Bondelmonte v Bondelmonte

[2016] FamCAFC 48

FAMILY COURT OF AUSTRALIA

BONDELMONTE & BONDELMONTE [2016] FamCAFC 48

FAMILY LAW – APPEAL – CHILDREN – per RYAN AND ALDRIDGE JJ – Where children retained in United States after travelling there for a holiday – Where retention in breach of order for equal shared parental responsibility – Where the father appeals against interim orders which require him to return the children to Sydney pending determination of whether the children are permitted to relocate to the United States – Where children, aged almost 15 and almost 17, express desire to stay in the United States – Whether the trial judge failed to consider and evaluate the relevant statutory considerations – Whether the trial judge gave adequate weight to the views expressed by the children – Consideration of living arrangements on the children’s return – Whether the orders made by the primary judge were in the best interests of the children – Where the primary judge did not err in the exercise of his discretion – No appellable error established – Appeal dismissed.

FAMILY LAW – APPEAL – CHILDREN – per LE POER TRENCH J – Where there is a conflict between public policy and children’s best interests – Where it is unclear if the father would return with the children if they are ordered back – Where the mother proposed that the children live with non-parents in Australia – Where there is insufficient evidence as to the proposed living arrangements in Australia – Where there was no evidence as to the wishes of the children aged almost 17 and almost 15 – Least Detrimental Alternative – Legislative pathway as set out in Goode & Goode – Whether the matter was urgent at the time of the hearing – Appeal should be allowed.

FAMILY LAW – APPEAL – COSTS – Where the father was wholly unsuccessful on appeal – Where the mother sought that the father pay her costs on an indemnity basis – Where the proceedings were necessitated by the failure of the father to comply with previous orders – Where father to pay the mother’s costs of the appeal and of the Independent Children’s Lawyer– Whether costs should be ordered on an indemnity or party/party basis – Where circumstances may justify an order for indemnity costs – Parties directed to file material addressing r 19.08(3) of the Family Law Rules 2004.

Family Law Act 1975 (Cth): ss 4(1), 60CA, 60CC, 60CD, 61D, 61DA, 64B, 65B, 65M, 65DAA, 65DAC, 67Q, 68B, 68L, 69E, 79A, 117

Family Law Rules 2004 (Cth): r 19.08(3)

Joseph Goldstein, Anna Freud, Albert J. Solnit, Beyond the Best Interests of the Child (The Free Press, 1973)

AB & SS [2006] FamCA 495
AMS v AIF (1999) 199 CLR 160
Beckham & Desprez [2015] FamCAFC 247
Bolitho and Cohen (2005) FLC 93-224
Brear v Corcoles-Alfaro (1997) FLC 92-768
Cox & Pedrana (2013) FLC 93-537
Gillard & Gillard [2015] FamCAFC 169
Goode & Goode (2006) FLC 93-286
Gronow v Gronow (1979) 144 CLR 513
H v W (1995) FLC 92-598
Hall and Hall (1979) FLC 90-713
House v The King (1936) 55 CLR 499
In the Marriage of Brown (1980) FLC 90-875
In the Marriage of Sampson (1977) FLC 90-253
JRS & TLM [2005] FMCAfam 483
Kohan and Kohan (1993) FLC 92-340
Llewellyn & Hyde [2011] FamCA 934
Maldera & Orbel (2014) FLC 93-602
Morgan and Miles (2007) FLC 93-343
Peters (aka Eustace) v Castuera (1994) FLC 92-500
Prantage & Prantage (2013) FLC 93-544
R v R (Children’s Wishes) (2002) FLC 93-108
SCVG & KLD (2014) FLC 93-582
Slater v Light (2011) 45 Fam LR 41
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
U v U (2002) 211 CLR 238
Metwally v University of Wollongong (1985) 60 ALR 68
ZP v PS (1994) 181 CLR 639

APPELLANT: Mr Bondelmonte

RESPONDENT: Ms Bondelmonte

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 4839 of 2011

APPEAL NUMBER: EA 28 of 2016

DATE DELIVERED: 8 April 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan, Aldridge & Le Poer Trench JJ

HEARING DATE: 23 March 2016

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 8 March 2016

LOWER COURT MNC: [2016] FamCA 138

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Richardson SC

SOLICITOR FOR THE APPELLANT: Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT: Mr Othen

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Harper

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. That the appeal be dismissed.

2. That the father pay the costs of the Independent Children’s Lawyer in the amount of $2,871.00 within 28 days.

3. That the application of the Independent Children’s Lawyer that the mother pays half those costs be dismissed.

4. That within 14 days the mother file and serve an affidavit addressed to rule 19.08(3) of the Family Law Rules 2004 (Cth), together with written submissions (if any) arising therefrom.

5. That within 14 days of service of the affidavit referred to in the above order, the father file and serve written submissions in reply (if any).

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 28 of 2016
File Number: SYC 4839 of 2011

Mr Bondelmonte

Appellant

And

Ms Bondelmonte

Respondent

REASONS FOR JUDGMENT

RYAN AND ALDRIDGE JJ

1. By Notice of Appeal filed on 9 March 2016 Mr Bondelmonte (“the father”) appeals against orders made by Watts J on 8 March 2016 which require him to return the parties’ two sons to Australia and a number of other orders which address the consequences of that order. 

2. The proceedings before his Honour were brought by Ms Bondelmonte who is the children’s mother (“the mother”).  The father and mother have three children, two boys namely R and S, and a daughter, T (“the children”).  The boys live with the father and T lives with the mother. 

3. The parties and children lived in Australia until in January 2016, and with the consent of the mother, the father arranged for the boys to join him on a two week holiday in New York.  The boys were due to return to Australia on 1 February 2016.  However, on 29 January 2016 the solicitor for the father informed the mother that the father had decided to remain in the United States indefinitely and as the boys elected to remain with him, they would not be returned in accordance with the parties’ agreement. 

4. The father and the mother have equal shared parental responsibility for the children (Order 1 dated 25 June 2014) as a consequence of which a decision about a major long-term issue in relation to the children must be made jointly (s 65DAC(2) of the Family Law Act 1975 (Cth) (“the Act”)). The words “major long-term issue” are defined in s 4(1) of the Act as “issues about the care, welfare and development of the child of a long-term nature”. There can be no doubt that a decision about whether the boys would abandon their lives in Australia and take up residence in New York is such a decision and was thus to be made jointly (see Llewellyn & Hyde [2011] FamCA 934 at [39]; Morgan and Miles (2007) FLC 93-343 at [66] and [74]-[77]). It follows, and indeed was uncontentious in the appeal, that in the absence of the mother’s agreement that the boys could live in New York, the father was required to return them to Australia; that is, to have them depart the United States on 30 January 2016 (in accordance with his agreement with the mother) so as to arrive back on 1 February 2016. Upon his failure to do so the mother filed an urgent application for orders to have the boys returned to Australia and, that pending further order they live with her. There is no question that the Court has jurisdiction over the children (s 69E of the Act) and the power to make the orders sought (ss 61D, 67Q and 68B of the Act).

5. Curiously, by his Response filed on 26 February 2016, the only order sought by the father was that the mother’s urgent application be dismissed.  Had the father been successful, it follows that the order for equal shared parental responsibility would have been undisturbed and the father nonetheless obligated to return the boys to Australia.

6. In any event, the primary judge was satisfied it was in the best interests of the boys for them to return to Australia pending a determination about whether, in the long-term, they would continue to live in Australia or move to the United States.  In the event the father returned to Australia with the boys, they were to continue to live with him but, if he remained in New York, the boys would live with the mother.  However, difficulties in the mother’s relationships with the boys made it possible that even if the father did not return, one or both of them would refuse to live with her.  Thus, the orders enabled the boys and the mother to make arrangements for the children to stay with nominated third parties without needing the father’s agreement to do so.

7. His Honour granted a partial stay and thus the boys remain in New York, albeit by the conclusion of the hearing of the appeal and in contravention of Order 3.1 dated 25 June 2014, the father had not informed the mother or the Independent Children’s Lawyer (“ICL”) and the Court of the address where the boys live and the schools they were said to attend.

8. The mother resists the appeal and seeks to uphold the orders.

9. Counsel appeared on the appeal for the ICL.  The ICL maintained the neutral stance taken before the primary judge. 

Background facts

1. To give context to this appeal it is necessary to provide some background facts. 

2. The mother was born in 1963 and is 52 years of age. 

3. The father was born in 1966 and will shortly turn 50 years of age.

4. Throughout the marriage the father worked full-time and provided for the family’s financial support.  With the birth of the parties’ first child, the mother ceased paid employment and thereafter was primarily responsible for the care of the children and running the family home.

5. The parties’ son R was born in 1999. 

6. Their middle child, a boy named S, was born in 2001.

7. The parties’ daughter T was born in 2004.

8. When the parties separated in 2010, the children were aged eleven, nine and five years respectively.  The children remained in the mother’s care and regularly spent time with the father.

9. The mother commenced financial proceedings in the Family Court on 2 November 2012 which, at some stage, expanded to include issues in relation to the children.  The proceedings were resolved by agreement, and in relation to the children, is as reflected in consent orders dated 25 June 2014.  Subject to the orders to which this appeal relates, the orders dated 25 June 2014 are the operative parenting orders.  The parenting orders and notations are set out below:

Parenting orders dated 25 June 2014

1.That the parties have equal shared parental responsibility for the children […].

2.That the children live with the husband and the wife as agreed between the parties or at the children’s own election.

