. I will first consider the primary considerations of the Act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
[76] (2006) 36 Fam LR 422.
[77] Ibid., 445, at [81]-[82].
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford[78], Mazorski & Albright[79] and McCall & Clark[80].
[78] [2013] FamCA 33.
[79] (2007) 37 FamLR 518.
[80] (2009) FLC 93-405.
This is a matter in which W, X, Y and Z’s best interests are met if they are able to have a meaningful relationship with both the Father and the Mother.
In the Section 11F Memorandum Family Consultant Mr T reported:
In brief observations the children were very happy to see their mother and warmly embraced while being able to disengage as appropriate when it was needed.
The children appeared a little more reserved with their father but there was a sense of easy companionship and familiarity[81].
[81] Section 11F Memorandum, at [30] and [31].
In the Third Family Report Ms R reported:
The observation suggested that [the Father] has positive relationships with each of the children, and a particularly warm relationship with Z[82].
[…]
[82] Third Family Report, at [72].
The observation suggested that [the Mother] has warm relationships with each of the children[83].
[83] Third Family Report, at [75].
[…]
The children’s needs for increased time with their mother may also be supported by their accounts at interview and the observations of the children with each parent that suggested that they have a warmer relationship with [the Mother][84].
[84] Third Family Report, at [101].
I therefore conclude that W, X, Y and Z at present have a meaningful relationship with both of their parents.
A central issue in this case is however whether the Children will be able to continue to have a meaningful relationship with the Mother if they continue to live in the Father’s care.
Whilst the Father states that it is important for W, X, Y and Z to have a relationship with the Mother, the tenor of both his written and oral evidence is such that it is apparent that he holds no respect for her as a person or as a parent and that he sees no real benefit for the Children in having a relationship with her or the Mother’s family. The Father presented as an arrogant man who was contemptuous of the Mother and her family, especially the Maternal Grandmother.
In the Second Family Report Ms R reported:
[The Father] presented in a quietly spoken and polite manner at interview but responded to each topic raised with critical and derogatory comments about [the Mother]. As many of the topics raised for discussion related to the father’s experiences and behaviour, not the mother’s, [the Father’s] responses were somewhat inappropriate. [The Father] was requested to refrain from this practice more than once, but towards the end of the interview he became increasingly assertive and argumentative about his “right” to express his negative views about [the Mother]. [The Father’s] behaviour raised concerns about how this behaviour might be related to features of coercive controlling behaviour, the effects of possible exposure to hostile views of [the Mother] on the children, and about [the Father’s] capacity to follow professional direction.
[The Father] is seeking that the children remain living primarily with him, as he considered that there is a risk that [the Mother] will neglect the children’s needs as she is more interested in attending “night parties” and gambling. He proposed [the Mother] is unable to provide the children with a stable environment as post-separation she relocated with the children several times. He reported that when X began attending E School at the beginning of year she was significantly behind in her reading and writing skills and he proposed this was caused by [the Mother’s] inability to support the children’s literacy needs due to her limited English language skills.[85]
While [the Father] claimed that he facilitated the children’s on going relationship with their mother he did not provide comment on whether he considered spending time and having telephone contact with [the Mother] once per week was sufficient supporting the children’s relationships with her[86].
[85] Second Family Report, at [31]-[32].
[86] Second Family Report, at [39].
In the Second Family Report Ms R commented in her evaluation:
There are also suggestions that [the Father] may be unwilling to facilitate the children’s relationship with [the Mother]. She alleged that he has limited the telephone contact she has with the children and has not provided her with information about the children’s health needs. It also appears that [the Father] has not facilitated [the Mother] receiving information about W and X’s academic progress from E School. Although [the Mother’s] work commitments have reduced the time the children spend with her on alternate weekends, at interview [the Father] argued strongly that the time the children spend with [the Mother] should be reduced by a further two hours so he could support their ability to complete their homework. [Z] and Y are not attending school and do not have homework. W is performing either at, or above, her expected literacy and numeracy levels. X is on an individual learning plan that asks the parents to assist her with 15 minutes of reading and discussion about her reading each evening. [The Mother] reported that she assists the children with their reading homework, and was able to comment on W and X’s reading abilities. This raises concerns about [the Father’s] motivation for seeking to reduce the time the children spend their mother[87].
