Zeelan & Abney
[2024] FedCFamC1F 727
•1 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zeelan & Abney [2024] FedCFamC1F 727
File number: PAC 112 of 2020 Judgment of: CHRISTIE J Date of judgment: 1 November 2024 Catchwords: FAMILY LAW – PARENTING – Final parenting orders – Where the parties have a highly conflictual relationship – Where the parties do not reside in close proximity – Where both parties agree to joint parental responsibility – Where the mother seeks injunctions restraining the father – Where the child is to continue to live with the mother and spend time with the father – Where the Court finds that injunctions would not function in child’s best interests. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) Div 12A, ss 60B, 60CC, 69ZT
Cases cited: Line v Line (1997) FLC 92-729 Division: Division 1 First Instance Number of paragraphs: 101 Date of hearing: 21–22 October 2024 Place: Sydney Counsel for the Applicant: Mr Smith Solicitor for the Applicant: ATW Family Law Counsel for the Respondent: Mr Jackson Solicitor for the Respondent: Gad & Co Lawyers Counsel for the Independent Children's Lawyer: Mr Scarlett Independent Children's Lawyer: Christina Lam & Associates ORDERS
PAC 112 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ZEELAN
Applicant
AND: MS ABNEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
1 NOVEMBER 2024
THE COURT ORDERS THAT:
1.X born 2018 (“X”) spend time with the mother and father as follows:
During school term
2.Subject to Order 2(a), 2(b) and 2(c) with the father from 4:30 pm Friday to 5.00 pm Sunday each alternate weekend with the first weekend each term to be the first weekend after school commences;
(a)In the event that the Friday where the father is to collect the child is a public holiday or pupil-free day, then the father’s time shall commence at 4.30 pm Thursday immediately before the Friday and shall conclude at 5.00 pm Sunday;
(b)In the event that the Monday following the Sunday when the father is to return X is a public holiday or pupil-free day, then the father’s time shall commence at 4.30 pm Friday and conclude at 5.00 pm on the following Monday.
(c)If both the Friday and Monday of the father’s weekend are public holidays or pupil-free days, then the father’s time commences at 4.30 pm Thursday and concludes at 5.00 pm Monday; and
(d)X live with the mother at all other times during school terms.
During the short school holidays
3.X spend time with the mother and father during the school holidays at the end of terms 1, 2 and 3 as follows:
(a)With the father for the first half in even numbered years and the second half in odd numbered years;
(b)With the mother for the second half in even numbered years and the first half in odd numbered;
(c)For the purpose of this Order, where the father has the first half of any school holiday period, his time shall commence at 10.00 am on the first day following the last day of term and where the father has the second half of any school holiday period, his time will conclude at 5.00 pm the day immediately prior to school starting for the new term; and
(d)Changeover at the midpoint day will be at 10.00 am unless otherwise agreed in writing.
During the long school holidays
4.X spend time with the mother and father during the summer school holidays as follows:
(a)Commencing from 2024, during the summer school holiday period, the following shall apply in even years:
(i)X spend time with the father from 4.30 pm on the last day of school to 10.00 am on 27 December;
(ii)X spend time with the mother from 10.00 am on 27 December to 10.00 am on the morning following the mother having the same number of nights the father has; and
(iii)The parties then split the remaining nights equally with the father to have the first half and the mother to have the second half.
(b)Commencing from 2025, during the summer school holiday period, the following shall apply in odd years:
(i)X spend time with the mother from 4.30 pm on the last day of school to 10.00 am on 27 December;
(ii)X spend time with the father from 10.00 am on 27 December to 10.00 am on the morning following the father having the same number of nights the mother has; and
(iii)The parties then split the remaining nights equally with the mother to have the first half and the father to have the second half.
Changeover in school holidays
5.During school holiday periods, the father shall collect X from the mother at Town C McDonalds at the start of his time and the mother shall collect X from the father at Suburb D McDonalds at the conclusion of his time unless otherwise agreed in writing.
6.For the purpose of the implementation of the school holiday Orders, they shall commence at the conclusion of school on the last day that X attends at school for the term and continue to the commencement of school on the first day of term and any pupil-free days shall be included in the school holiday time.
Special occasions
7.Notwithstanding any other order, from 4:30 pm on the Friday preceding Mother’s Day to 5.00 pm on the Sunday of Mother’s Day X spend time with the mother.
