RENALDO & DECORA

[2020] FCCA 2853

FEDERAL CIRCUIT COURT OF AUSTRALIA

RENALDO & DECORA [2020] FCCA 2853

Catchwords:
FAMILY LAW – Parenting – parenting arrangements.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 65DAA

Applicant: MS RENALDO

Respondent: MR DECORA

File Number: BRC 9004 of 2020

Judgment of: Judge Andrew

Hearing date: 9 September 2020

Date of Last Submission: 9 September 2020

Delivered at: Brisbane

Delivered on: 10 September 2020

REPRESENTATION

Counsel for the Applicant: Ms J. Kenny

Solicitors for the Applicant: Clarity Family Law Solutions

Counsel for the Respondent: Ms A. Finemore

Solicitors for the Respondent: Coulter Roache Lawyers Pty Ltd

ORDERS

Previous orders

1. All previous orders in relation to the children X born in 2011 and Y born in 2012 (the children) be discharged.

Parental responsibility

1. The parties have equal shared parental responsibility for the children.

Time and communication

1. Within 14 days of the date of these Orders, the Mother do all acts and things and sign all documents necessary to facilitate the return of the children to the Father to Town B, NSW, Australia.

2. In the event that both the Father and the Mother are living in the same State in Australia on an interim basis, the children shall live with the Father and spend time with the Mother as follows:

   (a)On an alternating week about basis, from the conclusion of school on Friday, or 4.00pm if a non-school day, until the conclusion of school on the following Friday, or 4.00pm if a non-school day with such arrangements to continue during school holiday periods unless otherwise agreed between the parties in writing AND the Mother shall be restrained by injunction from removing the children from the State unless otherwise agreed in writing between the parties;

   (b)On the children’s birthdays from the conclusion of school until 7.00pm on a school day and from 9.00am until 2.00pm on a non-school day;

   (c)On the Mother’s birthday from the conclusion of school until 7.00pm on a school day and from 9.00am until 7.00pm on a non-school day; and

   (d)In 2020 from 3:00pm on Christmas Day until 3:00pm on Boxing Day.

3. In the event that both the Father and the Mother are living in the same State in Australia on an interim basis, the children’s time with the Mother shall be suspended and the children shall spend time with the Father:

   (a)On the children’s birthdays from the conclusion of school until 7.00pm on a school day and from 9.00am until 2.00pm on a non-school day;

   (b)On the Father’s birthday from the conclusion of school to 7.00pm on a school day and from 9.00am to 7.00pm on a non-school day; and

   (c)In 2020 from 3:00pm on Christmas Eve until 3:00pm on Christmas Day.

Schooling and activities

1. The parties shall forthwith do all acts and things and sign all documents necessary to re-enrol the children in the C School, City D, Country E via remote learning whilst the children are in Australia and facilitate the children engaging in and completing all course work and activities assigned by the school.

2. The Mother shall be restrained from removing the children from C School, City D, Country E and enrolling them in any other school unless otherwise agreed between the parties in writing.

3. That the parties shall each be at liberty to:

   (a)Attend and/ or volunteer at events and occasions at the children’s school and extra-curricular activities to which parents are ordinarily invited;

   (b)Communicate with the children’s school and extra-curricular activities regarding the children’s attendance and progress; and

   (c)Receive copies of all communications, reports, newsletters, photographs and the like in relation to the children that is ordinarily provided to parents.

Communication

1. Save for as otherwise provided for in these orders, the parties shall facilitate the children communicating with the party’s whose care that are not in by telephone, Skype, FaceTime or such other electronic means as agreed in writing between the parties at all times as a reasonably requested by that party, the children, or either of them.

2. In the event the children are not living in the same State as the Father, the Mother ensure that the children communicate with the Father via video call or telephone call on Tuesdays, Thursdays and Saturdays at 5.30pm (EST) by instigating the call to the Father and use her best endeavours to encourage the children to communicate with the Father for a period of 30 minutes.

3. The parties shall keep each other informed of their residential address, mobile telephone number, landline telephone number (if applicable) and email address and advise the other party within 72 hours of any change thereto.

4. The parties keep each other informed as soon as practicable of any significant injury, illness or medical condition suffered by the children, or either of them, or treatment undergone by the children, or either of them, whilst in their respective care and the parties are each at liberty to liaise directly with the children’s treating practitioners accordingly and shall follow all reasonable directions of the treating practitioners.

