Dejna and Dijak

[2020] FamCA 32

FAMILY COURT OF AUSTRALIA

DEJNA & DIJAK [2020] FamCA 32

FAMILY LAW – CHILDREN – Application to remove the children’s place of residence to the Netherlands – Where both parties are Dutch nationals – Where there is a risk the parties and children may be deported from Australia once the father’s employment ceases

Family Law Act 1975 (Cth)

Goode & Goode [2006] FamCA 1346.

APPLICANT: Mr Dejna

RESPONDENT: Ms Dijak

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 3797 of 2018

DATE DELIVERED: 17 January 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Henderson J

HEARING DATE: 14 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Clifford

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Mr Lo Schiavo

SOLICITOR FOR THE RESPONDENT: Voice Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Norris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

ORDERS

IT IS ORDERED BY CONSENT AND PENDING FURTHER ORDER THAT:

1. That all prior parenting orders be discharged.

   Removal of Airport Watchlist Order:

2. That the children be removed from the Airport Family Watchlist and that the Australian Federal Police give effect to this order by removing the names of the said children from the Airport Family Law Watchlist enforced at all points of arrival and departure in the Commonwealth of Australia immediately.

   Relocation to the Netherlands:

3. That the father be permitted to relocate the residence of the children to the Netherlands.

4. That in order to facilitate the children relocating to the Netherlands:

   (a)       By no later than 1 February 2020 the mother travel to the Netherlands. In the event that the father’s employer does not fund the mother’s travel than the father shall be responsible for the cost of her travel in first instance;

   (b)       Within seven (7) days from the date of these orders the father’s legal representative inform the mother’s legal representative and the Independent Children’s Lawyer of the planned date of arrival in the Netherlands upon making arrangements for the children to leave the Commonwealth of Australia with such departure to occur no later than 8 February 2020

   (c)       Upon arrival in the Netherlands the father shall forthwith provide confirmation in writing via email with such communication to be provided to the mother’s legal representative and the Independent Children’s Lawyer.

   Parental Responsibility:

5. That the father have sole parental responsibility for the children X born … 2007 and Y born … 2009 (“the children”) in relation to making decisions and arrangements for:

   (a)       The children’s school enrolments in a school near their residence;

   (b)       The registration of the children as residents in the Netherlands;

   (c)       The children to attend upon their local general practitioner to obtain any referrals / recommendations to paediatricians and / or psychologists for the children to consult and prescriptions for Y’s medication as needed;

   (d)       Obtaining private health insurance.

6. For the purposes of order 4 above the father shall provide documents to the mother by email to her nominated email addresses within seven (7) days of making such arrangements.

7. That the father shall email the mother at least fortnightly to provide photographs of the children, and information concerning the children’s education and health care including but not limited to school reports, certificates and medical information.

   Spend Time / Communicate With:

   Pending relocation

8. That pending the children’s relocation to the Netherlands pursuant to these orders the children shall spend time with the mother:

   (a)       Each week, for a period of not less than two (2) hours on a day of the week agreed and failing agreement, each Tuesday, with such time to be supervised by AA Service or such other agency as agreed between the parties;

   (b)       The father be solely responsible for the payment of the supervision service.

   After relocation

9. The children spend time with the mother as agreed.

   Registration of orders:

10. Both the mother and the father do all acts and things to file an Application for Registration and recognition of these orders in the Netherlands prior to leaving the Commonwealth of Australia with the children.

11. Upon compliance with Order 10 above both parties’ legal representatives shall email to the other’s legal representative and the Independent Children’s Lawyer a copy of the confirmation of filing from the Court in the Netherlands and provide copies of all documents filed.

    Restraints / Injunctions:

12. That the parties be restrained from doing or saying anything to obstruct or prevent the registration of the children in the city council’s register as residents of the Netherlands, the enrolment of the children in a school near their residence, and the registration of the children with their general practitioner and the private health insurance in the Netherlands as may be arranged by the father.

13. That the parties be restrained from denigrating the other party to the children or in the presence and / or hearing of the children.

14. That the parties agree the Netherlands is the children’s habitual place of residence and are not permitted to permanently remove the children therefrom pending further order of the Netherlands Court.

    Additional Orders:

15. That the parties shall notify the other immediately of any serious injury or illness suffered by the children whilst in that parties’ care.

16. That the parties shall notify each other not more than twenty-four (24) hours after any change of their residential address, contact telephone number and / or email address.

17. That leave be granted to the parties to have photocopy access to all subpoena documents and provide copies of those documents as well as any documents, orders and / or expert reports filed in these proceedings to their respective legal representatives in the Netherlands and the Court.

    Future conduct of the proceedings:

18. That the parties’ respective parenting Applications be stood over to 9 June 2020 at 10am to consider any application made to dismiss the proceedings and possible costs application.

19. Leave be granted to the parties’ to relist the matter at short notice by approaching Her Honour’s Associate in Chambers.

    Payment to the Mother:

20. By no later than 4.00pm on 25 January 2020 the father transfer to the trust account of the mother’s legal representative the sum of €14,979.00.

21. The father asserts the payment referred to in Order 20 herein is in compliance with Dutch Orders made … October 2019.

22. The mother intends to appeal the Dutch Orders made … October 2019.

    NOTATION:

    (a)       This Court requests that these Orders be recognised by the Court of the Netherlands as interim parenting orders.

    THE COURT ORDERS PENDING FURTHER ORDER:

23. That the mother provide to her legal representative a copy of her itinerary for her flight to the Netherlands and in the event of an emergency the father may request that itinerary via his lawyers and they are to forward it to him as soon as possible.

24. That the children live with the father in the Netherlands.

25. That the father retain the children's new Dutch passports upon those being issued.

26. The mother be restrained from attending upon any school in which the children attend in the Netherlands at times when the children are reasonably expected to be in attendance at that school.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dejna & Dijak has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3797 of 2018

Mr Dejna

Applicant

And

Ms Dijak

Respondent

REASONS FOR JUDGMENT

1. This was an interim application by a father, to remove the children of the marriage, X, born in 2007 and Y, born in 2019 to the Netherlands.

2. The parents agreed at the interim hearing on 14 January 2020 that the family should all return to the Netherlands, a country where they each have a nationality and the issue for me were the terms and orders surrounding the orderly removal of the children to the Netherlands.

3. Ms Clifford of Counsel acted for the father, Mr Lo Schiavo of Counsel for the mother and Ms Norris, solicitor, represented the children.

4. At the interim hearing, it was agreed that I would make the minimum orders required, that the orders I made would be interim only and as both parties intended to pursue proceedings in the Netherlands in relation to parenting and for the mother, her intention is to file an appeal against final property orders, which had apparently been made on an undefended basis against her in October 2019 in the Netherlands it was an imperative that nothing this Court did would interfere with the Court in the Netherlands exercising its unfettered jurisdiction.

5. Currently, the children live with their father and spend no time with their mother. The best that has been able to be achieved for this family is that there has been some time with the mother and X, supervised by AA Service, which time commenced on 10 December 2019 and X has seen his mother on 6 January 2020, 2 January 2020, 23 December 2019, 17 December 2019. However, Y has refused to see his mother at all.

6. The AA Service report which was exhibited as father’s exhibit 1 are reports of the sessions with the mother and the children and indicate an extremely fractured and difficult relationship. For example, when X challenges his mother as to his view of her prior behaviour and conduct, I formed the view from reading the material that the mother responds in a non-child-focussed way, at times.

7. The mother has not acknowledged that she has not told the children the truth at times, acknowledged that this is how they feel about her conduct, that she has said hurtful things about their father and his family and that she was abusive to the father in front of the children. For X, in particular, he says she has laughed at him and called him names.

8. One only has to read the mother’s Affidavit, which is basically a litany of complaints about the father, laying total responsibility for this sad state of affairs at his feet and running him down both as a parent and a person, to understand how it is that the children have formed the view that their mother is very negative towards their father and his family, and that her focus is very much on her needs and that she has difficulty in respecting the difficult position her children have found themselves in, in this high conflict marital split.

9. I looked in the mother’s Affidavits for some insight into how she could retrieve this situation, but all I could see is her position that the children should be living with her. I am concerned that if the mother does not gain some insight into her role in this significant sadness of the children not wanting to even see their mother, let alone spend time with her, this situation may continue.

10. From a reading of the AA Service notes, the mother has, at times, been both combative with and careless about the children’s feelings, especially X’s, because he is the only one that has seen her. For example, the notes reveal that X told his mum she must apologise to him for her behaviour towards him and their father, that she has called him a beast and that she has lied to him and laughed at him. The mother has not acknowledged any of these feelings of her son when he was telling her how he felt, and this would have been hard for him and come at some emotional cost. It seems to me the mother did not understand this at the time.

11. On 23 December 2019, X told the supervisor he did not want to be around his mother if she was going to be laughing at him, since he had said his mother had tried to kill his dad with a knife. Upon X saying this, the mother laughed. The mother’s explanation upon laughing at this comment was, “I’m laughing because this is how you think of what happened.” There was no words such as, “I’m sorry for laughing at you X, it was a nervous reaction.” Or some other explanation.

12. Most importantly and poignantly, on the next occasion where X sees his Mum, on 2 January 2020, X remonstrates and challenges his mother about the last occasion because it is clear to me he does want some relationship with her as he is telling her how he feels. Her response to him saying she laughed at him was “I wasn’t laughing, it was a nervous reaction.” This is a prime example of the mother failing to accept responsibility for her conduct and the impact of her conduct upon her children – or her child – and her inability to acknowledge her children’s feelings and this is a significant deficit in the functioning of any parent.

13. I might be justified in forming an opinion even on an interim basis, based upon the mother’s own written material, the orders she has sought, her intransigence in not agreeing – until this interim hearing – to allow the children to return to the Netherlands in circumstances where such a return was not only in their best interests, but an inevitability, failing to forthwith and as quickly as possible, comply with the Orders of 19 December 2019 to sign all documents to have the boys’ Dutch passports issued forthwith and from reading the notes of the contact with X that these proceedings, from the mother’s point of view, is about her and the position she takes is rather more focussed on her needs than what is best for her children. I do not say I form that view, this is an interim hearing, however, there is evidence to support such a position.

14. Now, the agreement the parties reached – and they did reach an agreement, to their absolute credit, with the invaluable assistance of the Independent Children’s Lawyer – was as follows:

    a)All prior parenting orders be discharged;

    b)The children’s name be removed from the Airport Watch List;

    c)The father be permitted to relocate the residence of the children to the Netherlands;

    d)The mother to travel to the Netherlands by no later than 1 February 2020 and if his employer does not pay that airfare, the father will pay that airfare;

    e)The mother will provide her legal representatives with her travel itinerary and if there is an emergency, that can be requested from them by the father or his lawyers and that will be provided to him forthwith;

    f)The father inform the mother within seven days of his intended arrival in the Netherlands and he agrees he will depart Australia no later than 8 February 2020;

    g)That the father have sole parental responsibility for the children in relation to the following matters:

    i)school enrolment;

    ii)registration of the children as residents in the Netherlands;

    iii)the children attending upon a local general practitioner and obtaining private health insurance for them.

    h)The father is to provide documentary evidence of his compliance with this Order to the mother within seven days of having made those specific arrangements for the children;

    i)The father will email the mother photographs of the children and information concerning their education and health on a regular basis;

    j)The father will continue to facilitate AA Service to provide supervised time with the mother with X and, if at all possible, with Y, of not less than two hours on one day of the week, as agreed, until the mother departs for the Netherlands and the father to pay those costs. When the children are in the Netherlands, it will be time as agreed;

    k)Both the mother and father are to do all acts and things, to file an application for registration in the Netherlands of the recognition of these Orders as Interim Orders of this Court, prior to them leaving for the Netherlands;

    l)Each party shall provide to the other written notification of their compliance with the Registration Order, there were various restraints sought in relation to not hindering the children being registered as residents, et cetera. Restraint from denigrating the other parent to the children;

    m)The parties agree that the children’s place of habitual residence is the Netherlands and they will not change that residence, pending further Order of the Court, unless by agreement, of course;

    n)Either party will notify the other if there is a serious illness for the children immediately;

    o)They will keep each of them informed of their residential address and contact details;

    p)The parties have leave to photocopy the documents produced in these proceedings, they may wish to use those documents in the Netherlands Court and, in particular, the extensive reports that have been prepared by Dr C and Dr D;

    q)The wife’s property application and the parenting application is stood over to 9 June 2020 to determine how things are going in the Netherlands and whether there are any proceedings on foot then, at that time, in Australia;

    r)The parties can approach my Associate to obtain a return date if there is difficulty with these Orders;

    s)The father will pay to the mother a sum of €14,969:

    i)That the Court notes that the father asserts this a payment made by him in accordance with the Netherlands Court’s Order of … October 2019, and the Court notes the mother proposes to appeal those Orders.

