Champness & Hansen
[2008] FamCA 538
•30 June 2008
FAMILY COURT OF AUSTRALIA
CHAMPNESS & HANSEN [2008] FamCA 538
FAMILY LAW – CHILDREN – With whom a child lives – Relocation – application by mother seeking to relocate with children to Republic of Ireland, or in alternative Sydney – father seeks that mother return children to Adelaide – mother previously removed children from Australia to Ireland, agreeing to return children after father commenced Hague Convention proceedings – consideration of s 60CC factors – history of significant violent and controlling behaviour by father towards mother – children’s relationship with father – mother’s willingness to facilitate relationship – effect of relocation on children – difficulty and expense of communication and father spending time with children if relocation allowed – mother has support of extended family in Ireland – assessment of parties’ competing proposals regarding relocation – significant advantages and benefits to children if relocation to Ireland permitted – relocation in children’s best interests – satisfied provisions for contact and communication with children will enhance and sustain children’s relationship with father – mother permitted to relocate with children to Ireland from December 2008 – orders for father to spend supervised time and communicate with children prior to and following relocation.
FAMILY LAW – CHILDREN – parental responsibility – presumption of equal shared parental responsibility does not apply due to family violence (s 61DA(2)(b)) – also not in best interests of children (s 61DA(4)) – mother to have sole parental responsibility.
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 65DAA & 65DAE
AMS v AIF: AIF v AMS (1999) FLC 92-852
A v A: Relocation Approach (2000) FLC 93-035
H v L (2000) FLC 93-036
U v U (2002) FLC 93-112
Bolitho and Cohen (2005) FLC 93-224
Morgan and Miles [2007] FamCA 1230
Taylor and Barker [2007] FamCA 1246
APPLICANT: MR CHAMPNESS
RESPONDENT: MS HANSEN
INDEPENDENT CHILDREN’S LAWYER: REBECCA REED
FILE NUMBER: ADF 226 of 2005
DATE DELIVERED: 30 JUNE 2008
PLACE DELIVERED: ADELAIDE
PLACE HEARD: ADELAIDE
JUDGMENT OF: BURR J
HEARING DATE: 4, 5, 6, 7 & 8 FEBRUARY 2008 and 24 JUNE 2008 REPRESENTATION
COUNSEL FOR THE APPLICANT: MR HEFFERNAN
SOLICITOR FOR THE APPLICANT: HEFFERNAN & CO
COUNSEL FOR THE RESPONDENT: GRAEME D HEMSLEY
SOLICITOR FOR THE RESPONDENT: GRAEME HEMSLEY
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS HURLEY
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: LEGAL SERVICES COMMISSION
Orders
1.That the children E born … January 2001 and O born … December 2003 live with the mother.
2.That the mother have sole parental responsibility for the said children.
3.That the mother be permitted to relocate with the said children to Ireland as and from 22 December 2008.
4.That the father spend time with the said children as follows:-
(a)During school terms and until 19 December 2008, on up to two [2] occasions per calendar month, with the intention that the first such occasions be on Friday 1 August 2008 and Saturday 2 August 2008 UPON CONDITION that:-
(i) any such Friday time is outside of school hours;
(ii) all such time or times and dates near thereto are as advised by the Sutherland Inter-relate Children’s Contact Service (“CCS”) at Sutherland in the State of New South Wales; and
(iii) all such time is to be conducted at and supervised by the said CCS.
(b)During the following New South Wales school holiday periods:-
(i) in September / October 2008, from 10.00 am until 5.00 pm on three [3] consecutive days on dates to be agreed between the mother and the father, or in default of agreement, on 2, 3 and 4 October 2008;
(ii) in December 2008, from 10.00 am until 5.00 pm on five [5] consecutive days on dates to be agreed between the mother and the father, or in default of agreement, on 15, 16, 17, 18 and 19 December 2008
UPON CONDITION that:-
(iii) all such times spent by the father with the said children be supervised at all times by either or both of the said children’s paternal grandmother or paternal aunt;
(iv) all handovers be conducted between the mother and either or both of the paternal grandmother or paternal aunt to the exclusion of the father at the accommodation of the mother, with such address to be advised by the mother by telephone and confirmed in writing to the paternal grandmother and the paternal aunt at least fourteen [14] days before each period;
(v) the mother secure accommodation at or near Y in the north of the State of Queensland from at least 1 October 2008, or the day before the first day of such time to be spent by the father with the children if agreed otherwise, to 4 October 2008 or the last day of such time to be spent by the father with the children if agreed otherwise and from 15 December 2008, or the day before the first day of such time to be spent by the father with the children if agreed otherwise, to 19 December 2008 or the last day of such time to be spent by the father with the children if agreed otherwise;
(vi) either or both of the paternal grandmother and paternal aunt attend at the mother’s accommodation in or near Y at 10.00 am on 1 October 2008 or the day before the first day of such time to be spent by the father with the children if agreed otherwise, to enable the mother to introduce the children to the paternal grandmother and/or the paternal aunt and to the intent and purpose that the mother, the children and either or both of the paternal grandmother and the paternal aunt spend the day together to a time no later than 5.00 pm;
(vii) either or both of the paternal grandmother and paternal aunt attend at the mother’s accommodation in or near Y at 9.00 am on 15 December 2008 or the day before the first day of such time to be spent by the father with the children if agreed otherwise, to enable the children to become reacquainted with the paternal grandmother and/or the paternal aunt for an hour prior to the commencement of the father’s period of time to be spent with the children;
(viii) the parties share equally the cost of all return air fares for the mother and the said children, to be effected by the father paying same at first instance and the mother then reimbursing the father for one-half thereof by no later than the last day of the father’s time to be spent with the children on each occasion; and
(ix) at least 14 days prior to travel the father inform the mother in writing of the flight bookings that he has made for each holiday period of time he is to spend with the said children.
(c)As and from 22 December 2008 or the mother’s relocation with the children to Ireland, whichever is the later:-
(i) on two [2] occasions in 2009 / 2010 for a period of two [2] consecutive weeks on each occasion to be given and taken in either Ireland or Australia at the discretion of the father and at locations as are agreed between the parties, and in default of agreement as to dates, then as follows:-
A.during the July / August Irish school holidays;
B.during the December / January Irish school holidays but commencing no earlier than 28 December even if same results in the children missing some schooling in January.
(ii) on two [2] occasions in 2011 and each calendar year thereafter for a period of three [3] consecutive weeks on each occasion to be given and taken in either Ireland or Australia at the discretion of the father and at locations as are agreed between the parties, and in default of agreement as to dates, then as follows:-
A.during the July / August Irish school holidays;
B.during the December / January Irish school holidays but commencing no earlier than 28 December even if same results in the children missing some schooling in January.
UPON CONDITION that:-
(iii) if given and taken in Australia:-
A.the children be accompanied on the return flights by the mother to the exclusion of the father;
B.all such times spent by the father with the said children be supervised by either or both of the said children’s paternal grandmother or paternal aunt and that the children stay overnight with either or both of the paternal grandmother or paternal aunt;
C.all handovers be conducted at the accommodation of the mother with such address to be advised by the mother by telephone and confirmed in writing to the paternal grandmother and the paternal aunt, with handover at the commencement to be effected at 10.00 am and handover at the conclusion to be effected at 5.00 pm provided that at the mother’s discretion there is no requirement for her to remain at such accommodation between handovers;
D.the mother pay the cost of all air fares for the mother and the said children for the first three [3] of every four [4] occasions and the father pay same for the fourth [4th] of every four [4] occasions;
E.at least twenty-eight [28] days prior to travel the mother inform the father, the paternal grandmother and the paternal aunt in writing of the flight bookings made on the occasions she is to pay the air fares;
F.at least twenty-eight [28] days prior to travel the father inform the mother in writing of the flight bookings made on the occasions he is to pay the air fares.
(iv) if given and taken in Ireland:-
A.all such times spent by the father with the said children be supervised by a person(s) acceptable to the mother and the father and in default of agreement, then by a person(s) nominated by the mother and being a person(s) other than a member of the mother’s family;
B.the mother pay the cost of all return air fares for the father;
C.at least twenty-eight [28] days prior to travel the mother inform the father by telephone and confirmed in writing of the flight bookings made.