8.Notwithstanding any other order, from 4:30 pm on the Friday preceding Father’s Day to 5.00 pm on the Sunday of Father’s Day X spend time with the father.
Other
9.X spend such other additional period with either parent as may be agreed in writing.
Telephone communication
10.During school holidays, X communicate with the mother via Facetime (or other video messaging forum) on Tuesday, Thursday and Saturday if she is not with the mother and for the purpose of this order:
(a)Unless agreed in writing, the father shall facilitate the call between 4.00 pm and 4:30 pm;
(b)If X is not available to speak, the father shall notify the mother in writing and provide an alternative time for FaceTime that day;
(c)The father will provide X with privacy for the call.
11.Each party facilitate any reasonable request of X to communicate with the other parent.
12.The mother and the father are restrained from making any negative or denigrating comment about the other parent, their partner or family in the presence or hearing of X and shall use their best endeavours to ensure that no other person does likewise.
13.From 1 December 2025, either party is permitted to remove X from the Commonwealth of Australia for the purposes of overseas travel subject to the below Orders:
(a)In the event that overseas travel proposed by the travelling parent falls within that parent’s time and does not impact the non-travelling parent’s time, consent is not required, but in the event that overseas travel proposed will impact upon the non-travelling parent’s time, then written consent of the non-travelling parent is required and such consent shall not be unreasonably withheld;
(b)The parent intending to travel shall provide 14 days notice to the other parent of their proposed trip and shall provide no later than three weeks prior to the date of departure, an itinerary, including the details of hotel or other accommodation where X is staying, a contact number and flight details; and
(c)The travelling parent will also confirm a contact phone number for the purpose of the non-travelling parent having phone or video messaging (such as Skype, FaceTime or WhatsApp communication) with X while they are away.
14.Upon a request in writing from one party, the other party shall within 14 days do all acts and things necessary to apply for the issue of a new passport for X and shall sign all documents within 14 days of the request.
15.Both parents shall provide to the other and keep each other informed of his or her emergency contact details and this shall include the following:
(a)Each party’s mobile telephone number; and
(b)Each party's email address.
16.The parties shall be required to participate in Family Dispute Resolution in the event that there is any dispute arising from these Orders prior to the commencement of any further proceedings.
17.Pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Zeelan & Abney has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
These are parenting proceedings concerning X born 2018 (“X” or “the child”).
The parties have been able to agree on a number of matters and, at the end of the first day of the hearing, I made consent orders in accordance with the terms of their agreement.
The interests of X in the consent orders and the trial have been represented by an Independent Children’s Lawyer (“ICL”).
The consent orders provide for the child to live with the mother and spend time with the father each alternate weekend during term time. There were also a number of specific issues orders which were resolved by agreement, as was the issue of electronic communication between the child and the father.
The parties remain at issue about a number of issues:
(a)It being agreed that the child’s time during school term will take place each alternate weekend from Friday to Sunday, the parties are at issue about the time that changeover will occur on Sunday (and whether or not the father’s time should be extended in the event of a public holiday or pupil free day).
(b)The father seeks orders relating to time during school holidays which would see the parties divide the holiday time equally between them. The mother proposes that the child spend five nights in the short school holidays and five nights each alternate week in the long summer holiday.
(c)The father’s proposal would alternate Christmas periods. The mother makes a specific provision for Christmas.
(d)The father is content that special occasions such as Mother’s Day, Father’s Day, Easter and the child’s birthday lie where they fall while the mother seeks specific orders.
(e)The father is content that the changeover be undertaken by an agent whereas the mother seeks an order that the parents be required to undertake each changeover.
(f)The father seeks that the changeovers in school holidays alternate between Town C McDonalds at the commencement of time and Suburb D McDonalds at the conclusion of time.
(g)The father seeks orders that, subject to certain conditions, each party be permitted to take the child outside Australia. The mother seeks that the child remain on the Airport Watch List until age 18.
(h)The mother seeks that she be provided with the father’s residential address (and any address where the child is to stay overnight). The father seeks an order that he be required to provide his address to his solicitor.
(i)The mother seeks that each party be required to notify the other about interstate travel and it will be permitted where specific conditions are satisfied.
(j)The mother seeks injunctions about drug and alcohol use, haircuts, who may care for the child, exposure to family violence and denigration and being left unsupervised with a step sibling.
(k)The mother seeks that a breach of the injunction concerning drugs/alcohol trigger drug-testing and counselling and result in a suspension of time.
