Bergmann & Bergmann - [2021] FamCA 599

FAMILY COURT OF AUSTRALIA
Bergmann & Bergmann [2021] FamCA 599

File number(s): SYC 7892 of 2015

Judgment of: HENDERSON J

Date of judgment: 12 August 2021

Catchwords: FAMILY LAW – PARENTING – International relocation – Where the mother seeks to relocate to City B with the two children of the relationship and will do so in any event – Where the father opposes the relocation – Where the mother has lived in City B since 2017 and travelled to Australia to maintain a week-about parenting arrangement until the onset of the COVID-19 pandemic – Where both children have expressed a strong wish to spend more time with their mother – Assessment of the competing proposals and the impact of those proposals on the children – Where although the Court finds the mother is the more flexible parent and better able to assist the children to deal with change, the impact of change for the children in moving to City B and being separated from all that they have known in Australia including their father militates against such an order being in their best interests – Orders made for the children to remain in their father’s care in Australia

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC

Cases cited:
Denham & Newsham [2021] FamCAFC 141

Goode & Goode (2006) FLC 93-286

Morgan & Miles (2007) FLC 93-343

MRR v GR (2010) FLC 93-424

U v U (2002) 211 CLR 238

Zahawi & Rayne [2016] FamCAFC 90

Number of paragraphs: 901

Date of hearing: 12-16 April, 19 April 2021

Place: Sydney

Counsel for the Applicant: Mr Kearney SC with Ms Lioumis

Solicitor for the Applicant: Pearson Emerson Family Lawyers

Counsel for the Respondent: Ms Christie SC with Ms Clifford

Solicitor for the Respondent: Barkus Doolan

Counsel for the Independent Children's Lawyer: Mr Guterres

Solicitor for the Independent Children's Lawyer: Russell Kennedy Aitken Lawyers
ORDERS

SYC 7892 of 2015

BETWEEN:
MR BERGMANN

Applicant

AND:
MS BERGMANN

Respondent

ORDER MADE BY:

HENDERSON J

DATE OF ORDER:

12 AUGUST 2021

THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for X born … 2008 (12 years old) and Y born … 2011 (10 years old) (“the children”).
2.The children live with the father in Australia.
3.The Court declares Australia is the children’s habitual place of residence.
4.That upon the making of these Orders and until the mother moves to City B the children shall live with their mother in Australia as follows:
(a)From Monday 9 August 2021 to Monday 6 September 2021 (noting the mother intends to depart Australia and travel to City B, France the evening of 6 September 2021);
(b)From Monday 4 October 2021 to Monday 1 November 2021 (noting the mother intends to depart Australia and travel to City B, France the evening of 1 November 2021);
(c)From Monday 6 December 2021 to the Friday before the children return to school with the children to spend time with the father from 5 PM Christmas Day to 5 PM New Year’s Eve in 2021.

5.Upon the commencement of Term 1, 2022 the children will spend time with the mother as follows:
(a)For the entirety of the end of Term 1 and Term 2 school holiday periods each year;
(b)For the entirety of the end of Term 3 school holiday period in even numbered years;
(c)During the end of Term 4 school holiday periods as follows:
(i)In years ending with an odd number from the conclusion of the school term to 15 January; and
(ii)In years ending with an even number from 27 December until the Friday before the commencement of school the following year.

6.The children will not travel internationally whilst they are required to quarantine. Once there is no longer the requirement for the children to quarantine for international travel the children will spend time with their mother as set out in Order 5 herein in Europe or any other international destination the mother chooses and notifies the father thereof.
7.In the event the mother travels to Australia at other periods during the year to see the children the children will spend additional time with the mother as agreed and in the absence of agreement as follows:
(a)For up to three (3) of the four (4) school terms in Australia, with the mother to elect one of the following options 21 days prior to the commencement of the nominated time:
(i)Option 1: for a period of up to two (2) separate occasions of 14 consecutive night periods with a minimum of 7 days between each occasion; or
(ii)Option 2: for one (1) period of 21 consecutive nights.

(b)When the children are staying with the mother during the school term as per Order 7(a) herein the children shall spend time with their father one afternoon each week as agreed and failing agreement from 3pm to 7pm on a Wednesday.

8.That for travel by the children to France the parties shall meet one half of the cost of all travel undertaken by the children at the rate set for travel between Australia and City B at business class rates.
9.For the purpose of the children travelling to City B, France to spend time with the mother pursuant to Order 5 herein the following shall apply:
(a)The mother shall 42 days prior to the relevant school holiday period, or such other time as is agreed, provide to the father a copy of the children’s return travel itinerary and within 48 hours thereafter the father shall pay to the mother's nominated bank account one half of the children's airline travel costs;
(b)When such travel is for the entirety of a school holiday period, then the mother shall do all things necessary to ensure the children are booked on flights departing Australia the day following the conclusion of the school term unless the parties otherwise agree and shall ensure the children's return flights to Australia permits the children to arrive in Sydney on or about 8pm the Friday before the commencement of the school term;
(c)Until such time as the parents agree the children can travel to and from City B and Sydney as unaccompanied minors the following shall apply:
(i)The children shall travel as unaccompanied minors for the first leg from Sydney with the father to deliver the children to Sydney Airport. The mother to meet the children at the first stop over and travel for the second leg with the children;
(ii)On the children's return flight to Sydney, the mother shall travel the first leg with the children and the children may return to Australia as unaccompanied minors.

10.When travel pursuant to Order 5 herein is to take place overseas during the December/January Holiday periods the following shall apply:
(a)When the mother is spending the first part of such holiday period with the children, the mother shall do all things necessary to ensure the children are booked on flights departing Australia the day following the conclusion of the school term unless the parties otherwise agree and shall ensure the children's return flights to Australia enables the children to arrive in Australia on or about 8pm on 15 January or such other time as agreed;
(b)When the mother is spending the second part of such holiday period with the children, the mother shall do all things necessary to ensure the children are booked on flights departing Australia at any time on 27 December and shall ensure the children’s return flights to Australia enables the children to arrive in Australia on or about 8pm the Friday before the school term resumes or such other time as agreed.

SPECIAL OCCASIONS
11.Notwithstanding any other order and in the event both parties are in the same country, the children spend time with their parents as follows:
(a)On Father's Day Sunday and the father's birthday each year from 9am to 5pm or, if the father's birthday falls on a school day, for a period of 3 hours on that day with the father;
(b)On Mother's Day Sunday and the mother's birthday each year from 9am to 5pm or, if the mother's birthday falls on a school day, for a period of 3 hours on that day with the mother;
(c)With the father on each of the children's birthdays for a period of 3 hours at a time to be agreed between the parties and in the absence of agreement from 3pm to 6pm in the event the children are not in the father's care that day;
(d)With the mother on each of the children's birthdays for a period of 3 hours at a time to be agreed between the parties and in the absence of agreement from 3pm to 6pm in the event the children are not in the mother's care that day;
(e)In odd numbered years and provided the children are not travelling overseas on the relevant date, the children shall live with the father on the first night of Holiday 1, the second night of both Holiday 2 and Holiday 3, and the second night of Holiday 4;
(f)In odd numbered years and provided the children are not travelling overseas on the relevant date, the children shall live with the mother on the second night of Holiday 1, the first night of Holiday 2 and the first night of Holiday 4;
(g)In even numbered years and provided the children are not travelling overseas on the relevant date, the children shall live with the mother on the first night of Holiday 1, the second night of both Holiday 2 and Holiday 3, and the second night of Holiday 4;
(h)In even numbered years and provided the children are not travelling overseas on the relevant date, the children shall live with the father on the second night of Holiday 1, the first night of Holiday 2 and Holiday 3, and the first night of Holiday 4.

TRAVEL OVERSEAS
12.That pursuant to section 65Y(2) of the Family Law Act 1975 (Cth) each party be permitted to travel internationally with the children when the children are in that party's care or at other times as the parties agree upon in writing provided that:
(a)42 days prior to the intended travel the travelling parent provide to the other a copy of the children's return travel itinerary and details including a contact telephone number and details of all places at which the children are to stay during the period of travel;
(b)The period of travel must only be during the school holiday periods or on a weekend or public holiday save where otherwise agreed in writing between the parties.

13.The parties will do all things necessary and sign all documents required to ensure the children have valid EU, USA and Australian passports at all times and each party will meet one half of the cost of the applications for updated and/or renewed passports for each of the children.

PASSPORTS
14.The father shall retain possession of the children's passports other than when the children are travelling internationally with their mother from time to time.

GENERAL ORDERS
15.That any order placing the children's names on the Airport Watchlist shall stand discharged immediately upon the making of these orders, so that the children's names are no longer on the Airport Watchlist and the parties shall do all acts and things and sign all documents necessary and as required by him or her to ensure that the children's name are removed from the Airport Watchlist.
16.That unless otherwise specified in these orders, changeover shall occur at school and if a non-school day, the parent receiving the children into their care shall collect the children from the other parent with changeover to take place at 9am.
17.Notwithstanding any order to the contrary each parent shall be permitted to attend the children’s extracurricular activities.
18.The parties shall ensure that the other parents' details are provided to any school the children are enrolled in, and that the other parent's name is listed as the next of kin in any form concerning the children’s education, health, future care, welfare or development.
19.In the event either child is taken to hospital for any reason or consults a specialist whilst in the mother's care the mother shall promptly inform the father of the name of the hospital, treating doctor and authorise the father to contact the hospital/doctor/ specialist to make enquiries as to the children’s wellbeing.
20.In the event either child is taken to hospital for any reason or consults a specialist whilst in the father’s care the father shall promptly inform the mother of the name of the hospital, treating doctor and authorise the mother to contact the hospital/doctor/ specialist to make enquiries as to the children’s wellbeing.
21.That neither parent shall criticise or denigrate the other parent to the children or within hearing distance of the children.
22.That each parent notify the other as soon as possible, and in any event, within five (5) hours of any serious injury or illness suffered by the children whilst with that parent.
23.That each party notify the other no more than 48 hours after any change to their address and/or landline and/or mobile number and/or their email address.
24.That each party notify the other of the address and telephone numbers of the place/s where the children will be staying during holiday periods in Australia spent away from their residence not later than 24 hours prior to the commencement of any such holiday.
25.That the parent with whom the children are living with shall ensure the children are able to electronically communicate with the absent parent whenever they so wish.
26.That the mother shall do all things necessary to forthwith seek the entry of orders in a court of competent jurisdiction in France in identical terms to the Orders made by this Court.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bergmann & Bergmann has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT

This is a parenting application brought by Mr Bergmann (“the father”) seeking that the children remain living with him in Australia. The application of the mother, Ms Bergmann (“the mother”), is that the children relocate to City B where she intends to live whether or not the Court makes an order that the children live in City B with her. The children are X, born in 2008, now 12 and a half, and Y, born in 2011, now 10.
Mr D prepared two reports in the matter on 11 November 2019 and 8 April 2021. As Mr D said in his report of 11 November 2019 the issues in the matter are narrow, the children either remain living in Australia with their father, or they relocate to France to live in City B with their mother. Although the issues are narrow, the consequences for the children of either order, being the only orders I can make, are profound and will have long term consequences for them and their parents.
Ms Christie SC acted for the mother, Mr Kearney SC for the father, and Mr Guterres of counsel represented the Independent Children's Lawyer (“ICL”). At the conclusion of the trial, the ICL’s position was that it was not in the children's best interests to relocate with their mother to France and posited that this was consistent with the view expressed by Mr D in his reports released 11 November 2019 (“the first report”), marked Court exhibit 1, and 8 April 2021 (“the second report”) marked Court exhibit 2.
Mr D did not state what option was better for the children in his reports per se and was at pains in his oral evidence to confine his opinion and recommendations to his view that the children remaining in Sydney was the “more certain option” and this conclusion led him to the position of not supporting the children living with their mother in France. This was the highest his opinion reached even after extensive cross-examination. There is no doubt the children remaining in Sydney is the less disruptive option for the children and that there are many uncertainties for the children living in France with their mother.
The evidence I must have regard to in the exercise of my discretion in determining the order in the children’s best interests is not confined only to disruption to their usual care arrangements and the consequences to them of such a disruption. My enquiry is far broader than that. Disruption to a child’s usual care arrangements is, however, a most important aspect of my deliberations.
The hearing was extremely well run. Both senior counsel for the mother and father explored all relevant issues and made practical, sensible submissions at the end of the hearing which assisted the Court in making this extremely difficult decision of a narrow compass. The reality is, whatever decision the Court makes, one parent will be bitterly disappointed and the children will continue to grieve the loss of the other parent in their life.
The matter was initially listed for hearing in April 2020. The matter could not take place at that time due to the lack of available judicial resources in the Sydney registry and the impact of COVID-19 on face to face hearings being conducted and a new hearing was allocated in April 2021. By that stage Mr D had produced a second report dated April 2021.
Material relied upon by the father:
(1)The father’s case outline and minute of order contained therein filed 9 April 2021;
(2)Affidavit of the father filed 8 March 2021;
(3)Affidavit of Mr E filed 8 March 2021. Mr E is the CEO of Company F, with whom the father is employed and has worked since the parties came to Australia in or around 2008;
(4)Affidavit of Mr H Bergmann, the children's paternal grandfather, filed 21 February 2020;
(5)Affidavit of the father’s sister, Ms G Bergmann, filed 21 February 2020.
All of the father's witnesses were cross-examined.
Material relied upon by the mother:
(1)The mother’s case outline and minute of order contained therein filed 6 April 2021;
(2)Affidavit of the mother filed 8 March 2021;
(3)Affidavit of her mother, Ms J, filed 8 March 2021;
(4)Affidavit of her partner, Mr K, filed 8 March 2021;
(5)Affidavit of her father, Mr L, filed 8 March 2021;
(6)Affidavit of Ms M filed 10 March 2021;
(7)Affidavit of Ms N, the mother’s psychologist, filed 1 October 2019.
Neither Ms M nor Ms N were cross-examined, and their evidence goes in unchallenged. The mother’s mother, father and her partner Mr K were cross-examined.
Mr D’s report dated 11 November 2019 was marked Court exhibit 1 and report dated 8 April 2021 was marked Court exhibit 2. Mr D was cross-examined.
Attached to the parties’ affidavits were the usual voluminous annexures, together with voluminous exhibits tendered at the hearing.
The Independent Children’s Lawyer tendered a case outline marked Independent Children’s Lawyer’s exhibit 1.
The exhibits were as follows.
For the applicant husband:
(1)Applicant husband's exhibit 1: Case outline of the husband;
(2)Applicant husband's exhibit 2: An email dated 3 August 2020;
(3)Applicant husband's exhibit 3: An email dated 24 November 2020;
(4)Applicant husband's exhibit 4: Pink tabbed page of an email dated 21 October 2020 contained within the U Psychology documents;
(5)Applicant husband's exhibit 5: Letter from Russell Kennedy Lawyers to the husband's lawyers dated 22 September 2020;
(6)Applicant husband's exhibit 6: Two yellow tabbed pages contained within documents from Company F;
(7)Applicant husband's exhibit 7: Documents from O School, Y's school, regarding his potential enrolment at the P School in City B;
(8)Applicant husband's exhibit 8: Documents produced by the mother relating to her COVID-19 testing, she having contracted COVID-19 in 2020 whilst in France;
(9)Applicant husband's exhibit 9: A bundle of documents relating to the mother's payment of a bond to have the children travel overseas with her in the sum of $50,000;
(10)Applicant husband's exhibit 10: WhatsApp messages between the wife and her father regarding a former friend of the mother's, Ms Q. These were the wife's personal documents that the husband had produced;
(11)Applicant husband's exhibit 11: COPS report in relation to allegations that the mother had produced fraudulent invoices;
(12)Applicant husband's exhibit 12: An email dated 5 July 2020, from the mother to the father;
(13)Applicant husband's exhibit 13: A bundle of correspondence from S Travel Agents dated July 2020 in relation to the mother's desperation to return to Australia as soon as she could;
(14)Applicant husband's exhibit 14: Correspondence in relation to cancelled flights from 28 July 2020;
(15)Applicant husband's exhibit 15: Communication between the father and maternal grandmother;
(16)Applicant husband's exhibit 16: Blue tabbed documents from U Psychology;
(17)Applicant husband's exhibit 17: Text message between the father and the maternal grandmother dated 31 May 2016;
(18)Applicant husband's exhibit 18: Complete set of text messages between the father and the children in a chat called "R Group";
(19)Applicant husband's exhibit 19: A bundle of correspondence between the mother and the P School dated 13 May 2020;
(20)Applicant husband's exhibit 20: A bundle of documents being print-outs from an official French Government website in relation to current COVID-19 restrictions in France;
(21)Applicant husband's exhibit 21: A bundle of text messages between the mother and children beginning 23 April 2019.

