VAN WIEREN & VAN WIEREN
[2019] FamCA 325
•22 May 2019
FAMILY COURT OF AUSTRALIA
| VAN WIEREN & VAN WIEREN | [2019] FamCA 325 |
| FAMILY LAW – CHILDREN – International Relocation – where the mother as primary carer seeks to relocate to Country B with the children – where the Court finds it is the best interests of the children to remain living with the mother in Australia – application for international relocation dismissed. |
| Family Law Act 1975 (Cth) ss.60B, 60CC, 61DA, 65DAA |
| Goode & Goode (2006) FLC 93-286 |
| APPLICANT: | Mr Van Wieren |
| RESPONDENT: | Ms Van Wieren |
| FILE NUMBER: | BRC | 1558 | of | 2017 |
| DATE DELIVERED: | 22 May 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | 16 & 17 July and 4 September 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms K Buckley |
| SOLICITOR FOR THE APPLICANT: | Sheehan & Co |
| COUNSEL FOR THE RESPONDENT: | Mr P Smart |
| SOLICITOR FOR THE RESPONDENT: | Jennings & Kneipp |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms A Bertone |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Tracy-Lynne Geysen TLG Law |
Orders
That the mother’s application to relocate overseas with the children, X born … 2013 and Y born … 2016 be dismissed.
That the children live with the mother in Australia.
That the mother and father have equal shared parental responsibility for the major long term issues of the children.
That these proceedings be adjourned to a date to be fixed 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
Introduction
It is often said that relocation cases are some of the most difficult parenting decisions a court is required to make. It involves the tension between parents who have separated wishing to have the right to live and work where they wish and the rights of children to develop and maintain their relationship with both parents where it is in their best interests to do so.
Where the proposed relocation involves an overseas country, as in this case where the mother wishes to relocate with the two children, X and Y now aged five and two years respectively, the difficulties and complexities involved are exacerbated. Although both parents immigrated to Australia and have lived in this country for over 15 years, the breakdown of the marriage in difficult circumstances in December 2016 has understandably caused the mother to seek to return to her native Country B. The father who wishes to remain in Australia managing a family business in a rural Queensland community opposes the mother’s relocation, even when the mother is really the only candidate at this stage for primary care of the children. The reasons which follow seek to explain why the Court has formed a view that it is in the best interests of the children to remain living in Australia with their mother at this time.
Contextual history
Statements of fact that follow in this judgment should be construed as findings of fact.
The Applicant father was born in Country A and is now 47 years of age. The mother was born in Country B and is now 42 years of age. The parents’ relationship was in its early stages when the father immigrated to Australia in 2000.
In 2003, the mother elected to come to Australia on a prospective spouse visa and cohabitation commenced in Town D – a rural community in Queensland. The parties married in Australia in 2004, by which time plans for the father’s sister and brother-in-law to develop a business in Town D had arisen. The plan then, as is still occurring now, was for the father to run the business - with his sister and her husband continuing to live and work in Country A with their three children.
Although construction of the buildings for the business began in mid-2005, that exercise took seven years to finish.
I accept that living in rural Queensland was a significant change for the parents – although probably more for the mother, who was not as involved with the day-to-day development of the business. I accept the mother’s evidence that although she had professional qualifications in Country B, those qualifications were not fully recognised by the relevant registration authority in Queensland, and that she understood further study in Australia would be required to gain registration. I note although English is not the mother’s native language, she speaks excellent English and acknowledges she is also able to read English well. The parties went through a ceremony of marriage in Country B in 2007 and I am satisfied the mother maintained a connection to her homeland through visits to Europe and visits from her mother, firstly in 2011 and thereafter for some weeks around the time of birth of the children.
For reasons which are disputed but as I explore further below, the father’s use of alcohol did increase from around 2011. Arguments between the mother and father increased.
Because of the event of 5 December 2016 was a significant incident (and prompted final separation) it is dealt with discretely below.
In circumstances where the couple had no children; the mother indicated she was growing increasingly unhappy with her relationship and life in Australia, and she clearly had options if she returned to Country B for housing and possible employment, the mother still finds it difficult to explain why she remained in Australia.
However, that was her choice and the situation really became more complicated with the birth of X in 2013 and then Y in 2016 (post final separation).
By early 2017, the mother, I am satisfied, had raised the prospect of relocation back to Country B with the father and although the mother contends the father consented to her relocating with X (then aged about three and a half years) and Y (only a few weeks old), I am not satisfied on all the evidence the father did so. Consistent with the father’s consistent position before the Courts, on 17 February 2017, he filed an Application in the Federal Circuit Court of Australia seeking an urgent Airport Watch List order restraining the mother from removing the children, and parenting orders. As referred to below, one context for discussions as the time was that arising from the father’s conduct on 5 December 2016. He had been charged with some serious criminal offences and he felt that he was at risk of a term of imprisonment. He even mentioned the prospect of travelling to Africa to live.
When, on 12 April 2017, the father, on his guilty plea, was convicted of a number of offences (see Exhibit 6) and sentenced to probation for 18 months as well as being disqualified from driving for six months, it seems thoughts of the father moving anywhere evaporated.
Having earlier made an Airport Watch List order on an ex parte basis, the Federal Circuit Court of Australia on 30 March 2017 made interim orders, by consent, for the children to live with the mother and for the father to spend limited day time on two occasions a week in a public place supervised by the mother. At this time the mother had not filed any material in response, but when she did, and pressed for an international relocation, the proceedings, on 30 May 2017, were transferred to the Family Court of Australia.
The Court noted, in the Order of 30 March 2017, it held concerns about the mother “supervising” the children’s time with the father, and by 29 June 2017, Mr F, family support worker (who had worked in rural Queensland for the Department of Child Safety, Youth and Women), began to supervise time. The father paid for the costs of supervision and Mr F made detailed notes, and was cross examined at the trial. The effect of his evidence was that he observed no concerns about the father; that initially X was anxious to see his mother close but that over time this anxiety reduced; that Y (as a baby only a few months old) had limited physical interaction with the father, who appeared keen not to push the baby too hard to get to know him.
Although Mr F said he spoke more regularly with the father than the mother during the supervised visits – he felt the mother’s behaviour exhibited a genuine interest in facilitating the children’s relationship with the father. I accept Mr F‘s evidence.
Mr F supervised/observed 39 visits between 29 June 2017 and 26 April 2018, when orders made by the Family Court of Australia on 24 April 2018 took effect. The notes reveal a growing demonstrated affectionate relationship between the children and the father. I accept that evidence, and the notes that formed it, as accurate.
With the appointment of an Independent Children’s Lawyer (“ICL”), as is the usual practice in Queensland, an independent expert was retained to prepare a family report. That expert, Psychologist Ms H has prepared two reports, being:
a)Interviews and observations on 15 November 2017, culminating in a report dated 2 January 2018; and
b)Arising from concerns raised by the Court about some deficiencies in the first report, a further report dated 12 March 2018 was produced.
When both reports were available to the Court for a Case Management Hearing on 24 April 2018, the Court expressed concerns that time had not progressed significantly since June 2017. Whilst listing the matter for final hearing commencing 16 July 2018, the Court made more detailed orders for the children’s time with the father, essentially:
a)For X:
i)Four three hour unsupervised visits; then
ii)Four four hour unsupervised visits; then
iii)Continuing to weekly five hour visits.
b)For Y:
i)Four visits of 90 minutes unsupervised; then
ii)For visits for two hours unsupervised; then
iii)Four visits for two and a half hours unsupervised together with additional visits for Y each Thursday.
Unfortunately, the evidence (as was available) was completed on 17 July 2018, however the Court Expert was not available and the hearing was adjourned part-heard to 4 September 2018 to allow the Court Expert to give evidence. As a result of the evidence heard during the first two days of the trial, the Court felt it was in the best interests of the children to further progress their time with the father, and made further interim orders for the children to spend time as follows:
c)For X:
i)from 9.00am to 4.00pm Thursday, 19 July 2018;
ii)Commencing on Tuesday, 24 July 2018, each Tuesday from 9.00am to 4.00pm;
iii)from 9.00am Thursday, 26 July 2018 to 10.00am Friday, 27 July 2018;
iv)Commencing on Thursday, 2 August 2018, each Thursday from 9.00am until 2.00pm Friday; and
v)Commencing on Thursday, 30 August 2018, each Thursday from 9.00am until 4.00pm Friday.
d)For Y:
i)Commencing on Thursday, 19 July 2018 each Thursday from 9.00am to 2.00pm;
ii)Commencing on Tuesday, 24 July 2018 each Tuesday from 9.00am to 2.00pm; and
iii)Commencing on Friday, 3 August 2018, each Friday from 9.00am to 2.00pm.
As is apparent from these orders, the child X was to commence spending time weekly overnight with the father from 26 July 2018.
When the trial resumed on 4 September 2018, the mother successfully made an application to re-open, for the limited purpose of providing further evidence of steps she has taken to further investigate X’s urinary dysfunction (see Exhibit 5). The mother also gave evidence that when overnight time was due to commence (and despite preparing X for the visit), the father elected to return the child saying “he didn’t want to push him”.
The Court expresses its regret to the parties in not providing reasons and a decision in this case earlier. However during the process of the preparation of these Reasons, and for reasons that will become more apparent, it has entertained the Court’s consideration whether further evidence of how, since September 2018, the time with the father and the children has progressed, is necessary. Neither party (nor the ICL) has made an application to re-open to provide the Court further evidence and, in these circumstances, it can be argued that the Court could safely assume things have gone well.
I return to this topic later in these Reasons.
Under the interim orders which are still in effect (unless the parents, as they are entitled to do, have consented to some variations), Y (now aged 29 months) has not spent overnight time with the father and assuming X (soon to turn six years) is spending more time at kindergarten, his overnight time with the father does not involve Y, and at most extends to weekly time between 9 am Thursday to 4 pm Friday.
Competing proposals
As is the usual practice, the ICL was invited to consider whether she had formed a proposal – noting that the ICL‘s case outline filed 13 July 2018 “reserved the right to formulate proposed final orders at the conclusion of the hearing”. I also noted that the Court Expert felt unable to make a recommendation as to the mother’s proposed relocation, preferring to identify (in her second report) the advantages and disadvantages of the relocation being permitted or not.
Experienced Counsel for the ICL, Ms Bertone did make a proposal on the basis that the children remain living with the mother in Australia, and it was tendered as Exhibit 7, and appears as Appendix One to these Reasons. As is apparent, the ICL in final submissions contends it is in the best interests of the children that they live in Australia with the mother and with the children’s time with the father progressing over a period of time such that by December 2019, both boys spend each alternate weekend (Friday to Monday) and each alternate Tuesday overnight with the father. From 2021, after again graduating in steps, school holidays for both children will be shared equally. The ICL proposes equal shared parental responsibility and, in respect of the somewhat controversial right to travel overseas, the ICL (at order 16) proposes that commencing next year (2020), a parent is entitled to travel for up to three weeks to a “Hague convention” country. It is acknowledged that Country B is a signatory to the Hague Convention.
The father, who through his Counsel Ms Buckley, broadly adopted the ICL‘s proposal but did not accept that there were any risks associated with his drinking or past aggressive behaviour. In written submissions filed by the father on 4 September 2018, and it seems without particular reference to the order tendered by the ICL, at paragraphs 15 to 17 it was submitted that:
“15. The Father’s primary proposal is the Children live within a 20km radius of the [Town D] CBD and speak English as their first language. The Father proposes for the parents to have equal shared parental responsibility and it remains his desire to continue to improve communication with the Mother.
16. He seeks to ultimately spend time with the Children from 9.00am Thursday to 5.00pm Sunday each week, and half of all gazetted school holidays. Orders are also sought to share in special occasions, such as Christmas, Mother’s and Father’s Day on an alternating arrangement.
17. Should the Court permit the Mother to relocate with the Children to Country B, the Father’s proposal is to spend time with the Children for the entire Country B school holiday period in either Country B or Australia, and any other occasion when the Father is able to travel to Country B. The Father’s proposal contemplates the Mother paying for the Children’s flights to Australia. He also proposes to communicate with the Children by slype no less than 3 times per week. The Court should require the Mother to registrar the orders in Country B before she is permitted to leave.”
The mother, capably represented by Mr Smart of Counsel, by final submissions, continued to press for the order set out in the case outline filed 10 July 2018. The mother’s primary proposal remained that the children be permitted to reside with her in Country B and to depart as soon as possible. The mother’s detailed proposal is Appendix Two to these Reasons, and provided for arrangements in the event the mother was not permitted to relocate with the children to Country B. At paragraph 13, the mother proposed the father be obliged to undertake Carbohydrate – Deficient Transferrin (CDT) testing before overnight time commenced. No submission was offered to the Court about such testing where, on 17 July 2018, overnight time for X was ordered on an interim basis, and no application to vary that interim order was made when the matter returned to Court on 4 September 2018.