The above disputes fall to be determined by application of the best interests principle. In determining what orders will be in the best interests of X, I will need to have regard to any relevant matters listed in s 60CC of the Family Law Act 1975 (Cth) (“the Act”). The nature of the matters which remain in dispute means that very few of those considerations are engaged.
Both parties and the ICL elected not to cross-examine. This has consequences where the evidence of the parties about a relevant issue is not the same and in some cases, has impacted on my capacity to make findings. I recognise that in a case with a long history of high conflict, there are also some advantages which flow from electing not to cross-examine in terms of avoiding inflaming issues in circumstances where the parties hope to have finalised matters and have agreed to jointly exercise decision making-responsibility.
On 3 February 2022, the parties agreed to a consent order which provided that the child spend time with the father each alternate weekend from 10.00 am Friday to 5.00 pm Monday.
At that time the child was 3 years old. That was a block of three nights. Those orders also provided that the time could be extended by another night on six occasions meaning there would have been periods of four nights.
On 14 August 2023, a single expert report was prepared by Dr E (“the single expert”). It was before me, and Dr E was not required for cross-examination.
Further orders made on 2 November 2023 recognised that X was starting school and hence alternate weekend time needed to end on Sunday evening at 5:00 pm. The orders also included provisions for holiday time, such that during the short school holidays in 2024, X has been spending five nights in the first week of the holidays and two nights at the end – or just less than half of the period with the father in two blocks.
I attach significantly less weight to the evidence which each party has filed about matters which pre-date the February 2022 consent orders since I accept that they were both legally represented when they entered into the orders and I find that they each asked the court to make orders which in their view, and with the receipt of advice, they believed to be in the best interests of the child. Some of the evidence which the mother gives about the events which predate the consent orders raise serious concerns if the evidence were to be accepted – but the manner in which the parties elected to conduct the proceedings does not allow me to make findings about some of these serious matters.
Time for changeover on Sundays
The mother seeks 4.00 pm (and in the alternative, 4.00 pm in non-daylight savings period). The father seeks 5.00 pm (and in the alternative 4:30 pm in non-daylight savings periods and 5:30 pm during daylight savings).
The mother’s case is that there are challenging driving conditions (near misses with wildlife) and fading light, and as a consequence, the trip takes longer in winter. I accept that the mother may experience more challenging driving conditions if it is wet or icy.
On balance, I am not persuaded, given the evidence, that the driving conditions pose a sufficient likelihood of harm to counterbalance the way in which the weekend would be curtailed given the need to leave Sydney and drive to Town C. I therefore propose to make an order (consistent with the current position) with changeover to occur at 5.00 pm on Sunday.
Extension in the event of long weekend/pupil free day
The father seeks additional time in the event that there is a public holiday or pupil free day at the beginning or end of his weekend.
The mother opposes same.
The father’s rationale is that he has limited time (including compared to before X started school) because of the geographical constraints. Long weekends offer an opportunity for some additional time. The mother submitted that her preference that the time not be extended arises from a desire that X is settled and ready for school or has time to prepare for the resumption of school.
This is a minor issue since many public holidays fall during school holidays and some may fall adjacent to a weekend where X is with the mother and some may fall adjacent to a weekend when X is with the father.
I accept there is merit in the argument that the current driving distances limit time so if time can be extended on occasion, it is likely to be beneficial to X’s relationship with the father and the other members of his household. This is in keeping with the recommendation of the single expert that if the parties had lived in the same city, X should spend substantial time with the father, namely, five nights per fortnight. I am not convinced that X’s best interests require her to return on Sunday where Monday is not a school day (or to remain with the mother on a Friday if she is not otherwise attending school that day due to a public holiday or pupil free day). The proposal would see her returned in line with the usual weekend arrangement – that is, in the early evening the day before school. Any disruption (if there is one) is outweighed by the advantage of a modest increase in time. I am especially persuaded of this since she is required to travel and leaving a greater period between the two trips on very limited occasions appears a child-focused idea.
Changeover by an agent
The father wants the orders to allow changeover to be conducted by an agent on behalf of either parent. The mother seeks an order that only the parents be permitted to effect changeover.
It is unusual for the mother to seek an order requiring the father to affect the changeover given the issues which she has raised about her relationship with the father.