3.That pursuant to section 65Y(2)(b) of the Family Law Act 1975 the parties shall be permitted to take the children out of the Commonwealth of Australia for the purposes of a holiday provided that the parent travelling overseas with the children provides to the other parent not less than 14 days prior to their departure the following documents and information:

3.1A copy of the children’s travel itinerary including addresses for all places where the children will be staying while overseas;

3.2Telephone numbers on which the children can be contacted whilst overseas; and

3.3Copies of the children’s return air tickets (including

e-tickets).

4.That the husband is to hold [the boys’] Australian passports at all times other than when [the boys] are travelling overseas with the wife pursuant to Order 3 above.

5.That the wife is to hold [the daughter’s] Australian passport at all times other than when [the daughter] is travelling with the husband pursuant to Order 3 above.

6.That for the purposes of implementing Order 3 above:

6.1.The wife or the husband is to release to the husband or the wife the children’s Australian passports at least 7 days prior to any international travel permitted by Order 3 above;

6.2.That the party travelling with the children or any of them is to return his, her or their passports to the other party within 72 hours of the children returning to the Commonwealth of Australia.

7.That for the purposes of implementing Order 2 above the Court notes that the children currently live between the parties as follows:

7.1.[The eldest boy] lives with the husband and spends time with the wife at his election;

7.2.[The middle child] lives with the husband for 9 nights a fortnight and with the wife for 5 nights a fortnight;

7.3.[The daughter] lives with the wife and spends time with the husband as agreed between the parties.

…

12.The husband’s parenting Application contained in his Amended Response to Initiating Application (Family Law) filed on 11 November 2013 is dismissed.

1. Order 2 enabled a child to decide whether he or she would live with the father or the mother.  It is common ground that the order did not permit a child to decide, independently of his or her parents, whether or not the child would live in Australia or abroad.

2. In any event, by August 2013 R lived with the father.  He is estranged from his mother and, at his request, has not seen or had any contact with her since the end of September 2013.  That said, attempts have been made by the mother to breach the impasse.  For example, by sending him text messages and through involvement in school activities. 

3. By March 2014 S lived primarily with the father, such that he divided his time nine nights each fortnight with the father and five nights with the mother.  T continued to spend time with the father essentially each alternate weekend albeit not every alternate weekend. 

4. As to the more recent contact T and S each had with the parent with whom the child did not live, the primary judge was presented with conflicting evidence.  In relation to that evidence his Honour said:

   9.2.There is an issue between the parties as to what time [the child S] has been spending with the mother. According to the father, the extent of the face to face time between [S] and his mother was that [S] had only spent a total of two nights overnight with the mother through the 2015 calendar year and in addition, spent four day only occasions during that year. The mother’s evidence is that [S] spends time with her at his own determination and that that usually was one day each fortnight and sometimes overnight. I have no way, in the context of this interim hearing, of resolving this conflict in the evidence. The family consultant records that [S] communicates with his mother and spends time with his mother on a regular limited basis over weekends.

   9.3.The father says [the child T] has lived with the mother and had spent 37 nights out of 365 nights with the father in the 2015 calendar year; 15 of those nights were on a holiday in September 2015.  So on average, [T] has spent less than one night per fortnight with her father throughout 2015.

5. There is no challenge to this aspect of his Honour’s reasons.

6. The father has remarried and in 2014, the father’s wife, Ms P, gave birth to their son N.

7. The mother commenced proceedings in the Federal Circuit Court on 11 December 2014 for interim and final orders to restrain the father from removing the children from the Commonwealth of Australia and for them to be placed on the PACE Alert Watch list maintained by the Australian Federal Police. Her application was opposed by the father and on 26 June 2015 Judge Scarlett dismissed her application for interim orders. In the interregnum the father filed a Response in which he sought final and interim orders that T spend extensive defined time with him during school term and the holidays. The outstanding proceedings were transferred to the Family Court and an order was made pursuant to s 68L of the Act for the appointment of an ICL.

8. The mother filed an Amended Application on 18 December 2015 in which she proposed that the father’s Response be dismissed.  If orders were made as sought by the mother, the 25 June 2014 orders would remain in operation.  In the event the father’s Response was not dismissed and the Court was satisfied it was in the best interests of the children to make different parenting orders, the mother proposed a regime of specific time for T with the father and for S with her and an order which required the father to have R attend a nominated medical practitioner for assessment.  

9. The effect of the mother’s Amended Application and the father’s Response is that when the father retained the boys in New York, the Family Court was seized of proceedings in relation to all three children.  It needs to be understood that the power of the Court to make orders in relation to the children is not restricted to the orders sought by the children’s parents (U v U (2002) 211 CLR 238) and that it was common ground the order as to equal shared parental responsibility should continue undisturbed.

10. The father advised the mother by email sent on 1 January 2016 that he contemplated taking the boys on a holiday in the second half of the January 2016 school holidays. He did not indicate whether the holiday would be in Australia or abroad or provide dates.  However, as he had not yet firmly decided to do so, he asked the mother not to discuss his email with the children.  It would appear the mother complied with the father’s request.

11. The father sent a further email on 10 January 2016 in which the mother was advised he planned to take the boys to New York and attached copies of airline tickets purchased a couple of days beforehand.  The airline tickets provided a departure date of 14 January 2016 and for the boys fly out to Australia on 30 January 2016.  Happily for the boys they were booked to travel business and first class outbound but in economy class for their return. The mother correctly deduced that the children were to travel unaccompanied.

12. The father flew to the United States on 11 January 2016.  His wife and his newborn son, N, remained in Australia.

13. The same day, the solicitor for the mother advised the solicitor for the father that the mother did not give her permission for the proposed holiday, the reasons why she withheld her consent and pointed out that the pre-conditions for the children’s removal from Australia contained in Order 3 dated 25 June 2014 had not been met.  It would seem that notwithstanding the father’s request that the mother not discuss the proposed holiday with the children, he discussed it with the boys.  There can be no other explanation for the statement by the solicitor for the father contained in a letter dated 12 January 2016 to the solicitor for the mother, that “It would be disproportionally damaging to the two boys if [the mother] attempted to cancel their holiday”. Thus the mother relented, and on 13 January 2016 her solicitor informed the solicitor for the father that “Notwithstanding [the father’s] failure to comply with Order 3 [of 25 June 2014] [the mother] does not wish to upset [the boys] and will agree to their travel to the United States of America.”

14. An assessment had been ordered for the ongoing parenting proceedings and the parties had appointments to see a family consultant on 13 January 2016.  However, by then the father was in New York and he participated by telephone and the mother in person.  The family consultant also interviewed the parties (the father by telephone) and T on 20 January 2016. 

15. The boys flew to New York on 14 January 2016. 

16. It is the father’s evidence that by 25 January 2016 he had decided it would be advantageous to his financial interests for him to remain in the United States. 

1. The first the mother knew about this was when, on 29 January 2016, the solicitor for the father informed her solicitor that the father had decided to live in the United States indefinitely and the boys would remain with him.  The text of this letter is set out below:

   We refer to the above matter and now advise of a change of circumstances in our client’s personal situation, which will have immediate bearing upon the parenting arrangements, and the current proceedings.

   We understand that our client’s role as the Chief Executive Officer of [B Pty Ltd] will require him to live in the United States indefinitely. There are commercial imperatives to our client remaining in the United States and we understand that he has had discussions with the children, [the boys], and that they have both elected to remain with him in that country.  We note that, given the children’s ages, the children are likely to object to any attempt to return them to Australia, taking into account their apparent strength of feelings and their respective degrees of maturity.

   Our client is making contact directly with your client in relation to these matters and in particular, as to an appropriate parenting arrangement regarding the [parties’ daughter].  In this regard, we note that the CRP Memorandum has now been issued by Family Consultant [name omitted] and that there are clearly very serious matters for the parties to contemplate in relation to their daughters’ [sic] present and future emotional welfare.

2. By email sent on 30 January 2016, the father advised the mother of his intention to remain in the United States with the boys and outlined proposals which might enable the children to visit their parents and each other during school holidays. 

3. The mother rejected the father’s proposals and on 1 February 2016 her solicitor informed the solicitor for the father that the mother required the boys be immediately returned to Australia.

4. The mother filed an urgent application on 10 February 2016 so as to secure the boys’ immediate return to Australia.  As we said earlier, the only order sought by the father was that her application be dismissed. 

5. The mother’s urgent application came before the primary judge in a duty list on 29 February 2016.  Both parties had filed affidavits in support of their positions.  For his part, the father was silent about whether, if orders were made for the children’s return, he too would return.  The mother was represented by counsel and senior counsel appeared for the father.  The ICL also appeared.  Counsel for the mother presented a Minute of Order which addressed the possibility that if the boys returned but the father did not, one or other might elect to not live with her.  In this event the mother said she would not oppose the boys living with the father’s mother.

6. When the matter could not be resolved, the proceedings were adjourned and listed for hearing before his Honour at 9.00 am on 2 March 2016 on which occasion senior counsel appeared for the father, counsel appeared for the mother and a solicitor appeared for the ICL.  The hearing was conducted without cross-examination (no one sought to cross-examine) following which the primary judge reserved his decision.

7. At the hearing on 2 March 2016 the mother filed a Further Amended Initiating Application in which she sought final and interim parenting and related orders and, pursuant to s 79A(1)(a) of the Act to set aside orders for the settlement of property made on 25 June 2014. An affidavit was filed by the father in which he deposed to conversations with his mother the effect of which was the boys could not stay with her. Thus the mother introduced the proposal that the boys be permitted to stay with parents of the children’s friends.

