Van Wieren and Van Wieren (No 3)

[2019] FamCA 1032

FAMILY COURT OF AUSTRALIA

VAN WIEREN & VAN WIEREN (NO. 3) [2019] FamCA 1032

FAMILY LAW – CHILDREN – where the Court finds it is the children’s best interests for an increased progression of time with the father and that the children be permitted to travel outside of the Commonwealth of Australia

Family Law Act 1975

Van Wieren & Van Wieren [2019] FamCA 325

APPLICANT: Mr Van Wieren

RESPONDENT: Ms Van Wieren

FILE NUMBER: BRC 1558 of 2017

DATE DELIVERED: 10 December 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 5 & 6 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms K Buckley

SOLICITOR FOR THE APPLICANT: Sheehan & Co

THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms K Carmody

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms T-L Geysen

TLG Law

Orders

1. That the matter be adjourned for Pronouncement of Final Orders at 11.00am on 21 January 2020 in the Family Court of Australia at Brisbane.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Van Wieren & Van Wieren has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1558 of 2017

Mr Van Wieren

Applicant

And

Ms Van Wieren

Respondent

REASONS FOR JUDGMENT

(settled from oral reasons delivered)

Introduction

1. After a trial that concluded in September 2018, for reasons delivered on 22 May 2019, the Court refused the mother’s, Ms Van Wieren, application to relocate permanently to Country B with the two children, X born in 2013 and Y born in 2016 (collectively “the children”). 

2. The father, Mr Van Wieren, had opposed relocation.  I rely upon the earlier findings set out in the earlier reasons (see Van Wieren & Van Wieren [2019] FamCA 325) and the events and evidence which have taken place, essentially since May this year. They show the ultimate final decision about the time the children will spend with their father. I do not repeat the principles that still apply to parenting proceedings set out in my earlier Reasons (at paragraphs 32 to 36).

New evidence and findings of relevance

1. In circumstances where the children were to live and still will live primarily in the mother’s care, these Reasons distil to a consideration of two primary matters in the end, namely:

   a)the pace and length of time the children are to spend with the father;  and

   b)the mother’s planned trip overseas back to Country B in August 2020. 

2. I acknowledge the assistance received from Ms Buckley (Counsel for the father) and Ms Carmody (Counsel for the Independent Children’s Lawyer (“ICL”)) but also the mother.  As previously recorded, the mother is an intelligent and thoughtful parent who represented herself in this part of the proceedings and dealt with the Court and the other parties, in my view, in a pragmatic fashion but with due respect. 

3. On 10 October 2019, after reviewing new Affidavits of both the father and mother then filed, the Court varied, on an interim basis, the Orders made by me in July 2017.  The Orders made effectively provided as follows: 

   a)X would spend time with the father 9.00 am to 4.00 pm each Tuesday; and each Thursday from 9.00 am to 4.00 pm Friday; and

   b)Y, 9.00 am to 4.00 pm each Tuesday, each Thursday for four visits from 9.00 am Thursday to 10.00 am Friday, then, as for X, from 9.00 am Thursday until 4.00 pm Friday. 

   Thus, the Orders provided for the children’s time with the father to be the same eventually and effectively involve three days and one overnight each week, four changeovers a week.

4. As the orders of 10 October 2019 made clear, at the time the mother was still pursuing a relocation from Town D to Brisbane and a resulting concern about schooling for X next year arose.  The mother formed the view that even though an urgent trial to commence on 5 December 2019 had been listed by me, “objectively” a move to Brisbane was not possible.  As a result of informing the father of her decision, the parents (to their credit) discussed and reached an agreement about the child X starting school at U School in 2020. X also seems to be happy with that decision of his parents.

5. In preparation for the hearing on 5 and 6 December 2019, the ICL arranged for Ms H to update her earlier family report.  I was required to make some Orders to facilitate the children’s attendance and return to Town D.  It seems that interviews did take place on 14 October 2019 but subsequently the report (which is not in evidence before me) could not be relied upon and this required the ICL to urgently retain a new report writer.  To the credit of the ICL (and Legal Aid Queensland) Ms W was retained and she saw the family on 21 November 2019.

