BOWDEN & BOWDEN

FAMILY COURT OF AUSTRALIA

BOWDEN & BOWDEN

[2019] FamCA 24

FAMILY LAW – INTERNATIONAL RELOCATION – Where the mother seeks to relocate to the UK with the four children– Where the father does not consent to the relocation – Where the parties migrated from the UK – Where the parties have lived in Australia for the past ten years – where the eldest child is about to turn eighteen – Where the eldest child is in his final year of high school – where the children live with the mother and spend time with the father – where the parents are unable to effectively communicate – Where it is not in the best interests of the children to move away from the father – Where it is not in the best interests of the children to have substantial changes in their schooling – Orders to dismiss Application for International Relocation.

FAMILY LAW – CHILDREN – Parenting – Where the mother seeks sole parental responsibility – Where the father seeks equal shared parental responsibility – Where the parents have been unable to communicate since separation – Where the parents have prioritised their disputes over the best interests of the children – Where there is no dispute in many major long term issues – Where the parents are capable of equal shared parental responsibility – Order for equal shared parental responsibility – Where it is not in the best interests of the children for equal time arrangement – Where the children are settled in current parenting arrangement – Where the children do not seek change in their current living arrangements.

Family Law Act 1975 (Cth) s 60CC

APPLICANT:

Ms Bowden

RESPONDENT:

Mr Bowden

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

3043

2016

DATE DELIVERED:

25 January 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

10, 11, 14 January 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kelly

SOLICITOR FOR THE APPLICANT:

Derham Houston Lawyers

THE RESPONDENT:

In Person

COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER

Ms Lioumis

SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYERS

Legal Aid NSW

Orders

IT IS ORDERED

That the mother’s application to relocate with the children X born … 2001, Y born … 2003, Z born …2005 and W born … 2008 (“the children”) to the UK is dismissed.
That the mother’s application for sole parental responsibility for the children is dismissed.
That the father’s application seeking orders that the children live with each parent on a week about basis is dismissed.
That the parents have equal shared parental responsibility for the children.
That the children live with the mother when they are not living with the father pursuant to these orders.
That the children live with the Father as follows:
(a) During school terms commencing the first weekend of every school term:
(i)In week 1 from the conclusion of school Friday to the commencement of school on the following Monday and in the event there is a public holiday on the Monday the Father’s time shall conclude at the commencement of school on the Tuesday;
(ii)In week 2 from the conclusion of school Wednesday to the commencement of school Thursday;
(b) During school holiday periods:
(i)For one half of each school holiday period occurring at the conclusion of Terms 1, 2 and 3 such halves to be agreed between the parties and in the absence of an agreement for the second half of each of the holiday periods;
(ii)For one half of each school holiday period at the conclusion of Term 4 such halves to be agreed between the parties and in the absence of an agreement for the second half of each school holiday period occurring in an even numbered year and for the first half of each school holiday period occurring in an odd numbered year.
(c)Fathers’ Day from the conclusion of school on the Friday preceding Fathers’ Day to the commencement of school on the Monday following Fathers’ Day.
(d)From 2pm Christmas Day until 5pm Boxing Day in each even numbered year and from 5pm Christmas Eve until 2pm Christmas Day in each odd numbered year;
(e)In the event the Easter holiday period does not fall within a School holiday period then from the conclusion of school on Thursday until 4pm on Easter Saturday;
(f)On each of the children’s birthdays by agreement between the parties and in the absence of agreement from 3pm (or the conclusion of school) to 8.00pm;
(g)On the Father’s birthday by agreement between the parties and in the absence of agreement from 3pm (or the conclusion of school) to 8.00pm;
That the Father’s time be suspended:
(a)On Mothers’ Day from the conclusion of school on the Friday preceding Mothers’ Day to the commencement of school on the Monday following Mothers’ Day;
(b)From 5pm Christmas Eve until 2pm Christmas Day in each even numbered year and from 2pm Christmas Day until 5pm on Boxing Day in each odd numbered year;
(c)On the Mother’s birthday by agreement between the parties and in the absence of agreement from 3pm (or the conclusion of school) to 8.00pm;
That the children be permitted to travel to the United Kingdom together with the Mother for the following periods:
(a)A period of up to 4 weeks in each calendar year, provided that prior to any period of travel the Mother shall:
(i)Provide the Father with not less than 42 days’ notice of her intention to travel;
(ii)Provide a copy of the children’s itineraries;
(iii)Provide copies of airline tickets confirming return airfares; and
(iv)Provide contact details to enable the Father to contact the children while the children are away.
Such four (4) week period does not have to be taken in a single block of time and can be extended by consent.
That in addition to Order 8, the Mother and the children are permitted to travel to the United Kingdom for:
(a) up to six weeks in the event of a family medical emergency, and
(b) such period can be extended by consent between the parties.
That for the purposes of Order 9(a), a family medical emergency shall be defined as:
(a)An acute deterioration in the health of either the Mother’s step-father or mother; or
(b)The death of the Mother’s step-father or mother.
That the Mother will not be required to provide medical evidence to the Father prior to travel but the Mother will use her best endeavours to obtain such evidence following her arrival.
That the children be permitted to travel to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction together with either party during the school holiday time that they spend with either party as nominated in these orders provided that the party wishing to travel:
(a)Provides the other party with not less than 42 days’ notice of their intention to travel;
(b)Provides a copy of the children’s itineraries;
(c)Provides copies of airline tickets confirming return airfares; and
(d)Provides contact details to enable the other party to contact the children while the children are away.
That the parties will advise and keep the other advised of current residential address, mobile telephone number and email.
That each of the parents do all acts and sign all documents required to ensure that each child’s passport is renewed such that each child has, at all times, a passport current for more than six months.
That for the purpose of the children travelling with the father pursuant to these orders
(a)The mother shall provide the passports to the father one week before the scheduled travel and
(b)The father shall return the passports to the mother within 48 hours of his and the children’s return to Australia.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC3043/2016

Ms Bowden

Applicant

And

Mr Bowden

Respondent

REASONS FOR JUDGMENT

Ms Bowden (“the mother”) and Mr Bowden (“the father”) are the parents of four children, X born in 2001; Y born in2003; Z born in 2005 and W born in 2008.
Both parents, and the three older children were born in the United Kingdom. The family migrated to Australia in 2008 and became Australian citizens in 2012. W was born in Australia.
The parents separated under the one roof in February 2016 and physically separated on 4 April 2016 after an incident which will be considered in more detail later in these reasons.
Thereafter the children lived with the mother. There were difficulties in arranging for the children to spend time with the father until interim orders were made on 26 May 2016 which provided for equal shared parental responsibility and for the children to spend time with the father on alternate weekends, from after school on Friday until Monday morning, and every second Wednesday night. Those orders were extended on 24 August 2016 to include time with the father for half of school holiday periods.
The proceedings now before the Court relate to competing parenting applications. The mother’s application to relocate with the four children to the UK is opposed by the father. The father’s application for an equal care arrangement is opposed by the mother.
The family has had the benefit of a Child Responsive Program (“CRP”) interview and memorandum in November 2016 and a Family Report completed in September 2018.
In addition, an Independent Children’s Lawyer (“ICL”) was appointed for the children.

