Dakota & Stevens
[2021] FamCA 388
•10 June 2021
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 NSWLR 378
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Taylor & Barker [2007] FamCA 1246
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Number of paragraphs: 231 Date of hearing: 10-12 May 2021 Place: Melbourne Counsel for the Applicant: Mr Todd Solicitor for the Applicant: Mills Oakley Lawyers The Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Moore Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dakota & Stevens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
INTRODUCTION
The applicant is the mother and the respondent is the father of the children X born in 2007 (aged 14 years), Y born in 2011 (aged 10 years) and Z born in 2016 (aged 5 years).
X was born in London in 2007, prior to his parents moving to Australia in August 2008, when he was 19 months old. X has been diagnosed with Autism Spectrum Disorder, although he is high functioning, Attention Deficit Hyperactivity Disorder and Sensory Processing Disorder. Both Y and Z were born in Australia and all three children hold dual British and Australian citizenship. The father has US and British citizenship and the mother has Australian and British citizenship, although she intends to relinquish her Australian citizenship.
The mother asserts that the move to Australia in August 2008 was of a temporary nature, which is disputed by the father. It is however, agreed that the family remained living in Australia from August 2008 until January 2020, when the mother and the children travelled to London, and where they have since remained living.
The mother asserts that her travel to London with the children in January 2020 was a permanent relocation, which was consented to by the father. The father vigorously disputed this assertion.
On 4 April 2020, the father filed an application seeking return of the children in accordance with the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
On 31 July 2020 Judge David Rees QC, sitting as a Deputy Judge of the High Court, delivered a judgment in the Hague proceedings in the United Kingdom (UK) and made orders for the children to be returned to Australia by 11 September 2020, if the mother intended to accompany the children or for the children to be handed to the father on 29 August 2020 if the mother was not able to accompany the children. The return order was made on the basis of a finding by Judge Rees QC that the mother had wrongfully retained the children in the UK.
The mother deposes in her trial affidavit that after judgement was delivered, the form of the order for the children’s return to Australia was negotiated by the parties and orders were finalised on 10 August 2020. A copy of the final orders is Annexure 10 to the mother’s trial affidavit, which includes an order that the children be returned to Australia by 11 September 2020. Judge Rees QC stated in the Hague proceedings judgment:
… Upon it being recorded that the mother will apply on notice to the Australian Family Court forthwith to seek permission to relocate the children permanently to the United Kingdom and that such an application would include permission for the children to remain in the United Kingdom in the interim, pending the outcome of her substantive application. In the event that such interim permission is granted prior to the return date set out in paragraph 1 of this order, it is acknowledged that it will supersede the return order made in paragraph 1 and the terms of that subsequent Australian order shall govern the situation relating to the children given Australia retains primary jurisdiction.
Accordingly, there was no dispute amongst the parties that subsequent to the return order, Australia was the appropriate jurisdiction to determine the living and parenting arrangements for the children.
Subsequent to the return order, the mother filed an application in this court in the Sydney registry on 19 August 2020, seeking that she be permitted to “relocate” the children to London and that the application be determined while she and the children remained in London.
I will refer to the procedural history shortly in these reasons.
On 27 August 2020, the father travelled to the UK to spend time with the children and to engage in mediation to attempt to resolve the dispute between the parties. Obviously the dispute was not resolved and after numerous interim listings and adjournments whilst the parties were extensively involved in negotiations, the matter was fixed for trial before me on 10 May 2021.
ISSUES IN DISPUTE
The following issues were in dispute at trial:
(a)whether the children should be permitted to remain living with their mother in London or whether an order should be made requiring the children to return to Sydney to live with their father;
(b)the time the children should spend with their father if they were permitted to remain in London;
(c)the time the children should spend with their mother, if an order was made for the return to Australia to live with their father;
(d)the impact on the relationship with the father and each of the children:
(i)if they remain living in the UK with the mother;
(ii)if they are ordered to return to Australia against their wishes and in circumstances where the mother has indicated she will not return to Australia with the children.
Both the parents and the Independent Children’s Lawyer sought an order that the parties retain equal shared parental responsibility for the children.
SYNOPSIS
I have determined it is in the children’s best interests that:
(a)the parents have equal shared parental responsibility for the children;
(b)the children live with their mother in London;
(c)the father spend time with the children in accordance with the proposal of the Independent Children’s Lawyer.
RELEVANT PROCEDURAL HISTORY
On 19 August 2020, the mother filed an Initiating Application in the Sydney registry of this court. The matter was listed before me electronically on 27 August 2020 when Orders were made by consent as follows:
(a)the matter be listed for a directions hearing on 11 September 2020;
(b)the children to remain living with the mother in the United Kingdom until the adjourned date, without prejudice to the father’s rights to press the return of the children to Australia;
(c)the father to spend time with the children in London between 31 August 2020 and 8 September 2020;
(d)the matter be listed for a possible five day final hearing commencing 26 October 2020;
(e)the appointment of an Independent Children’s Lawyer.
On 11 September 2020, further Orders were made by consent relisting the matter for a mention on 16 September 2020, with the notation that the parties had been engaged in mediation in London, which was to continue on 14 September 2020.
