Adams & Jillet

FAMILY COURT OF AUSTRALIA

ADAMS & JILLET & ANOR

[2014] FamCA 590

FAMILY LAW – CHILDREN – Relocation to Country E – Where the mother seeks an order to relocate the four children to Country E – Where there are two fathers – Where the father of the eldest three children is no longer willing to participate in proceedings and no longer opposes the mother’s relocation application – Where the father of the youngest child opposes the relocation order – Where the maternal grandmother is a party to the proceedings and opposes the relocation application in respect of all four children – Where there is a history of alcohol and drug abuse and violence – Where the father of the youngest child has a criminal history – Where the mother’s new husband lives in Country E – Where the mother and her new husband practise the Mormon religion – Where the children’s views are not the only consideration – Where the best interests of the children will be met by allowing the relocation – Where an Order is made for the children to travel back to G Town during the Country E Summer school holidays each year at the mother’s expense – Where the mother is to have sole parental responsibility for the children – Where the mother’s application for relocation is allowed.

Family Law Act 1975 (Cth)

Domestic and Family Violence Protection Act 2012 (Qld)

Marsden and Winch (No.3)[2007] FamCA 1364

APPLICANT:

Mr Adams

RESPONDENT:

Ms Jillet

INTERVENER:

Ms Kellet

INDEPENDENT CHILDREN’S LAWYER:

Lyrene Wiid

FILE NUMBER:

ROC

333

2007

DATE DELIVERED:

1 August 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

G Town

JUDGMENT OF:

Forrest J

HEARING DATE:

26, 27 & 28 November 2012
and 16 & 17 July 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Grant

Grant & Simpson
(26, 27 & 28 November 2012 only)

FOR THE APPLICANT:

No Appearance

(16 & 17 July 2014 only)

FOR THE RESPONDENT:

Ms Jillet in Person

FOR THE INTERVENER:	Ms Kellet in Person (26, 27 & 28 November 2012 only)
COUNSEL FOR THE INTERVENER:	Ms Willey (16 & 17 July 2014 only)
SOLICITOR FOR THE INTERVENER:	Madden Solicitors (16 & 17 July 2014 only)
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Lyons
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Lyrene Wiid Lawyer and Migration Agent

ORDERS MADE ON 17 JULY 2014

That the children, B, born … 2001, C, born … 2003, D, born … 2005 (“the children”) shall live with their mother, Ms Jillet, who shall have sole parental responsibility for them and who is also permitted to relocate all of them to Country E as soon as she can obtain passports and make travel arrangements for them.
That should the children’s names be on the Airport Watch List maintained by the Australian Federal Police they shall be removed from that list forthwith so as to facilitate their travel to Country E.
That until such time as the children’s travel to Country E they shall all live with their maternal grandmother and they shall spend time with and communicate with their father as may be agreed between the maternal grandmother and the father and they shall each communicate with the mother by telephone call or internet video call every second day between 5:00 pm and 7:00 pm Australian eastern standard time with the mother to initiate the communication and the maternal grandmother to ensure that the children are able to speak with the mother and that they can do that with privacy.
That the mother shall take all steps necessary to obtain Australian passports for the children as quickly as they can be obtained with the maternal grandmother, and, if necessary, the children’s father, co-operating and doing all things necessary for those passports to be obtained, such as the facilitation of the taking of passport photos (at the expense of the mother) and having those appropriately certified, save that any need for the father’s signature to be provided before the children’s passports are issued is hereby dispensed with.
That as soon as passports are obtained for the three children and economy class airline tickets for them on commercial flights to City F, have been purchased by the mother, all three children shall leave this country for Country E accompanied by their maternal grandmother if she is willing to accompany them to City F and, if she is so willing, her economy class airline tickets from G Town to City F and return shall be purchased and paid for by the mother.
That the maternal grandmother shall inform the mother in writing within five (5) days of the date of this Order as to whether she will accompany the children to City F or not, and, in the event that the maternal grandmother informs the mother that she will not accompany the children then either the mother or the mother’s husband, Mr Jillet, citizen of Country E, (or both of them) shall travel to G Town, collect the children from the maternal grandmother and accompany them all back to City F, Country E.
That once the children are living with the mother in Country E, they shall communicate with their father by telephone or internet video call as agreed between the mother and the father but at least once every week between 5:00 pm and 7:00 pm local City F time on an agreed day with the mother to facilitate the call at her expense and to ensure the children have privacy for such calls.
That the mother shall ensure that each of the children speaks with their father by telephone or internet video call at her expense on their father’s birthday, on Father’s Day, on Easter Sunday and on Christmas Day each year.
That once the children are living with the mother in Country E, they shall communicate with their maternal grandmother by telephone or internet video call as agreed between the mother and the maternal grandmother but at least once every two weeks between 5:00 pm and 7:00 pm local City F time on an agreed day with the mother to facilitate the call at her expense and to ensure the children have privacy for such calls.
That the mother shall ensure that each of the children speaks with the maternal grandmother by telephone or internet video call at the mother’s expense on the maternal grandmother’s birthday, on Easter Sunday and on Christmas Day each year.
That should the father and/or the maternal grandmother call any of the children on the children’s birthdays each year the mother shall ensure that the child whose birthday it is speaks with the caller and has privacy for such call.
That each of the children shall also be permitted to communicate with their father, their maternal grandmother and any other member of their extended family or friendship circle living in Australia by email or Facebook, such capacity to be facilitated, supervised and overseen by the mother and only interfered with if such communication is other than appropriately child focused.
That unless otherwise agreed between the mother and the maternal grandmother and the father of the children, within the first four days of the children’s Country E Summer school holidays the children shall travel to G Town, accompanied, whilst adult accompaniment is required by the commercial airline on which they fly, by either the mother or the mother’s husband, Mr Jillet (or both of them), and they shall travel back to City F, within the last four days of those same Country E Summer school holidays again accompanied, whilst adult accompaniment is required by the commercial airline on which they fly, by either the mother or the mother’s husband, Mr Jillet and all such travel arrangements are to be made solely by the mother at her expense with all such flights to be on commercial airline services.
That the mother shall advise the maternal grandmother and the father in writing no later than four weeks prior to the time of planned departure of the children from City F at the start of their Country E Summer school holidays of the precise travel arrangements she has put in place for their travel to Australia and their return at the end of those holidays to Country E including times of scheduled arrival and departure from G Town airport and the identity of the adult person who will accompany the children to and from G Town.
That during the Country E Summer school holidays that the children spend in Australia the children shall live with the maternal grandmother who shall collect them from G Town airport on arrival and shall return them to G Town airport in time for their scheduled departure and they shall spend time with and communicate with their father during that time as may be agreed between the maternal grandmother and the father.
That should the father or the maternal grandmother travel to City F at any time during the year outside of the children’s Country E Summer school holidays the children shall spend time with him or with her as may be agreed between the mother and the father or maternal grandmother respectively, but for not less than six hours per day for five consecutive days if the father or maternal grandmother can accommodate that during any such visit.
That the mother shall keep the father informed in writing of decisions that she intends to make in respect of the major long-term issues (as that term is defined in the Family Law Act 1975) in respect of each of the children and she shall seek his written input into such decisions in respect of the children before making them, the sole decision making responsibility ultimately being hers and after she has made such decisions she shall advise the father of such decision and the reasons for making it.
That the mother shall keep the father advised in writing of the developments in the growth, health, educational progress, sporting and cultural involvement of the children as they happen, including by providing the father with a copy of the children’s school reports, school photographs, school and sporting achievement certificates and awards and the names, addresses and relevant internet websites of any school or sporting club each of the children attends.
That the mother shall not denigrate the father or the maternal grandmother to or within the hearing of any of the children and she shall use her best endeavours to ensure that no other person denigrates either of them to or within the hearing of any of the children, and shall remove the child or children from the presence of any third person who does so denigrate either of those persons.
That the mother shall use her best endeavours to facilitate and encourage meaningful relationships between the children and their father and their maternal grandmother on an ongoing basis.
That the Independent Children’s Lawyer is discharged from the time the children leave Australia.
That all other outstanding applications are dismissed.
That all previous parenting orders are discharged.

