Arundell & Skewes
[2024] FedCFamC1F 895
•20 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arundell & Skewes [2024] FedCFamC1F 895
File number(s): CAC 2028 of 2021 Judgment of: GILL J Date of judgment: 20 December 2024 Catchwords: FAMILY LAW – PARENTING – Section 65DAAA – Threshold issue of whether final parenting orders should be reconsidered – Where the applicant seeks the reconsideration of final parenting orders made by consent – Application of Radecki & Radecki [2024] FedCFamC1A 246 – Prima facie significant change in circumstances necessary for reconsideration – Section 65DAAA a manifestation of the best interests principle – Section 65DAAA may allow the reconsideration of only part of a suite of final orders – Change in circumstances evidenced in breakdown of mutuality and cooperation in coparenting relationship Legislation: Family Law Act 1975 (Cth) ss 60CC, 65DAAA Cases cited: North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595
Radecki & Radecki [2024] FedCFamC1A 246
Rice & Asplund (1979) FLC 90-725
Division: Division 1 First Instance Number of paragraphs: 94 Date of last submission/s: 20 December 2024 Date of hearing: 6 December 2024 Place: Canberra Solicitor for the Applicant: Balance Family Law Counsel for the Respondent: Ms Stoikovska, SC Solicitor for the Respondent: Forte Family Lawyers Counsel for the Independent Children's Lawyer: Ms Davis Solicitor for the Independent Children's Lawyer: Legal Aid ORDERS
CAC 2028 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ARUNDELL
Applicant
AND: MR SKEWES
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
20 DECEMBER 2024
THE COURT ORDERS THAT:
1.The final parenting orders of 1 October 2021 may be reconsidered by the court.
2.The proceedings are adjourned for further directions on a date to be fixed.
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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
This judgment involves the determination, as a threshold issue,[1] of whether, or to what degree, there should be a reconsideration of final parenting orders of 1 October 2021 concerning the parties’ child, X.
[1] Pursuant to orders of 11 November 2024.
The consent orders entered into by the parties provide for X to spend equal time with each of the parents, and, save for a final decision as to schooling, for the parties to equally share parental responsibility. They also provide for arrangements for X and the parties to live overseas.
The purported changes in circumstances identified by each of the parties relate to X’s international travel and international relocation.
The mother’s Amended Initiating Application filed 7 November 2024, pursues orders to retain X on the Airport Watchlist to prevent her international travel, and the father’s Response to an Initiating Application, filed 10 September 2024, seeks that X relocate to live in Country B with him, either with or without the mother.
While the fact of each party seeking changes to the final orders would seem to suggest that there is little issue about reconsideration, the parties differed as to the extent to which there should be such a reconsideration.
Material relied upon
The mother relied upon the following documents:
(a)Amended Initiating Application filed 7 November 2024
(b)Affidavit of the mother filed 27 June 2024
(c)Family Report of Ms C dated 26 July 2024
(d)Mother's written submissions filed 2 December 2024
The mother also referred to select paragraphs of the father’s affidavit filed 28 June 2024.
The father relied upon the following documents:
(a)Amended Response to Initiating Application filed 10 September 2024
(b)Affidavit of the father filed 27 November 2024
(c)Affidavit of Mr D filed 27 November 2024
(d)Family Report of Ms C dated 26 July 2024
(e)Father’s written submissions filed 2 December 2024
The father also referred to the mother’s affidavits filed 26 June 2023 and 27 June 2024.
The ICL did not rely on any additional material.
During the proceedings the father tendered emails between the father and the mother and a transcript of proceedings before a Judicial Registrar on 12 December 2023. The ICL tendered text messages between the parties.
Principles
The parties each pursue a reconsideration of the final parenting orders, although to different degrees.
The issue of reconsideration of final orders was previously governed by a line of authority flowing from the seminal case of Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”). Since its entry into force on 6 May 2024, the issue is governed by s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”) which is in the following terms:
65DAAA Reconsideration of final parenting orders
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
In the recent case of Radecki & Radecki [2024] FedCFamC1A 246 (“Radecki”) the Full Court explained the operation of s 65DAAA as the codification of what was referred to under the common law as the rule in Rice & Asplund.
