ASQUITH & GARNER

[2020] FamCA 475

FAMILY COURT OF AUSTRALIA

ASQUITH & GARNER [2020] FamCA 475

FAMILY LAW – CHILDREN – where the mother seeks to relocate with the children to Europe – where the father contests the application for international relocation – orders made for the children to live with the mother

Family Law Act 1975 (Cth), ss.60B, 60CC
APPLICANT:	Ms Asquith

RESPONDENT: Mr Garner

FILE NUMBER: BRC 11166 of 2019

DATE DELIVERED: 12 June 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 20 & 21 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms C Dart

SOLICITOR FOR THE APPLICANT: Legal Aid Queensland

COUNSEL FOR THE RESPONDENT: Mr R Cameron

SOLICITOR FOR THE RESPONDENT: McNamara Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr B Dodd

INDEPENDENT CHILDREN’S LAWYER: Ms E Fairon, Life Law Solutions

Orders

1. That by 4.00pm on 15 June 2020 the Independent Children’s Lawyer shall circulate to the parties a minute of interim orders which she contends are in line with the Reasons for Judgment delivered 12 June 2020.

2. That if the parties are unable to agree by 4.00pm on 16 June 2020 on the terms of the final order, then the proceedings will be adjourned to 9.30am on 17 June 2020 in the Family Court of Australia at Brisbane, for pronouncement of final orders.

3. That the parties have leave to appear by telephone on 17 June 2020 by using the “AAPT GlobalMeet” telephone conferencing system as follows:

   (a)They shall each telephone [phone] (within Australia only) (toll free) by 9.25am on 17 June 2020;

   (b)They shall each then enter the pass code 220 114 0377 (followed by #); and

   (c)Hold the line until the Court is ready to connect and proceed with the matter.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11166 of 2019

Ms Asquith

Applicant

And

Mr Garner

Respondent

REASONS FOR JUDGMENT

Introduction

1. The aim of the Court in making orders in parenting cases should always be to seek to make an order which provides for the optimal benefit to the children, within the paradigm of what is in their best interests.  Sometimes cases come before the Court where the options are such that the optimal benefit for the children cannot be achieved.  This is such a case.  As the circumstances reveal, it has been a finely balanced decision and the need for a decision quickly is also apparent from these Reasons.  I acknowledge the support in achieving a quick result from the Counsel and solicitors retained by the parties, including the Independent Children’s Lawyer (“ICL”).

2. As again, the Reasons make clear, the mother has suffered some significant challenges since returning to Australia.

Competing proposals

1. At the onset of this case I indicated to counsel, Ms Dart appearing for the mother, Mr Cameron appearing for the father and Mr Dodd appearing for the ICL, that really I did not regard this as a relocation case, but rather, now a contested residence case.  Within that dimension, the Applicant mother’s position was simply that the children be entitled to return with her to Malta and that they spend time with the father in Australia during the long period of their holidays, which is in the northern summer, and that further opportunities for the father to spend time with the children, should he come to Malta, be made available.

2. The parties all agree that extensive time by electronic means, such as Skype, Vibe or other platforms, was appropriate.  The father’s position is that the children, who currently reside in Australia, should remain in Australia living with him and his partner, Ms B, and that, as the mother will be returning to Malta, the children spend a significant part of their school holidays in Australia in Malta and that similarly, the mother have the opportunity, if she is in Australia, to spend time with the children.

3. The ICL had, in the case outline filed at the commencement of the proceedings, reserved her right, subject to the evidence, of proposing a minute of order.  By the time of final submissions, the minute of order had been perfected and, subject to other comments made in the Reasons as to the form of orders, was marked as Exhibit 6 and is Appendix One to these Reasons.  As to the critical issue, the ICL supports the children, X born in 2012 (now aged eight years) and Y born in 2014 (currently aged five and a half years), returning to live with mother in Malta.

Principles

1. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (‘the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

2. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

3. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

4. What should be understood however is that the context for this decision changed during the course of the matter.  The proceedings were commenced by the mother, initially for interim orders but always seeking relocation back to Malta, those proceedings having been commenced in this Court on 17 September 2019.  At that time there was an uncertainty as to the ongoing capacity for the children to remain in Australia and for the mother to remain in Australia.

5. The parties provided for the trial evidence by expert migration lawyers (Ms D for the father and Mr J for the mother), but ultimately their evidence was not required to be tested as they were able to reach agreement as to the current status and ability for the mother to remain in Australia.  The emails marked as Exhibit 1 reflect in short that the mother’s current status to remain in Australia on a tourist visa, which expires on 4 July 2020, is not able to be renewed for any length of time whilst in Australia.  She may have options to seek other visas offshore but as the evidence turned out, they are not real practical options, even if the mother chose to live in Australia.  She does not wish to live in Australia and wishes to return to the country of her birth, Malta.

6. The status of the children is also clear now.  They became Australian citizens on 1 April 2020.  They, like the father, will have, at least for the time being, dual citizenship, having been born in Malta and being entitled to citizenship in that country as well.  Before turning to a contextual history, it is also appropriate to acknowledge that during the preparation of these Reasons, there was some uncertainty about when, in a practical sense, the mother might be able to leave Australia anyway.  That has now been clarified.  Because of the Covid-19 restrictions, both in this country and possibly (although no evidence was offered to the Court) in Malta, the mother needs to wait for a flight that may be able to take her back to Malta.