THE CHILD RESPONSIVE MEMORANDUM

In November 2016, when the Family Consultant interviewed the children, X told the Family Consultant that he wanted to continue at his present school until he had finished his Higher School Certificate (“HSC”). (X will finish his HSC in November 2019). She noted in relation to X, who was then almost 15 years old:
[X] perceives that, since his parents have separated, there has been a diminution in the anger which previously existed between himself, [Y], [Z] and their mother. He said that [Y] still gets angry and expressed concern that [Y] is physically aggressive to him and his other siblings. X said that much of [Y’s] anger seems to be related to his undertaking and completing of homework tasks.
While [X] believes that returning to live in the UK “would be good”, he is adamant that he would not want to make such a move until he has completed his secondary education in Australia citing the differences in the two educational systems. [X] said that he “would not be too fussed” if he, [Ms Bowden] and his siblings were not permitted to return to the UK.
[X] said that he experiences a close relationship with each of his parents and feels able to discuss issues with each of them “openly”. He recalled experiencing significant tensions between his parents in the two years prior to their separation. [X] said that his parents do not have a good relationship and that, on occasions, he is required to relay messages between them. [X] said that he would prefer not to have to do this.
In relation to Y, the Family Consultant noted that he:
...presented as anxious throughout his interview. He struggled to contain his emotions on occasions. [Y] is in Year 7 at [B Town] High School. He said that he found it “hard” to move from primary to high school and also experiences a similar emotion in relation to meeting new people. He, however, feels that he is now settled in school and has a group of friends...
When asked about returning to live in [the UK], [Y] said that “I want to, but I would have to adjust to making new friends”. [Y] said that, if he were to return to live in [the UK], he would miss his friends here, his school and his father. [Y] said that he has always felt closer to his mother than to his father as “he was at work or busy with renovations”. [Y], however, said that he now feels he has more opportunity to spend time with his father and believes that his relationship with him is growing closer. He reiterated that, if he returned to live in [the UK], he would miss his father.
Y told the Family Consultant that he missed his maternal extended family who still live in the UK.
Z, then 11 years old:
...described [Y] as the person in the family who is most angry, as well as each of his parents “sometimes”. [Z] described [Y] as having difficulty dealing with things which “don’t go as he wants them” to. He said that, when this occurs, [Y] will shout, punch and hit, with his physical aggression mainly being directed towards [X] and [W]. [Z] perceives that his father is the parent better able to calm [Y]. The only person in the family drawing identified as being “sad” was [the mother]. [Z] said that he is not sure why his mother is sad but wondered if “there is too much going on” in her life. [Z] said that his closest relationship is with [Y], adding that he and [Y] have always been close and have always shared a room. He said his next closest relationship is with [the mother], then [the father] followed by [W] and [X]. [Z] explained that he does not feel as close to [X] as his other siblings as “he is doing his own thing”. [Z] was not sure who he would talk to if he was worried or sad.
[Z] said that he wants to return to live in [the UK] but that he also wants to be able to stay with his father and remain with his friendship group in [B Town]. He said that he is happy with his current parenting arrangement as he is able to spend time with each parent every week.
W described Y hitting the mother and Y being angrier than he was before the parents separated. W told the Family Consultant that Y’s behaviour made her mother sad and that her father was more able to “[make] the boys stop fighting”. The Family Consultant stated:
Irrespective of whether or not they relocate to [the UK], [W’s] wish is to be able to spend more time with her mother than with her father but to also spend time with her father without her brothers. [W] said that “It would be good to go to [the UK], as I could see my cousins more”.
W said that her parents are not friends but that she would like them to be friends. She said she would know they were friends “if they are nice to each other”.
The parents told the Family Consultant about an incident that occurred on 4 April 2016, the day they finally separated. Other than that incident, the mother did not make any complaint in relation to family violence to the Family Consultant. The Family Consultant noted “[The mother] said that [the father] has never been physically aggressive towards her. [The father] alleges that, on occasions, [the mother] has slapped him. [The mother] denies this.”
There was no complaint made by the mother to the Family Consultant in relation to the father’s being financially controlling or of any other family violence.
Rather, it was the father who told the Family Consultant that the mother was emotionally volatile and erratic and that she constantly shouted at the children. The father said that he had experienced the mother trying to control him and isolate him from the children. The father told the Family Consultant that the mother was verbally and physically aggressive towards Y. The Family Consultant reported:
[The mother] denies that she “constantly” shouts at the children but admits that she has significant difficulties in managing [Y’s] behaviour and defiance. [The mother] said that, since the parental separation, Y has been more defiant and is now also physically aggressive towards her, including punching her. She further alleges that [Y] is also physically aggressive towards his siblings. [The father] is adamant that [Y] does not display aggressive behaviour when in his care. Each parent expressed concern about [Y’s] behaviour and each support there being a therapeutic intervention for the family.
The Family Consultant stated that each of the children seemed to have an appropriate and close relationship with each parent and that each child expressed a wish for there to be no significant disruption to their relationship with the father.
The Family Consultant recommended that the parents investigate family therapy to deal with Y’s behavioural issues and suggested that Y might benefit from one on one time with the father.
The Family Consultant concluded:
It is not unusual following a parental separation that one or other parent seeks to relocate to be closer to their own parents (the children’s grandparents). Such a plan may fail to take into account the children’s emotional needs to be able to continue to have, and develop, their relationships with each of their parents.

THE FAMILY REPORT

The mother told the Family Consultant that she wished to relocate with the children to the UK “as soon as possible” although the Family Consultant noted that the mother said she would stay in Australia until X finished his HSC.
In relation to issues of family violence the Family Consultant stated:
The AVO between the parents has expired. The parents agree that the night of their separation was the only occasion when the police had been involved in disputes between them. [The mother] said that, particularly after they moved to Australia, she experienced [the father] as controlling of her including controlling of her access to their finances. [The father] denies that he has ever been controlling of [the mother] but commented that he experienced her as controlling of him, particularly during the period they lived separated under the same roof. [The father] also alleges that [the mother] tried to isolate him from the children (during the period they were separated under the same roof) as well as his family and friends.
The Family Consultant identified as issues the lack of consultation between the parents about the schools that the children might attend if they relocated to the UK and the possibility that the mother had not considered the implications for X of her relocation proposals.
She stated:
When provided with feedback from the children’s interviews, [the mother] reiterated that [X] wished to complete his HSC in Australia and suggested that either [X] would live with his father or that she might delay moving to the UK until [X] had completed his HSC.
In relation to her interview with X, the Family Consultant reported:
[X] said that he would prefer that he not be included in the Family Report interviews as his focus is not on his parenting arrangements, but on getting ready to complete his HSC. He commented that he is settled in the current parenting arrangements and that he enjoys positive relationships with each of his parents.
[X] seemed surprised and somewhat unsure about his own reactions when asked what he would do if his mother and siblings were permitted to relocate to the UK, prior to him completing his HSC. He was reluctant to pursue any discussion of this.
[X] reports that he believes his parents now communicate better than in the past and that [Y’s] behaviour has improved. From [X’s] perspective, his mother sets boundaries with consequences for [Y] and his father “tries to let [Y]” reason things out for himself.

X commented that Y seemed more settled. In relation to Y’s views, the Family Consultant reported:
[Y], who had made some contradictory statements about moving to [the UK] during his interview for the [CRP], said that he now “wants to move to [the UK]”. He spoke about missing his maternal grandparents and having positive memories of his time in [the UK]. [Y] was uncertain if these memories related to the time he had lived permanently in [the UK] or were a combination of that time and memories from what he indicated were frequent holidays spent in the UK since moving to Australia. [Y] said that he does not like living in Australia citing the summer temperatures. [Y] spoke about having a close relationship with a cousin, [C], who lives in [the UK] and is [Y’s] age. During his interview for the [CRP], [Y] said that, if he were to move to live in [the UK], he would miss his father. During his interview for this Family Report, [Y] said that he is “not sure” what he would feel about not being able to spend time with his father on a regular basis, if he were to move to [the UK]. He described having a close relationship with each of his parents, but said he finds it easier to talk to his mother than to his father.
Y told the Family Consultant that he would be disappointed if he were unable to relocate.
In relation to Z’s views the Family Consultant reported:
[Z] said that he has a close relationship with each of his parents. He spoke about experiencing his father’s home as being more “relaxed” than his mother’s home. This comment seemed to relate to the different parenting styles in each household: structured in his mother’s home and more self-determination about things (eg bed times) in his father’s home.
[Z] said that he had changed his mind about wanting to return to live in the UK. He recalled that he had said that he wanted to return to [the UK] during his interview for the [CRP]. (While he had said that he “wanted” to return to [the UK] during that interview, he had also expressed concern about adjusting to a new school, making new friends, and not seeing his father on a regular basis). He said that, now, his wish is to remain living on [in Region D] and continue to attend his current school. He said that, since the [CRP], he has made “more friends”. He also confidently stated that, if he were to relocate to [the UK], “I would not be able to see Dad much”. [Z] became distressed and tearful during this part of his interview and said that he would miss both his father and his friends if he were to move to [the UK].
W described her closest relationship as being with her mother and then with her father. W said that if she moved to the UK, she would miss her father “a lot”.
In relation to the children’s relationships with their parents and each other the Family Consultant stated:
The children are assessed as having positive sibling bonds, particularly between [X], [Y] and [Z], who, from their comments, have a protective approach to their relationship with [W]. It is apparent that [W], on occasions, might feel as if she is left out, with her having a different set of interests to those of her brothers.
Comments made by each of the children, indicate that they all have close emotional connections to each of their parents and that the family dynamics in [the mother’s] home have improved markedly since the time of the [CRP], both between [the mother] and [Y], and [Y] and his siblings.
She stated:
The children were relaxed and interacted with their parents and each other in an affectionate manner. During the observation of the children and their father, [W] maintained close physical proximity to her father and cuddled into him on several occasions.
In relation to the mother’s proposed relocation, the Family Consultant stated:
[The mother’s] wish to return to her family to “heal”, following the parental separation is something which many parents wish, and some seek, following a separation. However, the parent wishing to have the support of their parents and immediate family often fails to understand that the emotional support they are seeking comes with their children’s loss of the emotional support of, and time with, their other parent. [The mother’s] other reason for seeking to relocate, that is to assist with the care of her own mother, while understandable, fails to take account of the children’s needs. At a time when [the mother] is focused on the needs of the maternal grandmother, it seems that she might have overlooked the emotional needs of the children both as a sibling group (which when there are appropriate bonds can be a lifetime source of emotional support) and in terms of their positive relationships with, and emotional connection to, their father. Despite [the mother] having said that she understands that the children would miss their father if they were to relocate, it seems that, perhaps she has not given this feeling the weigh [sic] or priority it deserves.
The Family Consultant set out her consideration of the competing proposals in the following way:
A reduction in the time that any of the children are able to spend with their father could create future tensions and, perhaps, some diminution in their current bonds with him. This is not in the interests of any of the children. A move to [the UK], if it were to occur prior to [X] completing his HSC would disrupt the sibling bonds. If such a move did not occur until after [X] has completed his HSC, the writer is unable to comment on whether or not [X] would accompany his mother and siblings or continue to live in Australia. While technology (Skype etc) can ease the lack of physical contact between children and parents, it cannot replace the spontaneous interactions between children and parents that occurs with physical contact. Nor can technology replace physical contact as the vehicle for bonds to strengthen. Even if the parents are able to afford for the children to travel to Australia once each year, it is not considered that, at this stage of their development, particularly for [Z] and [W], this would be sufficient physical contact for them to continue to build on their existing bond with their father. Whether or not [the father] would be able to travel to [the UK], on occasions, is not known. He is employed full-time and likely only has access to four weeks leave per year. If the children were to live in [the UK] and spend the northern hemisphere summer holidays in Australia, [the father], given his lack of family support, would be likely to need to use his holidays for this period, and thus it seems unlikely that he would be in a position to travel to [the UK] on other occasions.
If the children are not permitted to relocate to [the UK], [the mother], given her presentations during the CPIA and the interviews for this Family Report, is likely to be significantly impacted. In turn, this might affect her parenting capacity. However, [the mother] has demonstrated that she has the insight and maturity to give some prior to the children’s needs by seeking professional assistance for the dynamics between her and the children in her home. She has also demonstrated that she is able to reach out for individual support – having attended counselling since the end of her relationship with [the father]. It seems likely that [the mother] would again seek professional assistance to help her, should the Court determine that the children ought not to relocate.
Both parents had the opportunity to read and consider both the November 2016 memorandum and the September 2018 Family Report before their final, amended applications were filed.

THE TRIAL

The mother relied on affidavits by herself, her step-father Mr E and her treating psychologist, Mr F. (In these reasons, where reference is made to “the maternal grandparents” that is a reference to the maternal grandmother and Mr E.).
The father, who represented himself, relied on an affidavit sworn by him and an affidavit of Mr G who is the wife’s cousin.
The Family Consultant was cross-examined.
The mother sought an order that she have sole parental responsibility for the children and that they live with her in the UK. In relation to the children’s time with the father, she proposed that, in even numbered years, they would spend time with him for four consecutive weeks during the UK summer school holiday period in July/August. In odd numbered years the children would travel to Australia for two weeks in their summer holidays and the father would spend a further two weeks with them in the UK during one of their other school holiday periods.
The mother proposed that the father would be responsible for all of the costs of the children spending time with him, whether in Australia or in the UK and that he could meet those costs by using the money he currently pays by way of child support, about $19,000 per annum. She proposed that the children travel unaccompanied on international flights. The mother envisages that the family would leave Australia when X finishes his Higher School Certificate examinations in about November 2019.
The father opposed the relocation application. He sought orders that the children remain in Australia and live with each parent on a week about basis.
At the commencement of submissions the ICL tendered a Minute of Orders proposing that the children remain in Australia and that their current parenting arrangements remain largely unchanged.
There was no significant disagreement with the ICL’s proposals if the children were to remain in Australia but those minor issues will be dealt with in the course of the discussion that follows.

CONSIDERATION

The primary considerations in section 60CC of the Family Law Act 1975 (Cth) (“the Act”), which govern this determination are the benefit to the children of having a meaningful relationship with both of the children’s parents; and the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The issue of family violence has been raised in the mother’s case, particularly by her psychologist and those allegations will be discussed in detail later in these reasons. However, it is not asserted by the mother that the children are at any risk in the household of their father or that they need to be protected from him.
I propose to consider each relevant factor in s 60CC(3) of the Act.

(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

The children’s views are set out in the Family Report.
Of the four children, only Y has expressed a positive wish to live in the UK. Y’s view was somewhat equivocal in that he said he would miss his father and was “not sure” how he would feel about not seeing his father regularly.
X declined to express any view about the proposed relocation.
Z, who had been equivocal about the proposed move in November 2016, now said that he had “changed his mind” and wanted to remain at his current school.
W said nothing positive about the proposed relocation except that “it would be good to go to the UK, as I could see my cousins more” but that she would miss her father “a lot”.
None of the children expressed a wish to change the present arrangements if they remained in Australia.

(b) the nature of the relationship of the children with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the children);

Each of the children has a close and loving relationship with both parents.
Y told the Family Consultant that he finds it easier to talk to his mother than his father but, in the past, Y has been violent towards his mother as well as his younger siblings. Both parents said in cross-examination and to the Family Consultant that Y’s behaviour has improved since he completed a course of therapy in 2017. Y himself told the Family Consultant that his relationship with his mother had improved.
Z told the Family Consultant that he felt more relaxed in his father’s home than his mother’s.
W told the Family Consultant that her closest relationship was with her mother and then with her father.
The Family Consultant assessed the sibling bond as positive and the older boys as protective of W.
The three younger children spoke lovingly of their maternal grandparents.
The children do not have a relationship with their paternal grandmother whom they have not seen since the family moved to Australia. W has not met her paternal grandmother.