6. Ms W produced a report dated 26 November 2019 that was filed under her Affidavit on 28 November 2019.  Ms W was cross-examined by telephone by both the father’s Counsel, Ms Buckley, and the mother and certain options were also explored by the ICL’s Counsel.  During the course of that cross-examination and discussion it became apparent that some material attached to the mother’s Affidavit filed 23 August 2019 had not been considered by Ms W.  No criticism of either the ICL or Ms W could reasonably be levelled because of the shortness of time available to procure an updated report.

7. In particular, apart from the mother’s continued concerns about the children’s time with the father progressing too quickly, the mother relied upon the following “annexures” to her earlier Affidavit, being:

   c)the comments of Ms Z (early years officer) from the AA centre in a letter of support for the mother dated 15 August 2019.  It is unknown to the Court what qualifications Ms Z has for forming the opinion she expresses, nor was she available for cross-examination.  The report is clearly founded on her acceptance that the Court was not “seriously” considering X’s welfare – a claim I reject.  Unfortunately it seems Ms Z, in making her comments, had no access to the significant material tendered to the Court or had any discussions with the father.  In short, the comments of Ms Z appear to be nothing more than a recitation of the mother’s concerns set out in her earlier Affidavits.  I am not able to give Ms Z comments, for these reasons, any significant weight at all.

   d)A report by Dr BB, the child’s general medical practitioner, dated 28 May 2019, was also relied upon.  He also was not available for cross-examination but in any event his report (the source of information of which is unknown and not revealed in his report) that X, for example: 

   “…does not want to go to his father’s house … has been pressured to sleep at his father’s house … has anxiety … is scared about going to his father’s house.” 

   Even if true at the time, which is not accepted by the father or the Court, it is now not consistent with the evidence of the parents and the opinions of Ms W.  I can, therefore, apply little weight to the report, save that I do accept the opinion generally that the boy has been mentally affected by the dispute.

   e)A report by a counsellor, Mr CC, dated 12 August 2019, who had been providing counselling for X since February 2019, was also before the Court.  It seems that Mr CC was aware of two mental health plans prescribed by the child’s doctor and the fact that the child is now covered by some form of approval from National Disability Insurance Scheme.  Mr CC was not available for cross-examination and did not appear to have read any earlier reports.  In these circumstances he was (considering the age of the child) largely reliant upon the reports by the mother.  He had no background as to how X was coping in the father’s home (from the father) before he gave his report.  He, of course, had not had access to the recent Affidavits or the report of Ms W.  In the circumstances, his ultimate conclusion that time return to “day visits” cannot be accepted and, in any event, is not even now accepted by the mother.

8. The discussion of the issues raised in these reports with Ms W did, however, cause her to refine her final conclusion at paragraph 97.2 (four nights a fortnight with the father for both children from start of the 2020 school year) and at paragraph 97.3 (that the children spend five nights holiday time for the end of term one and term two school holidays and thereafter for half of the school holidays).  Ms W said the progression of these levels of care with the father should occur more slowly, taking into account what she was prepared to accept, maybe some issues associated with X’s progression and coping with it.

9. In the final analysis set out soon, this Court, to a large degree, adopts the position of the ICL.  The refinement of the ICL’s position by final submissions, as well as those by the father and to a degree the mother were, in my view, appropriate and the differences were quite narrow in the end analysis but important to both parties.  In my analysis below, I set out why the progression I have ordered I find is in the best interests of both of these children.

10. The other major issue became the mother’s hope to take the children to her homeland, Country B, in August/September 2020 so that she and the children could enjoy a family celebration for the maternal grandmother’s 80^th birthday party.  No date has been set for the party.  However, bearing in mind the Queensland gazetted school holidays, time in Country B before the holidays will allow a celebration to take place it seems.  Although the mother indicated her preference was to spend up to six weeks away from Australia (four weeks of school time and two weeks for the September school holidays), by final submission she agreed to reduce the trip next year to four weeks, with three weeks being in school time and the first week of the September 2020 school holidays.