One of the difficulties, if the Court finds it is in the best interests of the children to remain living in Australia, is that the mother’s proposals in her case outline do not take account of the Order made in July 2018.
The mother made it clear, that if the children were not permitted to relocate, then she would remain in Australia as the primary carer. Although the father said, if the mother chose to live in Country B without the children, he would take up the role of primary carer, that alternative does not arise. The mother, of course, seeks the opportunity to travel to Country B with the children if she is not permitted to relocate with them.
Statutory pathway
It has often been said that a “relocation” case is to be treated as a normal contested residence case with one of the proposals being to relocate.
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.
The Court must realistically appraise any application to relocate and the effect, if permitted, it may have on the children and their relationship, not only with the resident parent, but also the parent who does not choose to relocate in a realistic way.
The Applicant mother does not have an obligation or onus to establish any good or compelling reason to seek to relocate – nor for the father not to do so, but this does not mean the reasons are irrelevant. Furthermore, where, as in this case, bearing in mind the age of the children (particularly Y) and the history of care post separation in December 2016, the mother is the only practical primary carer, the Court needs to consider if the relocation is permitted, a regime of time with the father that can be ordered which supports and facilitates the children’s relationship with the father.
The authorities from which these principles have been distilled are set out (at least many of them), in the articulation of the mother’s case law document relied upon by Mr Smart, but not actually referred to by him in his final oral submissions. As the law is quite settled in this regard, no criticism of the mother’s Counsel is raised. For completeness, Ms Buckley for the father, and her written submissions, at paragraphs 39 to 43, relied upon some earlier cases as identified.
Before I make some findings about the competing proposals within the matrix of the relevant primary and additional considerations, I believe it is helpful to deal with some major issues discreetly.
The mother’s desire to relocate
Having already noted that the mother has no onus to demonstrate any compelling reason to seek to relocate, it is plain from the mother’s case that she seeks to do so because:
a)As a Country B native, she desires to return to the country of her birth where she has her 78 year-old mother available to support her as well as extended family. She has the right to occupy (free of rent) a home intended to be inherited by her and the town where the home is (Town J) is very familiar to her. Her mother will remain living in the same home;
b)The mother is confident her qualifications for employment are recognised in Country B – in fact at the time of the hearing, the mother (without corroboration that could be tested), says she had a job offer as a professional. This would allow her some financial independence which she currently does not have;
c)The mother says she feels “imprisoned in Australia and blames the father”. The mother says, and I accept, that she would be a “happier” parent if she were permitted to relocate with the children, and the children would benefit from this;
d)Although the mother says she has discussed strategies with her counsellor Ms N, as to how to cope with being unable to relocate, no details of these strategies were given and no evidence from the mother’s counsellor was available to the Court, capable of being tested;
e)The mother is of the belief that, if the father does not choose to return to Europe after her relocation, then the children’s relationship with the father can be preserved by regular Skype or telephone interaction and by her returning to Australia, with the children for a yearly visit. Because of the likely impact of X’s schooling needs (as well as her availability to take holidays when she secures employment), the mother could not see a holiday in Australia for longer than three weeks would be possible. Even after the Court Expert expressed her concern about the limited opportunity such visits would allow the children to see the father (especially in the first five years of the children’s lives noted to be very important), the mother’s stated proposals for time did not alter. To be fair to the mother, in the circumstances she explained will exist when she returned to Country B, it is hard to really see how much more she could offer. The mother indicated she would be supportive of the children spending time with the father in Europe (if he came over) and this included starting to develop a relationship with the paternal family who mostly reside in Country A.
The father, during the trial, indicated he wishes to remain living in Australia. He has the position of managing his sister’s business at Town D and the sister supports this as it suits her business model – the father, she described as the “face” of the business. I am confident however that if the father decided, so he could see his children more often, to return to Europe, then his family would be able to make a decision about the business to either lease or sell. The father has no legal interest in the business.
The father, who it must be recalled immigrated to Australia in 2000 when aged 29 years, has no desire to live in Country B. He does not speak their native language (although apart from English and Country A language he speaks Country P language), and he has no employment opportunity there. Previously, before coming to Australia, he worked in the printing industry, however there is no evidence that his skills are still honed to the current needs of that industry. He enjoys living in Town D and hopes to remain there.
From both parent’s perspective, their desire to live where they wish is perfectly understandable. I do not find, nor was it even suggested, that the mother’s desire to relocate is shaped by a wish or intention to sever or diminish the father’s relationship with X or Y.
However, on all the evidence, I assess that it is likely to be the result and that is a significant detriment to the children. I return to this issue later in these Reasons.
Risks associated with father’s past behaviour
It was not suggested by the father that the children living with the mother exposes the children to any risks, violence or prospect of neglect. I found the mother an impressive witness who is very child focused, who I find understood the importance to the children of having a relationship with their father although she does not, I believe, fully appreciate the effect on the boys if they do not see him regularly.
Nonetheless, whilst in Australia and at least since April 2018, the mother has demonstrated a desire to expand time between the father and the children. I am not satisfied the reasons for this attitude are wholly directed to trying to create a platform which allows the relocation to be considered – although overnight time is an important feature.
The mother raises some serious concerns about the father’s past behaviour and continues to contend these are still risks of an unacceptable nature to the children – particularly children of tender years with little capacity for self-protection. I deal with the main risk features (other than a general concern he has not had the experience to handle young children) as follows:
A.Alcohol use
a)I am satisfied that from about 2011, the father’s use of alcohol was problematic and excessive. To the extent the father has tried to minimise his history of use of alcohol, his statements were contrary to the evidence of:
(i)Drinking Under the Influence conviction on 6 January 2001;
(ii)Drinking Under the Influence conviction on 4 March 2010;
(iii)Statements recorded (in Exhibit 2) as having been made, I infer by the father, to Dr Q of S Medical Service on 6 May 2016 admitting to drink “two bottles of wine as well as vodka daily”. The mother says the statements were made in her presence as well;
(iv)Some of the events on 5 December 2016 resulting in criminal charges and convictions.
b)By the time of the hearing, the father gave evidence of:
(i)Attending Alcoholics Anonymous meetings on a regular basis since the beginning of 2018;
(ii)Having reduced his alcohol intake to only wine (no vodka) and at a level of around two glasses when he drinks. This level of intake was observed by his sister visiting from Country A; and
(iii)Having undertaken some five to six visits with a psychologist/counsellor to support him and his use of alcohol. Again, the father chose to provide no evidence from his counsellor that could be tested.
