Trejo and Meraz - [2011] FMCAfam 91

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TREJO & MERAZ

[2011] FMCAfam 91

FAMILY LAW – Parenting – residence.

Family Law Act 1975, ss.11E, 13C, 60CC, 60B, 60CA, 61DA, 65DAA

Dylan & Dylan [2007] FamCA 842
Goode & Goode (2006) FLC 93-286
Marvel [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
Pitkin & Hendry [2008] FamCA 186
Lansa & Clovelly [2010] FamCA 80
MRR & GR [2010] HCA 4
AMS & AIF (1999) 199 CLR 160

Applicant:

MR TREJO

Respondent:

MS MERAZ

File Number:

PAC1485 of 2010

Judgment of:

Harman FM

Hearing date:

25 January 2011

Date of Last Submission:

25 January 2011

Delivered at:

Parramatta

Delivered on:

25 January 2011

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

N/A

Counsel for the Respondent:

Mr Auld

Solicitors for the Respondent:

Gonzalez & Co

ORDERS

All prior parenting orders with respect to the children [X] born [in] 1997 and [Y] born [in] 2001 and [Z] born [in] 2006 shall be and are hereby discharged.
Until further order the applicant and the respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the children [X] born [in] 1997 (male) and [Y] born [in] 2001 (male) and [Z] born [in] 2006 (female) from the Commonwealth of Australia to expire as regards [X] on [date omitted] 2012, as regards [Y] [date omitted] 2016 and as regards [Z] [date omitted] 2021.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said children from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said children’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
The Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.
That the parents of [X], [Y] and [Z] namely Mr Trejo and Ms Meraz shall have equal shared parental responsibility for them.
[X], [Y] and [Z] shall live with their mother.
[X], [Y] and [Z] shall spend time with their father:
(a)For the third and seventh of each weekend of the ACT school term from 5pm Friday until 5 pm Sunday.
(b)For one half of each of the ACT school holiday period being the first half in 2011 and second half in 2012 and each alternate year thereafter; and
(c)Such further and/or other times as agreed between the parents from time to time.
For the purpose of school holiday time:
(a)For the first half of the short holidays being those occurring in April, June/July, September/ October shall commence at 10am and conclude 5pm on the second (middle) Sunday of the holiday period;
(b)For the second half of short holidays to commence at 10am on the second (middle) Sunday and to conclude at 5pm on the last Sunday of the holiday period;
(c)For the first half of the Christmas school holidays to commence at 10am on the day after school breaks up and to conclude at 5pm a fortnight later.
(d)For the second half of the Christmas school holidays shall be taken to commence absent agreement between the parents from 10am 5 January and conclude at 5pm a fortnight later.
For the purpose of [X], [Y] and [Z] spending time with their Father that Mr Trejo shall collect them from Ms Meraz at the commencement of each period at [omitted] railway station and Mr Trejo shall return the children to Ms Meraz at the same venue at the conclusion of each period.
When the children are spending or are due to spend time with Mr Trejo that:
(a)Mr Trejo shall be responsible for his fare to Canberra to collect the children and his fare home.
(b)Ms Meraz shall be responsible for Mr Trejo’s and the children’s fare from Canberra to Sydney ([omitted]) at the conclusion/return of the children.
Both parents shall refrain from physically disciplining the children and in particular from striking them with any object.
Each parent shall be entitled to communicate with the children by telephone and or email or other internet based program at any time and with reasonable frequency while in the other parents care.
Each parent shall ensure that they advise the other parent at all times of their residential address, contact telephone number, email address (if they have one) and the children’s email addresses (if they have them including any school account) and so as to allow telephone and email communication to occur.
Each parent shall forthwith do all things, sign all documents and give all consents and authorities necessary to ensure each parent’s contact details are fully recorded by any school, pre school, day care centre or before and after school service that any of the children attend and further to ensure that each parent is able to contact any of those services to speak with staff regarding the children’s general welfare and attendance and to obtain copies of reports, school photo order forms and any correspondence regarding the children.
Ms Meraz shall ensure if not already done so that full details of the above being schools are provided to Mr Trejo and that Mr Trejo is advised forthwith of any changes.
Each parent is entitled to attend at and participate in any activity at any school to which parents are invited to attend or participate.
Each parent shall forthwith and contemporaneous with the event advise the other of any illness, emergency, hospitalisation required or experienced by any of the children and will provide such consents and authorities as necessary so that both parents can consult with any treater and obtain any advice or information from them.
Pursuant to s.11E of the Family Law Act1975 direct each of the parents or if more expeditious the ICL to contact Family Consultant

Mr P to obtain a referral and contact details for a service proximate to each parents residence to assist each parent in developing communication strategies with the other and preferably such services to be culturally sensitive or specific and upon such referral being made and pursuant to s.13C of the Family Law Act each parent to attend for the purpose of intake and that service to determine what course is suitable to the parents.
Remove all issues from the list of cases awaiting hearing and dismiss all outstanding applications and responses.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC1485 of 2010

MR TREJO

Applicant

And

MS MERAZ

Respondent

REASONS FOR JUDGMENT

These are proceedings relating to three children:
[X] born [in] 1997, and accordingly 13 years of age;
[Y] born [in] 2001, accordingly nine years of age, shortly to turn 10; and
[Z] born [in] 2006, who has recently turned five.
The parties to the proceedings are the parents of these three children, Mr Trejo, who is the applicant father, and Ms Meraz, who is the respondent mother.
The proceedings were commenced by Mr Trejo by application filed 30 March 2010. A number of interim events occurred during the course of the proceedings, and a number of interim orders have been made by, firstly, Dunkley FM, and later myself.
Importantly, on 17 May 2010, interim orders were made which included placing these children on the Airport Watch List pending further order and also an order which restrained Ms Meraz from allowing her sister, [name omitted], to expose the children to cigarette smoke. Orders were also made which provided an interim arrangement for the children’s time with each parent.
On 7 June, the proceedings were adjourned. A child inclusive dispute conference occurred and a memo was produced. The independent children’s lawyer was appointed, and further interim time orders were made.
Ultimately the matter did proceed to interim hearing, before me, on 2 July 2010. On that date, both parties were legally represented, the independent children’s lawyer was present, and at the conclusion of the hearing, interim orders were made by me which included time arrangements for the children to see their father and listing the matter for trial for yesterday and today. Directions were also made for the filing of material, and I will comment upon that briefly.
The matter has occupied two days of hearing and is now concluding with this judgement.
The evidence filed in the case has comprised affidavit material by each of the parents and a family report by family consultant, Mr P. Two documents have come in to evidence by way of tender.
The orders proposed by Mr Trejo are as set out in an amended application filed 19 April 2010. Ms Meraz’s response was filed by her on 7 June 2010, being one of the dates on which the proceedings came before Dunkley FM. The response sets out the orders, by and large, which are proposed by Ms Meraz at hearing. In short, each of these parents seeks to have all three of children live with them and spend time with the other parent.
The case is, to some extent, typified as a relocation case, although the effect of the interim orders made by me on 7 June was to allow