[87] Second Family Report, at [86].
In the Father’s November 2016 Affidavit, which he prepared himself whilst self-represented, the Father expressed the following views in relation to the Second Family Report:
I refer to paragraph 31 of the writer views and strongly disagree with the statement that I posed derogatory comments, coercive controlling behaviour and increasingly assertive and argumentative about my “right” to express negative views about [the Mother] as well as my capacity to follow professional direction. The writer would have specified those comments (as written)[88].
[88] Father’s November 2016 Affidavit, at [14].
In the Father’s November 2016 Affidavit the Father made the following comments in relation to the Maternal Grandmother:
[The Mother’s Mother] doesn’t speak English, don’t drive. I think it is difficult for someone who lacks these experiences to care for the children and develop them for their potential needs and this was the case in the previous years, [the Mother] relied on her mother taking care of the children which resulted in negative impact on them[89].
[89] Father's November 2016 Affidavit, at [31].
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Both parents are loving and caring parents.
There is evidence that the Mother has not acted as a responsible parent in the past when she suffered problems with gambling. This is discussed in relation to s.60CC(2)(b). The Court accepts that the Mother has overcome this difficulty.
A distinguishing feature of this case was the Mother requesting that the Children live with the Father in December 2015. The Mother requested that the Father take the Children on 22 December 2015. The Mother gave evidence that she was very stressed at the time[161]. On 9 December 2015, the Court had made a Divorce Order with respect to the parties’ marriage. The Mother gave evidence that the Father “Divorced me without reason”[162].
[161] Transcript T 141:19-42.
[162] Transcript T 135:29.
In the Third Family Report Ms R suggests that:
[…] the parent’s accounts support the view that [the Mother] may have been experiencing an adjustment disorder in December 2015, as they have not provided accounts to suggest that she demonstrates ongoing mental health difficulties[163].
[163] Third Family Report, at [91].
The Father accepted the responsibility of looking after the Children from 23 December 2015 and this is to the Father’s credit.
The Father has however not acted as a responsible parent with his recent application to take W and X to Country A and Country B. The Father proposed to take W and X visit the Paternal Grandmother and Ms U, who live in a permanent refugee camp in City EEE, Country A. This is an area which is so unsafe that the Australian Government rates the area with its highest travel warning of “Do not travel”. This clearly demonstrates the Father’s inability to prioritise his own interests over the best interests of W and X. I otherwise refer to the discussion in relation to s.60CC(3)(m).
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
The Mother filed affidavits in which she deposed that she had been both physically and emotionally abused during the marriage.
When cross-examined by Counsel for the ICL the Father denied that he committed domestic violence and abuse during the marriage[164].
[164] Transcript T 90:41-43.
In the Second Family Report in her evaluation Ms R said:
The parent’s accounts of the current co-parenting communication raises concerns that there continues to be an element of coercion and control in [the Father’s] willingness to provide information about the children’s needs to [the Mother]. Concern is also raised by his repeated description of the children’s experiences of living in emergency and temporary accommodation as a failure of the mother to provide stable accommodation. While [the Father] denies that he behaved with family violence towards [the Mother], his behaviour in dismissing the impact of [the Mother’s] reliance on housing services on her accommodation options and in attributing any difficulties in the children’s behaviour solely to her parenting decisions, gives a significant support to [the Mother’s] allegations that [the Father] behaved in a psychologically and emotionally controlling manner during their relationship.
The professional literature proposes that where children are exposed to high levels of parental conflict, high warmth parenting styles can have an ameliorative effect. The observations suggested not only that [the Mother] had a warmer relationship with the children, but that [the Father] may favour a parenting style that encourages the children to be more vigilant of his needs or expectations[165].
[165] Second Family Report, at [88]-[89].
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following
(i) the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
The Mother did not ever apply for a family violence order. The Mother provided the following reasons for not doing so at the time of the Final Separation:
[…] I have three reasons - I’m sorry – what - what delayed me or what prevented me to do so. First of all, I was the one who brought my husband here to this country. And if we have - we have parent or we have problem our culture actually is very clear. When we see there is a problem within the family we sit down as the family members including our relatives to sort out the issue. The issue of court, the issue of police is…. for us.