On 16 September 2020, Orders were made by consent relisting the mention for 23 September 2020 and noting that the parties were continuing to engage in mediation in London and that the Independent Children’s Lawyer was seeking to speak to the children via video link prior to the mention date.
On 23 September 2020, the mention was again adjourned at the request of the parties until 8 October 2020.
On 8 October 2020, at the request of the parties, the matter was again adjourned to 26 October 2020 for mention, and the trial date was vacated to enable the parties to continue settlement negotiations in the United Kingdom. The orders also noted that the father departed the United Kingdom on about 3 October 2020.
On 26 October 2020, the parties again requested an adjournment of the mention until 2 December 2020 to enable settlement negotiations to continue.
On 2 December 2020, Orders were made adjourning the mention to 11 December 2020, as the father did not participate on that day despite an attempt to contact him on his mobile.
On 11 December 2020, at the request of the parties the matter was adjourned to 19 January 2021 for mention.
On 19 January 2021, Orders were made for a trial to commence on 26 April 2021, relevant procedural orders, including procedural orders for an electronic trial and an order for a family report.
On 26 March 2021, at the request of the parties, Orders were made adjourning the trial to 10 May 2021, together with orders providing for the Independent Children’s Lawyer to obtain information pertaining to the children from their medical and allied health professionals in the United Kingdom.
On 15 April 2021, further trial directions were made in anticipation of the trial commencing on 10 May 2021.
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.
By mid-2018, the father asserts that the relationship was irreparably broken down and he ended the Suburb H lease. The mother asserts that the father vacated the Suburb H property and moved into share housing accommodation for a year until August 2019. She asserts that during that time the father had ad hoc time with the children and overnight time on a handful of occasions either at the mother’s residence or in hotel accommodation which was booked by the mother.
In November 2018, the father commenced a relationship with his current partner. In February 2019, the mother attended the home of the father’s partner. Both parents are in disagreement about what occurred on that date. The mother again attended the home of the father’s partner in March 2019, and on 5 April 2019 the father applied for and was granted a provisional ADVO against the mother, for the protection of himself and his partner. The protection order expired in January 2020.
In May 2019, the mother and children travelled to the UK, which the mother asserts was undertaken to visit schools, friends, family and the mother’s UK home and to enable her to explore work opportunities. The father asserts that he believed the trip to be a holiday and was unaware that the mother was considering relocating to the UK with the children.
In August 2019, the father moved into the home of his partner in Suburb J, Sydney.
According to the mother, on 3 August 2019 the mother and father had a conversation about the mother and the children moving to the UK in 2020. The father denies that there was any conversation about a permanent relocation to the UK.
Between August 2019 and January 2020, the mother continues her preparation to relocate to the UK with the children, including obtaining vacant possession of her property in District B.
According to the father, in November 2019 the mother asked him if she could take the children for a holiday to the UK, Paris and Spain in January 2020 for a period of about 3 ½ weeks. He asserts that he agreed, provided the children did not miss too much school and was advised by the mother that she intended to leave on 28 January 2020.
On 28 January 2020, the mother and children left Australia and arrived in the UK, whereupon Y and Z were enrolled at a primary school in District B and X commenced school at K School. The mother commenced employment in March 2020 as a consultant, with flexible work hours.
On 2 March 2020, the father emailed the mother stating that he did not consent to the relocation of the children to the UK and requesting that the children returned to Australia.
On 9 April 2020, the father filed a Hague return application and on 31 July 2020 Orders were made for the children to return to Australia by 11 September 2020 with the mother, or handed to the father on 29 August 2020, if the mother did not accompany the children to Australia.
Between 31 August 2020 and 3 October 2020, the father spent time with the children in accordance with orders made in this Court. The mother asserts during this time numerous issues arose between the father and the children and that the father failed to spend time with the children, as provided in the orders and was available to him.
As at the commencement of the trial, the children remained living in the UK with their mother.
THE PROPOSALS OF THE PARTIES
The applicant’s proposal
Prior to the conclusion of the trial the mother provided a minute of the orders sought by her which were substantially in accordance with the proposal of the Independent Children’s Lawyer. The orders are as follows:
1.The parties shall have equal shared parental responsibility for X born … 2007, Y born … 2011 and Z born … 2016 (known together as “the children”).
2.The children live with the mother in the United Kingdom.
3.The children spend time with the father as agreed between the parties in writing and, failing agreement:
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 Father 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.
4. 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.
5. 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.
6.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 3 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.
7.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.
8.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.
9.That 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.
10.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.
11.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.
12.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 15 below.
13.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.
14.For the purpose of order 13, 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.
15.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.
16.In addition to complying with order 15 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.
17.That, in the event the father intends to spend time with the children in the United States pursuant to orders 15 and 16 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.
18.In the event the father has advised the mother in accordance with order 15 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.
19.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.
20.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.
21.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.
22.The parties shall be refrained 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.
23.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.
24.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.
25.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.
26.Liberty is granted to the ICL 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.
Documents relied upon by the Mother
The mother relied upon the following documents:
(a)Amended Initiating Application filed 27 April 2021;
(b)affidavit of the mother and exhibits filed 27 April 2021;
(c)affidavit of Ms L (mother’s friend) filed 27 April 2021;
(d)affidavit of Ms M (mother’s friend) filed 26 April 2021;
(e)Case Outline filed 5 May 2021;
(f)Documents tendered at the conclusion of the trial.
The Respondent’s proposal
Subsequent to the Independent Children’s Lawyer preparing a minute of orders sought, the father provided a minute of orders sought by him. The orders are as follows
1.The parties shall have equal shared parental responsibility for X born … 2007, Y born … 2011 and Z born … 2016 (known together as “the children”) and consult with each other about major decisions, including but not limited to the children’s:
a. Residence
b. Schooling
c. Significant medical treatment.
2.That the mother and father be solely responsible for making decisions regarding the children’s day to day care, welfare and development at those times when the children are in their care.
3.That the children live with the father in Australia.
4.The children spend time with the mother as agreed between the parties in writing and, failing agreement:
5. For any period of time that the mother is visiting Australia:
a.For an initial period of seven days, to commence at 10am or the conclusion of the school day after the mother arrives in Australia and to conclude at either 4pm or the commencement of school the day that is eight days after the mother arrives in Australia
b.Thereafter:
i.From the conclusion of school on Friday until the conclusion of school the following Friday and continuing each alternate week thereafter.
ii.Should the children move between the parents residences, the parent from which the children are departing is to ensure that the following are packed and returned to the other parent with the children:
(a) Any medication required to be taken;
(b) all school uniforms
(c) school bags;
(d) books;
(e) homework;
(f) lunch boxes;
(g) drink bottles;
(h)any other item of clothing that was purchased by the other parent.
c.For two weeks during the Australian Winter School Holiday period (June/July);
d.For three weeks during the Australian December / January Summer School Holiday period:
i.In Australia in 2022 and each alternate year thereafter, with the children travelling to the United Kingdom for this time;
ii.Unless otherwise agreed, such time is to commence at 10am on 23 December and concluding at 10am on 13 January.
iii.Reciprocal order for the Father to spend time with the children on Christmas Day.
e.For up to an additional 10 weeks at such other occasions as the mother may travel to Australia during a calendar:
i.The mother is to provide the father with no less than 14 days’ notice of her intention to travel to Australia and the dates on which she proposes to spend time with the children;
ii.Unless otherwise agreed, the mother is to collect the children from the father’s home at the commencement of her time with them and return them to the father’s home at the conclusion of the visit;
iii.In the event the mother’s proposed time with the children is to take place during school terms, the children may stay overnight with the mother, provided that:
(a)the mother stays in suitable accommodation no further than 45 minutes from each of the children’s school;
(b)the mother delivers the children to, and collects the children from, school each school day; and
(c)the mother facilitates the children participating in any extra-curricular activity that they would ordinarily participate in.
6.When the children are otherwise living with the father, he is to facilitate the children communicating with the mother via telephone or video chat:
a.Each Wednesday evening between 7pm and 8pm Sydney time;
b.Each Saturday evening between 7pm and 9pm Sydney time;
c.At such other times as requested by one or more of the children;
d.With the father to ensure that the children are afforded privacy during this call.
7.When the children are spending time with the mother, she is to facilitate the children communicating with the father:
a.Each evening at 7pm, for no longer than 20 minutes on each occasion;
b.At such other times as requested by one or more of the children;
c.With the mother to ensure that the children are afforded privacy during this call.
8.That 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.
9.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.
10.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.
11.The father is to retain the children’s original Australian and United Kingdom Passports, unless the mother is otherwise travelling overseas with them in accordance with order 14 below.
12.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.
13.For the purpose of order 12, 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.
14.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 twenty-one (21) 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.
15.In the event the mother has advised the father in accordance with order 14 above that she is proposing to travel internationally with the children during her time with them, the father is to provide the mother with the children’s passports at the time she collects the children, and the mother is to return the passports to the father with the children at the conclusion of her time with them.
16.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.
17.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.
18.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.
19.That both parties arrange for the children to attend upon a counsellor either at their school or a children’s psychologist to assist them in dealing with their parent’s separation.
a. That both parties share the costs of the children’s psychologist.
20.The parties shall be refrained 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.
21.That the mother and father refer only to the biological father of the children as “Dad” or “Daddy” and the biological mother of the children as “Mum” or “Mummy” and encourage the children to do so.
22.That the mother and father use their best endeavours to foster the children’s relationship with the other parent.
23.That the children’s surname not be changed.
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 solicitor for 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 ICL 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
Documents relied upon by the Father
The father relied upon the following documents:
(a)Amended Response to Initiating Application filed 28 April 2021;
(b)trial affidavit of the father filed 28 April 2021;
(c)affidavit in reply of the father filed 4 May 2021;
(d)Case Outline filed 5 May 2021.
The proposal of the Independent Children’s Lawyer
The orders sought by the Independent Children’s Lawyer are as follows:
1.The parties have shall have equal shared parental responsibility for born … 2007, Y born … 2011 and Z born … 2016 (known together as “the children”).
2. The children live with the mother in the United Kingdom.
3.The children spend time with the father as agreed between the parties in writing and, failing agreement:
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.
ii.Reciprocal order for the Father 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 Father 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.
4. 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.
5. 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.
6.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 3 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.
7.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.
8.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.
9.That 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.
10.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.
11.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.
12.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 15 below.
13.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.
14.For the purpose of order 13, 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.
15.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.
16.In addition to complying with order 15 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.
17.That, in the event the father intends to spend time with the children in the United States pursuant to orders 15 and 16 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.
18.In the event the father has advised the mother in accordance with order 15 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.
19.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.
20.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.
21.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.
22.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.
23.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.
24.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.
25.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.
26.Liberty is granted to the ICL 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.
Documents relied upon by the Independent Children’s Lawyer
The Independent Children’s Lawyer relied upon the following documents:
(a)the CAFCASS report dated 22 June 2020 prepared by Ms N;
(b)documents tendered at the conclusion of the trial.
PRELIMINARY MATTERS
Electronic Trial
The matter was heard electronically during the COVID-19 Pandemic, with the consent of all parties.
On 19 January 2021, I conducted a mention to allocate a trial date and to ascertain the views of the parties to conduct the proceedings electronically by Microsoft Teams. All parties were agreeable to that course of action, particularly as the mother was in London.
Procedural orders for an electronic trial were made and undertakings sought and accepted from Counsel as to the practicalities and logistics of the witnesses giving evidence and being cross-examined.
I am confidently satisfied that the matter was appropriate for an electronic trial and that justice and equity, and procedural fairness were afforded to all parties. I wish to compliment both Counsel for the manner and spirit of cooperation in which the trial was conducted and to thank Mr Stevens for the courtesy and respect he extended to the court.
Self-Represented Litigant
During the trial the father was self-represented, although he had previously been represented. I advised him of the requisite matters, in accordance with the guidelines referred to in Re F: Litigants in Person Guidelines (2001) FLC 93-072, and offered to provide him with a copy of the relevant provisions of the Family Law Act 1975 (Cth), which he declined.
Family report
On 19 January 2021, an Order was made for a family report. The family consultant attempted to electronically interview the children on two occasions, however the children were not made available. It later transpired that the mother had been unwell at the appointment times.
The trial proceeded with the assistance of the CAFCASS report, which was prepared for the Hague return proceedings.
THE APPLICABLE LAW
Evidence
The standard of proof in this case is the balance of probabilities (s.140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
The father and mother relied upon their respective affidavits. The affidavits recounted the history of the parties’ relationship and their parenting dispute. I have examined that evidence and do not propose to repeat it in these reasons. It is not necessary for a trial Judge to refer to every piece of evidence or argument presented during a trial.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:
[62] …A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
Credibility of Witnesses
Mother’s witnesses
The mother gave evidence and was cross-examined by counsel for the Independent Children’s Lawyer and the father. Additionally, the mother relied on the affidavits of two of her friends, both of whom were cross-examined by the father.
The mother gave evidence in a very forthright and direct manner and at times sought to lecture the court during her answers, many of which were non-responsive. She was rigid and inflexible in her responses and was not prepared to make any concessions which she perceived would be adverse to her case and her desired outcome. Her answers were crafted to accord with her myopic view of the dispute and took every opportunity to make negative statements about the father. An example was her response, when she was asked about positive attributes of the father. Her response was unduly negative and was demeaning of his role as a father. As referred to later in these reasons, I accept the findings of the UK court in the Hague proceedings about the father never having consented to the relocation of the children to London. Where there is a dispute in the evidence between the parties, I prefer the evidence of the father.
The affidavit of Ms L was phrased in terms of a very precise recollections about events, some of which occurred over 2 ½ years ago. For example, her recollections of telephone calls which occurred in September or October 2018 and the events which followed immediately after. She was generally responsive to questions asked and I accept her evidence.
Ms M was a responsive witness, who also impressed me as a truthful. She made appropriate concessions adverse to the mother’s case, for example she stated that she believed the mother’s plan was to return home after an extended holiday in the UK in January 2020.
The father gave evidence and was cross-examined by both counsel for the mother and the Independent Children’s Lawyer. He impressed me as an honest and responsive witness who seemed overwhelmed and disappointed with the proceedings he faced, in the context of having obtained an order for return of the children in the Hague proceedings. I accept his evidence unequivocally that he did not consent to the mother and the children permanently relocating to the UK. Where his evidence differs from the mother, I prefer his evidence.
Independent Children’s Lawyer’s witnesses
The Independent Children’s Lawyer did not call any witnesses. The author of the CAFCASS report was not required for cross-examination by counsel for the mother or the father.
Statutory Pathway
Relocation cases are determined in the same manner as all parenting cases, namely by following the statutory framework set out in the Family Law Act 1975 (Cth) (“the Act”), to determine what orders are in the children’s best interests.
In Taylor & Barker [2007] FamCA 1246, their Honours Bryant CJ and Finn J at [53] said:
[53]…when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child's future living arrangements, at least in so far as that approach is possible (see U v U (2002) 211 CLR 238 ; (2002) FLC 93–112 and Bolitho & Cohen (2005) FLC 93-224).
In Cowley & Mendoza [2010] FamCA 597, His Honour Murphy J stated at [31] as follows:
[31] …A "relocation case" is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances. A relocation case falls to be determined like any other parenting case…
Referring to relocation cases, his Honour Justice Kent in Heath & Hemming (No.2) [2011] FamCA 749 at paragraph [101] stated:
[101] Whilst the statutory framework does not deal differently or specifically with cases involving a proposed relocation from other parenting cases, such cases attract the description of “relocation cases” because they bring into sharp focus the central issue of balancing statutory imperatives concerning children's best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both “best interests” considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of "“best interests” may well mean that one party's choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child's “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
Part VII of the Family Law Act 1975 (Cth) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the act sets out how court is to determine what is in a child’s best interests.
The court must consider the matters in s 60CC(2) (the primary considerations) and s 60CC(3) (the additional considerations) of the Act. Each of those matters, where relevant, must be considered and assessed in the context of the respective proposals. The court must then determine which of the proposals is in the children’s best interests.
As the Full Court (May, O’Ryan & Strickland JJ) observed in Collu & Rinaldo [2010] FamCAFC 53 at paragraph [355]:
[355]…in determining best interests the obligation is to “consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all those matters, a trial Judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out”…
Section 60CC(2) of the Act provides that:
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
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).
I will firstly consider the primary considerations of the Act.
Part VII of the Family Law Act 1975 (Cth) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
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).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60CC(2) of the Act provides that:
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
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.
The mother asserts that her proposal, which is in accordance with the children’s professed wishes will provide a framework for the children to repair their relationship so as to enable all three to have a meaningful relationship with their father in the future.
On the contrary, she asserts that the father’s proposal will undermine the current delicate and strained relationship between the father and the two older boys, which will not enable them to repair their current relationship with the father and enjoy a meaningful relationship in the future. The relationship between the father and X is at best tenuous and the relationship between the father and Y is fractured. The relationship between Z and her father fortunately remains positive. The father’s proposal will obliterate any hope of a meaningful relationship between the children and their father in the future.
The father asserts that his proposal will ensure that the children will, in the future, develop a positive and meaningful relationship with him. From his perspective, the children have been embroiled in the parental dispute to the extent that the expression of their views and their conduct towards their father, has been adversely influenced by the mother.
The father asserts that the children’s right to a family life and family reunification can only be achieved if they are promptly returned to Australia. Prior to their removal to the UK, the children enjoyed an important, substantial and subsisting relationship with the father which has deteriorated to a significant extent since they were removed from Australia. He has no confidence that the mother will actively promote the relationship between the children and their father, if they remain in the UK in the care of their mother.
The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse
The mother asserts that the return of the children to Australia would place the children at risk of psychological harm because of the following factors:
(a)the father’s historical lack of commitment to the responsibilities of parenthood and the children’s acute awareness of same;
(b)the absence of any prior history of the father caring for the children or attending to their day-to-day needs for substantial or significant periods of time and the acute awareness of the children of this fact proves that;
(c)the father’s apparent lack of capacity to meet the special needs of X and his expectation of neurotypical behaviour in X which has caused numerous confrontations between the father and X;
(d)the absence of any real or realistic proposal of the father for the children to reside with him or spend significant periods of time with him and the impracticality of his proposal, having regard to:
(i)the father’s present circumstances of living in a three-bedroom house with his partner and her child;
(ii)the father’s evidence regarding his asserted flexible employment circumstances, when he has asserted on a number of occasions that his employment has supported his ability to spend time with the children in the UK since September 2020;
(iii)a concern that the father will not be able to arrange for X’s special needs to be met scholastically, due to the lack of subsidised support available in Australia;
(iv)X’s enforceable views that he will not return to reside in Australia;
(v)the father’s expectation that he does not really expect X to return to reside with him, which has been communicated to X on several occasions and as recently as at October 2020;
(vi)the real possibility that the children will be divided across the globe should the father’s application be successful, as it is unlikely X would return to Australia;
(vii)the real possibility that the children would be separated from their mother who has been the primary caregiver, as it is her position that she will not return to Australia in the event the children are ordered to return.
I am able to infer from the mother’s proposals for the father to spend time with the children, in the event an order is made for the children to remain in London, including permitting him to travel to the USA with the children, that she does not contend that the children would be at risk of psychological harm in the father’s care, during periods of time the children spend with him. I find that the father does not pose a risk to the children in any manner whatsoever.
The father refutes the mother’s contention that the children would be exposed to psychological harm. He submits that :
(a)child abduction is well recognised as being harmful to children;
(b)the court should not allow the mother to rely on a situation which she has brought about to frustrate the Hague return order;
(c)the mother through the wrongful retention of the children should not be allowed to create a situation that is potentially harmful to the children and then rely on it to establish the existence of a risk to the children;
(d)if the mother refuses to accompany the children to Australia, the children will be moving into a new house and new set of circumstances and although they will be parted from the mother, they will be resuming residence with their father who has, until recently been a regular presence in their lives.
I adopt those findings and agree with those comments.
Despite the detailed nature of the allegations against the father deposed to by the mother in her trial affidavit, she does not allege that the father has perpetrated any domestic violence directly on the children although I accept that the children may have been present during parental disputes.
What is of significance, is her proposal that the father spend time with the children for weeks at a time in both the United Kingdom and Australia and that he be permitted to travel internationally with the children, both from the UK to Australia and from the UK to the USA.
Such a proposal is inconceivable and inherently inconsistent, if the mother seriously considered that the father posed a current risk to the children, as an alleged perpetrator of family violence. The Independent Children’s Lawyer proposes orders substantially in the same terms and it would also be inconceivable that such a proposal could be submitted if there was any suggestion that the father posed a current risk to the children. I refer to my finding earlier in these reasons, that the father does not pose any risk to the children.
If a family violence order applies, or has applied, to the child or a member of the child's family - any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
Subsequent to an incident on 4 April 2019, when the mother attended the father’s girlfriend’s house, and during which the father alleges that she was abusive and threw Z’s birthday presents at him, the father obtained an AVO on an ex parte basis. The AVO extended to the father’s home, his girlfriend’s home and both their workplaces. The mother disputed the incident. The father’s application was adjourned multiple times between April 2019 and January 2020, at the Local Court. In January 2020, the father consented to the application being withdrawn. There was no hearing to determine the allegations or make findings. There haven’t been no subsequent family violence orders.
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
It is preferable that the orders which I intend to make will be least likely to lead to further proceedings.
Any other fact or circumstance that the court thinks is relevant
The father’s proposal for the children, if they were to return to Australia are that they would live with him and his partner, Ms BB and her 14-year-old son, who lives with his mother on a week about basis. The father and his partner currently rent a three-bedroom house in Suburb J although the father proposes that they would look for alternative rental accommodation which would be suitable to accommodate the children. The boys have not met the father’s partner or her son, although Z has briefly met her.
The father proposes that the children could be enrolled in schools they were previously enrolled in and that he would care for them outside school hours. He deposes to his employment enabling him to work flexibly from home to work around the children’s needs. Additionally, his partner would support his care of the children, although she has not met the boys.
The father was cross-examined by counsel for the Independent Children’s Lawyer about the practicalities of his proposals and he did not seem to think that there was any real impediment to the children living in rented accommodation with an adult and a 14-year-old, whom they had never previously met. I do not share his optimism.
The mother has steadfastly maintained that she will not consider a relocation to Australia even if the children are ordered to return to Australia, and she deposes to the following reasons:
(a)the circumstances of her employment in the UK and the lack of opportunities for commensurate employment in Australia;
(b)she does not wish to return to a country in which she and her children received poor treatment because of her race and gender, and a country which she has never considered as her home;
(c)the children would not view her as a positive role model if she simply gave up and returned to Australia;
(d)prior to leaving Australia, she was suffering severe depression and anxiety whereas since returning to the UK she no longer suffers mental health issues;
(e)she does not wish to return to an environment which she believes will compromise her mental health;
(f)she is finally sorting out her long-term health issues in the UK where her private health care is funded, whereas if she returns to Australia she has no private health care;
(g)she cannot show the children that she has stopped fighting for them and what is right;
(h)a return to Australia will destroy her relationship with X, as he will believe his mother has let him down and abandoned him and will therefore not trust her again;
(i)X needs his mother because of his disabilities and she will not destroy her relationship with him because of a wrong legal 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.
In support of his application that the children should be returned to Australia, the father submitted:
(a)he had never consented to the relocation of the children to the UK;
(b)his relationship with the children has significantly declined whilst they have been in the sole care of their mother;
(c)it is clear that the children’s views have been shaped by the influence of their mother and are not authentically their own;
(d)the mother could not be trusted to promote any positive relationship between the children and their father which was evidenced by her inability to say anything positive about the father during cross-examination and the fact that she had used the children to obtain voice recordings to be used as evidence in this proceeding;
(e)X’s legal representation in the Hague proceedings was orchestrated by the mother;
(f)the children were surreptitiously uprooted from their family, friends, schools and community and told by the mother that the father no longer cared about them;
(g)the children have a right to enjoy a family life and to rebuild their relationship with their father which can only be meaningfully promoted if they are returned to Australia;
(h)he has no confidence the mother will promote a relationship between himself and the children if the children remain in the UK.
