Dakota & Stevens

Case [2021] FamCA 388

FAMILY COURT OF AUSTRALIA

Dakota & Stevens [2021] FamCA 388

File number(s): SYC5707 of 2020
Judgment of: WILLIAMS J
Date of judgment: 10 June 2021
Catchwords: FAMILY LAW – PARENTING – The mother of three children sought to have her application to relocate the children to London from Sydney determined whilst she and the children continued to live in London in circumstances when a UK court, in proceedings under the 1980 Hague Convention, determined that the children should be returned to Australia – In the current proceedings the mother maintained that the father had consented to the removal of the children from Sydney to London in January 2020 notwithstanding the findings of the UK court – Held the father was not aware of and did not consent to the children’s permanent retention in UK subsequent to their removal in January 2020 – The parties relationship was acrimonious and the mother sought to minimise the importance of the father in the eyes of the children – The mother’s application filed 19 August 2020 was adjourned at the request of the parties to attend mediation in London – The father travelled to the UK in August/September 2020 to recover the children, but returned to Australia without them – The relationship between the father and the eldest child aged 14.5 years has broken down, where the child has special needs including high-functioning autism and has expressed very strident views about wanting to remain in London – Where the second child aged 10 years has also expressed strident views contrary to returning to Australia and has a fractured relationship with his father – Consideration of the authenticity of the views of the two older children where they have been significantly enmeshed by the mother – The mother refuses to return to Australia, even if the children are so ordered and the consequent effect on them, particularly when she has effectively been their sole carer since January 2020 – Consideration of the father’s proposals that the children live with him, his partner and her 14 year old son, whom they do not know – Consideration of proposals for international travel of the children as proposed by Counsel for the Independent Children’s Lawyer – Held orders as proposed by the Independent Children’s Lawyer are the only prospect of the relationship between the oldest child and the father having any prospect of re-establishing – Orders so made for the children to remain in London and spend frequent block time with their father both in the UK and Australia – All parties in agreement that the parents should retain equal shared parental responsibility for the children.
Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA

Evidence Act 1995 (Cth), s 140

Hague Convention on the Civil Aspects of International Child Abduction

Cases cited:

Cowley & Mendoza [2010] FamCA 597

Heath & Hemming (No.2) [2011] FamCA 749

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3…

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Dakota & Stevens [2021] FamCA 388
Case
[2021] FamCA 388
Decision Date

CaseChat Overview and Summary

The case of *Dakota & Stevens* concerned parenting orders for three children, X, Y, and Z. The mother sought to have the children reside with her in London, having relocated them there from Sydney in January 2020. This occurred despite a UK court's determination under the Hague Convention that the children should be returned to Australia. The father maintained that he had not consented to the children's permanent retention in the UK. The dispute involved complex issues arising from the acrimonious relationship between the parents, the children's expressed wishes to remain in London, and the father's desire for their return to Australia.

The court was required to determine several key legal issues. Firstly, whether the father had consented to the children's permanent relocation to the UK. Secondly, the court had to consider the children's views, particularly those of the eldest child, X, who has special needs including high-functioning autism, and the extent to which these views were genuinely held or influenced by the mother. Thirdly, the court needed to assess the best interests of the children, weighing the mother's refusal to return to Australia against the father's proposals for the children to live with him and his partner, and considering the potential impact on the children's relationships with both parents.

In its reasoning, the court applied the principles of the *Family Law Act 1975* (Cth), particularly section 60CC(2A), which mandates giving greater weight to the benefit of a child having a meaningful relationship with both parents. The court adopted a prospective approach to assessing this consideration, as outlined in *McCall & Clark* [2009] FamCAFC 92. The court found that the father had not consented to the children's permanent retention in the UK. While acknowledging the mother's genuine belief that a return to Australia would jeopardise her relationship with X, the court considered the views of the older children, noting they had been significantly influenced by the mother. The court ultimately found that the proposals put forward by the Independent Children’s Lawyer offered the best prospect of re-establishing the relationship between the father and the eldest child.

The court made orders discharging all previous parenting orders. It was ordered that the parties have equal shared parental responsibility for the children. The children were to live with the mother in the United Kingdom, with detailed provisions for the children to spend significant block time with their father, both in the UK and Australia, and for reciprocal time with the mother. The orders also included provisions for communication between parents and children, school information sharing, and injunctions against denigration of either parent.

