Cardin & Hyles
[2021] FamCA 265
•27 April 2021
FAMILY COURT OF AUSTRALIA
Cardin & Hyles [2021] FamCA 265
File number(s): SYC2105 of 2021 Judgment of: ALTOBELLI J Date of judgment: 27 April 2021 Catchwords: FAMILY LAW – JURISDICTION – Where the mother concedes that the Family Court of Australia has jurisdiction to determine the father’s application for parenting orders – Where the mother submits that the Court should not exercise its jurisdiction – Finding made that it is in the best interests of the child to determine the matter in this Court
FAMILY LAW – PARENTING – Urgent COVID-19 List Application – Where the parties lived in a UK City for the majority of their relationship – Where the nature of the parties’ work involves significant periods of travel – Where the parties travelled to Australia in 2020 – Where the parties were unable to return to the United Kingdom due to the COVID-19 pandemic – Where the child has been enrolled in school in Sydney – Where the mother seeks the summary return of the child to the United Kingdom – Matter determined by reference to the best interests of the child – Court unable to determine COVID-19 risk issues by reference to evidence in other cases – no concept of general issue previously decided in Australian family law – Mother’s application for summary orders dismissed – Interim parenting orders made – Order made placing child on Family Law Watch List
Legislation: Family Law Act 1975 (Cth) Pt VII, s 60CC Cases cited: Angeli & Farina [2020] FamCA 975
EJK & TSL (2006) FLC 93-287; [2006] FamCA 730
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Karim & Khalid (2007) FLC 93-348; [2007] FamCA 1287
Secretary, Department of Communities and Justice & Paredes [2021] FamCA 128
ZP & PS (1994) 181 CLR 639; [1994] HCA 29
Number of paragraphs: 34 Date of last submission/s: 19 April 2021 Date of hearing: 19 April 2021 Place: Sydney Counsel for the Applicant: Mr Tockar Solicitor for the Applicant: Blanchfield Nicholls Counsel for the Respondent: Ms Giacomo Solicitor for the Respondent: Hamish Cumming Family Lawyers ORDERS
SYC2105 of 2021 BETWEEN: MS CARDIN
Applicant
AND: MR HYLES
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
28 APRIL 2021
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.Orders 5 and 6 of the Interim Orders sought by the mother in her Initiating Application filed 24 March 2021 be dismissed.
2.The mother and father have equal shared parental responsibility for X, born … 2012.
3.During the school term, X shall live with the parties as agreed and, failing agreement, as follows: -
(a)With the mother each week from 3.00pm on Sunday until the commencement of school (or 9.00am) on Thursday;
(b)With the father each week from the commencement of school (or 9.00am) on Thursday until 3.00pm on Sunday.
4.During the school holiday periods, X shall live with the parties as agreed and, failing agreement, as follows:-
(a)With the mother for half of each school holiday period, being the first half in even numbered years and the second half in odd numbered years;
(b)With the father for half of each school holiday period, being the first half in odd numbered years and the second half in even numbered years.
5.Unless otherwise agreed between the parties, school holiday periods are defined as:
(a)The school holidays commence at the conclusion of school on the last day of the school term that X attends school ;
(b)The school holidays conclude at 9.00am on the first day X is required to attend school in the new school term;
(c)The midpoint of the school holiday period is 3.00pm on the day that falls in the middle of the school holiday period;
(d)Pupil free days at the end or start of each school term are included in the school holiday period.
6.Notwithstanding any order to the contrary, X will spend the following time with the mother:
(a)from 6.00 pm on the day preceding Mother’s Day until 12 noon on Mother’s Day;
(b)from 12.00 pm on Christmas Eve until 12.00 pm Christmas Day in even numbered years; and
(c)from 12.00 pm Christmas Day to 12.00 pm Boxing Day in odd numbered years.
7.Notwithstanding any order to the contrary, X will spend the following time with the father:
(a)from 6.00 pm on the evening before Father’s Day until 12 noon on Father’s Day
(b)from 12.00 pm on Christmas Eve until 12.00 pm Christmas Day in odd numbered years; and
(c)from 12.00 pm on Christmas Day until 12.00 pm Boxing Day in even numbered years.
8.Notwithstanding any other order, X will spend time with the father on his birthday and the father’s birthday from 3.00 pm to 8.00 pm if the birthday falls on a day when he will be spending time with the mother in accordance with any other order.
9.Notwithstanding any other order, X will spend time with the mother on his birthday and the mother’s birthday from 3.00 pm to 8.00 pm if the birthday falls on a day when he will be spending time with the father in accordance with any other order.
10.Unless otherwise agreed, changeover shall take place at X's school on school days and on non-school days at B Street, Suburb C NSW.
11.In the event the mother travels to the United Kingdom for work in April 2021 the following shall apply:-
(a)The mother's time with X pursuant to orders 3 and 4 above is suspended;
(b)X is to live with the father;
(c)The father shall facilitate X communicating with the mother by any form of electronic means available including but not limited to Microsoft Teams, Facetime, Skype and via telephone.
(d)Upon the mother's return to Australia, X shall recommence spending time with his mother pursuant to orders 3 and 4 subject to the mother providing the father with 14 days' notice of her intention to return to Australia and completing any period of quarantine or self-isolation required.
12.Until further order, MS CARDIN, born … 1972 and MR HYLES, born … 1973, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of X, born … 2012 from the Commonwealth of Australia until 31 March 2023 AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of X, born … 2012 on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watch List until 31 March 2023.
13.The matter be referred to the docket registrar for further case management.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cardin & Hyles has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Revised from the transcript)ALTOBELLI J:
This matter came before me last week, which was a duty week. It presents as a COVID-19 List application. It is a case where an urgent decision is warranted, but my listings last week precluded my providing a decision earlier than today. These short form oral reasons for judgment explain why the Court has made interim orders in relation to a child, X, born … 2012, currently eight years old. X’s mother is the Applicant in this case and the Respondent is his father.
The mother seeks orders that she be permitted to take X back to the United Kingdom, with such order to be made on a summary basis. The father opposes the making of this order and instead seeks interim parenting orders that reflect the current arrangements. For the purposes of this interim hearing, the Court is going to take the mother’s case at its highest, and assume the correctness of the assertions that she makes. I do not entirely disregard the assertions made by the father.
In any event, the chronology that was part of the mother’s Case Outline document filed on 12 April 2021 was of much assistance, and it is reproduced in the first schedule to these reasons. Thus, by way of background, the mother is 48 years old; and the father is 47. They are both Australian-born. They commenced cohabitation in Australia in 2004 and purchased an apartment together in Suburb C, an eastern suburb of Sydney. In 2005, they relocated to City D and have remained living there ever since.
There is no issue about their status and ability to remain in or leave Australia, or to either re-enter or remain in the United Kingdom. In 2008 they purchased an apartment in City D in their joint names. X was born in City D and is a citizen of the United Kingdom. The parents separated, either in late 2015 or early 2016, and in this regard nothing turns on the date. They remained living under the same roof in the City D apartment. In 2016 X commenced school in City D.
On 23 March 2020 the family travelled to Australia for a holiday to visit family, and, it would seem, to escape the COVID-19 pandemic in the United Kingdom. They travelled to Australia with return tickets, with the return travel due to occur in April 2020. As a result of the pandemic the return flights to the United Kingdom were cancelled. On arrival in Australia the family lived in the Brisbane area and then in June 2020 moved to Sydney and initially occupied their apartment in Suburb C. X continued his schooling in City D through remote learning.
Shortly after moving into the Suburb C apartment, the father moved out and currently stays at the home of his mother in Suburb F, a southern suburb of Sydney. X and his mother continue to live in the Suburb C apartment. Renovations were undertaken there. These were apparently completed in August 2020, and the parents discussed returning to the United Kingdom. The mother says that the father persuaded her to stay in Australia for a few months in light of the pandemic and health and safety concerns. She says that he said to her that they would return to City D in January 2021. There is correspondence with X’s school which is consistent with this. In September 2020 X was enrolled temporarily at a local primary school, apparently close to the home in Suburb C.
