Collacci and Collacci

[2011] FamCA 769

FAMILY COURT OF AUSTRALIA

COLLACCI & COLLACCI [2011] FamCA 769

FAMILY LAW – CHILDREN – Permission to remove children from Australia for a holiday

APPLICANT: Mr Collacci

RESPONDENT: Ms Collacci

INDEPENDENT CHILDREN’S LAWYER: Ms S Wunderlich

FILE NUMBER: MLC 3053 of 2011

DATE DELIVERED: 22 June 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 22 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hall

SOLICITOR FOR THE APPLICANT: MK Steele & Giammario

COUNSEL FOR THE RESPONDENT: Mr Smith

SOLICITOR FOR THE RESPONDENT: GA Black & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr G. Combes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Agricola Wunderlich & Associates

Orders

IT IS ORDERED THAT:

1. Conditional upon the wife complying with paragraph 2 of this Order the wife be and is hereby permitted to remove the children S born … November 2006 and J born … November 2006 from Australia for the period 23 June 2011 until midnight on 11 August 2011 AND IT IS REQUESTED that the Australian Federal Police remove the names of the said children from any Watch List or alert system for that period of time.

2. By 6.30 pm this evening the wife provide to the husband, via their respective legal practitioners, a complete itinerary of the children’s time to be spent out of Australia complete with the addresses at which they will reside and sleep that night and the telephone numbers at which they can be contacted AND IT IS NOTED that this condition was complied with before the Court hearing was concluded.

3. Upon the wife’s return to Australia the wife, her servants or agents forthwith deliver up to the Registrar of the Family Court of Australia at Melbourne for safe custody any and all passports held in the name of the said children or upon which the said children appear and the wife be and is hereby restrained from applying for any further or other passports for the said children pending further orders of this Court.

4. In the event that the parties are scheduled to attend a hearing within 72 hours of the children’s return to Australia it is sufficient compliance by the wife with the preceding order for the wife to bring the children’s passports to the Court at the time of that hearing and then deposit them with the Court.

5. For the duration of the children’s absence from Australia the husband be entitled to communicate by telephone with the children each third day following their departure from Australia and do so by calling the landline number provided by the wife at 9.00 am (children’s time) and to be able to speak for up to 10 minutes and the wife be and is hereby responsible for ensuring that the children are available to speak to the father and that the telephone line is kept free for that purpose.

6. The father is at liberty to record the relevant telephone conversations providing the fact of such recording is not communicated to the children.

7. There be liberty to the husband to make application to the Court and, providing that I am reasonably available, to me on short notice for orders to access the equity in the former matrimonial home to fund any expenses of his own including expenses associated with legal proceedings in the event that he alleges that the wife has failed to return the children to Australia within a reasonable time of her anticipated return.

8. The husband and the wife do all acts and things necessary to pursue the admission of the family into the supervised contact service centre program.

9. Otherwise, the further hearing of the competing applications be adjourned to 12 August 2011 at 10.00 am in the Senior Registrar’s Duty List.

IT IS NOTED that publication of this judgment under the pseudonym Collacci & Collacci is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 3053 of 2011

Mr Collacci 

Applicant

And

Ms Collacci

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before the Court on the father’s application, which was filed yesterday, being 21 June 2011, in which he seeks to enjoin the mother from taking the children, S and J, both born in November 2006, out of Australia.  The application is brought in the context of the mother and children having prepaid reservations to fly from Australia to Spain via Malaysia, leaving tomorrow.  The matter has been conducted with each party filing and serving affidavit material, all parties, including the Independent Children's Lawyer, having counsel and each having an opportunity to cross-examine the other. 

2. I will necessarily make my reasons brief.  I note that the time is now 20 past 5.  I expect that at least the mother has child minding responsibilities and that the ordinary hour at which the Court rises is 4.15 pm.  Nonetheless, I do not consider it appropriate merely to pronounce my decision and leave the parties without any reasons.  I may augment these reasons at a later time if upon reading them I think that they are deficient, and then only to reflect matters which I have taken into account, in any event. 

3. Very briefly, the husband is 37 years old, and he is a tradesman by occupation.  He resides in the former matrimonial home at M Street, Town 1, and he attends Court today in the company of his parents, who have sat with him.  The mother is 38 years old.  She used to be employed in the hospitality industry but gave up that position in mid-March 2011.  She has a romantic interest, and her companion is Mr –

RECORDED   :   NOT TRANSCRIBED

M, although they do not reside together.  She is a recipient of social security payments and is in receipt of legal aid for the purpose of these proceedings. 

