BAXTER & BAXTER
[2016] FamCA 572
•7 March 2016
FAMILY COURT OF AUSTRALIA
| BAXTER & BAXTER | [2016] FamCA 572 |
| FAMILY LAW – CHILDREN – Best Interests – Where the mother sought orders enabling her to relocate to Ireland with the children – Where it was common ground the children will continue to live with the mother – Where the children have meaningful relationships with both parents – Where the children are not in need of any protection against the risk of physical or psychological harm through their exposure to family violence committed by the father – Where the mother is not exposed to an unacceptable risk of family violence – Where the mother’s parenting capacity would deteriorate to the detriment of the children if forced to maintain her residence with the children in Australia – Where the evidence does not justify restraint on the mother’s relocation with the children to Ireland, provided she obtains advance recognition of the orders in Ireland and financially empowers the father to travel there to visit them – Where as a condition precedent to the mother’s removal of the children from Australia, she must obtain from a court of competent jurisdiction in Ireland a declaration that the Australian orders are registered and enforceable in Ireland and pay a stipulated sum to the father, in default of which she is restrained from moving the children’s residence more than 500 kilometres away from where they currently live – Where the children will spend time with the father under differing regimes, depending upon the proximity of the parties’ homes FAMILY LAW – CHILDREN – Parental Responsibility – Where it is not in the children’s best interests for the parties to have equal shared parental responsibility – Where the mother should be conferred with exclusion parental responsibility for the children |
| Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996, Articles 24, 26 Family Law Act 1975 (Cth), ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 67ZC, 68B, 70M, 70N, 111CA |
| AMS v AIF (1999) 199 CLR 160 Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175 Cales & Cales (2010) FLC 93-459 Cape & Cape (2013) FLC 93-549 Hepburn & Noble (2010) FLC 93-438 Kuhl v Zurich Financial Services (2011) 243 CLR 361 Malcolm v Monroe (2011) FLC 93-460 McCall v Clark (2009) FLC 93-405 Re F: Litigants in Person Guidelines (2001) 27 Fam LR 517 Sampson v Hartnett (No.10) (2007) FLC 93-350 U v U (2002) 211 CLR 238 Zanda & Zanda [2014] FamCAFC 173 |
| APPLICANT: | Mr Baxter |
| RESPONDENT: | Ms Baxter |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Harper, Harpers Legal |
| FILE NUMBER: | NCC | 2266 | of | 2014 |
| DATE DELIVERED: | 7 March 2016 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Justice Austin |
| HEARING DATE: | 23, 24 & 25 February 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not Applicable |
| SOLICITOR FOR THE APPLICANT: | Not Applicable |
| COUNSEL FOR THE RESPONDENT: | Mr Allen |
| SOLICITOR FOR THE RESPONDENT: | Tasdemir Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Flintoff |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Harper, Harpers Legal |
Orders
All former orders relating to the following children (“the children”) are discharged:
1.1B, born … 2011;
1.2C, born … 2012.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
Subject to the mother:
4.1Serving on the father and Independent Children’s Lawyer documentary proof that she has:
4.1.1Requested a decision from a court of competent jurisdiction in Ireland about recognition of these orders in Ireland pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996 (“the Child Protection Convention”);
4.1.2Obtained from a court of competent jurisdiction in Ireland a declaration of registration and enforceability of these orders in Ireland pursuant to Article 26 of the Child Protection Convention; and
4.1.3Deposited a lump sum of AUD$20,000 into a banking account nominated by the father in writing; and
4.2Filing in this Court an affidavit verifying her compliance with the conditions set out within Order 4.1;
then the mother is not subject to any restraint concerning the location of the children’s residence and the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:
4.3Whilst ever the father lives within 50 kilometres of the mother and children:
4.3.1During school terms:
(a)Each alternate weekend from 4.00 pm on Friday until 6.00 pm on Sunday, commencing on the first Friday of each school term;
(b)Each week on Wednesday from 4.00 pm until 6.00 pm; and
4.3.2For the second half of each school holiday period.
4.4Whilst ever the father lives more than 50 kilometres from, but within 500 kilometres of, the mother and children:
4.4.1During school terms, each alternate weekend from 4.00 pm Friday until 6.00 pm on Sunday, commencing on the first Friday of each school term; and
4.4.2For the second half of each school holiday period.
4.5Whilst ever the father lives more than 500 kilometres from the mother and children:
4.5.1Each year, from 9.00 am on 14 July until 6.00 pm on 14 August.
In default of the mother’s compliance with the conditions set out within Orders 4.1 and 4.2 hereof, the mother is restrained from moving the children’s residence to a place beyond a radius of 500 kilometres from the Post Office at D Town, NSW, Australia and the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:
5.1Whilst ever the father lives within 50 kilometres of the mother and children:
5.1.1During school terms:
(c)Each alternate weekend from 4.00 pm on Friday until 6.00 pm on Sunday, commencing on the first Friday of each school term;
(d)Each week on Wednesday from 4.00 pm until 6.00 pm; and
5.1.2For the second half of each school holiday period.
5.2Whilst ever the father lives more than 50 kilometres from, but within 500 kilometres of, the mother and children:
5.2.1During school terms, each alternate weekend from 4.00 pm Friday until 6.00 pm on Sunday, commencing on the first Friday of each school term; and
5.2.2For the second half of each school holiday period.
For the purpose of implementation of Orders 4.3, 4.4, 5.1, and 5.2 hereof:
6.1The school holiday periods are deemed to commence on the first day following the last day of school term, deemed to end at 6.00 pm on the last day preceding the day upon which the children are due to return to school, and the mid-point is noon on the day halfway between those first and last days.
6.2The mother shall deliver the children to the father at the place nominated by the father in writing at the commencement of the time to be spent by the children with the father; and
6.3The father shall deliver the children to the mother at the place nominated by the mother in writing at the conclusion of the time spent by the children with the father.
For the purpose of implementing Order 4.5 hereof, the father shall collect the children from the mother at the place nominated by the mother in writing at the commencement of the time to be spent by the children with him and he shall return the children to her at the same place at the conclusion of the time spent by the children with him.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by “Skype” internet communication program (or telephone if Skype is unavailable) with:
8.1The father, each Monday, each Thursday, on the children’s birthdays, on Father’s Day, and on Christmas Day, when the children are living with the mother:
8.1.1In Australia, at 6.00 pm (Sydney time), and
8.1.2In Ireland, at 6.00 pm (City E time), and
for that purpose the father shall contact the children on the telephone number or internet connection provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number or connection at that time;
8.2The mother, each Saturday and Wednesday when the children are spending time with the father:
8.2.1In Australia, at 6.00 pm (Sydney time), and
8.2.2In Ireland, at 6.00 pm (City E time), and
for that purpose the mother shall contact the children on the telephone number or internet connection provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number or connection at that time.