Orders

Orders of the court

SYC5707 of 2020

BETWEEN:

MS DAKOTA

Applicant

AND:

MR STEVENS

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

10 JUNE 2021

THE COURT ORDERS THAT:

1. All previous parenting orders be discharged.

2. The parties have shall have equal shared parental responsibility for X born … 2007, Y born … 2011 and Z born … 2016 (known together as “the children”).

3. The children live with the mother in the United Kingdom.

4. The children spend time with the father:

(a) For three weeks during the United Kingdom Summer School Holiday period:

(i) In the United Kingdom in 2022 and each alternate year thereafter, with the father travelling to the United Kingdom for this time;

(ii) Unless otherwise agreed, this time is to commence at 10am on the fourth Saturday following the end of the school term and conclude at 10am on the Saturday three weeks later.

(b) For three weeks during the United Kingdom Summer School Holiday period:

(i) In Australia in 2023 and each alternate year thereafter, with the children travelling to Australia for this time;

(ii) Unless otherwise agreed, this time is to commence at 10am on the first Monday following the end of the school term and conclude at 10am on the Monday three weeks later;

(iii) Reciprocal order for the Mother to spend time with the children on Christmas Day.

(c) For two weeks during the United Kingdom December/January School Holiday period:

(i) In Australia in 2021 and each alternate year thereafter, with the children travelling to Australia for this time;

(ii) Unless otherwise agreed, such time is to commence at 10am on 23 December and concluding at 10am on 6 January;

(iii) Reciprocal order for the Mother to spend time with the children on Christmas Day.

(d) For two weeks during the United Kingdom December/January Holiday period:

(i) In the United Kingdom in 2022 and each alternate year thereafter, with the father travelling to the United Kingdom for this time;

(ii) Unless otherwise agreed, such time is to commence at 10am on 26 December and concluding at 10am on 9 January.

(e) For up to an additional three weeks at such other occasions as the father may travel to the United Kingdom during a calendar:

(i) The father is to provide the mother with no less than 28 days’ notice of his intention to travel to the United Kingdom and the dates on which he proposes to spend time with the children;

(ii) Unless otherwise agreed, the father is to collect the children from the mother’s home at the commencement of his time with them and return them to the mother’s home at the conclusion of the visit;

(iii) In the event the father’s proposed time with the children is to take place during school terms, the children may stay overnight with the father, provided that:

A. the father stays in suitable accommodation no further than 20 minutes from each of the children’s school;

B. the father delivers the children to, and collects the children from, school each school day; and

C. the father facilitates the children participating in any extra-curricular activity that they would ordinarily participate in.

5. For the purpose of the father spending time with the children in the UK:

(a) The parties shall share equally the costs of the father’s return flight from Sydney to the United Kingdom;

(b) The father is to provide the mother with the address of where the father will be staying with the children no less than 48 hours before his time with the children commences;

(c) Unless otherwise agreed, the father is to collect the children from the mother’s home at the commencement of his time with them, and return them to the mother’s home at the conclusion of this time.

6. For the purpose of the children spending time with the father in Australia:

(a) The mother is to pay the costs of the children’s return airfares from the United Kingdom to Australia;

(b) In the event the mother is travelling to Australia with the children, the father is to collect the children from the mother at a location advised by her no less than 48 hours prior to the father’s time commencing, and return them to that location at the conclusion of his time;

(c) In the event the mother is not travelling to Australia with the children, the father is to collect the children from Sydney airport upon their arrival in Australia, and return them to Sydney airport at the conclusion of his time.

7. In the event the children would be subjected to a period of mandatory hotel quarantine in order to spend time with the father in Australia pursuant to order 4 above, the father shall instead travel to the United Kingdom for this time, with the mother to meet the costs of the father’s flights and accommodation.

8. When the children are otherwise living with the mother, she is to facilitate the children communicating with the father via telephone or video chat:

(a) Each Wednesday evening between 7pm and 8pm London time;

(b) Each Saturday evening between 7pm and 9pm;

(c) At such other times as requested by one or more of the children;

(d) With the mother to ensure that the children are afforded privacy during this call.