8. His Honour published his reasons for judgment on 8 March 2016 and made the orders under appeal.  

9. The father filed a Notice of Appeal on 9 March 2016 and an application for expedition.  The appeal was expedited and listed for hearing on 23 March 2016. By consent, Orders 1, 7, 8 and 9 of the orders dated 8 March 2016 were stayed until 5.00 pm on 23 March 2016.    

10. Because the father failed to comply with some of the procedural directions concerning the appeal, on the Court’s own motion it was listed on 18 March 2016.  The default was rectified and the costs of that appearance were reserved as costs in the appeal.

11. At the conclusion of the appeal we extended the stay pending determination of the appeal.  We also asked those appearing for the father to inform us, the mother and ICL of the children’s address but were told they did not have this information.  Accordingly the father was ordered to provide that information within 24 hours.   An address has been provided.

The orders dated 8 march 2016

1. The orders pronounced on 8 March 2016 are set out below:

   1.Forthwith and within 72 hours of the date of these orders, the father is to do all things and sign all documents to cause each of the children [the boys] to be returned to the Commonwealth of Australia.

   2.Pending the father’s compliance with order 1 to return [the boys] to Australia or the finalisation of the mother’s application for enforcement of order 1 and/or the mother’s application under the Hague Convention, the father shall be restrained from causing [the boys] to live anywhere other than the State of New York.

   3.The father is to forthwith surrender all valid passports for [the boys] to the Australian Embassy or Consulate in New York and [the boys] passports shall be released for the sole purpose of [the boys] returning to Australia pursuant to these orders or any order made under the Hague Convention on the Civil Aspects of International Child Abduction.

   4.The mother and father, by themselves, their servants or their agents, are restrained from removing or attempting to remove [the daughter] from the Commonwealth of Australia or [the boys] from the Commonwealth of Australia once they have returned to Australia.

   5.The Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship shall take all necessary steps to immediately place the said children’s names on the airport watch list also known as the PACE Alert System, at all points of arrival and departure in the Commonwealth of Australia and the Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all States and Territories of the Commonwealth of Australia.

   6.Within 24 hours of [the boys] returning to the Commonwealth of Australia, the mother is to surrender to the Family Court of Australia the passports of all of the children and the Family Court of Australia shall hold the passports pending further order of the court.

   7.Pending further order, orders 2 and 3 of the orders made 25 June 2014 be suspended.

   8.Pending further order and subject to order 9, [the children] (collectively “the children”) live with the mother. 

   9.In the event the father returns to Australia with [the boys], [the boys] can continue to live with him. In the event that he does not, [the boys] are to live with their mother provided that in the event that [either boy] choose to do so, they may live either:

   9.1.In accommodation provided by the father with paid supervised services to which the mother consents in writing; or

   9.2.[The younger boy] may live with [Ms U] and/or [the elder boy] may live with [Ms W].

   10.Either party have liberty on 7 days notice to seek to implementation these orders.

   11.Relevant to the mother’s application for property settlement, the mother’s application for this court to request the Registrar of the Federal Court files involving proceedings involving the father in the Federal Court be adjourned to 4 May 2016 at 10am and within 14 days the father file and serve any response in relation to that part of the mother’s application and any evidence upon which the father seeks to rely in respect of that application.

The reasons for judgment

1. As a reading of the transcript of the hearing demonstrates no reference was made to the statutory provisions which governed the disposition of the proceedings. However, it is apparent that the primary judge and counsel were astute to the fact that these proceedings engaged Part VII of the Act and the factors which would drive a decision as to what orders would be in the best interests of the children (s 60CA) were located in s 60CC (How a court determines what is in the best interests of a child) of the Act. In other words, the case was argued by reference to issues, all of which conformed to s 60CC. In his reasons for judgment the primary judge adopted a similar approach albeit it was made clear that the best interests of the children would be determined by reference to ss 60CC(2) (primary considerations) and (3) (additional considerations) ([62]).

2. After the primary judge set out the background to the proceedings (which need not be repeated) and identified the applications, he identified and discussed the issues raised by the parties. Because at least one of the father’s grounds of appeal requires that we consider whether the primary judge adequately addressed ss 60CC and 65DAA of the Act, it is useful to cross-reference the various headings used in the judgment to ss 60CC(2) and (3). By doing so it can be seen that his Honour discussed s 60CC(3)(a) “The children’s views” and “A wishes report?”, ss 60CC(2)(a) and 60CC(3)(b) “Relationships”, ss 60CC(3)(a), (b) and (d) “What the mother says about the effect of the father’s provision of material wealth to the boys”, ss 60CC(2)(b), 60CC(3)(j) “Risk factors”, ss 60CC(2)(a), 60CC(3)(b) and (d) “The future of the boys if they return to Australia” and s 60CC(3)(m) “Co-parenting relationship” and “another consideration”. As we will shortly explain, his Honour did not need to address s 65DAA (equal time and substantial and significant time) issues in his reasons for judgment.

3. The primary judge summarised the orders sought by the mother thus:

   3.1Orders for the return of [the boys];

   3.2For a suspension of orders allocating when the children would live with each of the parents which were made on 25 June 2014;

   3.3An order that pending further order, all three children live with the mother;

   3.4An order injuncting [sic] the father from causing the children to live anywhere other than the State of New York pending their return to Australia or the determination of the mother’s application under the Hague Convention in New York or enforcement of an order for return;

   3.5A notation that in the event that any of the children elect not to live with the mother when they return to Australia, then the mother would not oppose them living with the paternal grandmother, or for [R] to reside with [Ms W] and [S] to live with [Ms U];

   3.6An order that the boys’ passports be surrendered to the Australian Embassy or Consulate in New York;

   3.7An order that [the daughter] and the boys, once the boys are back in Australia, not be removed from the country;

   3.8A recovery order once the boys are back in Australia;

   3.9A watch list order.

4. A recovery order was not made and as there is no appeal against that refusal we need not discuss it any further.

5. The father’s opposition to the orders sought by the mother was noted as was the fact that he did not seek to vary the operative orders or propose alternative care arrangements for the boys (to those proposed by the mother) if an order was made for their return. 

6. Reference was then made to the suggestion by senior counsel for the father that the boys be interviewed in New York so as to provide evidence of their “wishes” and for an adjournment to enable this to take place.  Although the ICL explained how such a report might be obtained, the ICL did not propose orders to that effect nor make submissions as to the orders said to be in the best interests of the children.

7. The primary judge outlined the evidence as to the children’s views ([22]-[26]) which, in relation to the boys, comprised evidence from the father about his conversations with them and copies of text messages between the child S and the mother. In those text messages, S wrote of his love for his mother and asked that she not make him come back. S also said he would be happy to visit the mother in Australia but not to live with her. His Honour considered that the content of the messages showed there “… had been extensive conversations between [the father] and [S] about the father’s desire that he be able to relocate with the boys to America” [24]. There had been no contact between the child R and the mother subsequent to his arrival in New York.

8. The mother’s evidence was that the parties’ daughter T, on learning her father and brothers would not be returning to Australia, had become withdrawn, sullen and upset.  She cried often and repeatedly questioned the mother about when her brothers would return.

9. Consideration was then given to the suggestion that a report be obtained in relation to the boys’ views of the matter.  This, in turn, required consideration of whether the preparation of such a report whilst the boys lived under the influence of their father in New York had any utility.  His Honour pointed to the father having involved the boys in his breach of the current orders and, in effect, their excited and positive responses to the lives which he laid out for them in New York.  For example, the father’s evidence that both boys said New York is “amazing” was accepted ([30]).

10. However, his Honour observed that S was quite blasé in the manner in which he dismissed his Australian roots, friendships and other connections to Australia and noted his failure to even mention his sister.  However, his Honour was satisfied “…the actions of the father have significantly prejudiced and almost certainly coloured any statements the boys may make whilst they are in New York…” ([31]).

11. The primary judge accepted the father’s evidence as to the views expressed by the boys. In doing so his Honour made further reference to the father’s evidence as to his conversations with the boys and text exchanges between S and the mother.  Thus his Honour was satisfied both boys wanted to live in New York with the father and neither wanted to return to Australia or live with the mother.  His Honour was satisfied that if the boys were interviewed in New York their views would be the same.  However, the weight which might otherwise be attached to the views of children then aged 16 and 14 was “… weakened by the circumstances which have been contrived by the father.” ([32]).

12. His Honour next addressed the submission made by counsel for the mother that the family were already engaged with a court appointed and assessment process in Australia and, in Australia, the entire family could participate in a report ([31]).  His Honour was satisfied that a report which dealt with more than simply the boys’ views was required as the Court would need to examine, for example, the dynamics of the sibling relationship and the children’s relationships with each of their parents.  A report of this type could be undertaken in Australia with the participation of all family members ([34]). 

13. The children’s relationships with each of their parents and amongst the sibling group were discussed next.  Both parents were concerned about T and thought she suffered under the strain of their dispute and in relation to which reference was made to the Children and Parents Issues Assessment Memorandum dated 25 January 2016 in which the family consultant said:

    [12] [T] said that her relationship with [her father] is ‘not good’. She expressed distress about her father treating her, from her perspective, as ‘the other child’ while her brothers are treated as ‘golden children’. [T] said that she feels too hurt and distraught to think about seeing her father at present. [T] stated that, when she feels ready, she would like to see her father whenever she wishes but asks that her father not apply pressure to her to do so.

    ...

    [21] ...these feelings along with the acrimony between the parents, and the deterioration in her relationship with her father and brothers, if ongoing, placed [T] is [sic] at risk of developing emotional and social difficulties, especially with intimate partner relationships, later in life.