The father is restrained from consuming alcohol during any period in which the children spend time with him and also during the period of 12 hours immediately preceding such time.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.
Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.
The mother shall authorise and request the principal of any school attended by the children to provide to the father, at his expense, copies of all school reports and school photograph order forms relating to the children.
The mother shall notify the father of any medical emergency, illness or injury suffered by the children whilst in her care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the children.
Each party shall forthwith inform the other, and keep the other informed, in writing, of their respective current residential address, mobile telephone number, and email address.
The parties and Independent Children’s Lawyer are at liberty to furnish a copy of these orders to:
15.1The Australian Federal Police and any competent authority or officer empowered under the Australian Passports Act 2005 (Cth);
15.2Irish legal representatives and courts for the purpose of recognition, registration and enforcement under The Protection of Children (Hague Convention) Act 2000 (Ireland); and
15.3The principal of any school attended by the children.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the latter of:
17.1The expiration of any applicable appeal period; or
17.2The mother’s provision to the Independent Children’s Lawyer of documentary proof pursuant to Order 4.1 hereof.
Costs are reserved for 28 days.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Baxter & Baxter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 2266 of 2014
| Mr Baxter |
Applicant
And
| Ms Baxter |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These proceedings concern the two very young children of the applicant father and respondent mother.
The father is Australian and the mother is Irish. They married in Ireland in 2009 but separated in Australia in 2014. The mother now wishes to return to live in Ireland with the two children, who are aged five and three years, but the father resists her proposal.
In disputes such as this, the conflicting interests of the children and the parents cannot all be reconciled and accommodated. These reasons explain why, in this instance, the children should live with the mother and why she should be able to decide where she and the children live, provided she can make satisfactory financial arrangements to enable the children to retain their relationships with the father through periodic visits and regular electronic communication.
Short history
The parties began their relationship in 2008 while working together in Western Australia.
In March 2009, the mother’s tourist visa expired and it was necessary for her to return to Ireland. The father followed her to Ireland and they were married there in 2009. They returned to live in Australia together in November 2009.
The children were born respectively in 2011 and 2012. They have since been issued with both Australian and Irish passports and have dual citizenship.
The parties finally separated in June 2014 and, in the weeks that followed, the parties discussed the mother’s prospective return to live in Ireland with the children. Whether, as the mother believes, the father originally consented to their relocation is immaterial. Even if he did, he is not bound by that decision. He was and is free to change his mind, as people often do.
The father commenced the proceedings before the Federal Circuit Court in September 2014 and successfully obtained an ex parte injunction restraining the mother from removing the children from Australia. The Court also issued a request to the Australian Federal Police to place the children’s names on the Airport Watch List. The mother was not served with the father’s process or with the orders so, when she attempted to fly out of Australia with the children, she was stopped by immigration officials. They then returned from Sydney airport to the NSW north coast, where they continue to live near the father.
In November 2014, the Court made further interim orders, but this time with the parties’ consent. The orders provided for the children to live with the mother and to spend time with the father, but only under the supervision of a member of the paternal family. The need for supervision was premised on the mother’s concern about the father’s excessive alcohol consumption and his unstable mental health.
In March 2015, further interim orders were made with the parties’ consent allowing the mother to take the children on a visit to relatives in Ireland over the following couple of months. From about the time the mother and children returned from Ireland, if not before, the mother ignored the orders made in November 2014 and allowed the children to regularly spend substantial amounts of time in the father’s unsupervised care. The mother contended at trial she was pressured by the father to do so, but her will was not overborne despite his eagerness for the supervision to be abandoned. Her decision was voluntary, though perhaps tinged with some degree of anxiety.
In July 2015, the proceedings were transferred to this Court for determination and later listed for trial in February 2016.
Less than a week before the trial was due to start, the father made an application to vacate the trial.[1] His motivation for the adjournment was to allow him more time to prepare because he did not suspect the litigation would progress so far, and additionally, to permit the parties’ resort to mediation to avoid a contested hearing. His application was dismissed.
[1] Application in a Case filed 17/2/16
The proceedings were fixed for trial by procedural orders made three months before in November 2015. The father had plenty of time within which to prepare for the trial in a timely manner. He deposed that he terminated his legal representation and failed to comply with the procedural orders in expectation he and the mother had reached accord,[2] but even if that was his genuine belief he still knew the litigation had not been concluded. In the absence of any definitive Court orders, the proceedings between the parties remained live. The father did nothing to ensure the agreement he believed he reached with the mother was consummated. Until final orders were made by the Court, just as he was free to change his mind about allowing the mother and children to return to Ireland, she was free to change her mind about remaining in Australia, even if she had induced him to believe she would not relocate (which, it should be noted, she did not concede).
[2] Father’s affidavit filed 17/2/16
Moreover, the father’s proposal to resort to mediation at the expense of the trial was misconceived. The parties have had over 18 months within which to compromise their dispute, but their failure to do so was precisely why it needed to be judicially determined. The knowledge of a certain trial date was the impetus the parties required to exhaust all genuine settlement prospects.
Maintenance of the trial date did indeed occasion some disadvantage to the father. He was without legal representation, though no explanation was offered as to why he could not or had not re-engaged the solicitors whose instructions he terminated a short time ago. While the disadvantage of lack of legal representation could not be wholly cured, it was ameliorated by the provision of impartial judicial assistance, as is commonly extended to self-represented litigants (see Re F: Litigants in Person Guidelines (2001) 27 Fam LR 517). The mother and Independent Children’s Lawyer both consented to the father being granted more time within which to file and serve his affidavit evidence,[3] so the prospective disadvantage of being bereft of evidence at trial was cured.
[3] Order 2 made on 19/2/16
Any residue prejudice occasioned to the father by maintenance of the trial dates was surely outweighed by the prejudice the mother would suffer if the trial was vacated. An adjournment of the trial would push back the trial dates by about six months, meaning the proceedings would by then have been pending for about two years. That is too long a wait for the mother when the pressing issue for determination in the proceedings was whether she would be able to move back to Ireland with the children. An order for the father to pay her costs of the trial, thrown away by reason of any adjournment, would not be a satisfactory salve for the delay she would endure until the substitute trial date. Costs orders are not always a panacea for delay (see Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175 at 213-214) and proceedings concerning the best interests of children deserve speedy resolution (see Aon at 223).
Proposals
The father pressed for the orders set out in a Minute of Orders he filed on
15 June 2015.[4]
[4] Notation B made on 9/9/15
He proposed that he and the mother have equal shared parental responsibility for the children, that they live with the mother, and that they spend substantial amounts of time with him. He furthermore proposed that both parties be restrained from moving the children’s residence from the area on the NSW north coast, where both parties currently live, though he envisaged the mother being able to take the children on annual international holidays.
The mother began the trial pressing for the orders set out in a Minute of Orders she filed on 13 July 2015,[5] but finished the trial endorsing the orders proposed by the Independent Children’s Lawyer. The mother’s proposal was always for the children to live with her and for her to have sole parental responsibility for them, though her proposals about how the children should spend time with the father fluctuated markedly.
[5] Notation C made on 9/9/15
Her initial proposals for the children’s future interaction with the father depended upon whether she was free to relocate with them back to Ireland or whether they would be restrained from departing Australia. If constrained to residence in Australia, she proposed the children spend limited time with the father – always under the supervision of an adult member of the paternal family, never overnight, and for a maximum of eight hours each week. She made no proposal about the children’s interaction with the father if she was free to relocate her residence with the children to Ireland, at least not until she endorsed the Independent Children’s Lawyer’s proposal.
The Independent Children’s Lawyer did not announce the suite of orders she proposed until the evidence was closed.[6] Her eventual proposal was for the mother to have sole parental responsibility for the children and for them to live with her in Ireland, subject to the mother’s lump sum payment of $20,000 into an account for the father’s use over the next few years towards the costs of his periodic travel to Ireland and his accommodation there to enable his visits with the children. That proposal sprang from the maternal grandmother’s expressed willingness to provide the funds on the mother’s behalf.
[6] Exhibit ICL11
Evidence
In compliance with revised procedural orders,[7] the father e-filed the affidavits upon which he relied through the Court’s internet portal on 22 February 2016, but the electronically filed versions of the two affidavits were jumbled and incomprehensible. With the consent of the mother and Independent Children’s Lawyer, the father produced two copies of the affidavits upon which he relied and they were tendered as exhibits.[8] They were affidavits executed by him and the paternal grandmother on 22 February 2016.
[7] Order 2 made on 19/2/16
[8] Exhibits F1, F2
The mother relied upon her affidavits filed on 6 November 2014 and
22 January 2016. Although procedural orders precluded her reliance upon the first affidavit,[9] the father agreed no prejudice was occasioned to him by allowing her to rely upon it so leave was granted for her to do so.
[9] Orders 5, 7, 9 made on 12/11/15
The Independent Children’s Lawyer and the parties also relied upon two documents prepared by the Family Consultant – the Memorandum prepared on 12 November 2014 and the Family Report dated 3 July 2015.
The Family Consultant recommended, before the Family Report was prepared, that a single expert psychiatrist be appointed,[10] but the parties could not afford the fees of a single expert witness.[11]
[10] Family Report, para 37
[11] Notation A made on 12/11/15
Legal principles
Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which equal shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend time with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
In circumstances where, as here, a residential parent wants to move with the children a long distance away and the proposed move is resisted by the other parent, the interests of the parents and the children are immediately conflicted. The desires of the parents are juxtaposed and the children’s interests are torn between the retention of a stable home environment with the residential parent and the retention of viable relationships with the other parent. The parental and filial relationships are all subject to enormous pressure until the parental dispute is resolved.
Once the parties are unable to reach a compromise and the matter is litigated, the best interests of the children are of paramount importance in the determination of appropriate parenting orders, irrespective of the competing proposals of the parties. The Court is not bound to select one of the polarised options submitted by the parties (U v U (2002) 211 CLR 238 at 284-285). The making of orders that do not reflect the orders devised by either party does not vitiate the judgment or orders (U v U at 263).
Importantly, the parent wishing to relocate with the children bears no onus of proving the existence of compelling reasons for the relocation (U v U at 261), but nor does the parent who resists the change of residential location bear any onus of proving the existence of compelling reasons for that decision (Malcolm v Monroe (2011) FLC 93-460 at [83]). The parties’ reasons for their proposed relocation and immobility simply inform the inquiry about whether the relocation is a proper exercise of parental responsibility (U v U at 285-286; Malcolm v Monroe at [81], [83]).
Family violence
The issue of family violence loomed large in these proceedings and was contended to be of such significance that it deserves discrete consideration before turning to the factors prescribed by s 60CC of the Act.
First, it is necessary to distinguish this case from many other cases of alleged family violence. It is now well recognised that the insidious cycle of family violence which permeates some domestic environments causes many women to feel trapped and unable to escape abusive relationships, but the mother is not one of those women. She was the one who decided to end this marriage, she was the one who mustered the courage to demand that the father vacate the former matrimonial home, and she had the fortitude to conceive and implement a plan to migrate with the children back to Ireland. She had the financial independence to do it because, as she admitted in cross-examination, she “most definitely” controlled the family’s finances.
Given the mother is capable of exercising her strong and independent will, it is necessary to closely examine and evaluate the evidence of family violence adduced in this case.
The mother deposed dramatically in January 2016:[12]
I had to flee the marital home and attempted to leave the country in 2014 with the children to escape the physical and emotional abuse at the hands of [the father].
My life in Australia…is full of domestic violence…
(emphasis added)
[12] Mother’s second affidavit, paras 8, 28
Such generalised conclusions were almost devoid of factual premise and were, in fact, entirely inconsistent with much of the uncontroversial evidence.
The parties separated in June 2014. The mother professed to having tried to “get [their] marriage back on track” in the months preceding the final separation.[13] She was indeed worried about the father’s emotional stability and his excessive consumption of alcohol,[14] but she only decided to finally separate from him because she suspected his infidelity.[15] Consequently, on her own admission, she did not end the marriage because of any fear induced by violent or threatening behaviour by the father.
[13] Mother’s first affidavit, para 15
[14] Mother’s first affidavit, paras 11-14, 16
[15] Mother’s first affidavit, para 17
There was no evidence of any physical abuse perpetrated by the father upon the mother at all – either before or after separation. A bare allegation of physical abuse is not probative evidence. It is simply a subjective conclusion.
The evidence adduced about emotional abuse (whatever that concept might mean, since it is not a phrase defined in the Act) allegedly perpetrated by the father upon the mother was, at its highest, merely evidence of how the mother’s emotions were aroused and labile in response to the father’s agitation around the time of their separation.
The father’s reaction to the breakdown of the marriage was undoubtedly histrionic. He was distressed and emotional when the mother rebuffed his pleas for reconciliation and he began to realise the marriage was finally over.
The mother deposed the father “threatened” and “harassed” her,[16] but that was not what she told the police from whom she sought help several months later in September 2014.[17] She told them she was worried about the father’s emotional stability, but she admitted she was not avoidant of him. She voluntarily went to see him at his workplace and she made arrangements for him to be admitted to hospital for two weeks for treatment. She helped him find and move into alternate accommodation. They later conferred over her planned return to Ireland with the children. She even allowed the father to stay with her and the children for several days before their departure for Ireland. Her eventual complaint to police was only because the father’s behaviour had become “increasingly erratic and unpredictable”, not violent.
[16] Mother’s first affidavit, paras 19, 27
[17] Exhibit M2
The mother’s planned departure from Sydney for Ireland with the children was thwarted by the ex parte orders obtained by the father from the Federal Circuit Court on 1 September 2014. The mother returned home and then, three days later on 4 September 2014, she complained to police about the father’s behaviour over the preceding three months. The extent to which the mother may have been motivated to complain to the police about the father because she was angry at being surprisingly prevented from departing Australia with the children was not explored in the evidence. The timing of the complaint was, however, curious.
The police issued a provisional apprehended violence order (“AVO”) against the father following the mother’s complaint.[18] The provisional AVO required the father to appear before the Local Court of NSW on 1 October 2014, which he then did, at which time that court issued an interim AVO.[19] The interim AVO was adjourned to 11 March 2015, when it was withdrawn and dismissed. The mother’s complaint, upon which the provisional and interim AVOs were based, has never been heard and determined on its merits. For the sake of clarity, no findings were made by the State court vindicating the mother’s complaint against the father.
[18] Exhibit M2
[19] Exhibit M1
It is beyond doubt the mother had good grounds to be apprehensive about the father’s emotional instability because, in mid September 2014 while the provisional AVO was in force, the father drove his car off a bridge in an attempt to commit suicide.[20]
[20] Exhibit F1, para 16; Mother’s first affidavit, para 31
However, the mother’s worry about the father’s emotional stability is quite a different thing from her harbouring concern about being victimised by “family violence” committed by him – either then or now.
The concept of “family violence” is defined in the Act (s 4AB) as follows:
…violent, threatening or other behaviour by a person that coerces or controls a member of that person’s family … or causes the family member to be fearful.
There was no evidence adduced of any “violent” behaviour by the father towards the mother or anyone else at all and, although the mother deposed to the father’s occasional “threatening” behaviour, there was no clear evidence as to the nature of the threats.
The mother deposed that, when she voluntarily went to confront the father at his workplace about a week after their separation in June 2014, the father:[21]
…was threatening me and manic, to damage my property and hitting pieces of furniture [sic].
[21] Mother’s first affidavit, para 19
The mother also deposed that, in the days preceding her complaint to police about the father in September 2014, she:[22]
…received a number of harassing and threatening phone calls from [the father] and his family…
[22] Mother’s first affidavit, para 27
Significantly, she did not tell the police that when she had the chance. The only “threat” she contemporaneously reported to the police in September 2014 was the father’s threat, over the telephone, that she would spend three years in gaol.[23] The evidence did not reveal why the father thought the mother might deserve such imprisonment, but since the mother disavowed any criminality and imprisonment was surely an outcome the father was powerless to visit upon her, it was hardly a threat of anything.
[23] Exhibit M2
The mother told the police she was frightened when the father arrived at the former matrimonial home intoxicated about a week after their separation in June 2014 and she was also fearful of the father’s “increasingly erratic and unpredictable” behaviour in September 2014,[24] but direct evidence of her fear was entirely absent in these proceedings. The mother did not depose, either in her affidavits or during cross-examination, that she was ever fearful of the father. Her evidence was more consistent with her alarm about what the father might do to himself rather than her fear of what he might do to her or the children.
[24] Exhibit M2
Importantly, the mother’s conduct was quite inconsistent with her being fearful of the father, as exemplified by the following uncontroversial evidence:
(a)Shortly following separation in June 2014, the mother was worried about the father and so she visited him at his workplace to check on his welfare.
(b)The mother invited the father to stay with her and the children at the former matrimonial home in the days leading up to her planned departure with the children for Ireland in early September 2014.
(c)In early 2015, within only a few months of the interim parenting orders being made in November 2014 requiring the children to be supervised when in the father’s care, the mother voluntarily and repeatedly allowed the children to spend unsupervised time with the father and, to facilitate that, the parties regularly met to exchange the children between them.
(d)At least after the interim AVO was discharged in March 2015, the mother occasionally invited the father to attend her home, where he ate dinner with the family and stayed overnight.
(e)Throughout the entirety of 2015, from even before the interim AVO was discharged, the parties exchanged happy and co-operative text messages about themselves and the children. Such messages included the mother inviting the father for dinner, asking him what time he would arrive at her home, and her lamenting the length of time since they last had sex.[25]
(f)From the time the mother and children arrived back home from their visit to Ireland in mid 2015, the mother allowed the children to spend each alternate weekend in the unsupervised care of the father and on the intervening weekends she usually asked the father to spend some time together with her and the children or asked him to mind the children while she attended to other activities.
(g)From no later than October 2015, the mother often invited the father for dinner at her home during the week.
(h)On 1 January 2016, the mother broke into the father’s home.[26] The mother said she did so because she had not heard from the father for some time and was worried about him, but that is difficult to accept since telephone records proved they had spoken on the telephone for more than 10 minutes at 6.16 pm the evening before.[27] Whatever her real motivation for entering the premises, on her own admission, she was not frightened to attend the father’s home alone in an attempt to find him.
[25] Exhibit F3
[26] Exhibit F1, para 26
[27] Exhibit F4
The facts recited above were mostly unknown to the Family Consultant at the time she prepared the Family Report in June 2015, which is significant in light of the opinions she expressed in the Family Report about the dynamics of the parties’ relationship.
The father told the Family Consultant about the regularity of his unsupervised interaction with the children,[28] but she seems to have dismissed the veracity of that information without explaining why.
