Wiupa & Kogoya

FAMILY COURT OF AUSTRALIA

WIUPA & KOGOYA

[2008] FamCA 1086

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Parental responsibility

APPLICANT:

Mr Wiupa

RESPONDENT:

Ms Kogoya

INDEPENDENT CHILDREN’S LAWYER:

Mr Linklater-Steele

FILE NUMBER:

MLF

3213

2006

DATE DELIVERED:

25 November 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

25 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr C R Dick

SOLICITOR FOR THE APPLICANT:

DA Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr N B McGregor

SOLICITOR FOR THE RESPONDENT:

Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr J Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

G Couper

Orders

IT IS ORDERED BY CONSENT:

In accordance with the Minutes of the Proposed Orders sealed and attached save for the words “with the father being permitted to take the children to Melbourne” in paragraph 3(e).

AND IT IS ORDERED:

The father be permitted to take the children M and Y, both born on … April, 2003 to Melbourne for the period 9 January 2009 to 13 January 2009.
Notwithstanding paragraph 20 of the Consent Minutes attached, the Independent Children’s Lawyer be discharged.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS DIRECTED:

The Minutes remain upon the Court file.

MINUTES OF CONSENT

IT IS ORDERED BY CONSENT THAT:

The children, [M] and [Y], both born on […] April, 2003, (“the children”) live with the Mother.
The mother have sole parental responsibility for the children. The mother shall advise the father by email or in writing in relation to any major long-term decision to be made by her in relation to the children, in particular any decision to be made in respect of the children’s health, schooling, religion and the place where the children shall live, and shall give the father the opportunity to comment by email or in writing upon any such proposal. The mother shall take into account the father’s views when making any decision about any such matter.
The children shall spend time with and communicate with the Father at all times as may be agreed between the parties but failing agreement as follows:
(a)From 9.00am on Saturday 29 November, 2008 to 12:00pm on Sunday 30 November, 2008;
(b)From 9.00am on Friday, 12 December, 2008 to 4:00pm on Saturday, 13 December, 2008;
(c)From 9:00am on Saturday 27 December to 12:00pm on Tuesday
30 December, 2008;
(d)Except as provided in paragraph 3(e), commencing on Friday
2 January, 2009 and each weekend thereafter, from 9:00am Friday to 12:00pm Sunday, for a period of four (4) weeks;
(e)From 9:00am on Friday 9 January, 2009 to 4:00pm on Tuesday
13 January, 2009, with the father being permitted to take the children to Melbourne;
(f)From the commencement of Term 1 of the 2009 school year, and beginning at the end of the first week of school of Term 1 of the 2009 school year, each alternate weekend from after school Friday to before school Monday or Tuesday if the Monday is a public holiday or pupil free day, that father to collect the children from school and to return the children to school;
(g)Except as provided in paragraph 4 of this Order, from the commencement of the 2009 school year and in each year thereafter, for half of each school holiday period, being the first half in odd numbered years and the second half in even numbered years, with the time the father is to spend with the children in accordance with paragraph 3(f) to be suspended during school holidays.
(h)On Father’s Day from 9:00am to 5:00pm if the children are not in the care of the father.
During the Christmas School holidays commencing at the end of Term 4 in 2009, the children shall spend time with the father as follows:
(a)From 4.00pm on Monday 21 December, 2009 until 4.00pm on Monday 28 December, 2009;
(b)From 4.00pm on Monday 4 January, 2010 until 4.00pm on Monday
11 January, 2010; and
(c)From 4.00pm on Monday 18 January, 2010 until before school on the first day of school in Term 1 of the 2010 school year.
Notwithstanding the matters contained in paragraph 3 of this Order, the children shall spend time with the mother on Mother’s Day from 9:00am to 5:00pm if the children are not in her care.
Unless specifically provided herein then changeovers shall take place at a venue to be agreed between the parties and in default of agreement otherwise then outside …, Queen Street Mall (corner Albert and Queen Streets), Brisbane, if not at school or as otherwise provided in this order.
The father shall be at liberty to communicate with either or both of the children by telephone when they are with the mother at all times as may be agreed between the parties but failing agreement, as follows:
(a)The father shall be at liberty to communicate by telephone with the children each Wednesday between 5:00pm and 6:00pm, with the father to initiate the telephone call;
(b)The father shall provide the children with a mobile telephone, and the father shall use that mobile telephone for telephone communication with the children pursuant to this Order;
(c)The father shall ensure that the children are in possession of the mobile telephone when the children are returned to the care of the mother in accordance with the terms of this Order;
(d)The mother shall ensure that the mobile telephone is charged and switched on at the time the father is to ring pursuant to this Order;
(e)The mother shall ensure that the children are in possession of the mobile telephone and that the mobile telephone is returned to the father when the children spend time with the father in accordance with the terms of this Order;
(f)When the children are capable of making telephone calls, the father shall advise the mother in writing of same, and the mother shall permit the children to ring or text message the father at any reasonable time sought by them during the time the children are in the care of the mother;
(g)The mother shall facilitate any telephone calls to be made by or to be received by the children, shall ensure that the children are undisturbed when they speak to the father and shall allow the children to speak to the father in a private area.
Each party shall notify the other, at the earliest possible time, of any medical emergencies in relation to the children whilst the children are in their care.
The mother shall, within seven (7) days of the date of this Order, provide to the father’s solicitors, in writing, the name, address and contact telephone numbers of the children’s treating medical practitioners, specialists and any other allied health providers, and this Order shall act as authority for the parties to obtain any information from the children’s treating medical practitioners, specialists and allied health providers.
The mother shall keep the father advised of the name, address and contact telephone numbers of the treating medical practitioners, specialists, any other allied health providers and the schools that the children may from time to time attend and shall advise him of any changes, in writing, within seven (7) days, to the treating medical practitioners, specialists, any other allied health providers and the schools that the children attend, including relevant contact details.
Unless the parties otherwise agree in writing, the children shall be enrolled at and shall remain enrolled at one of the schools listed in Annexure “A” to this Order for the 2009 school year and for each subsequent year of their primary schooling.
This order shall act as authority for the parties to obtain any information, including copies of all of the children’s reports, records, newsletters and photographs, from the children’s school.
Both parties shall do all acts and things necessary to ensure that their details and the details of the other parent are noted and continue to be noted on the records of such schools as the children may attend, as the father and mother, respectively, of the children, but shall not authorize the school to release the details of either parent to the other without the written consent of that other parent.
Both parties shall be entitled to attend any public or school social, sporting or extra curricular events involving the children, including but not limited to theatre performances, sporting events, school activities and functions, Christmas parties and other special occasions and as such, both parties agree to share information about such events that will take place during the periods the children live with or spend time with them.
That until further order each party, [MR WIUPA] born […] October, 1973 and [MS KOGOYA] born […] November, 1969, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children [M] and [Y] both born […] April, 2003 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the court orders their removal.
Both parties shall do all acts and things necessary to make application for permanent residency visas for the said children [M] and [Y] both born […] April, 2003 and the parties shall keep each other informed in writing of the progress and outcome of any application for permanent residency visas made by either or both of them for on behalf of the children.
That the mother be and is hereby restrained from moving the place of residence of the children from an area within the boundaries of the greater Brisbane area without the written consent of the father.
The parties shall provide to the other a postal address, and, if possible, a telephone number and email address at which they may be contacted, and shall notify each other of any change to such postal address (and any telephone number and email address if provided) within 48 hours of such change.
The parties will not denigrate each other in the presence or hearing of the children.
The Independent Children’s Lawyer be discharged as and from 1 July, 2009.