11. The gazetted school holidays begin on Saturday, 19 September 2020 and conclude on Monday, 5 October 2020 (which happens to be a public holiday).  In final submissions, the father no longer opposed a trip taking place conditional upon:

    a)the parties entering into mirror orders in Country B at the mother’s cost;  and

    b)the children spending five nights with him during the second half of the school holidays (and some time before the trip) and some form of “make-up” time.

12. I deal with the issues around this overseas trip as well shortly.

Progression of time

1. The Court acknowledges that one of the ongoing challenges in this parental dynamic is the past poor communication and the lack of trust between the parents.  I also did not ignore that the father’s violent outburst in December 2016 referred to in my earlier Reasons and the, at times, admitted prior excessive use of alcohol by the father have created some understandable concerns in the mother.  The mother still remains somewhat isolated in rural Town D from her family and culture, although the maternal grandmother has visited regularly for three month visits over the last 12 months. 

2. The mother says, and I accept, that visits of this regularity may not be able to be maintained in the future.  However, I infer that her mother attending so often in recent times has been a comfort to the mother in this case.  The mother has also had to digest and adjust to the decision of the Court refusing her permission to relocate permanently to Country B. 

3. Although Ms Buckley contended that the mother’s Affidavit filed 23 August 2019 reveals a lack of acceptance by the mother of the Court’s decision on relocation, having viewed the events since then, coupled with the mother’s evidence recently and her demeanour generally, I do not accept the mother has effectively portrayed a false position in the hope that in August 2020 she would not return to Australia with the children if allowed to depart with them.

4. This mother, described accurately by Ms W in my view, not as hyper-vigilant but more as a “helicopter parent”, is nothing, if not pragmatic.  She intends to make the best of her situation and her acceptance of some degree of increase in time in the future, generally along the pathway illuminated by the proposed orders of the ICL, I assess, was a genuine reflection by her of what are arrangements in the children’s best interests for the future.  In that regard, it is my hope of course that over the period of years of these children’s infancy in the future, the parent’s communication will reach a level where they will develop some flexibility and not be bound totally by the Orders I make, although, in the absence of agreements to vary from time to time, they will be required to comply with these Orders until the children are 18 or unless these Orders are otherwise varied.

5. The father has been patient and the delays in progressing time from the interim Orders made in July 2018 often was as a result of the father wishing Y was more comfortable.  His relationship with Y at the time of separation had, of course, not even developed because Y had not been born.  That was a difficulty that required some time to adjust to, especially in the climate of the relocation application and the poor communication.  I am satisfied, however, that the father’s patience has been rewarded by both X and Y feeling bonded with him now and comfortable in his care, as was observed by Ms W, as the father asserts and as I accept to be accurate.  The father had no real parenting experience before these children were born and in difficult circumstances has been prepared to adjust his behaviour and learn from experience.  I give him credit for that.

6. The mother has really had little opportunity to observe the father’s parenting of the boys and still maintains some concerns arising from the role she believes X plays in supervising Y.  She cross-examined Ms W about whether remarks said to be made by X to the mother (about going near a dam and protecting Y and waking up at night and attending to Y) suggests a parentification.

7. If that was the case, it should be an extremely heavy burden for a child of X’s age to shoulder.  I, however, agree with Ms W that there is no reliable data that the father is not properly supervising the children or that he in any way abdicates his parenting role to X.  In my view, the comments made by X probably suggest the closeness of his relationship with his little brother, to whom he is devoted. 

8. Within the confines of a dispute between two capable and mature aged parents who have much to offer these children from their different cultural background and life experiences comes a necessary acceptance that these two parents are very different and, therefore, parent differently.  I am not sure that both parents have actually made that adjustment yet. 