[28] Family Report, paras 92, 97
When the Family Consultant first conferred with the parties in November 2014 she was aware of the existence of the provisional AVO, the father’s misuse of alcohol, and the father’s recent suicide attempt.[29] That history inferentially conditioned the Family Consultant’s views about the father because, when compiling the Family Report in June 2015, she expressly recommended reliance upon her earlier Memorandum,[30] even though the same information was extracted in the Family Report.
[29] Memorandum 12/11/14, page 1
[30] Family Report, para 37
Relevantly to the issue of family violence, in June 2015, the Family Consultant opined in the Family Report that:
(a)The father used “coercive controlling techniques” to achieve his goals;[31]
(b)The father was currently behaving in a “controlling, coercive manner” towards the mother;[32] and
(c)The mother was “caught up in the cycle of family violence” by “acceding to the demands of a controlling and coercive abuser”.[33]
[31] Family Report, para (5) on page 4
[32] Family Report, para 57
[33] Family Report, para 68
Aside from the facts extracted above, of which the Family Consultant was then unaware, several of the factual assumptions she made to arrive at those conclusions were proven at trial to be factually false. For example, she assumed:
(a)The father refused to allow the mother and children to move back into the rented former matrimonial home when they returned from Sydney airport in September 2014, thereby forcing them to resort to accommodation in a women’s refuge.[34]
That was wrong. The mother conceded in evidence that, though the father told her he intended taking over occupation of the former matrimonial home, she consulted her solicitor who advised her not to return to the home anyway. The maternal grandmother was with her and moved into the refuge with her and the children. It is common ground the father did not occupy the former matrimonial home. He stayed in the separate home he rented alone, into which the mother had helped him move just before her intended departure for Ireland. The mother told police she would not return to the former matrimonial home.[35]
(b)The mother withdrew the AVO application, preferring to placate the father and avoid further conflict with him.[36]
In fact, as the mother admitted in cross-examination, she withdrew the AVO application because the father agreed to let her take the children to Ireland for an extended visit in 2015, not because she felt overborne by him.
(c)It was only the father who was inclined to exert control by attending the mother’s home without warning or invitation.
That was wrong. Although the father entered the former matrimonial home without the mother’s knowledge or consent in June 2014 (when he at least had a legal entitlement to do so as a co-tenant),[37] the mother unlawfully entered the father’s own rented home in January 2016 (when she had no legal right to do so and was a trespasser).
(d)The mother sometimes took pity on the father and allowed him to stay overnight at her home in a different bedroom.[38]
In fact, he regularly attended the mother’s home at her invitation and, at least on some occasions, slept with her.
(e)The paternal family lost interest in supporting and helping the father and actually rejected him, forcing the mother to supervise the children’s visits with the father.[39]
That was wrong. The most that could be said on the tested evidence is that the paternal family were disappointed in the father. Although the father misled the mother by falsely telling her of the paternal family’s reluctance to provide supervision, the mother was content to allow the children to spend substantial amounts of unsupervised time with him within only months of the interim orders being made in November 2014. When the mother told the Family Consultant in June 2015 she insisted on the children being supervised when spending time with the father,[40] she was then already inconsistently allowing them to spend substantial amounts of unsupervised time with him.
[34] Family Report, para 25
[35] Exhibit F1, para 11
[36] Family Report, para 26
[37] Family Report, para 12
[38] Family Report, para 77
[39] Family Report, para (2) on page 3, paras 18, 39
[40] Family Report, paras 53-54, 75
The erroneous assumptions made by the Family Consultant, together with the important facts of which she was ignorant, render the opinions she expressed on the topic of “family violence” unreliable.
The Family Consultant sensibly conceded in cross-examination:
It’s up to his Honour to look at the evidence to see what constitutes proof [of family violence].
The concession was sensible because she understood it is the Court’s function to assess the reliability of evidence, once tested at trial, and that expert opinions such as her own are only as good as the evidence upon which they are premised.
It should not be overlooked that the father steadfastly denied any threats to, or violent behaviour in the presence of, the mother and children. He told his psychologist he contested the mother’s original untested complaint to the police (which resulted in the provisional and interim AVOs being made),[41] he denied to the Family Consultant his commission of any violent conduct towards the mother,[42] and he denied in evidence any physical violence between him and the mother.[43] He was not challenged in cross-examination about the validity of any of those denials. Nor was he challenged about the correctness of any of the mother’s generalised allegations of threats, physical abuse, emotional abuse, or domestic violence.
[41] Exhibit ICL2
[42] Family Report, para 57
[43] Exhibit F1, para 6
Had either the mother or Independent Children’s Lawyer wanted positive findings made about the father’s commission of “family violence”, as defined in the Act, procedural fairness demanded that they put the underlying facts squarely to the father for his approbation or repudiation (see Kuhl v Zurich Financial Services (2011) 243 CLR 361 at 387-388). Having not done so, they cannot now be heard to complain that such findings are not made. Although the father barely challenged the mother on the issue of alleged family violence either, allowance must be made for the disadvantage he suffered through lack of legal representation.
I am not satisfied, on the balance of probabilities, that the father committed “family violence” upon the mother in the past.
I am not satisfied the mother is exposed to an unacceptable risk of “family violence” committed by the father in the future (s 60CG(1)).
I am not satisfied the children need any protection against the risk of physical or psychological harm through their exposure to “family violence” committed by the father in the future (s 60CC(2)(b)).
Children’s best interests
Section 60CC(2)(a)
The mother is the children’s primary carer and their primary attachment figure. They still rely heavily upon her for emotional security.[44] They derive considerable benefit from their meaningful relationships with the mother and so it was common ground the children should continue to live with her, irrespective of where they live.
[44] Family Report, paras 56, 111
Similarly, there was no dispute about the benefit the children do, and should continue to, derive from their meaningful relationships with the father. The Family Consultant observed the children to be comfortable in the father’s care.[45] The mother conceded to the Family Consultant she was “very concerned about the impact that the relocation would have on the children”,[46] no doubt because she recognised the depth of the children’s relationships with him and was worried the children would be deleteriously affected by deprivation of personal contact with him.
[45] Family Report, para 109
[46] Family Report, para 90
If the children live with the mother in Ireland and the father continues to live in Australia, it is inevitable the importance, significance, and value of the children’s relationships with the father would diminish to some degree. Given the children are not in need of any protection from risks of harm in the care of either parent (s 60CC(2)(b)), the need for them to retain their meaningful relationships with the father means the parties should preferentially maintain their homes in reasonable proximity to one another. Of course, whether the region of their common residence is in Ireland, on the NSW north coast, or some other place depends on other considerations.