5. The parties shall communicate by email or text message in relation to matters concerning the children save for in the event or an emergency when telephone or such other means of electronic communication can occur.

Restraints

1. The parties shall each be restrained from:

   (a)Abusing, belittling, rebuking or otherwise denigrating the other party in the presence and/ or hearing of the children or allowing any other person to do so;

   (b)Discussing these proceedings with or in the presence and/ or hearing of the children or allowing any other person to do so;

   (c)Showing to or leaving accessible to the children any documents connected with these proceedings or allowing any other person to do so; and

   (d)Showing to or leaving accessible to the children messages, emails or other written communication between the parties.

2. In the event the Mother is not living in the same state as the children, the Father ensure that the children communicate with the Mother via video call or telephone call on Mondays, Wednesdays, Fridays and Sundays at 5.30pm (EST) by instigating the call to the Mother and use his best endeavours to encourage the children to communicate with the Mother for a reasonable period and provide the children with privacy during the call.

3. That the children will not be left unsupervised by either parent with persons who are under the influence of illicit drugs or alcohol.

4. If the Mother is unable to return to Town B within a 14 day period with the children, the Father and the Mother meet on the NSW/QLD border at the Town F McDonalds at a date and time agreed between the parties within 24 hours of the Father completing the mandatory quarantine period in NSW for the purposes of changeover.

5. In the event that the Mother is not living in Town B, the Mother provide the Father with 14 days’ notice of her intention to travel to NSW and that the Father facilitate the children spending time with the Mother for a period of one week.

6. Until further order, the parties, his/her servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove the children X born in 2011 and Y born in 2012 from the Commonwealth of Australia.

7. The Marshall of all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said children’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the children’s name on the Watch List until further order of the Court.

8. The parties complete and deliver to the Australian Federal Police the Family Law Watchlist Request Form available at as soon as possible.

9. Pursuant to Rule 8.01 of the Federal Circuit Court Rules 2001, these proceedings be heard in the Federal Circuit Court of Australia at Wollongong.

IT IS NOTED that publication of this judgment under the pseudonym Renaldo & Decora is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 9004 of 2020

MS RENALDO

Applicant

And

MR DECORA

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a matter as between Ms Renaldo, the mother, and Mr Decora, the father, and it concerns their two sons, X, born in 2011, and Y – spelt differently in different documents – born in 2012. The first matter that I need to deal with is that certain consent orders were provided to me yesterday. So that the record can be clear in relation to those, those consent orders contain nine proposed orders and, for the record, so that they can be further understood, the first is in relation to equal shared parental responsibility, and the last is in relation to the discharge of all previous orders. And, of course, there are orders in between. I am content to make those orders for a start.

3. That, of course, is not the finish of this matter. The parents are in dispute in relation to the parenting arrangements for their two sons. The question, it seems to me, really is whether the children live in Queensland, Victoria or New South Wales, as it has been argued before me. To my mind, the matter largely revolves around s.60CC(2)(a), s.60CC(3)(b) and s.60CC(3)(f) of the Family Law Act1975 (‘the Act’). It is informative to perhaps undertake somewhat of a history of the matter and make findings with respect to best interests matters on the way through.

4. The parties separated, depending on whose version is accepted – and for the purposes of today, it does not really matter, it seems to me, when the parties separated – on the mother’s version in 2012, on the father’s version in 2015. The evidence discloses that since separation, whenever that be, certainly as early as 2012, until 2017, the family lived at various locations in Australia. There were some interim orders entered into on 2 November 2015, which provided for equal shared parental responsibility and a parenting arrangement on a fortnightly basis that had the boys living with their mother for eight overnights, and with the father for six overnights.

5. In 2017, somewhat curiously, a final order was made, the effect of which, I am told, had the children’s names removed off the airport watch list.  I am then told that prior to the family moving to Country E in, I believe, early 2017, that there was some style of parenting agreement entered into, albeit unsigned, and the mother’s view of that document is that it was able to be changed by negotiation. In fact, on the face of that document, it says this, amongst other things:

   This could change but only as a result of a negotiated agreement between Ms Renaldo and Mr Decora.

   [That then changing] As of 25^th March 2017 Mr Decora [who is the father] will be regarded as the Primary Carer.

6. Then the family moved to Country E – that is, as I understand it, in or around March of 2107 – and the evidence tends to disclose that the father was the primary carer. There seem to be different versions with respect to how that came about, but that that was, in fact, the case. And it seems that the arrangements, generally, in relation to the boys’ care between March of 2017 and March 2020 was that they lived with their father for five nights a week, and with their mother for two overnights a week.

7. This, to my mind, would be relevant with respect to matters under s.60CC(2)(a), s.60CC(3)(b), s.60CC(3)(f), s.60CC(3)(g) and s.60CC(3)(i) of the Act, and would tend to indicate that the boys had loving relationships with both their mother and father, but that they were primarily cared for that period of time, namely three years – a significant period of time in their young lives – by their father. That would inform, in terms of the nature of the relationship, as a result of the product of the time that they spent together, and also with respect to the father’s capacity with respect to providing for their needs, and also in relation to his attitude to the responsibilities of parenthood.

8. What happened then, in March of 2020, was that the boys and their mother came to Australia, clearly for a holiday, and I find that that is the case because there were return flights paid, the mother had paid for accommodation in Country E, and was working there in terms of her business. It seems to me clearly, on both the mother and father’s case that the mother intended to return with the boys to Country E. This visit to Australia, to my mind, is perhaps evidence in relation to what might be s.60CC(3)(m) of the Act with respect to facilitating and encouraging the relationship between the boys and the other parent.

9. In any event, circumstances overtook the situation, in that the pandemic struck, and the end result of that was that the mother was not able to return to Country E. In those circumstances, the mother contacted the father and effectively sought that the father come to Australia. Then on 6 March 2020, the father arrived in Australia, in New South Wales. At that time that is where the mother was residing with the children. Attempting to understand the evidence as best I can, I believe that that was in Town B or thereabouts.

10. The father spent two weeks in quarantine. This decision by the father to come to Australia from Country E in those circumstances must be evidence, it seems to me, in relation to his commitment to the children in terms of perhaps s.60CC(3)(g) but also s.60CC(3)(f) of the Act, the nature of his relationship with his sons, s.60CC(3)(b), and also s.60CC(3)(m) of the Act in terms of his parenting generally. I am told either by submission or evidence that the children, at that stage, were still enrolled in the - what is described as School of the Air - conducted from City D in Country E.

11. During the time after the father quarantined that he spent with the boys in May 2020, the evidence discloses that he assisted them with their learning, relevant it seems to me to s.60CC(3)(f) of the Act.

12. On 27 May 2020, the father returned the boys to the mother. There seems to be a contest, which I do not need to determine, as to whether or not the father threatened to keep the boys, or that he could take them to Country E. To my mind, that is something that I cannot determine on the state of the evidence as it is presently provided, and also, to my mind, it does not seem to be a matter of significant consequence for the purposes of today’s decision.

13. On 30 May 2020, the mother left New South Wales, which is where she had been living with the boys, and went to the Region G. Her evidence, and version in relation to that, is that that was done, effectively, in a panic as a result of what she says were the alleged threats, that is, to retain the boys by the father and that he could go to Country E. That clearly seems to have been the state of mind of the mother at that stage. Whether or not that was a fact is not something that I can determine.

14. There are text messages from the mother that I was taken to in that regard. They all seem to be relevant to s.60CC(3)(f) and s.60CC(3)(m) of the Act. They create some difficulty in terms of the mother’s capacity to effectively provide for the children’s needs, most especially their emotional needs, when in a situation that she had come on a holiday to Australia, was not able to return, had requested the father travel to Australia, and he had done that, it seems to me, out of interest with respect to his boys and their relationship with him. And then, on her case, as a result of some threats, that I am not capable at this stage of making a decision in relation to, she then left New South Wales – I believe Town B on the evidence – and moved to the Region G in the context that I have explained.

15. She seems, in her affidavit material now, to accept that that move was probably a mistake. The mother gives evidence that she offered the father financial assistance of some kind to come to Queensland, that is, to live, by virtue of payment for flights, assistance with accommodation, expenses, and also help to try and find work. In all of that, what might be described in some ways as chaotic milieu, on 19 June 2020, the father with the maternal grandfather, as I understand it, drove from New South Wales to the Region G.