7. Certain repatriation flights have been arranged by various governments for various countries.  It seems possible that the mother may not have a significant amount of notice if a flight becomes available.  However, as already indicated, it is on current evidence, likely the mother will need to leave on or before 4 July 2020.  The evidence is that the mother could remain in Australia for a temporary time if she is granted a temporary activities visa.  However, she would want her children to be back in Malta, if her application is successful, so that they can begin the next school year in Malta, which commences, it seems clearly on the evidence, on 3 September 2020.

Contextual history

1. Statements of fact which follow should be construed as findings of fact.

2. It was of some assistance to the Court that Counsel for the ICL provided a document titled “Uncontroversial facts”, to which neither Counsel raised serious objection.  In a case where it is possible to make many events controversial, I accept that the statements in the document, which now forms part of these Reasons and is adopted by the Court as accurate (see Appendix Two).  To give some further context however and to make some findings about some aspects of this matter, I make the following findings.

3. When the parties arrived in Australia in September 2015 as a family, they applied for temporary visas.  As I say, the father is a dual citizen and can remain in Australia.  The mother at that stage was part of the family unit; seemed supportive of the temporary visas but says, and I accept, she always had and held some disquiet about living permanently in Australia.  Initially when they came to Australia in June 2013, it was for a three month holiday, accompanied only by one child (X) who was a baby at the time, with a view to seeing whether they saw Australia as a place they would like to live and bring up their family.

4. It seems clear that after the mother returned to Malta with both children in April 2016, the seeds of her discontentment were such that she formed a view shortly thereafter that she would like to remain living in Malta.  I say that because the history reveals that when she left Australia on 1 December 2016 with the children (that being some weeks after she had then returned to Australia from the trip to Malta, which began in April 2016) she did so without any notice to the father and the first he knew of the situation was that he got an email that the mother was in transit to Malta in L City.  For this father, who was then and remains a passionate father who cares deeply for his children, it was an enormous shock.

5. It is clear that the mother sought orders almost immediately in family courts in Malta to, I infer, protect her right of a continued residence in Malta, if bought into contest by the father.  It is not necessary to explore those proceedings in any depth other than to note that the father says he incurred legal costs of over $50,000 in legal proceedings in Malta; that he sought his mother to act as his agent in Malta and that through that agency (which was ultimately, it seems, rejected by the Courts in Malta) the paternal grandmother made some comments, which were regarded as unfounded criticisms of the mother.  That statement is acknowledged in the reasons of the Court delivering reasons in the Hague application.

6. The father, through the Central Agency in Malta commenced Hague proceedings in September 2017.  He was criticised for not bringing those proceedings earlier.  I do not regard that criticism as justified.  He says, and I accept, that he was not fully aware of his rights under the Hague Convention.  Be that as it may, the father was also criticised, whilst the children remained in Malta and whilst legal proceedings in that country were being considered, for not travelling to Malta to see his children.  On the evidence, I am not satisfied his failure to do so was entirely financial.  He had, as he acknowledged during cross-examination, the capacity to purchase a home for himself and his new partner, Ms B, who he began a relationship with in 2017.

7. He says, both to this Court under cross-examination and to the family report writer, that the advice he received from Malta lawyers was that it would compromise his application for the children to return to Australia under the Hague Convention, if he visited them there.  I am prepared to accept the evidence of the father.  However, it is in my view sad that as a result of what seems to be a legal tactic manoeuvre, these children had no physical time with their father between 1 December 2016 and on or about 9 July 2019 – a period of 31 months.

8. As the uncontroversial facts statement sets out, the Malta Family Court ordered, under the Hague Convention, that the mother return to Australia with the children.  As she was entitled to do, the mother exercised her appeal rights, which ultimately resulted in the appeal being dismissed on or about 28 June and orders made that the mother return to Australia with the children.  She did so on 6 July 2019 and thereafter on or about 9 July 2019, the children saw their father.

9. The father was criticised for the manner in which he failed to facilitate time between the children and the mother between the period from 9 July 2019, where I find he did, contrary to the mother’s wishes, retained the children when a visit had been arranged.  Time with the mother recommenced as a result of interim orders made by this Court on 2 October 2019, and after the mother had commenced proceedings in this Court.  The father, I find, held the children because he was seeking, perhaps without legal advice, to negotiate an arrangement whereby, the children now having returned to Australia, could live in an equal shared arrangement with the mother.  I have no doubt, considering the history of care that these children had with the mother exclusively, at least from 1 December 2016, that distress was caused to the children, even though the father and his partner say that was not the case.  Nonetheless, the father had a three month opportunity for him to get to know his children better and for the children to get to know him.  This was, in my view, particularly important for the little girl, Y, who was but two years of age when she left for Malta in December 2016.  X, who is approximately four years older, had a better understanding of who his father was.  It seems, after initial difficulties, the children warmed to the father quickly.  No doubt seeing her brother in this way become comfortable in the care of the father, assisted Y.

10. The Orders that the Court made on an interim basis pending the trial, which provided the father ultimately with three out of four weekends of care and some other additional time but that primarily the children remain with the mother and went to a local school, have been complied with.  I make this observation however.  These parents have been in the focus of Court proceedings now for nearly three and a half years.  Every one of their actions has been scrutinised and been the subject of, at times unfair criticism, but at other times, reflects the pressures they have both been under.  I make some allowances accordingly.