Section 60CC(2)(b)
The children are not in need of any protection from harm by reason of their exposure to “family violence” for reasons already given.
Puzzlingly, each party made some adverse comment about the other’s occasional rough treatment of the children which implied their concern about the children’s need for protection from harm caused by their subjection to “abuse”,[47] but neither party was cross-examined about the evidence and no submission was ultimately made that s 60CC(2)(b) of the Act was engaged by such evidence. In those circumstances, no weight is reposed in it.
[47] Mother’s first affidavit, paras 53-54; Family Report, paras 30, 32
No evidence was adduced, and no submission was made, about any need to protect the children from harm caused by their subjection to “neglect”.
Section 60CC(3)
The children are too young and immature for their views to carry any weight, which is why the Family Consultant abstained from inquiry.[48]
[48] Family Report, para 106
Much was made of the father’s past misuse of alcohol and psychological instability, which he conceded, but he realised his dire predicament and began a process of rehabilitation following his suicide attempt in September 2014.[49] He resolutely adhered to his evidence of improvement during cross-examination and no other evidence was adduced to contradict him. There was no evidence of his misuse of alcohol or sufferance of psychological ill health for at least the past year. The mother would probably know best about any recent insobriety or ill health on his part, but she did not say so and she acted as if there was none. She would not have entrusted the children with him so frequently or for so long, in complete disregard of existing orders requiring his supervision, unless she was confident in the progression of his rehabilitation. She said in cross-examination she allowed that level of interaction between the children and the father because “he seemed fine”.
[49] Exhibit F1, para 16; Family Report, para 98; Exhibit ICL2
That is not to say the father’s problems are entirely historic. Encouraging rehabilitation is one thing, but a guarantee against relapse is quite another. However, the pessimism expressed by the Family Consultant about his path to rehabilitation when she compiled the Family Report about eight months ago has not been vindicated.[50] He has done much better than she expected.
[50] Family Report, para 113
The father’s parenting capacity is adequate but certainly not as sophisticated as the mother’s, which precludes any serious consideration of him as an alternate primary carer, though he is capable of caring for the children satisfactorily during their visits with him.
While the father should ideally live in close proximity to the mother and children, the parties’ circumstances might prevent or impede it, in which event the children’s relationships with the father are sufficiently strong to now withstand prolonged physical separations. Their relationships with the father would be satisfactorily maintained so long as they could spend time together periodically and, between times, were able to communicate frequently. The underlying problem that emerged was the parties’ financial incapacity to ensure personal interaction between the children and the father in the event of the children moving to Ireland with the mother. That, in large measure, was remedied by the maternal grandmother’s expressed willingness to arrange, on the mother’s behalf, payment of $20,000 to the father for his use towards meeting the costs of return flights to, and accommodation in, Ireland for the purpose of visits with the children.
Other considerations
In all probability, the children will be well cared for and have happy lives regardless of whether they live in Ireland or Australia. They are loved by two parents and extended families who meet all of their physical, emotional, and intellectual needs. The children’s best interests will be met by any orders that preserve their ability to maintain meaningful relationships with the father, wherever they happen to live with the mother. It is therefore appropriate to consider the parties’ individual interests because, while the children’s interests are of paramount importance, their interests are not singularly determinative.
The mother is unemployed, living in rented accommodation with the children. The father pays her very little child support because his financial position is little better than hers, so she struggles financially.[51]
[51] Mother’s second affidavit, paras 17-18
The mother’s fervent desire to move back to Ireland with the children was not suggested to be anything other than genuine and reasonable. She feels isolated and lonely living on the north coast of NSW. She has few friends to help her carry the parenting load and, despite her growing reliance upon the father for physical assistance with the children, she harbours some residual distrust of him because of his past problems with alcohol and emotional instability. She desperately wants the physical help, emotional succour and financial support which will be available to her from her family in Ireland. Those are very important considerations (see McCall v Clark (2009) FLC 93-405 at [131]-[135]; Hepburn & Noble (2010) FLC 93-438 at [43], [49]-[64]).
The Family Consultant acknowledged the mother’s sense of isolation and was alive to the potentiality of deterioration of her psychological state and parenting capacity if denied the opportunity to relocate to Ireland.[52] The evidence vindicated her worry. The mother’s emotions credibly fluctuated with the topics of the questions posed to her and at one point she was moved to say “I am desperately lonely”. In all probability, the mother would lose her composure and fall into depression if faced with the obligation of maintaining her residence with the children in Australia for years to come. Her parenting capacity would commensurately deteriorate, to the detriment of the children. It was no solution for the children to live with the father instead, allowing her to emigrate alone, because she would not leave them and the father did not really conceive himself as their primary carer.
[52] Family Report, paras 61, 72
To the mother’s credit, she expressed ambivalence to the Family Consultant about the advisability of any move with the children to Ireland. She rationalised her desire for the move with the children’s desire to maintain close relationships with the father but, on balance, considered the relocation would be best all around.[53] She confessed in cross-examination “of course the boys would miss the father in Ireland” and “I feel guilty about taking the children away from their father”.
[53] Family Report, paras 90-91; Mother’s first affidavit, para 37
Regrettably, the father lacked the balanced insight demonstrated by the mother. He seemed not to understand the depth of the mother’s plight, despite his knowledge she only has a small circle of friends in Australia and lacks an adequate support network. He knows the paternal family offer her very little support because he told the Family Consultant the paternal family no longer wanted anything to do with her.[54]
[54] Family Report, para 96
The father seemed entirely focussed on his grief at prospective separation from the children. He said to the Family Consultant[55] and in cross-examination that he could not even contemplate the idea of the children moving to Ireland with the mother. Given that the children’s prospective relocation to Ireland with the mother was the very reason for the litigious dispute, it would be astonishing if the father could not even bring himself to contemplate what could or should happen to preserve his relationships with the children if the mother’s application was successful. As it transpired, there was no need for astonishment because the father had discussed with the mother the circumstances under which she might relocate to Ireland with the children.
[55] Family Report, para 102
His rather egocentric appraisal of the situation was that, given he was quite happy with the mother and children living in rented accommodation barely three streets away from him in the same coastal township, nothing should change until he unilaterally desired it. In cross-examination, the father conceded he told the mother she could move with the children to Ireland if he chose to move out of town. In other words, he believed he could live where he wanted, but she could not. The father said that if he moved away then, without his help with the children, the mother would have no support and so it would be reasonable for her to seek out family support in Ireland.
Of course, the mother should not be constrained in the choice of her place of residence on the father’s whim, but the father’s position revealed the bald truth of her isolation and his ignorance of the mother’s entitlement to have just as much control as him over the decision about where she and the children live.
Since the father professed his inability to contemplate the idea of the children moving with the mother to Ireland, he adduced no evidence at all about why his own emigration to Ireland was feasible or not. The mother blithely said he could get a job and live in Ireland,[56] but little weight can be attributed to her bare opinion in the absence of specific evidence about immigration requirements and suitable employment opportunities. The father deposed that he “would find it very hard to go to Ireland” as he feared for his life and limb,[57] but it is difficult to accept that evidence as truthful because he voluntarily travelled there to meet up with the mother and children as recently as two years ago. There would be obvious impediments to the father living and supporting himself in Ireland, but the evidence did not suggest it would be impossible or even impracticable.
[56] Mother’s second affidavit, para 24
[57] Exhibit F1, para 34
Perhaps understandably, the father expressed concern that, if the mother’s relocation to Ireland with the children was allowed, she might not then comply with orders for the children to spend time and communicate with him. The enforceability of parenting orders in an international jurisdiction is, of course, an important consideration that should not be overlooked (see McCall v Clark at [11]).
Ireland ratified the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the Child Protection Convention”) in September 2010 and it entered into force in that country in January 2011, meaning Ireland is recognised as a “Convention country” in Australia
(s 111CA) even though it is not yet recognised in subordinate legislation as:
(a)A country in which Australian orders can be registered and enforced, under Schedule 1A to the Family Law Regulations 1984 (Cth); or
(b)A country whose orders will be registerable and enforceable in Australia, under Schedule 1 to the Family Law Amendment (Child Protection Convention) Regulations 2003 (Cth).
Nonetheless, Ireland is a “Contracting State” for the purposes of the Child Protection Convention and, as an “interested person” or “interested party”, the mother is able to request a court of competent jurisdiction in Ireland to decide on the recognition (or non-recognition) in Ireland of the parenting orders made in respect of the children by this Court and to then issue a declaration of registration and enforceability (or non-enforceability) in respect of the orders (Articles 24, 26).
The father’s concern about enforceability of the orders in Ireland can be allayed by requiring the mother to obtain from a court of competent jurisdiction in Ireland a declaration that the Australian orders are registered and enforceable in Ireland. Her procurement of such a declaration can be a condition precedent to her removal of the children from Australia.
Requiring the mother to obtain such assurances about the enforceability of the orders in Ireland would obviate the need for the father to incur the expense and inconvenience of afterwards, in the event of the mother’s non-compliance, having to register the orders in Ireland by either requesting:
(a)The Registrar of the Court to send to the Commonwealth Central Authority a sealed copy of the orders for transmission to the Irish Central Authority (reg. 10 of the Family Law Amendment (Child Protection Convention) Regulations 2003 (Cth)); or alternatively
(b)The Registry Manager of the Court, in writing, to send a sealed copy of the orders to an “appropriate court or authority” in Ireland, even though Ireland is not yet confirmed by the regulations as a “prescribed overseas jurisdiction” (ss 70M and 70N of the Act; rr 14 and 24 and Schedule 1A of the Family Law Regulations 1984 (Cth)); and
then having to launch litigation in Ireland to enforce the orders.
The Full Court has confirmed the desirability of obtaining advance recognition and a declaration of enforceability of Australian orders in a foreign jurisdiction to which it is proposed children be taken (see Cape & Cape (2013) FLC 93-549 at [68]-[80]). The issue of advance recognition of the Australian orders in Ireland was not specifically raised in the evidence or in final submissions, but the father’s worry about the enforceability of the Australian orders in Ireland certainly was. The parties and Independent Children’s Lawyer were all on notice about the issue of enforceability and said nothing more about how the father’s concern could be satisfactorily addressed so there is no denial of procedural fairness by the Court now fashioning an order to deal with it.
The mother did not present as a person who would deliberately flout orders providing for the children to spend time with the father in Ireland or communicate with him from Ireland, particularly given she eventually proposed orders to that effect, but the requirement for her to obtain advance recognition and a declaration of the enforceability of the Australian orders in Ireland under the Child Protection Convention as a pre-condition to her relocation there with the children does not impose an unreasonable burden upon her. The Child Protection Convention requires it to be a “simple and rapid procedure” (Article 26(2)).
In the unlikely event the mother cannot obtain advance recognition and a declaration of enforceability of the Australian orders in Ireland, she should not be able to relocate there with the children. That situation would render this litigation futile, in so far as any orders would purport to regulate any international interaction between the children and the father, and imply the children’s relationships with the father would effectively end if they moved to Ireland.
Conclusions and orders
The presumption of equal shared parental responsibility is not rendered inapplicable by s 61DA(2) of the Act because the evidence does not afford reasonable grounds to believe the father engaged in family violence. I reject the submissions of the mother and Independent Children’s Lawyer to the contrary.
Nonetheless, the presumption of equal shared parental responsibility does not apply. The evidence engages s 61DA(4) of the Act because the parties have shown little interest in sharing responsibility for the significant decisions in the children’s lives in the manner required by the Act (s 65DAC).
The mother deposed she had “no issue” sharing parental responsibility for the children with the father, at least in respect of some important decisions in their lives,[58] but that was simply idealism in a pure form. The mother finds it easiest to deal with the father by simply submitting to his will when it suits her, but on issues of significance she makes up her own mind. There is no genuine commitment between them to consult, compromise, and eventually reach a joint decision. For example:
(a)The eldest child started school this year and a decision needed to be made last year about the identity of the school at which he would be enrolled. The mother made the decision and attended to the enrolment, though she informed the father about it.
(b)The mother considered the eldest child needed to consult a paediatrician about his unruly behaviour. She obtained a referral from the general practitioner and arranged the paediatrician’s appointment.[59] She told the father about the upcoming appointment after she had already made that decision and implemented it. The father vigorously disagreed with the need for the referral. Although the mother eventually cancelled the appointment, it was not because of the father’s opposition.
(c)The mother has deep religious beliefs, but the father has none. He has never objected to the mother taking the children to church with her and inculcating them with her beliefs, but if he ever did object there would be an insoluble dispute over the issue.