(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the children; and
(ii) to spend time with the children; and
(iii) to communicate with the child;

Significant criticisms have been made of the father for his lack of participation in making decisions about the children.
In cross-examination, the father said that he had removed himself from decision making because he perceived that the mother would do whatever she wanted, regardless of his input. There is some validity in his perception.
The mother, in her affidavit, set out a number of instances where she said the father had refused to engage in decision making. However, there are also instances of the mother making arrangements for the children either without consulting the father or directly contrary to his wishes.
In June 2016 there was an exchange of texts about dental treatment for X. The mother deposed that on 21 June 2016 she sent the father a text message asking him to call her. Later the same day, at 6.35 pm, she sent a message saying “...I’ve tried calling you endless times and sent you texts please phone I need to talk to you urgently re [X’s] teeth.” On 22 June 2016 she sent another text saying “...can you let me know as you are not getting in touch despite me having to speak to you re [X’s] teeth. I have been contacting you for 3 days about this...” Setting aside the fact that, on the mother’s own evidence, this was an exaggeration, there was no evidence that there was any immediate urgency in relation to X’s teeth.
On 23 June 2016 the mother again texted the father saying that the estimated costs of the work was $6,000 and the treatment would take about two years. She sent a further text on 29 June 2016.
The father responded on 30 June 2016 saying, inter alia, that the mother was well aware of his financial situation and that he could not afford to pay for the dental work. He suggested that once their house was sold, the dental work could be afforded. In cross-examination on this issue, the father said that the mortgage payments were in arrears and he was concerned about foreclosure.
The mother borrowed money from the maternal grandmother and the dental work was started on 25 August 2016 without the father being informed by the mother. The mother had no entitlement to authorise such treatment.
There was a further exchange of texts in October 2016 about X’s dental treatment where the mother asked if the father was “still refusing to pay” and the father referred to “the thing you proceeded with, even with me specifically denying permission?” The mother responded “you seem to be saying that you are denying permission for a procedure that you knew was happening. If you think there should be further work done you should apply to the Court.”
In April 2017, the mother sent a text to the father saying that Y needed orthodontic work at a cost of some $5,500. The father did not respond. The mother went ahead with the treatment. Again, this was not a treatment that she was entitled to authorise.
The child support assessment was increased to take into account the costs of the dental work for X and Y.
In 2017 there was an issue about warts on W’s hands and knees. The mother consulted a general practitioner. There is no evidence that she told the father about the consultation or the doctor’s advice at that time.
The father treated the warts on W’s knee by using an ointment to “burn” them off. The mother texted the father asking him not to treat the warts. The father continued to treat the warts. The father in cross-examination said that W’s was embarrassed by the warts, at one stage she had 13 warts on one hand, and that he felt that removing the warts would alleviate her embarrassment.
Each parent is critical of the other in relation to those decisions. The mother deposed that W still has warts.
The significance of this event is the unwillingness of both parents to accept the opinion of the other as having validity and being worthy of consideration.
In September 2017 there was an exchange of text messages about W being taken to different general practitioners by each parent. The issue under consideration was the father’s concern that W was overweight. The mother suggested that they both use the same general practitioner and asked the father to nominate one. The father nominated a practice in H Town. The mother immediately disagreed with the father’s nomination. He suggested that she choose and she nominated a practice at J Town.
The mother sent a text message to the father saying that she had enrolled W in Little Athletics each Friday between 5.45pm and 8.30pm. Since W is with the father on alternate Fridays, it might have been expected that the father would be consulted about the enrolment. He was not. When the father sent a text saying “I don’t remember seeing a conversation going something like ‘hey, are you free to take [W] to little athletics on Fridays”, the mother’s response was “it seems you don’t want to assist with [W] and athletics”. The father replied, reasonably, explaining that his issue was that he had not been consulted about an activity during the time W spent with him.
In relation to that particular incident the mother deposed,
I do not understand why everything I try and do for the children is turned by [the father] into a negative by me. I just do not understand why [the father] has to make everything so difficult.
Nothing in the mother’s evidence suggested that she had an appreciation that the father needed to be consulted before she made arrangements for the children that directly affected him.
There was an exchange of texts between the parents commencing in November 2016 about Y’s behaviour. On 3 November 2016 the mother sent a text to the father telling him that Y had hit and bruised her. She said Y wanted to live with his father. The father responded saying “How about he spends tonight with me and we can come up with a plan for ongoing”. The father suggested he collect Y. The mother disagreed and said that Y needed professional help. The father agreed and referred to an earlier suggestion of family therapy. The father suggested that he collect Y (3 November was a Thursday) as Y was to come to him the next day for the weekend. The mother did not agree saying “We can talk about the past and get nowhere. I’m worried about Y here and now and wish you could see that. I want you to work with me and help Y [sic] and if you can’t then I’ll have to sort it out myself”. The father replied “No you can’t do it by yourself… We have joint parental rights...”
Y remained with the mother. The father’s interpretation of this event was that the mother only wanted his help if he agreed with her proposal.
The family attended the interviews for the Child Responsive Program on 14 November 2016 and received the memorandum dated 30 November 2016. The Family Consultant recommended family therapy and that the parents consider Y having one on one time with his father.
On 15 November 2016, the mother sent a message to the father about the Reconnecting Adolescents and Parents program (“RAPT”). She said that she would be receiving further information about RAPT and would “update you when I hear back”.
The mother then, without further reference to the father, arranged a referral to RAPT and in early December emailed the father saying “RAPT referral has been done for family counselling which will begin early next year. It will involve me and all the children in our home...” The father responded saying “‘…me and all the children’ – not me?” and the mother replied “Not you...”

The mother detailed the enquiries she had made and her belief that RAPT was appropriate and the father replied “You are missing the key point. It’s not happening without me...” The father stated that the mother did not have his permission to include the children in the program saying “the advice from the court was also very clear and consistent with my opinion”.
The father was of the view that “family therapy” should include the whole family, not just the mother and the children. His position was reasonable.
Notwithstanding the father’s clearly expressed position, the mother made arrangements for herself and the children to engage in RAPT. This was not a decision that she was entitled to make and the involvement of all of the children in therapy was not something she was entitled to do without the consent of the father.
The mother, in re-examination, said that the father was not invited to participate.
The father deposed that he had asked for additional time with the children but the mother had never agreed. In cross-examination of the father the mother’s unwillingness to agree to any variation of the arrangements was put to the father as a fact.
I was not referred to evidence in any instance where the mother had changed her plans or made an accommodation to take into account the father’s views or wishes.
The father complained that the mother would not allow him to spend time with the children after the physical separation such that he saw them six times over the first six months. At the time of physical separation, the father took two of the children’s passports and the mother retained the other two. The mother would not agree to the father’s having alternate weekend time with the children unless he returned the passports to her. I do not accept the submission made on behalf of the mother that she was justified in refusing to allow the children to spend time with the father because she was concerned that he might remove the children from Australia. Firstly, he only had two of the four passports. Secondly, there is no evidence that the father had ever proposed taking the children to the UK. Rather I accept the father’s evidence that he removed the passports to prevent the mother taking the children to the UK without his permission.
In mid-May 2016 the father agreed to a proposal by the mother that the children spend alternate Sundays overnight and a few hours after school on alternate Wednesdays. His lawyers stated that his agreement was on the basis that he would take whatever time was offered without conceding that the arrangement was reasonable. At the same time, the mother was proposing to take the children to the UK from 2 until 31 July, a proposal to which the father did not consent.
The father asked for make-up time with the children before they left for the UK but the mother offered a few hours only. The mother organised the trip to start at the beginning of the weekend the children would have spent with the father and end on the last day of a weekend they would have been with him with the result that the children did not spend a weekend with their father for seven weeks. There is no evidence that the mother has ever facilitated additional time with the father to compensate him for the children travelling to the UK and missing weekends with him.
In submissions, counsel for the mother opposed any provision being made for make-up time to compensate the children and the father for the four weeks each year that the children would, on the proposal of the ICL, spend with the mother in the UK.

(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

The father has paid child support in accordance with the assessment. He currently pays about $19,000 per annum.
The mother has complained that he refused to pay for extra-curricular activities. The father gave evidence, which was unchallenged, that after paying his fixed commitments including rent and child support, he had about $4,000 per annum disposable income.

(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

In the event that the mother were permitted to relocate with the children to the UK, she proposed that they spend a total of five weeks each year with their father, a four week block in Australia in June/July in even numbered years and two separate two week periods, one in the UK and one in Australia, in odd numbered years. In addition, in each year, she proposed that the children spend a week with the father in the UK in their spring half-term holiday.
In cross-examination by counsel for the ICL, the mother conceded that the children’s school holidays were considerably more extensive than those which she has offered to the father and her explanation was that the children would need to have holiday time with their friends in the UK.
In any event, the father’s evidence was that his holiday entitlement is four weeks each year. Those four weeks must also include any travelling time between the UK and Australia if the father is required to travel.
The mother conceded that, in reality, travel to and from the UK would take two days at the beginning and end of each period and reduce the time the father has available to spend with the children by four days in each holiday period.
The practical difficulties inherent in the mother’s proposals will be discussed later.
Each of the three younger children has expressed apprehension about being separated from their father in the event that they lived in the UK.
The Family Consultant, in cross-examination, said that the mother’s proposal for the children to spend time with their father was insufficient to allow their relationship with him to develop in accordance with their evolving maturity. She was particularly concerned that W’s relationship with her father would not have the opportunity to develop into a relationship as teenager and father and then young adult as father. It would remain “stuck” as a relationship between a ten year old and her father.
Whilst the Family Consultant agreed with counsel for the mother that the children’s relationships with their father would continue to be meaningful, she said that, for the older, adolescent children, moving away would affect the strength of their bond with their father and, as for W, the natural progression of the relationship would be affected.
The Family Consultant expressed concern that the children’s time with the father might fall away as they no longer experience him as a familiar and involved parent.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

Neither parent provided evidence about the likely costs of the mother’s proposals for the children to spend time with their father.
The father gave evidence that the last time the family travelled to the UK together the airfares cost $15,000 and that he anticipated the fares would be about $1,400 for each person. The mother’s estimate of the costs of airfares was the same.
On the mother’s proposal, in even years, the four children would travel to Australia. The airfares, on the basis of the father’s evidence, would be about $5,600. In the spring half term, the father would travel to the UK at a further cost of $1,400 and also pay for accommodation and car hire. There is no evidence of the likely costs of accommodation but I accept that the cost of accommodation, meals and activities for the father and four children for four weeks would be significant.
In odd numbered years, the children would travel to Australia for two weeks and the father would travel to the UK for two further periods, one of two weeks and one of one week. The airfares would be about $8,500 and the father would have to pay for accommodation, meals and activities and car hire for the periods in the UK.
The mother deposed that the father has relatives in the United Kingdom including his mother. She neglected to say that the paternal grandmother lives in the north in Region K and that the travel time from southern UK, where the mother proposes to live, would be another two days each way.
The mother proposes that the costs of contact between the children and the father would be met by the father retaining the child support he now is assessed to pay (some $19,000) and using those funds to pay for travel.
The father expressed grave reservations about whether that amount would be sufficient.
I am unable to find that the mother’s travel proposals could be funded.
Realistically, however, it is impractical for the father to travel to the UK to spend a week with the children and that is not likely to happen.
Equally realistically, neither the children nor the father is likely to enjoy the prospect of flying to and from Australia and the UK for only two weeks. The travel time would have to be included in the father’s time with the children in the UK so a two week period, in reality would be a ten day holiday and a one week period would be a three day holiday.
A further complication arises from the ages of the children. The father does not believe that it is appropriate for Z and W to travel unaccompanied on an international flight with a stop-over involving a change of aircraft. The mother proposes that X would travel with them so that he could care for the younger children. Whether X’s schedule in 2020 would accommodate the travel to and from Australia that the mother proposes for the younger children is not known. Whether X, who will then be an adult, would be willing to accompany the younger children is also unknown. There is no evidence of the additional costs of unaccompanied travel if that were considered appropriate and it may be that the father would have to pay for an adult, perhaps the mother, to accompany the children to Australia and back. If the father has to fly to the UK and collect the children, then fly back with them, a further two adult return airfares will have to be purchased and the two week period with the children is reduced by four days.
The mother in cross-examination said that she would not be in a position to assist with the costs of travel and she agreed with counsel for the ICL that, if the father’s employment were compromised, and he could not pay the costs of travel, there would be no face to face contact.
The mother said that the children could have electronic contact with the father using Skype or FaceTime. The children have just returned from an extended period in the UK. The father said in cross-examination that he had spoken to the children once while they were away. There is no evidence that the mother arranged either telephone calls by the children to the father or Skype or similar calls.
The mother’s proposals for the children’s time with the father, if she were permitted to relocate are impractical.
The mother’s proposals in relation to where and how the family would live and the children’s care and education also require closer examination. The proposals were only exposed in cross-examination by counsel for the ICL.
The mother initially proposed that she and the children would live in the home of the maternal grandparents. This is a home which could be altered to provide five bedrooms.
However, the evidence is that the mother’s brother has separated from his wife and lives in the home of the maternal grandparents. His two children spend about half of each fortnight with their father in the home of the maternal grandparents. Those two children each have their own rooms in the home.
The mother conceded in cross-examination by counsel for the ICL that, at present, there is no room in her mother’s home for her and the children and she will have to rent appropriate accommodation.
The mother gave evidence that she will work for 30 hours per week and that she anticipates that she can earn a minimum of £11 per hour or £330 per week. The mother said that she had looked at suitable accommodation and would need to pay rent of £280 per week leaving her £50 per week to support herself and four children. Whilst the mother’s step-father, Mr E, said that he would be prepared to give financial assistance to the mother, there was no evidence of the financial position of Mr E and his wife and no evidence of the quantum of assistance they could provide or the length of time over which they could assist.
Even if the mother were able to live in the home of the maternal grandparents, how she could support herself and the children, on £330 per week, was not explained.
Whether the mother would be obliged to resort to some form of government assistance and whether the provision of such assistance would be accompanied by a requirement that she pursue the payment of child support from the father appeared not to have been considered.
Viewed overall, the mother’s proposal is not financially viable. The mother is not able to financially support the children without the assistance that the father provides by way of child support.
If the children remain living in Australia, there is no practical difficulty in their moving between the two households. The parents now live in close proximity to one another and the children’s schools. The father pays child support which will be increased by virtue of the fact that the father has changed his employment and now earns more than he previously did.