For the respondent wife:
(1)Respondent wife’s exhibit 1: Case outline of the wife;
(2)Respondent wife’s exhibit 2: An email dated 6 September 2020 from the father to the mother;
(3)Respondent wife’s exhibit 3: Documents produced from U Psychology, being reports of psychological assessments and meetings with the child X and Ms T;
(4)Respondent wife’s exhibit 4: Two pages, tabbed green, of documents produced from the husband's employer, Company F, particularly in relation to his leave entitlements;
(5)Respondent wife’s exhibit 5: In particular, green tabbed pages of the U Psychology documents, however I note I have read the entirety of that file as best I can having regard to the poor state of Ms T's handwriting;
(6)Respondent wife’s exhibit 6: Green tabbed pages of documents from X's school, W School;
(7)Respondent wife’s exhibit 7: Blue tabbed pages of documents from Z Psychology;
(8)Respondent wife’s exhibit 8: Blue tabbed documents from AA Psychology;
(9)Respondent wife’s exhibit 9: A bundle of correspondence between the lawyers commencing 8 September 2020;
(10)Respondent wife’s exhibit 10: Correspondence between the parties commencing 21 December 2020;
(11)Respondent wife’s exhibit 11: Correspondence between the wife and her former father-in-law Mr H Bergmann, commencing 29 March 2021;
(12)Respondent wife’s exhibit 12: Border force documents in relation to travel restrictions for Australian citizens leaving Australia;
(13)Respondent wife’s exhibit 13: All the documents produced by U Psychology;
(14)Respondent wife’s exhibit 14: A bundle of documents, the first entitled “Interim Briefing Confidential”, being part of a report or investigation the husband asked to be carried out by a Mr BB together with three invoices for work carried out directed to the husband of $2,200 on 17 August 2016, $3,300 on 16 November 2016 and $5,500 on 31 March 2021. This was in relation to the wife's financial position. This being a parenting application;
(15)Respondent wife’s exhibit 15: A complete bundle of documents produced by W School;
(16)Respondent wife’s exhibit 16: A single page from W School, dated 13 June 2018, called "Parent Contact Report";
(17)Respondent wife’s exhibit 17: A document prepared by Ms Christie SC, being the legal principles involved in a relocation;
(18)Respondent wife’s exhibit 18: The wife's proposed interim orders.
For the Independent Children’s Lawyer:
(1)ICL exhibit 2: Documents produced on subpoena by Ms N, in an agreed tender bundle by all parties;
(2)ICL exhibit 3: The Independent Children’s Lawyer’s minute of order;
(3)ICL exhibit 4: Bundle of documents outlining COVID-19 restrictions in France;
(4)ICL exhibit 5: Their costs notice.
Court exhibit 3 was the parties’ costs agreements, and the Court notes the parties have spent in excess of $1 million on this litigation.
RELEVANT CHRONOLOGY
In 1964 the mother's current partner, or fiancé, Mr K was born in France.
In 1977 the father was born in New Zealand.
In 1982 the mother was born in the United States of America.
In 2003 the parents met in City DD and in 2006 they commenced cohabitation in City DD.
In December 2005 was the mother's first trip to Australia.
In August 2006 the parties became engaged and in December 2006/January 2007 the parties left City DD and moved to Brisbane due to the father's employment. In 2007 the parties married in City EE, Country FF. In June 2007 the parties moved to Sydney due to the father's employment, having initially arrived in Australia and lived in Brisbane.
The father works for Company F, a company in which his father has purchased a significant interest. It is a publicly listed company, the father is a senior manager and has a contract of employment with that company. Although he and his father work in the company, it was clear they work professionally and as if they were not related.
X was born in 2008. When X was an infant the mother took her, for her work-related travel, throughout GG Region and Europe by agreement.
In 2011 Y was born and later that year the mother took both children to France so that they could meet her family for about a month.
The mother commenced to undertake overseas travel in Country HH and GG Region, for work, after her return from France. By November 2011, the mother ceased taking X with her on work related travel. Y was a difficult child who did not sleep well and by mid-2012 the mother and father were concerned by his lack of speech.
By late-2012 the mother became very unhappy with the marriage. From 2013 to 2019 the mother travelled from Australia to GG Region for work.
In September 2013 the mother took Y for a sleep study and he was found to have sleep apnoea and had his tonsils and adenoids removed, at two and a half years of age. The mother's unhappiness with the marriage continued, and she confided in various friends.
It is an agreed fact that from mid-2014 the mother began to travel extensively for work. She admitted the same to Mr D. The father, with the assistance of a nanny and his mother, cared for the children.
The mother could, at times, be away at most three weeks a month, but generally two weeks per month.
In 2015 the mother began to seek solace with a friend, Mr JJ, and this emotional relationship continued until early 2017.
The mother contends the father accessed her WhatsApp messages without her consent and that must be correct as one of his tenders, applicant husband’s exhibit 10, was a WhatsApp message between herself and her own father dated 22 December 2015.
The father has completed a schedule in his case outline that says by 2015 the mother was spending 40 per cent of the year travelling for work.
In October 2015 the mother travelled to Country LL for two weeks. In November 2015, to Country KK for two weeks.
The parties separated, it would appear, sometime in early December 2015 and the father filed an application in the Court seeking equal shared parental responsibility, restraining the other party from removing the children from Australia and placing them on the Airport Watch List.
The parties remained separated under the one roof.
From separation until January 2019 the mother largely lived between Australia and Europe. The official date of separation was 4 December 2015.
Post-separation the father did not agree for the family, including himself and the children, to travel to Europe to celebrate the maternal grandmother's 60th birthday. These were events and travel that they had previously engaged in.
On 8 December 2016 the mother requested the children travel to Europe to attend their maternal great-grandfather's 90th birthday and that was refused. Both maternal great-grandparents have since passed away.
In May 2016 the mother requested the children attend City DD to see their maternal grandmother, where she was living at that time, and this was refused. This was in circumstances where the father said the mother had raised a relocation to City DD.
The mother was required to make an application to the Court to allow her to travel with the children to Europe in June 2016 as the father would not consent.
The mother engaged Ms N in September 2016 to assist her with the personal difficulties she was experiencing.
On 23 May 2016, interim orders were made that the parties would have equal shared parental responsibility.
Neither parent could take the children out of the country.
The mother could take the children for a specific period and on condition of providing a bond of $50,000 for such travel
Further interim orders for parenting were made on 4 October 2016 that the children would live with their father from after school Wednesday until Friday and then from afterschool Wednesday to before school Monday in week 2, otherwise they would live with their mother.
The mother commenced to travel overseas for work on the five days the children were in their father's care.
In November 2016, the parties entered into a binding child support agreement where the parties agreed to equally share the cost of the children's private school fees and that has been carried out despite the father's criticism of the mother.
Property proceedings were resolved by consent on 14 November 2016.
On 20 December 2016, the mother took the children to City B and travelled to the USA. They were stopped at the airport, taken into a room, and told words to the effect that, “We were given a tip off that two children with your children's names and dates of birth would be travelling and it is suspicious”. This caused the mother and her children extreme distress given the mother was by order permitted to travel.
The mother asserts the father caused this event, he denies he did so.
In 2017, the father arranged for a birthday party for X and did not invite the mother, contra the mother always inviting the father to functions she has held for the children in Sydney including their birthdays.
By 11 December 2017, the parties had agreed to vary the orders to provide a seven day period of time with each parent.
The children have complained in the past about these orders saying they miss the other parent in their off week. The regime of time saw the mother carry out her work in Europe and return to Sydney and care for the children in the other week. This was an extraordinary commitment, as Mr D noted, to the parenting of her children.
The parties were divorced on 14 April 2018.
The mother raised issues that the children required some counselling in October 2017. The father did not agree.
In December 2018 X commenced seeing Ms T at U Psychology in Suburb V weekly, switching to fortnightly in June 2019.
The mother commenced her relationship with her current partner, Mr K, in January 2019 and confirmed on 23 May 2019 she would be seeking to live in City B and that she wanted the children to live with her in that city.
The mother asserts that from about 2018 the social networks that she had during the marriage began to disappear and that she became increasingly isolated living in Australia. That the children, particularly X, were experiencing difficulties with their friendship groups at school in 2018 and X was biting her nails.
The father's lawyers wrote to the mother's lawyers on 22 May 2018 asserting that the father did not agree that the children were suffering sufficiently to warrant counselling. However, the notes from W School show that X was struggling with her friendship groups and this was set out in a parent contact report dated 17 May 2018 and the father had contacted the school on 16 May 2018 about X's difficulties. His reluctance at that time to agree to counselling, at a minimum, with the school counsellor is puzzling on these facts.
In June 2018, the mother closed her Sydney office.
On 4 June 2018, the father was still refusing to engage a counsellor for the children or even allow X to attend the school counsellor.
On 13 June 2018, the father had a meeting at W School without the mother.
On 29 June 2018, orders were made varying the overseas travel requirement.
From 1 July 2018 to 12 July 2018, the mother took the children to City B.
On 12 September 2018, the parties had a meeting at X's school and the school suggested external assistance.
On 25 September 2018, the father asked for another appointment with the school.
By 2 October 2018, the father had still not responded to a request that X see a counsellor, some six months after this had been sought by the mother.
On 16 October 2018, the mother received a call from Ms MM, X's schoolteacher. The father received a phone call from her the next day, 17 October 2018, and the father agreed to X attending counselling at her school.
Only after the school emailed the parents on 26 November 2018 saying they believed external counselling would assist did the father agree to X seeing an external counsellor.
On 15 December 2018 the mother was due to travel to the USA with the children. The mother and children were at the airport ready to fly and the mother was stopped from so doing due to a PACE alert issued by the Australian Tax Office (“ATO”) and she could not travel at that time due to a departure prohibition order (“DPO”) having been issued.
On 19 December 2018, the DPO preventing her travel was revoked. The mother became subject to an audit in relation to taxation issues. These events have culminated in a re-assessment of the mother’s tax and that of her company in Australia and has resulted in additional tax being paid by her. Outstanding taxation matters for unpaid tax are still ongoing in the Australian Administrative Tribunal (“AAT”).
From 2020 the mother no longer had clients or projects in Sydney and worked exclusively in Europe.
In April 2019, the mother became very unwell with an infection.
From 19 April 2019 to 29 April 2019, the mother took the children to City B and Location NN for a holiday where Mr K owns a holiday home.
In May 2019, the mother discharged her income tax liabilities and director penalties in full, $68,817, and paid the super guarantee of $41,895.44.
On 1 May 2019, objections to the Audit Income Tax Assessments were filed.
In 2019, a newspaper published an article about the mother and her taxation woes. The mother asserts the information they published was false and the article denigrated a project she had recently completed.
From 10 July 2019 to 22 July 2019, the mother and children travelled to Country OO with Mr K and two of his children for a holiday.
By August 2019, the mother was still not invited into the father's home at changeover despite the mother reciprocating and allowing him so to do.
The mother says her friends have heard the father speak disparagingly of the mother at coffee with friends. A prior friend, Ms PP, the wife of one of the father's best friends, ignored her when they were crossing the road at a local supermarket and the mother says her isolation and feeling of rejection in Australia continues and it is incomprehensible to her.
The mother says on 18 August 2019 X said to her:
Mr QQ handed me his iPad so I could play with Alexa, but he gave it to me open on the conversation with dad. When I looked closer, I saw a text message that dad had sent Mr QQ with a picture of the article. Dad said you are a crook and that you are disgusting.[1]
[1] Mother’s affidavit filed 8 March 2021 at [284].
From 4 January 2020 to 25 January 2020, the mother took the children to USA and France for a holiday. The mother remained in Australia from 9 March 2020 until 23 June 2020 due to COVID-19 restrictions, and the children were in a week-about care arrangement.
The children were home-schooled due to COVID-19 and the parties were very cooperative in parenting their children. The children began to express a wish to spend more time with their mother at this time.
On 24 June 2020, the mother travelled to France and could not return to Australia until 13 August 2020 due to COVID-19 restrictions. X told her mother that Y was not coping:
…He cries in my room as he doesn't want Dad to see him because he’s scared of his reaction… I'm too scared to speak… I think Dad is listening…I'm sure dad is reading my messages.[2]
[2] Mother’s affidavit filed 8 March 2021 at [104], annexure “AB8”.
The children were extremely distressed in their mother’s absence and the father agreed with this in cross-examination.
On 14 August 2020, the mother returned from France and entered a two-week quarantine period. The mother could not return to the country any earlier due to COVID-19 restrictions. The mother says X's year 6 teacher told her:
X has not been herself since you have been away…She has really struggled being separated from you.[3]
[3] Mother’s affidavit filed 8 March 2021 at [102].
It was at this stage that X again began to see the school counsellor. The mother consented immediately. The father took three reminders from the school and three months to consent, again a puzzling delay.
On 28 August 2020, the mother had completed her two-week quarantine period and the children came into her care. The June-August 2020 period of nine weeks was the longest period the children had been separated from their mother.
There is no doubt, during the period of time that the mother was overseas from June to August 2020, there were communications between the parties about her capacity to return to Australia and that her anticipated return dates did not eventuate and that this caused uncertainty for the children and the father. This uncertainty was not her doing yet the father’s affidavit would indicate to the contrary.
In October 2020 X saw the school counsellor.
On 9 October 2020, the mother returned to France and Y is reporting saying to his father “It was really hard to be away from you”[4] and I accept that is correct.
[4] Father’s affidavit filed 8 March 2021 at [107].
After the mother returned to Australia in August 2020, she informed the father that she would have to travel back to France in October 2020 and asked if they could vary the care arrangement for the children because she had been absent from them for nine weeks. The mother asked for the children to travel to France in August 2020 to be home-schooled by her. The father did not agree, and I do not criticise him for that decision.
On 7 September 2020 the children returned to their father's care and the mother requested they stay in her care until she travelled to France in October 2020, and suggested mediation.
The father did not agree to any variation of the week-about time with the children in circumstances where they had not seen their mother for almost nine weeks.
The mother travelled to France on 9 October 2020, was due to return on the 20th but her grandmother died in late October 2020. The mother then contracted COVID-19 and tested positive until 20 November 2020.
The mother contacted X's counsellor, Ms T, while she was away to discuss her daughters progress.
On 26 November 2020 the mother returned to Australia and was placed in quarantine. On 2 December 2020 the mother suggested the children stay with her for an extended period of time, up until the father was to take the children to Queensland on 10 January 2021, given the extensive periods of time the children had missed out on spending with her in 2020 approaching nine weeks due to her absence from Australia for 18 weeks.
The children did not live in a week-about arrangement in July-August 2020 and again in October-November 2020.
The father consented to an increase in time to 4 January 2021 telling the mother he had already agreed to give her an additional week in December 2020 and ultimately the children had some two additional weeks of time with their mother.
Surprisingly, the father disagreed with the mother that the children had been struggling in her absence.
The children sent messages to their father when they came into their mother’s care in December 2020 asking for more time. The mother was instrumental in putting the children in direct conflict with their father at this time, for she knew he would not agree.
In February 2021 the mother sought a variation of the current orders and that the children live with her for two weeks and one week with the father or one month with her and one month with the father as the week-about was not working for the children. The father would not agree.
The mother made an application to put in place this varied arrangement which the Independent Children's Lawyer supported. The father would not agree.
FATHER’S EVIDENCE
The applicant father was cross-examined initially by Ms Christie SC. The father agreed, and it is clear, both the children are talented students, particularly Y. They are progressing extremely well at school and there can be nothing other than that the father and the mother have provided exemplary care to the children post-separation.
The mother has travelled overseas for work for many years. From 2012 the mother's time travelling for work increased to about 80 nights a year, culminating in some 147 nights per year prior to separation.[5] Whilst the mother was travelling for work there is no doubt the father, assisted by a nanny, cared for the children. The father would not agree that in 2020 the mother continued to provide the children with a stable, secure or a predictable home despite COVID-19. That was unfair of him for the following.
[5] Affidavit of the father filed 8 March 2021 at [58].

The mother has rented a home in Sydney at a cost of $10,000 per month to provide stable and secure accommodation for the children when in her care in the week-about arrangement. The mother had no control over the restrictions placed on travellers to Australia. The husband did not acknowledge her need to travel to Europe to maintain her income, honour her binding child support agreement obligations and to attend to personal matters that are important to her such as the death of her grandmother.
The father has no such pull on his life. His life and family are in Australia and it would have behoved him to understand the mother’s difficulties in this regard.
It is correct that since very early after separation the mother raised with the father that she wished to relocate to live near to where her mother was living which, at that time, was City DD and subsequently her mother has moved to City B. Thus, it was an error for Mr D to say at paragraph 4 of the first report:
Over the last four years, Mr and Mrs Bergmann have continued an equal care arrangement. Following the physical separation, Mrs Bergmann effectively travelled during the week when the children were in their father's care. Notwithstanding that this has been a functional arrangement, according to Mrs Bergmann, it has taken a huge physical and psychological toll, culminating in her wish to relocate with the children to City B.
The error was his opinion that it was only due to the huge physical and emotional toll placed on the mother travelling back to Australia each second week to parent her children that caused her to want to live in City B. The reality is this has been her desire for a much longer period of time, namely to live overseas with her children and where her mother was living and the father was aware of this long held desire of the mother.
The father has been well aware since separation the mother has wanted to live in Europe and live where her mother lived which, in February 2019, was City DD. Thus when the mother sought to live with the children in City B, this was not a change of her plans with no reason.
The husband expressing surprise that the mother only told him she was wanting to move to City B a week before the commencement of the Less Adversarial Trial in May 2019 is perhaps a feigned surprise in these circumstances. However I accept her lawyer's letter of February 2019 stated she was intending to live in City DD prior to this event.
The father was open when first cross-examined by Ms Christie SC and he made concessions such as that he has seen Y cry because he misses his mother. That the children cry when their mother is in Sydney as they miss her and the father reassures them as I am sure he does. However the father presented in his evidence as inflexible and unable to change for the benefit of his children for the following.
The father could not take that further step for his children and, for example, arrange for them to see their mother when she was in Sydney and in his care. This is consistent with his attitude when the mother returned to Australia in early December 2020, having not been able to return to Australia for some eight weeks in the previous months, that the father could not see his way clear to allowing the children to be with her until such time as he went on his holiday to Queensland on 10 January and insisted they be returned on 4 January. I accept he had agreed to them spending time with their mother from 28 December 2020 to 4 January 2021 and for one earlier week in December however this hardly makes up for the time they had missed with her in 2020.
The father's view that he has provided make-up time for the children and their mother is fallacious. The children missed out on over two months of time with their mother from July 2020 to early December 2020 and the father could not see his way clear to provide significant additional time to the children to make up that which they had lost with their mother due to the consequences of this all-consuming pandemic. They have perhaps had three to four weeks of make-up time at best when they lost nine weeks of time with their mother.
The father complained there has been irregularities in the mother's provision of the $50,000 bond. They are minor and of no importance to the Court as the bond has been provided, otherwise the father would not have agreed to the children travelling. These petty complaints rather support the mother's view of the father's inflexibility towards, and negative attitude of, the mother. The conduct of his lawyers and their at times aggressive correspondence with the wife’s lawyers did not assist their client or his case.
The father said if Y cries and his mother is in City B he lets him call her, he hugs him and tells him it will be okay. The father's position initially was that if the mother was living in City B and the children remained in Australia with him, the mother would only have 50 per cent of school holiday times. He proposed 50 per cent of the whole of the school holiday times in September/October, knowing that his children's current school holiday times do not match up in those holidays. When it was put to him why could he only see the children having half school holidays with their mother mid-year if she was in City B and they in Sydney, he answered, “yes, they need more time with their mother, but they need time with their father” despite them living with him in Australia full time, 24/7. It was extremely difficult for the father to make any concession or vary the arrangement that he believed was best for the children: seven days on, seven days off with each parent, “the plan” as he kept referring to, when it is apparent this will not be continuing and has not been in place since the second half of 2020.
It was apparent that the father's view was if the children lived in Australia, he hoped that the mother would continue to carry out the extraordinary level of travel she has engaged in to maintain her parenting of the children post-separation which was alternate weeks from July 2017 to June 2020 and currently, by agreement, month-about pending delivery of this judgment. It was clear on the mother’s material that she was not intending to keep up this regime of time and could no longer physically do so and that this commitment to her children had come at a high price to her own health. Although the father maintained “the plan” was best this was no longer an option on the table on any reading of the evidence.
The mother had maintained the week-about regime of time with the children since effectively separation in 2015 and continued this when she relocated to Europe in 2017. It is an extraordinary commitment which has taken a significant personal, emotional and physical toll on the wife's health. Thus it is incorrect to state that the children have been doing well in Australia in their father’s care and the correct statement is the children have been doing well in Australia in their parents’ shared care.
The father was asked whether Y speaks about times he spent in City B, and whether he get on well with the wife's partner's children, TT and SS. He replied:
[SENIOR COUNSEL FOR THE MOTHER]: What has [Y] told you about TT?
[THE FATHER]: He hasn’t mentioned TT to me.
[…]
[SENIOR COUNSEL FOR THE MOTHER]: Has he mentioned SS to you?
[THE FATHER]: No.
[SENIOR COUNSEL FOR THE MOTHER]: Do you understand from what you read that he gets on well with both TT and SS?
[THE FATHER]: I don’t know. He says he does. I – I don’t know.
[SENIOR COUNSEL FOR THE MOTHER]: Okay. If he says he does, does it concern you that he hasn’t spoken to you about them?
[THE FATHER]: No. It doesn’t concern me.
[SENIOR COUNSEL FOR THE MOTHER]: Do you think he might be worried about talking to you about TT and SS?
[THE FATHER]: I don’t know.
Either the father cannot not hear that the children have a good time in City B and get on well with Mr K’s children because it is too painful for him to hear this, or they cannot speak to him about these matters, or he is not telling the truth or a combination thereof. In any of the above scenarios this is a problem for the children for whatever order I make they will be spending time with Mr K and his children when they see their mother and their father will not know what is going on for them in a significant part of their life.
Of concern is that he did not raise this issue with Professor UU, namely why Y does not talk to him about TT and SS and times he has had in City B with his mother and her partner. The father said he went to see Professor UU because he noticed some behavioural changes in X and he wanted to talk to him about what Ms T had told him, things he had observed and the feedback he was getting. This was proactive and positive conduct of the father. His discussions with Professor UU were not limited in any way and he could have raised this as an issue with him if he felt it was important or realised it was a matter that should be addressed. Perhaps the importance of getting to the bottom of this conundrum was not understood by the father.
The behavioural changes he noticed in 2019 were:
I noticed that she started to feel like she wanted more independence…and privacy and was also becoming a bit resistant to routine…and rules. I also saw that long periods without Mum were difficult for her, and she had also had a few squabbles with friends at school and with her brother, and so those were just some of the things
Despite the father saying this, he was resistant to the child seeing Ms T and seeing the school counsellor initially as the chronology reveals at paragraph 59 of this judgment and onwards. It takes the father a long time to see or acknowledge there is an issue, to accommodate that issue for the children or to consider the spectre of change and its consequences. This cannot be good for children as they grow and develop and their needs change. The father may be content and happy with his life, his routine, his family, his job. His children are in the midst of change, fundamental change for them personally, no matter where they live and with which parent they live. I became concerned at the father's resistance to even discussing the consequences of change in cross-examination as part of his role to understand the needs of his children when change occurs, as it will.
The father is adept at telling the half-truth as follows.
At paragraphs 178 and 179 of the father’s affidavit where he said:
X and Y speak some French words and phrases. They understand the simple French which Ms Bergmann speaks to them, but I have observed they typically respond to Ms Bergmann in English. As mentioned, Y was delayed in speaking, and as a result Ms Bergmann did not speak any French to either of the children to avoid confusion. Both children have attended beginner French classes at school as part of the general curriculum since they started school.
179. In May 2019 when Ms Bergmann changed her application to relocate with the children to France, Ms Bergmann made arrangements for the children to attend French lessons after school in the alternate weeks they were with her. These lessons ultimately only commenced in August 2019…and were stopped after the children had 3 lessons…
Reading these paragraphs I was left with the impression the children had little French when this is wrong. They are not native French speakers, but they speak French. The referral to Ms T said the children spoke English and French at home. Y won an award for French at school and admittedly that report was annexed to the father's affidavit, but his affidavit did not provide this information.
Further, from a reading of paragraph 179 of the father's affidavit, the Court was left with an impression that the mother had started French lessons for the children only when her desire to live in Europe was made known. This was erroneous and a half-truth as they had been having French lessons since 2014. The children commenced French lessons with Ms VV and when this was put to the father he said he could not recall. I accept this evidence given it is consistent with the evidence that the mother is the most proactive parent and continues so to be despite living primarily in Europe. It may also be as a consequence of the father’s work taking the majority of his time and his confidence in leaving arrangements for the care of his children to the mother when the relationship was on foot.
Thus despite the father not telling the Court in his affidavit the children had good French speaking skills, he agreed they have very good school level French in cross-examination. The father would not facilitate the children having French lessons in his weeks and this was a poor decision by him.
Ultimately, and post the hearing, by consent I received evidence the children have now been accepted into the AE School to commence the school term in August 2021 and that this school is an English speaking school .Thus, although I accept that they are not native French speakers, they are intelligent and quick leaners and will, as children do, pick up quickly a language they have familiarity with. Their asserted trouble with the language was ultimately a red herring.
A further example of a half-truth told by the father is that the father told Mr D that the mother had wanted to move to City WW, then City DD and now City B and repeated same in his affidavit. Under cross-examination he agreed the mother has never raised the spectre of living in City WW. This was the father believing what another parent told him Y had said to his son when the two children were spending time together. It was very poor of the father to raise this as something the mother had wanted to do given the source of the information.
The father knows that the mother has always said she wanted to live where her mother lived, which at an earlier point in time was City DD and from 2019, City B, and never City WW. The father should simply have admitted this in his affidavit and not repeated this misinformation to Mr D in an attempt to allege the mother has had constant changes in living arrangements when this is not correct.
The father gave evidence of the difficulties that COVID-19 created for him and the children. They could not go to school, he could not go to work, let alone the issues it created for them and their mother and spending vast tracts of time without her from July 2020 to December 2020. The father was correct: it was a most difficult time and the reality is he was left to deal with the children’s grief single-handedly which he did well, to his credit.
The father made unfounded and unfair criticisms of the mother at paragraph 169 of his affidavit, for example:
There have been ongoing difficulties in terms of Ms Bergmann’s compliance with these Orders. Ms Bergmann rarely provides notice of her itinerary for international travel with the children in the required timeframe and last minute arrangements have frequently had to be made for Ms Bergmann to pay her outstanding child support, being educational and medical expenses for the children… Ms Bergmann then makes rushed arrangements for the payment to be brought up to date immediately prior to any travel so that the children can be temporarily removed from the Watch List as stipulated in the Orders.
These events were out of her control. The father sticks to the rules religiously and yet complains that the mother is not flexible in letting him spend time with the children mid-week when they are in his care, a time when they had not been in their mother's care for approaching nine weeks out of six months. The father does not accommodate change readily and this is in stark contrast to the mother as the evidence revealed.
If the mother seeks a change he is critical of her as he sets out in paragraph 142 of his affidavit. For example, paragraph 142.7:
In October 2020, with a few days' notice I agreed to care for the children for what ended up being 9 weeks so that Ms Bergmann could travel overseas…
That is a completely erroneous recitation of what occurred. The mother went overseas intending to return and she was unable to return due to COVID-19 restrictions, matters totally out of her control, and the father makes no allowance for this.
At paragraph 142.4:
On 13 September, I agreed for the children to spend time with Ms Bergmann to attend her friend[’s]…baby shower
They had been without their mother at that time for nine weeks.
Paragraph 142.3:
In June 2020, with a few days' notice, I agreed to care for the children for what ended up being 9 weeks so that Ms Bergmann could travel overseas…
The mother lives and works overseas and this has been the arrangement in place for years, with the mother doing all the travelling and the father doing not one trip. The mother did not just travel overseas, she went back to Europe where she lives and works and due to events outside her control could not return for nine weeks. The intention conveyed in this sentence is unfair and erroneous.
It would have behoved the father to acknowledge this in his affidavit and/or in letters from his lawyer to the mother’s lawyer but the evidence is to the contrary. The best the father could do in terms of providing make-up time was provide the children with three to four additional weeks of time upon her return to Sydney over the whole second half of 2020. It is hardly surprising in the circumstances that the children were complaining, as they did to their father, that it was not fair and they were not spending enough time with their mother. Although I accept the criticisms levelled at the mother for how she handled this situation for the children.
Going to the father’s lawyer’s letter to the mother’s lawyer dated 7 September 2020, being part of the bundle marked wife’s exhibit 9.
At the paragraph numbered “1”:
The children did not see your client at all from 23 June 2020 until 28 August 2020 due to her decision to travel overseas. Whether or not the length of your client’s stay overseas was warranted will be the subject of consideration in another forum…
At paragraph “2”:
One of the difficulties with your client’s recent holiday was that the children were initially told that your client would be away from 8-9 days, and then the length of stay was for much longer than anyone had anticipated. Our client does not consider that all of the messages and photos sent by your client to the children of her outings and visiting shops and enjoying her time in France during the period of her extended absence necessarily helped the children…
At paragraph “6”:
…It is important that both parties recognise the uncertainty that may have been created by your client’s travel decisions this year, but that does not mean that the structure provided by the existing orders needs amendment.
The penultimate paragraph reiterates the consistent complaint by the father that the mother is in arrears of the terms of child support pursuant to the binding child support agreement they had previously entered into.
In a letter dated 29 October 2020, part of the bundle marked wife’s exhibit 9, the penultimate paragraph of the father’s lawyer’s letter is as follows:
Your letter suggests our client ought to be more cognisant of the changing circumstances of the pandemic. We remind you that your client elected to travel to France for work purposes (which we understand are not even located in France) at a time when the Australian Government travel advisory is against all travel. That is a decision that your client made. Our client has always shown flexibility in terms of his care of the children and will of course continue to do so…
As referred to in paragraph “1” of the father’s lawyer’s letter of 7 September 2020, this is the “forum” and the finding is that mother travelled as she always had for work and not for a holiday as was asserted.
Secondly, the work she engaged in was based in Europe, there being never an assertion by the mother that her work was only in France. Further, that carrying out this work is how she complied with her obligations under the binding child support agreement, a matter of complaint by the father in that very letter and on various other occasions.

Thirdly, the only reason that her return to Sydney was so delayed was due to COVID-19 restrictions and for no other reason.
I accept that due to the travel consequences from COVID-19 this was a very difficult and unsettling time for the father and the children, and no doubt added to their stress. I also accept this was a burden on the father and that he dealt with his children’s upset well in the absence of their mother but this did not extend to him being flexible with their need to spend time with her on her return.
The implied criticism of the mother in not returning to Australia for nine weeks from July 2020 and not being firm in when she would return was unjustified when this lengthy period of separation from her children and inability to provide a firm return date was due only to COVID-19 restrictions.
The father speaks, at paragraph 141 of his affidavit, of the mother ignoring his messages. The father ignores her messages as well however two wrongs do not make a right.
The father's answer to his daughter and his former wife when they seek a change is, "We will discuss it," but he does not discuss it and nothing happens. The father, like a rock in a stream, holds religiously to “the plan”.
The father has correctly pointed out on many occasions that where the children live is an adult decision, and he is entirely correct. These parents cannot agree on where the children should live. The mother wishes them to live with her in France, City B, and the father wishes them to remain in Australia.
There was an injunction on the parties talking about this move to City B, an injunction that could never be realistically complied with in its strict terms for the following reasons. The matter has been in the court system for five years. X was eight when the mother's desire for them to move overseas with her first raised its head and is now 12.5. The children know their mother lives in City B with Mr K, they have had three holidays with him and his two children who live with him, and have lived in the home he provides for the wife and will continue to provide for the wife and her children. They know their mother’s strong wish to live in City B with the children where her own mother lives, an important factor for the mother in her decision to move to Europe, and they know their father is opposed to them moving to this country.
It is hardly surprising that the children would raise this issue with their parents and it is appropriate for parents to discuss such issues with children when it is raised by them and this will be particularly so for intelligent and insightful children as these children are. It is improper to ask them if they want to live somewhere or with which parent they would prefer to live but when children raise issues which must clearly be on their mind parents have an obligation to soothe them and calm them. The father's method of doing this is to say, “This is an adult's decision. Everything will be all right. Mum and I will discuss it”, and then do little about it and this has caused frustration for X with her father.
The mother, on the other hand, involves the children rather more, encouraging them to speak their mind, to tell their father that they want, for example more time with her, and this brings them into direct conflict with him. This is very difficult for parents to negotiate, and orders injuncting parties from talking about these matters are impractical over time however I admire the father for doing his best to comply.
I accept that the father has tried his very best to comply with this impractical order and in so doing he may have been compromised in dealing with this vexed issue for his children adequately. I have no doubt his desire that the children remain living in Australia with him is just as strong as the mother’s desire they move to City B. Hence the importance of the children, particularly X, having Ms T and her school counsellors to speak to for it is common ground that X has struggled to be away from her mother since the mother commenced travelling and the father agreed she was still struggling to be away from her mother even for a week in 2018.
The school raised an issue with X’s presentation in 2018 and the father said he couldn't remember this however he did remember the mother suggesting X attend counselling in May 2018, but he did not agree. The mother had said X’s issues were due to her missing her mother and the week-about arrangement. The father said “I didn’t see what she was seeing and I felt we should explore it further together”. That tells me that X was expressing to her closest emotional attachment figure, her mother, her real feelings and consistent with her later expressed views did not want to hurt her father as she loves him dearly. The father did not accept the lead the mother was taking on this issue and this attitude continues in many matters the mother suggests.
The father said X was not struggling when the school told the parents there were issues for X at school. This was disingenuous. The father said that the children were having struggles transitioning between the two homes because of the separation which was still fresh for the children. The parties had separated in 2015. The mother had moved out of the home in 2016. The parents’ separation was not fresh in 2018 and I reject the father’s answer.
The father implemented the week-about arrangement in 2017 and it was effectively imposed upon the mother given her work overseas. The school records on 13 June 2018 suggest X said she does not feel like she can talk to her father. She holds these things in and “bursts them out”. The father said he did not remember a phone conversation where these issues were raised.
The wife's exhibit 2 is an email from the children to their father seeking more time with the mother. He responded that he would chat with their mother. He did not do this.
The wife's exhibit 3, which was subsumed in wife’s exhibit 13, being the U Psychology notes of X's meetings with Ms T and conversations with the parents was most helpful and will be later referred to.
The mother took the children to Location YY in their school holiday time in 2020/2021 including a ride on a helicopter. X said she knew the only reason her mother came to Sydney was because of the children and confirmed with Ms T that she and her brother had sent a message to their father to spend more time with their mother, and that they wrote it together and “We sent him multiple messages”, and X's view was that her father made up excuses.
It is true that prior to the children being with their mother at the Christmas break in December 2020 the father and mother had discussed the children spending some extra time with their mother, given she had been away from them for approaching four months in 2020, and that they had agreed that the children would return to their father on 4 January 2021. The father makes much of this and says, as did the Independent Children’s Lawyer, that the mother was the one imposing upon the children to seek more time, that she put the children in direct conflict with their father by asking or encouraging them to ask him directly for more time and at one level this is correct. The mother did put the children in direct conflict with their father on an issue she knew he would not agree with and she should have handled this difficult situation differently.
However, the difficulty for the children and the mother is that no matter who asks for additional time the father does not take on board the request. Further, I accept that the children wanted more time with their mother than was agreed. The parents had agreed to 4 January, but there is nothing remarkable and, in fact, it is to be expected that when the children are finally in their mother's care they wanted to spend more time with her given the time they had missed out with her in the previous six months. I note in his email of 29 December 2020 the father reiterated “it is important that we stick to the plan”, a plan that had not been in place since July 2020.
Unfortunately the father could not see his way clear to provide more time and repeated “Mum and Dad will talk about it, we will work it out”, fobbing X and Y off, never really talking with the mother other than saying “We had an agreement and we will stick to the agreement”.
This conduct and attitude is of concern for the children who, in this matter, will be very far away from their absent parent and will need the resident parent to be positive about the absent parent. Despite what he says, “Mum and I will talk about it”, that is not what he thinks or what he does. Similarly the wife’s financial affairs and conduct is raised as a significant issue by the father and for reasons that will follow I do not see this evidence assisted me or his case, rather to the contrary, and I could not see how the matters he raised impacted upon the children.
X makes a very pertinent point:
Dad’s all about 50/50. It's not fair
X says to Ms T, as contained in the counselling notes:
I have to go along with the plans
Dad says we need to talk to him, but he hasn't changed anything
I note the father uses the word "plan" consistently.
X knew at that time there was a major trial that was going to happen in April 2021. She told Ms T on 1 February 2021 she was exhausted and this is confirmed in wife's exhibit 13, being all the notes from U Psychology, and were included in husband's exhibit 4 as well.
Ms T first saw X when she was nine and is still seeing her now when she is 12 and a half and thus her historical notes were of invaluable assistance.
In answering written questions asked by Ms T, X answered “love time with mum”, “we’re close”, that her mother is the saddest in her family, the father’s girlfriend is “the angriest”, “I cry at dad’s”, “Monday’s with dad is hard”.
At age 10:
Not enough time with Mum.
And X has by now, in 2021, been saying this for over three years:
[father] stressed out quickly…if I ask [questions] he’ll get angry…[mum] likes dad…he made her unhappy…Dad gets angry if I ask about these things. Mum likes Dad. He made her unhappy.
Dad does not talk about Mum.
This last comment is consistent with the mother’s evidence that in the father’s household she and her family are not even mentioned. The father would find it exceedingly difficult to talk about the children's mother to them as I observed he struggled to do so in the witness box.
In February 2019:
I can't message Mum unless [it is the] 6.30 pm call
This comment is a theme. The children believe their father controls their capacity to contact their mother whenever they want, an important freedom for the children who are clearly missing their mother and this freedom is vital if they are in Sydney and she is City B and vice versa.
On 18 February 2019 X tells Ms T:
Y [gets greater] attention at dads. Not equal. Mum “sad” when she talks to [X]. Y is “sad at Dad's”. [The father] “angry” at [X].
The father was interviewed on 26 February 2019. He told Ms T the mother owes a large sum in tax. I am not quite sure why he would do that. Only at the trial was it revealed that in 2015 he had commenced an investigation into the mother's financial affairs, and this was continuing in 2021. The father had great difficulty confronting and answering questions about why he went down this path in a parenting matter where the property proceedings had been dealt with.
He had asked a Mr BB to investigate the wife's financial affairs in 2015 and was still paying him money to do something or the other on 31 March 2021. I accept the report or details, or whatever was provided to him, were privileged and I did not allow the call for them to be produced but why Ms T needed to know this escapes me. The wife's exhibit 14 is a document headed “Interim briefing” from Mr BB and whom he has paid, $2,200 on 17 August 2016, $3,300 on 16 November 2016, and $5,500 on 31 March 2021 for the purposes of making further inquiries in relation to the wife's financial position. The husband was evasive in his answers to questions why he took this step in a parenting matter, in stark contrast to the evidence he initially gave when first cross examined.
The father told Ms T the mother could not leave Australia due to a DPO that had been placed on her travel by the Australian Taxation Office in 2018 and that she also intended to live in City WW in 2020. He did not tell Ms T the DPO was rescinded four days after it was created or that the mother never told him she intended to live in City WW and this was a misunderstanding from a conversation overheard by the father of a friend of Y’s when Y was staying at their home and then relayed to the father.
The father was well aware on 26 February 2019 of the revocation of the DPO given he knew that the children had travelled with their mother to the USA from 20 December 2018 to 3 January 2019. Yet two months after he knew this order has been revoked, he told Ms T she could not leave Australia. One wonders how that information assisted Ms T in her counselling of their daughter.
The father's consistent telling of professionals about the mother’s financial affairs when that evidence is irrelevant to their expertise and in continuing to explore her financial affairs is of concern and directly impacts upon his capacity to be positive to the children when speaking of their mother. I can understand the mother’s position that the father has pursued her relentlessly in relation to her tax issues and why she believes he may be the person who has caused to these issues to arise.
Wife's exhibit 10 is a series of emails between the parties about the father attending X's birthday. The emails are polite and courteous and the parents communicate with each other respectfully, in contrast to the father’s lawyers’ letters.
These courteous and polite emails to each other do the parents credit in dealing with these very difficult issues. It was not fair of the mother, and a poor decision by her, to encourage the children to speak to their father on having more time with her when the parents had an arrangement in place. However, the unfairness of the situation is apparent to me in that the mother and children missed out on significant time in 2020 and the father could not bend to give the children the time with their mother they were clearly craving. There is force in the mother's email to him of 29 December 2020 that:
…nothing is agreed at all. You have dictated the terms…you expect me to comply with a child support agreement…
The father's response to the mother was:
I wrote to you previously to offer that when we are in Sydney you are welcome to spend time with the children when they are in my care (it is disappointing that you have not offered the same to me)
The mother's email to the father of 1 January 2021 that if “the children ask me for more time with you, I would speak to them…and allow this to happen without hesitation” is echoed by Y saying to Mr D at paragraph 24 of the second report that Y believed his mother “would allow him to see [his father] any time he wanted”. This is not the case for the father.
This statement by Y was submitted by Mr Kearney SC, Mr D and the Independent Children's Lawyer to mean that Y does not understand the consequences of living in City B. He thinks his mother can let him see his father whenever he wants and as this is clearly unrealistic he does not really comprehend what living in City B would mean.
That is one way of taking that comment. However there is another, which is that Y knows his mother is very positive about him spending any time he wants with his father, I use the words "that she can organise", given the difficulties with COVID-19 and international travel in any event. This may also be what Y’s comment meant.
Many of the exhibits went to the email trails between the parents as follows.
Husband's exhibit 2 contained the father’s responses to the mother's request for the children to spend two weeks with her and one week with him, as they had requested, and for more time in the school holidays given what they had missed in 2020. Sadly the father could not see his way clear to doing this by altering the week-about arrangement.
Husband's exhibit 3 was a request via email from the mother, dated 24 November 2020, advising the father that she would be back on Friday 27 November and asking if she could have the children for two extra weeks following 28 December 2020. The father's response completely missed the point and asked her questions about her assertion that she was intending to self-isolate. This is the one occasion the father extended the planned time, which should have ceased on 28 December 2020, to 4 January 2021. Six nights, in circumstances where the children have been without their mother for nearly four months in 2020.
Respondent wife's exhibit 10 is an email to the father from the mother asking to have the children until 10 January 2021 when he was to go on holidays with them. His response was, “Let's stick to the plan”. It is difficult to understand the resistance here. The children were not at school, no usual arrangement was being interfered with and nor were his holiday plans. The father’s attitude was parsimonious when the reality is the children had not been living in accordance with “the plan” for the second half of 2020.
The mother makes a request on 15 January 2021 for three weeks with the children, from 27 January to 15 February 2021, and the father does not agree.
There is nothing wrong with a parent asking to vary a parenting arrangement to suit the needs of themselves and their children. Children do not live in a vacuum. They live with their parents. It is at this time that the father’s lawyer writes an aggressive letter to the wife's lawyer dated 17 March 2021, part of wife’s exhibit 9:
…The interim hearing was held because your client had filed an Updated Further Further Amended Application in a Case seeking approximately month about time with the children. The description of that application alone is a testament to how many changes were made on the part of your client to her own case seeking revision of the Orders. Your client did seek an order for the school holiday arrangements contained within the Orders of 4 October 2016 but that order wasn’t made.
It is not a matter for your client to unilaterally make arrangements for the children contrary to the existing orders and then seek to defend her own position. The orders are in place so that there is not this constant flux in terms of the arrangements.
Your client elected to travel away from Sydney on the evening of the interim hearing such that she was then away from the children for a further month. The basis on which she has done so will be the subject of enquiry in a different forum…
The father’s lawyers may have become somewhat embroiled in this litigation and this tone and behaviour does not assist parties in these vexed matters. The father had his lawyers write to the mother’s lawyers about attending a family dinner. As Ms Middleton for the wife says in her letter of reply, “Your client could have messaged my client as to these matters”.
As Ms Emerson foreshadowed in her letters to Ms Middleton, this is the forum and the mother’s grandmother was dying in City B in October 2020. The mother lives and works in City B. It was not an election to travel but a necessity and, given her heroic commitment to the children since 2017 and the impact of COVID-19 on humanity, the letter and its tone was unwarranted. Further, the children had been living in a state of flux due to the impact of COVID-19 and not in accordance with the existing orders since July 2020.
In contrast, wife's exhibit 11 are a series of lovely emails from the mother to the father and his family about the passing of the much-loved great-grandmother of the children and grandmother of the mother, Ms XX. Similar to the letters sent to the wife by the father and his family when her grandmother died in October 2020.

Justice Boland’s decision in Morgan & Miles was informed by the seminal High Court decision of U & U and, in particular, the reasons for judgment of Gaudron and Hayne JJ. As their Honours say in U & U at paragraph 24:
…that it had been held in B and B: Family Law Reform Act 1995 that “the long-term unhappiness of a residence parent is likely to impinge in a negative way upon the happiness and therefore the best interests of the child”.
(Citations omitted) (Emphasis in original)
Further, Justice Gaudron said at paragraphs 36 and 37:
Further, it must be accepted that, regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will, almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve.
[37]. It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS v AIF.
(Citations omitted) (Emphasis in original)
Justice Hayne made it abundantly clear in U v U how a judge is to look at these matters and said the following at [176]:
It is now recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Pt VII of the Act.97 If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.
(Citations omitted) (Emphasis in original)
More recently in Zahawi & Rayne [2016] FamCAFC 90 the Full Court opined at [48]:
“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
What is important and what I have been at pains to point out is that the mother is not acting selfishly or putting her needs above the children’s needs in her desire to live and work in City B with the children for her sound reasons, and that this principle applies to both parents. Children live with their parents and parents are entitled to maximise their happiness and career prospects and make decisions that they see are best for not only themselves but also their children. Children do not live in a vacuum but with adults whose choices and behaviours have consequences for them.
APPLYING THE LAW TO THE FACTS
Going to the provisions of the Act.
The children benefit from a meaningful relationship with each of their parents. Mr D was clear in his reports and oral evidence that whether the children live with their mother in France or with their father in Australia they will maintain the strong and attached relationship with each of their parents.
The children have not been subjected to abuse, neglect or family violence and are parented by their parents to a high level.
Both parents have taken all opportunities to be involved in their children’s lives and take the responsibility of parenthood seriously.
The parents each support the children equally, having entered into a Binding Child Support Agreement.
The children were born in Australia, however their mother is French and they have travelled extensively with their parents overseas prior to and post separation and they have family and connections to France as they do to Australia. The father has always lived in Australia with the children and his family have been an important part of the children’s day-to-day and usual care arrangements. It is the mother who has travelled for work since about 2012.
The nature of the children’s relationship with their parents. The children have a close and attached relationship with each parent and love each parent. I accept that in terms of caring for the children and providing for their needs the parents are interchangeable however I have formed the view on the evidence from what the children said to Mr D that their mother is their closest emotional attachment. That X has a greater need to be physically near her mother than for Y and X said she is the parent they would first go to if stressed or distressed and, to use Y’s words, his mother does things “for” him and his father does things “with” him.
The father has a deficit in his parenting in that he is inflexible and unable to, at times, even contemplate change. He has been unable to put the needs of his children to the forefront and provide to them the additional time they sought with their mother, particularly in the second half of 2020 when they missed out on nine weeks of time with her. The father’s rigid adherence to “the plan”, as he called it, did not serve the children well. His failure to acknowledge that their need to spend time with their mother was of far greater importance than sticking to the plan is of concern for in this matter the parent who has the children in their care will need to be proactive, positive and adaptable in encouraging the children’s relationship with the absent parent.
Further, the evidence does not demonstrate any positive step the father has taken since separation to support the children’s relationship with their mother. It has been the mother’s commitment to her children by travelling to maintain the alternative week live-with arrangement the parties entered into in about 2015, even when she was living in Europe from 2017 until 2020, that has also maintained the stability of the “scaffolding” around the children, as Mr D put it.
The mother is the only parent who encourages the other parent to be involved in important activities for the children whilst in her care such as religious events and their birthdays. Not only has the father not included the mother in these activities, his family no longer included the children and the mother in those activities when the mother was in Australia and they in her care. The mother is still not permitted to enter the father’s home when she collects and delivers the children and yet he has always been welcome to attend her home on the reverse.
The children are progressing extremely well in the care of both parents and it is unknown whether this will continue when one parent will be basically absent from their life for a significant period of time due not only to COVID-19 but the distance between Australia and France.
The impact of change upon the children. This is a significant factor. The mother glossed over what will clearly be fundamental changes for the children in living in City B which are, primarily, they will be living full-time with Mr K and his two children who they know and have spent holidays with but have never lived with full-time.
Secondly, they will be living in a different city with a different culture, society, climate and lifestyle and where, although they speak French, they are not native French speakers.
Thirdly, they will be attending a new school whereas they have always attended the schools they are currently enrolled in in Australia and they are doing well both academically and socially. I accept the school they are to attend, the AE School, conducts lessons in English and that they will be at the same school, something X has expressed a wish to do. However, they will be living in France not Australia and will not have the support of their father or paternal family to assist them to deal with these changes as they did to assist them to deal with their mother’s absence from Australia in 2020.
Fourthly, that the children will not be surrounded by the supports they have always enjoyed from the father and his family and although they have a good relationship with their maternal grandmother, she has not been as involved in their life day-to-day as has the paternal grandmother and the father’s extended family.
As Mr D properly pointed out, one would need a crystal ball to foretell how the children will react to this change and it could all be wonderful:
…I think that both parent at a very high level. Both are really attuned to their children…What I can’t account for are all the other bits. I don’t have any concern about the children being in the care of either parent, but the other bits are complicated. School, friends, transition, language, peer group. It’s inescapable to me that, if you apply common sense, common sense says that less change is – at this stage is – less uncertain than more change. That’s ultimately my position.
At paragraph 34 of the first report Mr D says:
The inescapable reality is that a relocation of this magnitude is more uncertain than maintaining the status quo. Whilst the children are stating that they want to relocate, that life in City B is attractive, and that City B feels like a second home, the practical and tangible reality is that this could not be the case. Understandably, the children want to be in City B because their mother is in City B…home is psychologically where their parents reside…If the matter is distilled, the issue that is uncertain is the level of impact that a transition and re-establishing for themselves a life in City B with new schools, new family, new culture, different social networks, and the absence of their father, his family and all that is familiar to them will have.
He further said in his oral evidence:
It just seems to me that moving halfway around the world, especially during this uncertain time, is in fact more uncertain…over the course of today you won’t hear me elevate any of my views to anything other than maybe. How can one be certain? Crystal ball questions are the most difficult to answer, and, hence, my suggestion in my last report that really the purpose of my involvement should be to help her Honour visualise and imagine what [it] … will be like for the children if they go and if they don’t go.
I formed the view that the mother has a far greater ability to assist the children to adapt to the changes that they will experience by the orders I make. If I make an order the children remain living in Australia they will, for the first time, experience their mother’s absence permanently for months at a time. When this occurred in the latter half of 2020 the children suffered and their father could not see his way clear to assist them by allowing them to have additional and appropriate make-up time with their mother when she returned to Australia. I accept this was a difficult time for the children and the father who had to manage the uncertainty of the mother’s return to Australia single-handedly.
I am concerned that X has lately said she cannot tell her father things and that she may not tell her father how she is feeling and this may have a negative impact on her hitherto emotional and psychological functioning. Both children said they do not want to hurt their father by telling him they want to live with their mother or spend more time with their mother. Y has said he does not want to get into trouble and his parents might be angry with him if he made a decision of where he would like to live.
I have formed the view after listening to his evidence and analysing in detail his affidavit and answers under cross-examination that, whatever decision is made by the Court, the father will struggle to be flexible with the mother in spending time with the children if that time is not expressly provided for in the orders. I accept he will adhere to the orders but may struggle to provide any additional time or provide flexibility to the mother and the children in the carrying out of the orders. This past resistance of the father may be lessened when this matter is finalised by order.
This deficit is a concern for the Court given whatever order I make one parent will be a significant distance from where the children live and exigencies requiring modification and change to black and white parenting orders will arise as they have in 2020. It is imperative in my decision to determine the parent best able to deal with and accommodate these unforeseen changes and make the decision based upon the children’s best interests by placing their needs at the forefront of the decision-making process.
The father has shown some restraints on his capacity to do this in the past and I have little confidence this will change in the future. Contra the mother who has this capacity in spades and who has spoken highly of the father to many people including her daughter’s counsellors, who has a high regard for the father as a person and who is flexible and proactive with the children and their relationship with the father. The father said in cross-examination the mother is a good mother however his conduct and attitude to the mother in, for example, relentlessly pursuing her financial position indicates to me he has little regard for her as the children’s mother, as a parent or as a person.
The father has put impediments in the children’s way of spending time with the mother when they were expressing to him a clear need to do this and in communicating with her electronically. None of these deficits are apparent in the mother’s parenting of the children and I am confident she will ensure that, as best she can, the children see their father as frequently as is possible and that they can communicate with him electronically on any occasion and via any medium they so wish to do if they live with her in City B. This is not a confidence I share at the same level if the children live with their father in Australia.
The views and opinions of the children. This too is an important factor.
X was clear she wants to live with her mother. She said she loves her father and nothing can change that but she feels more comfortable living with her mother. X needs close, physical contact with her mother and they share similar views and have similar interests in fashion, decorating and the like. Mr D said, as a pre-pubescent girl, her need to have her mother in her life will perhaps have more prominence.
Y also said he wants to spend more time with and to move to live with his mother, that he loves his father and he too said he would have liked an arrangement of two weeks’ time with his mother and one week with his father, particularly in 2020 when they missed so much time with her. However, he does not express the same strong need to be in his mother’s physical presence as does his sister and I accept Mr D’s assessment that, for Y, when the decision is made he will get on with it and he will not suffer in either parent’s care as the parents care for their children to a high level. I accept if X identifies with her mother more closely as she matures, then it is also likely that Y would identify more closely with his father as he matures and if he is living in City B this will be a loss for him.
There is a risk that by the children moving to City B this will destabilise them and interfere with their positive progress which is so evident in Sydney. This would be a tragedy and it is a possibility.
Mr D was also clear that X will be very disappointed by a decision that she cannot move to live in City B with her mother and, to use his words, “she will not be happy about it at all” and that she is invested in this move. This may have the consequence of interrupting her hitherto excellent relationship with her father and her progress and there may come a time when she tells her father she is simply going to live in City B with her mother. These are all unknowns but possibilities.
I reject the position the Independent Children’s Lawyer put that X and Y’s position has been influenced by their mother to a point where I could not be certain these are the children’s wishes. Mr D said the children wanted to move and live with their mother. There is no doubt in 2020 their mother was unable to protect them from her frustration at not being able to spend proper make-up time with children despite their wish to do so due to the father’s intransigence and sticking to “the plan” and that her desire for them to live with her spilt over to the children. Thus Mr D tempered his view of the children’s wishes but they are the children’s wishes.
X had been expressing prior to 2020 a need to be physically close to her mother, that she feels that bit closer to her mother, happier when mother is around, feels more comfortable with her mother, wants to spend more time with her mother and live with her yet, showing maturity, also said she loves her father and that nothing and no one can change that.
I accept there was an idealisation in both children of the ease and smoothness of living in City B with Mr K and his children when this is not something they have experienced. Further, they have never experienced not living with their father for significant periods of time and not spending time with their extended paternal family and friendship groups. The consequence of this is an unknown.
The mother’s take on this was that the children believed it would happen, hoped it would happen and she too believed things would work well and that the transition would be smooth. However there is a significant question on my mind on this issue given they would be living with their mother, Mr K and his two children in what is for them a foreign country.
I formed the view, consistent with Mr D, whether the children live with their mother or father this will not impact upon their relationship with the parent they do not live with. I am not certain of the children’s reaction to living without the father for significant periods of time and this is compounded by the absence of their other supports, paternal family, schools and friendships. The children have never experienced such an event. For even when in their mother’s care the children knew their father was in Australia and close by and in that sense he has always been available to them and their mother has not. This concerned Mr D, namely living in a foreign country without all the structures, “the scaffold”, that they have always known and that this could destabilise the children’s hitherto pleasing progress.
On the other hand, the children have not lived in Australia with their father in the absence of their mother and they had, up until mid-2020, lived with their mother and father in Australia with both parents equally parenting them and their mother is part of their “scaffold”. However the evidence from the children is that they will adjust to living without their mother. As X said, life is “not that bad” in Australia, things will go on as usual and Y said he will just get on with it. Yet at one level it will not be as they had experienced in the past as their mother will not be travelling as frequently.

The pleasing progress the children have demonstrated and their attachment to each parent is because each parent has been equally involved in their lives up until mid-2020 when the impact of COVID-19 hit home. Thus it is unfair to say that the scaffolding that the children have experienced, which has served them so well, was only the father and his family. It was also the mother. The children’s scaffolding consisted of their mother’s consistent and continued presence in their lives, their father’s consistent and continued presence in their lives, their school and their extended paternal family.
This will not continue no matter what order I make for they will not have either their mother’s continued and consistent monthly presence in their lives or their father’s consistent and continued monthly presence in their lives into the future.
Whether the children remain in Australia or move to City B they are in for a roller coaster of emotions. That roller coaster may be amplified by the uncertainties and changes of moving to City B. On the evidence I am satisfied that the mother is the best placed parent to deal with the emotional rollercoaster the children will experience in not living with their parents as they have done to date given she is their closest emotional attachment, has a positive view of the father, the children are each confident she will let them see their father whenever that is possible, is flexible and proactive with the children, coupled with their wish to move and live with their mother.
I am not as confident that the father has the level of capacity the mother has given his attitude in 2020 to the children’s need to spend more time with their mother, his continued pursuit of the mother’s financial affairs, his inflexibility and inability to take on board matters the mother raises at face value such as X needing counselling in 2018. It took the father six months to agree for her to have outside counselling and three months before he agreed for her to see the school counsellor, a decision I cannot understand but it is consistent with inflexibility and inability to see matters from another’s perspective.
However there is no doubt that even with their mother’s absence from their life in 2020 the children progressed well and their father handled this difficult situation for them more than competently.
I have formed the view that the parents are the most important people in the children’s lives and this is clear from the family reports of Mr D. Their school, their peer groups, their extended families are also important but the most important stability factors for the children must be their parents.
On the evidence I find that their mother is their closest emotional attachment, that she is the parent best able to deal with the changes the children will experience, is the parent that is the most flexible and insightful into the needs of the children and acts proactively and quickly to address their needs. That the children living in City B will be consistent with their expressed wish to live with their mother. As Mr D said at page 503 of the transcript X told him, in essence, that it would be very upsetting for her not to see her father. That she would miss him, “I love my dad. Being away from him will be really, really hard, but being away from Mum is just a bit harder”, confirming that in this finely balanced matter the mother is the children’s closet emotional attachment.
The evidence from the father orally is that he will be unable to visit them in City B more than once a year and I accept that evidence. The parents agree that until the children are no longer required to quarantine they will not be travelling to Australia or City B. The children’s life has, since 2012, been their father’s continued presence in the country that they live in and their mother travelling to and from Australia to parent them. One of the most significant changes for the children in living in City B is that the children may see their father only once a year for the foreseeable future given the children will not be travelling to Australia for an unknown period of time due to quarantine.
As at the finalising of this judgment the Full Court delivered a decision in the matter of Denham & Newsham [2021] FamCAFC 141 on this very issue, namely, a relocation to Europe of a child. The Court held the impact of restrictions on travel and evidence in relation to international border restrictions due to COVID-19 are material facts to be taken into account in such judgments. Their Honours held that there was a material error as the judgment proceeded on the basis of freedom of movement across borders and this was incorrect.
The above scenario of the children only seeing their father once in the next 12 months if they are to live in City B may have significantly destabilising consequences for both children and the impact upon them is unknown. Yet once a year time may be a likely scenario for some period of time into the future. The mother, due to her work and capacity, will come to Australia on her own proposal no less than three times a year to parent the children.
Despite the view I have formed that the children’s closest emotional attachment is their mother and that she is the parent best able to deal with changes for the children, the unknown for the children in, at best, seeing their father once a year for some time into the future when he has been the constant in their lives in having always lived in the country they live in and being available to them immediately, combined with the unknowns of the changes for them of living in City B, I have formed the view consistent with Mr D’s position that a move to live in City B is the least certain option. Having so found, it is not an order in their best interests that they live in City B with their mother despite accepting the children wishes that they want to move and live in City B with their mother are genuine.
The uncertainties of the move for the children to City B coupled with the consequences for them of not having their father in their life as they have always known it to be and the possibility of those uncertainties impacting negatively on their pleasing progress to date is overwhelming for me despite the positive view I have of the mother as their closest emotional attachment, the parent best able to deal with change for the children and her positive attitude to the father.
The Court trusts that after having read this judgment the father will show flexibility to his children in terms of them contacting their mother on any occasion they wish and spending as much time with her as is possible when she comes to Australia. The father’s hitherto inflexible attitude to the children’s right to spend as much time with their mother as is possible when she was in Australia cannot continue. If it does it will have a serious impact on his relationship, particularly, with his daughter but also with his son. The children love their parents deeply and providing as much time with their mother as he can when she is in Australia will only cement for the children the love and affection their father has for them.
It is time the father invited the mother into his home when she is in Australia and the children are transferring into either parent’s care. It is time for the father to cease pursuing information concerning the mother’s financial position. It is also time for the father to be open and available to the children to speak about their mother and Mr K and the times they enjoy with their mother and him in Europe as they will when they can travel.
As the mother said in her oral evidence, communication between the parents may improve when this decision is handed down and it is the expectation of the Court that the father will join with the mother and take up her positive attitude on this issue and other issues.
I have balanced the mother’s parenting as described in paragraph 892 of this judgment with the father’s inflexibility, his negative view of the mother such as the mother not being discussed in his household, and his lack of proactivity in supporting the children’s relationship with their mother, together with the reality that change will occur no matter which order I make with my finding that the mother is the children’s closest emotional attachment and the parent best placed to manage change for the children. Despite these findings in this finely balanced matter, I find that it is an order in their best interests that they continue to live with their father in Australia.

I certify that the preceding nine hundred and one (901) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson.
Associate:
Dated: 12 August 2021

File number(s):	SYC 7892 of 2015
Judgment of:	HENDERSON J
Date of judgment:	12 August 2021
Catchwords:	FAMILY LAW – PARENTING – International relocation – Where the mother seeks to relocate to City B with the two children of the relationship and will do so in any event – Where the father opposes the relocation – Where the mother has lived in City B since 2017 and travelled to Australia to maintain a week-about parenting arrangement until the onset of the COVID-19 pandemic – Where both children have expressed a strong wish to spend more time with their mother – Assessment of the competing proposals and the impact of those proposals on the children – Where although the Court finds the mother is the more flexible parent and better able to assist the children to deal with change, the impact of change for the children in moving to City B and being separated from all that they have known in Australia including their father militates against such an order being in their best interests – Orders made for the children to remain in their father’s care in Australia
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CC
Cases cited:	Denham & Newsham [2021] FamCAFC 141 Goode & Goode (2006) FLC 93-286 Morgan & Miles (2007) FLC 93-343 MRR v GR (2010) FLC 93-424 U v U (2002) 211 CLR 238 Zahawi & Rayne [2016] FamCAFC 90
Number of paragraphs:	901
Date of hearing:	12-16 April, 19 April 2021
Place:	Sydney
Counsel for the Applicant:	Mr Kearney SC with Ms Lioumis
Solicitor for the Applicant:	Pearson Emerson Family Lawyers
Counsel for the Respondent:	Ms Christie SC with Ms Clifford
Solicitor for the Respondent:	Barkus Doolan
Counsel for the Independent Children's Lawyer:	Mr Guterres
Solicitor for the Independent Children's Lawyer:	Russell Kennedy Aitken Lawyers

ORDER MADE BY:	HENDERSON J
DATE OF ORDER:	12 AUGUST 2021