Righi & Fylan
[2025] FedCFamC1F 160
•18 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Righi & Fylan [2025] FedCFamC1F 160
File number(s): SYC 9000 of 2022 Judgment of: SIMPSON J Date of judgment: 18 March 2025 Catchwords: FAMILY LAW – PARENTING – where one child aged 14 years has strained relationship with mother who lives overseas – where parties reached agreement on a number of issues but orders were not reduced to a consent minute – where parties were at odds as to specific arrangements for time while the mother is in and outside of Australia – orders made for child to live with father and spend time with mother – orders made for continuation of family therapy between the child and the mother – injunctions and restraints on each parent.
FAMILY LAW – COSTS – costs of the Independent Children’s Lawyer – parties’ financial circumstances – where the father deposes to expenses exceeding income – where the mother has current child support debt – order made for the payment of the ICL’s costs by the mother.
Legislation: Family Law Act 1975 (Cth) pt VII, ss 60B, 60CA, 60CC, 60CG, 61B, 61C, 61CA, 61D, 64B, 68B, 68C, 102NA, 117
United Nations Convention on the Rights of the Child
Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662
Legal Aid ACT & Westwell [2021] FamCAFC 50
U v U (2002) 211 CLR 238
Division: Division 1 First Instance Number of paragraphs: 86 Date of hearing: 24, 25 and 26 February 2025 Place: Sydney Counsel for the Applicant: Ms Bateman Solicitor for the Applicant: Gad & Co Lawyers Counsel for the Respondent: Ms Chauvet Solicitor for the Respondent: SCB Legal Pty Ltd Counsel for the Independent Children's Lawyer: Ms Bromberger Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
SYC 9000 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RIGHI
Applicant
AND: MR FYLAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SIMPSON J
DATE OF ORDER:
18 MARCH 2025
THE COURT ORDERS, ON A FINAL BASIS AS TO PARENTING, THAT:
Parental decision-making
1.The father shall have sole decision-making responsibility for the child X born 2010 in relation to major long-term decisions as defined in section 4 of the Family Law Act 1975 (Cth) conditional upon the following:
(a)Not less than 28 days prior to making a decision, the father must notify the mother of the decision he is proposing to make in relation to the child;
(b)In the event the mother wishes to contribute to the decision to be made, the mother must notify the father of her views and/or opinion on the matter not later than 14 days after the father notifies her of his proposed decision;
(c)The father must make a genuine effort to take into account the mother's views in making the decision;
(d)The father shall notify the mother of the decision he intends to make no less than 7 days prior to taking any step necessary to enact the decision, including but not limited to communicating with a third party to enable the decision to take effect.
Live with
2.The child shall live with her father.
Spend time with - Mother residing in the United States
3.Unless otherwise agreed by the parties in writing, while ever the mother resides in the United States, the child shall spend time with the mother as follows:
(a)With the mother in Australia:
(i)In the event that the mother visits Australia for 7 days or less:
A.The child shall spend time with the mother from after school (or 3:00PM if not a school day) on the day after the mother lands in Australia until 5:00PM the day before the mother returns to the United States;
(ii)In the event that the mother visits Australia for between 8 days and 14 days:
A.The child shall spend time with the mother in a 7 night block with such time to commence after school (or 3:00PM if not a school day) on the day after the mother lands in Australia until 5:00PM on the seventh day thereafter;
(iii)In the event that the mother visits Australia for between 15 days and 21 days:
A.The child shall spend time with the mother from after school (or 3:00PM if not a school day) on the day after the mother lands in Australia until 5:00PM on the seventh day thereafter; and
B.The child shall spend time with the mother from after school (or 3:00PM if not a school day) on the 12th day the mother is in Australia until 5:00PM on the 19th day the mother is in Australia or the day before the mother departs Sydney, whichever is sooner;
(iv)In the event that the mother visits Australia for more than 22 days:
A.The child shall spend time with each of her parents in a 7/5/7 pattern whereby she spends 7 nights with the mother, followed by 5 nights with the father, followed by 7 nights with the mother, with such arrangement to subsist for the duration of the mother's trip to Australia, and for the purposes of this order:
I.The child's time with the mother shall commence after school (or 3:00PM if not a school day) on the day after the mother lands in Australia;
II.In the event that the mother's trip ends before the conclusion of an ordinary 7 night period that the child would otherwise spend with the mother, the child's time with the mother shall conclude at 5:00PM the day before the mother departs Sydney;
(b)For the purposes of order 3(a) the mother is to inform the father, not less than fourteen (14) days prior to her arrival in Australia, in writing, via email, of the following:
(i)Her arrival and departure date in Australia, including a photocopy of her airline ticket (with the PNR redacted).
(ii)The address where the mother will be residing, if spending time with the child.
(iii)A mobile telephone number for the mother whilst she is in Australia.
(iv)Names of the adult persons (if any) staying at the proposed address where the mother and child will be staying;
(c)With the mother in the United States:
(i)As and from the school holidays at the end of Term 2 in 2026, the child shall spend the Term 2 school holidays with the mother in the United States as follows:
A.The mother shall do all things and sign all documents necessary to book the child a return flight to the United States no less than 6 weeks prior to the child travelling to the United States, and which provides for the following:
I.The flight shall depart Sydney not earlier than the Saturday immediately following the child's last day of school attendance for Term 2; and
II.The return flight shall land in Sydney not later than the Saturday immediately prior to the child's first day of Term 3;
(ii)As and from the school holidays at the end of Term 4 in 2026, the child shall spend a block of three weeks in the United States with the mother as follows:
A.In years where the Term 4 holidays commence in an odd numbered year, the mother shall spend the first, second, and third week of the school holidays with the child;
B.In years where the Term 4 holidays commence in an even numbered year, the mother shall spend the third, fourth, and fifth week of the school holidays with the child;
C.The mother shall do all things and sign all documents necessary to book the child a return flight to the United States no less than 6 weeks prior to the child travelling to the United States, and which provides for the following:
I.The flight shall depart Sydney not earlier than the first day that the child is to spend time with the mother under these orders;
II.The return flight shall land in Sydney not later than the last day that the child is to spend time with the mother under these orders;
D.The child may travel either accompanied by the mother or as an unaccompanied minor, and in the event that the child travels unaccompanied, the parties shall do all things and sign all documents necessary to ensure that the child travels with the airline as an unaccompanied minor;
(iii)For the purposes of order 3(c)(ii):
A.The school holiday period shall be deemed to commence on the first day after the child concludes school attendance for the year, and each subsequent week of the school holiday period shall be deemed to commence seven days following thereafter.
B.The school holiday period shall be deemed to conclude on the day before the child resumes school attendance the next year;
(iv)For the purposes of order 3(c):
A.If the father is not travelling with the child, not less than fourteen (14) days prior to the proposed departure date, the mother must provide the father the following documents and information in writing:
I.A photocopy of all airline tickets for the child including the dates of departure and return to Australia;
II.The details of the telephone numbers at which the child can be contacted and the addresses of all places the child will be staying whilst outside of Australia;
(d)When the child is spending time with the mother, the mother shall provide the child with a separate bed and where possible, her own bedroom.
Changeover
4.Unless otherwise agreed by the parties in writing, where changeover does not occur at the child’s school, changeover shall occur at Suburb B Station.
Injunctions
5.Pursuant to section 68B of the Family Law Act 1975 (Cth), except as provided for by these orders, the father is restrained by injunction from:
(a)Attending upon the mother's place of residence at any time whether in Australia or in the United States;
(b)Initiating communication with the child while the child is spending time with the mother;
(c)Approaching the mother or coming within 50 metres of the mother at any time;
(d)Approaching the child or coming within 50 metres of the child at any time that the child is spending time with the mother.
6.Pursuant to section 68B of the Family Law Act 1975 (Cth), except as provided for by these orders, the mother is restrained by injunction from:
(a)Attending upon the father's place of residence at any time;
(b)Initiating communication with the child while the child is spending time with the father;
(c)Approaching the father or coming within 50 metres of the father at any time;
(d)Approaching the child or coming within 50 metres of the child at any time that the child is spending time with the father.
7.Pursuant to section 68B of the Family Law Act 1975 (Cth), both parents are restrained by injunction from:
(a)Making any negative, critical, belittling or derogatory comments in relation to the other parent or members of the other parent's family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of the child or via written correspondence;
(b)Allowing any other person to make any negative, critical, belittling or derogatory comments in relation to the other parent or members of the other parent's family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of the child or via written correspondence.
8.Orders 6 and 7 herein are personal protection orders pursuant to section 68C of the Family Law Act 1975 (Cth).
9.Each parent be and is hereby restrained by injunction from:
(a)Discussing these proceedings with the child or in her presence or hearing.
(b)Showing the child any documents relating to these proceedings.
(c)Questioning the child in relation to her views or preferences concerning her living arrangements or the time she spends with the other parent.
(d)Encouraging the child to express particular views or preferences in relation to her living arrangements or the time she spends with the other parent.
Notifications and access to information
10.The parents shall give all consents, sign all documents and do all things necessary to ensure that the parents can obtain the following from the child's school at the requesting parent’s own cost:
(a)A copy of all school reports, progress reports, photo order forms and school newsletters;
(b)Notification for activities that the parties may decide to attend, such activities being those that parents are ordinarily entitled to, or invited by the school, to attend; and
(c)Notification of parent/teacher nights, with the school being informed that it is the desire of both parents to attend such events.
Medical
11.In the event of a medical emergency involving the child, the parent having care of the child at that time shall do all acts and things and sign all documents necessary to forthwith:
(a)Inform the other parent as to the emergency and state of health of the child;
(b)Provide to the other parent full particulars in relation to the medical practitioner and facility attended upon by the child within a timeframe that would allow the other parent to attend; and
(c)Provide any authorisation necessary for the other parent to attend upon the child and receive all information and records that parents of a child would be entitled to receive from the medical practitioner or facility, regardless of which parent presented the child.
12.The mother and father shall ensure the other parent is kept informed of:
(a)Any medical problems and illnesses suffered, and hospitalisations of, the child whilst in their care;
(b)Any medication that has been prescribed for the child; and
(c)Any medical practitioners the child has received treatment from.
13.These orders are authority for any medical practitioner, dentist, counsellor, or other allied health professional who treats the child to provide information to the other parent upon request by that parent, to the extent permitted by law.
14.The parents shall each keep the other informed of any medical practitioner, dentist, counsellor, or other allied health professional with whom the child is engaged, and provide full contact details to enable the other parent to speak with such health practitioners and these orders are sufficient authority for that to occur.
Parents' details and communication about and with the child
15.The parents shall communicate with each other about matters relating to the child via the AppClose parenting application.
16.Each parent shall keep the other informed of their mobile telephone number, residential address and email address and notify the other within 24 hours of any change thereto.
17.The mother is at liberty to communicate with the child by telephone or FaceTime or other digital communication means, on one occasion each week as agreed and failing agreement, at 9.00am on Sundays.
18.When the child is in the mother's care, the father is at liberty to communicate with the child by telephone or FaceTime or other digital communication means, on one occasion each week as agreed and failing agreement, at 9.00am on Sundays.
19.The parents shall afford the child privacy when she is communicating with the other parent and neither parent shall supervise those communications.
Authority
20.Each parent shall be at liberty to provide to the child's school and health practitioners a copy of these orders.
School events
21.Each parent shall be permitted to attend the child's school for the purposes of school carnivals, school assemblies, parent/teacher interviews and any other event to which parents are ordinarily invited.
Passport and travel documents
22.The parties shall do all things necessary to ensure the child has a current Australian Passport and they are to take all steps necessary to facilitate the renewal of the child's passport not less than 6 months prior to the date on which the child's passport is due to expire, including:
(a)Signing any passport application document partially completed and provided to them by the other parent; and
(b)Returning the signed and completed application to the other parent within 14 days of receipt of the document; and
(c)Sharing, equally, the applicable fee for the renewal of the child’s passport and the associated photographs.
23.The child's passport shall be held by the father when not otherwise required for the purposes of the child's travel in accordance with these orders, when the father shall provide the passport to the mother upon her request.
Family therapy
24.The mother continue to engage in family therapy with the child, from the date of these orders, for a period of 6 months or as recommended by the counsellor Mr C at D Psychologists.
25.That if Mr C is unavailable to provide that therapy, the mother and the child shall participate in therapy/counselling with another therapist/counsellor at D Psychologists, as recommended by Mr C.
26.The mother shall be responsible for scheduling the family therapy sessions and shall provide to the father, in writing, particulars of the appointments once made (and prior to the appointments occurring).
27.When the mother is present in Sydney, the mother shall ensure that the child attends upon all family therapy appointments as booked by the mother and the father shall facilitate the child being available for such appointments.
28.When the mother is not present in Sydney, father shall ensure that the child attends upon all family therapy appointments as booked by the mother.
29.The costs of the family therapy shall be paid by the mother.
30.The mother is permitted to take the child to a General Practitioner to seek to obtain a mental health plan for the child for the purposes of any subsidisation of the family therapy.
Independent Children's Lawyer
31.Upon publication of these orders, I DIRECT the Independent Children's Lawyer to explain these orders to the child by arrangement with the parties.
32.Within 90 days of the date of these orders, the mother pay the sum of $6,876 being one half of the Independent Children's Lawyer's costs as may be directed by Legal Aid NSW.
33.The oral application made by the Independent Children's Lawyer for their costs to be paid by the parties is otherwise dismissed.
34.The order of appointment of the Independent Children's Lawyer be discharged on the day after compliance with order 31 herein.
35.The parenting proceedings be otherwise removed from the active pending cases list.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Righi & Fylan has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SIMPSON J:
INTRODUCTION
These are proceedings to determine the parenting arrangements for the child X born 2010 (“the child”) under Part VII of the Family Law Act 1975 (Cth) (“the Act”), as well as for the division of property between the Applicant wife, Ms Righi (“the mother”) and the Respondent husband, Mr Fylan (“the father”), under Part VIII of the Act. As is explained below, these reasons deal with the parenting aspect of the dispute only.
Proceedings were commenced by the mother by way of Initiating Application filed on 16 December 2022 in which she sought parenting and related orders only. By way of an Application in a Proceeding filed on 13 November 2023, the mother sought leave to commence proceedings, out of time, for property adjustment orders as between the parties.
There have been several interlocutory and procedural events in this matter, including a forum dispute as to the parenting matters (the father also having commenced proceedings in Country E in early 2022). Orders were made on 9 November 2023 restraining the father from continuing those proceedings and, or, commencing other proceedings relating to the child. An Independent Children’s Lawyer was appointed on that day.
A Child Impact Report was prepared and released on 21 February 2024 and a Family Report was prepared and released on 9 December 2024.
The proceedings were transferred to Division 1 of the Federal Circuit and Family Court of Australia by way of order made on 7 November 2024. The mother was, at that time, seeking final orders that the best interests of the child would be met by orders which provided for the child to live with the mother in the United States.
Trial directions were made on 17 December 2024 and the matter was listed for final hearing for three days, commencing on 24 February 2025.
The mother filed a further Application in a Proceeding on 5 February 2025 in which she sought orders, among others, for face to face time with the child (while the mother was in Australia for the final hearing) and relating to the continuation of family therapy. After a contested hearing of that application before a judge of Division 1 on 17 February 2025, orders were made, relevantly, providing for the child to spend time with the mother and, restraining the father from interfering with the child’s time with the mother.
Each of the parties was (at the commencement of the final hearing) legally represented by virtue of a s 102NA order made on 29 November 2024.
There was almost complete non-compliance by the parties with the filing directions and other orders made for the preparation of the matter for final hearing, with trial material and case summary documents being filed as late as the eve of the hearing.
At the final hearing the proceedings were in effect bifurcated, with the focus being upon parenting matters for the first two days of the hearing, before commencement of consideration of the property matters. The reasons for that approach are expanded upon below.
On the morning of the third day of the final hearing, the mother terminated the engagement of her counsel and instructing solicitor and they were released from further participation in the hearing. Following the hearing of an oral application made by the mother that day, I adjourned the property matters for final hearing on a later occasion.
These reasons, accordingly, address the parenting matters requiring determination.
BACKGROUND
The parties married in Country E in 2001. Between their marriage and final separation in 2018, (with the precise date being in dispute) the parties lived in various countries, including Country E, the United States, the United Kingdom and Australia, pursuing employment opportunities and spending time with family.
The child was born in 2010 in Australia.
The father and the child travelled to Country E in mid-2018 to visit family. The father asserts that while he was in Country E in mid-2018, the mother advised him by telephone that she considered the marriage to be at an end. The mother disputes these events both as to the actions attributed to her and the date of separation. The mother contends that the marriage ended in December 2018.
It is uncontroversial that since late 2018, the child has lived with the father (variously in Country E and then in Australia) and that the mother has had only limited time with and communication with the child since the marriage ended. The parties disagree about the events which subsequently occurred which have resulted in the child not spending time (beyond very limited occasions of face-to-face time) with the mother and they also disagree about the extent to which each of the parents have attempted to facilitate the child’s relationship with her mother.
The father made serious allegations in respect of aspects of the mother’s conduct towards the child (of an historical nature) which he says could impact the safety of the child in her care. The father alleges that at the beginning of 2018, the mother engaged in behaviour to the child which may have involved inserting her fingers into the child’s vagina while assisting the child in showering (being his understanding of events based on reports by the child and his subsequent observations of the child). The father did not contend that such conduct was indicative of sexual abuse and those events did not lead the father to take action with external welfare or policing agencies at that time.
The father also alleges that the child made certain other disclosures to him in February 2024 about conduct by the mother to the child, involving touching of the child on her buttocks (the date of the events being unclear).
The mother alleges that the father had engaged in family violence and behaviour which she describes as coercive and controlling of her. Those allegations were not well particularised in her trial affidavit but were the subject of some discussion with the Report writer.
The mother alleges that the father has not supported her relationship with the child, that he has in fact obstructed her attempts to resume a relationship with the child, and that his poor attitude to the mother has acted to influence the child and her apparent reluctance to spend time with her mother.
There are no family violence orders in place and neither party has applied for such an order against the other, previously.
However, the father alleges that the mother abandoned the child in 2018 and has shown little interest in pursuing a relationship with the child in the subsequent years. The mother disputes that characterisation of her post-separation conduct.
In 2021 the mother re-married and she continues to live in the United States with her husband and his two children from a previous marriage (aged 20 and 17).
At the time of the final hearing:
(a)The father continues to live with the child in a jointly owned home in Suburb F, NSW;
(b)The mother continues to live with her husband in the United States and has travelled to Australia to attend the final hearing;
(c)Both of the parents are in receipt of grants under the Cross-Examination of Parties Scheme administered by Legal Aid NSW. I note that I refused an oral application by the mother on the third day of the hearing to discharge that order (prior to the adjournment of the property proceedings);
(d)The child is over 14 years old and will turn 15 this year.
The Report writer met with the parties and with the child and her report was released on 9 December 2024.
On 20 February 2025, the mother filed a further Amended Initiating Application in which she abandoned her application for orders that the child live with her (in the United States). In the father’s Amended Response sealed on 16 April 2024, he sought orders to the effect that the child live with him, that he exercise long term decision making authority but within a consultative framework, and that the spend time arrangements between the mother and the child be as agreed and failing that, in accordance with the child’s wishes.
At the commencement of the final hearing, the parties and the Independent Children’s Lawyer sought time to have discussions about the matters remaining in dispute. That time was given and the father subsequently indicated that he had changed his position such that he would support the making of specific orders as to time between the child and the mother to occur in Australia, and in the United States, among other changes.
At their request, I granted the parties further time to enable the parties and the Independent Children’s Lawyer to work towards finalising an agreed Minute of Orders by consent. By the morning of day two, the Court was advised that the parties remained in dispute as to certain matters and that whilst agreement had largely been reached about most issues relating to the child, a final consensus position had not been achieved.
During proceedings that morning, each party and the Independent Children’s Lawyer provided an updated Minute of Orders sought. The Independent Children's Lawyer, helpfully, prepared and tendered a document which summarised the key areas of agreement and, or, dispute in the minutes of each of the parties and the Independent Children's Lawyer.
MATERIAL RELIED UPON
The mother relied upon the following documents:
(a)Case outline document filed 21 February 2025;
(b)Amended Minute of Orders sought, marked as Exhibit E;
(c)Amended Initiating Application filed 20 February 2025;
(d)Notice of Child Abuse filed 16 December 2022;
(e)Her affidavit filed 21 February 2025; and
(f)Her affidavit filed 25 February 2025.
The father relied upon the following documents:
(a)Case outline document filed 24 February 2025;
(b)Amended Minute of Orders sought, marked as Exhibit D;
(c)Amended Response to Initiating Application filed 16 April 2024;
(d)Notice of Child Abuse filed 6 February 2023;
(e)His affidavit filed 21 February 2025; and
(f)His affidavit filed 25 February 2025.
For her part, the Independent Children’s Lawyer relied upon the following documents:
(a)Case Outline Document filed 20 February 2025;
(b)Amended Minute of Orders sought, marked as Exhibit G.
(c)A letter dated 21 February 2025 from Mr C, marked as Exhibit A.
Each party sought to rely upon the Family Report of Court Child Expert Ms G dated 9 December 2024 (“the report”), which was admitted and marked as Exhibit B.
Each party was invited to indicate the extent to which they sought to cross examine the other, or any of their witnesses, in support of their orders sought, given that each party had submitted “significant narrowing of the issues” remaining for determination about the child. It was ultimately an agreed position between the parties and the Independent Children’s Lawyer that the parenting aspect of the proceedings could be addressed separately and by way of submissions only, such that upon the conclusion of those submissions, the Independent Children’s Lawyer could be excused from further attendance at the hearing (while the property matters were concluded). That approach was adopted.
Leave was granted to each of the mother and the father to file, in court, an affidavit deposing to events that had occurred after the orders made on 17 February 2024 (relating to the child spending time with the mother).
In addition, the mother was granted leave to rely upon certain parts of her affidavit filed on 18 March 2024, the relevant paragraphs being identified in a schedule marked as Exhibit F.
CONSENSUS POSITION
Submissions occurred for the balance of the afternoon of day two of the hearing.
Of the matters requiring determination, the parties conceded that they were of narrow scope.
In circumstances where no oral evidence was taken and cross examination did not occur, I am not in a position to make findings about factual matters in dispute between the parties. In any event, the consensus position of the parties and the Independent Children’s Lawyer on the substantive issues does not require such.
The consensus positions adopted by the parents and the Independent Children’s Lawyer in large part echoed the recommendations made by the Family Report writer, including, that:
(a)The child would live with the father, in Australia;
(b)Time between the child and the mother would resume and occur in Australia at first; and
(c)The child would participate in family therapy with the mother, to be supported by the father)
(Paragraphs 78, 79 and 82 of the Family Report).
Each of the parties (and the Independent Children’s Lawyer) were agreed (as expressed in their competing minutes), that the child would live with the father. The Independent Children’s Lawyer – and adopted by the mother – also proposed a shared/week about living arrangement if the mother were to live in Australia and that the father would exercise sole decision making responsibility in relation to long term issues (conditional upon him notifying the mother and the parties, and then taking certain steps in relation to decisions before they are made) – and there was broad agreement about spend time orders on the occasions the mother is in Australia, albeit with different drafting preferences. The parties and the Independent Children’s Lawyer also sought, and largely agreed upon, orders being made for the continuing engagement of the mother and the child in family therapy. Again, the wording of orders about such was not agreed; nor specifics as to who should pay the fees associated with family therapy and the extent to which the appointments would be made in consultation with the father.
It was conceded by the parties that in light of the orders sought by each of them, any concerns about the alleged risk of harm to the child in the care of the other parent could not be sustained.
THE ISSUES FOR DETERMINATION
In broad terms, it was submitted that the matters in dispute primarily related to:
(a)When orders providing for the child to spend time with the mother in the United States would first take effect – later in 2025 in the mother’s case or in 2026, in the father’s case;
(b)Whether, as sought by the Independent Children’s Lawyer and the mother, an order should be made to address the care arrangements for the child in the event that the mother was to live in Australia, to the effect that in that event, the child live on a week on, week off basis with each parent;
(c)The number of weeks of time that the child would spend with the mother during long summer/end of term 4 holiday periods. The mother initially proposed four weeks, later seeking five, and with the Independent Children’s Lawyer’s proposal of three weeks being adopted by the father;
(d)Precise arrangements for the child’s travel to the United States to spend time with the mother;
(e)The location of changeover for periods of time occurring both within and outside of Australia, with the father proposing that he would deliver the child to the mother at the airport, and the mother and the Independent Children’s Lawyer suggesting other arrangements;
(f)What orders needed to be made to scaffold the continuation of the family therapy between the child and the mother;
(g)The extent to which personal conduct ought to be restrained (by proscriptive injunctions in accordance with s 68B of the Act or orders more generally identifying unacceptable conduct);
(h)Whether other proscriptive orders ought to be made (including about the sleeping arrangements for the child and restraints relating to the mother’s partner); and
(i)Other drafting preferences and differences between the parties as to their respective minutes sought.
The parties sought that appropriate orders be made with respect to the renewal of a passport for the child but had omitted to include such in each of their minutes. I was invited by the parties to include such an order. No further submissions were made about the form of that order.
At the conclusion of the submissions, the Independent Children’s Lawyer made an application for her costs to be paid by the parties. That order was opposed by the mother. The father’s counsel submitted that her client neither consented to nor opposed the making of such an order but noted that her client was in receipt of Centrelink benefits.
THE LAW
Parenting orders
Given the narrow ambit of the matters remaining in dispute between the parties, only a brief overview of the applicable legal principles is provided below.
Orders in respect of children are informed by Pt VII of the Act. The meaning of a parenting order is defined at s 64B.
Section 60CA of the Act provides that the court is to regard the best interests of the children as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII, being to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the United Nations Convention on the Rights of the Child.
Section 60CC(2) identifies the matters that the court is to take into account in determining what is in the best interests of a child as follows:
60CC How a court determines what is in a child’s best interests
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
The court must, pursuant to s 60CC(2A), consider any history of family violence, abuse, or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
The court must, pursuant to s 60CG, consider the risk of family violence and to the extent it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence.
The child is not an Aboriginal or Torres Strait Islander child and the considerations under s 60CC(3) are not relevant to this matter.
Parental responsibility
Parental responsibility is defined at s 61B of the Act. According to s 61C of the Act, each parent has parental responsibility for the child and the parents are encouraged, where it is safe to do so, to consult each other about major long-term issues in relation to the child, having regard to the child’s best interests pursuant to s 61CA.
The court has the power to make parenting orders that allocate the responsibility for decision-making to the parties jointly or solely in relation to all or specified major long-term issues under s 61D(3).
The parties have agreed on a scheme relating to major long-term decisions for the child which will vest in the father ultimate decision making authority, after certain conditions are met by him (in providing information to the mother prior to making the decision). In circumstances where the child lives with the father (and has done so since 2018) and the acrimonious relationship between the child’s parents where communication is virtually non-existent, the compromise agreed by the parties is appropriate and may, in fact, foster the mother having a greater awareness of matters important to the best interests of the child.
Section 60CC factors
As referred to above, the court is mandated to take into account the factors at s 60CC(2) in determining what is in the best interests of a child.
It is not necessary, given the limited ambit of matters to be decided by me, to set out consideration in detail, of the particular s 60CC(2) factors which guide assessment of the best interests of the child. However, I have had regard to s 60CC(2) in full and note in particular, the following:
(a)At paragraph 49 of her report, the Report writer expressed concern that the child had likely been exposed to the conflict between her parents.
(b)The fact that the parents have agreed so much of the detail regarding the future care of the child is heartening – an agreed and co-operative approach to these important matters may be the beginning of improved relations and management between the parents.
(c)The continuation of therapy to support the child’s continuing relationship with her mother and the father’s support of this, is also important in managing risks for the child in the future.
(d)There is clearly a benefit to the child in having a relationship with her mother and with the mother’s family (s 60CC(2)(e)). Her relationship with the father is established and secure. Her relationship with the mother is presently vulnerable, as identified by the Report writer. The parents’ consent to these orders, however, endorse their mutual commitment to the restoration of the relationship between the child and the mother.
(e)The child will turn 15 this year. The parents have agreed to orders which, in part, reflect the views of the child as expressed to the Report writer including that she wanted to remain living with the father in Australia (at paragraph 63), and that she did not want to live with the mother (at paragraph 59).
(f)It would be problematic to impose upon a child of this age a set of arrangements which may not reflect her views and preferences. The parents have each proposed and agreed orders which provide for the child to spend substantial periods of time with the mother, both in Australia and in the United States.
(g)The parents are, on that basis, confirming their support of those arrangements as being in the best interests of their child and, by entering into orders, are agreeing to be bound by the obligations that arise for each of them upon the making of the orders.
DETERMINATION
I am not restricted to only making orders which are sought by the parties or the Independent Children’s Lawyer (U v U (2002) 211 CLR 238) and I note that counsel for each of the parties and the Independent Children’s Lawyer addressed fully in their submissions, aspects of their orders sought.
I have largely adopted the revised Minute of Order proposed by the Independent Children’s Lawyer, noting the following:
(a)The orders I make will provide for the child to live with the father.
(b)I do not make an order which provides for the child to live with the mother and the father on a week about basis in the event that the mother is to live in Australia, in the future. There was no evidence before the court that the mother is contemplating moving back to live in Australia. Such an order would be entirely speculative.
(c)There is no evidence to suggest that such a living arrangement would be tolerated by this 14 year old child. The views of the child remain an important consideration and must be given proper, genuine and realistic consideration (Bondelmonte v Bondelmonte (2017) 259 CLR 662).
(d)In the report of Ms G, she records certain views expressed by the child about her possible living arrangements (referred to previously). I take those statements into account and note that the child has spent only limited time with her mother since 2018. The proposed week about living arrangement for the child, in the event the mother lived in Australia, is not supported by this evidence and would be contrary to the views of a 14 year old child.
(e)The orders I make will delay the commencement of time between the mother and the child in the United States until 2026. This will allow the mother and the child further time to re-establish their relationship in this country, before the child is required to travel overseas to spend time with the mother and the mother’s extended family.
(f)I decline to make the order sought by the father about him spending time with the child in the United States (whilst the child is spending time with the mother). The relationship between the parties is not such as to support the creation of further engagement between the parents during the holiday time between the child and the mother. The risks of dispute and conflict between the parties are real, given the history of this matter.
(g)I decline to make an order with respect to the mother arranging and paying for travel and medical insurance for the child. There was no evidence before the court to found such an order. The order was not sought by the mother, nor did she consent to it. If relevant in the future, such matters will need to be the subject of discussions between the parties.
(h)I decline to make an order as sought by the father seeking to restrain the mother from permitting her husband to provide medical care to the child. There was no evidence to suggest any risk to the child from the mother’s husband nor a proper basis for the order sought. It had not been sought by the father in his Amended Response filed on 16 April 2024.
(i)I have adopted the mother’s proposed order about the sleeping accommodation she will provide to the child when the child is in her care. Common sense would dictate the mother taking sensible steps to provide the child with appropriate sleeping accommodation and personal privacy in the circumstances of this case – as this child becomes accustomed to spending time in her mother’s care, being afforded privacy, particularly in her sleeping arrangements, may act as a reassurance for her. The mother proposes that she will endeavour to ensure the child has a separate bedroom during these periods of care, but at the very least, will ensure the child has a separate bed. In circumstances where the mother’s care of the child will not always occur in the mother’s home, this degree of flexibility is reasonable.
(j)The restraints proposed by the Independent Children’s Lawyer directed to conduct by the father are to be expressed in mutual terms (that is, as applying to both parties). As submitted by counsel for the father, it was the mother who has on two occasions, attended the home in which the father and the child live, without prior agreement or invitation. I also have regard to the evidence of the father’s conduct including:
(i)The father attending the location at which the child would be spending time with the mother in February 2025 (paragraph 10 and following of the mother’s affidavit of 25 February 2025) and the comments attributed to him in there.
(ii)The father communicating with the mother’s employer and with the employers of the wife’s current husband (paragraph 59 of the mother’s affidavit of 18 March 2024, read with leave, and paragraph 91 of the mother’s affidavit of 12 February 2025).
(k)As to the continuation of family therapy between the child and the mother, I largely adopt the orders proposed by the Independent Children’s Lawyer save as to the process for arranging the appointments. The mother is to provide prior notice to the father of the appointments she arranges for therapy with the child. This is a practical necessity given that the child lives with the father, and it properly places responsibility for managing these matters on to the parents. The father is, however, required to facilitate the child’s attendance at the appointments.
(l)I have had regard to the observations of the therapist, Mr C, in his letter dated February 2025 (Exhibit A), particularly as to why the father is not to be involved in the therapy and his view that the child is old enough to “navigate” the therapy sessions independently. However, the logistics of the appointments for the child will still need to be managed, at least when in person, with the knowledge and support of the father. The orders I make will require some communication by the mother with the father about the appointments, and for the father to facilitate the child’s attendance at the appointments.
(m)In addition, it is proper that the mother meet the costs of this therapy given her (apparently) superior financial circumstances. I note the mother had consented to meeting the costs of the child’s counselling in an order made on 5 November 2024 and to the costs of family therapy in an order made on 4 June 2024. I also note that the mother has failed to meet her child support obligations. No adequate explanation for that deficiency has been provided.
(n)I have included an order for communication between the child and the mother on a weekly basis but without a time restriction/delineation, and for such communication to occur without interference or supervision by the father. I had regard to the observations of the Report writer about this and the views attributed by her to the child at paragraph 60. I have also had regard to the comments attributed to the child in Mr C’s letter in relation to the challenges she experiences in the telephone calls. However, I consider that the continuation of the structure for some communication between the child and the mother will be a useful adjunct to the therapy process between them.
(o)I have made an equivalent order for the father’s benefit (when the child is spending time with the mother). The effect of these orders would be to provide necessary privacy to the child when she communicates with the other parent. These orders do not limit the ability of the child to communicate with the parents of her own volition.
(p)I have made an order with respect to the process for renewal of the child’s passport. That document is to be held by the father, pending travel (given that the child lives with the father), and I make orders to that effect. It is anticipated that both parties will enjoy travel with the child in the future. It is appropriate that the costs of the renewal of the child’s passport are shared between them.
COSTS OF THE INDEPENDENT CHILDREN’S LAWYER
At the conclusion of their submissions, counsel for the Independent Children’s Lawyer made an oral application for their costs to be paid by the parties. I invited counsel for the parties to address me on that application.
The mother’s counsel opposed the making of an order that her client contribute to the costs of the Independent Children’s Lawyer. No objection was taken by the mother’s counsel as to the quantum of the costs claimed by the Independent Children’s Lawyer. The basis of the opposition to an order requiring her client’s contribution to the Independent Children’s Lawyer’s costs was put as no more than, “it is opposed”.
I have had regard to the mother’s evidence before the court, including her affidavit filed on 13 February 2025 and her Financial Statement affirmed on 10 February 2025 and filed on 11 February 2025. The mother deposes to having salary income of $3,540 per week (or $184,000 gross per annum) in addition to rental income (for which there may also be expenses to be taken into account). The mother also deposes to having interests in real property in Australia, Country E and the United States.
The mother lives with her husband in the United States and his income, as reported by the mother in her financial statement, is $7,259 per week (or $377,468 per annum).
The mother has an outstanding child support obligation for the child of more than $25,000. There was no adequate explanation from her counsel as to why the mother has not paid her child support obligations.
Counsel for the father neither opposed nor consented to the order for costs sought by the Independent Children’s Lawyer. No objection was taken by the father’s counsel as to the quantum of the costs claimed by the Independent Children’s Lawyer. To the extent that there was opposition to the order sought by the Independent Children’s Lawyer as to costs, it was focussed upon the father’s financial circumstances and his present unemployment.
In the father’s Financial Statement affirmed and filed on 21 February 2025, he deposes to income of $500 per week from Job Seeker and Family Tax Benefit (both being Commonwealth benefits).
The father asserts in his Financial Statement that no child support is presently being paid to him by the mother. His assertion is disputed on the mother’s evidence but, in any event, the evidence is clear as to the substantial arrears of child support owing by the mother under the present administrative assessment of child support. The father asserts the arrears at a figure of $25,500 at paragraph 38 and $25,858 at paragraph 44 of his affidavit filed on 21 February 2025. In support he annexed a screenshot of his Child Support account confirming the amount to be $25,858.84 as at 21 February 2025.
In the father’s Financial Statement (sealed 21 February 2025) he does not particularise balances in his bank accounts but instead, refers to Annexure A. That Annexure document is not part of the document filed.
The father does have the benefit of living in the jointly owned property in NSW and meets the (modest) weekly payments for the mortgage over the home (paragraph 21 of his Financial Statement). In his Financial Statement, the father deposes to his weekly expenses exceeding his income by more than $500.
I note the child lives with the father and these orders will provide for ongoing time between the child and the mother – however, the father will continue in his role as the primary carer for the child.
I accept that these assertions by each party as to their financial circumstances have not yet been tested by cross examination. However, for the purposes of this costs application, I have regard to the evidence of each of their financial circumstances.
I also note that the parties each have had the benefit of an order made under s 102NA of the Act (as referred to previously). Eligibility for that scheme is not means tested.
Section 117 of the Act provides that, save for particular circumstances, each party is to pay their own costs. The Independent Children’s Lawyer is not a party to the proceedings and it is quite proper for the Independent Children’s Lawyer to seek an order that the parties meet the costs incurred by Legal Aid NSW relating to the work undertaken by the Independent Children’s Lawyer, following their appointment on 9 November 2023.
The costs provisions under s 117(2A) of the Act allows me broad discretion to make any order as to costs and I have regard to the matters set out therein, including most relevantly in this matter, as to the financial circumstances of each of the parties (s117(2A)(a)), whether either party is in receipt of a grant of legal assistance and the terms of such (s117(2A)(b)) and “such other matters as the court considers relevant” (s117 (2A)(g)).
I consider the factors most relevant to this consideration to be those set out in section 117(2A)(a) and (g).
I have had regard to the important role of the Independent Children’s Lawyer in these proceedings, including their role in facilitating settlement discussions when the matter was before the court for final hearing and in particular, the preparation of the comprehensive schedule of points of agreement and difference between the parties, which document was prepared after hours and presented to the court on the morning of the second day of the hearing. That document is marked as Exhibit C.
The work of the Independent Children’s Lawyer has been of significant assistance to the court.
Sections 117(3) and (4) of the Act provide as follows:
117 Costs
Costs of independent children’s lawyer
(3)To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
(4)However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a)a party to the proceedings has received legal aid in respect of the proceedings; or
(b)the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.
I note that funding under the section 102NA scheme is separate from and distinct to a grant of legal aid and on that basis, the provisions of subsection section 117(4)(a) above do not apply (see Legal Aid ACT & Westwell [2021] FamCAFC 50).
I am required, in accordance with section 117(5) to disregard the fact that the Independent Children’s Lawyer is in receipt of a grant of legal aid when considering the costs application they have made.
I was not expressly invited by the father’s counsel to find that the making of an order that the father contribute to the costs of the Independent Children’s Lawyer would cause him financial hardship under section 117(4)(b) (and the mandatory direction that then follows that the court must not in those circumstances, make an order against that party) but rather, was invited to have regard to his financial circumstances.
Even if I did not find that the making of a costs order would cause financial hardship to the father, I am then to have regard to the evidence before the court as to his financial circumstances generally under s117(2A)(a). Consideration of those matters is set out in my reasons above.
Taking into account the father’s financial circumstances generally and his responsibility for the care of the chid, I decline to make an order that the father contribute to the Independent Children’s Lawyer’s costs.
No challenge was made to the quantum of costs as claimed by the Independent Children’s Lawyer or the basis of their calculation. I accept the sums claimed as proper and reasonable.
I will, however, make an order that the mother pay 50 per cent of the Independent Children’s Lawyer’s costs, the mother’s share being $6,876. There was no reasoned basis offered as to why the mother ought not pay some part of the costs of the Independent Children’s Lawyer. Based on her financial circumstances, I do not find that such an order will cause her financial hardship. In all of the circumstances of this case, I find that it is just and proper for the mother to make that contribution.
CONCLUSION
It is for these reasons that I am satisfied that the orders herein are in the best interests of the child.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Simpson. Associate:
Dated: 18 March 2025
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