The mother is entitled to hold concerns, however, she fairly conceded that she had no evidence and could point to examples of excessive use of alcohol during 2017 and before the hearing 2018. The father had, as a result it seems of his conviction on 12 April 2017 of a range of domestic violence offences, been disqualified from driving for a period of six months. Exhibit 6 reveals that arresting police, when they attended at the home of the parties at 4.30pm and spoke to the father he “appeared intoxicated. His speech was slurred and he was unsteady on his feet”. The father “refused to provide a specimen of breath at the Watch House to ascertain his level of intoxication”.
I regarded it as likely that, as the father says, his use of alcohol has reduced from the excessive levels up to December 2016. There is no evidence the father has, either during the supervised visits, or since unsupervised time commenced (at handovers), being affected by alcohol. There is no evidence of his behaviour since December 2016, in public, being affected by alcohol.
Although the mother still maintains some concerns, I am not satisfied that CDT testing in the final order is appropriate. The father indicated that an “interlock” device that was installed in his car at the direction of the police/court can be maintained as far as he is concerned. I agree with such an order as well as the order proposed by the ICL at order 15, that the father be restrained from consuming alcohol when the children are in his care or within 12 hours prior to coming into his care. I accept that these orders are difficult to enforce – but the father needs to understand, that absent any reasonable explanation from him, any future alcohol fuelled behaviour which comes to the attention of the mother is likely to raise concerns about whether he has in fact taken control of his drinking, as he claims.
B.Aggressive and violent behaviour
a)Although the mother, during the hearing, says she does not now “fear” the father will harm her or the children, the events leading up to the incident on 5 December 2016 and in particular the incident, reveal a serious act of domestic violence as defined by the Act. Of course, the Court may well have been assisted, if the father had called his counsellor as a witness. The father asserts, without any corroboration, that he obtained therapeutic assistance to help him understand why he acted as he did on the 5 December 2016, and to better understand the triggers for such disgraceful and frightening conduct.
b)On the evidence, unlike the past use of alcohol which the father sought at times to minimise, he did not (and frankly could not), explain away his conduct on 5 December 2016. Although I am not satisfied the child X witnessed all the father’s actions, that was more luck than by design – because he was, in an uncontrollable rage. The mother was in the eighth month of her pregnancy with Y. Although there were previous incidents of aggressive language and pushing (including on 20 November 2015 and 25 October 2016), the intensity of the behaviour on 5 December 2016 was out of the range of the father’s usual behaviour.
c)The Police records (Exhibit 6) in my view provide an accurate summary of what occurred when it notes that:
“General report breach DR narrative: The aggrieved in this matter is [Ms Van Wieren]. The respondent/defendant is [Mr Van Wieren]. There is a current domestic violence order in place with the above persons. The order was made in the [Town D] Magistrates Court on the 25th of October 2016 with the mandatory conditions. The defendant was present in court when the order was made. The aggrieved is nine months pregnant with the defendant’s child. The aggrieved and the defendant are owner/operators of [redacted]. When the Domestic Violence order was made the defendant moved out of [the house] into a caravan which is about 100 metres from the house. At around 10.30pm on Monday the 5th of December 2016 Police [Town D] attended at [a location] after a call had been received from the aggrieved. On their arrival the aggrieved was in a distressed state. She stated that the defendant had been drinking and was intoxicated. She stated that earlier that evening she had returned from town in the vehicle that she and the defendant shared which is a [motor vehicle 1]. The defendant had gone to the vehicle and smashed the bonnet area with a wood splitter. He had also got his vehicle a [motor vehicle 2] and driven it into the [motor vehicle 1] from the side causing extensive damage to the vehicle. Police saw extensive damage to the [motor vehicle 1] consistent with the vehicle being struck with an axe or wood splitter. The rear window was smashed and there was extensive damage to the right hand side and damage consistent with axe strikes on the bonnet area of the vehicle. The aggrieved stated that the defendant had become aggressive towards her when he had been drinking and that the deft’s drinking had become more frequent in recent times and his aggression level had increased. Police attended at the caravan where the deft is living. Police spoke to the deft who appeared intoxicated. His speech was slurred and he was unsteady on his feet. The deft was warned and when questioned he stated that he had damaged the vehicle with a wood splitter and he had driven his [motor vehicle 2] into the vehicle damaging it. The deft stated that it was his vehicle and that he could damage it. The deft was asked to accompany Police back to the Station he refused saying that Police would have to arrest him. The deft was arrested and conveyed to the [Town D] Watch House. The deft refused to provide a specimen of breath at the Watch House to ascertain his level of intoxication. The deft continually stated that he had done nothing wrong and kept asking to be taken back to his caravan.”
d)I do not ignore, in assessing whether the father presents as an unacceptable risk of harm to the children, the incident of pushing alleged by the mother in November 2015 (which I accept) or the evidence relied upon by the mother to support the Domestic Violence Order made by the Town D Magistrates Court on 25 October 2016. At paragraphs 51 to 67 of his trial affidavit, the father gives his version of how the argument developed and conceded that he grabbed the mother and that it may have been hard enough to leave a bruise. I accept the mother’s evidence that it did. I regard this incident as an example of the father’s temper and it occurred whilst X was in the room. Even if the mother called the father a “stupid idiot”, which the mother did not admit, such reaction by the father out of frustration was simply unacceptable and disproportionate.
e)The incident on 5 December 2016 was aptly described by the ICL, in submissions, as “appalling”. I do not assess the father as an unacceptable risk of harm because of violent or aggressive behaviour, at the time of the hearing. At least the separation of the parties (albeit whist living initially in different parts of the [property]) and the Court actions prosecuted by Police, appear to have reduced the tensions and the father’s understanding of the effect of his actions. The mother, at least, appears to accept this to some degree as she was not proposing supervised time continue in final submissions.
I do accept that the conduct of the father towards the mother is probably a further factor that has encouraged the mother to seek the comfort of her family; achievable only really by relocation.
The Domestic Violence Order made 25 October 2016 had a currency for two years, but was varied and extended by Town O Magistrates Court on 24 October 2018 and is still in force.
Expert evidence
As the history above details, Psychologist Ms H prepared a family report dated 2 January 2018 and at the time of the observations for the report, the Expert noted X “shares an attachment with the father, engaging well” but that the father was observed “to be hesitant with [Y], and did not want to take him out of his pram”.
At paragraph 7.5 of the report, Ms H opined, and I accept on all the evidence, that:
“…the children’s residency arrangements with their mother is providing for a level of stability across their personal needs, in addition, it does appear that the children’s relationship with their father has been fostered by their mother following separation, where possible.”
The Expert did not feel as she was able to make a recommendation as to whether the children should be permitted to live with their mother in Country B or not. I accept that this case is finally balanced and a report writer, in such circumstances, should not feel pressured to make a decision which ultimately is the task of the Court.
Nonetheless, the Court expressed some concerns during the case management of these proceedings about greater articulation of the benefits and disadvantages of the proposals for relocation being identified. The Court is thankful that with additional funding, the ICL was able to procure a further opinion from Ms H, contained within her report dated 12 March 2018. It was this report that was generally the focus of cross-examination. During that cross-examination Ms H further opined that, inter alia:
a)The ability to communicate is very important in developing a relationship, and if Y’s first language was the Country B language, this would create a communication barrier between the father and, at least Y;
b)When it was put to Ms H that the evidence of the father’s sister is that the mother never facilitated time between X and the paternal family in Europe (which evidence I generally accepted), Ms H acknowledged this might raise some concerns about the mother facilitating and having the capacity to support the children’s relationship with the father, if relocation is permitted;
c)The first five years, which the Expert described as the “Formative Development Stage” is “critical” to a child’s development and less frequent contact can create identity issues and a risk that a child develops a sense of abandonment. For X, because of his stronger relationship with the father than Y has had the opportunity to develop, this risk of feeling abandoned by the father is a real risk at this time;
d)Skype and telephone calls for children of this age are of limited benefit to them;
e)It was difficult for Ms H (who saw Y when he was 12 months old) to estimate when Y could cope with overnight time away from the mother. Frequent contact visits (two to three times a week) would assist in creating a bond and foundation for longer and overnight visits with the father.
Ms H set out and identified what were the positive and negative aspects of:
a)The mother’s proposal to relocate the children to Country B, on a permanent basis (paragraphs 2.1 to 2.1.10); and
b)The father’s proposal for the children to remain in Australia (paragraphs 2.2 to 2.27),
as well as the relationship effects on the children. Frankly, this analysis was mostly theoretical and provides no conclusion. I will distil later in these Reasons some of those opinions.
I now intend to discuss the proposals within the matrix of the relevant primary and additional considerations prescribed by the Act. In doing so, I rely upon, but do not necessarily repeat earlier findings already made in these reasons.
Primary considerations
The Act requires the Court to give greater weight to the need to protect the children from physical or psychological harm than the benefit to the children of having a meaningful relationship with both the children’s parents.
My assessment, as previously identified, is that although there are concerns about the father’s past drinking habits and aggressive behaviour (often and usually fuelled by being intoxicated), at the current time he has modified his behaviour such that he does not present as an unacceptable risk to the children.
However, if the mother relocated the residence of the children to Country B, I am satisfied that the relationship between the children X and Y and their father will be severely diminished and even could be severed. This would deprive the children of the benefit of a meaningful relationship with him – which I regard as extremely important to their sense of identity and orderly development.
I find that:
c)X’s bond is unlikely to withstand the hurdles of distance which would reduce the physical frequency of contact to yearly, at best. These parties would require family financial support to enable the father to travel to Europe regularly. The mother, I think realistically, indicated she would not be able to return to Australia more than one visit of three weeks a year;
d)Y, on the current evidence, was at the early stages, because of his age, of developing a bond with the father. It is not likely, in my view, that using Skype or other electronic means will preserve these tenuous early bonds. X might, with the foundation of his relationship created, adapt better – but there is a risk it will wither;
e)Y’s language skills, if he relocates, to speak English will be in the context of it being very much a second language. With father not able to fluently converse in the Country B Language, this presents as a real barrier;
f)I find it is beneficial for these boys to have a meaningful relationship with the father, as their primary – in fact on the evidence, only male role model.
By remaining in Australia, the children will have an opportunity, even if not living in Town D with the mother, to develop their relationship with their father. This factor weighs heavily in favour of the children remaining in Australia.
Additional considerations
I choose to discuss these considerations in a narrative style.
The age of the children mean that even if they expressed some views about living in Country B, no weight could be applied to those views. Their demonstrated behaviour reveals they enjoy living in Australia where they have regular time with the father. I infer that X continues to enjoy day care/kindergarten as facilitated by his mother. Certainly, I am satisfied that the children are secure and stable, living in the primary care of the mother. Y has of course known nothing else.
The children’s primary attachment and bond is with their mother, but X also has a warm and secure bond with the father. When evidence was taken in this case, Y’s relationship with his father was at the early stages. I think it reasonable to infer, that the boys enjoy a close sibling relationship and that provides some support to Y to explore a deeper connection with his father. The children have had little opportunity to develop a relationship with the Country A based paternal family. I accept that if the children were to relocate, then it would be easier to expose the children to the paternal family, but I am not satisfied that the mother would have the time or motivation to do so. The mother, I find, would probably facilitate visits if they travel to Country B to see X and Y.
As Ms H opines, if the children live in Country B then they would live in the same home currently occupied by the maternal grandmother and would most likely have regular contact with the extended maternal family. This is a benefit to them (and would support the mother at least emotionally), but would not in any way significantly fill the gap that arises from the loss of their relationship with their father living in Australia.
In Australia, since separation, the opportunity for the father to participate in the children’s lives has been regulated by Court orders. He has complied with those orders (as has the mother), and to enable time to be supervised has met the cost of supervision. I find he has genuinely and consistently sought to maintain and develop his relationship with the children.
Considering that Y was not born until after separation, I regard the cautious approach the mother adopted in introducing the baby to his father, as entirely appropriate. The birth occurred not long after the incident on 5 December 2016. I do not find the mother had raised unreasonable barriers to the father’s relationship with the children developing. I find she has facilitated and encouraged safe interaction.
I deal in my conclusion below with the likely effect of any change to the children’s circumstances arising from the proposal to relocate or remain living in Australia (s 60CC(3)(d)).
There are really significant practical difficulties and expense arising from the mother’s desire to relocate. These are not wealthy parents. Their resources need to be primarily applied to meeting these young children’s day-to-day needs. I am not satisfied that even if the mother decided to travel to Australia for three weeks a year (as she proposed), that such a desire is sustainable. The mother will have holidays if she obtains employment, but even spending most of her holidays in Australia every year creates difficulties. I find these difficulties will affect the children’s right to maintain a personal relationship with the father even though the mother will do the best she can. If the children are permitted to relocate, I find it likely the father would travel to Europe to see them – but again his desire to live in Australia and maintain his role at the business (not to ignore his financial constraints) would limit those visits.
Whilst not ignoring what I have already found to be some concerns about the father’s past behaviour, I find both parents have the capacity to meet the needs of the children when in their care and have demonstrated an appropriate attitude to parenting responsibilities. Of course the mother, as the primary carer, has had a great opportunity to demonstrate the quality of her parenting. I regarded her as an impressive witness, who has shown outstanding child focus living in Australia, whilst having to deal with the tensions arising from the deterioration of the adult relationship; the separation; giving birth post separation and the events since then shaped by her desire to relocate. Her mother, when able to come to Australia, has been a significant support but otherwise (with the father’s time limited), she has forged some relationships in the community and through her church. She presented to me a strong and resilient parent. She has been required to demonstrate these qualities through these difficult times, where she is isolated living in a small rural community. I find that although she would be happy to live back in Country B, and her employment opportunities with her recognised qualifications there likely to be better, that if she remained in Australia as primary carer she is likely to cope reasonably well if the children are to live in Australia. Absent any evidence offered from her counsellor (with whom she is developing strategies) I do not find this mother will struggle to demonstrate the continued high qualities of parenting she does now. I find, that as the maternal grandmother’s travel ability reduces with her age and available resources, returning to Country B for visits either alone (as the children get older and could remain with the father) or with the children, will give emotional comfort to the mother.
As I soon observe in these Reasons, if required to remain in Australia, it is not clear whether the mother might seek to move closer to Town R or Brisbane (which is four hour’s drive away), where employment opportunities might be better for her. Although as Ms H observed, a four hour road trip for these young children is not a ideal, at least some of the travel responsibilities within Australia can be shared by the parents more easily so as to ensure regular contact with the children and the father occurs.
I have dealt with issues of family violence earlier in these Reasons. I find that, since separation, the parents have shown they can at least be civil to each other and not expose the children to the adult conflict even when living in a small community and close to each other.
It is of course important that these Australian born children, with a rich heritage and cultural connection with both Country A and Country B maintain those links. Whilst I accept it would be easier and more natural for that to occur in Europe, thereby supporting the mother’s proposal for relocation, both parents have the ability should they choose to educate and inform the children of these important connections.
The mother has regarded it as important that X and Y learn the Country B language – as does the Court. She usually speaks in the Country B language at her home. However, by continuing to live in Australia, the children’s capacity to be bilingual will develop naturally. I accept the mother could arrange English lessons for the child in Country B. It is not clear from the evidence whether the father has attempted, in the limited time he has spent with the children, to teach them the Country A language.
Conclusion
The mother says, and the father and the ICL support, an order for equal shared parental responsibility. The presumption being applied in Australia brings with it a requirement for parents to consult and seek to reach agreement on major long-term issues. Even though these parents’ oral communication is not terribly effective at this time, I find with the issue of relocation resolved by Court orders, it is likely to improve. Until it does, the parties are able to communicate by email or text message.
I have come to the conclusion that at the children’s current ages, relocation would carry a real risk that they will have no secure relationship with their father and this, as Ms H opined and I agree, carries with it some significant developmental difficulties that could have long term effect of an adverse reaction.
I cannot comfortably permit that to occur. Even though the mother, as primary carer would do her best if she relocates, to facilitate time and communication, the lack of frequency and hurdles on physical time would mean the father’s role would be limited and this is contrary to the best interests of X and Y.
The mother has shown remarkable resilience. To her credit, she does not run a case that she cannot cope if she continues to live in Australia – where she has since she was 27 years of age some 15 years ago. Life in Australia has not been easy for her, but she has made the best of it.
Although at one stage of the proceedings the Court raised as a possible outcome, whether relocation if permitted could be delayed, I have discounted this as a reasonable outcome because it is highly speculative and the difficulties in maintaining a relationship between the father and the children would remain.
As a result, the Court will order that the children are to live in Australia in the primary care of their mother. This is in their best interests.
Time with father
I have at various stages of these Reasons mused over the lack of evidence available to the Court as to how previous interim orders have suited the needs of the children; how X has adjusted to increased day care; whether overnight time as ordered for X commenced and when, and what further opportunities for time between the father and the children have been agreed to, if any. It is a relevant consideration (see s 60CC(3)(l)) to make an order least likely to lead to further proceedings.
It would have been possible to speculate on the future time arrangements between the boys and their father and “hope” they work out. I do not regard such an approach in this matter as appropriate.
For these reasons, I propose to list the matter for further submissions (and even perhaps limited further evidence from the parents), before pronouncing orders about future orders for the children’s time with the father – whilst being satisfied that it is in their best interests that they live primarily with the mother in Australia.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 22 May 2019.
Associate:
Date: 22 May 2019
APPENDIX ONE
Previous orders
That all previous orders are discharged.
Parental responsibility
That the parents have equal shared parental responsibility for the children X born in 2013 and Y born in 2016.
Lives with
That the children live with the mother in Town D.
Spends time with
That the children spend time with the father at all reasonable times as agreed between the parents and at least as follows-
Week days
A. With both X and Y-
i. From 4 September 2018 until school commences in 2019
Tuesdays
a.From 9am to 5pm from Tuesday 4/9/2018 up to and including Tuesday 18/12/2018.
b.Then every Tuesday commencing 16/4/2019 for one night from 9am or before or after school or day care or the mother (whatever the case may be) to Wednesday 5pm or after school or day care or the mother (whatever the case may be).
Thursdays
a.Every Thursday commencing 6/9/2018 for one night from 9am to Friday 5pm up to and including Friday 25/1/2019.
ii. From term 3 2019
Tuesdays
a.Every Tuesday commencing 16/7/2019 for one night from 9am or before or after school or day care or the mother (whatever the case may be) to Wednesday 5pm or after school or day care or the mother (whatever the case may be).
Weekends
a.From Friday 27/9/2019 from 9am or after school or day care (whatever the case may be) to Sunday at 5pm and every second weekend thereafter.
b.From Friday 20/2/2019 from 9am or after school or day care (whatever the case may be) to Monday return to school and or day care and or the mother at 9am (whatever the case may be) and every second weekend thereafter and in the event Monday is a public holiday then the father's time will extend to Tuesday return to school and or day care and or the mother at 9am (whatever the case may be).
School holidays
A. With X-
a.For the first five nights of the June/July 2019 school holidays and the September/October 2019 school holidays to commence on the Saturday after school concludes at 10am Wednesday 5pm
b.For Christmas 2019 and 2020 school holidays week from the first Saturday after school concludes at 10am the following Saturday at 10am and every second week thereafter.
c.For the Easter 2020 school holidays from Good Friday at 10am to the following Friday at 5pm.
B. With Y-
a.For the June/July 2019 school holidays and the September/October 2019 school holidays from the first Saturday commencing the day after school concludes at 10am until Monday at 10am (for 3 nights) provided such time takes place with X.
b.For Christmas 2019 school holidays from the first Saturday commencing after school concludes at 10am until Monday at 10am (for 3 nights) and every second week thereafter for 3 nights provided such time takes place with X.
c.For the Easter 2020 school holidays from Good Friday at 10am until Tuesday at 10am (for 4 nights) provided such time takes place with X.
d.For the June/July 2020 school holidays and the September/October 2020 school holidays with the first Saturday to commence the day after school concludes at 10am until Tuesday at 10am (for 4 nights) provided such time takes place with X.
e.For Christmas 2020 school holidays from the first Saturday after school concludes at 10am until Tuesday at 10am (for 4 nights) and every second week thereafter for 4 nights provided such time takes place with X.
C. With both X and Y-
a.Then from 2021 with both children the first half of all Easter, June/July and September/October school holidays in odd numbered years and the second half of the school holidays in even numbered years with the first half to commence on the first Saturday of the holidays at 10am until the second Saturday of the holidays at 10am and the second half to commence on the second Saturday at 10am until the last Saturday of the holidays at 10am.
b.The first half of the Christmas school holidays in even numbered years and for the purpose of the Christmas holidays the first half commences the first Saturday at 10am until the 4th Saturday at 1 0am and the second half commences the 4th Saturday at 10am and concludes the last Saturday at 10am.
Special occasions
With both children for the children’s birthdays in 2018 from 9am to 1pm and for 2019 from 1pm to 5pm and every even numbered year.
With both children on the children’s birthday from 2020-
a.If a school day, from after school until 6pm.
b.If a non-school day, from 1 pm until 6pm.
For FATHER’S Day in the event the children are not with the father from 9am to 5pm.
For Christmas Day in 2018 from 9am to 2pm and every even numbered year and from 2019 from 2pm to 7pm and every odd numbered year.
Mother’s time
That the children shall be with the mother for Mother’s Day in the event the children are not with the mother from 9am to 5pm.
Communicates with
Telephone communication every Wednesday between with the parent with whom the children are not living or spending time with to facilitate the call to the children between 5.30pm and 6pm.
The children shall be permitted to communicate with the parents on the telephone at such times as the children reasonably requests and the parents shall facilitate the calls.
Changeover
That changeover when not at school or day care shall take place at K Park
That the parents shall-
a.keep the other parent informed at all times of their residential address and contact telephone number and email address and to ensure the other party is notified of any change at least 7 days prior to any such change;
b.keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children;
c.inform the other parent as soon as reasonably practicable of any other medical condition, significant illness suffered by the children and authorise any treating medical practitioner to release the children's medical information to the other parent;
d.authorise the school attended by the children to give each parent information about the children's educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at that parent's cost).
Other
That during the time the children are with either parent, that parent shall-
a.respect the privacy of the other parent and not question the children about the personal life of the other parent.
b.speak of the other parent respectfully.
c.not denigrate or insult the other parent in the presence of hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
That the father be restrained and an injunction issues restraining the father from consuming alcohol while the children are in his care or from consuming alcohol 12 hours prior to the children coming into his care.
Travel out of the country
That commencing 2020 when the children are spending time with a parent during school holidays, that parent shall be at liberty, during their school holiday time, or up to 3 weeks, to take the children to a Hague Convention country and in relation to this-
a.the travelling parent shall provide the other parent with a copy of their itinerary for the trip including but not limited to departure and return times and dates; a contact telephone number for the travelling parent and the children and the address at which they will predominantly be based (provided that they will not be required to provide details of every address at which the children will stay) at least 28 days prior to scheduled departure;
b.upon receipt of same the other parent shall forthwith release to the travelling parent the passports for the children;
c.the travelling parent shall then provide to the other parent a copy of the return air tickets for the children;
d.during the trip the travelling parent shall arrange for the children to telephone the other parent on at least two occasions in each week.
That the passports of the children shall be held - one by the mother and one by the father - and shall be released to a parent only upon satisfaction of the custodian of the passports that both parents have agreed to the release to that parent or by order of a Court.
Dispute resolution
That in the event that there is a dispute about the children or about the interpretation, implementation or enforcement of these orders, the parents before making any further application to a Court shall -
a.either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (as amended) or by the Commonwealth Attorney-General; or
b.participate in family dispute resolution with a Family Relationship Centre or a person authorised under s.10G of the Family Law Act 1975 (as amended).
APPENDIX TWO
The children X born in 2013 and Y born in 2016, live with the mother.
That the parties have equal shared parental responsibility for the long term decisions for the children.
Each party has responsibility for the daily decision about the day to day care, welfare and development of the children when the children are in their care.
The mother be and is permitted to relocate the children’s permanent place of residence to Town J in Country B.
The parents agree to remove the children’s names from the airport watch list at all point of international arrival and departure in Australia.
That within 14 days from the date of these Orders, the father do all things necessary and sign all necessary paperwork to apply for a passport for the child Y and in the event that X’s passport has expired, the father do all things necessary and sign all paperwork to apply for a passport for the child X.
Contact until departure
Until such time as the mother and children depart Australia to live in Country B, the children shall spend time with their father as all times as agreed, but failing agreement as follows:
a.From 11am to 4pm each Tuesday and Thursday.
That unless otherwise agreed between the parties, changeovers at the commencement and conclusion of the children’s time with the father shall occur at K Park.