In support of the minutes proposed by the Independent Children’s Lawyer, that the children should remain in London with their mother, Counsel for the Independent Children’s Lawyer submitted:
(a)pursuant to s 69ZX(3)(a) of the Act, the court should adopt the findings by Deputy High Court Judge Rees that the father did not consent to the children’s retention in the United Kingdom and that mother wrongfully retained the children in the United Kingdom;
(b)the other evidence adduced during the course of this proceeding supports the findings and in particular:
(i)the evidence from the school that the mother informed the school that it was a trip rather than a permanent move;
(ii)the evidence of Ms M that she also understood that the move would not be permanent, particularly as she was in daily contact with the mother, or at the very least on five occasions per week;
(iii)the evidence of Ms L about a conversation in July 2019 and not on 3 August 2019;
(c)such a finding is relevant to the attitude of the mother to parenthood and duties and responsibilities of a parent because one of the fundamental duties of a parent is to promote a relationship between the children and the other parent, and taking the children to the United Kingdom without the father’s knowledge or consent that it would be a permanent move, does not fulfil those responsibilities;
(d)despite the finding referred to in the previous subparagraph, the other factors relating to the welfare of the children outweigh the inference that the court would be entitled to draw against the mother;
(e)those factors include:
(i)the views of the children, in particular the two older boys, as stated in the CAFCASS report;
(ii)the results of the enquiry with K School as to how X is progressing at school, which appears to be a positive experience for him;
(iii)Y and X’s views that they both wish to stay in the United Kingdom;
(iv)X’s views as a young adolescent are clear and forcefully conveyed both in writing and verbally and his disabilities did not inhibit him from doing so;
(v)the conclusion that the level of the children’s maturity seem to be in line with their chronological ages, although neither had the maturity to understand the long-term impact of not having a balanced relationship with each of their parents;
(vi)neither child showed any real sense of missing the father or a sense of loss given his absence;
(vii)a year has transpired since the interviews took place and given the ages of the children now, significant weight should be accorded to the views expressed to the report writer and X’s views expressed to his father in recent telephone conversations;
(viii)Ms N’s view that to return the children to Australia against their wishes was likely to compromise the emotional well-being of both boys;
(ix)the loss of their mother would be a more significant developmental event than a return to Australia with their mother but against their expressed wishes;
(x)the effect of changing the children’s circumstances where they have lived in the United Kingdom for about 18 months or so is significant in this case;
(xi)the court should include an assessment of the quality of the children’s life at the moment including their care, wishes and progress, and compare it to their experiences in Australia;
(xii)by all accounts the children are settled in their school and community life in London, with evidence of the mother’s stability in relation to her accommodation and employment;
(xiii)in contrast, if the children were returned to Australia there is considerable uncertainty about the practicality of the arrangements and how the father would be able to cope with the children in the face of the obvious opposition to return;
(xiv)the practical problems of being introduced to the father’s partner and her son and how they will cope with being away from their mother;
(xv)the uncertainty about the schools they would attend and what professional assistance would be available to meet X’s needs;
(xvi)the practicalities of life in Australia presents significant uncertainties which could possibly amount to psychological damage to the children;
(xvii)there will inevitably be geographical problems in attempting to accommodate the children having a relationship with the non-resident parent, given that one intends to reside in the UK and the other in Australia;
(f)the orders proposed by the Independent Children’s Lawyer, although not perfect, present a sensible way forward in the context of the father’s evidence that he could travel on two occasions a year for the next few years;
(g)the only way into the future that the children are likely to have a relationship with their father, and in particular X, is for the children to remain living with their mother in the UK and for a proper arrangement be implemented for the father to have unsupervised block time with the children in accordance with the orders proposed;
(h)to move them back to Australia, with all of the associated problems a move would entail, would be too damaging to the children and the court should not undertake it.
As I agree with and have adopted the findings of the UK Court in the Hague proceedings, about the father’s lack of knowledge and consent to the removal of the children from Australia, it is an irresistible conclusion that the mother in doing so, had little, if any, regard for the relationship between the children and their father and clearly prioritised her own needs and desires to return to the UK, ahead of the children’s relationship with their father.
I agree with and adopt the submissions of Counsel for the Independent Children’s Lawyer. He was also critical of the mother’s actions, and quite properly submitted that was indicative of a deep failure to demonstrate her parental capacity and to encourage and facilitate a relationship between the children and the father.
However, I agree with his submission that failing must be seen in the context of the views of the children and their lived and settled experience in the UK since January 2020.
I am of the fervent view that these children need to maintain a positive relationship with their father, or in X’s case, to re-establish a positive relationship. The father has demonstrated to me that he has many positive attributes to contribute to the children leading a fulfilling and balanced life. Their mother and her myopic view of Australia, the country where they have spent considerable periods of their life, their father lives and of which they are citizens, has no doubt extensively contributed to the children’s views about their preference for life in the UK and lack of enthusiasm for life in Australia. However, Australia is part of their heritage and it would seem that only their father is able to provide a balanced and encompassing view of both countries, with which they have an affiliation.
But for the mother’s strident position that she would not accompany the children in returning and living in Australia, it would have been tempting to order the return of the children to ensure both parents play a fulsome role in their children’s lives in the future.
The obvious circumstances of the family are that the children are well settled into their life in the UK, happy with their schools, local community and accommodation. In particular, X’s school provides, free of charge an extensive programme for his special needs and his school report indicates that he is thriving and happy at the school.
That is to be contrasted with his educational experiences in Sydney, which were far less positive and do not provide him with the same level of assistance for his special needs. X has established himself within the school and local community and from his perspective he is achieving well and can foresee a bright future for himself. All of these positives of his life in London are no doubt factors driving his very forthright views about wanting to remain in London. His mother reinforces the positive aspects of life in London, which has reinforced his views to the extent that the father claims his views are not authentically his own. That may well be the case, but the problem is that X subjectively believes that to be the case and to dissuade him from that would be almost impossible.
I also have no doubt that the mother has fuelled the breakdown of the relationship between X and his father, even if unintentionally. The father’s evidence of the positive encounters between himself and X, whilst he was in London in August/September 2020, would have been in the context that X had been lead to believe that he would be able to remain in London and that the litigation would finally end He was aware of, or was informed of, the adverse impact of the litigation on his mother, including the financial consequences.
The attempt to have X independently represented in the Hague proceedings was obviously orchestrated by the mother, despite her obtuse evidence to the contrary.
The brief moment in the sun of the relationship between X and his father, is unlikely to have any other factual basis. The mother’s evidence is that the only way to repair the relationship between X and his father, is for X to be permitted to remain in London, and I agree with that position. In the context of X’s special needs and his rigid and sometimes uncompromising beliefs and views, it is difficult to consider otherwise. The father’s optimism that X would be amenable to returning to Australia without his mother and live in rented accommodation with the father’s partner and her son, whom he has never met, is unfortunately naïve and overly optimistic. I find it difficult to contemplate how it would even be possible to get X to board a plane to return, such is his over empowerment and involvement by his mother.
I am not persuaded that removing X from his current UK environment, in the face of his fervent opposition, would do anything at all to facilitate and encourage the relationship with his father, which he desperately requires. I have no doubt that he is incapable of a mature and objective analysis of the long term benefit of having a meaningful relationship with his father, nor acknowledging the detrimental impact on him of failing to bridge the divide in the relationship.
In terms of Y, the comments pertaining to X are also applicable to him. His relationship with the father is not as strained as X’s, but he also has been clearly drawn into the dispute by the mother. The list of grievances prepared for the CAFCASS interview are demonstrative of his enmeshment in the dispute. Like his brother, he perceives life in London to be much more advantageous and enjoyable for him. He seems to be enjoying school and making friends in contrast to the bullying he experienced in his Sydney school and has become well integrated into the local community.
Z has managed to maintain an excellent relationship with her father, despite the length of time she has lived in London and the lack of face-to-face contact between January and August/September 2020. That may be because she is younger and does not understand the dispute between her parents and has not been as enmeshed as her brothers. I am optimistic that relationship will continue in the future and Z will benefit from her relationship with her father.
Although the father had considered all the children resuming their previous schools and extracurricular activities, his proposal is predicated upon his flexible work hours and the children accepting living in a home with two people they with whom they have no relationship. I consider it highly unlikely that life would resume smoothly and without considerable objection and protestation from the children. The proposal does not address in any manner at all the likely effect on all three children of being separated from their mother, who has been their primary caregiver at least since separation and particularly so since January 2020. That effect would be significant and profound, particularly considering the evidence of both parents about what occurred during the father’s recent visit to London.
Regrettably, the only way forward for all three children, and in particular X and his father, is for the children to remain in London and spend time with their father in accordance with the proposal of the Independent Children’s Lawyer. That will enable significant periods of time between them, both in Australia and the UK, with the mother to meet half of the costs of travel. It must be kept in mind that this is a family who has engaged in international travel and have lived in both the UK and Australia. I am aware of the current limitations on international travel arising from the COVID-19 pandemic, but hopefully these restrictions will resolve as time progresses.
The nature of the relationship of the children will undoubtedly be different, with both parents living on opposite sides of the globe, but I am satisfied the orders which I intend to make will contribute to a significant improvement in the relationship between the father and X and Y. X, Y and Z will all be able to remain in London in the environment which both boys perceive is so advantageous to them. The mother will have the reassurance of stability and continuity in her current circumstances, including her housing, employment and income. I am hopeful that the mother will have sufficient insight and self-reflection after experiencing two difficult sets of litigation, to put her past hostility towards the father behind her, and appreciate the benefit to the children of the father’s involvement in their lives. Not to do so may well have far reaching future consequences for the children.
Parental Responsibility
Section 61DA of the Act provides, 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. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child’s parents to have equal shared parental responsibility.
Both parties and the Independent Children’s Lawyer seek an order that the parties retain equal shared parental responsibility for the three children.
I am also of the view that the statutory presumption of equal shared parental responsibility should apply in this case. There is no evidence to rebut the presumption and indeed neither party sought to do so. I accordingly intend to make an order that the parties retain equal shared parental responsibility for their three children.
The statutory pathway is not relevant to the current dispute about which country the children should live in.
Application for costs by counsel for the Independent Children’s Lawyer
At the conclusion of his final submissions, Counsel for the Independent Children’s Lawyer informed the court that he was obliged to make an application for a contribution towards his costs. However, in doing so he acknowledged the very significant travel costs which the parties would face in the future as inevitably the parents would be living on opposite sides of the world.
I am of the view that there should not be any order for costs made against either parent for the same reasons as proffered by counsel for the Independent Children’s Lawyer. The proposals for the children to spend time with their father involve significant amounts of international travel, both for the father and the children which will be a shared expense between the parties. Accordingly, I do not propose to make any order for costs.
I certify that the preceding two hundred and thirty-one (231) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 10 June 2021
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