No rationale was offered by the mother to support the conclusion that changeover needed to be affected by the parties. I anticipate, given the distances involved, that it is almost always likely to be undertaken by the parties, but I see no basis (in the interests of X) to require it. Each party would be expected to delegate the task if necessary to someone known to X and competent to affect the changeover.
Time during the short school holidays
The Court had the benefit of the single expert report which said (at [160]):
It is recommended that, once [X] commences school, the time [X] spend with her father be incrementally increased during school holidays so that she spends one half of school holidays with each parent…
(As per original)
The orders of November 2023 increased in an incremental fashion the school holiday time. That time took place throughout 2024. The father now proposes that the time move to half. That would not be a significant increase in the number of days in the short holidays and would allow for a greater range of activities and participation in activities in the father’s household. It would lessen the impact of travel on X as the time between trips would be greater.
The mother’s application is that X’s time would not increase from the current holiday time. That does not implement the unchallenged recommendation of the single expert. It was not plain why such a recommendation ought not be implemented. I propose to make an order that the short school holidays are shared equally as this is a natural transition from the current arrangement and will come into play in 2025.
Time during the long holidays and time at Christmas
The father proposed the following regime apply during the long holidays:
Order 7
7.1Commencing from 2024, during the Christmas school holiday period, the following shall apply in even years:
(a)[X] spend time with the father from 4.30 on the last day of school until 10.00am 27 December;
(b)[X] spend time with the mother from 10.00am 27 December until 10.00am on the morning following the mother having the same number of nights the father has.
(c)The parties then split the remaining nights equally with the father to have the first half and the mother to have the second half.
7.2Commencing from 2025, during the Christmas school holiday period, the following shall apply in odd years:
(a)[X] spend time with the mother from 4.30 on the last day of school until 10.00am 27 December.
(b)[X] spend time with the father from 10.00am 27 December until 10.00am on the morning following the father having the same number of nights the mother has.
(c)The parties then split the remaining nights equally with the mother to have the first half and the father the second half.
One of the challenges which the parties face with this holiday period is the fact that another special occasion also falls between Christmas and New Year.
The father’s proposal is not one which sees the child spend an uninterrupted half in the care of either parent – this may be appropriate having regard to X’s experience to date and the length of the long holidays.
The mother’s proposal is more complicated because, in effect, she seeks a regime of uninterrupted alternate weekends which apply both in school term and during holidays and in holidays the father would have an additional three nights appended to his usual weekend to create a five-night block each alternate weekend.
That would again be potentially interrupted by her proposal for Christmas being:
6.2Christmas Holidays
6.2.1 During even-numbered years:
(a) With the Mother from 10:00 AM on December 23rd until 12:00 PM on December 27th;
(b) With the Father, from 12:00 PM on December 27th until 4:00 PM on January 2nd.
6.2.2 During odd-numbered years:
(a) With the Father from 10:00 AM on December 23rd until 12:00 PM on December 27th;
(b) With the Mother, from 12:00 PM on December 27th until 4:00 PM on January 2nd.
(Mother’s Amended Response filed 13 September 2024)
The mother’s proposal alternates Christmas each year. The parent who does not have Christmas will have X in their care for New Year. The father’s proposal also alternates Christmas.
What persuades me that it is more suitable to adopt the father’s proposal is that it allows for longer blocks and hence longer gaps between travel for X and, in addition, provides that the parties will share the holidays approximately equally in accordance with the single expert recommendation (as opposed to the mother having the majority of the school holidays under her proposal). It allows for both parents to take a longer holiday with X should they choose.
Mother’s Day/Father’s Day
The mother proposed that the father return X at 4:30 pm on the Saturday before Mother’s Day. The effect of that would be that X’s time with the father that weekend would be 24 hours – a significant proportion of which would involve travel. The mother proposed that the father collect X at noon on the Saturday prior to Father’s Day and return her at 4:00 pm on Father’s Day. Again, this would be a shorter than usual weekend with significant travel. The father was content for the Mother’s Day and Father’s Day weekends to lay where they fell, the effect of which could be that X was with him on Mother’s Day and with the mother on Father’s Day. I raised with the parties whether the option whereby X spent a “usual” weekend – Friday to Sunday with the mother on Mother’s Day and the father on Father’s Day might better meet X’s needs – to give her the opportunity of sharing this special day with each parent but without curtailing the weekend. The father’s reluctance to adopt this approach arose, it was submitted, from his concern that this may have the effect of creating a period of three consecutive weekends where he does not spend time with X. I understand this concern, but it also creates a situation where one party may enjoy an extra weekend, and on some occasions, it will not change the pattern. As X gets older, she may be more easily able to tolerate a longer period away from either parent without impact on the relationship. On balance, I think her interests are best met in this case by spending the Mother’s Day and Father’s Day weekends with her mother and father respectively.