11. It has been a most artificial and unfortunate environment in which these children have had to navigate.  In my view, particularly for the mother, when she returned in July 2019 by reason of the Hague orders, she has lived with family of the father who have kindly offered her a home and some support; she has not been able to work and therefore has been reliant upon spouse maintenance and child support; her English, whilst good, is not as good as the father’s and she has had limits to her capacity to use transport and engage in the community.  It has been a highly pressurised environment for this mother, who is only 29 years of age, to be happy in.

12. Before turning to a consideration of the primary additional considerations as mandated by the Act, I wish to acknowledge that I have had the benefit, albeit via Microsoft Teams, of seeing the mother and father give their evidence. They are in many ways young parents. However, they impress me as parents who are essentially decent, law abiding and keen to be the most effective and passionate parents they can of these two delightful children. Thankfully, their parenting capacity is not compromised by mental illness, drug use or alcohol abuse.

13. As already noted, the tensions of ongoing proceedings and the uncertainty for them about the outcome of this trial has been a pressure that they have carried with them in one way or another for nearly three and a half years now, both in the Malta proceedings and these proceedings.  The parties’ relationship clearly came to an end, probably prior to December 2016 and, as a result of the proceedings and because of the evidence, they felt it necessary to give evidence that was often of a negative character about the other parent.  In my view this shaped the way they presented to the Court about their views of the other parent.  I would not be too overly critical of the way that they have expressed their views of the other parent.  However, I will return to this subject shortly.  In short, I found the mother and the father honest witnesses and credible, though they gave a perception of the history at times through the prism through which they view the matters.

14. I now propose to deal with the competing proposals within the matrix of the relevant primary and additional considerations.

Primary considerations

1. It is acknowledged by both parents that the children will benefit from having a meaningful relationship with the other parent and themselves.  Many authorities have identified that meaningful is not always optimally achieved.  Clearly the fact that these parents will be living at least 24 hours’ international travel away from each other and many thousands of kilometres, does not allow, as earlier indicated, optimal outcomes.  However I am satisfied that both children will benefit from a meaningful relationship with each parent.

2. The Court is required to consider the need to protect the children from physical or psychological harm, and from being subjected to or exposed to abuse, neglect or family violence.

3. In my view, in the final analysis, I am not satisfied that the children will in the future care of either parent be the subject of physical or psychological harm or be exposed to neglect or family violence.  Certainly these parents are different and parent differently.  However, their range of attitudes and values of parenting are not dissimilar.

4. It is a part of the case advanced by the father that I would make a finding (in fact a critical and strong finding) that the mother is likely to expose the children to psychological harm if they live with her in Malta by undermining, reducing the importance of or generally being dismissive of the children’s relationship with their father.  It is a finding that Mr Cameron on behalf of the father vigorously asserted, relying upon the mother’s conduct in removing the children from Australia unilaterally (which she now accepts and I acknowledge was wrong and should not have occurred in the way it did), together with the statements by the mother in evidence, which he says should not be believed and in particular, the evidence of the maternal grandmother who is highly negative of the father.  He says the children will not be shielded from these adverse views of the father by the mother and her family and that without the regular physical engagement that will be possible between the children and the father, then the psychological harm is more likely to occur and could in time severely damage, if not sever, the relationship between the children and their father.

5. The ICL, supported by the mother’s Counsel, disputes that such a finding is open on the evidence.  I agree.  I accept that any parent, often called the “parent who remains” parent in relocation cases, has a fear that, in the absence of the regular time and monitoring of relationships that occur when parties live closer, the relationship they have with their children will diminish.  There is no way of dismissing, other than acknowledging, that the relationship when a parent lives such a long way away from where their children live, is different.  However, I do not accept the submission of Counsel for the father that the mother’s evidence should be disbelieved.  My view is that one of the very positive benefits of the children being returned to Australia by the Hague Court in Malta is that it gave both children a chance to repair and to be nurtured in the care of their father and to build a relationship which I am prepared to speculate was not anywhere near as strong when they left on 1 December 2016.  The lack of physical time with the father, notwithstanding regular time by electronic means between 1 December 2016 and July 2019, clearly was not in the children’s best interests.

1. The parties made statements that were hurtful about the other parent and sometimes members of the mother’s family did so.  However, I accept that the mother has had the opportunity now to reflect on the positive demeanour the children bring to the relationship with their father; the way that they have enjoyed (and not rejected or in any way sought not to attend) contact visits and that she should be believed when she says that her view of the father’s parenting and his relationship with the children is different from that as existed in December 2016.  I also accept that the children’s experiences with their father are such that they are more likely to resist attempts by the mother or the maternal grandmother to denigrate or make derogatory remarks about the father and his household.  I cannot say that they may not be said.  Of course, they should not be.  However, I have formed the view on all the evidence that the mother does genuinely support the father’s relationship with the children.

2. The father may say, of course, that if she was so genuine, why would she remove them to Malta?  However, that is too simple an answer to that difficult problem.  Although the mother at some stages had raised issues about the father’s use of drugs and alcohol, there is no evidence that they are issues now, if they were ever issues.

3. There had been tensions in the relationship as an intact couple that could, if proved, fall within the category of family violence under Australian legislation but there was no exploration of those issues to any extent during the hearing before me.  I accept at times the parties had said orally and in written communications hurtful things about the other parent.  These parents must learn to communicate better.  For the reasons I have indicated, I do not regard the children as being in need of protection from either of these parents.

Additional considerations

1. The Court is required to consider the views expressed by the children.  These are recorded independently by Mr E in his family report (at paragraphs 105 to 123 (Y) and paragraphs 124 to 139 (X)).  It should be noted that the family report was prepared by Mr E, a highly qualified social worker, via a consultation and interview which took place on 25 March 2020.  His observations, which I accept, of warm and positive relationships between the children and both parents should be accepted.  It is clear, it seems to me, that X is aware of the dispute between his parents.  On balance, it seems more likely than not that he has heard discussions in both households about the dispute about where the children should live.  In any event, he would be aware that his movement back from Malta to Australia in July 2019 was quick and, I accept, not supported by the mother or her family.  The age of the children and the circumstances about their care arrangements over the last few years is such that caution must be applied to any express wishes.  They certainly are not determinative, but I have taken their views and feelings into consideration.

2. In terms of the nature of the relationship between the children, the history of care reflects, as Mr E opines and I accept, that the children’s primary attachment is with their mother.  However, certainly by the time of the hearing before me, the relationship the children have with their father is warm, happy and secure.  I am prepared to accept that they have a good relationship now with the father’s partner, Ms B, who is also Maltese by birth.  Ms B gave evidence to the Court and impressed as an honest witness supportive of the father but also interested in the welfare of the children.  I am prepared to accept that the children’s connections with extended family, particularly in Malta, is important to them and they derive benefit from it, but clearly the most important relationships for these children are their mother and father.  Wherever these children live there will be a strain not currently existing because of the frequency of time on the relationship between the children and the parent who does not live in the country in which they reside.

3. Since the parties have returned to Australia, I accept that they have both participated as much as they can in major decisions.  They have spent time and communicated with the children via the Orders of the Court.  They have participated in events such as hospitalisation and treatment for the children, particularly Y with her broken arm and her asthma.  Although there is some cross-examination in relation to the father’s payment of child support, with production of certain bank records and other documents Ms Dart, on behalf of the mother, did not press that I make a finding that the father has failed to fulfil his obligations to maintain the children whilst they have been in Australia.  It is more difficult to consider what the position was in Malta, especially when the father was not seeing the children.  There are current interim spousal maintenance orders in existence which will continue until the mother returns to Malta, as she is obliged to do.

4. I will deal with, in the conclusions of this Judgment, the highly relevant considerations set out in section 66CC(3)(d) of the Act which provides for the court to consider:

   “the likely effect of any changes in the child's circumstances, including the likely effect on the childof any separation from:

   (i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.”

1. I indicated during final submissions and discussions with Counsel that I regarded section 60CC(3)(e) as having some significant relevance in this case.  That provision provides the court to consider “the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis”.  The context for consideration of that factor is that it is clear that the father will remain living in Australia and the mother will be living in Malta.  However, in my view, it is a relevant finding to make that the father has the capacity to visit; remain; be accommodated and have access to transport and possibly financial support in Malta if he chooses to visit (noting he has no desire to return to live there).  This is easier for him to achieve because he is both a Maltese citizen and has extensive family members residing permanently in that country.

2. By comparison, the mother will need visas to come to Australia (probably for short terms under tourist visa conditions); would rely upon, it seems at this stage, the uncle and aunt of the father with whom she has been staying if she wished to stay close to the father in the Brisbane area to see the children if they lived here; has no other family support in Australia other than distant cousins interstate; has not, as was reflected in the recent period since July 2019, any certainty of accommodation (although one might hope the father’s uncle may again support the mother) and has no certain personal transport options – relying on the father or public transport.

3. There is, in my view, a significant difference in the practical realities associated with a parent spending time with the children in a country where they do not live.  This is an important factor because, it seems to me, the prospect of the father, if the children live in Malta, making more regular visits in Malta and therefore obviating the concerns associated with visits being separated by many months or only yearly are less likely to occur if the children live in Malta than if they live in Australia.

4. In respect of the need to consider the capacity and attitude to parenting, as I have already indicated, and as Mr E opines, although these parents are different and parent differently, they dearly love their children and there is nothing to suggest that they do not have the capacity to meet their physical and emotional needs as well as their educational needs.  The parties agree the children be raised in the Roman Catholic faith.  The parties seem to me, on the evidence, to acknowledge the importance of extended family.  This was tellingly, in my view, evidenced by, notwithstanding the proceedings being undertaken in Malta, the mother facilitating time between the children and the father’s family in Malta even when the father chose not to enter Malta.

5. Because the children are of Maltese birth, the need to allow them to develop their cultural understanding of Malta is important.  Because both parents are Maltese, this is not seen to be an issue.  Certainly, if the children live in Malta, they will more naturally, of course, follow the traditions including regular ceremonies and other events important to the Maltese community.  The father acknowledges that although he recognised the importance of these things, he does not have the same opportunity in Brisbane to develop this with members of the Maltese community which apparently is more formally established in Sydney and not so much in Brisbane.

6. Although there had been issues in relation to conflict between the parties which would constitute family violence, there are no current family violence orders in this country and, in my view, whilst the parties do have difficulties communicating, there is little prospect of family violence occurring in the presence of the children either between the mother and father or, in my view, between the father and his partner, Ms B.

7. I should mention at this point that the father raised objection to what he believed was a male person in Malta who was in a relationship with the mother.  There is scant evidence about this person, however under cross-examination the mother acknowledged that any relationship she had with Mr M had come to an end and in final submissions her Counsel agreed that the mother would not oppose an order being made that she not bring the children into contact with Mr M.  In making that order, this is not to suggest that I have made a finding that Mr M is in some way an inappropriate person to spend time with the children, but rather it was a point of contention between the parents and the mother’s concession in the circumstances was helpful.  The mother has facilitated, whilst the children are in Australia from time to time, some form of telecommunication with the 10-year-old daughter of Mr M.  I see nothing wrong with that.