Ms Meraz to continue to reside with the three children in Canberra, to where she had moved in April of 2010. Ms Meraz seeks to continue to reside in Canberra with the three children, and proposes that there be time, ultimately adopting a minute of order exhibit ICL1 tendered by the independent children’s lawyer and which proposes orders for time between the children and their father being the second, fifth, and eighth weekend of ACT school terms, first half of all ACT school holidays in one year, and alternating with the second half in the other. Travel arrangements are proposed to be by train as neither party drives.
Mr Trejo, as the applicant, proposes something substantially in reserve. He seeks that all three children reside with him in Sydney, that they spend time with their mother for some weekends during school terms, for periods during school holidays, and again that travel occur by train.
In addition to reading the affidavit material of each of the parties, and as the matter has progressed, I have also had the benefit of each of the parties being cross-examined and giving some short oral testimony as a consequence. I have also had the benefit of a CDC memo and full family report of Mr P and his cross-examination.
In relation to the preparation for the matter, the father’s material is perhaps not as extensive as it could be, and that is with some real regret but entirely beyond the father’s control.
The mother’s material, similarly, is brief, far less fulsome than one might expect for a two day hearing dealing with issues of whether children will live interstate from the other parent or not. Indeed, the major difficulties that arises with respect to the mother’s affidavit is twofold:
a)
Firstly, it was filed substantially late, notwithstanding that directions had been made for it to be filed in November and a subsequent order made extending that time to a date in December. It was not ultimately filed until early this year. Accordingly,

Mr Trejo has not had any substantial notice, but was prepared and content to proceed with the hearing of the matter to bring it to a conclusion.
b)The second element, and of even more concern, is that the affidavit, to a large extent, is exactly the same, bar for an additional four paragraphs, as the affidavit that had been filed in the interim proceedings some seven months earlier.
These are parents, which I will discuss in more detail shortly, who are both already emotionally, socially, economically, and linguistically disadvantaged.
It is with great regret that the above observations are made regarding preparation in the matter. None of that, of course, falls at the feet of counsel who has appeared for the mother, who has done an excellent job and particularly when he has been hampered by ill preparation of the case before the matter has arrived with him.
Of even more concern is the fact that the mother is legally aided and the funds that have been expended by the Commission, in preparation of the matter, would appear to have been misplaced, as the preparation has largely consisted of pressing the print button to reproduce a document that had already been filed seven months earlier and which does not assist the Court with any further or updated information of any great moment.
Of equal concern, although the reasons are not known and there may, in fact, be some good reason and basis for it, is that the father’s legal representatives, an in house solicitor from the Legal Aid Commission, had appeared on behalf of Mr Trejo until mid-December 2010. That is, taking in to account the Christmas closedown period, effectively some weeks before the hearing. It may be that following the release of the family report, which was released shortly prior to the notice of ceasing to act and which certainly contained clear recommendations on behalf of the report writer as to what he thought should occur with the case, that a decision was made to terminate funding and/or representation.
But in any event, these are parents, who have come to this country under the auspices of the United Nations Convention on Refugees. Whilst Mr Trejo has conducted his case with great dignity and conducted his case in a fashion that has demonstrated to me that he is clearly a very intelligent man, he is, indeed, a man for whom English is his second language. Whilst Mr Trejo speaks English perfectly clearly and well I have no doubt that technical language and technical issues, such as the various sections of the Act provided to him at the start of the case, and some matters that he touched on in his evidence (without seeking, for one moment, to waive his legal professional privilege or suggesting that he has done so) would suggest that he has, perhaps, not been represented with the vigour that one might expect, and to the extent that he has come to court without his documents, including the family report, which have not been provided to him by the solicitors who had withdrawn. Indeed he suggested the report was made available to him to read briefly but then taken back and he hadn’t seen it again until being at court.
That is a document of some 14 pages with clear recommendations adverse to his position, and one would have thought his preparation in the matter would have been aided substantially if a different path had been taken, either in his representation or the diligent provision of materials to him.
As I have indicated, none of that is known to the Court. I do not know what has actually transpired, and I have not, in the circumstances, made it my business to inquire of Mr Trejo during the course of the hearing for fear that it may be perceived as waiving his legal professional privilege and, in any event, it is not germane or relevant to the issues that this Court is required to determine. But I make those observations with respect to both parents and the preparation of their case, as it has had a number of regrettable impacts.
Legal aid funding is certainly limited, and it is open to the Commission, and appropriately so, to make determinations as to who is funded and who will receive the benefit of those moneys. I do not seek to interfere at all in the workings of the Commission. They are an independent statutory State authority, and it is entirely a matter for them, but certainly the ethos of the Commission is to assist those who are socially and economically disadvantaged. And certainly this file will be referred to the Commission, together with these reasons, so some consideration can be given as to how to better address and, in future, avoid problems of this nature which, in Mr Trejo’s part, I am satisfied, has created some disadvantage for him, which is regrettable and unavoidable in the circumstances.
Litigants routinely appear in this Court on an unrepresented basis but, in my experience, rarely having been dumped by the Commission only some weeks before the hearing and without any apparent adequate explanation to Mr Trejo, and in circumstances where the mother’s case has been, and I use the terms advisedly, so shabbily prepared that there was a real potential, but for the wealth of information provided to the Court by the family report writer, for her position to have been even more substantially prejudiced. Whilst the rate of remuneration provided by the Legal Aid Commission solicitors is commonly criticised by those practitioners who perform legal aid work or cause them to choose not to perform it for economic reasons, it is, indeed, part of the ethical duty of any legal practitioner to assist those in need.
The pressure is on legal practitioners nowadays, financially and otherwise, to conduct a practice and to earn an adequate living from it. Notwithstanding the common community perception that all legal practitioners are rich, many are not. Many, in fact, based on the Law Society’s own statistics, are earning below average weekly earnings. But if the work is to be performed, it must be performed with a spirit, not Ghandian, but of a desire to assist those who inherently, as a consequence of the circumstances of their matter and the circumstances of their background, are disadvantaged already, and they need not be further disadvantaged through poor preparation of their case, no matter for what reason that arises, and certainly the Commission, as part of its service agreements, panel system and otherwise, in my respectful view, should cast some light over such practices.
Whilst the pay rate may not have increased for 13 years, if the only reason people perform legal aid work is on the basis of receiving some payment, then perhaps they should revisit their decision to perform legal aid work at all, or the Commission should do it for them. Matters must be properly prepared, whether a solicitor is funded privately, by Legal Aid, or not at all, conducting the matter on a pro bono basis.
Lawyers remain officers of the Court and it is their primary duty to assist the Court to advance the interests of justice, the reputation of the profession and of the legal process in general as the fundamental cornerstone of the rule of law and none more so than in cases such as this, with people who have come from a disadvantaged background, who live in the most dire of financial circumstances.
Notwithstanding that Ms Meraz has some employment, it is not well remunerated, and Mr Trejo, due to disability and a number of other issues beyond his control, is not in paid work either. In those circumstances, people for whom our system is, for historical and cultural reasons, perhaps somewhat more inaccessible than it might be to many others deserve and should be entitled to expect full, proper and vigorous representation, particularly when their representation is funded by the Legal Aid Commission. I have spoken enough of that issue and now wish to return to the facts of this case.
The parties’ proposals I have set out clearly above and leave this Court with clear and stark issues to determine as to how these children will continue their relationship with each parent. Notwithstanding that each of the parents has been clear in their evidence neither has sought to address what might be referred to as the third possibility of returning or moving, if orders were made for their children to return from or remain in Canberra. Each has been clear that they will continue to reside in the areas where they presently are being, in Mr Trejo’s case, Sydney, and Ms Meraz’s case, Canberra. As a consequence, these children are going to travel, and travel a lot, to be able to maintain a relationship with either parent.

The evidence of the parties, as I have indicated, is set out in their affidavit material, paucity of it such as there is, and their oral testimony, as well as the family report.
The context of the evidence is particularly important in this case. Two very important matters give a real context not only to the evidence of the parties but the totality of these proceedings, they being the financial circumstances of the parties and their relative impoverishment and culture.
Culture is a matter specifically referred to in s.60CC as a relevant matter in any parenting case, but it has some very real importance to these parties and their circumstances.
Both Mr Trejo and Ms Meraz are from a Sudanese background, and more specifically, a southern Sudanese background, being the area of Sudan that has traditionally, since independence in 1956, been touched by conflict and disadvantage. The northern areas of Sudan are far wealthier, have far greater access to natural resources and the profits therefrom, to the extent that they flow to the inhabitants of the country, and the southern area of Sudan, for some hundreds of years, including whilst under British occupation and administration, was ignored, or at least treated differently and far more disadvantageously than their northern cousins.
As a consequence of the difficulties that have befallen Sudan since its independence, Sudanese immigrants to this country, particularly under humanitarian programs, represent one of the fastest‑growing groups of arrivals in Australia, and indeed the arrivals of Sudanese nationals in Australia over the last 10 years, in accordance with Department of Immigration statistics, have increased by 34 per cent per year. The Sudanese community in Australia, like many marginalised communities, has tight connections amongst its members. And the Sudanese are to a marked extent marginalised. The Sudanese in Australia are marked clearly within any community grouping by their colour. They stand out. They are not Caucasian and until the 1970s it was very much the social and political policy of this country to avoid their immigration at all.
More importantly, the Sudanese culture has some significant differences to mainstream anglo celtic Australian culture. That is not to suggest for one moment that in this Court laws and outcomes will be tailored to meet the specific cultural backgrounds of litigants. There is one law in the Commonwealth of Australia that deals with parenting cases, and that is Part VII of the Family Law Act. However, culture is not only relevant to the considerations which are directed by s.60CC, but are also relevant to how the case progresses, how questions might be put, and certainly is highly relevant to understanding and giving a context to the evidence of parties such as in the way that some matters that might arise in evidence might be viewed in a different cultural perspective than would be viewed, for instance, by the majority homogenous Anglo-Saxon community.
The Department of Immigration in Australia has produced a helpful synopsis of the Sudanese community under the title “Sudanese Community Profile”. It suggests the following in relation to culture and family:
Traditional Sudanese age and gender roles may be significantly different from those in Australia and settlement challenges such as unemployment, differing rates of English acquisition between family members and understanding of Australian laws may cause some family friction.
It goes on to indicate:
For some Sudanese –and certainly for Mr Trejo and Ms Meraz –religion is a very important part of life, and finding a denomination, religious community and a place of worship may assist in the settlement process.
The other aspect that flow from these litigants’ cultural background is a very important context as regards the manner in which issues are dealt with within the Sudanese community. In this case, there is clear evidence that the parties had attended what they have referred to as “community mediation,” where members of the Sudanese community have sought to assist these parents through the good services of Sudanese elders within the community to try and resolve their dispute. Certainly, I take clearly from Mr Trejo’s evidence and submissions that part of that related to the desire to not have this family split up. That was also to some extent corroborated by Ms Meraz’s evidence.
When she was questioned by Mr Trejo as to whether she had a man who slept at her home she was somewhat taken back and appropriately so in light of her belief system and culture, and indicated clearly that that would not be appropriate. Ms Meraz engaged in a most frank manner regarding her history of relationships with men, having commenced with Mr Trejo and the fact that while she is not divorced she is still married and it would be entirely inappropriate for her to be involved with any man.
The Department of Immigration document goes on to indicate the following which is consistent with a number of other readily available resources including diplomatic protocols published by the United States Consulate in Sudan, providing as follows:
Gender roles in Sudan tend to be traditional…with men participating in public life while women are responsible for the home and often manage crops. Usually a man will be the head of the house and women are considered somewhat subordinate, although this varies across tribes and locations.
The relevance of that issue is that it is clear from portions of the evidence that upon arriving in Australia Mr Trejo took that role and that this was culturally appropriate. The lease of the home was in his name, bank accounts were in his name, and indeed part of his evidence related to difficulties that began to arise when Ms Meraz wished to exercise such roles, such as having accounts in her name or the children’s. That is certainly culturally appropriate. The role of men and women within Sudanese communities, whether within Sudan or transmigrated to Australia, quite clearly does not sit entirely with the majority mainstream white Anglo-Saxon culture of increasing equality of sexes, at least in polite conversation. What may be held as private views of individuals is perhaps a little less clear in any circumstance or class or context. But those contexts of culture have some real bearing on the evidence given by these parents and by Mr P.
It is suggested for instance in Mr P’s report that Mr Trejo was somewhat aloof and standoffish, (to use my words and to paraphrase that portion of his report), during observations with the children. At paragraph 44 of the report it indicates:
The children entered the observation room without obvious greeting of acknowledgement of their father. [X] and [Y] quickly sat at the table and engaged in a board game together. They packed up a game a short time later following [Z]’s attempts to join them. Mr Trejo appeared restrained in his endeavors to engage with his children and chose to stand through the observation in spite of a number of opportunities to sit with his children and engage in their play. While Mr Trejo spoke with the children in English through the course of the observation, and the children responded, there appeared to be no significant conversation arising from these verbal interactions.
That, if observed of a mainstream white Anglo-Saxon couple, in observation sessions for preparation of a report would strike a very strange tone indeed. It would suggest some real lack of affection or interaction, perhaps some morbidity of the parent, particularly noting that the observation session was part of a forensic exercise, of which both parents would have been aware, to assist this Court in assessing the appropriate outcome for these children. But if one places that within the cultural context of a parent for whom there is a divide between not only male and female gender roles, but age divisions and the role of a parent is not to be on the same level as and sitting at the table on the same plane as his children, it may well be viewed in a different an entirely appropriate light and I do so.
The other common aspect of these parties beyond culture relates to their financial circumstances. Both of these parents are, in effect, impoverished. There is no nicer way of putting it. Mr Trejo is dependent upon Centrelink benefits and such assistance as he receives from subsidised housing from the Department of Housing. Ms Meraz is in receipt of some limited benefits from Centrelink, but otherwise is dependent upon her income from working in [omitted], a type of work traditional undervalued in our society. The rates of pay for the type of work Ms Meraz performs are not substantial and she doesn’t work full-time. Ms Meraz’s sister lives in the same household. That, no doubt, provides some financial assistance, although Mr Trejo squarely puts that in issue, but I accept that there would be some sharing of expenses if not more direct financial contribution and assistance between those two adults.
That also provides some assistance to Ms Meraz in being able to work shifts and at work different times knowing that she has the assistance of her sister. Her evidence being that they never work the same shift to insure that one of them is available for the children, getting them to and from school and the like. But irrespective of that, these parents live four and a half hours apart from each other by train, and neither drives independently. Accordingly they are dependant on public transport.
There is some little evidence before the Court as to cost, and in particular some evidence given by Mr Trejo that the cost for himself and the children to travel return between Canberra and Sydney is $47 and if he does it himself is $20 return, so $67 in total for the transaction, as it were, if Mr Trejo were to travel to Canberra, collect the children, return to Sydney with them and then return them to Canberra at the end of the time and come back alone to Sydney. $67 would certainly not appear a substantial amount of money for that amount of travel but for these parents, particularly when Mr Trejo’s evidence is clear that he receives about $240 a week from Centrelink, but pays $121 or 50 per cent of his income in rent, that is no doubt money that is incredibly hard to come by.
These parents do not live, and I accept the evidence from each of them, a life that involves them in substantial expenditure on lifestyle choices. They are not people who frequent the theatre, they don’t spend their time subscribing to the Sydney Symphony Orchestra, nor do either of them, as many people in receipt of Centrelink benefits, and indeed private income, smoke or drink to excess. Accordingly they live frugal lives and they scrape together the funds to make the little travel that has occurred to facilitate these children’s relationships with each other happen, and when their children are with them to feed and clothe them.
Mr Trejo’s evidence and his submissions have been highly critical of Ms Meraz in that regard, for having left $240 a week Department of Housing accommodation in Sydney in which they had lived with the children when together for the purpose of moving to Canberra, and paying something in the order of $700 per fortnight, it is suggested, or $350 per week.
I accept that that is, in the overall context of these parties financial circumstances, a substantial increase in housing cost, but she does have a sister to provide some assistance, and in any event, parents are entitled to make lifestyle choices and to live their life as they wish, as was made clear by the High Court in AMS & AIF (1999) 199 CLR 160 as well as a number of Full Court authorities prior and subsequent.
The evidence of these parties otherwise, to the extent that it touches upon issues that are relevant for the Court to make findings about, are not dramatically at odds. The parties agree that since coming to Australia they have lived together largely in the [omitted] area in rental and Department of Housing accommodation. They also agree that they physically separated on or about 18 November 2009. What they are in disagreement about in that regard is firstly whether they had separated under the one roof prior to that, it being asserted in Mr Trejo’s case that indeed they had lived separately and apart under the one roof since

10 March 2006, and the circumstances which led to Mr Trejo leaving the home.
Mr Trejo suggests he was forced out of the accommodation they then lived in by Ms Meraz and her sister in combination, and that following that his circumstances took a turn very much for the worst, again due to the financial circumstances of these parties and possibly also cultural estrangement on Mr Trejo’s part at that time. In any event Mr Trejo spent a period of some weeks sleeping behind [omitted] Library, homeless, before, through the services of the Salvation Army, an organisation that so many people have so much to thank for, he was provided with hostel accommodation in which he stayed for some months. Although that was described as a less than favourable experience by Mr Trejo during the family report interviews and I can accept that would have been, at the very least, highly confronting for him.
He has ultimately received assistance from the Department of Housing in now obtaining his own independent one-bedroom accommodation. That accommodation I am perfectly satisfied is adequate for these children when they have, and when they hopefully will continue to be, in their father’s care in the future.
After the parties had physically separated, and largely as a consequence of Mr Trejo’s housing difficulties, for some months there was a very fractured relationship and very irregular and infrequent time between the children and their father.
Just as those circumstances began to improve, and in April 2010,

Ms Meraz moved to Canberra. As I have suggested, that is not a move that has made things easier for these children maintaining a relationship with either of their parents, although the children’s expressions to Mr P would suggest that it has, to some extent, made it easier for them in total.
The children have expressed, particularly between the initial CDC memo in June 2010 and the family report released shortly before Christmas 2010, that the improvements in their life have included:
a)that their parents are no longer arguing with each other in their presence on a frequent basis;
b)that they are now settled in schools which they enjoy and consider better than those which they were attending in Sydney and that they are doing reasonably well;
c)that they are fighting less with each other; and
d)that they are feeling better within themselves.
The difficulty for these children has been, however, the estrangement from their father. They live such a distance away from him, having regard to the parties’ financial circumstances and the requirement to travel by train, and they have seen him about once per month for a weekend as well as for brief periods during school holidays, although a far more fulsome period of two weeks in the Christmas school holidays which are shortly to conclude.
The orders that were made by the Court in June provided for time to occur for two weekends out of three. The evidence of both parties would suggest that they were able to speak with each other, although their communication is not and has not always been good, to change those arrangements as, firstly, the children were experiencing some real health problems from travel sickness, and, secondly, no one could afford it.
It was also expressed by the children to Mr P that they had considered that time and the frequency of that time far too disruptive for them, particularly the elder two children at 13 and nearly 10, and their parents, appropriately so, took steps to put the present arrangement in place and, whilst that arrangement is not in accordance with what the Court has ordered, neither parent complaints of it. Neither seeks to be overly critical of the other about it other than as a function of the arrangement being necessitated by the distance created by Ms Meraz’s move, but the parents have put that arrangement into place without the need for the Court’s intervention and with a real focus by both parents on what their children need, both in terms of time and frequency and the sustainability of arrangements so that it is neither too burdensome financially for the parents or too burdensome for the children, and that is very much a matter to the credit of both parents.
The balance of the parties’ evidence would suggest that they are settled in their present arrangements and neither proposes to move, meaning Mr Trejo intends to remain in Sydney and is not prepared to consider relocating to Canberra, (as the obiter comments of Kirby J in AMS & AIF raised as a possibility in relocation cases), and, similarly, Ms Meraz has made clear that she does not intend to return to Sydney.
The other remainder of the parties’ evidence would, as I have indicated, in a more mainstream case create some concerns about both parents, however, a number of the issues have either transpired to not be particularly relevant to the decision I am called upon to make, or, when viewed in the context of these parties’ cultural background, in fact, do not cause me concern at all.
There was in Mr Trejo’s evidence what could be described in many other cases as an expression of a sense of entitlement. Mr Trejo has made clear that he feels that these children, as his blood, should live in his care, and that they were kidnapped by their mother and her sister improperly and, at one point referred to as, illegally, and removed from him. Mr Trejo indicated in his evidence that the Sudanese culture and the Sudanese legal system is very different to our system, that, indeed, if the same events had occurred in Sedan as occurred shortly after these parties’ separation by the children’s removal by their mother, that members of his family would have searched out Ms Meraz and the children, would have physically disciplined or beaten Ms Meraz, removed the children from her and brought them back to him.
To his great credit, Mr Trejo was very clear that he had told his family that that was not to occur, and it hasn’t occurred. On that basis one might be critical of Mr Trejo for not taking some action, that the action that may have followed would have given rise to far more dire consequences for all concerned, particularly these children, and

Mr Trejo’s actions in recognising the differences in those systems and recognising that it would be unhelpful to his children for that to occur is of some real credit to him. With respect to the sense of entitlement to which I have referred, again, a majority white Anglo-Saxon litigant would be harshly criticised for, but within the cultural context that I have described above I am satisfied that Mr Trejo is not, indeed, seeking to assert some form of entitlement, but simply, consistent with his belief system, and acted on appropriately within the context of this separation and these parties and this case, he is indeed expressing nothing more than that which he believes, and I accept that that is not something I should criticise him for.
Similarly, Ms Meraz might, in many other circumstances, be criticised for having unilaterally removed the children to Canberra. I accept

Ms Meraz’s evidence that she had given some notice to Mr Trejo of her intention to do so, but it was fairly brief, and the reasons that she has given for the move are credible and certainly give some explanation to that move, which, again, having regard to the dynamic between these parents and the cultural issues that pertain to each of them, I cannot, again, find it a criticism of her.
One interesting aspect of the case, although it has not been put in submissions as a strong prong for either parent, is the issue of care arrangements for these children. These children, or at least the two elder, have had a much disrupted childhood in their early infancy, as have their parents.

These parents, as a consequence of civil upheaval in Sudan, left that country, were in transit, and, as I have indicated, ultimately, with the assistance of the United Nations Commission for Refugees, were relocated to Australia. This resulted in periods of substantial displacement which, in light of the children indicating their satisfaction with now feeling settled in the arrangements that they are in, again, give some far greater credence to that issue than might otherwise be the case in any other given circumstance.
The care of the children during their lives and in a culturally appropriate fashion, I accept, on the evidence of both parties, had largely devolved to Ms Meraz. That is not to suggest for one moment that care arrangements and who performed what jobs for the children in the past determine the prospective exercise that is this Court’s exercise of jurisdiction. However, one portion of the evidence of Mr Trejo in his affidavit filed with his initiating application also gives some insight into that issue. This deals with the separation of the parents, and reads as follows:
On 10 March 2006 I separated from [Ms Meraz]. After separation I continued to live in the same premises to assist [Ms Meraz] in looking after the children.
I can only interpret that as a concession or an admission against interests that, indeed, at that point in time the arrangements were very much that Ms Meraz was primarily responsible for day-to-day parenting. Again, that is not a criticism whatsoever of Mr Trejo, nor to accept or suggest that he cannot do the job either now or in the future, (although there are some criticisms raised by Ms Meraz regarding feeding and the like by Mr Trejo when the children have been in his care).
I do not accept, however, that either of these parents is incapable of looking after these children physically or emotionally. They may well do it differently, as is the wont for any parent combination, and, indeed, when these parents were together, whether as a matter of general sociology or in a culturally appropriate fashion, these children had the great benefit of having the strengths of both of their parents augmented by the other.
The other disputed facts in the case do not largely impact upon any decision I am called upon to make, other than issues raised by each parent regarding allegations of violence by each against the other. I accept, and I am entitled to accept, as Ms Meraz concedes it, that on one occasion, she struck Mr Trejo to his head with a glass bottle and this caused bleeding. She indicates that this was 14 years ago and in response to Mr Trejo having his hands around her throat.
I accept the frank and candid nature in which Ms Meraz has given not only that evidence, but all of her evidence which I found impressive, and I am satisfied that Ms Meraz has not, other than in that context, occasioned physical violence to Mr Trejo. Similarly, whilst Mr Trejo was not questioned regarding that specific allegation, if I were to accept for one moment that it might be so, as Ms Meraz has painted it as regards Mr Trejo’s actions, I am satisfied that Mr Trejo has similarly not been physically violent.
There are also issues raised, in fact, raised in a notice of abuse filed by Mr Trejo’s then solicitor, suggesting that the children had been abused by their mother through harsh, excessive and inappropriate physical discipline, including being hit with lengths of hosepipe. On the evidence that is available to me, I do not accept that that has occurred. That is not only as there is a dearth of evidence to support the allegation, but I find that the observations that are made by Mr P regarding these children’s interaction with their mother, in observation sessions reported in paragraphs 46 and 47 of his report, are inconsistent with the behaviours that are reported.
I am also satisfied that as the children have failed – particularly noting the two eldest children are 13 and nearly 10 – to make any such allegation or criticism of their mother, that I would place little, if any, weight upon those issues absent the children’s complaint. Indeed, the only matter of that nature that is raised with Mr P is by the youngest of these children, [Z], who was not quite five at the time of the interviews, who, whilst continuously smiling, had said to Mr P:
“My mummy keeps hitting my brother.”
and:
“My mummy keeps hitting me.”
at paragraphs 41 and 42 respectively of the report.
Again, those comments seem somewhat incongruous, particularly in light of paragraph 43, wherein Mr P asked [Z] how she would feel if arrangements stayed the same, being that she lives with her mother and sees her father about once a month, and her response was:
“Good.”
When asked how she would feel if she went to live with her father, she said:
“Don’t know.”
Similarly, her reaction in observations, as reported by Mr P in paragraphs 46 and 47, are somewhat inconsistent with a child who has been exposed to physical assaults in the nature of abuse as alleged.
The legislative framework, as set out in Full Court authorities such as Goode & Goode (2006) FLC 93-286 and Marvel [2010] FamCAFC 101, but perhaps most succinctly set out by Murphy J in Pitkin & Hendry [2008] FamCA 186, requires that I commence by considering the objects and principles of legislation in s.60B being:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA requires that I consider the children’s best interests as the paramount consideration at all times. I am then required, in that context, to turn to s.61DA and to determine whether the presumption of equal, shared parental responsibility should apply or whether it is rebutted. If it does apply, then I am mandated to consider, pursuant to s.65DAA, equal and substantial and significant time before considering any other arrangement. If it does not apply, I am still entitled to consider those arrangements, should I consider it appropriate.
However, any consideration as to any parenting order, including the time that these children spend with each parent, is judged by the dual test of what is reasonable practical as discussed by the High Court in MRR & GR [2010] HCA 4 and as is set out in subs.5 of s.65DAA; and what is in the children’s best interests, having regard to the factors set out in s.60CC which provide an extensive list of considerations, although not an exhaustive list, the Court being entitled to consider any other matter considered appropriate or relevant.
a)
I am urged by both the independent children’s lawyer and

Ms Meraz to make an order for sole parental responsibility in

Ms Meraz’s favour. Mr Trejo seeks an order for equal shared parental responsibility in accordance with the presumption. Section 61DA provides that:
When making a parenting order, the Court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal and shared parental responsibility, unless the presumption is rebutted.
Subsections (2) to (4) set out the circumstances in which the presumption can be rebutted, or in interim proceedings, which these proceedings are not, not applied.
The presumption can be rebutted broadly in three circumstances: Firstly, where I am satisfied that there has been abuse of the child or a member of the household; secondly, where I am satisfied there has been family violence; or thirdly, where I am satisfied that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for parents to have equal, shared parental responsibility. The bases upon which it is suggested equal, shared parental responsibility would not apply largely relate to:
a)Past difficulties in communication between the parties.
b)Suggestions that when the parties do communicate, it tends to be unproductive and argumentative.
c)And thirdly, a portion of the father’s evidence wherein he indicated two circumstances in which he would or may return to Sudan:
The first of these was a suggestion that once his eldest son, now 13, turned 21, that he would return to Sudan and that this was “God’s will”. That evidence, of itself, is in no way a criticism of Mr Trejo. Sudan is his cultural home. It is the home of his ancestors and the home of many members of his extended family. The criticism that is raised is twofold: firstly, that it would obviate a genuine exercise of equal, shared parental responsibility, although present technology would allow substantial communication, and goodness only knows what communication it will allow in another eight years, and secondly, that this suggested a lack of commitment to the children. I am not satisfied that it does represent the latter. I am also not satisfied that it would create insurmountable burdens for these parties to cooperate.
The other matter that is referred to, however, is that these parties have not really consulted each other in any meaningful way since separation regarding any decisions, including Ms Meraz’s unilateral move to Canberra. However, what the parties have done in the past need not bind my prospective determination of how things will be in the future. It is also submitted that these parties, as regards to the interim orders made in June 2010, have disregarded those orders and entered into their own arrangements, which make specific orders somewhat unnecessary and pointless. That is relied upon not only with respect to parental responsibility, but also as to whether I should make specific time orders, or simply an order the time will occur as arranged and agreed between these parents. I am satisfied, to ensure that the children’s relationship with both parents is maintained and is supported, that specific orders should be made.
The second portion of Mr Trejo’s evidence regarding a potential return to Sudan was raised during cross‑examination. At that time, Mr Trejo indicated words to the effect that if the children were not returned to Sydney into his care, that he would have nothing to remain for and would return to Sudan. I don’t know whether that is, in fact, what

Mr Trejo would do or intends to do, but for his children’s sake, I would hope not. That is not, again, to be critical, but these children need his parenting input. He is, based on his evidence and his submissions to me today, I am satisfied, a dignified, respectful, law‑abiding, proud man. And these children would benefit enormously from his input into their lives, whether that is every day, every month, or at any other time.
They will certainly have, I am satisfied, his input. He is not a father who has in any way impressed me as a person who would abandon his children or his responsibilities to them. He could communicate with them by phone and letter, but that is no substitute for the enormous positive benefit and role model that he could provide for his children in face to face activities with them. Those activities may be different and may be performed differently in his household than Ms Meraz’s but that is fine.
These children love him, he loves them, and he has a great deal to offer them, particularly, his greater commitment to, and greater embrace and acceptance of the importance these children’s cultural background, than perhaps, Ms Meraz. Not for reasons that are critical of Ms Meraz. Indeed, part of Ms Meraz’s movement away from a larger Sudanese community is again explicably put on the basis that she had concerns as to the children “falling in with a bad crowd,” as it were, amongst young teenage Sudanese boys. Whether that is so or not I don’t know. It has not been explored further in evidence but Mr Trejo has clearly demonstrated an enormously strong connection to the centuries-old culture that both of these parents and these children have come from and they need his ongoing input.
In relation to the presumption, whilst there is certainly a concession by Ms Meraz as referred to above of one incident of her having struck

Mr Trejo, I am not satisfied that that is sufficient to rebut the presumption. Some authorities suggest, including authorities of Rose J, that the moment any finding is made of family violence that that must, of necessity, rebut the presumption. I don’t, for one moment, seek to cavil with his Honour’s logic or reasoning – he has a far greater mind than mine, I’m sure – but I am not satisfied in this case that I should rebut the presumption. In any event, lest I am wrong in that regard, if I were to rebut the presumption that does not preclude me from then making an order for equal shared parental responsibility and I’m satisfied that I should do so. As was remarked by Murphy J in Pitkin & Hendry and in a subsequent decision of Lansa & Clovelly [2010] FamCA 80.
The rebuttal of the presumption of equal shared parental responsibility must be done having regard to section 60CA in the children’s best interest and is, indeed, perhaps the most extreme course that the Court can adopt –
his Honour stated in each of those authorities.
The abrogation or curtailment of parental responsibility with respect to long-term issues involves a serious interference with fundamental rights and that is a factor which ought often be taken into account in assessing whether the best interests require the rebuttal of the presumption. Obviously, that right must give way where the best interests of the child require it. Equally, the Court may need to craft orders for parental responsibility where the children’s best interests require it.
In my mind I am not satisfied that these children’s best interests require the rebuttal and, indeed, particularly within the cultural context and the role of Mr Trejo as these children’s father within their cultural context I think it would be disingenuous and disadvantageous to these children, their perception of their father and their father’s perception of his role and importance in being their father, to take that step.
Having made that determination I am mandated to consider, under s.65DAA, equal or substantial and significant time before making orders for other time arrangements. It’s submitted to me by the independent children’s lawyer that indeed neither of those time arrangements could be considered as they are not reasonably practical as defined in subs.(5).
As the High Court made clear in MRR & GR those determinations, particularly of reasonable practicality, are prospective. They have not been practical to date and in light of the intransigence of both parties regarding a change of their place of residence I am satisfied that it cannot be practical in the future.
The Full Court has been clear for many years that I have no jurisdiction to make an order compelling a parent to change their residence or directing them as to where they will live. This Court has powers to make orders regarding children and their best interests and one can, as a consequence of those orders, envisage circumstances in which a parent may have conditions imposed upon their care including where they live but this is not one of those cases.
As regards reasonable practicality I am satisfied that the parties live a sufficient distance apart, particular having regard to their financial circumstances and their reliance on public transport, to make equal or substantial and significant time not even remotely beneficial for these children. The parents’ current or future capacity to implement the arrangement on a practical level is impossible. The current and future capacity to communicate with each other and resolve difficulties has been problematic but would appear adequate when it is called for, such as the change to time arrangements to meet the children’s needs and resolve difficulties. The impact of an equal or substantial significant time arrangement whilst these parents are travelling four and a half hours each way by train between Sydney and Canberra would be enormous and entirely detrimental.
In turning then to what time arrangements should be ordered it must also be judged by the same two tests. It must be sustainable or reasonably practical. It must be affordable for the parties. It must be something that more likely than not will be able to occur. Clearly, the orders that were made for two weekends out of three were not so. I can be satisfied as to that by the actions taken by each parent, a short space after the order was made, to change it. It also must be judged having regard to s.60CC.
The two primary considerations are:
a)The benefit of a child having a meaningful relationship with both parents; and,
b)The need to protect the child from physical or psychological harm.
I am satisfied in this case, having regard to the findings I have made above, that there is no issue regarding protection from psychological or physical harm. Accordingly, that leaves the primary consideration of these children having a meaningful relationship with both parents.
Brown J in Mazorski & Albright [2007] FamCA 520 discussed at length the nature of a meaningful relationship, the adjective giving some real importance to that phrase. A meaningful relationship is a relationship of some importance both to a parent and to the child. A meaningful relationship, particularly with adolescent children such as these two boys, is not, as submitted, a quantitative exercise but qualitative.
The two are connected. It is difficult to maintain a relationship of any meaning when there is no time or precious little but by the same token the relationship, already established between these two boys and their father, is such that I am satisfied that the gaps in time that have occurred since April (when time has been occurring one weekend about once a month) has been sufficient to enable these children’s connection with and meaningful relationship with their father to continue. It is, perhaps, a little more problematic when one turns to [Z] who is much younger but reasonable practicality dictates, as Carmody J had often remarked particularly in Dylan & Dylan [2007] FamCA 842, that optimal outcomes are rarely available to the Court but one is left to do the best one can to best promote a child’s best interest and best promote a meaningful relationship.
The additional considerations both inform the primary consideration and stand alone. In dealing with each of those:
a)Views: The two eldest children, [X] and [Y], have clearly expressed to Mr P not a preference as to which parent they wish to live with but a preference that arrangements stay as they are. What one might read into that as to a parental preference need not concern me. They feel content, settled and stable where they are. They feel that things have improved a lot for them in the six months since Mr P first saw them and that most of the aspects of their life, particularly those I’ve referred to above, are improving. I am satisfied, having regard to their ages and particularly having regard to their representing part of the diaspora that arrived on the shores of this country, and appropriately so, seeking refuge, that stability has some real importance both to them and to the outcome that I should produce.
b)The nature of the children’s relationship with each parent: I am satisfied these children have an equally strong committed loving relationship with both of their parents.
c)The willingness and ability of each parent to facilitate a close and continuing relationship: I am satisfied that both parents can - although perhaps at times in the past have stumbled in their implementation of it – a perfectly good willingness and ability to facilitate the children’s relationship. I was struck by the evidence of both of these parents when discussing the other parent and the other parent’s role in the children’s lives. Whilst Mr Trejo’s position may be seen as more stern or founded in self-entitlement, for the reason I’ve described above I don’t accept that is the case. I simply accept that these parents hold strong and particular views as to how children should be parented and that actions in the last 10 months have perhaps, sometimes, been at odds with one or other of those views.
However, I am satisfied both parents accept and appreciates the importance of the other parent to these children and will do what is within their power to make it happen. Whilst Ms Meraz can be criticised for having created the distance and the difficulties that now exist she must also be commended for having been proactive in taking steps to address difficulties and initiating discussion and in having funded the majority of travel to ensure that it occurs including travelling or having her sister travel with the children to Sydney to make sure that they are delivered to Mr Trejo, generally at his home.
d)Likely effect of change: Mr P has been clear that these children do not want any more change. The two elder children, in particular, have seen enough instability, change and conflict in their lives, and are content with how things are. On that basis, I am satisfied that the effect on these children of changing arrangements at this point in their life would not be beneficial to them, or to the extent that it would be beneficial by increasing their ability to interact and be supported and guided by their father, that it would not be of sufficient benefit to warrant the interference. I am urged to have some caution, in any event, in approaching that proposal in light of Mr Trejo’s evidence that he may relocate to Sudan. I do not substantially factor that into the decision, as, particularly in relation to the comment about a fairly immediate return to Sudan, I don’t accept that Mr Trejo would, in fact, take that step, or take it lightly or without good reason.
e)The practical difficulty and expense I have dealt with above: It would appear clear from the evidence, and from timetables tendered in the matter and otherwise searched from the same website from which those tendered timetables were produced, that a great deal of travel and effort is going to be involved in making arrangements occur. There is an issue as to how many weekends should occur, whether it is one, two, or three per school term, and when the weekend starts and finishes. The children, until the age of 12, can not travel unaccompanied on an XPT without an adult. Accordingly, an adult will need to travel with these children at all times. In my mind, the best way for that to be achieved would be for both parents to contribute to some extent in those arrangements, and ultimately I will make orders that reflect a sharing of cost and/or effort in that regard, and particularly having regard to the meagre circumstances of the parties. I will also be conscious of practical difficulty and expense as regards to frequency of time, as, again, if cost, even if it were only $67 per weekend, were to occur in three school terms, I don’t feel that these parties would be able to sustain that arrangement. I’m satisfied that twice per term could occur.
f)The capacity of each parent to care for the children: I have already made findings in that regard, and I refer to and incorporate those.
g)The maturity, sex, lifestyle, and background of these children, including culture and traditions, this is of some relevance to this case: It is not as relevant as it might be, because both parents are from a relatively homogenous Sudanese culture. That is not for one moment to disrespect Sudanese culture or any culture to suggest that everyone from a particular country shares identical culture.
There are many, many permutations of culture within groups which, from the outside, appear homogenous. Even within, for instance, white Anglo-Saxon culture within the United Kingdom, the differences are marked, distinct, and sometimes tribal. To accuse a Scotsman of being English is a dangerous exercise in some parts of the world, but these children will have the support of two Sudanese parents, albeit within an Australian culture, and they have much to gain from both.
Having said that, I am very conscious of Mr Trejo’s concerns in particular, and indeed those of Ms Meraz, that Australian culture is not all that perhaps 1960s and 1970s immigration material suggested it is. It is not all surfing and mateship. There are many aspects of Australian culture that would not only be foreign to

Ms Meraz and Mr Trejo, but would also represent something that might, in fact, be offensive or threatening to portions of their belief systems. And it is within their power to control that, and to ensure that these children get the best of exposure to Australian culture as well as maintaining the best of their Sudanese culture and their very deep-seated connection with it.
By analogy, s.60CC, subs.(6), also makes clear, specifically by reference to Aboriginal and Torres Strait Islander children, that a child’s culture and their right to enjoy it includes maintaining a connection with that culture and having the support, opportunity, and encouragement necessary to fully explore the culture, to develop a positive appreciation of the culture, and consistent with the International Convention on Indigenous Rights, a right to enjoy that culture with other people of that culture.
That is another very important reason why these children, in a patriarchal society such as the Sudanese culture from which they have come, need their father to have regular, committed involvement in their life, to guide them, and to make particularly the two eldest children, the two boys, the best men they can be, and make both of their parents proud of them.
h)The attitude to the child and responsibilities of parenthood: I am not satisfied either parent can be unduly criticised or other than commended for having done the best they can in the very difficult circumstances, emotionally, culturally, and economically, since coming to this country, and particularly since the separation and the strain that has placed upon not only their finances but their trust of each other, their ability to work with each other, and their faith in their family.
i)Family violence: I have touched on this above and I do not consider is fundamental to the decision I am going to make. That is again not to suggest, for one moment, that issues of family violence are not important. Family violence is fundamental to everything this court does. The existence of family violence weighs against the ability of a child to be safe, as well as their ability to form an appropriate, meaningful relationship with the perpetrating parent. However, that which is described in the evidence would appear to have abated some 14 years ago and prior to the children’s births, would appear to have, and I certainly accept to have, not been directed towards children, and is now managed appropriately. There are no family violence orders in force between these parties.

As to whether it is preferable to make an order that will avoid future proceedings, it is trite to say that these orders are intended to be final and will, of course, subject to issues of compliance or contravention, avoid future proceedings. However, it is not that simplistic. The orders that I make, and the consideration under section (l) of s.60CC, and s.(3), tie back to a consideration of what is reasonably practical. If it is not reasonably practical, it will not be sustainable. If it is not sustainable and the parents can not cooperate and communicate to fix and overcome difficulties, then the matter will return. Accordingly, I am satisfied that if I made orders that were too burdensome, financially, emotionally, or otherwise, that that would not achieve the purpose of avoiding future proceedings.
And accordingly, and by way of example, I am satisfied that there should be two visits per school term rather than three, as I sense the arrangements will otherwise be less than sustainable, or less sustainable than they could be if so ordered.
Having regard to all of the above matters, I am satisfied that these children have a great deal to benefit from the involvement of both of their parents in their lives, but regrettably, as their parents’ relationship has come to an end, whether that has been a mutual or a unilateral decision, they will do so in future through separate interaction with each of their parents. One would hope that as time goes on, as has occurred during the period that these proceedings have been before the court, that these parents’ ability to communicate, cooperate, and to act that out in front of and demonstrate to their children their ability to have a shared common focus will continue.
However, I am satisfied that orders must be made as a matter of practicality that will result in them residing primarily with one parent. The issue is who that parent should be, and in that regard, and for the reasons above, it should be apparent that my preference is to accept the recommendation of Mr P that the more stable and more beneficial arrangement for these children, at the moment, and without suggesting for one moment that there is not great benefit to these children of their father’s involvement in their life, is for them to remain living in Canberra with their mother.
The final issue that is raised in the proceedings is a suggestion that

Ms Meraz attend a Triple P parenting program to address a number of issues that have arisen from the evidence.
That is sought in paragraph 7 of the minute attached to the independent children’s lawyer’s case outline. I am satisfied, however, that

Ms Meraz, on the basis of the findings I have made, does not experience substantial difficulty in disciplining or parenting these children, and whilst no doubt would receive some benefit from the course and has indicated her willingness to do so, that it is not appropriate or more correctly, necessary. In this regard, I note paragraph 52 of Mr P’s report which deals with the suggestion that a course might be undertaken commences with:
If the court holds concerns regarding Ms Meraz’s parenting style, particularly in relation to disciplining the children, it may be helpful.
I am satisfied that Ms Meraz does not have difficulty in parenting or disciplining, and I do not hold any concerns in that regard. Accordingly, and bearing in mind that Ms Meraz has limited part time employment and it may create some substantial difficulty for her logistically to attend a course, I am satisfied the benefit she would undoubtedly obtain is outweighed by those issues.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Harman FM

Date: 3 February 2011