Easter
The Easter weekend is a long weekend with two public holidays. For the father, it has religious significance. For the mother, it is an opportunity to share additional time with X. It sometimes aligns with school holidays and sometimes does not. The father says it should just lie where it falls – in this instance, I agree with him. I do not have any evidence before me which would satisfy me that it is appropriate to further carve up the school holidays (if Easter happens to fall in that period – it may potentially lead to more travel and more changeovers). If it falls in term time, and on the father’s weekend, it will create an extra opportunity for extended time – if it falls on the mother’s time, it is an extra opportunity for her to spend non-school time with X.
X’s birthday
X’s birthday falls during school term. Given the orders for school term, it will almost always fall during the mother’s time. The father does not seek specific orders for time – a recognition that the parties do not live in sufficient proximity to make a short visit work.
The mother only proposes time on X’s birthday if it falls on a non-school day.
There is a small chance that if I make the orders the father seeks there may be an isolated birthday where X does not see her mother on that day – but for that to happen it would need to fall on a Saturday and on the father’s alternate weekend – since she sees X on Fridays and Sundays under the alternate weekend arrangement.
On balance and having regard to the value of shielding X from any potential conflict (particularly on her birthday), I am not persuaded that there should be a specific order relating to time on X’s birthday to the effect that it will lie where it falls.
Location of changeover during school holidays
The parties agree about the location of changeover during school term: McDonalds Town C. The father proposed that during the school holidays the changeover at the commencement of time remain at McDonalds Town C but the changeover at the conclusion of time proposed by the father was McDonalds at Suburb D (more proximate to his home in Sydney).
Exhibit 4 was a map indicating approximate driving times between McDonalds in Suburb D and McDonalds in Town C and driving times between McDonalds Town C and Town B.
At present, the father undertakes the majority of the driving in school terms since his journey from Sydney to Town C, return, would take at least 4 hours (but likely longer given he does not live at Suburb D McDonalds) on a Friday. The mother’s return journey is less than half that. The father repeats the journey on Sunday. The father does not seek to change that going forward, meaning that he would still undertake the majority of travel.
The father seeks a more equitable arrangement in school holidays. He would collect X from Town C McDonalds at the commencement and the mother would collect from Suburb D McDonalds at the conclusion of time (which would appear to be proposed for 10.00 am). That would require the father to make the journey of about 4 hours and the mother to make a journey of about 6 hours.
This is always a fraught issue to adjudicate because the child makes the journey either way and so it is difficult to identify a legal principle by which to select from the two proposals. The father’s proposal seems fair as between the parents – but that is not the test. The mother opposes more sharing of the driving on the basis that she has caring responsibility for her mother and is not in a strong financial position. The father would similarly argue that while he has significant assets, he also has significant debt and his taxable income is about equivalent to that of the mother.
The mother was clearly prepared to travel to Sydney to spend time with X should her birthday fall on the father’s time indicating that she could not be heard to say she has no capacity to travel to Sydney.
The mother was able to travel to Sydney for the purpose of her study.
The mother appears to have some capacity to travel to Sydney and the majority of the driving will continue to be undertaken by the father but I am not persuaded that the evidence supports the conclusion that the mother cannot effect changeover in Sydney during school holidays and so I propose to order that the school holiday changeovers will have the mother collect X from the father at Suburb D McDonalds and the father collect X from the mother at Town C McDonalds.
Interstate travel
The mother seeks orders which requires each party to provide the other with notice of travel outside of NSW and the ACT together with an itinerary, address of accommodation, copies of plane tickets and details of all persons who will be travelling. The travelling parent would also be obliged to facilitate telephone communication if the location of travel is remote.
If the parties had a good working relationship, then one anticipates that most of the details would be provided as a matter of course. The ICL (on behalf of the child) resisted the making of these orders on two bases: first – that it appears to be a form of micromanagement of parenting where X may be better served by the parties assuming that each will act appropriately and will be in contact should the need arise. The second is the concern that too many requirements may lead to the allegation that there has been some breach of the requirements and expose X to further conflict.
On balance, I accept that too stringent a requirement for notification and provision of information is likely to produce opportunities for conflict given the history to which both parties depose.