And that - that one thing. Secondly, as I said, I cannot bring my husband to this country and if something happened, say that we go to the police, go to the court, we will be, like, I brought him and then I started to…him. So I didn’t want that to be a count on me. The third one I was pregnant by then. So the time only that I spend at - -at the hotel where I was taken to was only two weeks […]
And I did not know even the process what to do, actually at the time […][166].
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
[166] T 252:35-253:4.
This is a matter where the litigation between the parties needs to cease, for their sake and for the sake of the Children.
It is a challenging task making final orders for children aged 12, 10, 8 and 6. Having considered the evidence, I have determined that the orders least likely to result in further litigation would be to order that W, X, Y and Z return to live with the Mother in time to commence school in 2020.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.
Application in a Case
These are the reasons for decision in relation to the dismissal of Application in a Case on 29 November 2019. I refer to paragraphs 67, 68, 71, 72 and 73.
In the Father’s October 2019 Affidavit he deposed:
My mother is currently living in Country A and is very unwell. I would like W and X to see her before she passes away. They missed out on meeting my father before he passed away as the mother would not let them travel with me to Country A when he was unwell.
We will also spend time with my fiancé and my other daughter, which is a good chance for them to get to know each other in person.
I note that the mother raises concerns in her affidavit filed 6 October 2019 about Country B and Country A, but that she herself travelled to Region NN, Country L and Country B for a holiday from late 2018 until 30 January 2019.
As W is about to enter secondary school and has been performing very well academically I would like to treat both her and X with holiday and give them the opportunity to experience these different cultures[167].
[167] Father’s October 2019 Affidavit, at [38]-[41].
The Father proposed that whilst he was away for three weeks visiting the Paternal Grandmother and Ms U, the Mother could care for Y and Z. Upon his return the Father proposed that the Mother could spend three weeks with W and X if she was able[168].
[168] Father’s October 2019 Affidavit, at [43].
In the Mother’s October 2019 Affidavit she opposed the proposed travel. The Mother deposed:
I am concerned about the proposed holiday as it will expose the two children to risk. I am concerned that my daughters may be offered up for marriage. I am concerned that the father is seeking to take the daughters to a part of the world where underage girls are at risk of sexual abuse, molestation and or underage arranged marriage[169].
[169] Mother’s October 2019 Affidavit, at [4].
In the Third Family Report Ms R reported in her evaluation:
In relation to the issue of the children travelling with [the Father] to Country A, [the Mother] expressed concern that [the Father] would not return to Australia with the children. Country A is not a party to the Hague Convention. The Smart Traveller website of the Australian Government recommends a high degree of caution when travelling in Country A due to the threat of terrorist attack, civil unrest and criminal activity. The service further recommends that Australians do not travel in the Region OO, Country L region or within 50 km of the border with Country L. This suggests that the risk of possible harm to the children associated with overseas travel may outweigh any benefits associated with travelling with either parent to visit relatives in Country L.[170]
[170] Third Family Report, at [93].
At the trial in closing submissions Counsel for the Father advised the Court that the Father had no proposal to take the Children to Country L. Counsel for the Father described travel to Country L with the Children as being “[…] a bit of a dead issue, really”[171].
[171] Transcript (17.8.18) 32:1-12.
In submissions on 29 November 2019 Counsel for the Father submitted that he was instructed that the Father intended to take W and Y to where the Paternal Grandmother and Ms U are living. Counsel informed the Court that they were living in a permanent refugee camp in City EEE, Country A[172]. This was not deposed to by the Father in the Father’s October 2019 Affidavit.
[172] Transcript (29.11.19) 5:16-19.
Counsel for the ICL noted that neither Country B or Country A are Hague Convention countries and referred generally to the Department of Foreign Affairs and Trade travel warnings. Counsel for the ICL nevertheless proposed that the Father be permitted to travel with W and Y, with the proviso that he not be permitted to travel within 50 kilometres of the northern or western border of Country A[173]. Counsel for the ICL tendered a printout of a DFAT Smart Traveller Advice in relation to Country A, dated 28 November 2019 (DFAT Country A Advice)[174].
[173] Transcript (29.11.19) T 4:13-15.
[174] Exhibit A.
The Court in determining this application must consider what are in the best interests of W and X: s.60CA of the Act. I refer to the discussion under the heading ‘The Law’.
In relation to s.60CC(2)(a) of the Act, I consider that it would be of benefit for W and X’s relationship with their Father to meet the Paternal Grandmother and Ms U, their new step-mother, over the forthcoming summer holiday period.
In relation to s.60CC(2)(b) of the Act, I am not persuaded that the travel proposed will not subject W and X to physical or psychological harm or abuse or neglect for the following reasons:
a)Country A and Country B are not signatories to the Hague Convention on the Civil Aspects of International Child Abduction.
b)Ms U, and the Father’s daughter C, the Father’s Mother and immediate family all live in Country A or Country L. The Father has no security in Australia to lodge to ensure his return to Australia or to provide a cash fund for the Mother the recover W or X. The Father may have decided start a new life with his new wife and to ‘split’ his previous family, with the Father retaining W and X and the Mother retaining Y and Z. In such circumstances W and X would suffer psychological trauma and cultural shock, having grown up in Australia and never having travelled to Country A before.
c)The Mother lives in very modest circumstances and would face insurmountable financial difficulties if she was required to travel to Country A or Country B to locate and recover W and Y.
d)The Court has no information as to what the Mother’s rights, if any would, be if she attempted to locate W and Y in Country A and Country B and seek their return to Australia.
d)The Father has not provided to the Court a copy of the proposed travel itinerary and consequently the Court does not know where the Father proposes to travel in Country A and Country B, other than to the permanent refugee camp in City EEE, Country A[175].
e)The DFAT Country A Advice contains the following warnings:
Exercise a high degree of caution in Country A overall.
Do not travel within 50 km of the border with Country L.
Reconsider your need to travel to the Region OO, Country L and within 50 km of the border with the Country of the Country UU.
Country A has increased security arrangements in public places due to the threat of terrorist attacks. Expect body, car and luggage checks when travelling. Take official warnings seriously and follow advice.
Violent protests occur. These have included clashes between armed groups and security forces, between political opponents, and between tribal groups. Avoid affected areas and follow advice from local authorities.
The security situation in the neighbouring Country of the Country UU is very unstable and volatile. You may be kidnapped or caught up in violence. If you’re travelling near the border, seek professional security advice.
[175] The provision of an itinerary is part of the ICL’s Proposal in this proceeding as noted in paragraph 84.
e)City EEE is located in an area on the DFAT Country A Advice map of Country A that is designated “Do not travel” (emphasis added). The area is immediately adjacent to the border with South Country L.
f)The Court obtained a Department of Foreign Affairs and Trade Smart Traveller travel advice on 26 November 2019 in relation to Country B (DFAT Country B Advice). The DFAT Country B Advice contains the following warnings:
Exercise a high degree of caution in Country B due to the heigh threat of terrorist attack and height crime levels.
Do not travel to border regions with Country VV, South Country L and Country GG.
Reconsider your need to travel to coastal areas from WW county to Region XX and outskirts, and the YY highway from City ZZ to City AAA.
There is a high threat of terrorist attack. Extremists may target Westerners. Risky areas include Country BBB, coastal areas, City CCC and City DDD. Be alert in public places. Avoid areas prone to attack.
g)When the Father leaves Australia with W and Y, the Court has no control over where they are taken internationally. An order that they not be taken within 50 kilometres of the border of South Country L as suggested by Counsel for the ICL is wholly unenforceable.
When considering the primary considerations in s.60CC(2), the Court is to accord greater weight to the consideration set out in s.60CC(2)(b): s.60CC(2A).