1. The parties met in 2001, when either or both of them were travelling.  In 2002 and 2003, the parents lived together in the Channel Islands, which is where the mother’s only sibling –

RECORDED :   NOT TRANSCRIBED

Ms B, resides with her husband and young child.  In 2003 the parents relocated to Australia, where they have made a home.  They married in 2004.  The twins were born in November 2006, and are now four and a half years old.

1. The separation appears to have occurred in early May 2010.  I gather from reading the affidavit material, which I find to be somewhat unclear on the point, but that the father initially left the former matrimonial home with the children being in the care of the mother, then the mother left the former matrimonial home.  In any event, since between the time of separation and mid-March 2011, the father had extensive and regular time with the children involving mid-week time and overnight time on the holidays. 

2. On 23 March 2011, the mother withheld the children from the father – then giving as her reasons the ill health of one of the children.  However, within a few days, it was apparent that she was most concerned that J had made statements to her which she believed were indicative of him having been sexually abused by the father, in particular digitally penetrated. 

3. The father has not had face to face time with the children nor communicated with them by telephone since prior to 23 March 2011. 

4. The father fairly promptly made application to the Court seeking parenting orders and an order restraining the mother from taking the children out of Australia.  That was an application made on 11 April 2011.  By a response filed on 19 April 2011, the mother sought sole parental responsibility for the children, that the children live with her, that the question of time between the children and the father be “reserved” and that she be permitted to take the children “from Australia to [Malaysia], [United Kingdom], Spain and [the Channel Islands], leaving on 23 June 2011 and returning on 11 August 2011.”  Those proceedings came before McGuire FM on 27 April 2011.  No substantive orders were made, and the matter was transferred to this Court. 

5. A notice of risk of child abuse had been filed on behalf of the mother on 20 April 2011 and, in due course, the matter was assessed as appropriate for the Magellan list of cases. 

6. There was some delay in the transfer being affected– the usual orders were not made until 3 May 2011 requesting that the Department of Human Services consider intervening in the proceedings, appointing an Independent Children's Lawyer and requesting that the department prepare a report about the mother’s allegations.  The notice of risk of child abuse itemises the acts or omissions said to constitute the abuse as follows[1]: -

   [1]          Notice of Child Abuse or Family Violence filed 20 April 2011

   (1)When the child [S] was six months old the Applicant Husband said to her “come sexy let’s go”.

   (2)When the child [J] was approximately two years of age he exhibited sexualised behaviour whereby he would position himself behind his sister’s thigh and begin thrusting backwards and forwards.  He also took hold of his mother’s hand and tried to place it on his penis.

   (3)On 5^th April 2009 the Respondent Wife was changing [S’s] nappy who was then 2½ years old she said “[S] touched [J’s] willy.  [J] kissed Daddy’s willy”.

   (4)On 4^th January 2011 [S] said “Daddy pulled down my undies in bed and put his finger up my bum hole”.  Later [S] said when she was going to bed “Daddy sometimes puts his finger up my foo foo hole” which is what she calls her vagina.

   (5)On 18^th March 2011 [S] queried “Is [S] allowed to touch [J’s] privates Mummy”.  Then when queried about whether anyone had hurt his privates [J] said “Yes Daddy does but he doesn’t anymore”.

   (6)On 22^nd March 2011 [J] was crying in his sleep and shouting out “No Daddy no Daddy don’t”.

   (7)On 26^th March 2011 [J] said “I don’t like staying at Daddy’s. He comes to get me in the dark.”

   (8)On 27^th March 2011 as she was being tucked into bed [S] said “The other day Mummy I told you Daddy puts his finger up my bum hole didn’t I?  I asked him to stop doing it but he wouldn’t.”

   (9)In the first week of April 2011 [J] woke up in the middle of the night screaming when after being calmed down he said “I don’t want to go to Daddy’s house anymore because he hurts my privates”.  Two days later [J] said “Daddy pulled my undies down and put his finger in my bum hole”. [S] further stated “Daddy takes me out of bed in the night-time and goes into his room, puts the lights on and sticks his finger in my bum hole”.

7. The father denies absolutely that the alleged statements of the children have any basis in fact or that he has in any other way or in any other sense acted inappropriately with the children or either of them. 

8. The Department of Human Services has commenced its investigation.  It has interviewed the husband, it has interviewed the children, it has partially interviewed the mother but indicated that it wants an opportunity to speak with the mother away from the children.  That was to occur today.  Unfortunately, it was cancelled, because the parties have been in Court all day.

9. The Department have advised the mother that they will wait to hear whether or not she is going to be going overseas for six or so weeks, in which case an appointment will be scheduled for after her anticipated return, or if she does not go overseas, an appointment will presumably be scheduled earlier. 

10. The mother gave evidence today and was cross-examined, and part of that evidence related to her having taken the children to two interviews with Victoria Police.  That evidence itself will, in my estimation, be significant in the case, and for that purpose, I will order that the evidence of both parties given this day be transcribed. 

11. The mother says that if she is not permitted to take the children out of Australia, she will not be leaving without them.  The father seeks to restrain the mother from removing the children on two bases, as are articulated by counsel for the father.  The first is that she is a flight risk and that he is concerned that she will not return to Australia.  The husband is obviously in a high state of distress and apparent disillusionment.  He is facing allegations which he says are totally without foundation but the effect of which is to attack and undermine his relationship with his children.  He does not say that the mother is currently acting out of spite or malice but says he does not know what motivates her.  He is distraught that she is persisting with allegations which he personally knows not to be true and the effect of which is that his face to face relationship with his children and his ability to communicate with them has been removed for the last three months.

12. In cross-examination, he conceded that he has “doubts” as to whether or not she will return.  My impression of his evidence was that the doubts are certainly only recently conceived.  He agreed to and in fact provided the financial facility for the mother to purchase the tickets last August, which was well after the separation of the parties.  I will deal later with some of the other planks to his argument that the wife is a flight risk. 

13. His second reason for making this application is that the processes in relation to the sexual abuse allegations and those mandated by the Magellan list have not been completed.  Those Magellan proceedings were set down for a preliminary hearing before Senior Registrar FitzGibbon on 20 June 2011.

14. It appears from the court file that without consultation with the parties, parenting proceedings were administratively adjourned until 5 August 2011 and then before a Magellan Registrar, not the Senior Registrar.  The effect of that was that the controversy about overseas travel, which was more than apparent from his application in April 2011, was left unaddressed, and that has necessitated the father’s urgent application today. 

15. The first stage of the investigations is the request to DHS to prepare a report, and it is submitted on behalf of the husband that if the wife is permitted to remove the children, that report will necessarily be delayed, because DHS are waiting to speak to the wife.  Obviously there’s some merit in that submission, although I note in spite of an opportunity to do so, counsel for the husband did not specify what the delay was likely to be.  He did not argue with my estimate that it might delay the preparation of a report by DHS to about one month after the return of the mother. 

16. It was submitted on behalf of the husband that removing the children from the jurisdiction now would compromise the quality of the investigation to be undertaken by the Department of Human Services.  I do not find that there was adequate evidence to support that submission.  Obviously an early report is a good thing, providing it is done thoroughly.  But in any event, the next return date in this Court was to be 5 August 2011.  It may be that it has to be some date in September, subject to a review in the meantime. 

17. I have heard extensive evidence orally and have read evidence in affidavit materials about the organisation of the proposed trip.  It is common ground that prior to separation, the parents discussed a further family trip for the children to the United Kingdom and to Spain in their kindergarten year, which is this year.  After separation, the wife took advantage of cheap air flights offered by a discount airline to the United Kingdom for $3577.  The husband permitted the wife to use his credit card to pay those airfares, the conditions of which included that they could not be altered within 48 hours of specified travel and that the passengers would have to remain in Malaysia for a period of seven days. 

18. The mother had originally estimated the cost of the airfares at some $3000 and borrowed that money from a finance company called GE Money and used the proceeds of that loan to repay $3000 to the husband.  She still owes him the balance of about $577.  The wife is repaying the debt to GE Money at $89 per month and estimates that it will take her five years to pay off.  She says that she cannot obtain a refund of airfares from the United Kingdom to Spain which have been paid for.  No airfares have yet been paid from Spain to the Channel Islands, because the mother’s evidence was that her family members, who will be providing the funds, were somewhat nervous that the husband may move to block the wife’s trip at a late stage and they would not be entitled to a refund of any discounted fares so purchased. 

19. The mother has also sold jewellery or gold to a value of $830 to pay for the trip.  She says that she can’t change the flight arrangements which would involve her paying to upgrade.  There wasn’t any challenge to her evidence in that regard. 

20. The husband says he can’t pay for an alternative trip for the wife and the children. There was no proposal by him that he provide the means by which any of the wife’s family members could come to Australia. 

21. The parents lived in the Channel Islands in the environs of the wife’s sister from 2001 to 2003.  Then the wife’s mother and sister came out to Australia to visit the parents upon their marriage in 2004.  In 2007, the family went back to the United Kingdom and to Spain and had a family holiday.  Then in 2009, the wife’s sister and mother visited Australia and saw the family.  It appears that this proposed trip fits the sequence or pattern of the family keeping in touch.  It was put to the mother in cross-examination that she had a long-held desire to return to live in a place close to her mother and sister.  It wasn’t particularly refined to what place is close by the Channel Islands and Spain but, nonetheless, the mother denied that she harboured a desire to reside out of Australia with the children.  Specifically she gave evidence that she did not consider the Channel Islands to be an appropriate place to reside with the children. 

22. It was put to her in cross-examination that there would be so little left out of the modest equity that the parties have in their home that it wouldn’t be worth her while to remain here to realise that entitlement and that she would relinquish it in favour of being able to withhold the children overseas.  That cross-examination was not successful.  It appears that the former matrimonial home was purchased in about 2007 using as a deposit $26,000 made available by the wife’s mother.  The husband gave evidence that during the family trip to Spain in 2007, he was taken aside by his mother-in-law, who had by that stage relocated to Spain, and told that she was prepared to advance him and the wife the $26,000 which was the whole of the bequest from her - from the death of her father.  Her sister, who is in more fortunate financial situation than the mother, was content for the mother to have the use of the funds if she could take up a capital investment in Australia. 

23. So the first $26,000 which was put toward the acquisition of what is now the former matrimonial home is actually the bequest to the wife and her sister from the estate of her late father.  Otherwise there seems to be about an equity of somewhere between 85 and 100 thousand dollars in the property.  I agree that that will largely be eroded by legal costs, but at the moment, the wife is in receipt of legal aid and may negotiate some payment plan in relation to that.  I am satisfied that the wife has a real interest that she would seek to protect in Australia and is likely to return to Australia for that purpose. 

24. The assertion by her that all of the capital she owns in the world is tied up in the former matrimonial home has a ring of truth about it, even based on the husband’s own evidence. 

25. The wife does not object to granting security over any equity in the former matrimonial home upon which the husband could draw in the event of her failure to return the children to Australia within a reasonable time after the date it is due that she do so.  She is prepared to furnish the husband with an itinerary which shows where the children will reside each day, together with addresses and landline telephone numbers.  Whereas there has not been any telephone communication between the husband and the children since prior to 23 March 2011, the wife with some reluctance is prepared to countenance telephone communication every three days when the husband is to be responsible for calling her at the landline numbers provided.  This has the added safeguard, in my view, of the husband having some satisfaction of knowing where the children physically are rather than receiving calls from her and not knowing where the children are located. 

1. In relation to the week that the wife will spend in Malaysia to fulfil the obligations of her discounted fare, the hotel facility only has a telephone available at reception.  The wife would have to be responsible for having the children available at the appointed time.  In relation to the appointed time, it makes much more sense to have a set time for the children to receive the calls which the husband can adjust against Australian time.  There is common ground that 9 am in the morning would be a convenient time for the children to make calls and for the wife to have them available by the telephone and for the telephone to be kept reasonably clear for that purpose. 

2. As in any parenting case, I am required to consider the best interests of the children as the paramount consideration.  That means it is not the only consideration.  It is the most important consideration.  I also consider the rights of each of the parties – in this case, the entitlement of the mother to plan to go overseas and the entitlement of the father to get a speedier resolution of the sexual abuse allegations which have been made against him as is possible.  Both of those issues have a direct bearing upon the children.  But they are interests which are also personal to the parties. 

3. As with all cases involving the best interests of the children, I follow the legislative pathway set out in Part VII of the Family Law Act.  I do so by considering the matters contained in section 60CC and the balance of matters in that Part.  No party asks me today to make an order for joint parental responsibility.  In any event, it would not be appropriate for me to do so, given the outstanding allegations of sexual abuse and the fact that they are so far from being – and that they’re in such an early state of investigation.  Accordingly, I find it is not appropriate to make an order for joint parental responsibility.  As a consequence of that, I will not be considering the appropriateness of shared care or substantial or significant time. 

4. It must be acknowledged that the procedure for making interim parenting orders such as I’m required to make today will be an abridged process.  The scope of the inquiry is significantly curtailed compared to that which is going to be available at the ultimate hearing.  In the case of Goode & Goode [2006] Fam CA 1346, the Full Court commented at paragraph 68:

   Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

5. The main contention in this hearing is whether or not the Court can be sufficiently assured that the children will be returned to Australia at the conclusion of the holiday.  The second prong to the argument is whether there should be an absence of the children from Australia at all, given that it may result in a delay of the investigations conducted by the Department of Human Services. 

6. I have regard to the agreed or uncontested facts to which I have already made reference – that is, that this is a pre-planned trip which is one that the mother will not be able to afford in the future.  With the exception of Malaysia, the children will be residing in states which are contracting parties to the 1980 Hague Convention.  There is no evidence that the mother has any ties in Malaysia or an ability to remain in Malaysia. 

7. I consider the matters set out in section 60CC as to the children’s best interests, and I will make findings about them, although I must acknowledge that in these interim proceedings, there may be very few findings that I can make.  Section 60CC(2) sets out the primary considerations.  Section 60CC(3) sets out the additional ones.  I will only deal with the additional considerations which I consider are relevant. 

8. I take into account as prospective inquiry the benefit to the children of having a meaningful relationship with each of their parents. 

9. The father has no contest about the children having a meaningful relationship with both parents.  The mother’s view, as I discern from her presentation in the witness box and her affidavit material, is that she considers there to be a cloud over the benefit to the children of having a face to face relationship with the father at the moment whilst the investigations of sexual abuse are undergoing investigation.  Her earlier conduct since separation, however, makes it apparent that she was prepared to countenance a meaningful relationship as being beneficial to the children until these allegations arose. 

10. I take into account the need to protect the children from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.  The sexual abuse allegations made by the mother are particularly relevant here.  However, of no less relevance is the implicit counter-allegation of the husband that the children are at the moment exposed to a form of emotional abuse because they have been deprived of his company and companionship and influence and of having a face to face relationship with him, of even being able to speak with him by telephone.  He says that those allegations are unfounded, and whilst he has no explanation for them, he thinks that it is most likely to be harmful for the children to be separated for him for this reason that lacks any foundation. 

11. Most of the future court proceedings, in my view, are likely to be occupied with prospective evaluation by the Court of what (if anything) is needed to protect the children from physical or emotional abuse.  That will be abuse which, allegedly, emanates from the mother’s conduct as well as the father’s conduct.

12. The children are represented by an Independent Children's Lawyer.  Pursuant to an order made on 3 May 2011 Ms Simone Wunderlich of Agricola Wunderlich & Associates was appointed as the Independent Children’s Lawyer for S born in November 2006 and J  born in November 2006 within the meaning of Division 10 of Part VII of the Act.  As such, her role is to form an independent view, based on available evidence, of what is in the children’s best interests and then act in these proceedings in what she believes to be the best interests of the children.[2]  She is not a legal representative retained by the children and she is not bound by any instructions from the children.[3]  The role of the Independent Children’s Lawyer is to deal impartially with the parties, to ensure that any views expressed by the children are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention.  The Independent Children's Lawyer is also under a specific duty to take steps to minimise for the children the trauma associated with proceedings[4] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[5]  In this case, the Independent Children's Lawyer’s view and recommendation to the Court is that the mother should be able to take the children out of Australia subject to safeguards, such as a thorough itinerary and ability to make telephone calls and for the father to access the equity in the former matrimonial home in the event that the mother does not return the children when she is expected to do so. 

    [2] s 68LA(2) Family Law Act 1975 (Cth).

    [3] s 68LA(4) Family Law Act 1975 (Cth).

    [4] s 68LA(5)(d) Family Law Act 1975 (Cth).

    [5] s 68LA(5)(e) Family Law Act 1975 (Cth).

13. I was not addressed on any views expressed by the children, and that’s not surprising, given their tender years. 

14. I take into account the nature of the children’s relationship with each of the parents and other persons.  Most significantly, it’s common ground that the father had a significant role as carer for the children prior to separation.  The wife was working some nights each week when the children were in the sole care of the husband, and post separation, and in spite of the children being then of really quite tender years, he had frequent and regular and extensive time with the children.  I am satisfied on child developmental principles that the children’s relationship with the father would have been significantly formed prior to separation and augmented post separation.  The father can take some comfort in the fact that this sort of relationship is not easily broken, and whilst it is not beneficial that it has been interrupted, it is not going to be lost or eroded with time.  In any event, there is an agreement between the parties that the father should commence supervised time at a contact centre as soon as practicable, and the telephone calls which the mother now agrees to facilitate between the children and the father will be a good introduction to that. 

15. I take into account the relationship that the children have with other persons, including, as the legislation mandates, grandparents or relatives of the child.  The mother’s own evidence was that the children enjoy spending time with the paternal grandparents.  Of course, one of the purposes of the trip is for the children to see their maternal grandmother and their maternal aunt.  However, it is mostly, in my view, for the mother to see her relatives and to get from them some support and respite.

16. The preparedness of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent will be a matter which is canvassed extensively at a final hearing.  Pursuant to section 60CC(3)(c) and pursuant to section 60CC(3)(i), the Court will closely examine the behaviour of the parties between the time of separation and the time of a final hearing. 

17. There is no suggestion in the context of parental capacity that the wife lacks the capacity to care physically for the children during their proposed absence from Australia.  In terms of the children’s emotional health there are the father’s grave reservations about the mother’s pursuit of the sexual abuse allegations. 

18. I take into account the limited evidence that I have about the attitudes of the parents to the responsibilities of parenthood.  Some of the mother’s affidavit material must readily cause the father concern about the possibility of her non-return, and I refer in particular to paragraphs 24 to 27 of the wife’s affidavit sworn on 14 April 2011:

    24As to paragraph 25 of the husband’s affidavit I say that the Husband had agreed to me taking the children on a holiday to [the Channel Islands] and parts of Europe.  In fact the Husband allowed me to use his credit card to pay for the flights.  I have since borrowed the money so that I could (and in fact have) repaid the Husband the cost of the airflights.  Now produced and shown to me and marked with the letters “[…-1]” is my travel itinerary which show the return airfares to and from [Malaysia] and the only internal flights that I have as yet been able to book between [Malaysia] and [the United Kingdom] and [Malaysia].  I am very hopeful that I will be permitted to take the children on this holiday.  Not only have I borrowed the money to pay for it the children are looking forward to it as in deed am I.  I say that I regard my future as being in Australia.  I am committed to my relationship with my boyfriend [Mr M] and I have a wide circle of friends.  In short, I love Australia and living in [Town 2] in particular.  I have no intention or desire to leave this country.

    25As to paragraph 26 of the Husband’s Affidavit I say that he will knows that I have no intention of leaving Australia (other than for a holiday).  In any event the question of our matrimonial property settlement remains unresolved and as I have now had to give up work I am having an immense struggle financially.  All of my worldly wealth is tied up in the former matrimonial home.  I have no intention of leaving Australia but I do not have the financial means for relocating in any event.

    26I deny the contents of paragraph 27 of the Husband’s Affidavit.  I am solely motivated by a determination to act protectively of my children and act in their best interests.  In fact I find myself tormented by the idea that I should have acted my sooner on my concerns for my children’s welfare.  I also say that my actions in withholding the children from their father is not something that I have done lightly and it has come at an immense personal cost to me.  I have had to resign my employment and I am finding it very difficult to cope financially.  I also reiterate that I am in a committed relationship with  my boyfriend [Mr M] but I am now having great difficulty in maintaining that relationship.  Previously we were able to see each other on a very regular basis as this would occur whilst the children were with their father.  Given the husband’s previous comments I have felt that it would be very unwise to have [Mr M] in my home whilst my children are with me.  I am therefore suffering immense financial and personal hardship but I believe that I have absolutely no choice in this matter.  I simply must put my children’s needs ahead of mine and I must act protectively of them and that is what I am doing.

    27I also wish to say that I live in 3 bedroom home although since I have had to stop work I have needed the help of my mother to be able to pay the rent on that property.  The home is very comfortable for the children.  Whilst it is a 3 bedroom home the children share a room as that is what they have always done and seem to prefer.  I believe that they are still of an age where that is appropriate.  I have been the primary caregiver of the children all of their lives although I concede that the husband has rendered a significant amount of care to the children also.  Unfortunately I am so gravely concerned for my children’s welfare that I believe that their protection from the Husband is the most important thing I can do in their best interests.  I have made it clear to the husband that I am more than open to him spending time with the children at a Contact Centre but he has steadfastly refused such a suggestion.

    It is fair to say that the wife’s comments were in order to justify her withdrawing the children from any time spent with the father rather than going overseas.  However, her evidence does indicate that she will take whatever steps she considers necessary to keep the children safe from the harm which she perceives to emanate from the husband.  It is the husband’s case that this may include not returning the children to Australia after her trip.

19. On the other hand, the husband was offered, at a reasonably early stage in the proceedings, supervised time at a contact centre, which he decided not to avail himself of.  This decision of the husband has likely resulted in him not being able to see the children for any time since 23 March.  I am not saying he would have had extensive time with the children, but he might have been able to see them on one or two occasions.  The father’s material in that regard is set out in his affidavit at paragraphs 8 to 10 of his affidavit affirmed on 20 June 2011:

    8.I was hopeful that interim issues including orders for me to spend time with the children could be considered on 20 June.

    9.I had initially resisted the suggestion by the wife that I spend time supervised time at a contact centre.  I was hopeful that the wife would withdraw her opposition to my spending time with the children as the children would be missing me.  They had spent time with me by agreement with the wife on Wednesdays and each weekend since the wife left our former home in [Town 1] in August 2010.

    10.However, as time progressed and the wife refused my many requests to communicate with the children and the prospect of spending unsupervised time with or communicating with the children with the consent of the wife appeared non-existent I relented and caused to be sent to [Contact Centre 1] an application form for the use of their contact centre services.  I understood that there was a prospect of obtaining supervised contact for 2 hours on a Thursday relatively quickly as the centre had no current waiting list for Thursday time but a five month waiting list for weekend time.

20. When the father deposed to having caused an application to be sent to Contact Centre 1, in fact, that application was not sent by facsimile, and nor was it received by the contact centre and, at the time of swearing the affidavit, it still had not been received by the contact centre.  However, this is apparently due to some malfunction within the contact centre.  I am advised by the Independent Children's Lawyer and it was confirmed by his cross-examination of the father that the family’s application will be treated as having been received on the date on which it should have been received, which would be some time in early May 2011. 

21. The mother since separation has not advised the father or has concealed the residential address of the children.  In the scheme of things, that couldn’t have done anything but fuel the father’s anxiety about the mother wanting to excise him from the life of the children and perhaps not return to Australia after a holiday.  She has, after various circumstances have intervened, acknowledged that he should know where the children live, and he now knows that address.  The wife has extended the lease on those premises. 

22. My task today is to assess the competing risks to the children – that is, the risk of not being returned to Australia by their mother at the conclusion of their holiday in or about 11 August 2011.  The other risk is that in allowing the children to go, the investigation by Department of Human Services will be interrupted and the proceedings which have been accepted into the Magellan list will be delayed. 

23. I take into account the fact that this was a pre-planned holiday to which the husband initially had no objection and, indeed, was prepared to facilitate.  I accept that he has now changed his mind which, in the circumstances is understandable.  I take into account that there has been a drastic change in the landscape since 23 March 2011 and that he has good reason to fear that the mother will not return.  Those fears, however, do not persuade me that the wife should not be able to go. 

24. I take into account that the wife is likely to be unable to travel in this manner again in the foreseeable future and that there are certain safeguards for the father in the United Kingdom and Spain being contracting states to the 1980 Hague Convention as well as the husband being able to access the equity in the home in the event that the mother fails to return the children and he wants to exercise extra rights to go over to the jurisdictions and retrieve the children himself. 

25. I acknowledge that there is a risk that the mother won’t return the children.  In parenting cases, there are always risks.  In this case, there’s undoubtedly a risk that she might retain the children overseas, but I am not satisfied, on all of the evidence, and having had the benefit of hearing the parties and observing them be cross-examined, that the risk is such that I ought to preclude the children from leaving in the care of the mother. 

26. I take into account that there will be a delay in the preparation of the DHS report, but that delay appears to be a matter of weeks rather than months and does not weigh as heavily upon me in comparison to the distress that I am satisfied the wife will suffer if she is not permitted to leave Australia pursuant to the arrangements in which she has made a large emotional and financial investment. 

1. Accordingly, I will not accede to the husband’s application to enjoin her from going and will permit her to take the children out of the country tomorrow morning as planned or at such other time as she is able to be accepted on a plane, given that there are currently some difficulties with the Chilean volcanic ash. 

ORDERS DELIVERED

I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 22 June 2011.

Associate: 

Date:  10 August 2011