14. His Honour recorded the criticisms the parties made about the other’s parenting and which each said created difficulties for T and the boys in their relationships with the other parent ([40]-[41]).

15. The mother’s evidence about the different lifestyles the children lived in each parent’s home was then addressed.  According to the mother, she struggled financially and could not compete with the largess the children enjoyed with the father.  This caused tension between the children and in relation to the child S, resulted in his therapist writing to both parents on 11 March 2014 in the following terms:

    47.“[S] is obsessed with money and material matters and has completely lost perspective in terms of being able to evaluate his relationships and their importance. He is in a desperate struggle to get his share and constantly obsesses about who is getting what and how much etc etc. This is typical of the scenario that plays out when a struggle occurs at the parental level of the kind that the two of you are embroiled in. It is damaging to the children’s well being. As his therapist I am ready to express my concerns to the family court should I have an opportunity to do so.”

    (Reasons for judgment, 8 March 2016) (Original emphasis)

16. It was uncontentious that by March 2014 S was spending much more time with the father than the mother.

17. On the other hand, the father rejected the suggestion that the boys chose to live with him because of the financial advantages of so doing. In his opinion, the mother failed to appreciate the strength of the boys’ relationships with him, the significance of her refusal to allow S to keep gifts pertaining to his religious initiation and to recognise the role she played in the deterioration of her relationship with her sons ([49]-[51]).

18. The primary judge next looked at the evidence in relation to risk of family violence (there was no AVO) and, in particular, what the family consultant described as the parties’ poor co-parenting relationship and the level of dysfunction in the family.  There was no finding of family violence or risk of exposure to it.

19. His Honour rejected an argument made by senior counsel for the father that the fact that the boys lived with the father and thus had not been withheld from the parent with whom they usually lived was significant and would justify a different approach to that taken in many cases where children had been retained in another country. The primary judge explained that the retention of children abroad by their primary carer was far from unique ([54]-[55]).

20. Consideration was then given to the living arrangements that could be put in place if the boys returned to Australia.  As the father gave no evidence about what he would do if an order was made for their return, his Honour did not know whether (or not) the father would return to Australia “… until things were sorted out here.” ([55]).

21. Reference was then made to the possibility that if they were returned one or both boys would not want to live with the mother and to arrangements she had made with the father’s mother and the mothers of two children who had longstanding friendships with each of the boys.  However, evidence of conversations between the father and his mother and the boys resulted in the mother giving up her “alternate proposal” for the boys to have temporary accommodation with their grandmother.

22. The arrangements with the parents of the boys’ friends would have the boys in different homes, which was not ideal, but as it would be “… a possible temporary arrangement pending a determination by this Court as to whether or not the boys should be permitted to relocate internationally” it was an arrangement which required consideration ([59]).

1. However, as his Honour explained at [60]:

   But it may not come to that. On the material that has been presented, it seems that the father is a man of significant means. The father is totally silent as to what has happened to the accommodation in Australia in which he was living with the boys up until the beginning of January 2016. I infer the father has the ability to provide independent accommodation for the boys if they return to Sydney and provide for paid supervision services to the extent that he believes that those services are necessary. The mother, who still has an order in her favour for equal shared parental responsibility, should have some say in respect of the nature of such supervision. Again, we are talking about temporary arrangements pending a final determination of the father’s application for international relocation of the boys.

2. At [61], his Honour made plain his disquiet about the manner in which the father retained the boys and his involvement of them in his breach of orders.  In so doing, the father demonstrated poor judgment as a parent and “as a role model to the boys”.  For the Court to sanction the father’s behaviour would send a poor message [to him and the boys] “… about what might be considered to be appropriate parental behaviour.”.  This was a matter of some significance.

3. Against that background, his Honour expressed his conclusion thus:

   62.The determinative matters under s 60CC(2) and (3) of the Family LawAct1975 (Cth) (“The Act”) primarily require a balance of the consideration of the boys’ expressed views as against the damage that is currently being done, particularly to [S’s] mother/son relationship; [T’s] father/daughter relationship and [T’s] relationship with her brothers, by the unilateral action of the father. This needs to be judged having regard to the history of the family dynamics and identified risk factors.

   63.Without a return order, there is a greater chance that the relationships to which I have just referred will be irretrievably damaged. I find that it is in the children’s best interests to make orders for the return of [the boys] to Australia.

4. As to the arrangements for the boys, his Honour at [66] said:

   66.I will make an order that in the event the father returns to Australia with the boys, the boys can continue to live with him. In the event that he does not, the boys are to live with their mother provided that in the event that either boy chooses they may live in either:

   66.1Accommodation provided by the father with paid supervised services to which the mother consents in writing; or

   66.2[S] live with [Ms U] and/or [R] live with [Ms W].

The father’s grounds of appeal

1. The father’s Notice of Appeal contained 15 challenges to the orders:

   1.That His Honour erred in making a return Order and an Order that the children, […] live with their mother without first considering the matters under Section 60CC and/or failed to give reasons as to why such an Order was in their best interests.

   2.That His Honour erred in making a return Order and an Order that the children live with the persons identified in Order 9.2 in circumstances where such persons were not parties to the proceedings.

   3.That His Honour erred in making a return Order and an Order that the children live with the persons identified in Order 9.2 in circumstances where there was insufficient evidence to enable any finding to be made that such an Order would be in their best interests.

   4.That His Honour erred in making a return Order or an Order that the children live with the persons identified in Order 9.2 without first considering the matters under Section 60CC and/or failed to give reasons as to why such an Order was in their best interests.

   5.That His Honour erred in making a return Order and Order 9.1 without first affording the father procedural fairness.

   6.That His Honour having accepted the father’s evidence that the children’s views were not to return to Australia (paragraph 32, first sentence), erred in ordering their return in the absence of any evidence as how such an Order may impact upon them.

   7.That His Honour having accepted the father’s evidence that the children’s views were not to return to Australia, erred in failing to give reasons or failed to give sufficient reasons as to why he concluded that the weight to be given to such views “are weakened by the circumstances which have been contrived by the father” given the factual history of their living arrangements prior to travelling to the United States of America, and their prior views.

   8.That His Honour erred in finding that the husband “contrived” circumstances (paragraph 32) when such finding was, given the nature and form of the proceedings, not available or open in the absence of cross-examination or admission, and the making of such finding had the effect of causing His Honour’s discretion to miscarry.

   9.That His Honour erred in taking into account the matters at paragraph 61 and/or that His Honour’s discretion miscarried in determining that the best interests of the children required that His Honour “send a message” to the husband that his parenting was inappropriate.

   10.That His Honour erred in taking into account the matters at paragraphs 42 to 51 inclusive, failed to give reasons as to why they were relevant considerations and/or took into account irrelevant considerations, such that His Honour’s discretion miscarried.

   11.That His Honour having determined that a return Order was necessary to promote the children’s relationship with their mother and/or the [sic] [T] […], erred in failing to give reasons as to how or why it would, in the absence of Orders for the children to spend time with their mother or [T] and in light of the factual history and the mother’s evidence recorded at paragraph 35, and in so doing His Honour failed to give reasons as to why the return Order was in the best interests of the children.

   12.That His Honour erred in failing to give reasons why an Order for [sic] return of [R] was in [R’s] bests interests given his age, his prior relationship with his mother and the acceptance by His Honour of [R’s] views.

   13.That His Honour erred in making a return Order given his acceptance of the views of the children in the absence of objective evidence in the form of either a “Views Report” or “Full Family Report” and/or failed to give reasons or sufficient reasons as to why such a report could not be undertaken in the absence of a return Order.

   14.That His Honour’s finding at paragraph 60 that the return Order would only be a temporary arrangement constituted an error in circumstances where the mother’s Application now included relief under Section 79A, the Court delays being over two years and that, by the time the Court determined the father’s Application for international relocation, [R] would be over 18 and [S] over 17, such that a return Order could not have been in the best interests of the children.

   15.That His Honour erred in finding that the husband was a man of “significant means” and was able to provide independent accommodation and pay for “supervision services”, such finding being contrary to the evidence. 

   (Original emphasis)

2. In the written submissions in support of the appeal, senior counsel for the father contended that the grounds could conveniently be considered in four broad categories:

   ·failure to consider and evaluate each of the relevant statutory considerations (grounds 1, 4 and 10);

   ·failure to give appropriate weight to the views expressed by the children, R and S (grounds 6, 7, 8 and 13);

   ·took into consideration irrelevant matters (grounds 9 and 10); and

   ·the primary judge erred in his consideration of the future of the boys if they returned to Australia (grounds 14 and 15).

3. No written submissions were addressed to grounds 2, 3, 5, 11 or 12.  However, the issues raised in grounds 2, 3 and 12 were addressed in connection with other grounds and we will do the same.

4. It needs to be remembered that this is an appeal against his Honour’s exercise of discretion which is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. Disagreement by an appellate court only on matters of weight by no means justifies a reversal of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).

The orders sought

1. In the event the appeal was successful, the father sought that we re-exercise the discretion of the primary judge and order that a report be prepared in New York in relation to the boys’ views.  Otherwise, that the orders of 8 March 2016 be set aside and the mother’s urgent application (and his response that it be dismissed) be remitted for hearing before a different judge. 

2. It follows, that even if the father is successful on appeal and on a re-hearing, the parenting orders made on 25 June 2014 would continue.

Failure to consider and evaluate relevant statutory considerations (grounds 1, 4 and 10)

1. In their terms, grounds 1 and 4 tend to suggest that his Honour erred because he addressed the issues raised in the proceedings by topic and it was only when he reached the point where he could formulate his conclusion that reference was made to ss 60CC(2) and (3) and thus he impermissibly failed to follow the provision. And, that his Honour failed to give adequate reasons as to why the orders he made were in the best interests of the children. The first proposition is contrary to the weight of authority; it being well settled that it is not mandatory for the provisions of s 60CC to be considered in any particular order (Slater v Light (2011) 45 Fam LR 41 at [45]; Cox & Pedrana (2013) FLC 93-537 at [29]-[31]; Beckham & Desprez [2015] FamCAFC 247 at [31]). Perhaps this explains why the Summary of Argument casts these challenges somewhat differently.

2. The first challenge morphed into an assertion that, because the parties were to have equal shared parental responsibility, s 65DAA was engaged and thus his Honour was required to first consider (which in his reasons his Honour did not) whether an order for equal time or substantial and significant time was in the best interests of the children and reasonably practicable before he made the orders in favour of the mother. This is because s 65DAA contains a suite of factors that must be considered if there is (as in this case there is), or will be, an order that a child’s parents are to have equal shared parental responsibility. Because this “legislative pathway” was not followed his Honour allegedly fell into error.

3. However, it will be recalled that neither party proposed an order for equal time or substantial and significant time.  Both parties ran the proceedings before his Honour on the basis that orders of that type would not be in the best interests of the children.  These were factual and legal concessions which his Honour was entitled to accept and plainly did accept.  In this respect, the case is on all fours with SCVG & KLD (2014) FLC 93-582 where the Full Court explained that a judgment needs to address only contentious factual and legal matters that remain outstanding. In that case, as here, as neither party sought to change the order for equal shared parental responsibility or sought an order for equal time or substantial and significant time, s 65DAA did not require explicit consideration.

4. Contrary to the submission made by senior counsel for the father, we do not accept that an application for an order that a child lives exclusively with one or another parent, is an application for substantial and significant time. Although an exclusive arrangement might be defined as substantial and significant, its exclusiveness gives the arrangement an entirely different character. As the words used in s 65DAA(2)(b) make plain, the section requires that the Court consider whether the child spending time with “each” of the parents would be in the child’s best interests. It follows that the point of substantial and significant time orders is the allocation of time between parents; it is not concerned with the exclusive allocation of time to one parent.

5. The second limb of the argument is that even if his Honour was not obliged to apply s 65DAA, had he turned his mind to s 65DAA(5) (reasonable practicability of equal time or substantial and significant time arrangements) he would have better appreciated that the effect of his orders was to separate the boys from both parents. An outcome said to be extraordinary and contrary to the scheme of ss 60CC and 65DAA. Specific reference was made to ss 60CC(3)(b), (c), (ca), (d), (f)(i) and (i) and that had His Honour considered these matters he would have realised why it was not in the best interests of the boys “to make orders requiring them to come back [to] Australia and perhaps no longer live with [the father]” (Summary of Argument at [21]). (our emphasis)

6. Aspects of this argument can be easily disposed of. First, s 65DAA(5) had no bearing on the case and his Honour did not err in failing to address it. Secondly, as counsel for the mother pointed out, no evidence was adduced by the father in relation to ss 60CC(3)(c), (ca), (f)(i) (except in connection with the boys’ views) and (i) and no argument was advanced in relation to these provisions. The point being as these matters cannot properly be raised now (Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Metwally v University of Wollongong (1985) 60 ALR 68).

7. Nor was there any suggestion from the father that the children were at risk of physical or psychological harm from the mother through being subjected to or exposed to abuse, neglect or family violence.

8. As to whether the primary judge properly applied s 60CC and fully understood the nature of the orders he made, as we have already explained, his Honour carefully addressed each of the provisions to which argument was addressed. And well understood that R had chosen to have nothing to do with the mother post August 2013, accepted that the boys wanted to remain in New York with the father and there was a possibility that neither would willingly live with the mother. He said so in exchanges and the very scheme of his reasons and orders speak to that possible outcome.

9. However, his Honour was clear that that possible outcome needed to be balanced against “…the damage that is currently being done, particularly to [S’s] mother/son relationship: [T’s] father/daughter relationship and [T’s] relationship with her brothers” ([62]) if, in the interregnum, the boys remained in New York with the father and the mother and T stayed in Australia. 

10. As to the other aspects of s 60CC that it is said his Honour failed to consider, it is simply wrong to suggest he failed to consider the nature of the children’s relationships with each of their parents and the effect on them of a return order. Reference need only be made to [64] to reveal the fallacy of the argument. At [64], his Honour said:

    I did consider only making a return order in relation to [S] because of the different nature in the relationship between the mother and [S] and the mother and [R] and [R’s] age. That in my view however, particularly based on the evidence from [S’s] therapist, would not be good for [S] and senior counsel for the father and the Independent Children’s Lawyer seemed to intimate that the boys should not be split.

11. Further, his Honour’s discussion at [55]-[60] and [66] serves only to highlight his appreciation that on their return, both of the boys might not want willingly stay with the mother.  The scheme of the orders provides the parents and children with a sliding scale of options, which notably give effect to the boys’ long standing desire to live with the father, and only if he does not make that option available would they live with the mother.  If neither of these options is available (or in the case of the mother is acceptable to a child) other options become available which the boys might find agreeable.  As the terms of the orders reveal, these orders were facilitative and did not require the children to be separated from both their parents or live with parents of friends or paid carers.

12. Before us, senior counsel for the father sought to elevate what he said in his written Summary of Argument was a possibility the children would no longer live with the father, to it being certain the father would not return with the children to Australia and certain the children would not live with the mother.  In our view, the probabilities are better reflected in the Summary of Argument than in the oral argument.  Reference need only be made to the following matters to establish there was ample evidence in support of it being no more than a possibility the father would not return with the boys:

    ·the boys lived with the father for some years which demonstrated his commitment to their care;

    ·the father had only recently departed Australia and when he did so he intended to return within a couple of weeks;

    ·the father did not say he would not return with the boys and care for them pending adjudication of whether they could live in New York;

    ·he did not depose to having given up the home in Australia in which he and the boys lived in Suburb B only weeks earlier;

    ·the father was involved in apparently significant litigation in the Federal Court; and

    ·he did not say that his business interests in New York made it impossible for him to return for a period.

13. His Honour was thus entitled to factor into his deliberations the possibility that the father might return to Australia with the boys and, in that event, to order they live with him. It follows, we are not satisfied that the effect of his Honour’s orders is that the boys are to be separated from both their parents for any significant period.  In this regard, it bears repetition these are interim orders pending a determination of the children’s long-term interests. 

14. The submission of the father then that the orders of the primary judge are not in the best interests of the boys because they would inevitably be separated and living in unsuitable accommodation on their return is a most unattractive submission.  The Court should be slow to assume that the father would, in fact, act in the way that was what he submits, is the worst option for the children.

15. We do not accept the proposition that his Honour failed to expose his reasoning, including in relation to matters of weight, in the manner required.  His Honour’s reasoning can be summarised thus:

    ·the boys had been recently retained in the United States [1];

    ·the father, by his unilateral action in breach of court orders, had taken the law into his own hands [30];

    ·the father did not apply to vary the operative orders [4];

    ·the boys wanted to remain in New York with the father [32];

    ·the weight attached to their views is weakened by circumstances which have been contrived by the father [32];

    ·the children’s long-term interests, including T’s, would be determined by reference to other important matters as well as to the children’s views [34];

    ·those broader matters were best considered in Australia, where the entire family could be assessed [34];

    ·the parents have a highly acrimonious relationship from which the children suffered [47] and [52];

    ·there was a possibility the father would return with the boys [55] and [66];

    ·the father had demonstrated poor judgment as a role model for the boys [61];

    ·if the living arrangements imposed by the father were allowed to continue, S’s relationship with his mother, T’s relationship with her brothers and father will be irretrievably damaged [63]; and

    ·even if the father did not return, the boys could live with the mother and notwithstanding they may not wish to other temporary arrangements could be put in place [55]-[60].  

1. These were all relevant considerations and, in our view, his Honour more than adequately exposed the reasons why he was satisfied the orders are in the children’s best interests and addresses the issues raised and weight.

2. To the extent that it said that this group of grounds engages ground 10, nothing was said in support of it and it need not be discussed further here.

3. It follows that these challenges will fail.

Failure to give appropriate weight to the views expressed by the children, R and S (grounds 6, 7, 8 and 13 and by inference grounds 3 and 12)

1. It is important to record at the outset that it is not, and never has been, the case that a judge in his Honour’s position is obliged to make orders consistent with a child’s stated views (H v W (1995) FLC 92-598; Maldera & Orbel (2014) FLC 93-602). Rather, a primary judge is obliged to consider the weight which should be given to any stated views. Of course, a range of factors may affect the weight given beyond simply the age and level of maturity of the child. In other words, context is critical and it is a matter for the judge to determine how giving effect to a child’s stated view accords with the child’s best interests (R v R (Children’s Wishes) (2002) FLC 93-108; Gillard & Gillard [2015] FamCAFC 169 at [81]). As we will shortly discuss, this is precisely what his Honour did.

2. The challenges raised by grounds 6, 7, 8 and 13 have, at their heart, the following propositions:

   ·the evidence overwhelmingly demonstrated that the boys wanted to live with the father (in New York or wherever he lived);

   ·his Honour gave no consideration (weight) to that evidence because of his poor opinion about the father’s actions in retaining the boys;

   ·before the primary judge determined that the boys’ views should carry no weight, an expert report should have been obtained as to their views and how a return order might affect them; and

   ·given the children’s ages and circumstances, their views against being returned to Australia should have been given greater weight to all other considerations.

3. The correctness of the first of the above four propositions is not in doubt.  Nor is there any doubt that his Honour proceeded on that basis and accepted the father’s evidence that the boys did not want to live with the mother in Australia.  However, in the exercise of his discretion the primary judge determined:

   1.not to give effect to the boys’ views to remain with their father in the United States;

   2.to give effect to their views to live with their father but only if he returned to Australia;

   3.to give effect to their views not to live with their mother but only if their father was willing to care for them in Australia; and

   4.if the father was not available, to not give effect to their views against living with their mother unless certain other conditions satisfactory to the boys were met.

4. This bespeaks a carefully calibrated approach to the weight afforded to the boys’ views and demonstrates that his Honour accepted their views were genuinely held.  This is particularly evident in his decision to refuse the mother’s application for an unqualified order that the boys live with her.  In this regard, it will be recalled that as recently as 2014 the parties and the Court were satisfied that each of the parties was able to adequately care for the children and exercise parental responsibility in relation to them.  Thus the parties and the Court were satisfied that each child could choose with whom the child would live (in Australia) and their views would be determinative.  However, the parties and the Court did not empower the children to make other major long-term decisions and that power remained vested in the parties jointly.

5. His Honour adopted a similar approach, albeit because the parties could not now agree about how to give effect to the children’s views, he needed to resolve that impasse.  Thus, and notwithstanding that the parties and Court were recently satisfied the mother was able to care for the boys and his Honour’s concern about the father as a role model, the boys’ views in favour of living with the father would be given effect but upon condition that the father returned to Australia with them.  It was only in circumstances where the father refused to return to Australia with the boys that the order in favour of the mother would be given effect.  Even then, his Honour placed significant weight on the boys’ views contrary to that outcome and made other options available if, in their opinions, those options were acceptable.

6. It does not follow that because his Honour did not make orders consistent with the boys’ views in favour of remaining in New York with the father, that those views did not carry considerable weight.  It is explicit in his Honour’s reasons that the boys’ views were taken into account ([33]) in a very real way, even although their desire to remain in New York or, as senior counsel for the father more correctly described it, wherever it was the father chose to live. It is also clear that their views did not carry as substantial weight as might otherwise have been the case or to other aspects of their stated views.  As we have already explained, his Honour was entitled to take this approach.  However, this invites consideration of his Honour’s reasons for not giving full effect to every aspect of the boys’ views and whether, as is contended for by the father, he ought to have obtained a report (in New York) before he diminished the weight given to that particular aspect of the boys’ views.

7. There are a number of factors which resulted in his Honour’s determination to reduce the weight he would otherwise have given to the boys’ views in favour of remaining in New York with the father.  First, he was satisfied there had been extensive conversations between the father and the boys about the father’s desire to relocate the boys to the United States, which finding is not challenged.  His Honour did not criticise the father for doing so per se but clearly formed the view that the father’s desire to live in the United States had influenced the boys.  In other words this was not a case in which a parent gave effect to an idea initiated by his or her child.  Given the strength of the boys’ relationship with the father, that they were positively influenced by his desire to live in the United States is simple common-sense.

8. Secondly, the boys’ preference for New York reflected their bedazzlement with what even the father described was “a recent development in their lives” (Father’s affidavit, 25 February 2015 at [26]).  However, his Honour was concerned that the children’s failure to reflect on the loss of important aspects of their lives in Australia, for example, their sister and mother, suggested that in their excitement about New York, they overlooked and failed to consider other important matters.

9. His Honour criticised various actions by the father which he saw as contrived and having significantly prejudiced and almost certainly coloured the boys’ statements in favour of New York.  His Honour’s use of the word “contrived” came under particular challenge in relation to which senior counsel for the father said there was no evidence the father “planned, plotted, or contrived a situation before the boys left Australia that [the father] never intended to return to Australia” (Summary of Argument at [24]).  His Honour did not make that finding or anything like it.  We understand his Honour’s reference to “contrivance” to be to the evidence (at [22] – [23]) that the father led the boys to understand they could choose between two scenarios.  That is, to live with him in the United States or return to Australia and live with the mother.  The point being, he did not explain that he could return them to Australia, and remain while a decision was made whether the boys would live in New York or Australia.  His Honour’s comments about prejudice are directed to the same matters, as well as to the boys’ appreciation that this was the outcome the father hoped to achieve.

10. We perceive no error in his Honour’s approach.  Nor do we accept that his Honour, in adopting this approach, determined that the children’s views were other than genuine.  It was argued by senior counsel for the father that the approach adopted at first instance in this case is similar to that taken by the primary judge in Brear v Corcoles-Alfaro (1997) FLC 92-768. We do not agree. In Brear, the primary judge was criticised for his failure to appreciate unchallenged evidence from an expert witness and for placing an impermissible gloss on that evidence.

11. The challenges made to his Honour’s decision to make orders for the children’s return without first obtaining a “wishes report” from New York can be dealt with in short compass.  As his Honour explained, there was no doubt about the result the boys wanted and did not want.  Exploration of that issue with the boys in New York was not likely to enhance his Honour’s understanding of that issue nor the other issues which were better investigated with the boys in Australia. 

12. In our view, the approach adopted by his Honour was open to him.  In ZP v PS (1994) 181 CLR 639 at 664 per Brennan and Dawson JJ, their Honours explained “…And it may be entirely appropriate to order the speedy return of the child to the country from which he or she has been abducted [or retained] without making as full an inquiry as the Court would ordinarily make in determining an application for permanent custody…”.

13. It is appropriate to also refer to the remarks of Deane and Gaudron JJ at 670 that the abduction (or as in this case retention) of children across national boundaries will almost invariably (as it does here):

    … involve the infringement of the legitimate claims of the members of the child’s immediate or extended family from whose custody or environment the child has been unlawfully taken. A court concerned with the welfare of the child will be conscious of the irreparable damage which might be done to the child’s ties with those members of his or her immediate or extended family and with his or her homeland if it effectively overrides those legitimate claims by immediately embarking upon a lengthy hearing to determine what it considers to be the desirable final resolution of competing claims and allegations bearing upon the ultimate welfare of the child…

14. His Honour’s approach in relation to a further report concerning the children’s views that it was in their best interests for their speedy return and consideration of their future interests is entirely consistent with the remarks referred to above.

15. These grounds are not made out.

Took into consideration irrelevant matters (grounds 9 and 10)

1. In senior counsel for the father’s Summary of Argument the challenges raised by grounds 9 and 10 are summarised thus:

   …

   ·His Honour made some observations about:  What the mother says about the effect of the father’s provision of material wealth to the boys.  His Honour made no finding and so it is irrelevant.

   ·His Honour made some observations about: Risk factors.  His Honour made no finding and so it is irrelevant.

   ·His Honour made some observations about: Co-parenting relationship.  His Honour made no finding and so it is irrelevant.

   (Appellant’s Summary of Argument filed 21 March 2016 at [27]) (Original emphasis) (Footnotes omitted)

2. The essential complaint, therefore, is that because his Honour made no findings in relation to these matters his judgment miscarried because he took into account irrelevant considerations.  The proposition is internally inconsistent and is incapable of establishing error.

3. However, at [62] of his Honour’s reasons, reference is made to “…the history of the family dynamics and identified risk factors”.  Viewed in context, it can be seen that here his Honour signalled that he took into account, for example, the matters under the heading of “Risk Factors” and “Co-Parenting Relationship”.  Lest it be misunderstood, the evidence referred to under these headings essentially emanates from the Children’s and Parents Issues Assessment upon which senior counsel for the father relied.  Otherwise, the observations made by his Honour under the rubric “What the mother says about the effect of the father’s provision of material wealth to the boys” contains his analysis of the parties’ evidence on the topic.  On a fair reading of his Honour’s reasons it can be seen that he in fact differentiates between evidence which is contentious and uncontentious and, consistent with well settled authority in relation to the adjudication of interlocutory proceedings undertaken without cross-examination, he did not resolve the controversies. 

4. It is convenient to deal with the remaining challenge raised by ground 9 at this point.  This challenge focuses on his Honour’s reasons at [61] and, in particular, the statement “[f]or me to sanction the father’s behaviour sends a poor message about what might be considered to be appropriate parental behaviour”.  It was argued that criticism of the father’s conduct, valid or otherwise, was irrelevant to a determination of what orders would be in the best interests of the children.  Even if this proposition is correct, his Honour’s remarks must be considered in context. 

5. This paragraph is concerned with what the father’s retention of the boys, in breach of orders, said about him as a role model to his sons. Section 60CC(3)(m) permits a primary judge to take into account “any other fact or circumstance that the Court thinks is relevant” and s 60CC(3)(i) addresses the responsibilities of parenthood. There is thus an ample statutory platform for his Honour to take into account as a demonstration of parental judgment, the father’s involvement of the boys in his breach of orders and the ramifications of that for the father as a role model to the boys. And, as his Honour said, to give this matter “some weight”.

6. These grounds will fail.

The primary judge erred in his consideration of the future of the boys if they returned to Australia (grounds 14 and 15 and by inference 2 and 3)

1. Grounds 14 and 15 engage three key propositions.  The first is that his Honour was wrong to proceed on the basis that the children’s return to Australia and their living arrangements while in Australia would be “a temporary arrangement” pending determination of their long-term interests (ground 14). Secondly, that his Honour failed to take into account the effect of a return order on the boys (grounds 2, 3 and 14) and thirdly, that he erred in finding the father was a man of significant means (ground 15).

2. The rationale for the complaint contained in ground 14 is that because the mother now sought to set aside the orders for property settlement, the proceedings had become significantly more complicated. Thus, his Honour ought to have proceeded on the basis that the proceedings would not be called on for trial for about two years by which time the boys would be over 18 and 17 years old respectively. Some cases will take two years to come to trial. However, the Act and Rules of Court make provision for split hearings and for hearings to be expedited and we do not accept that the question of whether the boys should live in Australia or New York need take anything like two years to come to trial.

3. Otherwise, the written arguments advanced by counsel for the mother, are persuasive and worthy of repetition in full:

   32)This argument is somewhat optimistically framed, in circumstances where one has effected a unilateral, permanent removal from the jurisdiction without the agreement of the other parent or order of the Court, and when there is in existence an order of the Court limiting the circumstances in which the children could be removed from the jurisdiction.

   33)His Honour decided to put in place an arrangement for the boys pending final determination, and in this sense the arrangement would be temporary.  It is a matter for the father whether he puts his business interests before living with his boys.  If he returns to Australia, then the boys will live with him.  His Honour was not prepared to put the matters which motivated the father ahead of what His Honour concluded were the boys’ best interests, nor to sanction the father taking the law into his own hands.

   (Respondent’s Summary of Argument filed 21 March 2016)

4. Allied to the argument that his Honour erred by treating the boys’ return to Australia as a temporary arrangement, is the contention that his Honour failed to take into account “the obvious unsettling effects” of a return order on the boys.  The gravamen of the submission is that his Honour had insufficient evidence to be satisfied that the arrangements proffered by the mothers of the boys’ friends were appropriate and how the boys would react if required to live with them.  Again, this is a difficult argument for the father to maintain.  It requires the Court to proceed on the basis that if it is determined his sons should return to Australia, notwithstanding he could return with them, he would refuse to do so.  We addressed this point earlier, but lest there be any doubt that the father could return, senior counsel who appeared for the father before his Honour described the father’s position thus:

   MR SCHONELL:  …The father’s evidence is that he can’t return in the foreseeable future.  The mother’s application that the boys live with the paternal grandmother is not, on my client’s evidence, a viable alternative.

   HIS HONOUR:         Well, it’s not can’t.  It’s doesn’t want to, isn’t it?

   MR SCHONELL:      Doesn’t want to. 

   HIS HONOUR:         Yes.

   MR SCHONELL:   The alternative arrangement that they live with the paternal grandmother is not, in my submission, set out in the father’s affidavit filed yesterday, a viable alternative.  We then have an alternative set of arrangements put up by a set of emails that the children would then live in some differing arrangement with people who your Honour has no capacity to assess whether or not they’re appropriate carers for the children.  It would be clear that, in relation to Ms [W’s] email, that, if [the elder boy] chose to stay with her, that they would be happy to have him. 

   (Transcript of proceedings, 2 March 2016, p 26, lines 14-30)

   …

   HIS HONOUR:         What was your client – what’s your client’s proposal if I order them back?

   MR SCHONELL:      My client doesn’t have a proposal for ordering them back.

   HIS HONOUR:         All right.  Okay.  Fair enough.

   MR SCHONELL:      What his proposal is that ‑ ‑ ‑

   HIS HONOUR:         And he’s a man of substance, isn’t he?

   MR SCHONELL:      What my client’s proposal is, that they remain in New York.

   HIS HONOUR:         I understand.  That’s not what the question was.  What’s your client’s proposal if I order them back?

   MR SCHONELL:      I don’t know what my client’s proposal is.

   (Transcript of proceedings, 2 March 2016, p 26, lines 43-47, p 27, lines 1-14)

5. As we have already explained, his Honour put in place a cascading series of arrangements for the boys on their return to Australia pending a final hearing.  The father did not present his Honour with the stark choice now argued; namely, that his Honour ought to have proceeded on the basis that it was certain the father would not return with the boys to Australia.    

6. In our view, this argument is a contrivance which seeks to mask the obvious reality that in Australia the boys have a mother who is willing to care for them and a father who could care for them if he wished it.  In these circumstances, it was not necessary for his Honour to consider all other possibilities that might be made available if the father chose to act irresponsibly qua his parental obligations to his sons. 

7. In addition and because the order addressed to the possible involvement of mothers of the boys’ friends in their care is expressed in the manner already discussed, we do not consider that his Honour erred in the manner alleged.

1. The proposal for the boys to live with the paternal grandmother had been the subject of the mother’s minute of order tendered to the Court on 29 February 2016. By 2 March 2016, the day of the resumed hearing, the father had filed an affidavit on 1 March 2016 setting out the unsuitability of any proposal for the boys to live with the paternal grandmother. The mother must clearly have accepted that was the case as she tendered to the court the two emails which became exhibit 1 of 2 March 2016.

2. Nothing in the evidence before the court on 2 March 2016 suggested that the father or his legal representatives had any prior warning of the information contained in exhibit 1 made that day (this was the email from each of the benevolent volunteers). The tender was objected to on the ground of relevance. The mother then sought to amend the interim order she was seeking so as to add to interim order 11 of the Further Amended Initiating Application the names of the two benevolent volunteers in addition to the name of the paternal grandmother. (Transcript of proceedings, 2 March 2016, p 10, line 26). In response to that application the learned primary judge said:

   Well, you’re saying that you want me to note the mother wouldn’t oppose the children living with the paternal grandmother or those two people.

   (Transcript of proceedings, 2 March 2016, p 10, lines 33-34)

3. Given the circumstances which had arisen in the hearing before the primary judge it is my view that the hearing should have been adjourned and the mother required to provide more information about the proposal for the children to live with the benevolent volunteers. The Independent Children’s Lawyer should have been given an opportunity to investigate the proposal in the usual way that is done and the Independent Children’s Lawyer should have been in a position to inform the Court of the two boys’ views about the proposal (and evidence of those views if that was possible). The father should have been required to inform the Court of whether he would or could accompany the children to Australia should the order sought by the mother be made, and further whether he had any proposal to house the boys in Australia pending the determination of the mother’s parenting application and any parenting application he was proposing to make. There was nothing so urgent about this case which could not have accommodated such a process. The boys were, on the proposal of the father when he took them to the United States for a holiday, to have been returned to Australia before the end of January 2016. It was four and a half weeks later that the case was heard and five weeks later when the order was made. Now further time has passed and the urgency which may have been present urging a very quick determination so that the children could be joining in a new school year in Australia is clearly not there.

4. The extent to which the Court is required to consider the sub-sections of s 60CC (in particular sub-section (3)) in the confines of an interim determination of parenting orders or any associated order made pursuant to a provision in Part VII of the Act, has been the subject of decisions of this Court. I now turn to consider those decisions.

SCVG & KLD (2014) FLC 93-582

1. The appeal in SCVG & KLD was an appeal against the making of an interim parenting order. The thrust of the appeal revolved around the issue of whether the primary judge had “erred in failing to consider all relevant matters”, in particular, whether the primary judge had failed to consider ss 61DA and 65DAA.

2. The primary judge had not expressly referred to those sections in the proceedings or the ex tempore judgment he made in the matter. He had, however, asked questions which in effect brought about the same result as a consideration of those two sections. Counsel for the father submitted that the primary judge was required to commence his deliberations by first considering s 61DA and its interplay with s 65DAA, rather than a consideration of s 60CC(2) and (3). Neither party, in that matter, had sought an order for equal time.

3. The issue at hand was whether the primary judge had properly followed the “legislative pathway”, and consequently, whether there exists a requirement that judges follow the legislative pathway in interim parenting matters.

4. In the earlier decision in Goode & Goode (2006) FLC 93-286 at p 80,903, the Full Court (Bryant CJ, Finn and Boland JJ) stated:

   81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.  However, the legislative pathway must be followed.

   (Emphasis added)

5. The Full Court in SCVG & KLD (Ainslie-Wallace, Ryan and Stevenson JJ) expanded on this setting out the following:

   71.So as to understand what is meant by the phrase ‘legislative pathway” and for authority that it must be followed, counsel for the father referred to Goode & Goode (2006) FLC 93-286, in particular, paragraphs 56 and 81. These paragraphs are set out below:

   56. In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).

   …

   81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

   72.However, it is necessary to recite what their Honours in Goode said at [82] to appreciate the gravamen of the passages referred to above. It is there that the “legislative pathway” referred to in Goode and the cases which follow is described. 

   82.        In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

   73.In our view [82] of Goode makes it clear that that case is not authority for the proposition that a judge must commence his or her deliberations about what interim or final parenting order is in a child’s best interests by reference to s 61DA and, if an order for equal shared parental responsibility is or will be made, to then sequentially address s 65DAA.

   (Emphasis added)

6. The Full Court in SCVG & KLD emphasised that Goode identifies s 60CC as the starting point in such applications. The Court stated:

   74.Although this discussion demonstrates that care is required in the application of the principles that emerge from Goode, what is significant is that in Goode the determination of what order would be in a child’s best interests commenced with the application of s 60CC.