That rule, often described as a manifestation of the best interests principle, recognised, as described by Austin and Williams JJ, that although parenting orders “are never unequivocally final”[2] that, to avoid the heavy burden and potential harm that is carried by parties and children in the rehearing of a matter, the prima facie demonstration of a material change in circumstances was required, but even where that was demonstrated, it was then necessary to determine whether, in all of the circumstances of the case it was in a child’s best interests to permit reconsideration.
[2] Radecki & Radecki [2024] FedCFamC1A 246 at [36] (“Radecki”)
In extracting those principles from the long line of authority that followed Rice & Asplund, Austin and Williams JJ, and in a separate judgment Carew J, identified that, following the enactment of s 65DAAA the obligation remains on a trial judge considering an application to reconsider final orders to firstly determine, on a prima facie basis, whether there has been a significant change of circumstances since the making of the orders.
The Full Court determined that, in the absence of a positive prima facie determination of significant change, s 65DAAA leaves no scope for reconsideration of final parenting orders.
As described by the High Court in North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 616 “prima facie” ordinarily means “[a]t first sight; on the face of it; as appears at first sight without investigation.” In particular, when the issue is dealt with as a threshold question, this involves, as Carew J helpfully described, the court taking the case of applicant “at its highest”.[3] In other words, the court is to consider whether, if the applicant's case was accepted, it would prove a significant change of circumstances.
[3] Radecki at [116].
One issue raised in this matter is the capacity of the court to engage in a partial reconsideration, said to be implied in the use by s 65DAAA of the expression “a final parenting order,” rather than a phrase that encompasses the total set of parenting orders in any given case. It was contended that this allows a court to reconsider a part only of the suite of final parenting orders that may govern a child’s living arrangements, as an alternative to considering the orders as a whole.
The expression of the singular is suggestive that a court is not restricted to an all or nothing approach to reconsideration. Such a reading also sits well with the test being directed to best interests, which may only warrant a small portion of a suite of orders to be reconsidered. It is also consistent with Carew J’s description in Radecki at [116] that:
The application of the rule since Rice and Asplund has certainly extended beyond the narrow confines of “reversal of custody” to include any substantial change to the final parenting order. However, the rule was not intended to prevent the reconsideration of minor changes to a final order. As explained by Warnick J in SPS and PLS (at [48(v)]), “[t]he application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order”.
Examples may be readily identified of when it may be in a child’s best interest to consider only a single order rather than the whole suite of orders due to the overall context and the nature of a change in circumstances. For example, where a court has determined that a child is at unacceptable risk of harm unless time with a parent is professionally supervised, the demise of a professional supervision service that has been nominated in the final orders may warrant a reconsideration limited to the suitability of an alternate supervision service. It may not provide justification for a wholesale revisiting of the overall suite of parenting orders.
In summary, three matters emerge as to the application of s 65DAAA:
(1)A necessary prerequisite to reconsideration is for the applicant to establish, on a prima facie basis, a significant change in circumstances. Without such there is no capacity to reconsider the final orders;
(2)The test for reconsideration under s 65DAAA is a manifestation of the best interests principle. It is the consideration of best interests in all the circumstances that determines whether reconsideration should be refused or permitted;
(3)A court may authorise the reconsideration of a part only of a suite of parenting orders.
The circumstances of this case
The father, who is from Australia, is a Country B citizen who also holds permanent residency in the United Kingdom, having moved there in 1996. He works in, and is a director of a family business, referred to as “[E Company]”, involved in the development of property in Australia and Country B.
This resulted in the father spending significant time in Australia in relation to a project in the leadup to 2014, after which the father returned, in a manner described by him as permanent, to Europe and established the Country B arm of E Company. He is the sole director of the Country B business and describes himself as having the sole legal responsibility for the Country B business.
The parties commenced their relationship in 2016, in the United Kingdom. The father was then travelling frequently between the United Kingdom and Country B. The mother, who is from Country G was temporarily in the United Kingdom. She works in the arts sector.
The parties travelled extensively in the early part of their relationship.
Their child, X, was born in the United Kingdom in 2018. Through 2019 the parties and X travelled extensively, living temporarily in various cities in Australia and Country B.
The father describes that the parties had, in about June 2019, discussed Country B as a viable option for where they may live with X in the future. The mother shortly thereafter started Country B language classes.
The parties and X travelled to Australia to visit the father’s family in late 2019, subsequently being caught in Australia during the COVD-19 pandemic. They separated, initially under the one roof in about March 2020.