9. I now deal with the issues requiring resolution and determination.  Firstly, dealing with the progression of time with the father.  The ICL proposes that for the period from the start of 2020 to the end of term one 2020 (approximately Friday 3 April 2020), that is, after a 10 week term, that:

   a)X spend overnight Wednesday each alternate week (in holidays including Wednesday and Thursday) and each alternate weekend from after school Friday to 4.00 pm Sunday;

   b)Y spend overnight alternate Wednesday with him, being with the father from 10.00 am Wednesday to 4.00 pm Thursday, much of which time is school time where X will be at school, together with alternate weekends with X; and

   c)From the commencement of term two 2020 (approximately 20 April 2020) both boys maintain the regime but with the alternate weekend extending to before school Monday.

10. Leaving aside holiday periods, this amount is mathematically equivalent to four nights a fortnight during school terms.  The ICL does not contend for an increase into the future to five nights a fortnight other than during school holiday periods.  In respect of school holiday periods (noting of course that Y will not attend school at least until 2022 or maybe even 2023 – such an issue as to when he attends school being a matter for further discussion by these parents who will have equal shared parental responsibility by agreement) the ICL contends for:

    a)periods of five days (four nights) in 2020; and

    b)in the end of term one and two holidays be one week blocks for the end of term four, for 2021.

11. The proposed order tendered by the ICL did not include, it seemed to me, or decide on the time that the children would spend for the end of 2020 term four holidays.  However, I will make orders in respect of that period. 

12. The father’s proposal suggests progression as follows, for both children:

    a)Until the start of the school year, each Tuesday and each Thursday overnight in week one.  The times being set out in his order; and

    b)For the first term of 2020, each Tuesday and each Thursday overnight in week one and, from after school Thursday to 4.00 pm Saturday in the alternate week.

13. This amounts to five days and three nights a fortnight, six changeovers a fortnight.  I express some concerns about the number of changeovers the children, particularly Y, would be required to undertake. 

14. For the start of term two to the end of the school year in 2020, the regime proposed by the father increases for the alternate weekend to after school Thursday to 4.00 pm Sunday.  No proposal for the school year 2020 is made, but from the commencement of term one 2022, the father seeks, essentially, it would be four nights a fortnight, and four changeovers.  I assume because the father anticipates Y will be at school and not available for the alternate Tuesday.  That is a feature of the regime until that time. 

15. I understand and accept that both the parties and the ICL did their very best to shape orders overnight on Thursday 5 December, bearing in mind we finished the evidence late, and we took submissions the following day.  The summaries are doing the best I can on the final submissions put in by the parties for my consideration.  In relation to the holidays, the father proposes essentially five nights (Monday to Saturday), in the Easter 2020 holidays to become five nights (Saturday to Thursday) in the June 2020 school holidays, and week about for the Christmas 2020 school holidays, continuing through to 2021 Christmas school holidays, before commencing equal time blocks from, and including, the 2022 school holidays.

16. The mother, in respect of the progression of time, essentially adopted the progression contended for by the ICL, although she expressed concerns and:

    a)did not support Y spending time with the father without X being present;

    b)raised some concerns about whether, in fact, the father is having, in effect, seven nights a fortnight;

    c)was concerned about not commencing alternate weekends from Friday to Monday, until the start of term 4 2020; and

    d)adopted the progression of the ICL, essentially, for school holidays. 

Discussion and progression

1. Of course, any orders for progression involve an element of prediction and speculation, including:

   a)how X copes with going to school five days a week;

   b)how Y copes with his brother not being home during the day as much as he has been used to;

   c)whether the father having some one-on-one “face” time with Y (whilst X is at school) meets the best interests of Y; and

   d)how holidays are best progressed.

   I find Y is more emotionally robust than X.  I find he will cope with “one on one” time with his father, and that will be an important opportunity for him. 

1. That that occurs in the absence of X is not a concern to Ms W, nor to the Court.  It is, of course, a matter of history that X was, at times, having one-on-one time with his father when Y was a little baby.  Whether or not Y’s robustness is a feature of his personality or his less exposure to parental conflict (especially the event before his birth in 2016) is not clear.  It is also a feature of the boys’ upbringing to date that the mother has been, and will continue to be, their primary carer.  She has been under great pressure and stress whilst this litigation has been ongoing, and in more recent times, where she did not have the benefit of legal representation. 

2. Looking ahead, I am attracted to the ICL’s proposals, as set out as:

   a)if I ask X to adjust and plateau into new arrangements during term one of 2020 this gives Y some one-on-one time with the father, which I think would be in his best interests; and

   b)it allows the father to be more involved with X’s schooling, with collections and drop-offs at his school, from the beginning of term two in 2020.  I regard this as appropriate and see no basis to delay that extension to before school Monday that the mother proposes until term four 2020; and

   c)less changeovers are set out in the proposal as contended for by the ICL.  As quickly as that can be achieved as possible is appropriate, which is, again, a difference between the father’s proposals and the ICL’s proposals.

3. In relation of holiday periods, the father proposes specific periods for the Easter 2020 and June 2020 holidays, for a period in total of five nights (six days) each period.  I prefer for the first holiday periods, the clarity of the father’s proposal to 24(a) should be incorporated, save it should be slightly reduced as follows:

   a)for the Easter school holidays, 9.00 am Monday 13 April 2020 to 9.00 am Saturday 18 April 2020;

   b)for the June school holidays, 9.00 am Saturday 4 July 2020, until 9.00 am Thursday 9 July 2020. 

   Both arrangements allow for the mother to have the weekend before school begins for the next term, to prepare X for the next term which they regard is appropriate.

4. For the end of 2020 school holidays, the mother proposes a regime of blocks of 10.00 am Saturday to 10.00 am Wednesday (four nights).  In the other weeks it seems, if I read her proposal correctly, 10.00 am Wednesday to 10.00 am Saturday (three nights).  It appears the mother is proposing that school holidays 2020 be shared equally, but not in the blocks of seven nights, but blocks of four and three nights.  I agree that the Christmas school holiday 2020 be shared equitably between the parents, but whether that can be achieved equally, I am not satisfied.  I think the better proposal, considering the progression of the other time during school holidays, and the age of the children, for the end of the school year 2020 holidays should be in respect of three separate blocks of holidays (not taking into account the Christmas period, which has been agreed between the parties), and that essentially, during the end of term four Christmas school holiday 2020, the first block being week one, for a block of five nights with the father.  The second block being week three, for a block of six nights with the father, and the third night being week five, for a block of seven nights with the father, with the children returning to the mother for the last part of the 2020/2021 Christmas school holidays, to allow X to be prepared for school.  With these variations, I otherwise adopt the proposal of the ICL. 

Overseas travel

1. I understand that the father holds a fear that if X and Y are permitted to leave the Commonwealth of Australia, the mother will retain them overseas.  The mother’s desire to relocate, and her self-prepared Affidavit after the Court’s decision to restrict and prevent relocation permanently has, it seems to me, fuelled his fear.  Of course, once a child leaves the Australian shores, there is always a risk they will not be returned, but that is not a basis for restricting the legitimate rights of Australian citizens (in this case, X and Y) for leaving the island we know as Australia.  Whereas here, both parents were born overseas and chose to live in Australia, neither should be surprised that there is an interest and desire to expose the children to the cultural traditions of the place of their birth.

2. Furthermore, in this case, the extended families of both the father (in Country A) and the mother (in Country B) remain living in Europe.  These issues are matters the Court is required to take into account in what is in the child’s best interests.  It seems to me, therefore, that holidays in Europe, including in time with the father, are in these children’s best interests and will, as the children get older, need to be managed around their school commitments, which become increasingly important.  In respect of the visit, however, in August/September 2020, the father seeks to make the mother’s right to remove the children from Australia conditional upon the creation of mirror orders in Country B.

3. Through reliance upon the evidence of a foreign Lawyer, Ms DD (see Affidavit filed 25 July 2018) and a more recent email (Exhibit 3) dated 15 November 2019, I am satisfied that:

   a)Country B is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), and there is a high probability, with the Australian Judgment already delivered, and where there is a mutual parenting agreement according to the Country B law, which I refer to shortly, that the Country B Court would order the mother to return the children to Australia, where they have been habitually resident.  In my view, some agreement under Country B law would not necessarily improve the probability of an order by the Country B Court that the mother return the children to Australia.  But that seems to be, at least at first flush, the view taken by the foreign lawyer; and

   b)the parents could sign a written agreement according to Country B law, but it is not likely an agreement could be registered in Country B.  As I interpret the legal opinion of the foreign lawyer, Ms DD, as the children would be regarded as having habitual residence in Australia (which is entirely correct), the Country B Court would have no territorial jurisdiction or competency to make any parenting orders the father seeks, as a protection.