8. In this case, the nature of the order will bring the proceedings in this country to an end.  One of the issues that was the subject of evidence is the enforceability in Malta of any orders made by this Court in Australia if the mother and the children return to that country.  I am satisfied, on the evidence of the Maltese lawyer, Ms N, contained in her Affidavit relied upon by the mother and in the further answers to questions posed to her which form Exhibit 2, that there are processes in Malta that allow orders for time to be acknowledged or otherwise registered and enforced if required, in that country.

9. There is, of course, as there is in this country, the prospect that orders made at this stage could, if there are changed circumstances, be altered in the future.  At least, again, although it be but a small point, if the father wished to pursue proceedings in Malta, that would be much more achievable for him with his family, his connection with that community through his birth and his capacity to speak the Maltese language than it would be for the mother if she had to engage in proceedings again here in Australia.

10. One of the other orders, however, that was being sought, and it was raised by the Court, that could, in my view, lead to less institution of further proceedings is the way in which airfares for the children (who both parties say ought be accompanied unless otherwise agreed until the child Y is 10 years of age in 2024) are secured in Australia.  I refer to the funds to be used for the expenses of travel later in these Reasons.  The importance of such a fund, in my view, and one it seems now adopted by the parties, is that if the children were to return to Malta and the mother’s very modest financial circumstances might prevent her contributing to travel costs.  As set out in her Affidavit, the mother would have approximately €100 a week available to her (this is equivalent to approximately AU$160) after the expenses of living (excluding rent) are taken out.  Such a payment, considering all the contingencies of young children, would be insufficient for the mother to be able to confidently afford airfares.  In this respect I heard evidence from the mother’s grandfather in Malta.  He was an impressive witness who clearly loves his granddaughter.  I accept his evidence that he would, as required, provide the mother with financial support as well as rent free accommodation.

11. To that end, and quite appropriately, Mr Cameron of Counsel for the father cross-examined both the mother and the maternal grandfather of the mother about their willingness and capacity to support either a fund in Australia or airfares particularly.  Both said they could.  Creation of the fund with its establishment prior to the mother departing Australia will be the most obvious and demonstrated way of ensuring that, at least for the next few years, the funds are available for the children’s travel for at least the yearly trip that both parties agree is important, as does the Court.

12. In considering the matrix of the primary and additional considerations, it is clear, as Mr E opined in his family report at paragraphs 165, 166, 168 and 169, there are advantages and disadvantages of the children living in Malta and living in Australia.  It is the examination of those advantages and disadvantages (in many ways an application of the consideration of section 60CC(3)(d)) to which I will turn now.

Advantages and disadvantages of both proposals

1. I agree that Mr E properly considered at paragraphs 165 and 166 at the time he prepared the report the advantages for the children living in Malta with the mother and the disadvantages for the children living in Malta with the mother.  Paragraphs 165 and 166 read as follows:

   “165.There are advantages for the children living in Malta with the mother which include:

   a.They have spent a large proportion of their lives living there and it is consistent with their longer term structural history.

   b.The mother appears to have better social integration there with housing, access to employment, permanent residency and family support.

   c. The children may end up in a situation where both parents have a reasonable level of social integration support overall, with the mother based in Malta and the father based in Australia, which in turn allows each parent to offer stable support to the children, albeit in a more limited form by the father.

   166.I also identify disadvantages for the children living in Malta, which include:

   a.It causes a loss of connection between the children and the father.

   b.It limits the opportunity for the children to know and understand the father as a broad ranging, holistic caregiver to them.

   c.If the Court holds concerns about the mother’s ability to facilitate the children’s relationship with father from a distance, it compromises the extent to which the children may maintain a connection of substance with him.”

2. At the time the report was prepared, of course, Mr E was not aware that the mother’s capacity to remain in Australia is such that she will, effectively, have to leave Australia.  I have made some findings in respect to the issues raised by Mr E at paragraph 166(c), namely I have no significant concerns that the mother will facilitate a relationship with the father from a distance.  In that regard, I do acknowledge that she may be under pressure from time to time from her extended family but my impression is that she is a committed mother who would not do something which would, now the children have been through so much uncertainty, cause them further distress.  In any event, if she chose to do so, even with X who is described by Mr E as a child likely to “go with the flow” rather than to stand up to something he did not like, there is every prospect that in time as he gets older and has a need to spend time with his main male role model, his father, that he could become difficult to manage if she sought to limit the relationship he has with his father more than the distance will itself create.

3. At paragraphs 168 and 169 of the family report, which I incorporate below, the family report writer, Mr E, identified the advantages and disadvantages of the children living in Australia:

   “168.There are advantages for the children living in Australia which include:

   a.It creates more scope for the children to develop and maintain a relationship of substance with the father, where he can provide hands-on care to them regularly and frequently.

   b.The father enjoys a reasonable level of social integration and support in Australia.

   c.If the mother remains in Australia, it creates the scope for the children spend regular, frequent and broad ranging time between the parents.

   169.I identify disadvantages which include:

   a.The mother’s future social circumstances are unclear, although it is reasonable to conclude that she will face social isolation and limited social integration in Australia, in comparison to living in Malta.

   b.A structure of regular, frequent time between the parents widens the arena for the children to be exposed to intense, overt conflict and mistrust.”