The father describes discussions at this time as to where the parties should live in the short term during the pandemic, settling on City H. The mother now has permanent residency in Australia.
In May 2020 the mother, with the assistance of E Company, made arrangements for the shipping of some of her work to City J, on the basis that they would be moving there.
The mother moved into another apartment in late 2020. Although they shared the care of X the mother says that the father controlled the terms on which this was done. From late March 2021 the parties shared the care of X equally, the mother later moving into a house owned through a company associated with the father in Suburb K in mid-2021.
In March and April 2021 the parties discussed where they might live, discussing options for living in Europe, noting that they had registered X in a school in City J, that the father was contemplating living in the United Kingdom, and that there were benefits to living in Country B. In early 2021 the mother suggested that they keep X enrolled in City J “for preparedness sake,” the mother expressing that Country B seemed “like a fun place to live.”
On a number of occasions in 2021 the mother sent messages to the father expressing feelings of isolation in Australia, and of her work as being in Europe.
The parties attended mediation in August and September 2021, the legal expenses of both parties being met by the father. The settlement included a deed in relation to property (“the Deed”) that the mother describes terminated in the event that she commenced litigation (other than in particular circumstances).
Parenting orders that provided, amongst other things, for equal time, were made by consent on 1 October 2021. A copy of the orders is annexed to this judgment. The parties also entered into a Parental Care Agreement to be registered in Country B, a document that noted that the parties “are considering moving to [Country B] to live there.”
The father asserts reasons why he entered into the orders, and further that he would not have entered into them absent the mother’s agreement to move to City J. Despite the submissions made on his behalf asserting such an agreement, the material filed by the father did not demonstrate the striking of such an agreement. At most it demonstrated favourable consideration of Country B, and concrete steps to effect a move. The orders, and the evidence around such demonstrate no crystallised agreement.
Perhaps this is illustrated more forcefully in the father’s description of the Deed and his observation that the Deed made provision for the payment of the mother’s rent in Australia, or at a higher rate in the UK. Similarly, the Deed provides for the father to purchase a residence in a location agreed between the parties (not specified as Country B). The Deed provides for the mother to apply for a Country B visa, and also that if she was unsuccessful in relation to such, that they would live in the UK or such another place as may be agreed. These aspects of the Deed reflect no settled agreement to live in Country B.
Subsequent to the making of the parenting orders the parties altered the pattern of X’s time so that it is on a 5/2/2/5 pattern. They have also cooperated to either allow X to travel to Country B for a month with the father, or to stay longer in the mother’s care when the father has otherwise travelled.
In November 2021 the mother wrote to the father indicating that she would be happy to move to Country B, or to stay (in Australia) but that she leaned toward a move to Country B. Later that month the mother wrote to the father saying that a decision needed to be made and that she was “happy for [Country B] it makes the most sense.” However, further messages indicate the issue was still up for discussion, the father himself describing that he did not want to rush the decision, and that he still considered remaining in Australia to be an option. This is also indicative that, contrary to his submissions, there was no crystallised agreement to move to Country B.
The father describes that the parties exchanged lists of pros and cons and that he settled on a desire to move to City J (to be deferred until mid-2023) that he communicated to the mother on 28 November 2021.
The mother accepts that the father held, during their relationship, an aspiration to move to Country B. He has continued to pursue this post separation, enrolling X in a school in City J. The mother accepts that in the period 2022 – 2023 she indicated a positive position to relocation.[4]
[4] Mother’s written submissions filed 2 December 2024, paragraph 21.
In about mid-2022 the father travelled to Country B with X. During that trip the mother wrote to the father to say that they could stay there, and that she would pack her things and ship them, and then live in Country B with them. The father responded that the move would require time and logistics.
The father then reiterated to the mother in July 2022 that while it was his preference that they all live in Country B, the mother’s living arrangements were her choice. The mother responded that she was happy for the move.
The parties then took further steps in contemplation of the move. In October 2022 the mother’s lawyers wrote to the father’s lawyers inviting the father to a round table to discuss arrangements for the move, and noting the potential to vary the final orders to accommodate such.
In March 2023 the mother wrote to the father setting out expectations for the move to Country B, including as to what would be suitable accommodation, the need for a Country B residence permit and the need to undertake Country B language lessons.
In April 2023 the mother sent a proposed timetable for the move to Country B.
In early and mid-2023 the parties and X travelled to Europe, the parties looking at potential apartments in City J. The mother obtained a Country B tax ID. The parties and X then returned to City H.
In June the father wrote to the mother seeking that she provide a prompt response as to her position on a move to Country B, the consequences of her declining to being the need to plan for an alternative arrangement for both the parenting of X and the financial arrangements. On that day, in accordance with their usual arrangements, X transferred into the care of the father.
The next day the mother identified a property that she would like to live in, that was owned by E Company in City J.
On 21 June 2023 the father withheld X from the mother based on then held concerns as to X’s safety in the mother’s care. This continued for about 6 weeks. In those circumstances the mother commenced proceedings and made an ex parte application that X be placed on the Watchlist to prevent the father from removing her from Australia. The mother wrote to the school in City J that X was enrolled in, withdrawing her support for the enrolment.
Shortly prior to the return date for the ex parte Watchlist application the father proposed that the equal time arrangement be resumed.
The parties attended further mediation on 28 August 2023. On the morning of that mediation the father gave the mother notice to vacate the home that she was living in, as he would need to sell the property. The mother had a trip to the United Kingdom scheduled for her work, and was accordingly overseas for much of the notice period. The father paid the mother’s rent for another property in advance for a period of 12 months.
The mother describes the father threatening to move to Country B without X, and as a consequence the financial arrangements under the deed being brought to an end. The mother reports abusive behaviour by the father toward her, including describing her as “evil” in the presence of X.
On 20 September 2023 the father indicated to the Court that he was no longer pressing a relocation with X to Country B.
In late 2023 the mother travelled to the United Kingdom leaving X in the father’s care. She had asked to take X with her. The father did not consent. Inferentially X remained in the father’s care during this period.
On 12 December 2023 in proceedings before a Judicial Registrar, the father confirmed his intention to no longer pursue orders for relocation, however sought to clarify that was on the condition that he could undertake meaningful international travel:[5]
[MR SKEWES]: - - - with what needs to happen. I just note on 20 September there’s a notation in the orders, and they’re incomplete to what was represented for me by the lawyers. And in particular the notation says that the father no longer presses for a final order relocating the child to [Country B] on a basis.
THE REGISTRAR: Right.
[MR SKEWES]: The actual fact of the presentation at 20 September was on the condition that he could undertake meaningful international travel. And that wasn’t included in the notation, but it was presented in the – in its fullness at the 20 September hearing.
THE REGISTRAR: Sorry. Yes, they’re two different things about whether or not you want to relocate on a permanent basis or an – or if you just want to be able to travel there. The reason that notation was made is because it affects the jurisdiction of which division of the court this is in.
[MR SKEWES]: Okay.
THE REGISTRAR: So international travel on a holiday, for example, is very different than you intending to relocate on a final basis.
[MR SKEWES]: I understand. But just to give you a little bit of context, the – my affidavit, which is – you know, which was filed on 7 August and I’ve had no response to that, is a full, comprehensive affidavit. That presses for the relocation because that’s what we were intending to do. The only reason I would withdraw that application was if we could agree, which I’m hopeful we can because we’ve discussed informally on a number of occasions and I’ve prepared new detailed proposed parenting orders which I’m hopeful we can arrive at a – you know, have an arrangement that works for both of us. And if we don’t, the affidavit that I have on foot is the one that I will retain because I don’t have any new information to provide. I haven’t had a response to that. Nor have I had a response to the proposed new orders which have been with [Ms Arundell].
[5] Transcript 12 December 2023, p. 4 line 33 to p. 5 line 19.
The father now presses for a full reconsideration of the parenting orders, seeking orders to support a relocation to Country B with, in the event that the mother also moves, an equal time arrangement, but if she does not, then the father relocates with X to Country B, holds sole parental responsibility, with the mother spending four block periods with X in Country B and Australia.
In general terms, the father describes, as reasons for his proposed move to Country B, firstly a strong personal desire to live there, secondly benefits for X of further immersion in Country B culture, and thirdly, as to the need for him to be present in Country B for the sake of the E Company business projects. He says that these projects require his presence in Country B, and that the projects are prejudiced without him present to an extent that may undermine his income. He asserts various other benefits for X of living in Country B.
Significance of the changes sought by the parties
The mother seeks that X remain on the Watchlist permanently.
