Schafer & Bailey
[2024] FedCFamC2F 4
•23 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Schafer & Bailey [2024] FedCFamC2F 4
File number(s): PAC 5612 of 2020 Judgment of: JUDGE STREET Date of judgment: 23 February 2024 Catchwords: FAMILY LAW – PARENTING- substantial agreement – resolution of particular issues – time with parents when child turns 14 – orders made – reasons reserved Legislation: Family Law Act 1975 (Cth) Cases cited: Metrellis & Chase [2023] FedCFamC2F 1241 Division: Division 2 Family Law Number of paragraphs: 44 Date of hearing: 13, 14 & 15 November 2023 Place: Sydney Counsel for the Applicant: Mr Juhasz Solicitor for the Applicant: Griffiths Family Law Counsel for the First Respondent: Ms Lahoud Solicitor for the First Respondent: Assafiri Lawyers Second Respondent: Appeared in Person Third Respondent: Appeared in Person Counsel for the Independent Children’s Lawyer: Mr Robertson Independent Children’s Lawyer: Walkden Law and Mediation ORDERS
PAC 5612 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SCHAFER
Applicant
AND: MS B BAILEY
First Respondent
MR BAILEY
Second Respondent
MS C BAILEY
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
15 NOVEMBER 2023
THE COURT ORDERS ON A FINAL BASIS THAT:
1.All extant parenting Orders be discharged.
2.The father, mother, maternal grandmother, and maternal grandfather (“the parties”) shall have equal shared parental responsibility for decisions regarding major long-term issues about the care, welfare and development of the child, X born 2012.
3.That the parties shall consult with each other prior to making any long-term decisions about X and the parties will make a genuine effort to come to a joint decision.
4.With respect to any medical decisions to be made for X, the parents shall consider the opinion of X’s general medical practitioner to assist them with any decision in circumstances where the parties do not otherwise agree.
5.With respect to any educational decisions while X is in primary school, the parents shall consider the opinion of X’s classroom teacher and school counsellor to assist them with any decision in circumstances where the parties do not otherwise agree.
6.Upon X entering high school, the parents shall consider the opinion of X’s head of year, and/or X’s school counsellor as the case may be, to assist them with any decision where the parties do not otherwise agree.
7.X shall live with the maternal grandmother and the maternal grandfather when not spending time with the father or the mother pursuant to these Orders.
8.When X is living with the maternal grandmother and maternal grandfather, X may spend time with his mother in accordance with his wishes.
9.The person who has X in their care will immediately notify the other parties in the event that X does not attend school on any day that X is required to attend.
10.The mother be and is hereby restrained by injunction from using any surname for X other than the surname “Schafer”, and in particular, from using the surname “Bailey” for X.
11.X shall spend time with the father as follows:
(a)Each alternate weekend during school terms commencing 17 November 2023, from the conclusion of school or 3pm (whichever is applicable) on Friday until the commencement of school or 9am (whichever is applicable) on Monday, and extending to the commencement of school or 9am (whichever is applicable) on Tuesday if Monday is a public holiday.
(b)Each alternate Wednesday during school terms, from the conclusion of school or 3pm (whichever is applicable) on Wednesday until the commencement of school or 9am (whichever is applicable) on Thursday;
(c)For one half of each of the Autumn, Winter and Spring school holiday period as agreed between the parties, but failing agreement, the second half of each such school holiday period, from 10am on the midpoint day until 6pm on the last day of the school holiday period;
(d)During Summer school holiday periods commencing in odd-numbered years;
(i)from 5pm on 16 December until 5pm on 23 December;
(ii)from 3pm on 25 December until 3pm on 27 December; and
(iii)from 5pm on 5 January until 5pm on 19 January;
(e)During Summer school holiday periods commencing in even-numbered years,
(i)from 5pm on 16 December until 3pm on 25 December; and
(ii)from 5pm on 5 January until 5pm on 19 January;
(f)During Easter in odd-numbered years, from 3pm on Good Friday until 12pm on Easter Sunday;
(g)During Easter in even-numbered years, from 12pm on Easter Sunday until 9am or the commencement of school (whichever is applicable) on Easter Tuesday;
(h)On the weekend of Father’s Day, from the conclusion of school or 3pm (whichever is applicable) on Friday until the commencement of school or 9am (whichever is applicable) on Monday;
(i)During New Years’ Eve in odd-numbered years, from 5pm on New Years’ Eve until 5pm on New Year’s Day.
(j)On X’s birthday in even-numbered years, from 10am until 5pm that day;
(k)On X’s step-siblings’ birthdays from the conclusion of school or 3pm (whichever is applicable) until 7pm on school days, and from 10am until 6pm on non-school days;
(l)On the father’s birthday, from the conclusion of school or 3pm (whichever is applicable) until 7pm on school days, and from 10am until 6pm on non-school days;
(m)From 27 March 2024 until 2 April 2024 for a holiday with the father; and
(n)At such other times as agreed between the parties from time to time in writing (including by message using an agreed coparenting application).
12.Notwithstanding any Orders contained herein, X’s time with the father shall be suspended on:
(a)The weekend of Mother’s Day, from the conclusion of school or 3pm (whichever is applicable) on Friday until the commencement of school or 9am (whichever is applicable) on Monday;
(b)On the mother’s birthday, from the conclusion of school or 3pm (whichever is applicable) until 7pm on school days, and from 10am until 6pm on non-school days; and
(c)On X’s sibling, D’s birthday, from the conclusion of school or 3pm (whichever is applicable) until 7pm on school days, and from 10am until 6pm on non-school days;
(d)On X’s half-sibling, E’s birthday, from the conclusion of school or 3pm (whichever is applicable) until 7pm on school days, and from 10am until 6pm on non-school days
13.For the purpose of facilitating X’s time with the father pursuant to these Orders:
(a)If X is attending school at the commencement of his time with the father, then the father or the father’s wife, Ms F shall collect X from his school;
(b)If X is to attend school at the conclusion of his time with the father, then the father or the father’s wife, Ms F shall deliver X to his school; and
(c)all other changeovers shall take place at an equidistant location as agreed between the parties, but failing agreement, in the dining McDonald’s Family Restaurant, G Shopping Centre, Suburb H NSW.
14.The maternal grandparents nor the mother are to attend X’s school at times where X is to be collected by the father or the father’s partner and neither the father or the father’s partner are to attend X’s school at times where X is to be collected by the maternal grandparents or the mother.
15.When X has turned 14, he may spend time with his grandparents, father or mother, in accordance with his wishes.
16.Pursuant to s68B of the Family Law Act 1975 (Cth), for the personal protection of X, the mother is restrained from consuming alcohol 24 hours prior to any contact with Mr J when spending time with X and is to immediately remove X from the presence of Mr J if he consumes any alcohol in the presence of X or is apparently affected by alcohol.
17.At any time that X is spending time with the mother in the presence of Mr J, the mother is to ensure that X has his mobile phone and that the mother is to remove X from the presence of Mr J if so requested by X.
18.X may communicate with his mother, father and maternal grandparents in accordance with his wishes.
19.Within seven (7) days of X’s enrolment at any school, the parents shall contact and notify X’s school of their respective contact details to enable the parents to do all acts and things and sign all documents necessary to authorise the school to provide each of the mother and the father with copies of any material ordinarily provided to parents, including but not limited to, school reports, reports on school progress and behavioural issues, school photograph order forms, circulars and school bulletins, invitations and notices of parent and teacher interviews, school activities and sporting events.
20.The maternal grandmother be listed as an emergency contact person (third in priority after the parents) at any school wherein X attends, and these Orders shall be sufficient as authority for this purpose.
21.Each party be at liberty to attend, and each party shall keep the other informed as to:
(a)X’s sporting fixtures and religious, cultural and extracurricular activities and events that allow for parental attendance; and
(b)Any school functions, activities and events that allow for parental attendance, including but not limited to, concerts, plays, sporting fixtures, open days, excursions, fetes, speech nights, assemblies, parent and teacher interviews, canteen duties, and social functions.
22.The party who has X in their care on the day of such sporting fixtures and religious, cultural and extracurricular activities or events shall be responsible for X’s day-to-day care and transportation to and from such fixtures, activities and events.
23.Except as agreed between the parties in writing, each party be and is hereby restrained by injunction from enrolling or registering X in any sporting or extracurricular activity that would take place or be scheduled to take place when he would be in the care of the other party under these Orders.
24.Each party shall:
(a)Inform and keep the other party informed at all reasonable times of their respective residential addresses, telephone contact numbers, email addresses, and any other information necessary for X to communicate with the other party, and each party shall notify the other of any changes thereto within twenty-four (24) hours of the date of such change occurring;
(b)Inform and keep the other party informed at all times of the names, contact telephone numbers and addresses of all treating medical, therapeutic or allied health care professionals attended upon by X at any time;
(c)Be entitled to communicate with X’s treating medical, therapeutic or allied health care professionals for the purpose of obtaining information as to matters relevant to his health and welfare, including information regarding any treatment recommended or undertaken, and each party shall authorise such treating medical, therapeutic or allied health care professionals to provide such information to the other party;
(d)In the event that X is prescribed medication, notify the other party as soon as is practicable thereafter, but not later than twenty-four (24) hours after the medication has been prescribed, and ensure that X’s prescription medication is provided to the other party at changeovers;
(e)Follow the treatment recommendations made by any medical, therapeutic or allied health care professionals for X whilst he is living with or spending time with that party including ensuring that any prescribed medication is administered in accordance with the directions for use;
(f)Inform the other parent in writing (including by message using an agreed coparenting application) as soon as is practicable of any specialist medical appointments, including appointments with any psychologist, psychiatrist, counsellor or therapist (“treating specialist medical consultant”) in relation to X;
(g)Ensure that the other party is provided with a copy of any report prepared by a treating specialist medical consultant of X within seven (7) days of receipt;
(h)Notify the other party as soon as is practicable of any medical issues or illnesses suffered by X, or any other matter relevant to his welfare, whilst he is in their respective care; and
(i)In the event that X is involved in a medical emergency, notify the other party immediately and provide details of the medical professional, medical facility or hospital upon which X attends.
25.Without admissions, each party be and is hereby restrained by injunction from:
(a)Showing X documents in these proceedings, or discussing these proceedings or any other legal proceedings in which either party is or has been a party in X’s presence or hearing, and each party shall use their best endeavours to ensure that no other person does so in his presence or hearing, and immediately remove him from any environment that exposes him to the same.
(b)Attempting to influence X’s views in relation to his living or spend time arrangements with the other party;
(c)Abusing, insulting, belittling, rebuking or otherwise denigrating X, the other parties, or any member of the other parties’ household or extended family to or in X’s presence or hearing or by use of social media, and each party shall use their best endeavours to ensure that no other person does so in his presence or hearing, and immediately remove him from any environment that exposes him to the same;
(d)Exposing X to family violence, including emotional or verbal abuse;
(e)Striking or applying any form of physical chastisement to X, and each party shall use their best endeavours to ensure that no other person does so and immediately remove him from any environment that exposes him to the same;
(f)Using illicit substances whilst X is in their respective care.
26.Pursuant to section 11 of the Australian Passports Act 2005 (Cth) (or any Act replacing that Act and making like or similar provision):
(a)X be permitted to travel internationally; and
(b)The parents be permitted to apply for and have issued to them, an Australian travel document for X, or renew any such Australian travel document.
27.The parents be permitted to provide a copy of these Orders to the Minister referred to in the Australian Passports Act 2005 (Cth) (or any Act replacing that Act and making like or similar provision), including but not limited to a delegated officer of the Minister.
28.Pursuant to Section 65Y of the Family Law Act 1975 (Cth), each parent be at liberty to take or send X from Australia to a place outside of Australia during the time that he is living with or spending time with them, or for such other period as agreed between the parties from time to time in writing, provided that:
(a)X is not taken to a country or jurisdiction that is classified by the Department of Foreign Affairs and Trade as ‘Level 2 - Exercise a high degree of caution’ or equivalent or higher at the date of departure; and
(b)The travelling party shall ensure that X is fully vaccinated as recommended by his treating general medical practitioner for each travel destination.
29.The maternal grandmother shall hold any Australian travel document of X in safe custody until X attains the age of eighteen (18) years, save and except when the either parent makes written request that X’s Australian travel document be released to them for the purpose of overseas travel, and in this regard, the maternal grandmother shall not unreasonably withhold X’s Australian travel document in such circumstances.
30.The parent provided with X’s Australian travel document shall return X’s Australian travel document to the maternal grandmother as soon as is practicable, but otherwise within seven (7) days of X’s return to Australia.
31.The parents and the maternal grandparents shall communicate about X using an agreed coparenting application such as OurFamilyWizard or AppClose.
32.That as soon as possible from the date of these Orders, and no later than 7 days from the date of these orders, the ICL meet with X to explain the effect of these Orders herein.
33.The Court declines to make any costs order in respect of the ICL’s costs.
34.The Court reserves its written reasons.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
These are parenting proceedings that were commenced on 21 October 2020 and were the subject of a listing for final hearing for three days commencing on 13 November 2023. The Court received into evidence the affidavit of the applicant dated 10 October 2023 and the applicant’s tender bundle which was marked exhibit A. The Court received into evidence the respondent’s affidavit of 9 November 2023 together with the respondent’s tender bundle which was marked exhibit B. The Court received into evidence the child inclusive memorandum dated 30 June 2021 which was marked exhibit C, the child impact report which was marked exhibit D, and the ICL tender bundle that was marked exhibit E.
At the commencement of the hearing on 13 November 2023, the Court raised with the parties that it appeared to be a case where it was necessary to join the maternal grandparents given the nature of the orders that were being proposed by the ICL and by the applicant. All parties agreed that it was appropriate to join the maternal grandparents in the circumstances of this case concerning the parenting orders to be made in respect of the child X, born in 2012. Accordingly, on 13 November 2023, this Court made orders by consent joining the maternal grandparents, as a second and third respondent, and made a procedural order relating to dispensing with the need for a notice of address for service in the circumstances.
The Court, before making that order, spoke to the maternal grandparents and explained the reasons for seeking to join the maternal grandparents. The maternal grandparents consented to the joinder and cooperated in the proceedings with the making of final orders that were made on 14 November 2023 after hearing argument on limited issues. The parties had a substantial degree of agreement in relation to the final parenting orders and provided the Court with a marked up set of orders identifying the scope of dispute. The Court raised with the parties a proposal to hear the parties in respect of the areas of dispute and to determine the matter taking into account the material that had been filed but without cross-examination. All parties agreed to that course.
The maternal grandmother raised a concern on behalf of herself and the maternal grandfather about the interruption to X during school weeks if there was to be a handover every Wednesday to Thursday and otherwise the maternal grandmother and maternal grandfather expressed cooperation in relation to the Court making the orders that were the subject of agreement between the parties and on the issues raised by the Court. In making these orders, the Court has taken into account the whole of the evidence that has been identified as well as the respective case outlines for the parties and the ICL and the submissions that were made on 14 November 2023.
The Court has taken into account the principles in relation to parenting as identified in Metrellis & Chase [2023] FedCFamC2F 1241 at [68] – [87].
This is a case where there was agreement in relation to equal shared parental responsibility between the parents and the maternal grandmother and maternal grandfather and there was substantial agreement in relation to communications concerning long-term decisions. The first area of disagreement was in relation to the form of orders in relation to the child living with the maternal grandmother and maternal grandfather. The Court identified that it proposed to make a further order that the child may spend time with his mother when living with the maternal grandmother and maternal grandfather in accordance with his wishes.
No substantive argument was advanced in opposition to that course and the Court is satisfied that it is in the best interests of X and is an order that would advance the primary considerations that the Court must take into account in ensuring a meaningful relationship with the mother as well as minimising the scope for any family violence. The Court has taken into account the predominance of the second primary consideration in respect of avoiding family violence in that regard. The Court does not propose to go through each of the factors in relation to the additional considerations, beyond identifying that X had conveyed through the ICL, and indeed through the most recent child impact report, marked Exhibit D, a desire for the current arrangement to continue.
These orders in substance facilitate that in circumstances where it is apparent that whilst there were in place orders for the child to live with the mother for about the last 14 months the child has in fact been living with the maternal grandparents. The Court has taken into account, as the third respondent identified, they have played a significant role in his upbringing throughout the whole of his life. It is also apparent from the views of the child that he enjoys living with his maternal grandparents and he is at no risk with his maternal grandparents or with his father.
It is unnecessary for the Court to make findings in respect of the conflict between the parties in respect of past family violence and competing allegations including what might have been said to be potential issues of gaslighting beyond identifying that the Court is satisfied that the orders proposed to be made do not expose X to any unacceptable risk and are in the best interests of X. There is agreement in relation to orders in respect of notifying the other parties if the child is missing school.
Whilst X’s educational attendance in 2022 was not as good as 2023, it is apparent from the school report in June 2023 that X’s interaction with his colleagues and teachers has improved, which bodes well for his future. The Court did not accept that there was a need for the father to be notified in relation to spending time with the mother. The Court does not accept that there is any unacceptable risk in the child being with the mother and spending time with the mother. The Court does however accept that there is a need for the making of particular orders around a person who appears to be in a domestic relationship with the mother to which the Court will turn.
There is agreement in relation to a restraint in respect of the child using his surname. In relation to school weeks, there was an issue in relation to spending time with the father every Wednesday until Thursday morning. The Court accepts that this arrangement for every week could well give rise to an adverse impact on X in respect of school terms consistent with the issue raised by the third respondent. The Court is satisfied making it alternate Wednesdays adequately ensures meaningful time with the applicant as well as avoiding unnecessary disruption to X in his schooling. The ICL supported this as appropriate on schooling.
There was agreement in relation to the school holidays but for a small disagreement in respect of a period in January 2024. The respondent mother wanted from 5 pm on 5 January 2024 until 5 pm on 15 January 2024. The applicant father wanted from 5 pm on 5 January 2024 to 5 pm on 19 January 2024. The respondent mother contended that the period that she was propounding ensured equal time. The ICL submitted that the question of time would be very much dependent on when school commenced and on one view the change was moot.
The Court is of the view that the slightly greater time with the father would be in the best interests of X in respect of the holidays. The Court also accepted the proposition advanced by the ICL that whether it is in fact greater time is potentially moot. The next issue was in relation to Father's Day where effectively the father wanted to ensure that he had the benefit of the weekend. The respondent mother was of the view that this might mean that the father spends two weekends in a row with X. Whilst the Court appreciates that may occur, the Court does not regard that as a reason why the proposed time which would be similar for the Mother's Day is not an appropriate order.
The Court is satisfied that the greater time on Father's Day and Mother's Day with X with the respective parents is in the best interests of X. There is otherwise agreement in relation to most other days except in relation to stepsiblings. The respondent contended that an order should only be made in respect of one of the siblings. The Court accepts the applicant father’s submission that the orders should be made to cover both stepsiblings and for this reason the Court has made those orders in the best interests of X.
The parties have a small issue in respect of a proposed holiday which is said the father had booked from 22 March 2024 to 2 April 2024. The respondent mother expressed concern that this may mean that she does not have the benefit of Easter with X this year in 2024. It is apparent that X spent time with both parents over Easter this current year. The Court is satisfied that it is appropriate in the best interests of X to facilitate a holiday with his father from 27 March 2024 to 2 April 2024 and that that would be in his best interests. The Court does not regard the additional time as being of adverse significance in respect of a meaningful relationship with the mother. The Court is satisfied it is in the best interests of X to facilitate such a holiday.
In relation to Mother's Day, the Court has made the same orders as the Court made in respect of Father's Day. There was agreement in relation to attendance at school and location for collection as well as in respect of Mother's Day and in respect of another sibling. The parties opposed an order of restraint in relation to attending school in respect of times when the father is to collect the child and the Court made a reciprocal order that applied to both collection by the father and in the alternative collection by the maternal and paternal grandparents or the mother so that the father was the subject of the same restraint that he was seeking to impose on returning grandparents and the mother.
In relation to a person known as Mr J, born 1982, the applicant and the ICL sought an order of restraint from contact between the child and that person at large. The applicant father pointed to what would seem to be a serious sexual offence committed over 20 years ago when the relevant person was approximately 17 or 18 involving a teenage girl. Reference is also made to more recent notifications this year on at least two occasions by the respondent to the police in respect of domestic altercation involving alcohol between the respondent mother and the person, Mr J.
This is a matter where there has been a level of historical interaction between the partners of the respective parents which is mostly unfortunate. There was an incident involved in which the applicant father was filming an interaction between his partner and the respondent. It is not necessary for the Court to descend into making findings in that regard beyond observing that on one view it was entirely inappropriate for the applicant to be attending with his partner to give rise for the potential for an altercation and that the Court is far from satisfied that this was a circumstance in which there was not a degree of potential gaslighting by the applicant that fuelled the disagreement that took place between the respondent and the applicant’s partner.
It is not appropriate for one party to seek to impose their views as to with whom the other party can have a relationship. The historical serious offence of Mr J is exactly that and the Court does not accept that that historical offence gives rise to any unacceptable risk to X being in the presence of Mr J. The Court does accept that there has been a degree of alcohol-fuelled disagreement between the respondent and Mr J and that such is not a healthy environment for X.
The Court has made orders that provide for a restrain in respect of the consumption of alcohol by the respondent when spending time with X if bringing him into the presence of Mr J and also a restraint requiring the mother to remove X if Mr J is consuming alcohol or appears affected by alcohol and also to ensure that X has available his mobile phone and that the mother will remove X from the presence of Mr J if he so requests.
The Court does accept that there was a view expressed in the child impact report as to X not enjoying time with Mr J but doing so for the benefit of his mother. That is often a position that occurs in relation to a new partner’s appearance. On one view of the evidence, there had been some concerns expressed by X in relation to the conduct of the father’s partner. The Court does not accept, however, that there is any unacceptable risk to X merely by reason of being in the presence of Mr J with his mother and does not accept that exposure to Mr J or permitting the child to spend time in his presence of itself poses an unacceptable risk to X.
The Court has taken into account that it is not appropriate for X to be exposed to any form of family violence whether between the parents or between a parent and a new partner. That said, parents and new partners will have disagreements. The Court’s orders have been framed in a nuanced way to ensure that X is not exposed to any unacceptable risk by reason of the continuation of the relationship between the respondent and Mr J. The Court is further of the view that to the extent that the respondent does have an emotional attachment to and relationship with Mr J, orders that effectively prevent that relationship in the presence of X are likely to make parenting by the mother more difficult and are more likely to impede a meaningful relationship with the mother if such a restraint were to be imposed in the present case of the kind sought by the applicant and the ICL.
The Court is satisfied that it is not in the best interests of the child to make a restraint of the breadth sought by the ICL and the applicant. The Court is satisfied that it is in the best interests of the child to make the nuanced orders that the Court has in relation to Mr J and is satisfied that those orders are in the best interests of the child. In relation to communications there was a series of proposed orders, 16 and 17, of a complex kind. The Court is satisfied that the child is at an age where he is able to communicate with his mother and his father as long as it’s with his grandparents and in accordance with his wishes. Accordingly, the Court made an order facilitating X doing so.
This meant also that the order in relation to facilitating communication, although agreed, is not necessary. The order that the Court has made that the parties are bound by must be complied with. There was agreement in relation to enrolment and in relation to emergency contact. The Court did not accept that it was necessary to impose some burden of communication between the maternal grandmother and the mother. There was agreement in relation to keeping the parties informed about events and attending sporting fixtures and ensuring that except as agreed in writing that the child is not to be enrolled or registered in any sporting or extracurricular activity that would take place or be scheduled to take place when he would be in the care of the other party.
There is an obligation in relation to keeping the parties informed which was the subject of agreement. There was agreement in relation to restraint in respect of a subject matter of these proceedings tending to influence the child’s views, denigrating the other, exposing the child to family violence, physical chastisement or consumption of illicit substances when the child is in their care. There was agreement in relation to passport orders albeit there was suggested mild disagreement in respect of travel documents. There's every reason why the maternal grandmother is the appropriate person to hold the Australian travel documents when the child is not travelling. The Court is satisfied the proposed orders in that regard are in the best interests of X.
The Court also proposed that the parents should communicate by an appropriate app as well as the maternal grandparents. It was pointed out that the maternal grandparents and the applicant have been communicating effectively. The Court however is concerned that multiple communications through different means between different parties is likely to heighten the prospect of confusion and misunderstanding. It is sensible for the parties to all communicate using the same app. The maternal grandparents have indicated that they were prepared to use the same and accordingly the Court was satisfied that the proposed order for communications concerning X to take place through the parenting app is the appropriate order.
The Court also made an order for the ICL to explain these orders to X. The Court is satisfied that X is at an age where the explanation of the orders by the ICL to X is in his best interests. The Court has also taken into account that X did identify that he thought his views should prevail and the Court wants him to have the benefit of understanding through the lens of the ICL the orders that are being made by the Court in his best interests.
The ICL did seek an order as to costs. Both parties were represented through Legal Aid. The Court was satisfied that the parties’ circumstances in terms of financial circumstances are not such that justify an order for the costs of the ICL and declined to make any order as to costs.
The Court has taken into account the considerations under section 117(2)(A) in that regard and in particular the limited means of the parties in declining to make a costs order for the benefit of the ICL. The Court was informed those costs were in the order of $13,363. The Court otherwise reserved its written reasons, and these are the reasons for the orders pronounced on 14 November 2023. The Court took into account the principles in s 60B and s 69ZN and is satisfied that pronouncing the orders and reserving the reasons was in the best interests of the child.
The Court had prepared and intended to make an order in relation to X living with the parents and the grandparents in accordance with his wishes once he has turned 14.
The Court, in the process of hearing the parties, thought that issue had been raised. On checking the transcript, it appeared that the issue had not been raised and accordingly the Court sent an email to the parties identifying the proposed further order and that the orders that had been pronounced would not otherwise be entered up prior to the opportunity at 10 am to hear the parties on any dispute if there is an objection to such proposed order.
The Court notified the parties on 14 November 2023 that there was a further order that the Court had intended to make that, having listened to the transcript, it appeared was not addressed by the parties, and that was that when X turned 14, he may spend time with his grandparents, father or mother in accordance with his wishes. The Court invited the parties to indicate if they object to the same. Objection was received, and the matter was listed for 10 am on 15 November 2023. The second and third respondents did not oppose the proposed order, nor did the respondent mother.
The ICL opposed the order and first advanced the proposition that the Court was functus officio. The Court stopped Mr Robertson in that regard. The orders had not been entered up. The proposed order reflected the intention of the Court. The Court, during the hearing on 14 November 2023, sought to confirm that the issue had been raised and misunderstood the response. It was at all times the intention of the Court to raise the issue and address what would occur when the child turns 14.
The Court notes in that regard, at the commencement of the hearing on 13 November, the Court raised with the parties the prospect that when the child turned 14, he should spend time with his parents or maternal grandparents in accordance with his wishes, in trying to identify the potential range of orders that might be made. Mr Robertson’s suggestion that the Court was functus has no substance, nor does the fact that the Court had pronounced orders yesterday and reserved its reasons. It was apparent the orders did not reflect the intention of the Court. The Court notified the parties of the issue to give the parties an opportunity to be heard on the same, and there was no substance in the argument as to the Court being functus officio.
The ICL then submitted that this is a matter where, because of the observations in the child impact report, in particular in paragraphs 28 and 29 and the reference to firm boundaries and not to undermine the other parent and X’s development stage, that it was not appropriate to speculate as to his emotional state and maturity at the age of 14. The interview with the child and the child impact report occurred on 13 February 2023. Since that date, the Court has the benefit of the material in relation to the school report, at the end of semester 1 of 2023 which identified improvement from earlier terms in relation to his personal social development. Every column was ticked in that regard consistently in respect of relates well to peers, shows initiative, shows interest in class activities, shows respect, and works independently. That advancement in relation to X’s maturity was not before the child impact report writer at the time of the interview or the settling of that report.
It is also the position in that report that there are observations made by X that if the judge made an order, and he was not ready to do it, he thought that would be very unfair. The orders that have been made do in fact increase the time being spent by X with his father, which is not, at this point of time, an exact implementation of the current status quo. The Court is satisfied that that increased time until X attains the age of 14 is sensible and consistent with the recommendations in relation to boundaries for X. Further, the Court is of the view that the order proposed to be made in order 25B of the injunctive orders requiring the parties not to influence X’s views in relation to his living or spend-time arrangements with the other party are a restraint that the respective parties will comply with.
The Court does not accept that the order in relation to X when he turns the age of 14 is a speculative position, given the apparent maturity progress that has already occurred, as reflected in the school report. The Court is also conscious of the views that were expressed by X in relation to what he might perceive as unfair. Incorporating in the orders a time point at which X’s wishes will prevail is more likely to ensure, in the Court’s view, that X will adhere to the arrangements in the interim, rather than perceiving the orders as imposing outcomes with no regard to the views that he expressed. The Court is satisfied the proposed order is in the best interests of the child.
The Court is also satisfied in that regard that the order is appropriate at that age, to maximise the potential meaningful relationship between the child and his parents. The Court is also of the view that the order is least likely to generate family violence or conflict, and that at that age, it is appropriate for X’s wishes to prevail. The Court is of the view that permitting X to determine who he spends time with at that age is most likely to minimise the risk of parental conflict or family violence, particularly taking into account the injunctive restraint that has earlier been identified.
Mr Juhasz embraced the submissions of the ICL. For the reasons already given, there is no substance in the assertions that the Court was functus officio. Mr Juhasz advanced the submission that in addition to the points made by the ICL, it was the father’s contention that there had been attempts to influence the child by the mother. In that regard, reference is made to page 133 of a diary note by a school counsellor in early 2020, which recorded a reason for referral was through concerns you have:
Mental abuse by mother in attempt to alienate the father.
The source of the information in respect of the reason for referral is not specified, and the document appears to be an interim step for the purpose of action by the counsellor. The document has the parent’s/caregiver’s signature, and it is obvious that it is the applicant father’s signature.
The applicant father’s assertions in relation to attempted influence are not elevated in any way by the record that was kept at page 133. The respondent mother has in her affidavit evidence denied attempting to undermine the meaningful relationship with the applicant. In that regard, the respondent mother said:
I do not influence or brainwash my son in any way. [X] has always been encouraged to spend time with his father. It is [X] who has consistently expressed that he does not want to stay with him or spend time with him.
The historical record created by the father does not assist in identifying why X should not be in a position to determine who he lives with when he turns 14. For the reasons already given, the Court is satisfied that it is in the best interests to permit X to do so.
Mr Juhasz further submitted that this was an issue raised by the Court of its own motion and not raised by the parties and that it would be an error to introduce the same. The parties have not been able to achieve a full resolution of the parenting dispute in their proposed orders, and they have identified agreed and not agreed topics. The Court went through the agreed and not agreed topics at the time of making final orders on 14 November 2023 and reserving its reasons until it became apparent to the court on 14 November 2023 that it had, by error, not raised what it had intended to raise to clarify the position when the child turns 14.
Further, the Court identified that this was an issue that was raised by the Court at the commencement of the hearing on 13 November 2023. In that regard, the Court identified that this was the type of case where the current status quo might be the subject of meaningful discussion and X being able to spend time with who he wishes when he turns 14.
It will be 2026 when X turns 14, which is approximately two years into the future, at which time, given the progress that X has already made in relation to his apparent maturity, the Court finds that he will have reached a maturity and be emotionally and physically capable of making decisions and implementing those decisions in relation to who he spends time with. Imposing boundaries on a 14-year-old boy who has already expressed a view of unfairness if the Court were to be directing him to do things contrary to his wishes is a matter that must be taken into account, as earlier identified. The Court finds that it is in the best interests of X to make the order identified, which was supported by the first, second and third respondents and had been raised by the Court on 13 November 2023 as an issue. It is for these reasons the Court made the orders entered up on 15 November 2023.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 23 February 2024
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