The Father argues that the Mother travelled to Region NN, Country L and Country B for a holiday from late 2018 until 30 January 2019, so therefore he should be able to take W and Y for such a holiday[176]. This argument ignores the Court’s obligation pursuant to s. s.60CA of the Act that the Court must regard the best interests of W and Y as the paramount consideration. Clearly the Father has ignored the best interests of W and Y in this case by proposing to take them to a permanent refugee camp in City EEE in Country A which is so unsafe that the Australian Government rates the area with its highest travel warning of “Do not travel”.
[176] Father’s October 2019 Affidavit, at [40].
In this case the answer is clear when considering the matters I have raised when discussing s.60CC(2)(b).
Accordingly the Father’s Application referred to in paragraph 67(e) was dismissed.
Passports
In relation to the Father’s application for passports for W and X referred to in paragraph 67(a), this application was also dismissed as part of the Application in a Case on 29 November 2019. This was dismissed on the basis that the Father was not going to be travelling over the 2019-2020 Summer holidays with W and Y.
In relation to the Father’s application for passports for the Children referred to in paragraphs 67(b) and (c), this application was also dismissed as part of the Application in a Case on 29 November 2019. This was dismissed on the basis that the Court should consider whether such orders were appropriate when final orders were being made.
The Father now makes application for the orders in paragraph 67(a) to (c) as part of the Father’s Proposal. As the orders that I intend to make are that the Children live with the Mother, I do not intend to make the order sought in paragraph 67(a).
In relation to the Orders sought in paragraphs 67(b) and (c), in my view it is premature to make any orders in relation to passports for the Children. Children’s passports remain valid for only a short period of time. The Mother and the Father live in modest circumstances and the Father in particular will be facing expenses in the near future with Ms U’s migration fees. W may have the opportunity of an overseas trip in her later years of secondary education. By that time I would hope that the parties will be able to cooperate together for the relevant child to obtain a passport.
Airport Watch List
In relation to the application for the Airport Watch List Orders to be discharged, referred to in paragraph 67(d), this application was also dismissed as part of the Application in a Case on 29 November 2019. This was dismissed on the basis that the Father was not going to be travelling over the 2019-2020 Summer holidays with W and Y.
The Airport Watch List Orders made in Orders 10, 11 and 12 of the Orders made on 3 August 2015 remain in full force and effect.
Equal Shared Parental Responsibility
Section 61DA of the Act provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child. The presumption can be rebutted if it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA of the Act provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The Father’s Proposal and the Mother’s Proposal each provide that the parties have equal shared parental responsibility for W, X, Y and Z. The Family Report did not support giving either parent sole parental responsibility.
I therefore determine that it is in W, X, Y and Z’s best interests for the parents to have equal shared parental responsibility.
Statutory Pathway
Where the parents have equal shared parental responsibility for a child, sub-ss.(1)-(5) inclusive of s.65DAA of the Act requires the Court to consider the child spending equal time, or substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
In MRR v GR[177], the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time. The High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent[178].
[177] [2010] HCA 4.
[178] [2010] HCA 4, at [13].
As there is to be an order for equal shared parental responsibility, I am now required to address the statutory pathway as set out in s.65DAA(1) – (5).
Equal Time with Both Parents
Firstly I will address the Children spending equal time with both parents[179]. Neither the Father’s Proposal or the Mother’s Proposal involves the Children spending equal time with each parent by way of a week about arrangement.
[179] Section 65DAA(1).
Due to the distance between the homes of the Mother and the Father as discussed in paragraph 203, I determine that the Children spending equal time with each parent is not reasonably practicable: s.65DA A(1)(b).
Having made the determination referred to in the preceding paragraph, I do not propose to make an order pursuant to s.65DAA(1) for W, X, Y and Z to spend equal time with each of their parents. I am therefore now required pursuant to s.60DAA(2) to consider whether an order that W, X, Y and Z spend substantial and significant time with each of their parents is in their best interests.
Substantial and Significant Time
The Court therefore must consider whether W, X, Y and Z spending substantial and significant time with each of the parents is:
a)In the best interests of W, X, Y and Z: s.65DAA(2)(c); and
b)Reasonably practicable: s.65DAA(2)(d).
I will now consider the matters in s.65DAA(2)(c) and (d).
Section 65DAA(2)(c) whether the child spending substantial and significant time with each of the parents would be in the best interests of the child;
I refer to the discussion in relation to s.60CC(2)(a), s.60CC(2)(b) and s.60CC(3)(a).
Section 65DAA(2)(d) whether the child spending substantial and significant time with each of the parents is reasonably practicable;
Neither the Father’s Proposal or the Mother’s Proposal seeks that the Children spend substantial and significant time with each parent. In determining whether it is reasonably practicable for W, X and Z to spend substantial and significant time with each of the parents, the Court must have regard to the matters in s.65DAA(5)(a) – (e).
In Ulster & Viney[180] the Full Court considered the meaning of the phrase “substantial and significant time”[181]. The Full Court said:
[87] In Eddington and Eddington (No 2) (2007) FLC 93-349, the Full Court determined the manner in which these provisions operate. The Full Court said (at 81,997):
54. It is evident that, although orders for time to be spent with a parent fall literally within the provisions of section 65DAA(3)(a)(b) and (c), that does not mean that the orders thereby provide for substantial and significant time within the terms of the legislation. It is equally evident that orders made for time spent cannot satisfy the requirements of substantial and significant time unless they literally meet all of the requirements of those provisions. What constitutes substantial and significant time will vary from case to case. What is substantial and significant time in one factual context may well not be in another. Whatever their terms, orders for substantial and significant time will have in common that they literally comply with each of the requirements created by s 65DAA(3). There is no issue that the orders under consideration did so comply.
[88] Thus the test as to whether orders make provision for substantial and significant time is in two parts. The first is mandatory and requires compliance with each element of s 65DAA(3). The second requires the exercise of discretion in accordance with s 65DAA(4). If the first question is answered in the negative, the orders cannot be for substantial and significant time. However, if that question is answered in the affirmative, it is necessary to consider whether in the factual context of the case the time is both substantial and significant. It follows that a finding pursuant to s 65DAA(4) in one case is likely to be irrelevant to the resolution of that issue in a different case (see Eddington (No 2) at [66])[182].
[180] [2016] FamCAFC 133.
[181] Ibid., at [84]-[88].
[182] Ibid., [87]-[88], (Strickland, Ainslie-Wallace and Ryan JJ).
I will now address the matters required to be considered by s.65DAA(2)(d) in s.65DAA(5)(a) – (e).
Section 65DAA(5)(a) how far apart the parents live from each other;
I refer to the discussion in paragraphs 203.
Section 65AA(5)(b) the parents’ current and future capacity to implement an arrangement for the children spending substantial and significant time with each of the parents;
I refer to the discussion in relation to s.60CC(3)(e).
Section 65DAA(5)(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;
I refer to the discussion in relation to s.60CC(3)(j).
Section 65DAA(5)(d) the impact that an arrangement of that kind will have on the child;
I refer to the discussion in paragraphs 203.
Conclusion Substantial and Significant Time
I therefore conclude that:
a)W, X, Y and Z spending substantial and significant time with each of the Father and the Mother is in their best interests[183].
b)W, X, Y and Z spending substantial and significant time with each of the Father and the Mother is not reasonably practicable[184].
[183] Section 65DAA(2)(c).
[184] Section 65DAA(2)(d) and s.65DAA(3).
I therefore do not propose to make an order pursuant to s.65DAA(2)(e) for W, X, Y and Z to spend substantial and significant time with each of their parents.
Consideration and Conclusion Proposed Order
I have followed the legislative pathway as require by Goode v Goode[185]. I have considered both of the primary considerations in s.60CC(2) and accorded greater weight to the considerations set out in s.60CC(2)(b). I have also considered each of the additional considerations in s.60CC(3) to the extent that they are relevant. For the reasons set out herein I determine that it is in the best interests of the Children as required by s.60CA of the Act that:
[185] (2006) 36 Fam LR 422, 445, at [81]-[82].
a)W, X, Y and Z live with the Mother.
b)Orders should be made in favour of the Father, substantially in accordance with the Father’s Proposal, other than those relating to the issue of the Children’s passports. Orders are made accordingly, save as where indicated otherwise in this Judgment.
I certify that the preceding two hundred and seventy two (272) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Date: 23 December 2019
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