Contact with children have relocated to Country B
After the children are relocated to Country B, the children shall spend time with their father as agreed between the parties but failing agreement:-
a.In Australia ear year: for a period of not less than 21 consecutive days during July (end of school year break) on the following terms:-
i.The mother shall accompany the children to Australia until such times as either the mother advises the father in writing that the child has reached an age and level of maturity to travel as an unaccompanied minor OR the children reach the age of 15 years old after which time they can travel as an unaccompanied minor;
ii.the mother shall be responsible for her own adult airfare and travel;
iii.the father is to equally share the cost of the children’s airfares, by reimbursing the mother half of those costs within seven (7) days of her arrival in Australia with the children;
iv.The father shall ensure he is on leave from work for a period of not less than 14 days during this time the children are to spend with him;
v.The mother shall give the father 90 days prior notice of the children’s arrival details and shall ensure that the father has a copy of the children’s travel itinerary;
vi.The father shall organise accommodation at the L Business for the use of the mother while she is visiting Australia with the children and, shall ensure that the accommodation is fully equipped with heating, cutlery, linen and cooking items. The mother is responsible for her own accommodation costs;
vii.From July 2019, overnight time with the children in Australia for 3 nights on, 3 nights off (reverting to day time contact only), for the duration of the 21 days;
viii.For the second visit in 2020, 5 nights with the father and then 2 nights with the mother, for the duration of the 21 days;
ix.For the third visit in 2021 and thereafter the children shall spend the entire 21 days with their father;
x.Any changeovers shall occur at the L Business. The children shall spend time with their father from 10am on the next day after the arrival of the Mother and the children;
xi.The mother to communicate regularly with the father during her journey and at the following times:-
a.At least 90 days prior to arrival, the mother to send copies of the air tickets and her itinerary to the father;
b.The mother call or text message the father 24 hours prior to departure from Country B Airport;
c.The mother send a text message at the airport prior to boarding;
d.The mother send a text message when the children arrive in Brisbane;
e.The mother send a text message when the children arrive in Town D, confirming pick-up the next day at 10.00am.
In Country B each year as follows:
a.The father and/or members of the father’s paternal family, shall give the mother not less than three (3) months’ notice – 90 days – of an intention to travel to Country B and spend time with the children there for no longer than 21 days, unless otherwise agreed.
b.In 2019: The children spend time with the father during the day time only from 10am – 6pm daily.
c.in 2020: The children spend time with the father subject to a satisfactory carbohydrate-deficient transferring (CDT) test result being under 2.2%, with the children to spend overnight time with their father within Town J, on a 3 night on, 3 night off regime, for the duration of the stay.
d.In 2021: the children t spend overnight time with their father within Town J on a 5 night on, 2 night off regime, for the duration of the stay.
e.Commencing February 2022, the children spend the entire 21 days or the duration of the father’s stay.
Should the father arrive during the school terms, intending to spend time with the children, the father is to take the children to their respective schools and pick them up, in accordance with these Orders.
The father be responsible for his own cost of travel and his accommodation in Town J or any other place. If possible the mother shall assist the father find cost efficient accommodation.
That within 30 days from the date of these Orders and three times per year thereafter the father shall undergo carbohydrate-deficient transferring (CDT) testing. Overnight time is not to commence in either Country B or Australia until the father obtains a satisfactory CDT result being under 2.2% evidencing that the father has not consumed alcohol to a level that is significantly detrimental to his health. Until such a result is provided to the mother, day time contact only is to occur between 10am – 6pm daily. The father is not to consume alcohol during or within 12 hours prior to him spending time with the children.
Communication: When the children are spending time with their father in Australia, the father is to ensure the children telephone their mother three times per week.
When the children are spending time with the father in Country B, the father is to ensure the children telephone the mother three times per week.
When the children are living with the mother in Country B, in order to facilitate the children’s commination with their father by Skype, Whats App, Messenger or telephone, the mother shall ensure the children are available to receive such calls at 2pm Country B time – on a Wednesday and Sunday. If the children miss the call from the father, the mother is to forthwith, return the call within 30 minutes (noting the time in Australia).
The mother is to ensure the children have privacy for the call, but noting their ages, initially assist them setting up the communication.
The mother shall ensure the father is provided a copy of the children’s school reports and information and sporting information.
The mother shall send monthly photographs of the children to the father by email.
The mother is to encourage the children to send weekly emails to their father and assist them with this communication.
Alternate proposal
Should the children not be permitted to relocate to Country B,
a.the children with the mother in Australia:
b.The mother be permitted to relocate no further than 4 hours driving time from Town D;
c.Changeover is to occur as agreed, or at a venue half way between the parties respective homes.
d.That within 30 days from the date of these Orders, the father undergo a carbohydrate-deficient transferring (CDT) test and produce a satisfactory result (less than 2.2%) to the solicitor for the mother.
e.Until a satisfactory CDT test result is provided, the children spend time with the father as agreed, but failing agreement:-
i.From 11am to 4pm each Tuesday and Thursday.
f.Upon a satisfactory CDT result being provided AND commencing January 2019, the children spend time with the father as agreed, but failing agreement:-
i.From 9.00am Saturday until 4,00pm Sunday;
g.Upon a satisfactory CDT result being provided, AND commencing January 2020, the children spend time with the father as agreed, but failing agreement:-
i.From 4.00pm Friday until 4.00pn Sunday, each alternate weekend.
ii.For one half of the Autumn, Winter and Spring QLD gazetted school holidays with the father to have the first half in off numbered years and the second half in even numbered years.
iii.For 2 weeks of the summer/Christmas Queensland gazetted school holiday periods with the father to have the first 2 weeks after the end of the school term in odd numbered years, and the last 2 weeks prior to the re-commencement of school in even numbered years.
iv.For the purposes of calculating the proportion of the holidays according to order 21(i)(iii) Above, due to the mother needing to book international travel for this period, the parties are to agree on the dates of the international travel prior to 31st March in each year.
v.The children be allowed to travel with the mother to Country B for 4 weeks during the Christmas school holiday period during another time.
a.The father is to contribute the sum of $4600.00 per year towards international travel expenses for the mother and children.
h.The mother be at liberty to give the father 90 days notice of one further international travel to Country B, outside of the 4 weeks block holiday time, at her own cost and with no contribution by the father to this travel, and should this time be when the children are to be spending time with their father, this time is to cease with no penalty or make up time.
i.The children communicate with their father twice per week on a Tuesday and Thursday between 6pm and 7pm.
Specific issues
That within 30 days of the children relocating to Country B, the mother do all acts and things and take all reasonable steps to obtain from a Court of competent jurisdiction in Country B, recognition of these Family Law Orders and register these Orders accordingly and provide to the father notice in writing of such orders being recognised in Country B upon seven (7) days of receiving same.
This order Operates as authority for any day care, school, educational facility, medical facility provider that is attended by the child, to provide each parent, at the cost of that parent’s request, all information concerning the children.
The father is not to consume alcohol in the presence of the children or when they are in his care for 12 hours before the children are to be in his care.
The parties shall not denigrate each other in the presence of the children and shall discourage any friend, partner or member of the family from doing the same in the presence of the children.
All previous orders are discharged.
The independent children’s lawyer is discharged.
Key Legal Topics
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Family Law
Legal Concepts
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Jurisdiction
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