NOTATION

In order to give effect to Order 2 above, the Court requests that the Australian Federal Police remove the names of the children, B, born … 2001 (male), C, born …2003 (female), D, born … 2005 (female), from the Family Law Watch List at all points of international arrivals and departures in Australia.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: ROC 333 of 2007

Mr Adams

Applicant

And

Ms Jillet

Respondent

And

Ms Kellet

Intervener

REASONS FOR JUDGMENT

On Thursday, 17 July 2014, at G Town, I made final Orders in each of these two matters, heard as one set of proceedings, that the four children, B, C and D Adams and H live with their mother and be permitted to be relocated by her to live with her in Country E.
The proceedings had been first heard by me in a trial that took place in G Town from 26 – 28 November 2012. At the end of that trial, I reserved my judgment. The mother then immediately applied for orders to be allowed to take the youngest child, H, with her to Country E where she intended to take up residence pending the delivery of my reserved judgment. She and the father of the three eldest children agreed that the three eldest children would remain in their father’s care living in the G Town area in the meantime.
I refused the mother’s application to take her youngest child with her at that point in time, and made orders that the child continue to live with the mother as long as the mother remained living in the G Town area, but that in the event that the mother left the country for Country E, the child was to remain living in the G Town area in the care of her maternal grandmother, whilst increasing the time that she would spend in the care of her father, with a view to a consensual transfer of her full-time care to her father after a period, at least until I delivered my judgment in respect of the contested parenting orders applications which included the mother’s relocation application.
The mother left Australia and went to live in City F in Country E at around the time that I refused her interim application. All four children remained behind, living in the G Town area, the three eldest with their father and his partner and their two younger children, and the youngest with the maternal grandmother with a view to transition gradually to her father’s care.
Due to the obligation to hear and determine so many other difficult parenting orders disputes as well as property adjustment orders proceedings, delivery of my reserved judgment was regrettably delayed. It was then brought to the Court’s attention that there were some very significant developments in the lives of the four children that were relevant to the determination of appropriate parenting orders as between the mother, the two fathers and the maternal grandmother. The maternal grandmother had been granted leave to intervene and become a party to the proceedings at the very end of the 2012 hearing. I convened a mention of the matters and heard from the parties, including the ICL. I determined that it was appropriate to re-open the trial and to hear further evidence. Accordingly, I listed the matter for further hearing over two more days on 16 and 17 July this year.
The re-opened hearing was convened again in G Town. The mother appeared at and throughout the re-opened hearing by internet video link from City F in Country E. She was not legally represented. The father of the Adams children, Mr Adams, did not appear at the re-opening. The Court was satisfied that he was aware that the matter was being heard again, but that he had no intention of any further participation in the proceedings. Counsel for the ICL informed the Court at the commencement of the re-opened hearing that the ICL had been in telephone communication with Mr Adams and that he had confirmed that he did not wish to participate further in the proceedings and no longer opposed the mother’s application for their three children to be relocated to Country E to live with her.
The father of the child, H, appeared represented by a solicitor and counsel. He continued to oppose the mother’s application for their child, H, to be allowed to be relocated by the mother to live with her in Country E. He sought final orders that H continue to live with him in the G Town area. The maternal grandmother also appeared represented by a solicitor and counsel. She opposed the mother’s applications in respect of all four children. She sought an Order that the three Adams children live with her in the G Town area and that the youngest child, H, continue to live with her father and spend time with her and the other three children as agreed between her and H’s father.
At the end of the two days of the re-opened hearing, I was quite satisfied that it was in the best interests of all four children that they be reunited with their mother and allowed to be relocated to live with her in Country E as soon as that could be arranged. I made Orders providing for that and informed the parties that I would publish my reasons as soon as I possibly could. These are those reasons.

Some background facts up to the point of the orders made soon after the first hearing

The mother, born in 1985, was married to Mr Adams in 2002 when she was only 17 years of age and he was 20 years of age and they already had one child. Their three children were born in 2001, 2003 and 2005 and are, accordingly, now 12, 11 and 9 years of age respectively. Their marriage relationship was tumultuous and they experienced difficulties through the excessive consumption of alcohol, abuse of drugs and violence.
The mother and Mr Adams finally separated in April 2006. Their three children remained living with the mother in her care. There were continued difficulties in the co-parenting of the children after their separation, with the children not being able to enjoy regular and consistent time in their father’s care for a variety of reasons.
The mother then entered into a relationship with Mr Clements. They married in 2007. Their only child was born in 2008 and is now 6 years of age. Their marriage relationship was also tumultuous and they experienced problems similar to those experienced by the mother and her first husband. Alcohol and drug abuse and violence between the mother and Mr Clements became increasingly problematic. Protection orders were obtained by the mother against Mr Clements under Queensland’s family violence legislation, and Mr Clements was charged with breaching a protection order in circumstances of an assault on the mother where he punched her in the face, causing fractures to one of her eye sockets. Intermittent separations occurred but they finally separated in early 2012. Their child remained living with the mother and her three older siblings. The mother and Mr Clements also had significant difficulties in their co-parenting relationship after their separation, with ongoing conflict about the time the child was to spend in her father’s care.
In 2012, after the mother and Mr Clements separated, Mr Adams commenced proceedings in the Federal Magistrates Court (as the Federal Circuit Court was then known) in G Town seeking parenting orders that provided for the three children of him and the mother to spend more time with him and on a regular, consistent basis. Whilst those proceedings were pending, the mother entered into a new emotional relationship with a man she met on the internet, through a website aimed at members of Religion K. That man, Mr Jillet, is a citizen of Country E and was living just outside City F in that country where the headquarters of that church are based. Both the mother and Mr Jillet profess adherence to the Religion K.
The mother and Mr Jillet only knew each other through their internet communication for a few weeks before marriage between them was considered as a real prospect. Mr Jillet then travelled to G Town in the middle of 2012 and they met in person for the first time. By the end of June 2012, Mr Jillet and the mother were married.
The mother had obtained a dissolution of her marriage to Mr Clements and a dispensation of the requirement to wait four weeks for a decree nisi to become absolute before she could remarry in circumstances that I am satisfied were less than completely honest on her part. She was clearly determined to marry Mr Jillet and to marry him as quickly as she could. Mr Clements clearly still feels aggrieved by the mother’s dishonestly obtaining the divorce from him as she did. I am now satisfied that the mother’s dishonesty around those matters, as reprobate as it was, is ultimately of little relevance in this matter where determining what parenting arrangements are to made for four children is the principle task of the Court, and the best interests of those children must be the paramount consideration in that determination.
At around this time (the middle of 2012), the mother was struggling with the task of providing good quality parenting for her four children - emotionally, financially and practically. The Queensland State Department of Communities, Child Safety and Disability Services had become involved with the mother and was working with her through a voluntary parent-Departmental agreement to assist her in this task.

The mother travelled to the Country E to spend a few weeks with her new husband in September 2012. She left H in the care of her mother, Ms Kellet, and the three other children in the care of their father and his partner during that holiday, but again took over caring for the children in her own residence upon her return. By the time Mr Adams’s parenting orders proceedings which had been transferred to this Court came on for hearing in late November, H’s father, Mr Clements had also commenced his own proceedings and the two matters had been listed for hearing together in one trial, family reports had been prepared by Brisbane Registry based Family Consultant, Ms I, and the mother had become absolutely determined to move to Country E to take up life with her new husband. Mr Jillet actually came back with the mother to Australia for the purposes of spending more time with her and to give evidence at the trial of this matter. Furthermore, the mother’s relationship with her own mother had broken down, with the maternal grandmother being unwilling to support her daughter’s decision to relocate herself and the four children to Country E.
At the trial in November 2012, the two fathers of the four children had put their past differences (which included physical violence towards each other) aside and were supporting each other’s position. Together with the maternal grandmother, they formed a strong alliance against the mother opposing her application to relocate the four children to the Country E.
The mother presented a case to the Court that it was in the children’s best interests to be allowed to relocate to Country E with her as she was now married to a man with whom she chose to live in that country. He had employment and was also a member of Country E Army, in which he served in a part-time capacity, effectively as a reservist. He had served in that capacity for many years and as a consequence, had access to numerous benefits as well as accumulating entitlements to future benefits upon completing a certain number of years of such service. The mother asserted that she would be able to obtain employment in Country E and that she would have the support and assistance of her new husband’s large extended family. She argued that she needed to get herself away from the controlling and violent interaction with Mr Clements, the emotionally damaging influence of her mother in her life, her unemployment and relative poverty in Australia and to take the chance to start a new life in Country E. She argued that she was going to go to Country E to be with her new husband regardless of the outcome of the proceedings and that as the children’s principal attachment was with her, that they should be permitted to travel with her. She argued that both fathers of her four children were troubled by alcohol and drug misuse and abuse and that neither was really an appropriate alternative parent for long term care of the children as each also struggled with anger management and violent temperaments.
The Family Consultant in her reports had expressed the opinion that the four children were certainly principally emotionally attached to their mother and would suffer emotionally if they were removed from her care. However, she clearly thought it best that the mother not move with them to Country E but rather remain caring for them in Australia so that they could continue to develop their relationships with their fathers. She apparently did not appreciate the mother’s resolve to go in any event.
At the trial in November 2012, Mr Adams presented as wanting to have the children live with him and his partner and their two young children in K Town, near G Town, whether the mother stayed in G Town or went to Country E. During the trial it became apparent that he still had some issues with his ability to control his alcohol intake, but his partner, Ms M, gave evidence of support for his position and she impressed me as a caring, thoughtful young woman who would provide Mr Adams with valuable assistance and support should the children be in his full-time care.
Mr Clements, however, primarily sought an order that his little girl continue to live with the mother and spend time with him and that she only move to the maternal grandmother’s full-time care and gradually transition to his full-time care if the mother actually did leave for Country E. He clearly thought his daughter’s best interests would be served by living principally with the mother, but only if she continued to live in Australia.
At the trial, Mr Clements presented as a man with a troubled personality who had been seeking treatment assistance from a psychiatrist and who talked of changing his ways. He was in a new relationship with a woman he had taken up residence with. She was a mother of a young girl who lived principally with her father in north Queensland but spent holiday time with her mother in the home she shared with Mr Clements. That woman was not presented as a witness in Mr Clements’ case and never came to Court, so the Court was unable to assess her. Mr Clements also spoke promisingly of intentions to remain drug free and in control of his own alcohol intake and propensity to commit violence against others. However, whilst he conceded that his past was checkered with examples of poor behavioural choices and bad decision making, he still demonstrated a tendency to minimise personal responsibility for his actions and blame external causes.
As already observed, Mr Clements clearly recognised that his child’s best interests were served by her remaining in her mother’s principal care but, nevertheless, he urged the Court to consider that his little girl needed to have a relationship with him and argued that if the mother went to Country E to live, the child should stay in Australia.
The maternal grandmother, Ms Kellet, presented at the 2012 trial as a witness for the two fathers, giving evidence against her daughter’s application to relocate the children to Country E, but essentially supporting the mother’s position as the parent with whom the children should principally live if she remained in Australia. Ms Kellet just did not want her grandchildren leaving the country.
Ms Kellet lived in the G Town area, was in receipt of a carer’s pension as carer for her autistic young adult daughter who still lived in her care, but also had another child, an 8 year old boy who lived with her. She presented as having a very volatile personality herself, on one occasion getting up from the witness box and storming out of the Courtroom when unhappy about a line of questioning directed at her by her daughter, the mother.
It was only at the end of the 2012 trial, when the Court was confronted with the prospect of the mother leaving the country soon after the hearing, whether she was allowed to take the children with her then or not, that the Court invited the maternal grandmother to intervene in the proceedings.
When the mother made the further application to be allowed to take her youngest daughter, H, to live with her and her husband in Country E straight after the trial, I determined that H should stay in Australia along with her three older siblings pending the delivery of my final judgment.
Although Mr Jillet presented as a man of some stability and substance, the evidence before the Court established that he, like the mother, had been married twice before, had four children of those two marriages, (one by his first and three by his second), had conflictual relationships with both of his former partners, and had readily entered into a marriage with the mother after only knowing her for a short period of time with apparently little reservation.
The Court was then confronted with a very difficult decision to make. As it was an interim decision only, and I was extremely concerned about the likely prospects of success of the mother’s new marriage at that point in time and the mother’s commitment to the maintenance of the relationship between the child, H, and her father, (a relationship that was clearly not very soundly established at that time), I made the orders that I did for H to stay in Australia at that time and live with her maternal grandmother whilst gradually building her relationship with her father.