In December 2020 or thereabouts, the parents received communication about employment prospects in the United Kingdom. They are both employed in the arts industry, in general terms. In response to one request, the mother indicated that she wanted to take up work in mid to late March. The father indicated that he could return in about April. In January 2021 the mother received an offer of employment in City D commencing in March 2021. She contends that the father told her, for the first time, that he was not agreeable to X returning to the United Kingdom. In March 2021 the mother received the firm offer of employment in City D.
Meanwhile, the father obtained employment in Sydney, commencing 15 April 2021. The mother commenced the present application on 24 March 2021. The mother was due to commence her employment in City D on 26 April 2021. The mother produced written documentation relating to her employment offer. Work was to commence on Monday, 26 April for two weeks and to conclude no later than 22 May 2021. The location was City D. The same documentation refers to further employment prospects for the mother commencing 30 August 2021, but apparently to take place in City G. It is thus clear that the mother has employment for a relatively short and fixed period in City D.
The material relied on by the mother is set out in her Case Outline document filed 12 April 2021. The material relied on by the father is set out in his Case Outline document filed 14 April 2021. The mother was represented by Mr Tockar of counsel, and the father by Ms Giacomo of counsel. It is important to try to understand the mother’s case. There is no doubt that she sought a summary order for the return to the United Kingdom of X with his mother. The legal basis of this claim, however, seemed to be that Australia was not the appropriate forum to conduct litigation about X, but rather that the United Kingdom was.
The mother’s case concedes, quite correctly, that this Court has the necessary jurisdiction to entertain the father’s application for parenting orders. However, her case is that, even so, that does not preclude the Court from determining that it should not exercise that jurisdiction. Indeed, her argument was that the Court should not exercise its jurisdiction on the basis that Australia is not the most appropriate forum, and that in the circumstances, there should be a speedy repatriation of X to the United Kingdom where issues pertaining to him can be determined in the United Kingdom Courts.
The framing of the mother’s case as a forum dispute was confirmed in oral submissions. Thus, for example, the language used by her counsel was consistent with the Court’s understanding of her case. He submitted on behalf of the mother that X was neither habitually resident nor well-settled in Australia. Moreover, it was submitted that there was no grave risk to X if he were to be returned to the United Kingdom. The use of such language is surprising, given that this is clearly not an application brought under the Hague Convention. Indeed, in submissions, counsel for the mother further sought to distance her case from any characterisation of her case being a relocation case, whatever that actually means. Nonetheless, the language is consistent with the case being conducted, in effect, as a forum case.
With respect to the mother and those advising her, the submissions made on her behalf are confused, as well as confusing. The High Court in ZP & PS (1994) 181 CLR 639 made it very clear at [8] that in a case like this, the application in relation to X is determined by reference to his best interests as the paramount consideration, and not by reference, explicitly or solely, by reference to forum issues. Relevant factors, however, include where he had been living before he arrived in Australia, his life in Australia, and what he would return to if the mother is allowed to take him back to the United Kingdom.
The availability of her desired remedy, that is, a summary order for return to the United Kingdom, is not in dispute, but the question is to be determined by reference to what is in the best interests of X. The relevant law is found in Part VII of the Family Law Act 1975 (Cth), particularly s 60CC. Many of the cases referred to in the mother’s Case Outline document are helpful guides, but not ultimately determinative of what is in the best interests of the child, X. It is notable, the Court observes, that so many of the cases relied on by the mother are cases where a child was brought to Australia without the knowledge and/or consent of one parent (see, eg, EJK & TSL (2006) FLC 93-287; Karim & Khalid (2007) FLC 93-348). It is unsurprising that in those circumstances the remedy of summary return would be granted. In relation to X, however, it is clear that he came to Australia with the consent of, and accompanied by, both his parents. Any dispute between the parents about his return to the United Kingdom only arose in January this year.
Even in an application for the summary return of a child, the Court must make an order that it considers to be in the best interests of the child. This is taking place, of course, in the context of an interim hearing, the limitations of which are well-known to those representing the parties and which are discussed in cases such as Goode & Goode (2006) FLC 93-286. The Court must do the best it can given the limited evidence before it.
X appears to have a meaningful relationship with both of his parents. Implicit recognition of this is found in the current shared parenting arrangements that the parents have implemented. X spends four days a week with his mother, and three days a week with his father. Even on the mother’s history, the father has been actively involved in the care of X. Indeed, if the evidence in the father’s case is accepted, he has been the sole carer of X for periods of time when the mother was working overseas. In a prospective sense, there is no doubt that X would benefit from the continuation of this meaningful relationship. The father’s proposal would see to this.
The mother’s proposal casts doubts about how this meaningful relationship would be continued. She makes no proposal for X to either spend time with or communicate with his father should X be returned to City D. There must at least be some doubt about how X’s meaningful relationship with his father would continue on his mother’s proposal. The Court must consider whether there is any need to protect X from physical or psychological harm. The mother’s case does not address this directly. Indeed, implicit in the presentation of her case was the contention that it was irrelevant, given that there could be no suggestion of grave risk in returning to his home in the United Kingdom.
In the father’s case, however, the issue of COVID-19 risk was squarely raised in submissions. In reply, counsel for the mother referred this Court to a decision of Williams J on 17 March 2021 in Secretary, Department of Communities and Justice & Paredes [2021] FamCA 128 (‘Paredes’). Counsel for the mother’s submission was that no grave risk was established in that case and, therefore, inferentially, there was no risk of harm to X in returning to his home in the United Kingdom because of the COVID-19 pandemic.
True it is that Williams J had before her extensive expert evidence about risk issues associated with travel to a country where COVID-19 was present. But that is not evidence that can be relied on in this case. There is currently no concept known to Australian family law of a general issue previously determined being incorporated into a subsequent decision. The extensive expert evidence about COVID-19 risk that was referred to in the Paredes decision cannot be accessed in this case. Thus, the submission made in the father’s case that there is a risk associated both with travel and a return to the United Kingdom is a submission that has not been addressed, let alone refuted, in the mother’s case. From the Court’s perspective, it is a risk that cannot be ignored: Angeli & Farina [2020] FamCA 975.
There are no relevant views of the child in respect of which the Court would place any weight at this stage of the proceedings. The evidence of both parents suggests that X has a strong relationship with both his mother and father. The father contends that X has the benefit of extended family on both sides, including the father’s mother, sister and nephew, who he describes as an integral part of X’s family network and daily life. On the father’s proposal, X would maintain this network. On the mother’s proposal, X would return to what she considers to be his home, but she gives little evidence about X’s important relationships in City D, or how his important relationships in Australia could be maintained.
There is little to no evidence to suggest that there are any concerns about child support or maintenance, or that either party has failed to take the opportunity to participate in decision-making, or to spend time and communicate with X. The Court must consider the likely effect of any changes in X’s circumstances, including the likely effect of separation from either of his parents, or any other significant person in his life. This is clearly an important consideration. This factor also highlights the stark realities and uncertainties of making significant decisions in the life of the child without the benefit of more extensive evidence and expert evidence. Dealing with the matter in a summary fashion is highly problematic from the perspective of this consideration.
X presents as having a strong relationship with his father. The mother makes no proposal about communication or contact with his father should X be permitted to return with her to the United Kingdom. The impact of this return on the parental relationship is therefore unknown. There are assertions in the mother’s evidence that the father could return to City D himself if he wanted to, and she infers that in the same way as work is becoming available to her, it will likewise become available to him. Against this, however, is the father’s desire to remain in Australia, and the fact that he has what seems like well-paid employment here. This consideration suggests that X should not be permitted to return to the United Kingdom with his mother without a full investigation of the impact on him of such a change in terms of his important relationships.
The mother’s case is, of course, that the return to City D is not a change for X because he is returning home to that with which he is familiar. This is true only in part. On the material before the Court, X would be returning to a home without his father and in a context where his mother has not articulated how X’s relationship with his father would be continued in the circumstances. On the mother’s proposal, and for the reasons already foreshadowed, issues of practical difficulty and expense of X spending time with his father, are abound. COVID-19 probably adds complexity, but the details are not known.
Even if the mother’s contention is correct in that they would have no difficulty leaving Australia and would, at most, have to quarantine in City D (quite apart from the fact that the situation may well be fluid), in order for the father to travel to City D he would probably, at the very least, need to quarantine on return to Australia. If X were to spend time with his father in Australia, quarantine issues once again arise. According to the father, the reality for both parents in their life together has been that even though they were based in City D, each has travelled extensively for the purposes of their work, sometimes together and sometimes alone, and often for substantial periods.
On one level it could be argued that they have managed issues of practical difficulty quite satisfactorily, but at another level, they have not had to operate in the context of a global pandemic. At an interim hearing it is difficult to form any impression about parental capacity other than that both his parents present as being able to meet all of X’s needs. They have done so historically. They have spent a period cohabiting under the same roof whilst separated. They have successfully implemented a shared care arrangement. This all reflects each parent’s confidence in the other parent’s parenting capacity.
If the father’s account of their respective work lives is correct, during the relationship they were able to more than adequately parent X, despite the overseas work and travel commitments of one or both parents. But the mother’s evidence does not articulate, for example, what would happen to X if she accepts what seems, prima facie, to be an offer to work in City G as from August 2021. Would X come with her? If X remained in City D, who would care for him? In all likelihood the mother would probably find a child-focused answer to all of these questions, given that the Court believes that she, like the father, has good parenting capacity. One cannot help but wonder, however, whether the mother herself has given adequate consideration to what it will be like to solo parent X. Both parents appear to lead an interesting lifestyle associated with employment in the arts industry. X will undoubtedly benefit from this. He may have opportunities to travel in future because of this. He will probably meet interesting people.
At an interim hearing it is hard to do anything more than form general impressions about parental attitudes towards X and to the responsibilities of parent. No doubt implicit in each parent’s case is the assertion that the other is being irresponsible in the stance that they have adopted in this case. The father’s counsel quite correctly submitted, however, that the mother’s attitude about the return to City D was difficult to understand, in circumstances where her own evidence indicated that, in reality, she would be returning for the certainty of a few weeks’ work only. The submission made on his behalf is that there is no reason, from the father’s or X’s perspective, why she could not return to City D to work the contract that she was offered and then return to Australia.
The Court is required to at least aspire to make an order that is least likely to lead to the institution of further proceedings in relation to X. That cannot be achieved in the present context. In fact, further proceedings are almost inevitable. Even if the Court allows X to return to City D with his mother, there is the prospect of the father continuing the present proceedings, given that the mother has not sought any order for the present proceedings to be stayed or dismissed. There is the prospect of the mother commencing Hague Convention proceedings. There is the possibility of the mother commencing parenting proceedings in the United Kingdom Courts. Regrettably from X’s perspective, it is highly likely that his parents will continue to litigate in relation to him. This is probably not the best outcome for him. Nonetheless, each parent has legitimate legal rights that they are entitled to assert.
The Court is entitled to consider any other fact or circumstance that it believes is relevant. The Court considers that it is appropriate to therefore consider the forum issues that the mother has raised in this case. These issues could be determinative in a finely-balanced case, but this is not a finely-balanced case. From this Court’s perspective, having regard to the factors discussed above, it is not in the best interests of X to have a summary decision made about him in circumstances of competing, incomplete, and certainly inconclusive evidence.
Nonetheless, the issue that the mother raises about forum are significant. The Court is prepared to accept, for example, that for all of X’s life, City D has been his home. He goes to school there. Certainly as at the time immediately before he travelled to Australia with his family in March 2020, he had friends and community there. He was probably involved in extracurricular activities there. For both his mother and father, City D was their home. But they travelled to Australia voluntarily, and at least in part to escape concerns, the Court infers, that they had about the COVID-19 pandemic in the United Kingdom. Some would say, and perhaps history will judge, that they made the right decision in this regard.
Clearly they intended to return home. The decision not to return was not theirs, but neither was it a decision of one of the parents. It was not until January 2021 that, the Court accepts, the father decided he did not want to return to the United Kingdom. The Court hypothesises that if the decision were to be made purely on the basis of forum non conveniens, the most appropriate forum for a dispute about where X should live would probably be the the United Kingdom Courts. But this is not a forum case. It is to be determined by reference to the best interests of X with only one consideration being what has been loosely described as the forum issues. From this Court’s perspective, the forum issues, when considered with the other issues explored above, do not justify a finding that it is in the best interests of X for a summary order to be made for his return to City D.
There are a number of other options for the parties to consider. Perhaps this is a case where if expedition was sought it would be granted. Perhaps a decision about X (any type of decision) would be an easier one for the Court to make if it had the benefit of expert evidence. Perhaps this decision would have been different if the mother’s approach to the application had been different, and her evidence had been framed more from the perspective of the relevant considerations under Part VII of the Family Law Act. Be all of those things as they may, the Court must make the decision on the basis of the material before it.
Having regard to the matters set out above, the Court believes that it is not in the best interests of X for an order to be made as proposed by the mother. It is curious that when the mother was given the opportunity to formulate a set of proposed orders if the Court were against her proposal, she could not do so other than to indicate in a general sense that whilst the father’s proposal reflected the current arrangements, it did not necessarily reflect her preferred interim arrangement.
Given the mother’s concession that the father’s proposal reflects the current arrangements in relation to X, and further given that she declined, or at least failed to take advantage of the opportunity to make an alternative proposal, the Court believes that orders should be made at the very least preserving the current arrangements pending further order. This arrangement, that is, the father’s proposal, presents as being consistent with X’s lived experience of care from both his parents.
The Court does find it curious that no submissions were made on the mother’s behalf about orders 11 and 12 of the father’s proposed minute of orders. The Court can understand why the father would suggest these orders and, indeed, the Court is prepared to make them on an interim basis. I therefore make the orders proposed by the father. As the matter came before me in the context of a duty list, it will be returned to a registrar for further case management.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 28 April 2021
SCHEDULE A
Key:
M: Mother’s Affidavit
F: Father’s Affidavit
Date
Event
Reference
1972
Birth of mother in Melbourne, Australia. Presently aged 48 years.
M[l] F[3]
1973
Birth of father in Sydney, Australia. Presently aged 47 years.
M[2] F[2]
2004
Parties commence living together in Australia.
M[4] F[5]
Late 2004
Parties purchase an apartment together in Suburb C, Sydney. Since moving to the United Kingdom in 2005 (see below) the property has been rented out.
M[27] F [46]
2005
Parties relocate to City D and have remained living there ever since. The parties have residency in the United Kingdom. The mother is eligible to apply for the United Kingdom citizenship. The father has residency in the United Kingdom through his ancestry.
M[4][14]
F[l4]August 2008
Parties purchase an apartment in City D in their joint names and have lived there ever since.
M[l4] [55]
2012
Birth of X in City D. He is presently aged 8 years and is a United Kingdom citizen.
M[3][4] &
annexure "A"
F[4][19]December 2015/January 2016
Parties separate but remain living under one roof in the City D apartment.
M[5] F[7]
2016
X, aged 3, commences school at H School in City D.
M[ll]
F[29][90]23.03.2020
Parties travel with X to Australia for a holiday and to visit family in Australia (the father says "to escape COVID-19") with return tickets booked for April 2020 (the mother to return on 16 April 2020 and the father and X to return on 30 April 2020).
Valuables, personal effects, food in the pantry, motor car, etc were left at the City D apartment, which was not rented out as the intention was to return in a few weeks.M[6][19] [21][22] [23] & annexure "E" F[38]
April 2020
Return flights from Australia to the United Kingdom were cancelled as a consequence of the Covid 19 pandemic.
M[6]
May 2020
Parties communicate with X's school in City D via the father's email address to organise home schooling and payment of fees. In an email of 25 May 2020 the father expressed his thanks to the school for their understanding and noted that X "has been enthusiastically completing the online tasks and won't be returning to school physically this term".
From March - July 2020 (end of the school year) X was learning remotely at the H School in City D.M[24] & annexure "F"
F[45]
M[29]
F[45]
29.05.2020
Email from the father to the parties' accountants in Australia stating that "we will be moving back into our Suburb C apartment next week ... to give the apartment an update and then sell ... as we have been based in the United Kingdom we have been resident there for tax purposes ... we have work planned to start in December back in the United Kingdom ... "
M[79] & annexure "M"
June 2020
The parties and X move from Queensland (where they had been living since their arrival in Australia) to Sydney. Mother and X move into the Suburb C apartment (the tenant having moved out on or about 22 June 2020).
The father asserts he initially moved into Suburb C apartment but soon moved out and stays at his mother's home in Suburb F. The mother and X remain living at the Suburb C apartment.
The parties start renovating the Suburb C apartment with a view to selling it and returning to the United Kingdom in time for X to commence the new school year on 7 September 2020.M[28]
F[46]
M(27)
F[47]
M[28]
M[37]
August 2020
Parties complete renovations on the Suburb C apartment and discuss returning to the United Kingdom. The father persuaded the mother to stay in Australia for another few months in the light of "Covid and health and safety concerns" and says to her that: "we will return to City D in January 2021".
M[30]
28.08.2020
The mother sends an email (copied to the father) to the Dulwich
Preparatory School in City D, stating, inter-alia:
"…we are contacting you in regards to X rejoining his classmates for the new school year. We are desperate to return to City D and resume our lives where we left off, however with our industry taking longer than others to recover, this is not yet possible… we would love to open a conversation about X deferring the commencement of his Year 3 studies until Term 2/beginning of January 2021".M[31] & annexure “G”
September
2020
X temporarily enrolled at J School in Suburb C.
M[32]
7.12.2020
Parties receive an email about employment prospects in the United Kingdom.
M[33] & annexure “H”
10.12.2020
In response to a request as to when/if the parties would be in the United Kingdom in 2021, the mother states in an email that: "I would propose a mid to late March arrival/avail for work to commence". By email dated 14 December 2020, the father indicated that: "As the year for me is open at the moment -April-ish is fine if that works in with the time required to secure contractors and establish visas, etc".
M[33] & annexure “H”
January 2021
Mother receives an offer of employment in the United Kingdom, commencing in March 2021. She advises the father of the employment offer and informs him that she needed to be back in City D in early March 2021 and proposes that she and X travel back to the United Kingdom in time for his schooling, which was due to commence in April 2021.
Father, for the first time, informs the mother that he was not agreeable to X returning to the United Kingdom.M[34]
15.03.2021
Father sends an email to X's school in Suburb C (J School) wherein he notes that "This will be the third meeting with the School where we will be addressing our concerns over X's safety and well-being at J School" and wherein he states that X "has shared with us the 'bullying' events that he has endured and the torment he deals with while trying to do his work in class. He is not enjoying his schooling, has referred to his school environment as a 'warzone ' and asks why the children are so nasty?". The father further observed that: "It appears there is a level of disrespectful behaviour prevalent amongst the students (according to X and other children we have been in contact with) that for whatever reason continues to occur under the radar of the staff and without being addressed by the School".
M[41] & annexure “I”
17.03.2021
Mother contacted by City D agent about doing some work in City D for him.
M[83] & annexure “N”
18.03.2021
Father offered employment in Sydney commencing 15 April 2021 (Monday to Friday 7:30am to 4.00 pm.
F[79] & annexure “F-2”
19.03.2021
Mother receives formal offer of employment in City D, commencing 26 April 2021.
M[10] & annexure “B”
24.03.2021
Mother files Initiating Application seeking the summary return of X to City D.
19.04.2021
Due date for commencement of X’s summer school term at H School in in City D.
M[11] & annexure “C”
26.04.2021
Due date for commencement of mother’s employment in City D.
M[10] & annexure “B”
0
3
1