4. In my view, it is an important context to acknowledge that these children are not being asked to live in Malta without some knowledge of what it is like to live in Malta.  The evidence of care reveals that in relation to X, approximately six of his eight years have been spent living in Malta, certainly in the early days and during holidays with the father, but primarily with the mother alone.  In respect of the child Y, two thirds of her life have been spent living in Malta with her brother and mother.

5. This is not a decision that can or should be based on some perception of whether opportunities for the children in Australia, as the father asserts, are better than they are in Malta.  The evidence would not support a finding either way.  Malta is a country of some cultural heritage with strong systems, the rule of law and, from how the Maltese people who have appeared in this case present to me, very similar values and principles to those I see amongst most Australians.  Mr E in the ultimate analysis when confronted with the reality of the difficulty that these children will face, in my view, notwithstanding the attempts properly made by Mr Cameron to get him to sway the other way, on balance said that the most important factor is if they are separated from their mother.  He regarded that as being a core loss and one which, in his view, would be more difficult for the children to cope with than if, now having developed a relationship with their father, they lived in Malta and visited him on occasions that he came to the country or the yearly occasion which this Court proposes to prescribe.

6. For these reasons, in my view, on the basis of the other findings I have set out in these Reasons, it is in the best interests of the children to live with the mother in Malta.  I propose to so order.

Form of orders

1. In final submissions, the template of the Independent Children’s Lawyer was used as a basis for further submissions and, arising from those submissions and the evidence, the orders which I make take into account the following factors.

2. With the contentious issue of where the children should live having been decided by the Court, the remaining issues by reference to the ICL’s proposed order (Appendix One) are:

   a)subsequent to the final submissions, on 5 June 2020 (and with the consent of all parties) the solicitors for the mother informed the Court that the mother had sourced a “repatriation flight” between Australia and Malta leaving Brisbane on Saturday 1 August 2020.  The mother has reserved seats for the children and herself to fly on that date, pending the Court decision;

   b)I find it is in the best interests of the children and appropriate that the children be permitted to leave Australia on 1 August 2020 because:

   i)with the mother having to bear the costs of flights for herself and the children to return, it is cheaper and better for the children for her to accompany them back to Malta rather than to delay the children’s flight back to Malta;

   ii)with the Queensland school term finishing on Friday, 26 June 2020, the children will have approximately one month to spend substantial time with the father before they leave.  I will require the parties to negotiate arrangements for that period and if they are unable to agree on the arrangements the Court will decide the issue on Wednesday, 17 June 2020; and

   iii)the departure from Australia on 1 August 2020 will allow the children about one month to settle into the new environment in Malta before the commencement of the new school year in Malta beginning 3 September 2020.

   c)Although the concept of “equal shared parental responsibility for all major long term issues”, is a construct of Australia’s domestic law prescribed by the Act most jurisdictions that deal with parenting matters have similar provisions in their domestic law, the evidence does not allow me to be certain how the Maltese courts might interpret order 2, however I have decided to make it because:

   i)it is in this Court’s view that it is in the best interests of the children for both parents to be consulted and that they seek to reach agreement on any major long term issue;

   ii)although I accept, with the children to live in Malta, the mother is the parent likely to identify a major long term decision, she should consult the father before making a decision; and

   iii)to assist the parents (and maybe the Maltese courts should a future issue arise) and accepting that the Courts in Malta will have the jurisdiction to determine any dispute that may arise in the future, I propose to include a provision in the orders that:

   (i)regulates the parents to consult and seek to reach agreement on a major long term issue; and

   (ii)includes as a notation to the Court’s orders the statutory definition in s 4 of the Act, of “major long term issues”;

   d)proposed orders 5 and 6 will be amended now that certainty as to the flights is known;

   e)although order 8 could apply, I would have no objection to the children finishing school in Australia before the end of term to increase the time available to them to spend time with the father.  It is to be noted even though the time with the father is a significant block period, this is similar to the time of year and period they will be travelling to Australia for their long Summer holidays, set out at proposed order 9;

   f)I will make orders 9, 10, 12, 13, 14, 15, 16, 17, 18,19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 of the ICL’s proposed orders, and note in final submissions little dispute as to those orders was raised.  If, now that I have decided where the children shall live, either party seeks to make some further amendments, then unless agreed, I will also determine those issues on 17 June 2020;

   g)The “travel fund” order (proposed order 11) can now be given effect – namely that within 28 days of this order (which will be prior to the mother’s intended departure with the children on 1 August 2020), the relevant Australian bank account will be established.  In addition, and before the mother leaves Australia, both parties will contribute the sum of $5,000 into the account.  This will, on estimates of flights costs, mean at least the costs for the 2021 Summer holiday visit by the children to Australia will be covered for the children and accompanying persons.  Thereafter, each year the fund will be replenished effectively 12 months in advance.  Whilst I accept that this is likely to mean a fund with $10,000 will remain in Australia in a joint account for some years, I believe it is important that the father have some “security” and confidence that irrespective of the mother’s financial positon, the children’s return to Australia for holidays to spend with the father is likely to occur;

   h)Arising from the evidence of the Maltese legal expert Ms N and particularly the answers to specific questions set out at Exhibit 2, I am satisfied that if the father wishes to have the orders of this Court recognised in Malta he can file an application to have the judgment recognised.  In my view, he should take steps to do so quickly.  In the circumstances I do not propose to make any order in respect of seeking to register the Orders of this Court in Malta; and

   i)Attention, in the final orders, must be given to any earlier orders for Airport Watch List or restraints from leaving Australia so as not to impede the children leaving Australia on 1 August 2020.