Matters of relevance that have occurred since that time

The Jillets

The mother and Mr Jillet are still married and living together in a satellite suburb of City F in a three bedroomed townhouse situated in a complex of four such townhouses. They both gave evidence that they remain happily married; neither of them drinks alcohol; neither of them takes illicit drugs; they have experienced no violence in their relationship and they attend religious services each Sunday for between one to three hours. I have no reason not to accept any of that evidence.
Their evidence is that they have had the support of Mr Jillet’s extended family, many of whom live nearby and that the mother has been welcomed by them all. Short affidavits by Mr Jillet’s parents supporting this were attached as exhibits to the mother’s affidavit and neither was required for cross-examination by any party.
Initially, after the mother went to Country E, she suffered from some depressive symptoms which Mr Jillet attributed to her grief at having left her four children in Australia. She overcame those relatively quickly with the support of Mr Jillet and treatment by doctors who prescribed anti-depressant medication for her. Since around the middle of 2012, the mother has been employed working in an administrative position in a local business. Her employment has now progressed to full-time, Monday to Friday, and she works between the hours of 8:00 am and 5:00 pm. Recently, her income has increased to US$38,000 per annum.
The mother applied for a Permanent Residency visa in Country E, sponsored by her husband. That has taken many more months to process than she initially thought it would. Whilst her application has been in the process of being considered by Country E authorities, she has not been prepared to leave Country E and travel back to Australia because of a belief that she would not be allowed back into Country E and that her Permanent Residency application would be seriously jeopardised if she left the country. She gave evidence that she sought and obtained advice about this question through the Country E’s Judge Advocate General’s Office and was advised that she should not leave the country before her visa application was processed.
Both the mother and her husband gave evidence (and produced documents supporting their evidence) that they had recently been advised by Country E authorities that the mother’s application had processed to the point of acceptance, subject to her satisfactorily passing a medical examination which she must now undertake. They both said they are expecting an outcome soon.
Mr Jillet is employed locally and he works at least from 4:00 am until 8:00 am each day, Monday to Friday. He is able, at his choice, to work additional hours to those, up to a maximum of an additional four hours each day. He also attends a local community college for a couple of hours at a time on two to three days per week where he is studying subjects with a view to enhancing his prospects of being able to study medicine at some point in the future. It is his evidence that Country E Army strongly supports and encourages his ongoing study, practically and financially.
Mr Jillet continues to serve in Country E Army and undertakes service for between three to five days per month, on weekends and for a two week period once per year at the beginning of Summer.
Mr Jillet also has the care of his three children of his second marriage on a regular basis. They live with their mother somewhere in the local area and he picks them up from school each second Friday afternoon and they spend each second weekend with him and the mother, being delivered back to their own mother on Sunday evening. There are two boys and a girl and when they stay with the Jillets, the boys share a bedroom whilst the girl has her own room. They spend time with the Jillets during school holidays also, as does Mr Jillet’s older daughter of his first marriage from time to time by arrangement with her. She lives a distance away, in Seattle, Washington.
The mother put evidence before the Court of a matter that she and Mr Jillet must have thought would probably be raised by Mr Clements and/or Ms Kellet. The Jillets are aware that Mr Clements has been in contact with Mr Jillet’s second wife, Ms L, from since before the 2012 hearing. Ms L had notified the City F Department responsible for child welfare of concern that her three children had been left unattended in the Jillet’s townhouse one weekend or holiday period when they were in Mr Jillet’s care whilst the Jillets were apparently at work. The notification had been confirmed after departmental officers had spoken with the children. The Jillets were then interviewed. Their evidence was that they told the department they had a period of overlap of a couple of hours when they were both working and could not avoid it. They had arranged for a neighbour to look after the children during this period, but for the children to have access back to their own townhouse if they needed it. Their evidence was that the neighbour was interviewed by the departmental officers and confirmed these arrangements had been put in place by the Jillets. Their evidence was that after these interviews, the departmental officers changed their initial assessment of the complaint and recorded satisfaction with the arrangements that the Jillets had made. That evidence appears to gain support from the letter that the mother attached to her affidavit received from the department. In any event, I saw no reason not to accept their evidence and their expressed commitment to making sure that the mother’s four children are properly cared for on a relocation to live with the mother in City F.

Mr Adams

Mr Adams’s relationship with his partner, Ms M, has ended and she and their two young children no longer live with him. The affidavit evidence and departmental and Queensland Police records tendered into evidence by the ICL reveal that their relationship broke down in the first half of 2013 with Mr Adams increasingly resorting to alcohol consumption and being violent towards Ms M, including seriously physically assaulting her. Ms M separated herself and their two children from Mr Adams but could not take the three Adams children with her.
Difficulties in respect of Mr Adams’s continued care of the three children quickly emerged and before long the three children were in the care of Ms Kellet. Ms Kellet and Mr Adams have, since then, apparently not been able to agree on arrangements that would see the Adams children spending regular time in their father’s care. Ms Kellet asserts that Mr Adams is not able to provide a suitable and appropriate level of care for the children because of his abuse of alcohol and inattention to the children’s needs. I am satisfied that is more likely than not, to be correct.
Mr Adams enlisted the mother’s support through electronic communication with her in Country E. Dispute about the time the children were to spend with Mr Adams continued between the mother, Mr Adams and Ms Kellet up to the point of the re-opened trial. Mr Adams has apparently now adopted the view that the children should live with their mother in Country E, but was not willing or able to appear in the proceedings or even file any further material to reflect that position.
The evidence also supports a finding that Mr Adams and Mr Clements have also fallen out again over their preferred parenting arrangements in respect of all four children.
I was left without a doubt that Mr Adams does not want the three Adams children to be living with him and, in any event, that it is not now in their interests to be living with him. He appears now to have simply given up fighting with Ms Kellet about seeing and spending time with the children and supportive of them living with their mother rather than their grandmother now that he cannot provide appropriate parental care for them.

Mr Clements

Early in 2013, Mr Clements was convicted in the K Town Magistrates Court of breaching a domestic violence protection order for the assault on the mother that left her with a fractured eye socket. He was sentenced to probation of eighteen months duration. He had not mentioned this in either of the two affidavits of evidence he filed for the re-opened hearing. Although I asked him some questions about the matter, I was left uncertain as to whether he was convicted on a plea of guilty or after a trial at which he had pleaded not guilty, as he had told me at the 2012 hearing he intended pleading. I expect, given the mother has not come out from Country E since December 2012, that he must have ultimately pleaded guilty to the charges.
By agreement between Mr Clements and Ms Kellet, the child, H, transitioned to Mr Clements’ full-time care around the middle of 2013. She was then living with Mr Clements and his partner, Ms N. Ms N’s young daughter, who principally lives with her father in north Queensland, lived with them during school holidays. Mr Clements continued to work when he could obtain work through his construction contracting business.
It was not long before serious problems surfaced in Mr Clements’ relationship with Ms N and in September and October of 2013 these problems manifested themselves in loud arguments and violence, some of which I am satisfied took place in front of the child, H. Wilful damage was done to motor vehicles, including when Mr Clements kicked panels along the side of Ms N’s car causing them to be damaged. There was police involvement and a domestic violence protection order was obtained by the police for Ms N naming Mr Clements as the respondent.
Notwithstanding the order, more incidents occurred. Mr Clements unilaterally excluded Ms N from their rental property and she required police intervention that facilitated her forced entry through a window to recover some of her personal possessions. Police were also required to attend at the property after that to investigate claims that Mr Clements was burning the remainder of her possessions left at the property.
Soon thereafter, Mr Clements was arrested by police and charged again with breaching a domestic violence protection order. He was only months into his probation for the other breach at that time. Police allege that Mr Clements breached the order by sending multiple text messages to Ms N without response or invitation from her, the form and content of which is said to constitute domestic violence. Domestic violence is defined in s 8 of the Queensland Domestic and Family Violence Protection Act 2012. It includes behaviour by a person towards another person with whom the first person is in a relevant relationship that is emotionally or psychologically abusive, is threatening, or in any other way controls or dominates the second person and causes that second person to fear for her safety or wellbeing.
The content of many of the text messages Mr Clements is alleged to have sent to Ms N was put into evidence before me. That content was very disturbing. This Court is not trying Mr Clements for the offence for which he was charged, and for which, for reasons unknown to me, he has not yet been tried. However, it was conceded by counsel who appeared for Mr Clements that if he is convicted of the breach, given that he was on probation for a similar offence at the time this one is alleged to have been committed, he could be sentenced to a term of imprisonment. That was a sensible concession in my view.
During the course of, and in the aftermath of, the tumultuous separation from Ms N, Mr Clements suffered a severe breakdown of his mental health whilst the child, H, remained in his principal care. Whilst there is some evidence pointing towards that breakdown being a “drug induced psychosis”, I am not in a position to say that I find that it was. Mr Clements certainly concedes that he was still using marijuana whilst in the relationship with Ms N, although it is apparent that he blames her bad influence for the extent to which he continued to use it. There is also evidence that he was using amphetamines at around the time of the onset of his psychosis. What is undisputed is the fact that he had previously experienced mental health problems and had been receiving treatment from a psychiatrist. The deterioration of his mental health on this occasion was not the first such experience for Mr Clements. Whatever caused the onset of his psychosis, it was a troublesome event for him, the child and others involved.

As I understand the evidence, the child somehow came into the care of Ms Kellet at some point in time during the deterioration of Mr Clements’ mental health. It may have been that Mr Clements, knowing his health was deteriorating, voluntarily placed her in Ms Kellet’s care. Of that, I am not prepared to make a definite finding. But whilst H was in Ms Kellet’s care, Mr Clements went to Ms Kellet’s house and, whilst there, his behaviour and his utterances, such as the asserted sprinkling of holy water over H to either exorcise her of, or protect her from, demons, troubled Ms Kellet so much that she called police who attended and took Mr Clements to hospital where he was admitted as an involuntary mental health patient.
Mr Clements remained in hospital for some time and H remained in the care of Ms Kellet for an even longer period of time. Upon discharge from hospital, Mr Clements moved into a cabin he had purchased in a caravan park in a beachside village in the G Town-K Town area. He continued to receive follow up visits and care from community mental health workers.
By agreement between Ms Kellet and Mr Clements, H was returned by Ms Kellet to Mr Clements’ sole care sometime in December 2013. Ms Kellet conceded in Court that this was done as a matter of her own judgment and without any input from any of Mr Clements’ treating professionals. H was, apparently in the father’s care with intermittent visits to her maternal grandmother’s home where she spent time with her siblings and cousins as well, until sometime around a few weeks before the re-opened hearing when she was, by agreement between Mr Clements and Ms Kellet, again placed into Ms Kellet’s full-time care. This was attributed to the fact that Mr Clements had obtained a significant contract in G Town that would require him to work hard and relatively long hours for about six weeks.
In addition, some time before Christmas 2013, Mr Clements was charged with a drink driving offence. He did not mention this in either affidavit that he filed for the re-opening of the proceedings but mentioned it casually in passing during his oral evidence. He admitted that the blood alcohol concentration with which he was charged was about 0.10 (100 milligrams of alcohol per 100 millilitres of blood) or twice the legal driving limit. No detail of the circumstances of the offence was given. Apparently, at least according to his evidence, Mr Clements was not dealt with in court for the offence until this year because of the state of his mental health at the time.
Then in or around the very early part of this year, Mr Clements had a car accident one morning on the way to work. He rolled his vehicle that he was driving whilst going through a roundabout. The car was written off. Mr Clements gave evidence that he fled the scene of the accident. There was a passenger in the car that was injured. Ambulance and police attended the scene. Mr Clements attributed his departure from the scene of the accident to shock. He presented himself to hospital later in the day and was found to have fractured vertebrae in his neck and was transferred to Brisbane by air for treatment in a spinal unit. He told the Court he was told by doctors that he was lucky he did not suffer irreversible spinal cord damage.
He does not appear to have been charged with any offences arising out of that accident but the circumstances do raise concerns that he might have been again driving under the influence of alcohol or drugs. Those concerns are heightened by the fact that he was charged again with driving with more than the prescribed concentration of alcohol in his blood on a day not long afterwards. He told the Court that he went out drinking one Friday night and drank heavily until the early hours of the morning. He slept over in town before rising and driving around 8:30 am, believing, he said, that he was alright to drive at that time. He was breath tested and found to have a blood alcohol concentration of 0.094 (94 milligrams of alcohol per 100 millilitres of blood), again nearly twice the prescribed limit.
He told the Court he was convicted of both drink driving offences in early February this year and suspended from holding a driver’s licence for six months for each offence.
Despite this evidence, Mr Clements maintained to the Court a firm belief that he does not have a problem with alcohol. I do not accept his confident assertion and find that he clearly has a problem with his management of alcohol consumption as well as drugs.
Critically, there was also evidence before the Court that Mr Clements was not totally compliant with the regime that had been prescribed for taking medication in respect of maintaining the stability of his mental health and that is very concerning, particularly as he could give no good explanation for his lack of compliance and he did not demonstrate any apparent insight into the need to maintain compliance and to avoid drugs and alcohol.
Records from the school H began attending in 2013 were put into evidence. She had many unexplained absences recorded for 2013 and many for 2014 also. There were far too many for it to be consistent with appropriate parenting. Records from the same school that the three Adams children have been attending were also put into evidence. They also reflect numerous unexplained absences of those three children from school.

Ms Kellet

The mother also put into evidence copies of transcripts of internet communications she has had with various parties since she went to Country E, including with her own maternal grandmother. Those transcripts reveal the mother’s maternal grandmother reporting to the mother her concerns for Ms Kellet’s capacity to continue providing care for all the mother’s children at the same time as her own two. The transcripts record a report of the maternal grandmother being evicted from her rental home, a report of the maternal grandmother expressing the view that she was having “mega probs” with the children as she had no money and could not cope with them. She is reported to have said to the mother’s maternal grandmother to tell the mother to “come and get her kids I can’t do this anymore”.
At the re-opened hearing, Ms Kellet confirmed her commitment to the position that if the mother returned to live in Australia, the children should be in her principal care. She continued to oppose the children re-locating to Country E, asserting that she was still worried that the mother’s lack of support there could lead to the children being neglected by her and being taken into care by authorities and “lost in the system” there.
Remarkably, given that Ms Kellet had adopted a position in documents filed in the lead-up to the re-opened hearing supporting Mr Clements’ principal care of the child, H, she actually agreed with the proposition put to her by counsel for the ICL during the re-opened hearing that if the child stayed in Australia that she would be better off being principally cared for by her, Ms Kellet.
The mother also gave evidence that the children had told her that they were going to be moving with Ms Kellet to O Town in south-east Queensland. When that issue was raised with Ms Kellet, she certainly accepted that it was something that she had seriously considered doing, as she has an adult son who lives there and would like to live closer to him. She denied having a current intention to make such a move but I was not convinced by her evidence that it was not something that she would not again seriously consider doing in the future if the four children were left in her principal care.

The mother’s communication with the children in the last eighteen months

Although the mother had not come back to Australia in the last eighteen months for reasons I have already discussed, there was evidence that the mother had tried to communicate with the children using Skype internet software. She had apparently confronted difficulty with this in trying to communicate regularly with the children when they were in Ms Kellet’s care and also when trying to communicate with H when she was in Mr Clements’ care. The poor nature of the relationships between the mother and Ms Kellet and the mother and Mr Clements certainly has, I accept, not been conducive to easy facilitation of that contact.
I am satisfied that Mr Clements would argue with the mother and be abusive to her at times when she contacted him to speak with H. I am satisfied that Ms Kellet was not very co-operative in facilitating easy and regular contact between the mother and the children when they were in her care. Ms Kellet agreed that she had received a lap-top computer that the mother had provided to her for the purpose of the children communicating regularly and easily with her in Country E. She agreed that the computer had not been used for that purpose from soon after she received it, asserting that the children had installed an access password on the computer that had been forgotten, with access to the computer being automatically prohibited from then on. She gave no evidence about any attempt that had been made to fix that situation and I was satisfied that nothing was done about it or sought to be done about it through lack of interest on her part in doing anything to facilitate such communication with the mother.
I accept that the mother certainly tried to remain in contact with the children and, I am satisfied, never abandoned the position of having them relocate to live with her in Country E. She made a point of her belief that all the things she said she would do when the matter was before the Court in November 2012 she had done and that all the things that she said would happen in the lives of Mr Adams and Mr Clements had happened. She also sent money, although limited by her own financial position, to Mr Adams to assist him in caring for the children and to Ms Kellet after they had gone into her care. She even bought online some grocery items from an Australian supermarket chain for delivery to Ms Kellet, though Ms Kellet was critical of the limited nature of the mother’s support.
I am, however, satisfied that the relationship between the mother and her mother, Ms Kellet, is one that could potentially repair itself over time with some effort by both of them. However, I am not as optimistic about the prospects for the relationship between the mother and Mr Clements. That is likely to remain bad and with the consequence being that whichever parent the child, H, is not living with is likely to become distant from her.
In respect of this issue, the evidence that was before me in November 2012, particularly Ms I’s report, satisfied me that the child was principally emotionally attached to her mother at that time. I was very concerned then that if H went to live with her mother in Country E her relationship with her father, Mr Clements, who she was expressing negative views of, might never have a chance to become a meaningful relationship for her. Now though, she has spent quite a few months in Mr Clements’ care. Not all of her experience of that has been positive, but she knows him better now and her attachment to him is likely to be stronger and more likely to be able to sustain the reduction in the time that she will experience in his company and care whilst she lives with her mother in Country E.
Ms I reported in November 2012, that the boy, B, wanted to move with his mother to live in Country E but that his two sisters were less interested in doing that. One of them, in particular, C, was recorded as wanting to stay with her father, Mr Adams.
There was no evidence given in November 2012 by any of the witnesses, including the expert, Ms I, that the four siblings should be split in some way by permitting one or more to go to Country E with the mother and allowing one or more to remain in Australia. I determined it was in their interests to all be in the one country where they could all be able to spend time together. By all four of them living with their mother they will be able to remain together as a sibling unit.
The Court was told by Ms Kellet and Mr Clements at the re-opened hearing that none of the children want to go to Country E now. No updated family report was obtained as Ms I has left the Court’s service and moved to the UK in the period since her last report. The ICL has not spoken directly with the children. Accordingly, no objective assessment of, and reporting to the Court of, the children’s views has occurred in the period between the November 2012 hearing and the recent re-opened hearing.
I did not find it surprising to hear from Ms Kellet and Mr Clements that the children have said to them that they do not want to go to Country E. However, I am persuaded, in the circumstances of those reports coming to the Court from Ms Kellet and Mr Clements, to give a great deal of weight to those asserted views. I respect the fact that the three Adams children, particularly, are getting older and that their views must be given appropriate consideration. They have been. However, I consider the four siblings should not be living apart from each other anymore as their sibling relations are strong and one of the most constant things in their lives to this point in time. The maintenance of those relationships is very important for their long-term well-being in my view. They will only be able to stay living together as a sibling unit with their mother in Country E or with Ms Kellet in Australia.
I do not consider now that their best interests are advanced by leaving them all living with their maternal grandmother or by leaving the three eldest living with her and the youngest with her father. Whilst I have considered the children’s views as reported to the Court, those views could most certainly not be determinative of the outcome in this case. Views reported directly by two parties to the case who are most committed to keeping the children in Australia must be considered in that context. I am of the view that the children are not likely to be expressing views to the maternal grandmother and to Mr Clements contrary to what they understand those parties would be happy to hear. Additionally, I am of the view that the closer the children get to their teenaged years, the more that they are likely to want to remain wherever they currently find themselves.

By what principles must the parenting orders be determined?

When making a decision as to the particular parenting orders to make in respect of these four children their best interests are to be afforded paramount consideration (see s 60CA).
The Family Law Act 1975 (“the FLA”) provides that in determining what is in the best interests of the child in the case before the court, consideration must be given to expressly listed “primary” and “additional” considerations (see s 60CC). One of those “additional” considerations, namely s 60CC(3)(m), is “any other fact or circumstance that the Court thinks is relevant”. Its inclusion in that form evidences that the enquiry is indeed a broad one.
As broad as it is, the process of determination must nevertheless be undertaken within the constraints of the statutory framework of Part VII of the FLA which begins with a statement of the objects of the Part and the principles underlying those objects. In a case where the children are currently living principally with a grandparent, I consider it important to set those out. They are:
S 60B (1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The evidence in every parenting orders case must be considered and parenting orders determined with those objects and principles kept firmly in mind. Of course, determinative status is not to be afforded to the objects and principles ahead of a careful and proper consideration of the matters that must be considered pursuant to s 60CC in determining what orders are in the best interests of the children. Parents of children are not given legislative pre-eminence over grandparents in the determination of appropriate parenting orders simply by that status, although there is much weight to be given to the existence and promotion of a meaningful parent-child relationship in the process.
Expressly listed as ‘primary’ amongst the considerations the Court must consider in determining what is in a child’s best interests are two matters (see s 60CC (2). They are:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In the Act, it is said that making these considerations the primary ones is consistent with the objects of Part VII – that is, at least those two objects set out in s 60B(1)(a) and (b) (see the Note to s 60CC(2)). In any parenting case, the two “primary” considerations set out in s 60CC(2) are to “be accorded particular importance in determining what order will best promote the interests of the child” (Marsden and Winch (No.3)[2007] FamCA 1364 per Warnick and Thackray JJ at para 77). That they are separately listed and described as “primary considerations” demands as much in my view.
The statutory framework set out in Part VII must be followed in parenting orders cases. That starts with consideration of the presumption in favour of equal shared parental responsibility being in the best interests of the children (s 61DA(1)). However, pursuant to s 61DA(2) of the FLA, the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in “abuse” of the child or “family violence”. Both “abuse” and “family violence” are defined, quite broadly, in s 4 of the Act.
I am more than satisfied that the two fathers of the four children in this case have engaged in serious family violence towards the mother over the years. Accordingly, the statutory presumption does not apply and it becomes a matter for me to determine the allocation of parental responsibility between the parents that serves the children’s best interests.
Mr Adams did not appear at the re-opening of the proceedings seeking any form of parental responsibility for the three eldest children. I could not, in the circumstances of the breakdown of his relationship with Ms M and the surrender of the care of the three children to Ms Kellet, consider that Mr Adams should have parental responsibility for the three children. I certainly would not order equal shared parental responsibility between the Mr Adams and Ms Jillet in respect of the three eldest children.

Similarly, the level of conflict between Ms Jillet and Mr Clements is so high that an expectation of child-focused, co-parenting and responsible joint decision making in respect of their daughter, H, is, in my view, not realistic. In such circumstances, when one parent lives in Country E and one lives in Queensland, proper decision making about major long-term issues in respect of the little girl, H, needs to be, in my view, the sole province of the parent with whom she is living. That is why the parenting order I made provided for the mother to have sole parental responsibility.
Finally, in respect of parental responsibility, only if the children were going to live principally with their maternal grandmother in Australia would I have considered it appropriate to confer parental responsibility upon her. As I determined that the best interests of the four children are served by their living with their mother and permitting her to relocate them to live with her in Country E, I see no basis for allocating any parental responsibility to their maternal grandmother.
Given that no equal shared parental responsibility order was made, no consideration had to be given to the children spending equal time or substantial and significant time with each of their parents. Indeed, given the factual scenario presented at the time of the re-opened proceedings, with the mother living in Country E and intending to stay there and the other proposed care providers being the father of the youngest child and the maternal grandmother for the eldest three children living in Australia, there could be no consideration of an equal time regime or a substantial and significant time regime.
What the Court was presented with by the time of the re-opened hearing was a stark choice between leaving the children here in Australia, either all living with their maternal grandmother and having very minimal contact with their mother and, in respect of the three eldest children also very minimal contact with their father, if any at all, or the youngest child living by herself with her father and having some contact with her three siblings and maternal grandmother and very little with her mother, or all of them living together with their mother in Country E and having little contact with their fathers and the maternal grandmother save for during the period of the Australian winter when they are on Summer school holidays in Country E.

The decision

Ultimately, consideration of the importance of the children’s relationships with their mother, who was the constant parent in their lives until she left for Country E, and with each other, as well as clear acknowledgement of the serious difficulties that have confronted their fathers in recent times that have highlighted that their fathers are really not capable of providing appropriately safe, stable and secure environments for their children on an ongoing basis made the determination of this matter a question of deciding between the children all living with their maternal grandmother in G Town or all living with their mother in City F.
Although the mother had her own difficulties in parenting the children appropriately in the years between giving birth to the first of them when she was only about 16 years old and when she left for Country E in late 2012, the responsibility for which cannot all be laid at the feet of her own mother, Mr Adams and Mr Clements, I consider that she has demonstrated over the last twenty months a real determination to improve her life, maintain her own well-being, including by way of a healthy, happy relationship with a partner and to have her four children live with her so that she can provide them with loving, appropriate parenting.
Ms Kellet deserves credit for responsibly taking on the role of carer for the four children as she has since the mother left for Country E and when the fathers proved incapable of discharging that role themselves. However, she clearly has the demanding care of her autistic adult daughter and her own young son to focus on in circumstances where, I am satisfied, she herself struggles to make ends meet financially and to hold all things together emotionally. She clearly loves her four grandchildren, cares for them dearly and will miss them badly when they go to live with their mother, but I am convinced that in the long-term, it is far more in the best interests of these children that they spend the balance of their childhood being parented by their mother. As imperfect as her parenting might be, it is with their mother that the children’s principal emotional attachments lie and I am satisfied that, with the committed help of Mr Jillet, the mother’s parenting of the children will be good enough to justify them living in her care.
Of course, the transition from tropical G Town to the Rocky Mountains of City F, Country E culture and the Country E education system will present challenges to the four children that will, no doubt, create some difficulties for the mother and Mr Jillet. Of course, introduction of the four children to Mr Jillet’s children will also create some difficulties for them all and will test the mother and Mr Jillet, their parenting skills and their relationship. However, I saw in the mother during the course of both parts of the hearing in this case, a steely determination to be a good parent to these four children, to provide for them, to raise them, to love them and to care for them as best she can. I observed in the mother, under a somewhat erratic exterior, a level of intelligence, capability and insight into her own personality flaws that promises significant gains in her emotional well-being as she continues to mature in a more stable environment.
She has been criticised for going to Country E in 2012 and leaving the four children behind. Indeed, for Mr Clements it was said that she “abandoned” the children, putting her own interests ahead of theirs. I do not find that there is nothing in such a submission, but I am now satisfied that the mother made a decision that she considered best for herself and, therefore, ultimately, best for her children and that she appropriately sought this Court’s fiat to take them and, importantly, did not give up on that process, remaining steadfastly committed to the belief that the children’s best interests were served by being with her in the place and circumstances where she had determined to try to improve her life.
I was concerned in 2012 that the mother would not facilitate and encourage the relationship between the child, H, and her father, Mr Clements. I readily observe that nothing much changes my concern about that. I am still troubled by it. But as I have already observed, H has now been able to develop a relationship with Mr Clements that she did not have in 2012 and there is, therefore, a stronger base upon which to optimistically hope that her relationship with him might survive in the future, particularly with commitment from Mr Clements to that. The fact that he has had responsibility for caring for H in the interim period may now have given Mr Clements greater reason to be committed to maintaining a meaningful relationship with H as she grows from here. He gave evidence of certainly earning sufficient income in recent times, namely around $200,000 before tax for the last financial year, to satisfy the Court that with suitable commitment and determination he could do a lot to maintain the relationship with H as she grows, even with her residing in Country E.
The subsistence of the relationship between the mother and Mr Jillet since their marriage, in the face of the destruction of Mr Adams’s and Mr Clements’ relationships with their partners, and the apparent commitment to each other that the mother and Mr Jillet continue to demonstrate, also gives cause for greater optimism about their future than I possessed in 2012.
I am optimistic that the mother and Mr Jillet can provide a loving, alcohol free, drug free and violence free home for the four children with appropriate behavioural boundaries in place and a commitment to the children getting the best they can from their lives and their education. I respectfully consider that the opportunities that present for the children in this environment offered to them by their mother and Mr Jillet have a potential to advance their interests to a greater extent than those that present by staying long-term in the home of their maternal grandmother, or, in the case of H, in Mr Clements’ long-term care. With respect to Ms Kellet and Mr Clements, I consider the mother more able, for the remainder of the childhood of all four of these children, to provide for the emotional and intellectual needs of each of them than the maternal grandmother, or Mr Clements in respect of H.
As part of her case for the children to be permitted to go and live with her in City F, the mother committed to facilitate the return of the four children to Australia every northern Summer school holiday period so that they could spend time with their maternal grandmother and aunts and uncles and, during that time, to spend time with their fathers through arrangements overseen by the maternal grandmother. Evidence was given about access to free military flights that could be accessed, but, as I made clear during the course of the re-hearing, I was not at all attracted to making orders that somehow utilised these flights. Ultimately, satisfied that the mother was demonstrating true commitment to the process of sending the children back to Australia for a significant period of time once each year and also satisfied that the cost of that should be met by her in all the circumstances, I made orders that included requirement for the children to be flown back to Australia by commercial airline flight each year so as to spend time with persons significant in their ongoing lives. I am satisfied with that happening each year, augmented by regular and consistent telephone and internet communication, the children’s relationships with their fathers and their maternal grandmother and other members of their extended families will be able to be maintained to their advantage as best that can be done in the difficult circumstances that present.
There could potentially be some financial strain caused by the payment for return flights for the children and an accompanying adult each year, as was submitted for Mr Clements, but the unchallenged evidence of the Jillets was that the amount of child support currently being paid by Mr Jillet to the mother of his three youngest children will substantially reduce with the mother’s four children coming into their household. Of course, the household expenses will commensurately increase with the arrival of the children, but the mother has demonstrated a determination and capacity to obtain paid employment and to increase the income she receives. Mr Jillet has a capacity to increase the hours that he works each day and thus to increase his income. He has shown inclination to take that extra work when necessary. I consider, despite the certainty that it will create financial strain on them, the obligation to pay for the children to fly to Australia and back each year is an appropriate one to impose upon the mother in all the circumstances and one that I expect she will rise to meet, knowing how important it is for her children to maintain a connection with Australia, its culture, their fathers, their grandmother, their Australian friends and other relatives.
The orders that I made have, I consider, suitable provision for the fathers to be provided with information about the children that it is in the children’s interests their fathers continue to be provided with. Of course, the extent to which each of the fathers takes up the opportunities provided by the orders will also be much dependent on their continued interest and commitment. However, provision for that has been made by way of obligation on the mother to provide the information to the fathers on a timely basis.
Although the maternal grandmother told the Court that she would not be able to accompany the four children on their first flight to City F because of her obligations to stay and care for her own two children, I made orders that I considered still gave her the chance to do so if she could see her way to making arrangements to do so. Of course, the cost of her return airfare would, in those circumstances be borne by the mother. I made the orders having determined that it would be in the children’s best interests if the maternal grandmother could accompany them to Country E given it was most unlikely that the mother was going to be in a position to come out to Australia and accompany them back in the immediate future due to the uncertain circumstances surrounding her Country E visa status. The orders provided that Mr Jillet would have to be the adult who came out and accompanied the children to Country E if the maternal grandmother still could not make herself available to do it and the mother could not do it. Of course, that outcome is not ideal, but I considered it the most suitable one if there was no other option.
I was also satisfied that in making these orders, permitting all four children to go to live with their mother in Country E, it was, in the circumstances, the outcome that was least likely to lead to the institution of further proceedings in relation to the children. I considered the proposal of keeping them in Australia, particularly H in her father’s care and the other three in their maternal grandmother’s care without orders for them to see their father, highly conducive to further conflict, particularly between the two fathers themselves and the two fathers and the grandmother, with such conflict likely to lead to further court proceedings and further disruption for the four children.
As well as ultimately providing for what I consider to be in the best interests of each of these four children in what is really a case where none of the available outcomes was ideal, the outcome that the Court arrived at is also, at least in my view, as consistent with the objects and principles underlying Part VII of the FLA as the circumstances of this difficult case could permit.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 1 August 2014.

Associate:

Date: 1 August 2014

[2014] FamCA 590

1 August 2014

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