Conclusion

1. In conclusion, I am of the view that the primary judge has fallen into error. In so concluding I have considered whether the view I have goes beyond that of determining that as an individual Judge, charged with hearing the same case, I would have reached a different decision. Such a conclusion would not establish appealable error and consequently not pass the tests laid down in House v The King (1936) 55 CLR 499. I have concluded that given the onerous responsibility cast upon a judge who is required to make a parenting order which is in the best interests of a child, it was incumbent upon the primary judge in this case not to make any return order on 8 March 2016 but rather require further evidence, sufficient for him to have a clearer understanding of the views of the boys on each parent’s proposals for them and a clear understanding of what might befall each of these children were the Court to make a return order as sought by the mother. Additional evidence would also inform the making of an order which the Court may construct of its own motion (U v U).

2. The Court in a case such as this is required to weigh the benefit and the detriment of making any order, including an order sought by a party.

3. In my view there was a failure to obtain any view of children, whose age dictated their views could be given significant weight, in relation to a proposal which effectively was a residence order in favour of a person who was not a natural parent of either child, nor was there any evidence that either of the subject benevolent volunteers had ever stood “in loco parentis” to either child in any circumstance. The order was to take effect should either child elect not to reside with the mother, a circumstance which the mother clearly saw as a likely scenario (so much so that the mother had moved the Court to make a recovery order to operate upon the return of the boys to Australia if they refused to live with her (Transcript of proceedings, 2 March 2016, p 13, lines 10-25)). The Court had not even been provided with an address at which either child would be living were the order required to be implemented. The failure to have regard to the boys’ views on the mother’s proposal for their housing and living, should they return to Australia pursuant to the order the mother was seeking the Court make, was a failure to fulfil the mandatory requirement of s 60CC(3)(a).

4. The Court must acknowledge that there may be cases where the Court has to act with such urgency, having regard to the circumstances of a child that it is unable to obtain the views of a child before making an interim parenting order, however, in my view, this was not such a case.

5. The proposal of the mother for the boys to live with the benevolent volunteers, should they elect not to live with her upon their return to Australia, was not the subject of any substantive evidence of even the most basic nature, which would allow the Court to consider whether it was in the best interests of either boy to make the return order sought. Further, on the subject of the arrangements for the boys when they return to Australia,  the primary judge himself stated during submissions on 2 March 2016, in response to a submission from the mother (that “Well, because your Honour is faced with evidence that suggests that perhaps the children may not want to live with her.”),  “Yes. Well that’s fairly clear that that’s a possibility – a probability.” (Transcript of proceedings, 2 March 2016, p 13, lines 43-44).

6. The transcript of the submission made by the mother on 2 March 2016 shows that the primary judge was being urged to make a finding that “there’s sufficient evidence before the court to suggest that the father in no way intends to return to Australia under any circumstances”. (Transcript of proceedings, 2 March 2016, p 14, lines 42-44).

7. In submissions from the mother the primary judge clarified with the mother’s counsel a submission made about the weight to be applied to the boys’ stated wishes. His honour asked “Well, you’re saying because of the nature of the way the evidence has been presented and the circumstances surrounding how it has all happened I should place little weight on what I’ve got from them so far.”

8. The submission of the father included the following:

   What your honour has is a complete vacuum in the evidence as to how these boys will cope with or deal with a situation whereby they’re compelled….against their wishes to return…to live with their mother.

   (Transcript of proceedings, 2 March 2016, p 25, lines 23-26)

9. The proposition that the mother may permit the boys to live with the benevolent volunteers was met with the following submission by the father:

   we then have an alternative set of arrangements put up by a set  of emails that the children would then live in some differing arrangement with people  who your Honour has no capacity to assess whether or not they’re appropriate carers for the children. …So that would have the children all living in different houses…But your Honour knows nothing about these people.

   (Transcript of proceedings, 2 March 2016, p 27, lines 26-35)

10. The primary judge asked counsel for the father what his proposal for the care of the children was if the Court ordered the return of the boys. The father’s counsel replied “I don’t know what my client’s proposal is”. (Transcript of proceedings, 2 March 2016, p 27, line 7 and again line 14 where counsel for the father says “I don’t have any instructions on that point”.)

11. Counsel for the father submitted that the Court should obtain a “views report” from the boys before making any further order. The father’s counsel emphasised the uncertainty about how the boys would react to a return order and where they would live upon their return, if that were to occur. The Court was urged to look through the behaviour of the father, which the Court would probably consider very poor, to the circumstances of the boys and the impact upon them of a return order being made at a time when there was a “vacuum of evidence” about the circumstances in which they might live.

12. During submissions by the father’s counsel the learned primary judge was urged to take the following approach:

    (The primary judge should say) “I don’t have enough information as to whether or not I should make an order for return. I will make an order restraining them from being removed (from New York State), so I know where they are, and in the meantime I will order a report and bring it back before me as to whether I ought make that return order.”

    (Transcript of proceedings, 2 March 2016, p 30, lines 5-9)

13. Counsel for the father submitted that a “skilled counsellor”, of the type who may prepare a views report in relation to the boys would be able to advise as to the extent the boys’ views may be being distorted by the actions and words of the father. Counsel also urged the Court to consider the actual risk to the children, should they be returned to Australia without the father and then decide they will not comply with any of the mother’s provisions for shelter.

14. The Independent Children’s Lawyer in submission informed the Court that the Independent Children’s Lawyer was concerned about the behaviour of the father in failing to return the children to Australia. Concerned about the practicality of where the boys will live once they return to Australia. The Independent Children’s Lawyer told the primary judge, in response to his request about what orders the Independent Children’s Lawyer was submitting should be made, she was unable to provide any submission as to the order the Court should make.

15. The Independent Children’s Lawyer informed the Court that she had made enquiries with two bodies in the United States about the preparation of a “wishes report” to be prepared for each of the two boys. The Independent Children's Lawyer told the Court that she would progress that enquiry should the Court require it. Further, she informed that a telephone interview could be conducted from Australia to obtain some views of the boys.

16. In relation to the proposal put forward by the mother that the boys could live with the benevolent volunteers, the Independent Children’s Lawyer said she could not accept a situation where the two boys would be split between different accommodation. She said there were concerns about any proposal for the father to provide accommodation for the boys in Australia as there was no information about the person who would supervise or care for them in that circumstance. The Independent Children’s Lawyer submitted it was difficult for the Court to make a decision without more evidence (and certainty) about how the boys will be accommodated should they be returned to Australia pursuant to an order the Court will now make.

17. In reply the mother’s counsel pointed out to the primary judge that the father had at no place in the evidence before the Court said that he would not return to Australia. He had not said that he would not accompany the children to Australia for a return flight should the Court so order. The mother’s counsel submitted that it was likely to be far more productive to have a “wishes report” prepared in Australia than in the United States.

18. What the Court was being asked to do by the mother was to make a note that the mother did not oppose the two boys residing with either the paternal grandmother or either of the two benevolent volunteers. As can be seen, that part of Order 9, made by the learned primary judge on 8 March 2016, which refers to the benevolent volunteers, is as follows:

    9.… [i]n the event that [either boy] choose to do so, they may live either:

    …

    9.2.       [The younger boy] may live with [Ms U] and/or [the elder boy] may live with [Ms W].

19. The order is unusual in its form for two reasons. Firstly it uses the words “live with”, a term having legal significance under the Act (ss 64B and 65M); secondly it uses the word “may”. This was not an order requiring either child to live with those persons, rather it was an order permitting the children to live with those persons. Order 8 made on that day required that, “subject to order 9, [R], [S] and [T]”… “live with the mother”. For the Court to make those orders such must be made on a foundation of satisfaction that the orders were in the children’s best interests.

20. The conclusion above stated must recognise, however, that the orders were made on an interim basis. It must recognise that sometimes a Court has to make parenting orders which are less than optimal for the benefit of children.  However, where such circumstance arises, whether in an interim or final determination of a parenting case, the orders made recognise a circumstance where all available options have been properly canvassed, are found to be less than optimal, possibly even unsatisfactory in varying ways, yet are the orders which pose the least possible harm and/or the best of a bad set of choices (see Hall and Hall; In the Marriage of Brown).

1. In the subject case there was a clear recognition by the mother and the Independent Children’s Lawyer of the significant prospect that at least one, and possibly both, boys would choose not to reside with the mother should they be returned to Australia without the father accompanying them.

2. There was in this case a clear imperative to tailor a set of orders which would allow the boys to willingly participate in a voluntary return to Australia, to enable the Court to then determine if they should be permitted to move permanently to the United States to live with their father, if that was their considered ambition. That imperative was not likely to be enabled by the boys being denied any opportunity to provide their views about the circumstances in which they might live, upon their return.

3. In my view there was nothing so urgent about the case which required the Court to make the order sought by the mother on the paucity of then available evidence.

4. The primary judge was entitled to form a very adverse view of the father’s actions in failing to return the children to Australia following the holiday in the United States. He was entitled to conclude that the father was flouting the Court’s order and even acting in a manner to challenge the Court’s authority, however, whatever the father’s actions, there could not be a transfer to the children of blame for the circumstance in which they found themselves. The children were not parties to the subject Court Order nor was there any evidence to establish that the children knew what the Court Orders provided. In such circumstances the primary judge’s conclusion, as stated in paragraph 61 under the heading “Another consideration”, that “The father has given the boys the option to agree to a breach a court order.” appears to be speculative at the very least.

5. I find that grounds 1, 3, 4 and 13 of the grounds of appeal are made out. I conclude therefore that the appeal should be allowed and Orders 1, 8 and 9 made by the primary judge on 8 March 2016 set aside and the matter remitted for re-hearing at the earliest available time.

I certify that the preceding two hundred and thirty three (233) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Le Poer Trench JJ) delivered on 8 April 2016.

Associate:

Date:  8 April 2016