1. I will require the parties to discuss and negotiate the terms of the final order, consistent with these Reasons, including arrangements to 1 August 2020.

2. I will invite the ICL to lead those discussions, but otherwise will adjourn the proceedings to 9.30am on 17 June 2020 for pronouncement of orders

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 12 June 2020.

Associate:

Date:  12 June 2020

APPENDIX ONE

1. All Parenting Plans and previous Parenting Orders are discharged.

2. The parents have equal shared parental responsibility for all major long-term decisions as defined in the Family Law Act 1975 (Cth) for the children X born in 2012 and Y born in 2014.

3. Each parent has responsibility for decisions about the day to day care, welfare and development of the children when they are in that parent’s care.

IN THE EVENT THAT THE CHILDREN LIVE IN MALTA

1. The children, X born in 2012 and Y born in 2014, shall live with the Mother.

2. The Mother is at liberty to relocate the children to live with her in Malta at any time after giving the Father no less than fourteen (14) days notice in writing of her intention to do so.

3. If a Repatriation Flight is made available to the Mother and the Children and such flight is less than fourteen days away, the Mother shall give the Father notice of her intention to relocate as soon as is practical after she becomes aware of the flight details.

4. The Mother shall be at liberty to re-enrol the children in P School for the commencement of the Maltese school term on 3 September 2020.

Time Spending Arrangements

1. Until the children depart Australia for Malta, they shall spend time with the Father at all reasonable times as may be agreed between the parties and failing agreement as follows:

   j)Each weekend from afterschool or 3.00pm Friday until before school or 9.00am Monday;

   k)Each Wednesday from 3.00pm until 7.00pm, and

   l)For the whole of the Queensland Gazetted school holiday period.

2. Upon the children living in Malta, the children shall spend time with the Father at all reasonable times as may be agreed between the parties and failing agreement as follows:

   a)For up to 10 weeks including travel during the Maltese end of school year July/August school holiday period provided that:

   i)If the Father intends to travel to Malta to spend time with the children in Malta, he shall collect the children from school at the conclusion of the school term, and return the children to the Mother at 12noon on the day which is 7 days prior to the conclusion of the school holidays;

   ii)If the Father intends for the children to travel to Australia, he shall provide the Mother with twenty-eight days written notice of his intention for the children to travel to Australia and shall ensure that the children’s flight returns to Malta and to the Mother’s care at least 7 days prior to the conclusion of the school holidays.

3. The children shall spend time with the Father for a period up to fourteen consecutive nights on any occasion that the Father travels to Malta, provided that:

   a)The Father shall give the Mother twenty-eight days written notice of his intention to spend such time with the children in Malta;

   b)The Father shall ensure that the children attend school during this time, and

   c)Such time shall not run immediately following the school holiday period referred to in order 10 above that the children have spent time or are to spend time with the Father.

4. That to give effect to order 9(a)(ii) above:

   a)The parents shall each pay one-half of the children’s return airfares, together with any unaccompanied minor fees (“the costs”), and for that purpose:

   i)Within 28 days of the date of this Order, the parties will do all such acts and things to open an account in their joint names to be operated only on their joint instructions or in accordance with this Order;

   ii)The father will provide the Mother with an estimate of the costs at the same time as he provides the notice referred to in order 9(a)(ii) above;

   iii)Within 48 hours thereafter, the parties will deposit or cause to be deposited into the joint account referred to in order 11(a)(i) above sufficient monies to meet one-half of the estimated costs; and

   iv)The parties do all such acts and things to withdraw monies as are necessary to meet the costs.

   b)Unless otherwise agreed, until the child Y turns 10 years of age, in even numbered years the Mother, or her nominee, shall travel with the children to and from Australia and in odd numbered years the Father, or his nominee, shall travel with the children to and from Malta.

5. That the parents shall forthwith do all acts and things necessary to obtain a Maltese Passport and Australian Passport for the children.

6. That the children’s Passports shall be held by the mother and shall travel with the children.

7. Both parents shall sign and do all acts and things necessary to renew the Passports for the children, within fourteen (14) days of receipt of a request from the other parent for them to do so.

8. Each parent is at liberty to communicate with the children, when they are not in their care, by telephone, Skype, Viber, FaceTime or other similar facility at all reasonable times and not less than each Monday, Wednesday and Sunday at such time as agreed by the parties in writing, and on the children’s respective birthdays, Mother’s day, Father’s Day, the parents birthdays and on Christmas Day and, in order to facilitate this:

   a)The parent with whom the children are not spending time shall initiate the call; and

   b)The parent in whose care the children are in at that time shall make the children available to receive the call; and

   c)The parent in whose care the children are at that time shall arrange for the children to contact the calling parent on the following night if, for any unforeseen circumstance, the children miss the call from that parent; and

   d)Each parent shall ensure that the children have privacy during the call.

9. The children are at liberty to communicate with either parent by telephone, Skype, Facetime or other similar facility at all reasonable times.

10. During the time the children spend time or communicate with either parent, that parent shall:

    a)Respect the privacy of the other parent and not question the children about the personal life of the other parent; and

    b)Speak of the other parent and any significant other in their lives respectfully; and

    c)Not denigrate or insult the other parent or their partner in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children; and

    d)Not smoke cigarettes, nor allow a third party to smoke cigarettes, in confined spaces while the children are present.

11. That the mother not leave the children in the care of Mr M.

12. Neither parent shall physically discipline the children, nor allow a third party to physically discipline the children.

13. The parent with whom the children reside, shall keep the other parent informed about any significant events in the children’s lives.

14. Except in cases of emergency, the parties shall communicate with each other via email, SMS text message or other instant messaging service.

15. That neither party consume illicit drugs.

16. That the parents not consume alcohol above the legal limit while the children are in their care.

Authorities

1. This order operates as an authority for any professional care provider of the children (whether a school, doctor, hospital or otherwise) to release any information concerning the care, welfare and development of the children to both parents. Should either parent seek any documentation in relation to the children (including but not limited to school notices, school reports, and school photograph order forms), that parent shall be at liberty to do so, with the parent seeking any documentation to be responsible for any expenses involved.

2. The parent with whom the children live will provide the other parent with a list of the children’s care providers and will advise the other parent of any changes to this list.

3. Each parent shall inform the other parent as soon as reasonably practicable of any medical emergency, significant health issue or significant illness suffered by the children.

4. Each parent shall keep the other parent informed of their residential address, contact telephone number and an email address and shall notify the other as to any change in those details as soon as practicable after such change and no later than after forty-eight (48) hours of the same.

5. That the Independent Children’s Lawyer be discharged.

APPENDIX TWO

“UNCONTROVERSIAL FACTS”

1. The Father is 31 years of age, having been born in 1989.

2. The Mother is 29 years of age, having been born in 1990.

3. Both parties were born in Malta.

4. The Father holds both Maltese and Australian citizenship. He became an Australian citizen by descent in 2011.

5. The Mother holds Maltese citizenship.

6. Both parties have extended family in Malta

7. The parties:

   a)commenced a relationship in Malta in December 2009;

   b)began living together in Malta in April 2010;

   c)were married in Australia in 2015;

   d)separated on 1 December 2016; and

   e)were divorced in 2018.

8. During their relationship, the parties spent the following time in Australia together:

   a)from June to August 2013, on a holiday;

   b)from 1 July 2015 until 27 April 2016;

   c)from 18 October 2016 until 1 December 2016.

9. The Father stayed in Australia for longer periods:

   a)he stayed in Australia for a further two months in 2013, returning to Malta in October;

   b)he came to Australia in May 2015;

   c)the Father stayed in Australia from 27 April 2016 until 18 October 2016, apart from a two week period in September 2016 when he travelled to Malta; and

   d)the Father remained in Australia in December 2016, and has not travelled to Malta since then.

10. There are two children of the parties’ relationship:

    a)X, born in; and

    b)Y, born in 2014.

11. X and Y are therefore aged 8 and 5 respectively.

12. Both children were born in Malta.

13. Both children hold Maltese and Australian citizenship. Both children became Australian citizens on the 1 April 2020.

14. X, and later Y, lived with the parties in Australia during the periods identified in paragraph 8.

15. During periods that the Father remained in Australia, as per paragraph 9, the children lived with the Mother in Malta.

16. On 1 December 2016, the Mother unilaterally, and without the Father’s knowledge, moved to Malta with the children.

17. On the 7 September 2017, proceedings under the Hague Convention were commenced in Malta.

18. On 6 July 2019, the children arrived in Australia, with the Mother, as a consequence of Orders made in Malta under the Hague Convention. They have lived in Australia since then.

19. From 1 December 2016 to 6 July 2019, the children:

    a)lived with the Mother in Malta;

    b)spent no time with the Father; and

    c)had Skype calls with the Father

20. The children spent two hours with the Father on the 7 July 2019.

21. The children came into the Father’s care on the 9 July 2019.

22. From the 9 July 2019 to the 3 October 2019, the children:

    a)lived with the Father; and

    b)spent no time with the Mother.

23. Orders were made on the 3 October 2019 and then the 17 October 2019 providing for the children to live with each parent.

24. Since the 17 October 2019, the children have lived with:

    a)the Mother from Monday to Friday each week as well as every fourth weekend; and

    b)the Father three out of every four weekends and, with respect to Y, each Wednesday.

25. Apart from the period from 9 July 2019 to 3 October 2019, the Mother has been the children’s primary carer.

26. The children have spent all but approximately two years of their lives in Malta.

27. The children have been in the sole care of the Mother in Malta for periods totaling approximately three years.

28. During the period from 1 December 2016 to 6 July 2019:

    a)the Mother, together with the children, lived either with the Maternal Grandmother in her home, or in a home owned by the Maternal great grandfather;

    b)the Mother was provided with the use of a car by her Maternal great grandfather; and

    c)the children attended P School

29. The arrangements referred to in paragraphs 28 will, in all likelihood, be the arrangements for the children should the Mother be permitted to relocate with the children to Malta.

30. The Father is settled in Australia. He does not intend to relocate to Malta, irrespective of where the children live.

31. The Father has repartnered.

32. The Mother is not settled, and probably has never been, in Australia.

33. The Mother’s lives in Australia subject to a Tourist Subclass 600 Visa. That Visa expires in 2020.

34. The Mother can only stay in Australia after the expiry of that visa by being granted a Temporary Activity Visa. She is entitled to apply for other visas, but will not be able to remain in Australia for the processing period of those visas via a Bridging Visa.

35. There is no formal procedure to formally register or recognise in Malta any Order made in the Family Court of Australia, until that Order is sought to be enforced in Malta.

36. X has attended Primary School G since the end of 2019. Y commenced school at Primary School G in 2020.

37. The Father’s proposal will necessitate a change in the children’s schooling.