NOTATION

It is noted that until the children are of an age when they are capable of independently operating the mobile telephone referred to in this Order, the mobile telephone will only have a receive calls function.
Following the request of the Mother that the Father not involve the children in political activities in respect of the question of an independent West Papua, the Father acknowledges the request of the Mother and expresses his intention not to involve the children in any public political rally or protest march concerning the question of an independent West Papua.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: MLF2323 of 2008

MR WIUPA

Applicant

And

MS KOGOYA

Respondent

REASONS FOR JUDGMENT

This has been an application which has had a very, in effect, chequered history. It has moved from Melbourne from the Federal Magistrates Court to here. There is an enormous amount of material that has been put before the Court. There are five reports, family reports. There is a report from Dr C, a psychiatrist, as to the respective mental health, as I understand it, of both of the parties who are West Papuans and, as I understand, are fluent in Indonesian, which is the language which I understand the interpreters who have been flown from Melbourne are conversing with the respective mother and father.
The children are twins who were born in April 2003 and, as appears from the evidence and from a draft order put before me, these boys are principally attached to their mother, but they do have a very warm and loving relationship with their father.
The parties have over the last day and a half entered into in-depth and meaningful negotiations and I am of the belief that they have both given a great deal away from their respective stances which they took early on in the case. It has been, as has fallen from McGregor of counsel for the mother, particularly difficult for her since she felt that the children's welfare would not have been advanced by their having any time with their father. I refer in particular - inter alia but in particular - to paragraph 29 on page 6 of the report of 13 November 2008. She has moved a considerable distance.
There is a stumbling block, and that is that in the draft order put before me it is proposed by the father, not opposed by the Independent Children's Lawyer, that the children go to Melbourne - in effect the place of the primary residence of the father - between 9 January 2009 to 13 January 2009 - see draft order 3(e). The mother opposes this strenuously and indicates that she herself cannot support the children being taken to Melbourne and that it would affect her general overall health, as I understand the general submission of McGregor.
She does not seek to put any restriction upon his movement with the children thereafter and that would commence in the April Easter holidays of 2009, some two to three months later.
Taking those matters into consideration I feel that it may be that the mother is attempting to put off the evil day to a little bit longer. She must now recognise that she must bite the bullet and that these children's welfare require that they see their father, that the children's welfare requires that there should be not much restrictions upon their movement, so long as the children are adequately safe and, on the material before me, I am more than satisfied that is the case. Therefore, I would not delete the words
"with the father being permitted to take the children to Melbourne."
Otherwise I will order, subject to something I wish to say about Linklater-Steele's submissions:
ORDER DELIVERED
Linklater-Steele, on instructions from the children's representative, shows the Independent Children's Representative's concern about the failure of there to be some form of parental responsibility in the father.
Insofar as O 2 is concerned in the draft, it says:
"The mother shall have sole parental responsibility for the children."
Mr Linklater-Steele properly puts before me the presumptions which are set out in the Act which were incorporated some years ago now and he submits that this is not satisfactory in the circumstances. There is no reason why such a presumption should be discharged, but I am afraid that in a case such as this and having read the material I disagree with the Independent Children's Lawyer's submissions and would allow the joint parental responsibility to be discharged and it be ordered in favour of the mother according to the draft which was supplied with me and placed with the papers.
RECORDED : NOT TRANSCRIBED
I cannot see any reason why the Independent Children's Lawyer is to stay in and consequently I will discharge the Independent Children's Lawyer, notwithstanding par 20 of the draft orders put before me.
RECORDED : NOT TRANSCRIBED

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate:

Date: 12 December 2008

[2008] FamCA 1086

25 November 2008

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Consent

Jurisdiction

Procedural Fairness

Injunction

Remedies

Costs