[58] Mother’s second affidavit, para 27
[59] Exhibit ICL10
Parental responsibility should rest with one parent and since it was uncontroversial the children would remain living with the mother, she should be conferred with exclusive parental responsibility for them.
As an independent adult, the mother has as much freedom as the father to decide where she lives, which freedom is not lost simply because she has responsibility for the children (see AMS v AIF (1999) 199 CLR 160 at 196, 206, 207-208, 210). Her freedom of choice is only curtailed by its compatibility with her parental obligations (see AMS v AIF at 223-224, 231-232; Sampson v Hartnett (No.10) (2007) FLC 93-350; Zanda & Zanda [2014] FamCAFC 173 at [132]-[136]). It is only when children’s welfare would be impinged by a parent’s freedom of mobility that the parent’s choice of place of residence should be constrained by an injunction (see U v U at 262; Cales & Cales (2010) FLC 93-459 at [74]-[91]).
The need for the children to maintain their meaningful relationships with the father is the most compelling consideration. That could best be achieved by the parents living in close proximity and would more easily be achieved by the mother and children living in Australia, but it is feasible the father could also emigrate to Ireland. He does not wish to do so, but nor does the mother wish to remain in Australia.
The genuineness and reasonableness of the mother’s desire to emigrate to Ireland are also powerful considerations, but they do not outweigh the need for the children to maintain their meaningful relationships with the father. If that cannot be achieved by the father following them to Ireland, they would be able to do so satisfactorily if he had the financial capacity to visit them in Ireland periodically over the next few years. That would only be possible if the mother furnished the father with the money to do so. He has no real prospect of acquiring such financial capacity himself in the immediate future.
Relocation disputes do not admit of perfect solutions, but in the circumstances of this case, the evidence does not justify restraint of the mother’s relocation with the children to Ireland, provided she financially empowers the father to travel there to visit them. Without such financial assistance, the father could not realistically travel to Ireland and the children’s relocation there would surely cause the eventual loss of their relationships with him, thereby justifying restraint of the proposed relocation.
The orders make provision for the payment of $20,000 by the mother to the father. That figure was fixed in reliance upon the maternal grandmother’s acknowledgement of her willingness and ability to pay such a sum. It is an amount that would probably adequately cover the cost of return airfares to Ireland and modest accommodation in Ireland by the father on an annual basis for the next four years or so. If he decides to emigrate to Ireland he will be able to use the money to defray the expense of that exercise. If the father foolishly wastes the money, impeding his ability to maintain personal contact with the children, then he will have no-one but himself to blame.
It is not unreasonable to expect the father, within the next four years or so, to start contributing to the cost of his visits. By then, the parties might even have restored sufficient trust to consider enabling the children to visit the father in Australia, but the evidence does not presently support orders regulating the family’s affairs with that level of precision that far into the future.
The mother and Independent Children’s Lawyer sought to argue the existence of statutory power for the Court to order the mother to pay the money into an account for the father’s use, it being contended such an order would be a “parenting order” within the meaning of s 64B(2)(i) of the Act.[60] At least in the absence of more thoroughly reasoned argument, I reject those submissions. In proceedings under Part VII of the Act, a stand-alone order purporting to compel one party’s payment of money to another party (other than in the form of child maintenance pursuant to Division 7, which the proposed order certainly did not) does not wear the appearance of an order validly made under ss 64B, 67ZC, 68B, or 114 of the Act.
[60] Exhibit ICL11, Order 5
Even if power did exist to make the order in the terms proposed, the evidence did not justify making it. The mother plainly has no financial resources to meet such an order. She is entirely reliant upon the generosity of the maternal grandparents to provide such financial accommodation to the father which, even though it will probably be provided, might not be forthcoming.
For those reasons, the orders are posited in conditional and alternative terms. If the mother is able to pay the stipulated sum to the father, she will be free to exercise exclusive parental responsibility for the children by choosing to relocate to Ireland with them. If she does not or cannot pay the stipulated sum to the father, she is restrained from moving the children’s residence more than 500 kilometres away from the township in which they currently live.
The mother said her choice of place of residence was either Ireland or the township in which she currently lives. However, that may not always be her view. The orders give her the latitude, if confined to Australia, to live anywhere along the east coast between Sydney and Brisbane. She could then pursue broader employment or educational opportunities if she pleased.
The Independent Children’s Lawyer, with the mother’s endorsement, sought a declaration that the mother is permitted to relocate the children to Ireland.[61] No such order is made. An order framed in such terms, as opposed to restraint of a proposed relocation, is not a parenting order within the meaning of s 64B nor a mandatory or restrictive injunction under ss 68B or 114 of the Act and is accordingly not a proper exercise of the Court’s power.
[61] Exhibit ICL11, Order 3
The mother told the Family Consultant she would willingly allow the children to spend time with the father in Ireland during school holiday periods and to frequently communicate with the father by way of Skype.[62] She made final submissions to the same effect.
[62] Family Report, para 52
The orders provide for the children to spend time with the father under differing regimes, depending upon the proximity of the parties’ homes.
If the mother and children relocate to Ireland, as is likely, the time spent by the children with the father will depend upon whether he moves closer to them. If he moves within 50 kilometres he will spend “substantial and significant time” (s 65DAA(3)) with them, comprising one evening each week, each alternate weekend, and half of school holidays. If he lives more than 50 kilometres away, but still within 500 kilometres, the weekly evening visits are abandoned, but the visits on alternate weekends and during school holidays are retained. If he lives more than 500 kilometres away, such as if he remains in Australia, then his annual visits with the children are for one month during the European summer school holidays. If the father does follow them to Ireland it is likely he will live within 500 kilometres of them.
The same regime applies if the mother and children remain living in Australia, in which case the mother’s residence is confined to a place within 500 kilometres of the father’s existing residence. If he moves further away, making it more difficult to stay in touch with the children, that is his choice.
It is impossible to make orders prescribing the venues for exchange of the children between the parties in the absence of knowledge about when, or even if, the mother relocates away from the north coast of NSW. The orders therefore require the parties to share the travelling and for them to each nominate changeover venues that are reasonably proximate to their homes.
The orders make provision for the children’s regular weekly communication with the father by Skype (or telephone), regardless of where they live.
The remaining orders are self-explanatory and could not be the subject of any rational dispute.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 7 March 2016.
Associate:
Date: 7 March 2016
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