5.That as and from 22 December 2008 or the mother’s relocation with the said children to Ireland, whichever is the later, the mother do ensure that the said children communicate with the father at the cost of the mother as follows:-
(a)by letter at least once every two [2] months;
(b)by email communication at least once per fortnight;
(c)by telephone, webcam or skype communication at least once per fortnight at a time to be agreed between the parties or in default of agreement, at 8.00 am (Ireland time) on the Thursday of each week;
(d)by providing the father with a video / DVD recording of the said children at least once every six months.
6.That the mother do mail or otherwise provide to the father at the cost of the mother and within fourteen days of receipt of same by her, copies of all school reports and school photographs in relation to the said children and do keep the father informed of any medical emergency or serious medical condition affecting the said children.
7.That the mother do:-
(a)prior to her relocation to Ireland with the said children, keep the father informed at all times of a mailing address for the said children; and
(b)after her relocation to Ireland with the said children, keep the father informed at all times of a mailing and residential address for the said children and a telephone number.
8.The father be restrained and an injunction is hereby granted restraining him from:-
(a)spending any time with the said children except as specified in these Orders or as is otherwise agreed in writing between the parties;
(b)approaching the mother, harassing, abusing, assaulting, intimidating or threatening the mother or being within 500 metres of any premises occupied by the mother and the said children from time to time;
(c)discussing any aspect of his relationship with the mother, these proceedings or the Orders made in these proceedings with the said children or within the earshot of the said children and from permitting any other person to do so.
9.That the Independent Children’s Lawyer do:-
(a)within fourteen [14] days of the date hereof inform the paternal grandmother and the paternal aunt of the Orders made in these proceedings;
(b)within fourteen [14] days of the date hereof provide to the paternal grandmother and the paternal aunt a copy of the Legal Services Commission pamphlet on the role and responsibilities of supervisors of time spent by parents with children;
(c)within fourteen [14] days of the date hereof provide to Ms C a copy of these Orders and Reasons for Judgment; and
(d)within twenty one [21] days of the date hereof forward a copy of these Orders and Reasons for Judgment to the paternal grandmother and the paternal aunt.
10.That within twenty eight [28] days of the date hereof, the father enrol in and advise the Independent Children’s Lawyer in writing of his enrolment in the Kids Are First programme conducted by Anglicare and do complete such programme.
11.That upon compliance with paragraph 9 of these Orders and upon receipt of the advice from the father as ordered in paragraph 10 hereof, the appointment of the Independent Children’s Lawyer be discharged.
12.That all applications be removed from the pending list.
IT IS NOTED that publication of this judgment under the pseudonym Champness & Hansen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
FAMILY COURT OF AUSTRALIA AT ADELAIDE FILE NUMBER: ADF 226 of 2005
MR CHAMPNESS Applicant
And
MS HANSEN Respondent
REASONS FOR JUDGMENT
The Applications
1.There are two children of the parties, E born in January 2001 and O born in December 2003. They are thus 7 and 4 years of age respectively.
2.The father filed his Amended Application for Final Orders on 9 August 2007, seeking equal shared parental responsibility, to spend equal time with the children and that the mother return from Sydney with the children to the Adelaide Metropolitan area.
3.The mother seeks orders that the children live with her and that she be permitted to relocate to the Republic of Ireland with the children. If she is not successful in that regard, she asks that she be permitted to formally relocate to Sydney in New South Wales. The father opposes all of those applications.
Background
4.The mother was born in Ireland in May 1968 and is hence 40 years of age. The father is 43 years of age having been born in Y, Queensland in June 1965.
5.The mother came to Australia for a working holiday in January 1999. The parties met in about March 1999 in New South Wales and commenced living together in the father’s Kombi van soon thereafter.
6.Both parties were working in casual labour and travelled around Australia. In July 2000, the parties travelled throughout Europe. The mother became pregnant and the parties returned to South Australia in October 2000.
7.The parties both worked at a farm in South Australia until the birth of the child E in January 2001. The parties then travelled for a time to New South Wales.
8.In May 2002 the parties moved to a rental property in B in South Australia where both worked.
9.In October 2002, the mother took the child E with her to Ireland to visit the maternal grandmother who was at that time very ill. The mother returned to Australia in January 2003.
10.The mother became pregnant again, and gave birth to the child O in December 2003.
11.The mother separated from the father in February 2005 taking the two children with her. She lived in a safe house for a short period of approximately two weeks. The parties then resumed cohabitation and the mother returned to live with the father at the B rental property.
12.In May 2005 the maternal grandfather died. The mother wanted to take both children with her to Ireland to visit her family, but the father refused to sign the passport application for the child O. The mother therefore went to Ireland with the child E only in May 2005 and returned to Australia in June 2005.
13.On 13 December 2005 without the father’s consent or knowledge, the mother left Australia for Ireland with the children E and O. They have not cohabited since and thus were together for a period of approximately 6 ½ years.
14.The father brought Hague Convention proceedings in Ireland in early 2006 and the mother agreed to return to Australia with the children in September 2006. As an agreed condition of her return, the mother returned to Sydney not Adelaide, and remains living there with the children.
15.A Family Assessment Report dated 3 April 2007 directed to the question of the father spending time with the children was prepared by Ms C. In the preparation of this report, due to concerns Ms C had about the children coming face to face with the father at that time, there was no observed interaction session between the children and the father.
16.The father filed an interim application to spend time with the children on 30 April 2007. This application was heard on 9 July 2007 by Judicial Registrar Forbes, who dismissed the application but made an order for an expedited hearing.
17.A further assessment was completed on 5 December 2007 by Ms C, which this time involved a period of observed interaction between the children and the father.
18.Pursuant to Orders I made on 18 December 2007, the father spent supervised time with the children on two occasions prior to trial on 11 and 12 January 2008 at the Sutherland Interrelate Children’s Contact Service (“CCS”) in New South Wales. By Order made by me on 8 February 2008 at the conclusion of the trial proceedings, the father was to spend further time with the children at the CCS on up to two occasions per calendar month. I subsequently determined that it was not possible to finally resolve the matter without evidence before me as to the success or otherwise of those occasions. I made Orders on 15 May 2008 requesting that such evidence to be put before me. I received that evidence on 24 June 2008.
19.Prior to the observed interaction for the purposes of the report dated 5 December 2007, the father had not spent time with the children since they were removed to Ireland by the mother in December 2005, a period of some 2 years.
The evidence
20.Each of the parties gave evidence in support of their applications before the Court.
21.The father also called evidence from his mother, his sister and Mr P.
22.The mother called further evidence from her sister, Mr L and the father’s former wife Ms G who lives overseas and thus her evidence, by agreement, was given and taken by telephone link.
23.The Court called evidence from Ms C, an expert psychologist, who prepared two reports in the matter. The first report is dated 3 April 2007 (“first report”) and was prepared without there being any observed interaction between the father and the children. There was though a period of observed interaction between the father and the children in the preparation of the second report dated 5 December 2007 (“second report”). The parties agreed that the CCS report dated 22 January 2008 and those annexed to the Independent Childrens Lawyer’s affidavit filed 17 June 2008 were in evidence before me without the need for the authors to be cross-examined.
24.The father made a poor witness. Frequently he was not forthright with his answers, he prevaricated and avoided answering direct questions. He declined to listen to questions asked of him on numerous occasions, despite warnings from me, and spent a good deal of his time during his evidence talking over the top of Counsel and the Bench. The mother gave her evidence in a forthright, straightforward but, at times, emotional manner.
25.In areas of conflict within the evidence of the parties, I have no difficulty in accepting and preferring the evidence of the mother.
Relevant Law
26.Prior to the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 on 1 July 2006, the approach to determining a case involving the proposed relocation of a child’s residence had been settled by the High Court in AMS v AIF : AIF v AMS (1999) FLC 92-852 and the subsequent Full Court decisions of A v A : Relocation Approach (2000) FLC 93-035 and H v L (2000) FLC 93-036. There had been a more recent High Court case, namely U v U (2002) FLC 93-112, but that case did not alter the basic principles to be applied; what it did do was ameliorate the strict approach set out in A v A (supra). As was said by the Full Court in Bolitho & Cohen (2005) FLC 93-224:
“72. We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.”
27.The High Court stressed that the objective is to achieve what is in the children’s best interests. Those interests may not though be best reflected in the proposals advanced by the parties. All options that are open on the evidence (subject to procedural fairness) need to be considered.
28.In a case where there is also a dispute as to with whom the children should live there can be no dissection of the case into discreet issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be permitted (AMS v AIF : AIF v AMS, supra, per Gaudron J p.86,032). Further, the welfare or best interests of the children remains the paramount consideration but it is not the sole consideration. For example, the “legitimate interests and desires of the parent cannot be ignored” (AMS v AIF : AIF v AMS, supra, per Kirby J p.86,041). Moreover, a Court cannot require the applicant to demonstrate “compelling reasons” for the relocation of a child’s residence “contrary to the proposition that the welfare of the child would be better promoted by” maintenance of the existing circumstances (AMS v AIF : AIF v AMS, supra, per Gleeson CJ, McHugh and Gummow JJ p.86,027).
29.In A v A : Relocation Approach (supra) the Full Court set out in summary form the relevant principles to be applied as follows (p.87,551-87,553);
"In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
·The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
·A court cannot require the applicant for the child’s relocation to demonstrate ‘compelling reasons’ for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:
·It is necessary for a court to evaluate each of the proposals advanced by the parties.
·A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'.
·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
·It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
·The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.
·It is to be expected that reasons for decision will display three stages of analysis and:
1.A court will identify the relevant competing proposals;
2.For each relevant s68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;
·As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
3.On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
·The process of evaluating the proposals must have regard to the following issues:
a) None of the parties bears an onus:
· In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b) The importance of a party's right to freedom of movement:
· In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s92 of the Constitution, where applicable.
· In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
· In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
· In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.”
30.The High Court in U v U (supra) doubted though that the strict application of this three stage process was always appropriate. Gummow and Callinan JJ said this, at p.89,089:
“We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discreet and in the suggested order may be another question. But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s.68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child’s best interests.”
31.As stated previously, the Family Law Amendment (Shared Parental Responsibility) Act 2006 came into force on 1 July 2006, introducing significant changes to the determination of children’s issues. The objects and principles are now stated in Section 60B in the following terms:-
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
32.Whilst now found in a different section, one thing has not changed and that is, that in determining a dispute over children, the best interests of those children are to be regarded as the paramount consideration. That principle is now found in Section 60CA which in turn guides the Court to consider factors enumerated in Section 60CC. It directs the Court to analyse primary and additional considerations which I do later in these reasons.
33.Other new relevant provisions of the legislation include the presumption of equal shared parental responsibility which flows from Section 61DA and the requirements of Section 65DAA, which requires the court to consider whether it is in the best interests of the child and reasonably practicable for the child to spend equal time with both parents, or if not, substantial and significant time, where the parents are to have equal shared parental responsibility.
34.The Full Court has recently addressed the issue of relocation following the Shared Parental Responsibility Amendments. In Morgan and Miles [2007] FamCA 1230 (delivered 17 October 2007), Boland J, in hearing an appeal from interim orders of a Federal Magistrate, discussed whether the Act now requires different principles to be applied in determining a parenting application when one party wishes to relocate. Her Honour stated at paragraph 72 of her reasons:
“The Act does not treat “relocation” cases as a special category of parenting orders. In that respect the amending Act has effected no change to the law.
….
The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.”
35.At paragraph 80 her Honour outlined:
“80. It follows from my exposition of the legislation, that earlier core principles:
-that the child’s best interests remain the paramount but not sole consideration;
-that a parent wishing to move does not need to demonstrate “compelling” reasons;
-that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
-the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
81.What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.”
36.The Full Court also addressed the approach to be taken by the court when determining relocation applications in Taylor and Barker [2007] FamCA 1246 (delivered 19 October 2007). The reasons are contained in the judgment of Bryant CJ and Finn J, with whom Faulks DCJ agreed with respect to their Honours’ analysis and application of the law.
37.Bryant CJ and Finn J stated at paragraph 60 that “a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA.” The court outlined that in determining cases involving a relocation proposal, the legislation gives no guidance as to the “appropriate order” in which to consider the provisions of Part VII of the Act. Their Honours indicated, at paragraph 62, that the starting point was s 60CC:
“However given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.”
38.The Full Court indicated it is then necessary to consider pursuant to s 65DAA whether it is in the best interests of the child to spend equal time or substantial and significant time with each parent, without regard to the relocation proposal. Their Honours pointed out that the “commonsense construction” of s 65DAA makes it clear it is only necessary to consider if equal or substantial and significant time is “reasonably practicable” if the Court has already concluded such is in the best interests of the child (at paragraph 74).
39.The next step is to evaluate the differing proposals of the wife and husband and to consider whether equal or substantial and significant time would be reasonably practicable if the party is permitted to relocate (at paragraph 79).
40.The Full Court concluded at paragraph 81:
“81.We acknowledge that his Honour’s approach to the application of s 65DAA, which we have endorsed, does require that the matters which the court has to consider under that section (being “equal time” or “substantial and significant time”), must initially be considered without regard to any relocation proposal which might also be before the court. However any relocation proposal will then have to be balanced against the option of “equal time” or of “substantial and significant time” if either of those options has been found to be in the child’s best interests, with the outcome normally emerging from a consideration of whether such an arrangement was “reasonably practicable”.
82.We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter, and that at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child’s living arrangements.
83.However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.”
41.To summarise, the Full Court in Taylor and Barker (supra) endorsed the approach taken by the Federal Magistrate in the determination of the relocation proposal in question, which was to:-
·Consider and evaluate the factors in s 60CC
·Consider whether it is the child’s best interests to spend equal or substantial and significant time with each parent pursuant to s 65DAA, without regard to the relocation proposal
·Evaluate the proposals of the parties. Any relocation proposal will have to be balanced against the option of “equal” or “substantial and significant time”, if either has been found to be in the child’s best interest, and will include a consideration of whether the arrangement is “reasonably practicable” if relocation is permitted.
42.It would seem apparent in light of the new emphasis of the legislation provided in s 65DAA that the Full Court has moved away from the previous position in AMS v AIF : AIF v AMS, supra, and A v A : Relocation Approach (supra) that relocation was not to be considered as a discrete issue.
43.Their Honours made it clear, however, that a “failure to follow what we see as the logical approach would not lead to appealable error unless such error arose from a failure to give adequate reasons or to have regard to the matters which the legislation requires must be considered.” (at paragraph 63).
Relevant factors
44.In my view the evidence presented in these proceedings on the relocation issue and issues of credit are best discussed within the context of a consideration of the factors requiring my attention pursuant to Part VII of the Act, being obliged as I must to make my decision on what is the appropriate outcome in this case by a consideration of the best interests of E and O. In fact that decision “must regard the best interests of the children as the paramount consideration” (Section 60CA).
Section 60CC
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
45.Some guidance is found in the legislation as to what might constitute a “meaningful relationship”. That can be found in the Objects and Principles outlined in Part VII of the Act. In particular Section 60B(1)(a) states one of the objects as:-
“ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.”
46.As to the principles enumerated in Section 60B(2), the first three appear the most relevant in the enquiry as to what constitutes a “meaningful relationship” and they are:-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents share duties and responsibilities concerning the care, welfare and development of their children;
47.Whether or not a “meaningful relationship” can be enjoyed by the father and the children in the event that I permit the mother’s relocation with the two children to Ireland, or in the alternative Sydney in the State of New South Wales, will depend to a large degree upon the quality of the existing relationships, the willingness of the parties to maintain that relationship and whether different forms of time spent by the father with his two children and different forms of communication can adequately ensure the maintenance of that relationship. I examine those issues in greater detail when considering the additional considerations set out below.
(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
48.This issue looms large within the determination of these proceedings. I am satisfied that the mother was the victim of violence at the hands of the father and for many years suffered his controlling and oppressive behaviour. Apart from acts of physical violence, some of which are detailed below, I am satisfied that in many respects the father sought to control the mother’s life and to dictate what she could and could not do. He was highly suspicious of her activities outside of the home and even imposed rigid time limits and transport arrangements on her school and shopping trips. He became angry if she was late or delayed leaving because she was chatting to another parent. He kept the front gates to their property locked so that she could not leave in the car without his knowledge or agreement. He screened her mail, frequently stood over her whilst she was speaking on the telephone and reviewed her SMS text messages. He threw things at and near her. He was prone to fits of rage, shouting, abuse, dominance, erratic behaviour, manipulation and derogatory references. He used marijuana regularly and was guilty of moody and anti-social behaviour. He resented a visit by the mother’s sister and Mr L in August 2003 and behaved poorly towards them and towards the mother and the children in their presence. The father’s refusal to allow the mother to take O to Ireland for her father’s funeral is another dramatic example of the father’s controlling, threatening behaviour. There was no plausible reason proffered by the father for his refusal.
49.Whilst her own evidence in that regard was compelling, it was corroborated in many respects.
50.Annexure “MMH1” to the affidavit of the mother filed on 31 January 2008, is a copy of some notes of the mother’s general practitioner Dr N. It records that on Monday 20 December 2004, Dr N saw the mother. She presented as tearful and with multiple bruising to her shoulder, arms and thigh. He also recorded some tenderness in her cheeks and abdomen. The history provided by the mother to Dr N at that time is consistent with the mother’s evidence that she experienced an assault at the hands of the father on the preceding Friday. I am satisfied that the assault was a particularly brutal one in which the mother was shoved, pulled, slapped and had a pram thrown at her abdomen. In his evidence, the father offered no alternative explanation as to how those injuries may have occurred, despite acknowledging that he did not think that the mother had fabricated them.
51.Annexure “MMH2” to the mother’s said affidavit is a letter from the Central Eastern Domestic Violence Service dated 18 July 2006 in which it records that the mother was a client of the Western Domestic Violence Service between 16 February 2005 and 8 March 2005. The letter records the mother reported a history of violence and intimidating and threatening behaviour by the father, which is consistent with the mother’s evidence given to this Court. The father’s implausible evidence on this period also lends credence to the mother’s claims. He said that the mother went to stay in the safe house because he had refused to sign O’s passport application.
52.In May 2005, the mother’s father died in Ireland. Understandably, the mother wanted to be with her family at that time. The father refused to sign a passport application for O and refused to allow him to attend in Ireland with the mother and E.
53.Seemingly by coincidence, both parties had arranged appointments at the Legal Services Commission in the city on 7 March 2005. It was the father’s contention that on the telephone the night before whilst the mother was resident at the domestic violence safe house, the parties agreed to meet in the city, have breakfast together with the children and then attend at the Legal Services Commission offices together. The mother said in her evidence that she was very surprised to see the father when she attended for her appointment at the Legal Services Commission at 10.00 am. She said the children were happy to see the father and so she agreed to have breakfast with him.
54.Exhibit 6 constitutes a record of the father’s appointment at the Legal Services Commission. After referring to the fact that the mother was alleging that he was guilty of domestic violence, he acknowledged that she had been resident in a safe house.
55.Exhibit 7 constitutes the notes taken at the mother’s appointment on that same day. It is confirmatory of her evidence that she had been subjected to a long history of violence including emotional abuse. Those notes too confirm that the mother had been resident in the domestic violence refuge leading up to the appointment. Significantly too, it confirms her version of the previous night’s telephone call. It indicates that during the interview she became concerned about the father “snatching” the children and some office staff were despatched to check on the children.
56.At paragraph 40 of his affidavit filed on 25 October 2007, the father suggests that the parties agreed to reconcile that day in that they collected all of the mother’s belongings and the children’s belongings from the safe house and then drove to the former matrimonial home premises. It was the mother’s evidence that she had simply agreed to allow the father to spend some time with the children before she returned to the safe house. I believe the mother’s evidence.
57.Exhibit 7 tends to confirm the mother’s version of events in that she sought and was given advice about securing “residence” orders for the children and some supervised “contact”. Exhibit 7 records that the mother “cannot negotiate herself due to the violence.”
58.The mother alleges, and I accept her evidence in this regard, that upon the return to the former matrimonial home property, the father indicated that he was not going to permit the children to leave thereby forcing her to take the decision that she had to remain, despite her intentions of returning to the safe house. She said she felt scared, helpless and trapped. The proprietors of the safe house became so concerned that the mother had not returned to their premises that they arranged for the police to call at the former matrimonial home premises. Again confirmation of that fact in support of the mother’s evidence is seen in Annexure “MMH3” to the mother’s affidavit filed 31 January 2008. It is a letter from the police indicating that they “attended an incident of domestic violence”. It was the father’s evidence that everything was “rosy” once they arrived back at the home although he then admitted that the mother’s attitude changed when the social worker telephoned and when the police called. After some persistent cross-examination he finally admitted that the mother had wanted to leave that day and did not wish to remain. He admitted that he had told the mother that she could leave but that the children were not “going anywhere”. This is another extreme example of his controlling behaviour of which the mother complains. Further confirmation of the mother’s version of events is seen at page 2 of Annexure “MMH2” to her said affidavit, that annexure being the letter from the Central Eastern Domestic Violence Service of 18 July 2006:-
“Towards the end of her stay, [the mother] visited with her partner to discuss their situation. She later disclosed to her worker during a telephone conversation that she was unable to leave the home to return to her supported housing property as [the father] would not let her leave with the children.”
59.It was the mother’s evidence that the events of those few weeks, following on many years of violence and abuse, were the catalyst for her decision to flee to Ireland later that year. As she said, she had on this occasion tried to “do it the right way” but had failed. The father was always going to find her and secure her return by whatever means. She felt she had run out of options in a friendless environment.
60.Exhibit 9 is a further letter from the Domestic Violence Crisis Service dated 6 February 2008. It records a number of conversations with the mother in which she makes allegations of violence and being “imprisoned in the house” which is entirely consistent with the evidence given by the mother. Significantly too, that Exhibit was not received, sighted by the mother, nor tendered until after the mother had concluded her evidence.
61.I am satisfied that some of those incidents of violence by the father were witnessed by the children. In her first report at page 5 (fourth paragraph), Ms C records:-
“When asked about what she saw she said ‘I didn’t really see anything, but I only saw one thing, when Dad threw my bike at Mum’.”
At paragraph 5 on the same page, she also reports:-
“She then went on to discuss a memory of her father throwing coffee at a mirror and cupboard door, and indicated that this was something that she heard and saw.”
At times the children were the victims. In her second report at page 6 (second paragraph), Ms C states:-
“Other comments volunteered by [E] were that her father used to have long and ‘dreadlocky’ hair that was ‘disgusting and tangly’. She also commented that her father ‘seemed a bit nicer’ than she remembered. She said that it was okay when he was at work when they all lived together, but quietly reported that when he was home he used to ‘get me to do work’ and ‘hit me with a wooden handle thing’ (demonstrating hitting with an object by raising her hands together). (There were no signs of overt anxiety as she discussed this).”
Ms C was satisfied E was describing her own personal experience of, and witnessing, the father’s violence.
62.The mother’s evidence of the father’s controlling behaviour and emotional abuse, and the fact that it was witnessed on a number of occasions by the children, was confirmed by the mother’s sister, both in her affidavit filed on 1 March 2007 and in her oral evidence. She described one incident when they missed the train home from shopping. The mother became panicky and worried about the father’s reaction when they got home late, apparently with some justification as when they arrived the father grabbed O from the pram and called the mother a “cunt”. The mother’s sister was an impressive and forceful witness.
63.Further corroboration of the evidence of the mother is found in the evidence of Mr L, again both in his affidavit filed on 5 March 2007 and in his oral evidence. Making his evidence more impressive is the fact that he was in a relationship with the mother’s sister in 2003, but has not been so for some years now. The father’s poor behaviour, demeanour and treatment of the mother and children clearly made such an impression upon him that he willingly gave evidence many years later in support of the mother’s application.
64.Ms G is the father’s former wife. They were together for some four years between 1989 and 1993. Whilst it is many years ago now, Ms G, resident in Europe, gave evidence by affidavit filed 23 November 2006 and by telephone link, of significant violence, possessiveness and jealousy that she experienced at the hands of the father including:-
64.1.being knocked unconscious by an elbow to the face by the father thereby sustaining significant injury (paragraphs 12 and 13);
64.2.being struck regularly (paragraphs 18, 26, 27 and 30);
64.3.having her index finger broken by the father (paragraph 20);
64.4.being threatened with a knife (paragraph 29);
64.5.being dragged by her hair (paragraph 30).
65.Again, she would appear to have no ulterior motive or agenda in agreeing voluntarily so many years later to give evidence on behalf of the mother in these proceedings, a woman she does not know and has never met. Ms G was not challenged in her evidence (paragraphs 34 and 35 of her affidavit filed on 23 November 2006) that the father had telephoned her and threatened to “do something” to the mother in the event that she gave evidence in support of the mother. The father’s evidence in cross-examination of what was said during that telephone conversation was entirely implausible. He said that he asked Ms G why she had said the things she did in her affidavit. He suggested that she told him she did so as “a bit of a joke” and that she laughed. I do not believe him. Nor did the father challenge Ms G’s evidence that she experienced violence at his hands.
Additional considerations
(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 wishes;
66.In her first report, Ms C indicated a number of occasions when E expressed her views on the topic of both the violence by the father (as indicated above) and about seeing her father:-
Page 5
“When [E] was asked her view about seeing her father, initially in a supervised setting, she indicated she would feel ‘alright’ about this. However, she then said that she did not want to see her father but was unable to give reasons for feeling this way. [E] demonstrated ambivalence and confusion while discussing these matters, but she did not demonstrate overt signs of distress.”
and a little later:-
“[E] then described that her mother, her brother and herself are ‘like a triangle’ (i.e. all connected) and they all do not want to see her father.”
“The writer asked if anything worried her about seeing her father and she said that she worried about her father ‘fighting me ([E])”. When asked why, she said ‘I get puzzled about that in my head’. She then went on to discuss a memory of her father throwing coffee at a mirror and cupboard door, and indicated that this was something that she heard and saw.”
67.Ms C, in her second report, provides some insight into the children’s views:-
Page 4
“The writer settled the children into play and spoke generally to them about their feelings about the impending visit with their father. [E] and [O] both reported that they felt ‘good’ about seeing their father, but could not give any specific information about what they were looking forward to. Neither showed any obvious signs of anxiety, although [O] was quiet. However, he soon settled into playing a board game with the writer and [E].”
68.After some initial reluctance on the part of the children, particularly by O, the children played with the father who struggled emotionally to deal with the situation. However, at the conclusion of the period Ms C reports:-
Page 6
“[E] reported that it had been ‘good’ seeing her father. She said she had enjoyed playing ‘Connect 4’ and getting a mobile telephone. [O] also indicated that he had enjoyed the visit, but when asked what he liked in particular he said ‘I liked when I went on the aeroplane.’ Both children said that nothing about the visit had made them uncomfortable.”
And a little later
“[E] commented to her mother ‘He seemed nicer than before’.”
69.Given that O was only two years of age at the time that his parents separated, it is not surprising that he was significantly more reserved in his conduct and declined to express any positive views about seeing his father. As a consequence of Ms C’s second report, on 18 December 2007, I ordered that the father spend supervised time with the children at CCS.
70.E also expressed a view on the issue of relocation. Ms C records at page 5 of her first report:-
“[E] spoke positively about her life in Sydney, but indicated a preference for living in Ireland, where she reported she has many friends, really liked the school, and that her family, including her cousins, lived close by.”
71.Before me by consent during the trial was a report from the CCS dated 22 January 2008. It recorded observations of two visits the father had with the children on 11 and 12 January 2008. On the first occasion there was considerable anxiety evident in the father and the children demonstrated some understandable initial reluctance but then became a little more at ease as the period progressed. However, at the conclusion of the period, there was no indication by the children of any views that they might have about seeing more of their father. The visit ended with an awkward period of shaking hands.
72.The second visit on the following day records that the children more readily engaged in play activities with the father but that it ended poorly with neither child agreeing to shake the father’s hand.
73.The further CCS reports I received on 24 June 2008 marked a noticeable improvement in the children’s reactions to their time spent with their father, although there were some appalling examples of conduct by the father which again highlighted his lack of a child focussed approach and general shortcomings as a parent. I deal with those later.
74.By the date of the Independent Children’s Lawyer’s affidavit filed on 17 June 2008, the father had spent another 8 supervised occasions at CCS with the children from 22 February 2008 to 31 May 2008. In general, the children responded increasingly well to their father as the periods progressed. Their sessions were reported as having been enjoyed by the children although the father found great difficulty in responding to the children’s (particularly O’s) need for physical contact and affection. It was not until the last occasion on 31 May 2008 that he hugged and kissed the children goodbye. Overall though the evidence indicates a developing and increasingly comfortable relationship between the children and their father.
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
75.The mother is clearly the most important person in the children’s lives. She provides a loving, close and nurturing environment for the children. Her strong unfulfilled and frustrated desire to take the children to live with her family in Ireland has not compromised her parenting in any way. The father has consistently described the mother as “a good mother”.
76.In her first report, Ms C reports very favourably upon the mother’s relationship with the children:-
Page 6
“In her interviews, [E] indicated a close and supportive relationship with her mother, nominating her as the person that understands her the most, and the person that she most wants to be with when she is sick or sad. This was consistent with comments made by [the mother] that indicated close relationships between herself, [E] and [O].
An observation session of [E] and [O] interacting with their mother was held. The children were well behaved throughout, complying with requests made by [the mother]. They engaged readily in play with their mother, sitting and calmly doing colouring and craft activities. For her part [the mother] was affectionate and supportive in her interactions, and demonstrated her ability to be attuned to her children’s emotional states.”
The mother’s sister and Mr L both gave evidence about the close relationship between the mother and the children.
77.Similarly, the various reports of the CCS confirm the close, loving and comfortable nature of the relationship between the children and their mother.
78.The father’s relationship with the children is very much more problematic. Certainly, in part it is not his fault that he does not enjoy a closer relationship with the children. The mother’s unilateral action in removing the children from Australia in December 2005 played a significant part in that situation. She did not return to Australia with the children until September 2006 and then, by agreement with the father, she took up residence in Sydney, not Adelaide. It was not until Ms C’s observed interaction of the father with the children on 21 November 2007, almost two years later, that the father saw his children again. Even after that, as a consequence of Orders made by me on 18 December 2007, the father only saw the children on two more occasions prior to the trial. It was thus especially difficult for the father to relate to his children given that lengthy estrangement, particularly as O was only 2 years of age when he last saw his father.
79.However, the father also brought a good deal of that situation upon himself. His violence, intimidation and psychological and emotional abuse as outlined above, in my view, played a far more significant role in the deterioration of the father’s relationship with his children, than any other event or events.
80.Ms C’s reports and the reports from the CCS suggest that a meaningful relationship between the father and his children will take some time to develop fully. It will also require a far greater input from the father and far greater insight into the effect of his conduct upon the children and their needs rather than his own, to enable the children to engage in more meaningful relationships with him.
81.Both Ms C and the CCS record the father’s extreme difficulty, and at times inability, to relate to the children in an appropriate child focussed manner. Whilst it is understandable that he was experiencing some anxiety in seeing the children in the early sessions and in worrying about how they would relate to him given the lapse of time since he had last seen them, despite significant inputs from Ms C and the staff at the CCS, he struggled with those early occasions and with the need to think of his children first.
82.As I indicated above, some very healthy progress has been achieved in the latter few CCS visits. The children appear to be enjoying their supervised times with their father and he is slowly learning to respond more affectionately and in a more child focussed way with them. I am satisfied that a sound and sustainable relationship between the children and their father is well on the way to being established and that it can be consolidated and enhanced over the next few months and maintained subsequently by various forms of communication and some physical contact.
83.However, the latter CCS reports also indicate just how much the father still has to learn about proper parenting. He either refuses or fails to understand how damaging and inappropriate his conduct was on 18 March 2008 in demanding that the children:-
“tell your mum you want to live in Adelaide, give her a hard time and tell her.”
His language in front of the children on another occasion (28 April 2008) was atrocious, where he is quoted as saying:-
“The Father said to the Contact Worker that he had a car catch on fire once and it was a ‘fuckin nightmare’. He went on to say it had taken a couple of years to repair the engine and it took ‘fuckin ages to work out where the wires went”. The Contact Worker made no comment to the Father’s conversation. [E] was sitting next to the Father at the time, she did not respond to the language. …”
84.It was Ms C’s evidence that only supervised time between the father and the children could be supported presently. The father needed to demonstrate a clearer understanding of the impact of his violent and controlling behaviour and of appropriate standards of parenting before the Court should consider discharging the requirement for supervision.
85.The mother is able to offer to the children significant extended family relationships in Ireland. She has only one relative, being an aging aunt who is in Sydney. In Ireland she has four brothers, two sisters and her 74 year old mother. The mother made a few trips to Ireland, once with just E and subsequently with both children when she left the country without permission. The children spent some 9 months in Ireland at that time in close company and contact with the mother’s extended family, including two cousins aged 8 and 7 years. They lived with the maternal grandmother on her farm in Ireland. The children have had regular telephone communication since. I am satisfied that the children enjoy a close relationship with the mother’s sizeable extended family.
86.The father does have extended family members but has had little to do with them over the years. Both the paternal grandmother and the father’s sister reside in Y in Queensland. The paternal grandmother has never seen the children and nor has the father’s sister. In fact the father has not seen either his mother or his sister for some nine years. These facts do not speak well of the father’s capacity to maintain a sense of family for the children, nor does it indicate that there is in fact a close extended family on the paternal side. In fact I accept the mother’s evidence that she was the one who supported the relationship between the children and the paternal side of the family, rather than the father. Her evidence in that regard was supported by the paternal grandmother who described the mother as “a lovely lady” and said that the mother always kept her “up to date” with the children prior to December 2005. I am satisfied from the mother’s evidence that she will promote those relationships again in the future. She proposes, in the event of relocation to Ireland, that the children spend some time with the paternal grandmother and the paternal aunt in Queensland.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
87.This factor is a significant issue in this matter. If I cannot be satisfied that the mother can demonstrate the willingness and ability to facilitate an ongoing relationship between the children and their father, then it may well be the death knell of her application for relocation to Ireland.
88.There is much history to suggest that the mother has fallen well short of her obligations and responsibilities in this regard. On 13 December 2005, without permission and without the knowledge of the father, the mother took the children and fled to Ireland. She only returned after the father brought proceedings in Ireland pursuant to the Hague Convention. Eventually the mother and the children returned to Australia in September 2006. The agreement reached to achieve the mother’s return was to the effect that she could reside in Sydney where she has an aging aunt. That aunt has provided considerable support for the mother. It was still quite a while though before the father got to see the children and that was within the context of an observed interaction with Ms C on 21 November 2007. As a consequence of Ms C’s second report I ordered that the father spend some supervised time with the children at the CCS. He spent two occasions with the children on 11 and 12 January 2008 and then at the conclusion of the evidence and the trial proceedings, spent further regular time with the children pursuant to Orders I made on 8 February 2008. Since those latter Orders, the father has spent a further 8 periods with the children.
89.On 24 June 2008 I received further evidence as to the outcome of those occasions of time the father spent with the children. That report from the CCS indicates an improving relationship with the children. I have made more detailed findings on that developing relationship earlier in my reasons.
90.However, as indicated above, I accept the mother’s evidence as to the violence and controlling behaviour to which she was subject at the hands of the father and which the children witnessed prior to her departure from Australia in December 2005. Whilst she was wrong to remove the children from Australia without the father’s or the Court’s permission, the father’s violent and controlling behaviour speaks volumes of his contribution to that event and of his lack of insight into the effect of his behaviour upon the children all of which prejudiced his ability to maintain a continuing relationship with his children. In that regard, as indicated earlier, some progress has been made and is continuing to be made.
91.If the children remain in Australia with the mother, then clearly it will be easier in a geographical sense, and cheaper for the father, to spend time with the children. In the event that I permit relocation to Ireland, the mother and her family have proposed a number of ways and means by which the children can maintain a relationship with their father, namely:-
91.1.Personal contact for a total period of between 4 and 6 weeks spread over two occasions per annum in Ireland or Australia with the mother’s family paying one-half of the return air fares for the father on each occasion.
91.2.Communication by telephone and email.
91.3.Provision of videos and photographs of the children.
91.4.Letters, cards and gifts.
91.5.Access to information about their schooling and health.
92.The mother acknowledged in her evidence that it would be difficult for the father to come to Ireland to see the children. It would be a difficult and alien environment for him, especially given her insistence that any time that he spends with the children be supervised. In relation to any visits to Australia by the children to see their father, she indicated she was content for either of the father’s mother or sister to supervise the father’s time with the children.
93.On a number of occasions in her affidavits and oral evidence, the mother proffered the father’s violence towards her and her fear of him as being the reasons why she had not facilitated unsupervised time between the father and the children. I accept her evidence in that regard. Her experiences at the hands of the father in terms of his violence and emotionally abusive and controlling behaviour provides more than an adequate explanation for her cautious and protective approach. As a consequence of his violence and controlling behaviour towards the mother, the father is effectively the author of his own destiny in that regard. He has created an environment where it has been extremely difficult to facilitate a relationship between himself and the children.
94.Despite this, to the mother’s credit, Ms C in her second report records the mother actively encouraging the children to enter the period of observed interaction with their father and providing support for the children to enable them to do so. She sent a camera with the children so that they could have their photographs taken with the father. Her recent willingness to abide the Orders of this Court in terms of the supervised times that the children have spent with their father, whilst possibly explained by her desire to present herself in the best possible light to the Court, I am satisfied also indicates a willingness on her part now to facilitate and encourage a close and continuing relationship between the children and their father in safe circumstances.
95.In his oral evidence, the father acknowledged that he had had regular telephone and SMS contact with the children of late, all facilitated by the mother. He had also engaged in a number of pleasant telephone exchanges with the mother. All this bodes well for the further development of the father’s relationship with the children, despite issues of distance.
96.The mother’s promotion of the children’s relationship with the paternal extended family members prior to December 2005, despite the father’s failure to do so, also confirms her capacity and willingness to promote the children’s interests and their relationships with the father and important family members. It was the paternal grandmother’s evidence and the paternal aunt’s evidence that it was the mother who forwarded photographs of the children and arranged telephone contact. They said the father never did. The mother proposes that, in the event of a relocation to Ireland, the children spend their time with the father at the paternal grandmother’s unit in Queensland. The paternal grandmother said she would love to see them and has room for the father and the children to visit. The paternal aunt was also promoted by the mother as a suitable supervisor.
(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;
97.I am satisfied that the effect upon the children of a move to Ireland will be a beneficial one. The accommodation and physical and emotional support on offer and available to the mother and to the children in Ireland, significantly outweigh that available to her and to the children in Australia. Her only relative in Australia is an aging aunt in Sydney. She has never received nor had offered to her any nurturing or support from paternal extended family members. The father’s attitude and approach to the mother, and hence consequentially to the children, has been anything but nurturing and supportive. His conduct has been destructive of the mother’s and children’s emotional stability and of the children’s relationship with him. Whilst now being rebuilt through a process of supervised visits, I am satisfied on the evidence that it would likely be some time yet before it was appropriate that he had regular unsupervised time with them.
98.Whilst it would be inappropriate and improper for the mother to profit from her illegal actions in removing the children from Australia in December 2005, it is the children’s best interests which must provide the focus for the Court’s attention. As a consequence of their time in Ireland, the children have become very familiar with their surrounds in Ireland, their extended maternal family members, and in E’s case, her school in Ireland. Annexure “MMH-04” to the mother’s affidavit filed 31 January 2008, is a letter from the E’s school principal. It speaks in glowing terms of E’s assimilation into that school and of her academic and social progress. Two of her cousins attend the same school.
99.The only person of significance from whom the children would be separated by a move to Ireland, is the father. Through the supervised visits conducted since January 2008, that relationship has become increasingly important to the children as they enjoy no relationship at all with any extended paternal family members. In circumstances where the children’s relationship with their father will be built upon over the next few months and maintained through a variety of means of communication and regular visits each year, I am satisfied that any change in the children’s circumstances from Australia to Ireland would be beneficial rather than detrimental.
(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;
100.The mother’s proposed forms of communication, namely cards, letters, email, telephone calls, webcam and the like appear easily affordable to the mother. I accept her evidence that she can expect to receive substantial support and assistance from her large family in Ireland. Those forms of communication can be very effective in maintaining relationships between parents and children. I am satisfied that the mother will do all that she can in that regard and make those facilities available to the children in order to enable them to maintain their emerging relationships with their father.
101.The father is presently a man of limited means. His business produces only modest returns, although he did say in his evidence that he expects to achieve a turnover of $100,000 per annum gross within the next two to three years. It was his estimate that that would return him at least $30,000 per annum net. He acknowledged in his evidence that he could afford to make arrangements to see his children.
102.The mother is a member of a large and close knit family in Ireland. She is one of seven children and her siblings and mother all reside in Ireland within a 10 mile radius of each other. I accept the evidence of the mother and her sister that they all provide support for one another in whatever way it is needed, including financial. The maternal grandmother owns an eight roomed house on a farm in Ireland and the mother has been offered the opportunity to build on that land. One of her brothers is a builder who has offered his assistance and has also offered her employment. The mother’s family have offered to pay half the air fare costs on two occasions per annum to enable the father and the children to maintain their relationship. I am satisfied they can afford to do so and in fact contribute a little more. The mother’s sister has made the trip from Ireland a number of times before and again to support her sister during the trial proceedings before me. Various members of the family have shown a capacity and a willingness to travel internationally. I do not find this to be an issue which would inhibit the mother’s relocation with the children to Ireland.
(f)the capacity of:
(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;
to provide for the needs of the child, including emotional and intellectual needs;
and
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
103.In my view it is appropriate to deal with these two sub-sections together as they present similar issues for my consideration and determination. The mother’s capacity to appropriately parent the children and provide for all of their needs in whatever form, was not questioned during the trial. The father readily acknowledged that the mother was an excellent parent to the children. The children have thrived and will thrive in her care. The report from E’s School (Annexure “MMH-04” to the mother’s affidavit filed 31 January 2008) provides some evidence of the mother’s capacity to cater for her children’s intellectual and educational needs.
104.The father’s capacity in many relevant areas of parenting though is a different question entirely. As I indicated earlier, I am satisfied that he subjected the mother to a number of incidents of violence and she experienced at his hands significant emotional abuse and controlling behaviour. The children witnessed some of the acts of violence and were themselves the subjects of the father’s emotionally demanding ways. His conduct in that regard over a lengthy period of years, reflects poorly on his capacity to recognise his children’s emotional needs and their heavy dependency upon their mother as their primary attachment figure and principal carer. Evidence from the CCS indicates that he is in the throes of repairing that relationship. The children are enjoying seeing him in that supervised environment but I am satisfied it will be some time before the father is appropriately equipped emotionally to cater for his children’s needs. As I stated earlier, even in recent times at and around his CCS visits, he has placed the children in the centre of the dispute. Not only has he failed to shield the children from the dispute, but by word and action has actively engaged them in it. Further, he has declined to acknowledge his violence and controlling behaviour in the face of some quite clear evidence that he was guilty of same. He has offered no apology to the mother for same and indicates no remorse. In her evidence, Ms C said that the father showed no insight into the children’s needs nor gave any sign he could understand what the children had been going through. His recent actions and words at the CCS demonstrate that he has either still not learned or does not care.
105.However, the children’s positive reactions to seeing their father, both at the very early stages in their observed period of interaction in the presence of Ms C on 21 November 2007, and subsequently at the CCS visits, indicate that the father is an important person in the children’s lives and it will be important to maintain their relationship with him whatever the outcome of these proceedings.
(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;
106.The mother is Irish. The children have through their mother been exposed to their Irish heritage and culture. They have experienced life in Ireland and experienced additional significant exposure to their Irish culture through their extended maternal family as indicated in my findings in relation to sub-paragraph (e) above.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
107.This sub-section is not relevant to my consideration.
(j)any family violence involving the child or a member of the child's family;
and
(k)any family violence order that applies to the child or a member of the child's family; if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
108.I have already dealt with the issues that arise pursuant to these sub-sections when dealing with the primary considerations which arise under Section 60CC.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
109.It is my view that the evidence suggests that little of relevance emerges for my consideration pursuant to this sub-section. If the mother is permitted to relocate and did not comply with Orders of the Court, then the father may well institute further proceedings to enforce his entitlement. However, I am confident that the mother will abide any Orders of this Court. I accept that she now well and truly recognises the importance of the maintenance of a relationship between the father and the children provided that relationship is maintained in a safe and secure environment. By bitter experience, she further understands the consequences of failing to abide the law.
(m)any other fact or circumstance that the court thinks is relevant.
110.No additional matters arise for my consideration.
Section 60CC(4)
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfill, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
111.Nothing new emerges for my consideration pursuant to this sub-section. I have dealt with the issues surrounding the mother’s flight to Ireland in December 2005 without permission, authority or the knowledge of the father. That exercise significantly inhibited the father’s capacity to maintain a relationship with the children. However, as discussed in detail earlier, the father’s violent and domineering behaviour also contributed to the temporary loss of his relationship with his children.
112.The father has done very little to maintain the children financially. He is paying the minimum amount of $30 per month in child support.
113.“Major long term issues” is defined in Section 4 of the Family Law Act in the following terms:-
“’major long-term issues’ in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(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.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.”
114.Clearly a relocation of the children to Ireland would significantly inhibit the children’s capacity to spend time with their father and as such would constitute a major long term issue for the contemplation of the parties. It would be a particular challenge to the parties to conceive ways in which the father’s participation in making decisions about major long term issues in relation to the children could be facilitated should he retain that capacity.
Section 61DA
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
115.In neither her Response filed on 18 October 2006 or her Outline of Case document, did the mother seek Orders for sole parental responsibility for the children. In her Response she sought to have “parental responsibility for their day to day care”.
116.In his amended Application for Final Orders filed on 9 August 2007, the father seeks the maintenance of the presumption, namely that the parties have equal shared parental responsibility for the children. He though also seeks an Order similar to that being pursued by the mother, namely:-
“3.That each party have sole responsibility for making decisions about other aspects of the care, welfare, development and parental responsibility of the children on a day to day basis during periods when the children are living with either of them.”
It is not though necessary that I make such an order as that is the effect of Section 65DAE of the Act which states:-
(1)If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a)has parental responsibility for the child; or
(b)shares parental responsibility for the child with another person;
about decisions that are made in relation to the child during that time on issues that are not major long term issues.
(2)Subsection (1) applies subject to any provision to the contrary made by a parenting order.
117.I am satisfied on the evidence though that the presumption should not stand and that the mother should have sole parental responsibility for the children. I have previously canvassed in detail the evidence which supports the abandonment of the presumption, specifically as to the “family violence” (Section 61DA(2)(b)) perpetrated by the father upon the mother and witnessed by the children.
118.I am further satisfied that it is not in the children’s best interests (Section 61DA(4)) for the presumption to stand. In all respects, bar her flight to Ireland with the children, the mother has demonstrated a vastly superior parental capacity than has the father. As I have outlined in my analysis of the provisions of Section 60CC, she has attended to all of the children’s relevant needs, often in the face of appalling conduct by the father.
Section 65DAA
Equal time
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parent’s current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
119.Given my determination that it is not appropriate for the presumption of equal shared parental responsibility to stand, it is not necessary for me to consider the provisions of this Section. However, even if I had determined it differently in relation to the presumption, the evidence does not support an arrangement whereby the children spend equal time with the father and the mother. It would not reflect the children’s best interests for them to spend half of their lives with their father, given that they spent so little time with him recently and given that they are still in the process of rebuilding their relationships with him. Shared care was emphatically not supported by Ms C.
120.In any event, by the conclusion of the trial, this was recognised by the father and he instructed his Counsel to abandon his application for shared care.
Assessment of parties’ competing proposals
Factors in support of relocation to Ireland
121.The mother is Irish. She was born in Ireland in May 1968 and, apart from some travelling, spent the first 31 years of her life in Ireland. She moved to Australia in January 1999.
122.The children are part Irish. They have experienced life in Ireland. E spent almost a year of schooling in Ireland. They have had quite a deal to do with their extended maternal family members. Numbered among them are four uncles, two aunts, cousins and a grandmother. Clearly, they would have a far greater opportunity to explore that culture in depth and enjoy that extended family if they returned to live in Ireland.
123.The mother would secure significant financial support from her family in Ireland. She has been offered a home and a job there by members of her family.
124.The mother would be far more secure emotionally being removed by a significant distance from her violent and controlling former partner. Her emotional security is essential for her to be able to fully discharge her parental responsibilities to the children. The mother is the primary figure in the children’s lives and the single most important person to them. Consequentially, the children will not be exposed to the possibility of witnessing further violence by their father towards their mother and suffer his controlling behaviour. They would not be at risk of the mother finding it difficult to be consistently available to the children emotionally. Her emotional functioning and hence parental functioning would not be at risk of impairment.
125.As a consequence of the father’s controlling and hyper-vigilant behaviour, the mother and the children were isolated in Adelaide. Their only refuge and opportunity for socialising and interacting with their peers, was at school. In Sydney, the mother and the children have a few friends and the mother’s aging aunt. All of this is a far cry from the all embracing extended family in Ireland.
126.I am satisfied that the father will be able to maintain regular communication with the children by cards, letters, exchange of gifts, email, webcam, telephone calls and the like. The father’s relationship with his children will be supported by twice yearly physical contact with the children. The father said that he could afford to take a few weeks off from his business to enable that to happen. The mother’s family have offered the finances necessary to ensure that it occurs. I am further satisfied that the father, on his own evidence, has the financial capacity to contribute to the maintenance of that physical relationship with his children.
127.Despite her experiences at the hands of the father, the mother, as reported by Ms C and the CCS, has of recent times supported the relationship between the father and the children. I accept that she understands that, despite her own bitter experiences at the hands of the father, it is important for the children that they know their father and have as much of a relationship with him as is possible in safe and secure circumstances.
128.The children will not suffer any loss of their present relationships with extended paternal family members. They have never met their father’s mother or sister. Such contact as they have had with them has been promoted by the mother. I am satisfied that she will continue to do so.
129.O will not commence his primary schooling until the beginning of 2009 and thus will suffer no disruptions in his academic progress by a move to Ireland. E has already experienced almost a year of schooling in Ireland and I am satisfied will readily make the adjustment again.
130.The Independent Children’s Lawyer supports and promotes the relocation to Ireland taking the view that it clearly best represents the children’s interests.
131.A move to Ireland recognises the mother’s right to freedom of movement.
Factors against relocation to Ireland
132.The children would see less of their father. Since the conclusion of the trial proceedings, the father has regularly seen the children at CCS in Sydney each month.
133.The cost of maintaining physical contact between the children and their father will be significantly greater than if they remained living in Australia.
134.The children’s re-emerging relationship with their father is likely to take longer than if they remained resident in Australia.
135.E will again have to change schools from Sydney to Ireland, albeit a school with which she is familiar.
136.The children were born in Australia and have spent all of their lives in Australia, apart from a period of some 9 months in 2006.
Factors relating to a relocation to Sydney
137.Given that it is my determination that the mother ought to be allowed to relocate to Ireland with the children, little, if any, time need be devoted to her “fall back position” of seeking permission to relocate with the children to Sydney.
138.An analysis of the factors for and against such a move suggests that the move to Ireland far better represents the children’s interests than a move to Sydney. The mother’s close and extended family support in Ireland is a critical factor bearing favourably upon the children’s future wellbeing.
139.If the children remained in Sydney it would be easier for the father to have more regular physical contact with the children but in most other areas, his relationship with the children can be just as easily facilitated by other means of communication and contact whether they lived in Ireland or Sydney.
140.The father said that it was his clear preference to remain living in Adelaide and not move to Sydney. He has his business and hence capacity to earn a good income, here in Adelaide. He has no extended family or friends in Sydney.
141.The father’s Counsel, at the conclusion of the trial proceedings, no longer pressed for an order for the mother’s return from Sydney to Adelaide.
Summary
142.As with nearly all relocation matters, this is a difficult one to determine. However, I am satisfied that the children’s best interests will be served by them being permitted to relocate to Ireland with their mother. Forcing the mother and the children to remain in Australia would serve the father’s best interests, but not those of the children. As the legislation dictates, whilst the interests of the father and the mother are very important, it is not so much about the parents as it is about E and O. Pursuant to Section 60CA, it is the best interests of those children which constitute the paramount consideration.
143.I have earlier detailed what benefits there are to the children in them remaining in Sydney and much nearer physically and geographically to the father. They would almost certainly see more of him and hence have the opportunity to physically interact with him more often. An emerging bond and clear physical affection can be seen from the most recent reports of the CCS. Certainly within the supervised environment of the CCS, the children appear to enjoy their father’s company. There are though, as I have identified above, few if any other benefits to the children in their mother being obliged to remain living in Australia and not being able to return to the bosom of her family in Ireland.
144.The advantages and benefits to the children of being able to relocate with their mother to Ireland, are numerous and significant. I am satisfied that freed of her fears of further physical encounters with the father, the mother will be able to fully develop and explore her already impressive parenting capacity. It is clear that she will be comfortable, secure and safe with her extended family in Ireland, none of which is available to her in Australia. As Ms C put it, where children have experienced a conflicted and unstable environment, they would be well served by being able to experience stable family support. She said that the children have already experienced the benefits of their mother being more child focussed since moving away from the father to Sydney. It has been demonstrated that the children are highly adaptable. I am satisfied that they will thrive with their mother and extended family members in Ireland.
145.The supervised times that the father has spent with the children at the CCS have been increasingly successful. It has been refreshing and encouraging to see the steady progress of the relationships between father and children over the past 7 months. A close, and increasingly affectionate bond is clearly emerging between the children and their father. The father, whilst still falling well short of demonstrating an ideal parenting capacity and an ability to remove his children from the conflict, is becoming an increasingly important person in the children’s lives. The manner in which the children have steadily embraced a relationship with their father, despite not having seen him for some two years, and given that those relationships have been developed within the somewhat confining circumstances of a CCS environment, leads me to being easily satisfied that the children’s relationships with their father can be further developed over the next few months and then sustained and maintained despite their move to Ireland.
146.History has demonstrated that a close and constant relationship with their father has not been necessary for the children in order to progress their relationship with him. I am confident, on the evidence, that the proposed occasions of physical contact and various forms of communication will enhance and sustain the relationship between the children and their father. This was a view expressed by Ms C too when she gave her evidence. She said that the father’s relationship with the children could still be meaningful in circumstances where they saw him on two occasions per annum provided it was supported by other regular forms of communication. It was her evidence that a meaningful relationship can exist without involvement in the daily lives of the children.
147.I am satisfied on the evidence that the appropriate time for the mother to relocate to Ireland with the children will be in late December 2008. This will afford to E the opportunity to complete the school year. More importantly though it will enable the supervised visits at CCS to continue in order to develop the relationship between the children and their father to its fullest extent before they relocate. It will also afford an opportunity for there to be some supervised times spent by the father outside of the CCS and enable him to spend part of the Christmas holiday period with his children before they leave for Ireland. It will particularly afford to the children an opportunity to get to know their paternal grandmother and paternal aunt. The mother is very happy for the children to develop a relationship with them and for the paternal grandmother and paternal aunt to provide supervision of the children’s time with their father. The mother proposes that she attend with the children at the home of either the paternal grandmother or the paternal aunt in order to settle them prior to the time they are to spend with their father. She will then leave the children so that they can more fully develop their relationships with their father and enjoy their time with him outside of the confines of the CCS. She said she would like to check daily on the children wherever they were and that she would contribute to the cost of those visits.
148.This was an approach endorsed by Ms C. It was her view that any relocation to Ireland should be delayed until after the end of the school year and the relationship between the father and the children in the meantime should be supported by regular contact.
149.Delaying the mother’s and the children’s relocation until December 2008 will also afford to the mother the opportunity to reinforce the children’s relationship with their father and continue her efforts in initially forging and then encouraging and sustaining those relationships. It will provide for her an opportunity to carefully and properly plan for the children’s adjustment both physically and emotionally and make all necessary arrangements both in Ireland and Australia, for her relocation.
150.In short, refusing the mother’s application to relocate with the children to Ireland would not meet the children’s needs nor satisfy their best interests.
I certify that the preceding one hundred and fifty one paragraphs (151) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.
Associate:
Date:
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Injunction
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