(f) the capacity of:

(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

In Australia, each of the parents has the capacity to provide for the children’s needs.
In the event that the mother were permitted to live with the children in the UK, concerns arise about her willingness to support the children’s relationship with their father if that becomes problematic.
The mother in both her affidavit and her oral evidence stated her firm intention to support the children in that relationship. However, her actions in the past are a better indicator of her future actions and other aspects of the mother’s evidence do not support her stated intention.
The mother, in cross-examination, said that provided that the children have regular Skype or similar communication with the father, there will be no negative impact on them if they do not have regular face to face time with him although she also conceded that they would miss him terribly. She did not explain how those two positions could sit side by side.
Despite the mother’s stated position that she was conscious of the importance of the children’s relationship with their father and would do everything she could to foster that relationship, the evidence is that she has never, on any occasion, agreed to extend the children’s time with the father beyond that provided by the orders and she has never offered him more time with them.
The mother has never offered to make up the time that the father has lost with the children as a result of her trips to the UK with them. In submissions, counsel for the mother said that, if the family remains in Australia, there should be no make-up time to compensate the father for the time the children spend in the UK on holidays.
Despite the mother’s evidence about the children using Skype and similar visual communication with the father, on their most recent visit to the UK, she did not arrange for them to Skype their father or, as I understand the evidence, to telephone him. The only telephone communication that the children had with the father was when he called them on Christmas Day.
The mother in cross-examination accepted that, if there were a change in the father’s financial position and he could not afford the costs of travel, then the children would not see him. She did not appear to consider that this was a difficulty for her proposal.
Overall, despite the mother’s statements of intention, the mother was dismissive of the importance of the father in the children’s lives.
I accept the evidence of the Family Consultant that there is a real risk that, if the children were to live in the UK, their relationship with their father would gradually diminish.
The Family Consultant stated in her report that the mother, perhaps because of her own need to support, and be supported by, her parents, has overlooked the emotional needs of the children and their connection to their father. I accept that evidence.
A further concern arises when considering the evidence of the mother about her proposals for the future schooling of the three younger children.
When Y saw the Family Consultant in November 2016, he told her that he had found the transition from primary school to high school “hard” and that he experiences similar emotions on meeting new people. In cross-examination, the mother said that Y transitioned “quite well” from primary school to secondary school. That was not Y’s perception.
There is a real risk that Y might find the proposed transition to a new school in an unfamiliar format challenging.
In oral evidence, the Family Consultant said that Y is not mature for his age. It could not be expected that Y has been able to objectively assess the likely difficulties which might present if he moves to the UK.
The Family Consultant also expressed a concern that Y may not make the transition without experiencing difficulties.
In the Family Report she stated:
It could be hypothesised that after, perhaps, “a honeymoon period” [Y] might again experience behavioural and emotional difficulties, [the mother] might struggle to deal with this as she too adjusts to new roles: a new work environment; parenting the children without the assistance of their father; supporting the children as they commence new schools and seek new friendships; moving into a new role with her mother from daughter to “carer”; and adjusting to living with her parents as well as with her brother. The writer would question whether, as it is acknowledged that [the mother] has previously experienced difficulties in managing [Y’s] behaviour, she would have sufficient emotional and/or practical support to manage these competing needs.
The mother’s proposal involves Y in starting at a new school with a new cohort of students. The mother has not researched the differences in the curricula between Australia and the UK and she does not know whether there may be deficits in Y’s present educational level which will have to be remediated. Y is currently in Year 10. Her proposal, which was revealed for the first time in cross-examination by counsel for the ICL, is that Y would attend a secondary college where he would enter year 10 and do two GCSE subjects, Maths and English. The evidence of the mother in relation to this issue was confusing but I infer that, having finished a year of secondary college, Y would obtain the equivalent of a Year 10 qualification in Australia. Thus he would effectively be repeating several months of Year 10. He would then, if he wished, be able to complete senior school and matriculate, by which time he would be 19 years old.
Whether this proposal has ever been discussed with Y, and his attitude to it, is not known.
The mother said that, in the UK in 2019, the school year starts on 4 September and, ideally, Y would start in September or possibly in November when X has finished his HSC. She said that Y might go to the UK in September 2019 to commence the school year and live with the maternal grandparents. She conceded that those proposals had not been canvassed in her affidavit. The father in cross-examination said that the proposal had never been made known to him.

How Y would cope with starting a new school, a new cohort of teachers and students, unfamiliar routines and unknown learning deficits, living with his grandparents who are both in ill health, without the support of either of his parents is not known and gives rise to some concern for Y’s well-being if he were placed in that position.
The mother’s proposals in relation to Y’s schooling are illustrative of the Family Consultants’ expressed concerns about her understanding of the children’s needs.
In relation to Z, the mother proposes that he will attend a local school starting Year 10 in 2020. Z will start Year 9 this year. The mother is aware from her enquiries that the curriculum for Z is different in the UK from that in Australia but she has not made any enquiries about what gaps there may be in his learning or how any deficits could be addressed.
Similarly, in relation to W, the mother does not know what learning deficits might have to be addressed and has made no real enquiries either in Australia or in the UK. While the mother suggested that she could provide additional tutoring for W should it be required, specific enquiries have not been made, and how the mother would fund additional tutoring is unclear.
No consideration appears to have been given to the fact that, on the mother’s proposal, the children will move straight from school in Australia to commencing the new school year in the UK without the benefit of the long summer holiday they would enjoy in Australia.
The fact that the mother has not informed the father about her proposals for the younger children’s schooling, other than to state the name of the schools, is a matter of concern and indicative of her apparent view that she will make those decisions without his being consulted or having any input. That is of particular concern having regard to the statement made by the Family Consultant in the November 2016 report that,
The Court will be assisted by [the mother] providing information about her proposed living arrangements and the schooling arrangements for the children in the context of her wish to relocate with the children to the UK, which information ought also be provided to [the father].
The mother’s evidence in relation to X’s further education was entirely lacking. She deposed that there are universities near her proposed location that offer courses in X’s field of interest. There is no evidence about the application process for such institutions, how X’s fees would be paid, whether his Australian HSC results would be accepted for the purpose of enrolment or where he would live.
However, that was not the most concerning aspect of the mother’s evidence about X.
In the course of cross-examination of the mother by counsel for the ICL, it emerged that she had changed her position from that expressed to the Family Consultant in the Family Report, where it is recorded:
When provided with feedback from the children’s interviews, [Ms Bowden] reiterated that X wished to complete his HSC in Australia and suggested that either X would live with his father or that she might delay moving to the UK until X had completed his HSC.
This passage of the report was the subject of cross-examination of the Family Consultant by counsel for the mother but I am satisfied that it accurately reports the Family Consultant’s understanding of the whole of the mother’s conversation with her on this issue.
In the course of answering questions from counsel for the ICL, the mother said that, regardless of any order, she would not move to the UK unless all of the children, including X, went with her.
The mother was asked whether she had considered that X might choose to continue tertiary education in Australia. She said that she had considered that possibility and concluded that if X decided he would stay in Australia, then she would also stay.
The mother agreed that, in those circumstances, X, who will have his 18^th birthday in late 2019, would have the responsibility to make the decision about relocation for the whole family. The mother accepted that the consequence of her position was that X would be burdened for the whole of his HSC year with the knowledge that this decision loomed over him and that he would bear the weight of ensuring his mother’s happiness which would, of necessity, entail his father’s unhappiness.
When it was put to the mother that this was an inappropriate burden to place on X, the mother did not resile from her position.
The mother appeared not to appreciate that the decision about relocation was one that X has chosen not to make or be involved with. The Family Consultant in her oral evidence said that, in interview, X did not want to comment on the relocation proposal and preferred not to be involved.
The decision for X would be made even more difficult if the mother had already sent Y to the UK to start school there in September 2019. It is also of concern that the mother would require X to make the decision about relocation without waiting to see what marks he has achieved in his HSC and without knowing whether he had achieved an appropriate university placement in Australia. To that extent, the mother is removing from X the right to make a choice about his future.
This aspect of the mother’s case lends further support to the concerns expressed by the Family Consultant about the mother’s understanding of the children’s needs. Specifically in relation to this aspect of the mother’s evidence, the Family Consultant said that her position was inappropriate and concerning. Although the words were not her choice, the Family Consultant agreed that the mother’s position constituted emotional blackmail of X. It would be very difficult for X not to make the decision that he feels his mother wants him to make. The Family Consultant was concerned that forcing X to make this decision may have adverse long term consequences for him and for his relationship with his mother. Whatever decision X makes, he will feel responsible for the consequences that flow for both of his parents and for his siblings.
The mother’s positon does not demonstrate an understanding of X’s emotional and psychological needs.
One of the matters that was raised in cross-examination with the Family Consultant by counsel for the ICL was the effect on the mother’s parenting abilities if she were not permitted to relocate. (It was not the mother’s case that she would not be able to parent the children adequately if she were not permitted to relocate.)
The Family Consultant’s evidence in her report has been set out earlier in these reasons. In oral evidence she said she believed that the mother could continue to support the children’s relationship with their father.
The mother’s psychologist, Mr F, said in oral evidence that the mother had responded to counselling, that she was able to participate fully, and that she had implemented positive changes as a result of therapy. Because the mother had not discussed with Mr F her wish to move permanently to the UK, Mr F could not comment on the effect on the mother if she were not permitted to move.
I accept the evidence of the Family Consultant that the mother would be able to continue to support the children’s relationship with the father at the same level as she has in the past.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

Neither the parents nor the ICL placed any particular weight on this aspect and no submissions were directed to it.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

Although there is no doubt that both of the parents believe she or he has acted in the best interests of the children, the evidence suggests that both of them have given priority to their bitterness and disputes arising from their separation. Neither of them has demonstrated that they are capable of putting the interests of the children before their own.
As the Family Consultant commented, both of them quickly fall back to blame and criticism in their communications. Neither is willing to see or consider the views of the other.
Each of them is intelligent. Each of them is capable of behaving differently.
The tone of the communication between the parents is a matter of concern for which they are both responsible. They have not spoken to one another in person since they separated in April 2016. They communicate by email or text and both have resorted to sending messages to each other via the children.
In June 2018, there was an incident in which W injured her neck while in her father’s care. The father sent a text message to the mother stating,
[W] hurt her neck this morning. She is ok but I got the ambos to check her out just to be sure. They advised me to give her nurofen and panadol and send her to school. They said she just needs to keep exercising her neck but it might hurt for a few days.
The mother immediately responded asking for more information, specifically when the injury occurred and about what had happened.
The father’s response was “7:45”. He provided no further information to the mother about the injury. He did not tell W’s school about the injury.
The father’s response was dismissive and inappropriate. The mother should have been told what had happened and given the information she asked for. I accept that the mother’s position, that if the injury was sufficiently concerning that an ambulance was called, then she should have been fully informed, was entirely reasonable.
If, as the father said, he limited communication with the mother in order to reduce conflict, then this was an inappropriate occasion to exercise that strategy which only adds to the concerns about the willingness of these parents to communicate with each other for the benefit of their children.
The communication between the parties is not respectful. It does not demonstrate any willingness or ability to listen to and consider the position of the other parent. The mother blamed the father for the nature of their communication. She appeared to accept no responsibility. Her manner of communicating with the father is just as inappropriate as is his with her. The father in cross-examination acknowledged that the communication was inappropriate and must change. The father also acknowledged that while he had deliberately limited communication with the mother in an attempt to reduce conflict between them, he deposed that looking back now, he had slipped below an ‘unacceptable standard of communication.’
It is notable that it was the nature of the communication between the parents that the Family Consultant nominated as being one of the features mitigating against both the mother’s relocation application and against the parents sharing parental responsibility.
In cross-examination by counsel for the ICL, the Family Consultant said that, in order for relocation to be recommended by her, she would wish to see firstly a level of trust between the parents and then good and open communication focusing on the children’s needs and “the here and now”.
Despite what the father acknowledged in cross-examination, there has been no improvement in the communication over the past three years and there could be no confidence that anything would change.

(j) any family violence involving the child or a member of the child's family;

The issue of family violence was brought into focus by an affidavit of the mother’s psychologist, Mr F who swore an affidavit on 22 November 2018, the mother’s trial affidavit having been filed in September 2018.
The mother had been referred to Mr F in August 2016 after a referral from Victims Services. She had seen the mother for 36 individual sessions and has capacity for approximately a further 15 sessions.
Mr F, in her report, stated that the mother “now believes her husband restricted her returning to the United Kingdom in order to isolate and control her”. In cross-examination by the father, Mr F said that she was not aware of the frequency or duration of the many trips that the mother had made to the UK both alone and with the children and both before and after separation.
Mr F expressed the opinion that the mother’s presentation of low self- esteem, anxiety and low mood is a “direct outcome of circumstances surrounding a history of domestic violence.” Mr F was completely unaware of the mother’s proposal to relocate permanently with the children to the UK. The proposal for permanent relocation had never been discussed with her by the mother.
The evidence in relation to family violence is limited.
There is no doubt that there was an altercation between the mother and the father on 4 April 2016 after they had been separated under the one roof for about six weeks.
The circumstances of this incident are detailed in the mother’s affidavit and were the subject of cross-examination of the father. He agreed with the account in the police records that he tried to have a discussion with the mother but she refused to talk to him. He blocked the mother from leaving the house, both by the front door and then by the back door, and he grabbed hold of her wrist to prevent her leaving and pushed her back into the house. There could be little dispute because the father had recorded the whole incident on his mobile phone and showed the recording to the police. He left the house that evening and thereafter they lived physically apart. The father was charged with assault and pleaded guilty. After an appeal against sentence, the conviction was not recorded. An Apprehended Domestic Violence order was made for the protection of the mother for a period of ten months, expiring on 15 April 2017.
There is no other complaint of physical violence.
The mother complained that the father had restricted her access to bank accounts. The mother bears the onus of proving this assertion on the balance of probabilities.
In cross-examination, the father said that they had two bank accounts, both in joint names. His salary was paid into one of the accounts. The mother had cards to access both accounts and knew the PIN codes. He said that he had also installed banking apps on the mother’s mobile phone so that she could bank electronically.
The mother’s cousin, Mr G, swore an affidavit in the father’s case. He deposed that he observed that the mother controlled the family finances and referred to an occasion when the mother berated the father, after Mr G and the father had bought a beer while they were waiting for an order of take away fish and chips.
Absent any other evidence, I do not accept that the mother has made out this allegation.
The mother also alleged that the father spoke to her in a derogatory and demeaning manner. Again she bears the onus of proving this assertion on the balance of probabilities.
The father denied the allegation although he accepted that he had, in February 2018, in an email, referred to the mother’s position in relation to W’s weight as “moronic”.
Mr G deposed that he had observed the father being supportive of the mother, promoting her getting out of the house and making friends and being supportive of the mother’s wish to visit the UK.
Mr G deposed that he had witnessed the mother berate the father and deride his opinions.
Other than the email in February 2018, I am unable to find any evidence that substantiates the mother’s complaint. I do not accept that this allegation is made out.
The incident that occurred on 4 April 2016, which precipitated the parties’ physical separation, standing alone, does not enliven the provisions of s60CC(2)(b) of the Act.

(m) any other fact or circumstance that the court thinks is relevant.

There are a number of factual matters which were relied on by the parties which are relevant to this determination.

The mother’s reasons for relocating

It was not in dispute that one of the mother’s primary motivations for relocation is that her mother, the maternal grandmother, may need care in the future.
The maternal grandmother suffered a stroke in 1996 as a result of which she suffers continuing left side paralysis. She also has seizures about twice each week that leave her dazed. She is unable to walk any distance and uses a wheelchair. She needs assistance with dressing and bathing. She has a carer in the mornings who is privately paid.
Mr E, the mother’s step-father, swore an affidavit in the proceedings and was cross-examined by the ICL. Mr E has been diagnosed with a terminal illness. He deposed that he has outlived the medical prognosis by some two years and his life span is uncertain.
At the present time, the mother’s brother is available to assist the maternal grandmother on occasions when Mr E is not available.
The mother is concerned about her mother’s care if Mr E dies.
The mother’s brother did not give evidence but there was no suggestion that he was not prepared to assume responsibility for supervising his mother’s care if necessary.
The mother is also concerned that she may be required to travel to the UK urgently in the event of a medical emergency involving either Mr E or her mother.
The father understands the possibility of urgent travel and does not oppose it. It was his position, previously expressed in writing, that the mother should be able to travel with the children on short notice and stay in the UK for a reasonable time. In cross-examination, he said that the time may be weeks or months.
The father has expressed reservations about the younger children being taken to the UK to attend the funeral of either of their maternal grandparents but has bowed to the mother’s wishes in that regard.
Whilst it is understandable that the mother is anxious about her mother and step-father, there is no evidence that allows a finding that the maternal grandmother requires the mother’s care now, or will do so at the end of 2019, when the mother proposes to move to the UK.

Was there an agreement that the parties would return to the UK?

The mother deposed that, when they were considering moving to Australia from the UK, she and the father had a conversation where she stated that if anything were to happen to Mr E, “I have to come back and care for my mum”. The mother deposed that the father said “Yes I know”.
In cross-examination, the father said that although the issue of the mother’s returning to the UK to care for the maternal grandmother had been discussed, there had never been any concluded agreement or decision.
The parties moved to Australia in 2008. The conversation to which the mother refers was more than ten years ago. Not surprisingly, there is no corroborative evidence.
I am not able to find that the father made any firm commitment to return to the UK if Mr E were not available to care for the maternal grandmother. However, even if there were such a commitment, it would have been only one of the matters to be taken into account in determining whether, after more than ten years in Australia, becoming Australian citizens and the children making a life in Australia, it would be in the best interests of the children for them to move to the UK.

The father’s unwillingness to return to the UK

In cross-examination, the father said that he was not prepared to consider returning to the UK, even if the mother and the children were permitted to go.
The father is settled in Australia. He has a new relationship although he and his partner do not live together. He has employment.
Although the father could be criticised for not having made enquiries about whether his present skills would allow him to find employment in the UK, the Court was left in the position where there is no evidence that the father would be able to find employment in the UK which is comparable to his position in Australia and there is no evidence that, if he were able to find suitable employment, he would be able to earn a comparable salary. Nor is there any certainty that he would be able to find appropriate employment in the area where the mother intends to live.

CONCLUSION

There are three possible outcomes for these children. They can live primarily with the mother in Australia, and spend regular time with their father; they can live solely with their mother in the UK and see their father rarely; or they can live in an equal shared time arrangement in Australia.
I am not satisfied that it is in the children’s best interests for them to live in the UK. The mother’s proposed day to day living arrangements are not financially viable. Her proposed contact arrangements are not practicable.
Three of the four children do not support the proposal to move. Although Y expressed a wish to relocate, there is no evidence which satisfies me that either Y or the mother has properly evaluated the difficulties that Y might face in dealing with the very significant changes in his educational environment and dealing with his behavioural difficulties in the absence of his father.
The emotional burden which the mother’s proposal imposes on X is unacceptable and he must be relieved of it as soon as possible.
Most significantly, it is not in the best interests of the children to diminish the strength of their bond with their father as the Family Consultant explained, and I accept, would occur. I accept the evidence of the Family Consultant that this is of particular relevance to Z and W, having regard to their ages and stages of development.
I am not persuaded that it is in the children’s best interests for them to live in an equal shared arrangement spending week about with each parent.
None of the children has expressed a wish to change their current living arrangements in Australia.
I accept the evidence of the Family Consultant that such an arrangement would be developmentally inappropriate for the three boys who, as adolescents, would be expected to need a more stable primary residence.
I accept the evidence of the Family Consultant that these parents have not demonstrated the level of trust and respectful communication that would be necessary for the success of an equal shared care arrangement.
The children’s best interests are served by them remaining in their current living arrangements which are stable and meet their needs. Stability is particularly important for X in this final year of his secondary schooling.
The ICL proposed that orders should be made for time with each parent at Easter. That proposal was opposed by the mother. Counsel for the mother submitted that, if Easter fell during the school holidays, there would be confusion about the meaning of the orders. I do not accept that submission. If Easter falls in the school holidays, then the children’s time with each parent will be in accordance with the orders relating to school holidays. The Easter orders will take effect only if Easter falls in term time.
The ICL also proposed that the mother should be permitted to renew the children’s passports without the necessity of the father’s participation or consent. No submissions were made by any party in relation to that proposal. The proposal may have had some merit if it were determined that the mother should have sole parental responsibility for the children but that is not an order I propose to make.
There is no evidence that supports removing from the father this significant aspect of parental responsibility.

PARENTAL RESPONSIBILITY

The mother seeks an order for sole parental responsibility. The father seeks equal shared parental responsibility.
I have already referred in these reasons to a number of instances where the parents had not agreed on decisions that needed to be made in relation to the children. These decisions include, but are not limited to, issues about orthodontic treatment for X and Y, treatment of W’s warts, issues relating to W’s weight, inability to reach agreement about a common general practitioner, extracurricular activities and Y’s participation in RAPT.
In each instance, neither parent was prepared to compromise. In relation to the extra-curricular activities, orthodontic treatment and Y’s participation in RAPT, the mother ignored the father’s wishes and his lack of consent and simply did what she wanted.
There is a limited category of decisions in relation to which parents are required to consult. Those aspects of parenting which fit the category of major long term issues are specified in the Family Law Act as:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
There is no evidence that the parents have been unable to reach agreement in relation any aspect of the children’s welfare other than medical issue in which I include counselling.
Each parent will have responsibility for the day to day decisions that need to be made for the children during periods when the children are in that parent’s care.
Each needs to understand that she or he is not legally permitted to authorise medical treatment unless they both agree.
The evidence does not support the contention that these parents cannot agree but that they choose not to agree.
They will each need to change that attitude and learn strategies for respectful dialogue.
The father provides significant financial and emotional support for these children. They each have a close and loving relationship with him. They are entitled to have him involved in decisions relating to their care.
The parents will have equal shared parental responsibility.
The consequence of that decision is that I must specifically consider the father’s application for equal time.
I have already considered that application in the context of my consideration of the matters mandated by s60CC of the Family Law Act 1975 (Cth) but for more abundant caution I will reiterate my reasons for refusing to make that order.
Firstly, none of the children has expressed a wish for more time with the father. Secondly the communication and level of trust between the parents mitigates against their being able to jointly parent the children. Thirdly, the children are settled and doing well in their current arrangements. In that regard, I note the evidence of the Family Consultant that adolescent children are likely to seek more time in a primary residence and move away from equal sharing. Lastly, it would be highly inappropriate to make any arrangement that affected X in his HSC year.

I certify that the preceding two hundred and forty-two (242) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 25 January 2019.

Associate:

Date: 25 January 2019

[2019] FamCA 24

25 January 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies