Schuchard & Liang
[2024] FedCFamC1F 438
•17 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Schuchard & Liang [2024] FedCFamC1F 438
File number(s): SYC 5164 of 2022 Judgment of: BAUMANN J Date of judgment: 17 June 2024 Catchwords: FAMIY LAW – PARENTING – Where the mother seeks to relocate from the Sydney region to Region B – Where the father has left Australia for employment purposes – Where the father neither consents nor opposes the orders sought by the mother – Where the Independent Children’s Lawyer supports the Orders sought by the mother Legislation: Family Law Act 1975 (Cth) ss 60CC Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 17 June 2024 Place: Sydney Counsel for the Applicant: Mr M Fantin Solicitor for the Applicant: Jack Rigg Solicitors Solicitor for the Respondent: Guy Sara and Associates Lawyers Solicitor for the Independent Children’s Lawyer: Ms R Ferguson, Venus & Smart ORDERS
SYC 5164 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SCHUCHARD
Applicant
AND: MR LIANG
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
17 JUNE 2024
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous Orders with respect to the children, X born 2012 and Y born 2013 (“the children”) be discharged.
Parental responsibility
2.That the mother shall have sole parental responsibility for long term decisions about issues pertinent to the children’s care, welfare and development, subject to Order 3 hereof.
3.That prior to implementing a decision, the mother shall:
(a)advise the father in writing that she intends to make a decision;
(b)obtain the father’s views about the decision;
(c)give the father’s views due consideration; and
(d)if no agreement is reached between the parents, then within fourteen (14) days the mother shall make the final decision and advise the father in writing of the decision made.
4.That notwithstanding Orders 2 and 3 hereof, the parties are solely responsible for making decisions about the children’s daily welfare whilst the children are in their respective care.
Living arrangements
5.That the children live with the mother.
Relocation
6.That the mother be permitted to relocate the children’s place of residence to the Region B area of New South Wales, defined as being within a radius of one hundred and fifty (150) kilometres from Town C Post Office.
If the father is living and working outside Australia
7.That in the event the father resides outside the Commonwealth of Australia, the children shall spend time with the father by agreement in writing and failing agreement:
(a)in the school holidays at the conclusion of school terms one (1), two (2) and three (3) from the first Saturday until the last Friday of the school holidays, and
(b)in the school holidays at the conclusion of school term four (4) in even numbered years from 5.00pm on Christmas Eve until 5.00pm on 10 January, and in odd numbered years from 5.00pm on 3 January until 20 January.
8.That changeover for the children’s time with the father in accordance with Order 7 hereof shall be at Sydney domestic air terminal unless otherwise agreed between the parties, with the father to make and meet the expense of the children’s return travel arrangements from the closest airport to the mother’s place of residence to facilitate the children’s time with the father.
If the father lives in Sydney and the mother has relocated:
9.That in the event the father resides in Sydney and the mother has relocated, the children shall spend time with the father by agreement in writing and failing agreement:
(a)during school term, on one (1) weekend each school term, with such time to occur in Sydney being:
(i)the third weekend of term one (1) from 7.00pm on Friday until 5.00pm on Sunday;
(ii)the June long weekend in term two (2) from 7.00pm on Friday until 5.00pm on Monday;
(iii)Father’s Day weekend in term three (3) from 7.00pm on Friday until 5.00pm on Sunday; and
(iv)the third weekend of term four (4) from 7.00pm on Friday until 5.00pm on Sunday.
(b)during school term, on one (1) weekend each school term, with such time to occur in the area the children live being:
(i)the seventh weekend of term one (1) and 7 from 7.00pm on Friday until 5.00pm on Sunday; and
(ii)the third weekend of terms two (2) and three (3) from 7.00pm on Friday until 5.00pm on Sunday.
(c)during the school holidays at the conclusion of terms one (1), two (2) and three (3) from 10.00am on the first Saturday until 5.00pm on the middle Sunday;
(d)during the school holidays at the conclusion of term four (4):
(i)in odd numbered years from 10.00am on the second day of the school holidays until 5.00pm on the midpoint of the school holidays; and
(ii)in even numbered years from 10.00am on the midpoint of the school holidays until 5.00pm until 5.00pm on the second last day of the holidays.
10.That the midpoint of the school holidays at Order 9(d) hereof shall be deemed to be the halfway between the second day and second last day of the school holidays.
11.That during the time at Order 9(b) hereof, the father shall facilitate the children’s attendance at their usual sporting activities, and any pre-arranged social activities such as their friends’ birthday parties, unless otherwise agreed in writing.
12.That changeover for the children’s time with the father at Orders 9(a), (c) and (d) hereof shall be at Sydney domestic air terminal unless otherwise agreed, with the father to make and meet the expense of the children’s return travel arrangements from the closest airport to the mother’s place of residence to facilitate the children’s time with the father.
13.That changeover for the children’s time with the father at Order 9(b) hereof shall be at the closest McDonald’s Family Restaurant to the mother’s place of residence unless otherwise agreed.
14.That in the event the children miss a flight in the care of either parent, that parent is responsible for arranging and paying for the next available flight to the same destination for the children.
If each of the parents live in the Sydney metropolitan area
15.That in the event both parents reside in Sydney, the children shall spend time with the father by agreement and failing agreement:
(a)during school term, commencing in week two (2) from the conclusion of school every alternate Thursday (or 4.00pm on a non-school day) until the commencement of school (or 5.00pm on a non-school day) the following Monday, with such time being suspended during school holidays and resume when the school term resumes;
(b)during the school holidays at the conclusion of terms one (1), two (2) and three (3) from 10.00am on the first Saturday until 5.00pm on the middle Sunday;
(c)during the school holidays at the conclusion of term four (4):
(i)in odd numbered years from 10.00am on the second day of the school holidays until 5.00pm on the midpoint of the school holidays; and
(ii)in even numbered years from 10.00am on the midpoint of the school holidays until 5.00pm until 5.00pm on the second last day of the holidays.
16.That the midpoint of the school holidays at Order 15(c) hereof shall be deemed to be the halfway between the second day and second last day of the school holidays.
17.That unless otherwise agreed in writing, changeovers shall occur at the children’s school/s on school days and on non-school day changeovers shall occur at the at the front entrance of D Library, Suburb E.
Defining school holidays and term time
18.That the school holidays shall be defined in accordance with the school calendar for each respective child, so if a child attends a New South Wales public school the New South Wales gazetted calendar shall be followed. If a child attends a private school or college then the calendar of that institution shall be followed for that child.
Communication
19.That the children shall have telephone or audiovisual communication with the parents in accordance with their wishes, and neither parent will refuse either of the children any reasonable request to contact the other parent.
20.That should the father be living outside the Commonwealth of Australia, the children shall have telephone or audiovisual communication with the father by agreement and failing agreement each Monday, Thursday and Saturday at 6.00pm AEST, with the father to initiate the call and the mother to facilitate the call, ensuring the children have privacy.
21.That except in the case of an emergency, the parents shall communicate about issues affecting the children via “Our Family Wizard” or such other co-parenting app as may be agreed between them.
22.That each parent shall do all acts and things necessary to register for and subscribe to the parenting app within forty eight (48) hours of the date of these Orders.
23.That parents shall inform each other as soon as possible of any significant medical issue, illness or injury affecting the children, via the “Our Family Wizard” parenting app.
International travel
24.That unless otherwise agreed in writing, each parent will consent to the other parent travelling overseas with the children provided that:
(a)the children are not to travel to any countries as marked as “reconsider your need to travel” or “do not travel” on the Australian Department of Foreign Affairs “Smart Traveller” website, or any countries that are not party to the Hague Convention;
(b)the parent who is to travel overseas with the children on any given occasion will give the other party six (6) weeks’ written notice of the proposed travel, including:
(i)proposed departure and return dates;
(ii)proof of travel insurance with medical and medivac cover for the children and the travelling parent;
(iii)itinerary of the proposed travel and accommodation overseas;
(iv)the address and telephone number of the premises where the children will be staying during the trip; and
(v)a telephone number, “WhatsApp” number or other internet-based communication service details for contact with the children.
(c)so far as practical, the occasions on which either parent takes the children on an overseas holiday is to coincide with normal school holidays, and during that parent’s time with the children;
(d)the parent who is to travel overseas with the children on any given occasion will provide the other party with copies of return airline tickets booking and written confirmation of payment for the return airline tickets not later than thirty (30) days prior to the proposed departure date; and
(e)makeup time will be provided to the parent who may have missed time due to the overseas travel of the children with the other parent.
25.That the children are permitted to travel internationally for holidays of up to two (2) weeks duration accompanied by either the mother or the father.
26.That the parents shall do all such things necessary to cause Australian passports to be issued to each of the children, including completing and signing any application or other documents within fourteen (14) days of a request to do so from the other parent.
27.That except as provided for in these Orders, the mother shall retain the children’s passports.
28.That the mother will provide the father with the children’s passports no later than twenty one (21) days prior to the father travelling with the children.
29.That the father will return the children’s passport to the mother upon the children’s return to Australia.
30.That the father shall be entitled to a copy of the children’s passport for the purposes of booking travel and insurance.
Access to information
31.That these Orders act as an authority for the father to directly obtain information from the children’s schools and treating medical and allied health practitioners as to their progress and welfare.
Attendance at extra-curricular activities and school events
32.That neither parent shall attend the children’s school events, sporting training and or matches, when they are living or spending time with the other parent, unless otherwise agreed in writing.
33.That should both parents be in attendance at events they shall remain polite and respectful toward each other.
Medication
34.That the mother shall keep the father updated as to any changes to the children’s medication regime, and the father shall administer the children’s medication as prescribed when the children are in his care.
Injunctions
35.That both parents are restrained from:
(a)questioning the children about the other parent or events in the other parent’s home or permitting any other person to do so;
(b)criticising or making derogatory statements about the other parent, the other parent’s parenting, the other parent’s partner or their family in the presence or hearing of the children or permitting others to do so;
(c)posting any comments (or allowing any to remain) about the other parent, their extended family or any partner on any social media platform, or asking or encouraging any third party to do so;
(d)questioning the children about their views regarding which parent they want to live with or encouraging either of the children to spend less time with the other parent or asking or encouraging anyone else to do so.
36.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).
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 Schuchard & Liang has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
The Applicant mother, Ms Schuchard an educator now aged 45 years, and the Respondent father, Mr Liang, who, I think, is employed as a professional and working in Country F, also aged now 45 years, separated as a couple in February 2016 when their children, X born 2012, was approximately four years of age and Y born 2013 was approximately two years old.
The parties have been involved in significant litigation since an Application was made by the mother in July 2022. Despite the breakdown of the relationship, the parties had managed early in the proceedings to reach consent orders for the parenting arrangements for the children.
It is fair to say that X and Y, in different ways, have some additional needs and challenges, some of which have manifested more as they have got older. When this matter was listed for trial in the Sydney Registry of the Court, the significant issue that shaped the future arrangements for these children were that the mother had sought an order of the Court that she be permitted to live in Region B of New South Wales. The father, then a resident in the greater Sydney area, opposed permanent relocation. He opposed it strenuously such that the litigation has been ongoing for nearly two years now on that issue.
During the course of the preparation for trial, of a family report was secured by the parties through Dr G. That report dated 3 November 2022 made some positive comments about the parents and generally supported the mother’s proposition to relocate. There is no doubt on all the evidence – although untested – that the mother, who has been the primary carer of these children since separation to a large degree, has been caused significant anxiety by the inability to be able to move on with her life and with, it seems, a new partner of her choice, a Mr H.
Whilst the father also at one stage had a new partner, it seems he may no longer have a partner, because earlier this year the father elected to take up employment in Country F. His reasons for doing so were explained in a self-prepared affidavit filed on or about 15 April 2024. Sadly, he regarded that affidavit as an opportunity to make some significant criticisms of the mother, mostly about financial issues. I should say that there are few criticisms made by the mother towards the father and hardly any made by the family report writer about the mother’s parenting. The father, in his affidavit, made it clear that he was moving to Country F “for work and I’m no longer a resident of Australia for tax purposes. I’ve wound up my company and closed my business accounts.” He intends to stay in Country F:
…For at least two years to try and get my life back on track and separate myself from the toxic nightmare the boys and I have been put through. I also need to provide some financial certainty for myself and the boys as I continue to pay the very onerous child support obligations and private high schooling for the boys.
The father further said he may stay longer depending on whether his contract is renewed, and him being able to maintain an ongoing and positive relationship with X and Y (see paragraphs 15, 16 and 17 of the said affidavit).
When the Court became aware of the father’s change of residence, the Court took steps to list the matter for an Undefended Hearing today in Sydney because on the face of the affidavit at least, the father had indicated he was not going to participate in the litigation any further.
Section 102NA of the Family Law Act1975 (Cth) (“the Act”) was enlivened in this case and Mr Sara, a solicitor, obtained a grant of aid to represent the father. He appears today at the Undefended Hearing and has indicated that even though his client is currently in Sydney, he has chosen not to come to Court today, preferring, it seems (maybe understandably) to spend time with the boys. The father neither opposes nor consents to an order that was marked Exhibit 1 today – an order that has the consent of both the mother and the Independent Children’s Lawyer, Ms Ferguson.
I must say I find the father’s behaviour a little curious knowing that this matter was specifically listed today for hearing in the hope that he would participate, it being anticipated that he may be in Sydney at this time. In those circumstances, there may have been an opportunity, if it became an issue, to make orders for him to spend time with the boys whilst he was in Australia. The mother’s consistent attitude in this matter is that she has always supported the children spending time with their father provided it is safe. I am informed today that the children have been spending time with the father in Australia these last few days. In fact, I was told the father has taken one or both of the children to school today.
When the Court is being asked to make an order, even by consent, it is important that the statutory pathway is understood and is followed and in this regard, since 6 May 2024, the statutory pathway has altered. The primary additional considerations which everyone became comfortable with over many years has now been substituted by an abbreviated s 60CC of the Act. Under s 60CC(4), when making a consent order, the Court is entitled, but not required to, deal with all the matters set out in s 60CC(2).
I am satisfied there is no unfairness to the father proceeding with the matter today in his absence. I note the instructions he has given to his solicitor on the record, Mr Sara.
The orders that I am asked to make provide for the following:
(a)The mother to have sole parental responsibility with the obligation to consult with the father;
(b)For the children to live with the mother and that she be permitted to relocate the children’s place of residence to Region B;
(c)Paragraphs 7 and 8 provide for orders “if the father is living, working outside Australia”. I will return to that topic shortly;
(d)Paragraphs 9, 10, 11, 12, 13, 14 and 15 refer to arrangements if the father lives in Sydney which does not appear to be his current intention, and the mother has relocated as permitted;
(e)Paragraphs 12 through 15 refer to arrangements if each of the parents live in the Sydney metropolitan area; and
(f)Thereafter, what might commonly be called “specific issues orders” are included, including at paragraph 21 about how international travel can be effected.
I am comfortably satisfied on the evidence – although untested – including the mother’s quite extensive affidavit that she filed on 14 May 2024, that it is in the best interests of the children to make the orders that have been marked as Exhibit 1 today.
I take into account the recommendations of the report writer at paragraphs 250, 251 and 252 of her report. In particular at paragraph 252 where the report writer says:
If the Court determines that it is in the children’s best interest to relocate with the mother to [Region B], then it is recommended that the parents share parental responsibility, that the children live with the mother, and that the parents consider whether it is in the children’s best interest to spend time with the father for one weekend per school term or one weekend per month, in addition to time with the father during school holiday periods…
Of course, importantly, that report dated 3 November 2022 was prepared well before the father had decided he would relocate to Country F.
Earlier today, the parties including the Independent Children’s Lawyer presented a minute of consent order that purported to deal with a trip that the children may make to Country F as soon as mid-2024 accompanied by their mother. I am told this order was negotiated whilst the father has been in Australia, but that the orders were as part of a suite of orders conditional upon the Court making some child support departure orders. In my exchange with Counsel, Mr Fantin, for the mother, Mr Sara, solicitor advocate for the father and the Independent Children’s Lawyer, the Court expressed its concerns about whether the child support powers had been properly enlivened in this case. In my view, they have not been.
These parties entered into a child support agreement in 2016. I am told – although I have no evidence of this – that the agreement has been registered and should be construed as a binding child support agreement. It deals, it would seem, with the agreement the parties had in relation to payment of school fees for private schooling. It may deal with other matters, including periodic child support. Nonetheless, proposed order 4 that I was asked to make by consent today is not a parenting order in my view. The jurisdiction under the Child Support (Assessment) Act 1989 (Cth) has not been enlivened. In my view, as expressed to the parties, it would be possible to incorporate what appears to be a new arrangement in relation to payment of school fees by way of amendment to the child support agreement, and if in the correct form, it would likely be registered, I suspect.
Confronted with the opposition from the Court to making the order, Mr Fantin on behalf of the mother took instruction from her client and indicated that she could no longer support the consent orders. Mr Sara who appears for the father has no instructions to either consent to or oppose the orders, but in any event, with the mother’s withdrawal of consent means they are no longer consent orders.
There is nothing in the Applications or the Response of the father that enlivened child support as an issue, particularly in respect of a likely visit within the next 14 days. I note that the orders I propose to make do provide for international travel and for the parties to agree on that travel. I of course do not have any evidence that they will reach agreement, but the fact they have done so once might suggest that, as the evidence makes clear, the mother is supportive of the children traveling to Country F to see their father, but she requires some other comfort in relation to school fees. In my view however, the Court cannot be a party to negotiating something it has no power to make, although I understand the context.
Notwithstanding that slight hiccup today, I am satisfied on the evidence that the orders marked as Exhibit 1 and as set out at the commencement of these Reasons should be made and are in the best interests of the children, adopting the statutory pathway now set up by s 60CC. They draw the consent of the highly experienced and very engaging Independent Children’s Lawyer who effectively had significant engagement with the preparation of the orders.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 9 August 2024
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