The current arrangements for X to travel are limited to the time that she spends with each of the parents, subject to agreement to the contrary. It may be observed that in the short to medium term the prospects of X travelling to Europe during the time that she is otherwise with a parent are limited, in that the longest period (absent consent) that she spends with a parent is one week until she reaches the age of twelve.
Despite this restrictive structure it may be supposed that the fact of travel for longer periods would (without the current impasse) be accommodated by agreement, as seen in a previous trip to Country B by the father with X.
The effects of that impasse on international travel can be seen in an example where the mother has unsuccessfully sought from the father permission for X to travel with her to Europe for a number of weeks.
The permanent restriction on travel would, in the context of the matters recited above, constitute a heavy impost upon the parties and X.
While the father’s primary position is a colocation of the parents in Country B (as contemplated by them as late as mid-2023), the changes that he seeks would permit international relocation without the agreement of the mother, being a position of significant difference from that contemplated by the parties on entry into the consent orders.
Change of circumstances
The ICL identified a possible change in circumstances arising from the prospect that the father may move to Country B without X, meaning that X is facing the prospect of being separated from one parent. Although the father has previously asserted that he would not do so in a previously filed affidavit and (after some prevarication) to the family report writer, the ICL identified the suggestion of such a possibility in the affidavit currently relied upon by the father at paragraph 201. The ICL was correct to identify some uncertainty as to the father’s position, a position that remained uncorrected by the father.
Given the oblique manner in which the father approached this issue, in the absence of the father himself clearly identifying his relocation without X as a possibility, or as a potential change in circumstances, the significant likelihood of such should be discounted as a relevant change in circumstances.
The change identified by the mother is of a risk that should the father remove X to Country B he may not return her, a risk that she says may be deduced from the withholding of X in July and August 2023 when viewed in combination with the steps that the father has taken to support the move to Country B and his desire to live in Country B with X.
The change identified by the father is firstly the mother’s resiling from “the parties’ long held agreement to move to [Country B]”.[6] Secondly, the father relies upon what he terms as the “breakdown the co-parenting relationship,” which he further describes as seen in an incapacity to reach agreement that was not present at the time of the entry into the orders. He cites as specific examples the dispute about whether X will live in City H or City J, where X should attend school, whether X should be able to travel overseas with a parent, and as to the mother’s assertion that the Deed is voided. This last aspect was not the subject of any real explanation. Thirdly the father relied upon what he describes as the impracticability of the current orders and their impact on his financial circumstances. He describes that the need for both parties to travel overseas renders the orders for shared time “not workable” absent agreement as to where the parties and X will live.
[6] Father’s written submissions filed 2 December 2024, paragraph 53.
Discussion
As identified above, this application is governed by s 65DAAA of the Act. This requires the party seeking reconsideration to demonstrate, on a prima facie basis, significant change in the circumstances, and secondly that it is in X’s best interests to permit reconsideration.
In considering these issues it should be recognised that the primary position of both of the parties is that, as now, they should equally care for X.
The mother, however, contends that there is now a risk of overseas retention of X by the father. This was not a position that subsisted at the time of the entry into the consent orders. It is a risk founded on a number of uncontroversial facts, being the father’s ongoing desire to relocate to Country B (current at the time of the entry into the orders), the steps taken to facilitate the move (post dating the orders) and the retention of X for an extended period in 2023.
Those factual matters form a prima facie case of risk of retention. It should be noted that the demonstration of a prima facie case does not equate to an ultimate determination that there is such a risk, but rather is the product of the acceptance of the case put by the mother at its highest, drawing from the evidence those inferences that favour the mother.
Given the history recited above this forms a marked departure from the circumstances either prior to, at the time of, or for a period of two years following the entry into the consent orders.
If, as contended by the mother, and established on a prima facie basis, the father cannot be trusted in such a manner, such would form a dramatic change that would require reopening of the proceedings. On the mother’s case that should be a reopening on the discrete issue of international travel.
However, given the above history, and in particular of the circumstances persisting at the time of the entry into the orders, it is difficult to conceive of this as a discrete issue. What persisted at the time of the entering into orders was a mutuality in relation to international travel, and even residence, far removed from a position where, at present, X may not leave the country. Whether this is conceived of as a lack of mutuality, or a lack of trust, or now a lack of trustworthiness, it is as to a matter that was fundamental to the manner in which the parties resolved the parenting arrangements by consent.