4. In the circumstances of this case, I find that:

   a)although it is not possible to guarantee the mother’s return, I assess the likelihood of the mother not returning with the children as minimal.  This seems to be the position adopted also by the ICL;

   b)if the mother remained in Country B in the face of the Judgment and Orders of this Court, it is almost inevitable (on the current evidence) that an application under the Hague Convention in Country B would be successful, and the children would be returned to Australia;

   c)the mother is well aware, as I put it to her in cross-examination myself, that if it were required because of the mother’s actions, that a Hague Convention application be brought, the Australian Court would assess those actions of the mother in a very concerning way, and could well lead to a change of residence of the children to the father, but at least a restriction on the children leaving the country again in the future; and

   d)the mother is not in a financial position to offer any real, meaningful security by way of sum of money.  Although she, in her material, had suggested an amount of $2,500, such amount would almost be insufficient to cover the airfare of the father to go to Country B from Australia.

5. The foreign lawyer talks about the possibility of pledging, or making a pledge over the rural property owned by the mother in Country B.  But it seems to me that achieving such security has many practical difficulties.  Having considered these issues, I agree on balance, therefore, that the proposal for overseas travel by the ICL, as articulated in the order, is appropriate.  I will not order, as the father seeks, “a condition” which must be satisfied before the mother can leave, in the future, including in the August/September period earlier discussed.

6. In preparing these Reasons, I have contemplated and, subject to hearing submissions, would consider however making orders that:

   a)the parents be restrained from applying for any other country passport for the children without the written consent of the other parent.  It is not apparent to me whether these children, although born in Australia, have a right to dual citizenship in either Country A or Country B.  In my view, it would be inappropriate that they exercise that right at this stage, because that gives some rights of residency in an overseas country, which they may not otherwise have, although there is no evidence of this effect, if they maintain merely their Australian passports; and 

   b)if the father, at his cost, arranges for an agreement consistent with Country B law, as referred to by the foreign lawyer in her evidence, and consistent with the orders of this Court to be prepared, it can be produced to the mother for execution within four months from the date of my order.  I would require the mother to be obliged to sign such an agreement, provided she has had a period of not less than one month to obtain her own legal advice about the agreement.  The father might well say, and in the submissions which I will hear in the New Year in respect of this point, if the parties can not otherwise agree on a form of words, that that gives him no protection.

7. However, it is clear from the evidence that very little protection can otherwise be provided by the Country B Court, other than that they are a signatory to the Hague Convention. 

8. One further dispute exists, as to how the children’s time with the father before and after the holiday in Country B should be “made up”.  In my view, the mother should return to Australia on or before Saturday 26 September 2020, allowing for some recovery time (jet lag time recovery).  The children should spend time with the father from 12.00 pm, Monday 28 September 2020, to 12.00 pm Saturday 3 October 2020.  This is a five night period, consistent with the Orders earlier made in respect of time in the Easter and June school holidays.  The period before the children leave is more problematic to define.  It depends how close to Saturday 29 August 2020 (that being four weeks before the required return) the mother is able to arrange an available flight. 

9. Doing the best I can, I would expect the father’s time with the children to be prescribed and should cover (even if it means two weekends in a row with the father) the weekend of 22 and 23 August, probably after school Friday to before school Monday 24 August,  and in addition, Wednesday overnight on 26 August 2020.  I have not considered how that “makeup” additional time fits into the scheme of weekends that occur under the order that I propose to make for school term time, but that is an exercise the parents can turn their mind to over the break, until this matter comes back before the Court.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 10 December 2019.

Associate:

Date:  21 January 2020