9. When the children are spending time with the father, he is to facilitate the children communicating with the mother:

(a) Each evening at 7pm, for no longer than 20 minutes on each occasion;

(b) With the father to ensure that the children are afforded privacy during this call.

10. As far as is necessary both parties shall give authority (and this order shall serve as authority) to any school that the children attend from time to time for the other party to obtain a copy of all school reports, notes, newsletters and information which is ordinarily provided to parents.

11. Both parties shall do all acts and things to ensure the school that the children attend from time to time, and any of the school’s teachers and counsellors, is authorised to communicate freely with the other party.

12. Both parties shall be at liberty to attend events that are significant to the education, religious education, extracurricular activities, health or any other significant welfare event for the children where the attendance of either or both parties is reasonably expected.

13. The Mother is to retain the children’s original Australian and United Kingdom Passports, unless the father is otherwise travelling overseas with them in accordance with order 16 below.

14. The parties are to do all acts and things and sign all documents necessary to ensure that each child’s Australian and United Kingdom Passports remains current and ensure they are renewed before they expire.

15. For the purpose of order 14, the mother is to meet any renewal costs for the children’s United Kingdom passports and the father is to meet any renewal costs for the children’s Australia passports.

16. Both parents are permitted to take the children for a holiday during periods when the children are otherwise living or spending time with them provided that:

(a) They each provide to the other parent not less than seven (7) days’ notice of the date of intended travel with the children, including:

(i) Dates of departure and return;

(ii) Contact details for the children at the travel destination, including an address and telephone number;

(iii) A copy of any available itinerary; and

(iv) A copy of the return airline tickets for the parent, and each of the children, if any.

17. In addition to complying with order 16 above, the father is to obtain the written consent of the mother if he proposes to travel with the children to the United States, and the mother shall not unreasonably refuse this request.

18. In the event the father intends to spend time with the children in the United States pursuant to orders 16 and 17 above during times the children would otherwise spend with the father pursuant to these orders in Australia, then the following shall occur:

(a) The father is to provide the mother with no less than twenty-eight (28) days’ notice of his intention to travel to the United States and the mother’s consent will not be unreasonably withheld;

(b) In lieu of the children travelling to Australia, the father shall travel to the United Kingdom to collect the children and thereafter accompany the children to the United States;

(c) The father shall accompany the children on a flight from the United States to the United Kingdom to return the children to the mother at the conclusion of his time with the children pursuant to these orders.

19. In the event the father has advised the mother in accordance with order 16 above that he is proposing to travel internationally with the children during him time with them, the mother is to provide the father with the children’s passports at the time he collects the children, and the father is to return the passports to the mother with the children at the conclusion of his time with them.

20. Each party is to inform the other in writing of any change to their residential address no less than fourteen 14 days prior to the change occurring, or of any change to his or her contact telephone number no less than forty-eight (48) hours prior to such change occurring.

21. In the event a medical emergency arise in relation to the children, or one of them, whilst in the care of either party, then that party shall notify the other party as soon as is practicable of the time and nature of such medical emergency, the name and address of any medical practitioners or hospital and the location of the children.

22. Each party inform the other of any major medical issues or diagnoses involving the children, or any of them, within twenty-four (24) hours of becoming aware, in particular, of any medical attention or treatment, and is to do all acts and things to authorise any treating medical practitioner to communicate freely with the other party.

23. The parties shall be retrained by way of injunction from denigrating the other party to or within the hearing of the children and each party shall use their best endeavours to remove the children from any third party that is denigrating the other party.

24. The parties are restrained from speaking with any of the children about these or any future family law proceedings, and are to ensure that no other person speaks to the children about the proceedings, other than the Independent Children’s Lawyer, or another professional involved with the children, such as a counsellor or a teacher.

25. Within 48 hours of final orders being made, the mother is to take any necessary steps to seek to have these orders registered in the United Kingdom.

26. The mother is to inform the Independent Children’s Lawyer and the father forthwith upon making the application for registration, and when confirmation is given that the orders have been so registered in the United Kingdom.

27. Liberty is granted to the Independent Children’s Lawyer to relist the matter on seven (7) days’ notice if any issues arise in relation to the registration of these orders in the United Kingdom.

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

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

Background

Background to the litigation

The trial commenced electronically on 10 May 2021.BACKGROUND The mother was born in New South Wales, Australia and is currently aged 46 years. The father was born in State D, USA and is currently aged 39 years. In 2001, the mother moved to the UK to live and in 2003 purchased a property in District B, London. In May 2005, the parties met in the UK and commenced a relationship, prior to residing together in the UK at the mother’s District B property, in May 2006. In early 2007, their first child X was born in the UK. In August 2008, the parties and X moved to Australia, a move which the mother contends was temporary, but which is disputed by the father. According to the father, there was no suggestion that the move was temporary, rather the family moved to Australia for better work opportunities, and a better life for X as they did not wish to raise their son in central London. In February 2009, the parties separated for a period of six months during which, the mother asserts that X did not spend any time with his father until April 2009, and thereafter did not spend overnight time with his father. The father asserts that the day following an incident where the mother drove over his foot, he was in contact with the mother about X the next day. In August/September 2009, the parties resume their relationship and travel to the UK with X. In January 2011, the parties moved to Suburb E, Sydney to live with the maternal grandfather prior to the birth of Y in 2011. In early 2012, the parties moved to a rental property in Suburb F, Sydney. During 2012, X was diagnosed with high-functioning autism (Asperger Syndrome), ADHD and Sensory Processing Disorder. According to the mother, the parties separated on a final basis on 31 December 2012 and according to the father, the parties separated on 26 December 2012. The mother asserts that in early 2013 the father moved into a share house whereas she and the children lived alone in rental properties in Suburb F until mid-2015. The maternal grandfather lived with the mother and the children while undergoing cancer treatment, prior to his death in mid-2015. In mid-2015, the mother and children moved into a rental property in Suburb G, where the father also lived. The mother asserts that the father lived there on a “commercial basis”, whereas the father asserts that the parties reconciled. In early 2016, the third child Z was born. In July 2016, the father rented a one-bedroom property in Suburb H, which he asserts was at the mother’s request and which he contends was the date of final separation. In September 2016, the mother and children moved into her late father’s home in Suburb E, of which she inherited 50% from her late father’s estate, and acquired the balance from the maternal grandmother. Y and X continued to attend schools in the inner West and Z attended day-care in the city. According to the mother, between late 2016 and mid-2018, the father continued to live in a unit in Suburb H and the mother and children lived in Suburb E, although they often stayed at Suburb H and the father regularly stayed at Suburb E.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Whilst I consider that a mother who professes to be so devoted to her children and attentive to their and in particular X’s needs, would not adopt such an attitude, when questioned by me about this, the mother became very emotional and seemed to genuinely believe her relationship with X would not survive if she returned to Australia. I do not necessarily accept that would be the case, as the mother would be more than capable of explaining reasons for return to the children and persuading them of the positives such a move could bring to their relationship with their other parent. However, I accept that she genuinely subjectively believes a return would jeopardise her relationship with X. It is difficult to consider that X, a 14 year old adolescent with high-functioning autism, would unequivocally reject both parents and in particular his mother, on whom he has been so dependent for all his life. Discussion and conclusion In support of the mother’s application that the children should remain living with her in London, Counsel for the mother submitted:(a)the mother’s position that she and the children should remain living in London is primarily due to a sense of permanency and fulfilment which she has experienced living in London, as opposed to her experiences in Sydney;(b)these considerations include:(i)her employment which is both flexible and supportive of women of colour, in contrast to her lived experience in Australia and her subjective views about prejudice that she sustained in this country, particularly as a person of colour;(ii)the children are attending schools all within walking distance of their home and either walk, scooter or bike ride, in contrast with the extraordinary commutes the children sustained at times whilst living in Australia;(iii)the mother places considerable importance on the fact that their residence is the mother’s home, and not rental premises;(iv)X’s school provide subsidised educational support for his special needs and he is having a positive experience at that school;(v)the mother’s subjective reasons for having relocated are genuinely and reasonably held by her, although the mother is not required to provide compelling reasons to pursue her application to relocate;(vi)Y and X speak of matters which have resulted in an improvement to their quality of life, including X’s perception that he has better prospects in line with his goals for his future in the UK and Y’s close-knit group of friends whereas his lived experience in Australia involved being a subject of bullying over a period of time;(c)the views of the two elder children, and in particular X, including to an extreme degree, that the father’s application stands in the way of their wishes and represents a failure by the father to respect their wishes;(d)the views held by the two older children, and in particular the extreme views of X, have plainly impacted upon the father’s relationship with him;(e)the father consistently blamed the children’s views and wishes on the mother rather than looking at the children’s subjective perceptions of their life in Australia when contrasted with their life in London;(f)the father’s view that the mother has either deliberately or unintentionally alienated the children from the father is incorrect for the following reasons:(i)Z continues to enjoy a positive relationship with her father;(ii)the father’s own evidence that during his time in the United Kingdom in August/September 2020 referred to great and amazing times with the children;(g)the father conceded in October 2020 and again acknowledged in his oral evidence that things seem to be going well for the children in the UK where they seemed to be happy and settled, however that was qualified by his view, at what cost to the children in terms of their relationship with him;(h)the court cannot ignore the current living and financial circumstances of the parties, and to that end could not be confident that the father had the ability to cope with the residence of the children and in particular to meet the special needs of X for a substantial or significant time, particularly in the context of the mother’s view that she would not go with the children if they were ordered to return to Australia;(i)the mother’s view that a return to Australia, in X’s eyes, would be fundamentally disrespecting his wishes, which would preclude her having a relationship with him in the future, was genuinely held by the mother;(j)the father’s evidence that despite him not having seen the children between January 2020 and August/September 2020 that his relationship with them remained intact when he spent time with them, would lead to the conclusion that the children’s residence in London would not overly adversely impact on their relationship with their father;(k)stability and routine are particularly important to X as a child who has high-functioning autism and the two younger children are reaching an age where stability in their education and peer groups is likely to become increasingly important;(l)despite the mother’s difficulty in identifying positives about the father, she in fact expressed very clear and unequivocal views that the father should remain in and be part of the children’s lives;(m)to that end she stated in cross-examination that she was open to doing anything to facilitate the relationship between the father and the children including a statement that all she had ever wanted was for the father to be involved with the children and for that to be a good relationship;(n)the mother’s concern about the children’s present relationship with their father may at least be informed by her view that the father had not historically taken up all opportunities to spend time with the children and the children’s acute awareness of that at times;(o)the mother’s proposal is not to the detriment of the existing relationship between the children and the father that potentially seeks to vary that relationship for the future benefit of a relationship between the children and their father;(p)the greatest hope of repatriation of the relationship between the father and the children is met by the proposals of the mother and the Independent Children’s Lawyer;(q)the father’s proposal is unworkable on a long-term basis and may well in reality jeopardise his relationship with the children and in particular doom his relationship with X to the extent of failure.

Ratio Decidendi

Legal Principle Established

Subsection 60CC(2A) provides that:In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).Primary Considerations The benefit to the child of having a meaningful relationship with both of the child’s parents In McCall & Clark [2009] FamCAFC 92 (“McCall & Clark”) at [109], the Full Court said:[109] The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”. At [117] of McCall & Clark, the Full Court said:[117] Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic]. The Full Court said there were differing possible approaches to s 60CC(2)(a) of the Act. The Court preferred the “prospective approach”, although the “present relationship approach” may also be relevant. In this dispute, in the context of the wrongful removal of the children from Australia by the mother, and the adverse impact on the children’s relationship with their father, I prefer the prospective approach. All parties in this dispute recognise that there is clearly a benefit for the children to have a meaningful and significant relationship with both of their parents, although the parents differ significantly how that is to be achieved. In Mazorski & Albright [2007] FamCA 520, Brown J at paragraph [26], described a meaningful relationship as one “which is important, significant and valuable to the child” and the word meaningful is “a qualitative adjective, not strictly a quantitative one”. At paragraph [104] in Heath & Hemming (No.2) (supra), after having reviewed the authorities in relation to the benefit of a child having a meaningful relationship with both of the parents, Justice Kent said:[104] Clearly, if it is determined that a meaningful relationship with both parents is in the child's best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child's age and level of maturity (s 60CC(3)(g)) may assume particular importance. This may also lead a Court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a "meaningful relationship" with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable.