Ristic & Ristic
[2022] FedCFamC1F 482
Federal Circuit and Family Court of Australia
(DIVISION 1)
Ristic & Ristic [2022] FedCFamC1F 482
File number(s): BRC 2563 of 2019 Judgment of: BAUMANN J Date of judgment: 27 May 2022 Catchwords: FAMILY LAW – PARENTING – Parental responsibility – Where the presumption is not rebutted – Orders made for the parents to have equal shared parental responsibility Legislation: Family Law Act 1975 (Cth) Cases cited: Vallans & Vallans [2019] FamCAFC 260; (2019) 60 Fam LR 193 Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 11, 12, 13 & 27 May 2022 Place: Brisbane Counsel for the Applicant: Ms P Zande Solicitor for the Applicant: Raiti Lawyers Counsel for the Respondent: Ms K Carmody Solicitor for the Respondent: Aylward Game Solicitors Counsel for the Independent Children's Lawyer: Ms K Oakley Solicitor for the Independent Children's Lawyer: Life Law Solutions ORDERS
BRC 2563 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RISTIC
Applicant
AND: MS RISTIC
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
27 MAY 2022
THE COURT ORDERS:
1.That except as otherwise stated, the parents shall have equal shared parental responsibility for the major long term issues of the child, X born in 2017 (“the child”), including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
2.That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision.
3.That notwithstanding the provision of Order 2:
(a)the mother shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her; and
(b)the father shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with him.
THE COURT ORDERS BY CONSENT ON A FINAL BASIS:
4.That the child live with the mother.
5.That the child spend time with the father during the school terms as follows:
(a)Until the child commences school, in each fortnight as follows:
(i)In week one (1) from the conclusion of day care or 5.00pm on Friday to 10.00am on Saturday; and
(ii)In week two (2) from the conclusion of day care or 5.00pm Friday to 10.00am Saturday.
(b)Once the child commences school, in each alternate weekend from after school on Friday to before school Monday, or before school Tuesday if Monday is a public holiday or pupil dree day.
Special occasions
6.That the child will spend time with the parents on special occasions as follows, and any clause under this Order that is inconsistent with this clause shall be suspended so as to facilitate time under this clause:
(a)For the Easter long weekend:
(i)In odd numbered years, with the father from 2.00pm on Good Friday to 2.00pm on Easter Sunday and with the mother from 2.00pm on Easter Sunday to 4.00pm on Easter Tuesday; and
(ii)In even numbered years, with the mother from 2.00pm on Good Friday to 2.00pm on Easter Sunday and with the father from 2.00pm on Easter Sunday to 4.00pm on Easter Tuesday.
(b)On the child’s birthday:
(i)If the child’s birthday falls on a non-school day:
A.In even numbered, from 9.00am to 1.00pm with the father and 1.00pm to 6.00pm with the mother; and
B.In odd numbered years, from 9.00am to 1.00pm with the mother and 1.00pm to 6.00pm with the father.
(ii)If the child’s birthday falls a day care or school day, the child will spend time with the parent he would not otherwise spend time with pursuant to Orders 4 and 5 from the conclusion of day care or school until 6.00pm.
(c)With the mother:
(i)From 6.00pm on the first day of Eid al-Fitr to 6.00pm on the second day of Eid al-Fitr;
(ii)From 6.00pm on the first day of Eid al-Adha to 6.00pm on the final day of Eid al-Adha;
(iii)From 6.00pm on the day before Mother’s Day to 6.00pm on Mother’s Day;
(iv)From 12.00pm on Christmas Day to 12.00pm on Boxing Day in all even numbered years;
(v)From 12.00pm on Christmas Eve to 12.00pm on Christmas Day in all odd numbered years; and
(vi)On the mother’s birthday:
A.If the mother’s birthday falls on a non-school day, from 9.00am until 6.00pm; and
B.If the mother’s birthday falls on a day care or school day, from the conclusion of day care or school until 6.00pm.
(d)With the father:
(i)From 6.00pm on the day before Father’s Day to 6.00pm on Father’s Day;
(ii)From 12.00 pm on Christmas Eve to 12.00pm on Christmas Day in all even numbered years;
(iii)From 12.00pm on Christmas Day to 12.00pm on Boxing Day in all odd numbered years; and
(iv)On the father’s birthday:
A.If the father’s birthday falls on a non-school day, from 9.00am to 6.00pm; and
B.If the father’s birthday falls on a day care or school day, from the conclusion of day care or school until 6.00pm.
7.That upon the child commencing formal schooling, the arrangements for the child to spend time with the father during the school terms be suspended during school holiday periods and recommence on the first weekend after school resumes at the start of each term and the child shall spend school holiday time with the parents as follows:
(a)In 2023, 2024, and 2025:
(i)With the father for the first five (5) days and nights of the March/April, June/July and September/October school holiday periods commencing at 10.00am on the first Saturday of the school holiday period and concluding at 6.00pm on the first Thursday of the school holiday period;
(ii)With the father for five (5) days and nights during the first, third and fifth weeks of Christmas school holiday commencing at 10.00am on the first, third and fifth Saturdays of the school holiday period and concluding at 6.00pm on the first, third and fifth Thursdays; and
(iii)At all other times with the mother.
(b)From 2026:
(i)With the mother during the first half of all March/April, June/July and September/October school holiday periods in even numbered years and the second half of all March/April, June/July and September/October school holiday periods in odd numbered years;
(ii)With the father during the first half of all March/April, June/July and September/October school holiday periods in odd numbered years and the second half of all March/April, June/July and September/October school holiday periods in even numbered years;
(iii)With the mother during the first, third and fifth weeks of Christmas school holiday periods in even numbered years and the second, fourth and sixth weeks of Christmas school holiday periods in odd numbered years; and
(iv)With the father during the first, third and fifth weeks of Christmas school holiday periods in odd numbered years and the second, fourth and sixth weeks of Christmas school holiday periods in even numbered years.
8.That for the purpose of the interpretation and implementation of these Orders, the following meanings shall apply to terms used in these Orders:
(a)“School holidays” – school holidays shall be deemed to commence at 9:00am on the day immediately after the last day of school of the previous school term and shall be deemed to conclude at 4.00pm on the Sunday immediately prior to the first day of school of the next school term. School holidays shall be the actual school holidays for the school the child is attending; and
(b)“Half school holidays” – the midpoint of school holidays for the purpose of changeovers shall be:
(i)April/Easter school holidays – 12.00pm on the second Saturday of the school holiday period;
(ii)June/July and September/October school holidays – 12.00pm on the second Saturday of the school holiday period; and
(iii)Christmas school holidays – 12.00pm on the fourth Saturday of the school holiday period (counting from the first Saturday of the school holiday period immediately after the last day of school).
Changeover
9.That the father be restrained from permitting Ms B from attending any changeover.
10.That changeovers occur as follows:
(a)At the beginning of the child’s time with the father, except where the father is collecting the child from day care, the mother will deliver the child to the father’s home; and
(b)At the end of the child’s time with the father, the father will deliver the child to the mother’s home.
Communication and exchange of information
11.That the child shall communicate with the parent with whom he is not spending time with by “WhatsApp” on Mondays and Thursdays from 5.00pm to 5.30pm, with the parent not spending time with the child to initiate communication and the other parent to do all reasonable things to facilitate that communication, including ensuring that their mobile phone is charged and the child is afforded privacy for the purposes of that communication.
12.That the parents will authorise the child’s day care or school to provide both parents with copies of school reports, notices, other publications, and any information they may request about the child;
13.That each parent inform the other as soon as practicable of any medical emergency involving the child.
14.That the parents shall authorise any medical practitioner, psychologist or other health care professional seen by the child to provide all information reasonably requested by the other parent at their expense.
15.That the parents keep each other informed of their current residential addresses, home and mobile telephone numbers, and email addresses.
16.That the parents shall communicate with each other via the Talking Parents application or such other parenting application as agreed between them from time to time.
17.That the time the child spends with the father is conditional upon the father undertaking up to two (2) random hair follicle tests per calendar year for a period of three (3) years from the date of these Orders at the request of the mother. For that purpose, the following shall apply:
(a)The father shall not cut his hair shorter than four (4) centimetres;
(b)The father shall request and authorise the testing provider to supply the results of each hair follicle test undertaken by him directly to the mother; and
(c)The father shall meet the costs of the test in the first instance. If he produces a clean result or a positive result and a letter from the father’s treating medical practitioner confirming the result is consistent with the father taking medication as prescribed to him in the prescribed amount, the mother shall reimburse him the costs of the test.
18.That the father be restrained by injunction from consuming alcohol, smoking or ingesting marijuana while caring for the child or in the forty eight (48) hours prior to caring for the child.
Overseas travel
19.That the child be removed from the Family Law Watchlist and it is requested that the Australian Federal Police give effect to this Order by removing the name of the child on the Family Law Watchlist.
20.That the father sign all documents, give all consents, and do all necessary things requested by the mother to enable the child to be issued with an Australian passport within seven (7) days of being provided with the necessary documents by the mother.
21.The child’s passport shall be held by the father, and:
(a)whether the mother is the travelling parent, upon the payment of the security bond by the mother, the father shall provide the child’s passport to the mother; and
(b)the mother shall cause to return the child’s passport to the father within seven (7) days of the child’s return to Australia.
Security bond
22.That the mother will provide a security bond in the amount of AUD$10,000, with such sum to be held in a solicitor’s trust account with an Australian lawyer engaged by the father fourteen (14) days prior to the child leaving Australia, refundable to the mother upon her return.
23.That the father is to be given written notification by the father’s lawyer that the security is in place pursuant to Order 22 at least seven (7) days prior to the child leaving Australia.
24.That in the event that the mother fails to return the child to Australia pursuant to these Orders, or should the mother indicate that the mother does not propose to return the child to Australia pursuant to these Orders, then the father have leave to forthwith apply to the Court for a payment from the solicitor’s trust account of the whole or part of the security to cover all necessary airfares, travel expenses, accommodation expenses, legal fees and similar expenses of the mother to have the child returned to Australia pursuant to these Orders.
25.That the mother and father are permitted to travel overseas with the child for up to four (4) weeks per year, provided that:
(a)the mother has attended to the payment of the security bond referred to in the preceding orders;
(b)the travel is to a Hague Convention country;
(c)the travel is to a country that does not have a current travel warning, except that of “exercise normal safety precautions”, issued by the Department of Foreign Affairs and Trade;
(d)the travelling parent provides six (6) weeks written notice of the intention to travel to the other parent, except in the event of a family emergency in which case the travelling shall provide as much notice as reasonably practicable;
(e)such travel occur during school holiday periods, once the child commences formal schooling in 2023;
(f)the following information is provided by the travelling parent no later than twenty one(21) days prior to the departure overseas:
(i)A copy of the return flight tickets, as relevant for the child;
(ii)A copy of the full itinerary; and
(iii)Contact details for the child for the duration of the time the child is overseas.
THE COURT ORDERS ON A FINAL BASIS:
26.That the Independent Children’s Lawyer be discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ristic & Ristic has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)
BAUMANN J:
Before I make some comments about the consent order which I propose to make, having read it and understood it, I am asked to make a determination firstly about parental responsibility. Counsel for the Independent Children’s Lawyer, Ms Oakley correctly identifies that there is a presumption under the Family Law Act 1975 (Cth) that it is in the best interests of children that parents share parental responsibility for major long-term decisions. Often, parents and, sadly, lawyers do not look at the Act to see what the “major long-term decisions” are, to which equal shared parental responsibility applies. They are faith, schooling, health issues, change of name and, more broadly, a decision made which would have the effect of having a child having less of a relationship or less time with the parent under certain orders in a change of location of a residence occurs.
Although, for reasons I will explain, there have been other issues of conflict between the parties, the only issue in this case, in my view, that had brought these parties to the Court is the mother’s desire, not unreasonably from her perspective, to relocate with the child overseas. Counsel for the mother, Ms Carmody, in her always persistent but measured and considered way, has drawn to my attention some observations by the family report writer Ms C in her family report. I do not accept that Ms C has made a recommendation in respect of equal shared parental responsibility which is a legal test, not a social test. Ms C has, and I adopt, consistent with the evidence and, ultimately, the agreement of the parties, that these parties’ communication is not, at this stage, after this journey through the Courts, sufficient to make equal time either reasonably practicable or in the best interests of this young child. Whether that will ever change in the future is speculative and something I do not choose to engage in now.
As Kent J (as he then was) in Vallans & Vallans [2019] FamCAFC 260 made clear – and has been part of Australian law since the change to the legislation in 2006 – there needs to be a principled basis upon which, if the presumption was otherwise to apply, as in this case it would, the Court departs from equal shared parental responsibility. That is at the very least because parents who gave life to the child do have, as much as any other – in fact, more than any other person – a focus on the child’s best interests long term more than people who are not in that position.
Secondly, as his Honour in that decision observed and as has been observed by others, including myself on past occasions, one of the effects of granting to a parent sole parental responsibility is to effectively remove another parent from both the responsibilities and need to consult as the Act requires on major long-term decisions. To minimise and/or to reduce the influence of a parent in that way should not be done lightly because of the presumption enacted by the Parliament.
In my view, the mother’s position, where she is undoubtedly, in terms of the orders, the primary carer of this child, has encouraged her to consider sole parental responsibility for the reasons Ms Carmody articulates. The father’s evidence, at times, has been, as I will soon observe, certainly less than candid and, at times, his behaviour has been inappropriate. His apparent inability to influence or control his new partner, Ms B, from, using her words, “confronting the mother and initiating a dispute in front of the child” gives Ms B little credit, in my view. I accept, to some degree, she might have been showing the passion of being a mother who she felt had to defend the role of herself as a new partner of the father or her own child. She should have known better. There is now to be an order restraining her from being involved at changeovers, agreed to by the father.
It is in the best interests of this child for the parents to have equal shared parental responsibility, not because it will always be easy, but because, like all parenting, which is, at times, challenging, it is in the best interests of this child that these parents actually do consult before a major long-term issue is determined. In my view, the father can learn much in this case and in the future from what I regard as the entirely almost consistently commendable child-focus of the mother in this case. The fact that she has, against her hopes and her desires (not unreasonable in all the circumstances) put the interest of her child first by remaining in Australia is the greatest example that the Court often sees of a parent - in this case, the mother - making those hard decisions.
The father needs to find a way to give more credit to the mother for the quality of parenting she brings to this child and her ability to see at times when really challenged by the father’s own conduct, his lack of candour, and, in fact, his even deliberate non-disclosure of things, she has nonetheless, in my view, kept her eye very strictly on the ball. But even saying that, sole parental responsibility is not a reward for the great attributes she has. A sole parental responsibility order should only be made where the presumption is not applied for a principled reason. I am not satisfied that the principled reasons to depart from that presumption has been made out.
Let me say something about the Orders. This has been a difficult case. Although the parents have both been in Australia for some time, and although both may have come originally from Country D, the father was 12 when he came to Australia. The mother was 20. The father had established family in Australia. He had established, by the time of cohabitation and marriage, some work relations. He had, of course, the support of his family. The mother had none of that and yet, no doubt because she felt Australia was the place she would choose to live in, not only did they commence the relationship and get married, but they persisted in the relationship for many years before, in fact, their only child X was born in 2017.
After the child was born and the parents had separated, just a few months after, they travelled as a family to Country D, Country E and Country F. There were, of course, family violence orders made finally in June 2019, but it is apparent from all the evidence, in my view, that the tensions in this relationship became unmanageable in many ways because of the understandable desire of the mother to seek the comfort of her homeland and her family by returning to Country D initially and then Country E and, ultimately, Country F.
The parents did not have the benefit of legal advice for much of the litigation history. This put an enormous amount of pressure on the Independent Children’s Lawyer, Ms Fairon, who I pay tribute to in a very difficult matter. The Court never underestimates the pressures on an Independent Children’s Lawyer (paid at Legal Aid rates) managing unrepresented litigants in difficult cases. In my view, Ms Fairon has shown the very best examples of the honest broker requirements of an Independent Children’s Lawyer in this case.
Clearly, when the father’s use of drugs became more obvious post-separation, the mother became concerned. She was entitled and is still entitled to be concerned. I must say that, in this case, I found most of the father’s evidence about this issue as either evasive, bordering on untruthful until pressed consistently by either Counsel or myself. His mother, whilst understandably wanting to protect her son, and loving her grandson and not wanting to see her grandson relocate to Europe, was also less than candid about what occurred in her household. It is almost laughable to think that this Court would accept that the sorts of apparatus the police found when their warrant was executed at that home, set up as it was in those bedrooms and in sheds, was all created to grow tomatoes or one marijuana plant. I do not accept that evidence.
I did not, for obvious reasons, have any evidence from the paternal grandfather, the person who clearly has an established history of selling and producing drugs, reflected by his incarceration in New South Wales some years ago. This is no doubt a matter of great embarrassment and disappointment to his family. However, this child cannot be exposed to drug culture, and the father has a very heavy duty, when that child is with him, not only not to use drugs in the way the Orders now dictate, but to ensure there is no exposure for this child to inappropriate behaviour in the home of his parents.
If the Court, at some future time, whether it be this judicial officer or another, is confronted with the Reasons which I am now giving, sees that the father does not seriously regard exposure to the manufacture of illegal substances, the selling of that for profit at enormous cost to our society, of young people, of teenagers who use drugs, if he cannot see the risk of that, then his role, even under these Orders, would have to be further considered. The father did not tell the Court about his conviction over 12 months ago. We have had to spend a lot more money and a lot more time in Court to examine things that could have, embarrassing as it was, been revealed by him openly and honestly. The fact that he did not do so and the fact that the mother has chosen not to persist with relocation, he should draw no comfort from. Because, as I have already indicated, that is not because his behaviour was deserving of support, on many occasions. It was, as I have indicated, because the primary carer of this little boy has put the interests of her son above her own desires, wishes and hopes. He could learn something from the mother, in my view, and should give her much more credit than he has in the past.
The Orders I make will hopefully provide this child with an opportunity to travel overseas and to enjoy the great enriching qualities of Country D and European heritage which he enjoys from both parents. It will hopefully be possible for the people like the mother’s sister – who I found to be a delightful and an honest witness, prepared to do whatever she could to help her sister in Country F. His life will only be enriched by greater exposure to people of her quality.
Although I make final orders which I believe are in the best interests of the child, as have been consented to, Australia’s law acknowledges that with children of this age, sadly – and almost inevitably, at times – things can change. I would not be encouraging these parties to re‑engage in litigation. I have at least some confidence – although I could not say overwhelming – that these parents, left to make the decisions, can meet the challenges for their son’s future.
The father must be cautious about well-intentioned advice from people who love him, like his partner and his mother.
The father needs to understand that on the evidence I have heard, he must get his marijuana use under control. I am left with a degree of disquiet that the prescribed use of medicinal cannabis may be some allegedly clever or tactical way to disguise the use of drugs more broadly. In my over 20 years as a judge, I think I have heard so many people tell me how marijuana is not harmful. As I say to them, and as I say to the father, it is illegal. It is illicit, taken other than by medicinal purposes and on medication, and you cannot go and buy it at the local corner store. Whether you grow it at home or whether you get it from a overt place, you are at least exposing your child to a culture which is likely to be significantly dangerous to him and could lead to more dangerous substances.
The father should, not for the sake of the Court, but for the sake of his son, take every therapeutic step possible to deal with his addiction to cannabis, if that is what is still existing. The father should take his head out of the sand and deal with this issue. If he does not, I can almost guarantee him that this matter will be back in Court, and the outcome for the child may not be as positive as both parents have agreed to today, which I support. That matter is very much in the father’s hands. The father is 36 years of age. He should take some responsibility for his actions.
I have made the comments I have made today, which I will publish, because at some point in time, this matter may return to a Court and not to me. Something I have always been careful of understanding in the very privileged role I have is that people can change their behaviour. People can learn to behave better. I saw enough of the mother and the father in the witness box to be satisfied that each have much to offer this child. There is no limit on the number of people who can love a child and support, guide and comfort a child, nor should we try to limit people. But where people are competing for that affection or believing that their style of love is in some way superior, that inevitably causes a loss to a child. This child should not have any of that into the future. He has much to look forward to, in my view. He seems an absolutely delightful little boy. He has no major behavioural or medical issues that confront him. His biggest risk is if his parents cannot work together. I hope they can do so.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 13 July 2022
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