Although the father contends that the parties had reached a settled agreement to move to Country B at the time of their entry into the consent terms, this contention is not supported by the evidence, even taken at its highest. Country B was certainly a favoured option, but it was not then the subject of agreement. Accordingly, no such agreement was reflected in the orders and a change of circumstances is not made out on the basis of a purported reneging of a settled agreement to move to Country B at the time of the entry into the orders.
Rather, the change in circumstances is seen in the sharp breakdown of the mutuality and cooperation that marked the coparenting relationship at the time of the entry into the orders. This has manifested in a number of respects additional to the mother’s concerns about retention overseas.
Firstly, it is seen in the father’s withholding of X by the father.
Secondly, it is seen in the loss of the cooperative approach to which country the parties will both live in that was fundamental to their entry into the consent terms. The orders contemplated that this was a matter that would be resolved by a process of joint decision making, which reflected the then underlying relationship between the parties, and was reliant upon it. The ongoing conduct of the parties reflected this until the point of retention of X.
The orders agreed to by the parties gave only limited contemplation to a lack of mutuality, as seen in order 4, which is in the following terms:
That neither parent relocate the Child’s residence outside the [City H] metropolitan area other than by prior written agreement or further order of the court
Whilst it may be observed that this creates a default of remaining in City H in the absence of agreement, it also contemplates that the absence of agreement will then require resolution by a court.
In the light of the prima facie demonstration of these changes in circumstances, it is necessary to consider whether, in all of the circumstances, it is in X’s best interests to permit the orders to be reconsidered, and if so, to what extent.
Those best interests require the consideration of any relevant matter including an examination of the s 60CC considerations and the matters identified at s 65DAAA(2).
Of the matters contained at s 65DAAA(2), it is paragraphs (c) and (d) that appear to bear the greatest weight.
In respect of s 65DAAA(2)(c), if there is a reconsideration of the whole, there are prospects that the orders sought by the father may be made. In this threshold consideration, it is premature to apply to his application the description given in his written submissions that his case is “compelling and persuasive.” In the absence of a full suite of concluded factual findings, and prior to the presentation of the whole of the evidence and circumstances related to the substantive parenting case, what can be observed is that the orders sought by the father may be consistent with X’s best interests. However, it may also be the case that orders that do not provide for X’s international relocation may be in her best interests.
Similarly, should the mother establish sufficient risk drawn from the matters that she has identified, there are prospects for final orders restricting X’s international travel.
In relation to s 65DAAA(2)(d), the resolution of these issues is of benefit to X. The history of the parties prior to entry into the orders, and their interactions after the entry into the orders, that appeared to eventually culminate in an agreement that they would move to Country B, are indicative of both the importance of such to them, but also of their regard of the importance of such for X. Whether this is because of her Country B heritage, or her ability to be involved in the mother’s work community and connections or otherwise, the potential for raising X in Country B or the United Kingdom was, as identified by the circumstances, a matter they considered of benefit to X.
In terms of the s 60CC considerations, the resolution of these matters will impact on how X’s best interests are served in respect of her developmental, psychological , emotional and cultural needs, and also in consideration of the benefits of having a relationship with each of her parents and other persons of significance, in the different contexts proposed by them.
In terms of parental capacity, while each parent has raised some concerns about the other, in a context where they each seek a shared care arrangement it is difficult to conceive of such as being a major consideration to be resolved to benefit X.
While the mother raises an issue as to her capacity being impacted by the reconsideration itself given a power imbalance with the father by virtue of the operation of the Deed, at present, and in the absence of the tender of the Deed, I am unable to form any firm view as to such.
It may however be considered that there will be a heavy burden placed upon each of the parties by the further litigation, and that such burden will be carried by each as they engage in parenting X. This burden may be heavier for the mother by virtue of an imbalance, economic or otherwise.
However, the ability of the parties to approach the matter with mutuality has been significantly compromised following the father’s retention of X. Their inability to mutually resolve (as previously expected by them) the important issue of where X will live, or who with, or how or when or where she may travel and spend time with a parent, is a matter of sufficient importance to warrant the reconsideration of the proceedings as a whole.
Conclusion
Orders will be made to permit the reconsideration of the final parenting orders entered into on 1 October 2021.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 20 December 2024
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