16. The father’s evidence is that the mother called the father saying that she would effectively alert immigration to him being in Queensland. I apprehend that to be some style of a threat in relation to his continued freedom and/or presence in Australia. The mother’s case is somewhat different. She says that the father tried to remove the children from their school. The father disputes that. Again, the evidence is in a state, I find, that provides that I am unable to determine that, other than to make observations with respect to the level of difficulty within the co-parenting relationship.

17. The father then went to Victoria. It was originally submitted that he was forced to, but that is to be understood in the context of his circumstances and limited finances. He was provided with an offer of accommodation to stay living with a friend, and also with respect to casual work, noting that his business was in Country E, and I think his evidence is that he is effectively, certainly for the time being, given that up by coming to Australia to be with the boys.

18. In relation to Victoria, the mother argues that if the boys live in Victoria, that the mother and father will not be able to see the children because of COVID and the limitations. That may or may not be correct. I have insufficient evidence with respect to that. I was provided no further evidence or assistance on that topic other than that effective blanket statement that I have repeated in these reasons. I am told that, as at the end of June 2020, the boys were enrolled in a school in Queensland, on the Region G.

19. That brings me then to the alternatives in this case.  They seem to be Queensland, Victoria or New South Wales. In Queensland the boys are at a school, albeit relatively recent. They had been learning via School of the Air, including with assistance from their father, when they were in New South Wales, as late as mid to late May 2020. The mother says that she has accommodation, by virtue of rental. The mother has work, although the evidence seems to disclose that the mother runs an online business, which can be run from anywhere.

20. The father gives evidence that he has no friends or family and, effectively, no network of support in Queensland, and he does not believe that there is work for him, and/or real prospects of that. Part of that rationale is the lack of network or supports in that place. That would tend to be a proposition that would be established by probability and common-sense. In Victoria the father has casual work, and the father has supported accommodation with a friend. There is the uncertainty of the ability of the parents to see the children as a result of the COVID restrictions that I have not been provided any assistance on.

21. The mother would have work, which she would, I find, have anywhere due to the nature of her business. She would need to find accommodation. I was not given any real evidence with respect to her support in Victoria.

22. In New South Wales, more particularly in Town B, the father gives evidence that he has accommodation with the maternal grandfather. That is said to be a two-bedroom house that may not be optimal, but it seems to me that it would be adequate. The father indicates, doing the best he can in terms of how this matter has unfolded and I understand the nature of the evidence in that context, and the difficulties for the mother in that respect that were made via submission. I accept those.

1. The father says that he has probable work in that area as a result of a former employer, and that he has had some contact in relation to that. To my mind, that seems a likely proposition. The father also has connection in that area, having lived there previously, and the boys, certainly in terms of schooling, having had School of the Air until recent times. That is not said to be a perfect situation, but certainly one that might be considered, in terms of the boys, the best situation when one looks at the matters within s.60CC(2)(a), s.60CC(2)(b) – although that does not have any great scope in this matter – s.60CC(3)(b), s.60CC(3)(f), s.60CC(g), s.60CC(i) and s.60CC(m) of the Act, that I have referred to earlier, in terms of, predominantly, relationships and also capacity and attitude to parenting.

2. With respect to the mother in New South Wales, particularly at Town B, she has lived there before. As I have indicated earlier, she can work effectively anywhere due to the nature of her business. She would need to find accommodation. I am told that the mother and her father presently do not enjoy a positive relationship. They have in the past, but the state of affairs presently is as I have described. The evidence discloses that the mother has familial supports in the Town B area, but perhaps not as extensive as was submitted by the father. And, as I say, the mother had lived in Town B, New South Wales until recently, it seems until the end of May 2020.

3. By combination of all of those matters and considerations, it seems to me that the children’s best interests are met by an order having them living in Town B. If the parents live in the same location – I am referring now to s.65DAA of the Act – I find that it would be in the boys’ best interests for their mother and father to have equal time, that is, if they live in the same location. That would be in their best interests. And, of course, if they lived in the same location it seems to me that it would be reasonably practical.

4. If the parents do not live in the same location, that is in Town B, it seems to me that the boys would live with their father, and I would so order, and they would have as much time as reasonably practicable as they could with their mother. I will deal with that shortly, and I will need some submissions – please short – with respect to that, because there is a lacuna in terms of assistance with respect to that proposition.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Andrew

Associate:

Date: 19 October 2020