I think that it is appropriate that X have regular telephone communication with each parent during holidays. I propose that X’s telephone communication with her mother during school holiday periods (whether she is interstate or not) should mirror the provision to which the parties agreed for the father.
Overseas travel
The mother wants X on the Airport Watch List until she turns 18. The father wants to be able to take her on a vacation (albeit he does not have a current plan).
In Line v Line (1997) FLC 92-729 the Full Court said (at 83,846):
4.49The next matter is obviously the degree of risk that the departing parent, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return. In assessing that degree of risk, obvious considerations are the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there).
The mother’s concerns are not a substitute for evidence.
The proceedings are proceedings under Division 12A of the Act. Section 69ZT applies. No party sought a ruling that the Evidence Act 1995 (Cth) apply but it does not follow that I can accord weight to all material contained in the parties’ respective affidavits. The mother’s evidence about “[Mr Zeelan’s] Current Associations and Risk of Flight” is a good example.
In summary the mother’s case for X to be placed on the Airport Watch List is premised on the following matters:
(a)A concern that the father has criminal associates;
(b)A concern that the father may leave the jurisdiction to escape financial responsibility;
(c)Comments by the father to the mother about leaving Australia;
(d)Asserted past breaches of court orders; and
(e)A concern that the father will not respect the court’s orders.
Criminal associates
It is not clear to me why having criminal associates per se makes it more likely that the father would retain the child outside the jurisdiction.
The mother attached what appears to be an excerpt from an online source. It has no date. To the extent it refers to the father it says:
“[Mr F’s] partner in [a company] is [organised crime] associate [Mr Zeelan], who was jailed […] for a vicious assault.
[Mr Zeelan], 40, is facing charges of unlawfully communicating […] with [an organised crime member], who was in […] Jail. The matter will return to court […].
This undated article (but from context 2019) does not establish a logical link between its content and flight risk and the weight I can attach to it, given its provenance, is negligible.
Another headline from a newspaper article dated 2021 attached to the mother’s affidavit is headed “Businessman […] kidnapped […]”. The mother says the businessman and the father are business associates and the father loaned him $335,000. It is not clear why, even if accurate, this necessarily makes the father a flight risk.
The mother attaches a text message in which it appears that the father confirms a fear he had expressed that his father may have been kidnapped (when he could not locate him). It is not apparent when this exchange occurred or why this makes it more likely the father would not return X to Australia. At its highest, it may be concluded that (at least when the father wrote this message) he had a fear that a member of his family could be vulnerable to kidnapping. It does not logically follow that this is consistent with the father being a flight risk since, if the mother were to consider the risk to be serious, it is unlikely that she would have consented to time between the child and the father.
The mother attached text message communications between herself and the father. They are undated. While it is accurate to state the question of moving overseas is raised in the text messages, the father’s response to the mother is to say “…I don’t want to move overseas it was just an option”. The father also explicitly says to the mother in the messages that the police have never told him his life was in danger. There is a second text message exchange (again undated but from context after X’s birth) in which the father talks about selling things and going travelling – returning to Australia to see “my baby”. Without more, the discussion sometime in the past about living (or travelling to) somewhere other than Australia is not sufficient to demonstrate that the father is a present flight risk.
The father has significant links to Australia. He owns real property, although I accept that even in his own account, he suggests his current financial position is somewhat perilous. He has a current partner, a new child and his current partner has a child from a previous relationship (“G”) whose father is in Australia. The father’s parents are in Australia and attended their first grandparent’s day at X’s school this year.
The father was not challenged about his evidence to the effect that he has no intention to relocate outside Australia and I do not accept that there is anything in the mother’s evidence which would satisfy me that the father poses such a risk.
The father does not have a current travel plan. In a general sense, I accept that it is in the interests of children, and this child, to spend time outside Australia with their parents, where that is safe, for the purpose of a holiday or educational experience or to visit family.
At this stage, the father says his financial position is such that travel is not an immediate prospect. I propose to permit either party to take X outside Australia during their time (on the conditions proposed by the father) provided that such travel not occur until December 2025. The purpose of making the order in this way is, firstly, because it does not prejudice either party since neither has a current plan for travel. Secondly, it means they do not have to return to court to allow for travel in the future. Thirdly, X will be about to start year two and will be a little bit older. Finally, the parties will have had the benefit of final orders for more than a year to allow the situation between them to settle and the communication and cooperation via the parenting app to develop outside the context of litigation.
There is no evidence X has a current passport and I decline in those circumstances to require that any passport be lodged with the court.
Provision of father’s address
The father is aware of X’s address when she is in the care of the mother. The mother wants to be told where X is living when she is with the father. The father resists provision of this information on the basis that he says he is concerned that if the mother has his residential address, this will result in a greater likelihood that she will (further) involve the police in the dispute between them. The father also said in his affidavit the mother had made “threats” and that having his address may mean she is more likely to make a report about G.
The father accepted the police know where he lives. Given that concession I do not know why the mother having the father’s address would increase the likelihood of the police being engaged by the mother. I am also sceptical that being provided with the father’s address would make it more likely the mother would make a report about G. Based on her evidence alone, I am satisfied she would make a report if she wanted to whether she had an address or not.
It is only the evidence about threats which requires consideration as a basis to resist the provision of an address. The father said that the mother has threatened to have him killed. The father annexes a screenshot of a message from the mother. It reads in part:
I will post ur address on Facebook
I really don’t care
Ur mums to
Ur dads
Ur ain’t us
I won’t stop
U think this is a joke that u can treat me this way
I’ll make [X] a Muslim and spit on ur grave dog
I will do everything to make ur life a miserable
(As per original)
I take into account the fact that the father has also sent the mother texts which are abusive in nature. But that is not a basis to ignore the evidence which the father has given about threats by the mother. The mother did not join issue with the specific evidence and did not require the father for cross-examination.
I am satisfied that if X is retained by the father then the mother will be entitled to make an application to the court or contact authorities as she sees fit even if she does not have the address. On balance, I accept that the evidence establishes a basis for the father to resist its provision.
Injunctions
The mother seeks a variety of injunctions which cover the following topics:
(a)Drug and alcohol use;
(b)Haircuts;
(c)X’s sleeping arrangements;
(d)Who may care for X (absent the father);
(e)Whether X can be left unsupervised with her step-brother;
(f)Exposure to family violence; and
(g)Denigration.
The consequence of breach of the injunction relating to drug and alcohol consumption would, on the mother’s proposal, lead to suspension of time.
The father and ICL resist the making of the injunctions. The ICL submitted that some of the injunctions which the mother seeks have the flavour of the mother micro-managing the father’s time with the child. The father’s counsel submitted that in circumstances where the parties will have joint decision-making responsibility, and it is agreed that X will spend regular time with the father, the mother is evincing trust in the father as a parent. The mother’s counsel drew the Court’s attention to the concerns she has consistently raised throughout the proceedings about the father’s parenting and risk factors.
The injunctive power of the court is found in s 68B of the Act. The mother relies on subparagraph (2):
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
Consuming alcohol or any illicit drug
In 2015, the father was convicted of a drink driving offence. There is no evidence this has occurred since. The father has been responsible for driving X very long distances and there is no suggestion that he has been affected by alcohol. The injunction is curiously drafted as it prohibits consumption prior to exercising time with X but not during time spent with X.
The mother says that during the relationship the father consumed alcohol to excess, and when intoxicated, engaged in behaviour which would not be appropriate if he were to have the care of X. While she set out specific conduct, the mother did not indicate dates or specific incidents in a manner which would allow the father to join issue, save for an event in 2018 and an event in 2019 – well before the existing consent orders (and in the first instance before X’s birth).
Ms H gave evidence in the father’s case as follows (at [61]):
I am not able to speak to how [Mr Zeelan] was before our relationship, but since we have been together, I have never seen him use drugs, and he does not drink at home. At most he may have a few beers when out with friends or family, but he always behaves appropriately.
(Affidavit of [Ms H] filed 10 October 2024)
Ms H was not required for cross-examination.
The evidence about present alcohol consumption by the father does not establish a necessity for an order which prohibits consumption. I am concerned that (particularly in the absence of current evidence) the making of an injunction in the terms sought would lead to conflict between the parties. Whatever may have been the father’s conduct in the past, there is not evidence to establish that present alcohol consumption would place X at risk of harm. It is also highly likely that X will be spending the majority of her time in the presence of other adults (including Ms H), and from time to time, her paternal grandparents.
There is an inherent redundancy to an order which purports to restrain a person from taking illicit drugs. The law prohibits the taking of illicit drugs without the requirement for a court order.
There is less evidence to support current drug use (than was the case in respect of alcohol). I accept that the father’s criminal history has included some drug charges and the parties appear, on the evidence, to have fought about drug use by the father when X was small but the letter from the mother’s solicitor to the mother dated 11 November 2021 which the mother attached to her affidavit, acknowledges a negative drug test result (based on the letter of 16 November 2021, it was a hair follicle test). I was not taken to any recent evidence supporting a finding that the father has engaged in illicit drug taking after that test.
It follows that I would not make any of the orders the mother seeks which flow from breach of injunctions.
Haircuts
In June 2022, the father cut X’s hair. He informed the mother by text. The mother asserts the father has cut it again more recently.
The father’s contemporaneous message to the mother makes plain that he realised his error immediately.
The mother’s response appeared to suggest that the problem was his failure to obtain her consent but the correspondence attached to her affidavit dated 7 July 2022 suggests she contacted the police about this incident.
This incident demonstrates the potential for conflict in this case. While the father’s decision to attempt a home haircut was probably unwise – it is not conduct that the Court would consider warranting the making of injunctions.
Sleeping arrangements
According to the mother’s affidavit, she shares a bed with X, but she seeks an injunction which would prevent X sharing a bed with anyone while in the father’s care except with the mother’s express consent.
X has her own bed in the father’s household. In the ordinary course, there may be occasions where it makes sense to share a bed with a parent, grandparent or another child. Just as it is a matter for the mother in the exercise of her day-to-day decision-making responsibility so here (in the absence of any evidence indicating the need for such an order), it should be a matter for the father in the exercise of his day-to-day decision-making responsibility. The evidence does not establish the need for an injunction.
Delegating X’s care
The mother seeks an order that would restrain the father from leaving X in the care of another person without her written consent. She does not seek to be similarly restrained. This would have the effect of requiring the father to seek consent before X was in the care of her step‑mother or grandparents or on a play date. In order to make such an order, the evidence would need to establish that it was necessary. There is no evidence to support the making of the order. The evidence suggests that if the order were to be made, then the mother would police it. The father has parental responsibility in respect of long-term issues which he is to exercise jointly with the mother. There is no basis to curtail this aspect of his day-to-day decision-making.
Leaving X unsupervised with step-brother
The father has been in a relationship with Ms H since 2021. They live together. They have a son, born 2023. Ms H has a son, G. G is 8 years old.
The mother has made a number of allegations about G’s conduct as follows:
(a)That he had told X he was sending photographs of his bottom to his friends and had encouraged her to participate;
(b)That the children share a bed;
(c)That G had asked X to suck his toes;
(d)That the children have bathed together;
(e)That G may have hit X on the back; and
(f)That G had scratched X.
The mother also informed the father that X had reported to her that the father had touched G’s “private parts”.
The father says that Ms H examined G’s device after the suggestion regarding photographs of his bottom and found no indication it had occurred. He says the children do not share a bed. Ms H says if the children bathe together, they do so in swimwear.
Ms H says she raised the alleged toe sucking with G who responded “Ew, that’s gross, I would never do that”.
The father says that while the children may from time to time become over excited during play, there is no indication that any deliberate harm has occurred.
The evidence does not support the making of an injunction. I am especially persuaded that the restraint is not necessary by the unchallenged evidence of Ms H who has (in difficult circumstances) raised these issues with G – as opposed to ignoring them or assuming the mother is acting maliciously. Ms H’s conduct is protective in nature.
Exposing the child to family violence
It goes without the need for statement that it is not in the interests of children to be exposed to family violence but that does not mean that in all cases the Court should make a restraining order of the type sought. It is curiously drafted – while it restrains only the father, it says that “each party will take all measures to remove the Child…”. The evidence does not support the conclusion that there is family violence in the relationship between the father and Ms H. I do not propose to make the order.
Non-denigration
The mother sought an order that the father be restrained from making any negative or denigrating comments about the other parent or their partner in the presence or hearing of the child themselves or allowing any other person to make any negative or denigrating comments in relation to the parent or their family in the presence or hearing of the child.
This is an important issue in this case but not only as it relates to the father. The mother does not seek a mutual restraint. Both parties set out conversations which have taken place in the presence of X during which it is alleged that they spoke in very derogatory terms about the other parent. Neither party chose to cross-examine the other. Making a mutual restraint is consistent with the unchallenged evidence of the single expert and I propose to do so.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 1 November 2024
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