    ii)The mother’s legal representative will notify the father’s lawyers forthwith, upon receiving that payment; and

    iii)That this Court requests that the Court in the Netherlands recognise these Orders as Interim parenting Orders only.

15. There are a suite of orders sought by each of the parents, which were not agreed.

16. For the father, an order that:

    a)   The children live with him;

    b)     That the father retain the children’s Dutch passports once issued to him;

    c)   That the mother be restrained from attending the children’s school in the Netherlands; and

    d)     That the mother’s application for property settlement in Australia be dismissed and the mother pay the father’s costs.

17. For the mother, she sought:

    a)   The children reside with the father in LL City, pending further Order of the Court;

    b)     The children be enrolled in an international school within LL City province;

    c)   The father pay her A$150,000 prior to departure from Australia, for her legal fees; and

    d)     That the father is not allowed to return, or live, or work in Australia with the children, until the children are both over the ages of 18 years.

18. I was concerned about the nature of the orders the mother sought apart from the order concerning approaching the children’s school which was a very wide order indeed.

19. The evidence that I read for the parties was as follows.

20. For the mother:

    a)Affidavit of Ms B, 25 July 2018;

    b)Affidavit of Mr HH, 25 July 2018;

    c)Mother’s Affidavits of 25 July 2018, 4 December 2019 and 7 January 2020, and the annexed tender bundles;

    d)Affidavit of Ms F, 30 November 2018; and

    e)Affidavit of Ms G, December 2018.

21. For the father:

    a)Affidavits, filed 7 January 2020; 2 December 2019;

    b)Affidavit of Ms K, filed 28 February 2020;

    c)Affidavit of Mr L – one of the children’s treating therapists filed 2 December 2019;

    d)Affidavit of Mr E – one of the children’s treating paediatricians – filed 2 December 2019;

    e)Affidavit of Mr M – the children’s psychologist – filed 9 December 2019;

    f)Affidavit of Dr D, child and family psychiatrist, filed 2 December 2019; and

    g)The supervised contact reports.

1. I have reread the report of Dr N, who is the joint expert.

2. I read both parties case outlines, the summary of argument and chronologies.

3. Affidavit of Ms P, sworn 13 December 2019, in relation to the proceedings in the Netherlands and the rulings made in that Court in relation to property.

4. Affidavit of Ms Q, sworn 18 December 2019 in relation to the final property orders that the mother has said she will appeal from.

5. The father’s tender bundle to his Affidavit of 7 January.

6. Importantly, a letter from the father’s employer, dated 17 November 2019, in relation to what I regard as the most generous proposal of his employer – R Company – upon he, the children, and the mother’s relocation to the Netherlands to support the family living in that country.

7. I have read a balance sheet of the parties’ property overseas, which was proposed by the mother, and the orders proposed by the parties, including that of the Independent Children’s Lawyer.

8. For my purposes, the chronology is both the personal chronology and a history of the proceedings.

9. The father is 44, he is a Dutch and Country S citizen, holding a passport in both countries.

10. The mother is 39, she is a Country S and Dutch citizen, holding a Country S and Dutch passport.

11. The parties commenced cohabitation in November 2005 and from November 2005 until February 2011, they lived in the Netherlands.

12. In 2007, X was born and he holds a Dutch and Country S passport.

13. In 2007, the parties married in Country S.

14. In 2009, Y is born and he holds a Dutch passport, and he has a confirmed Country S citizenship, which would enable him to obtain a Country S passport.

15. 2010, the mother commences consulting with medical professionals in the Netherlands in relation to her mental health and behaviour, and she has continued to consult with various professionals in the various countries she has lived in.

16. February 2011, the parties moved to Country T and lived in V City until August 2014.

17. In September 2014, the parties moved to W City and lived there until September 2017, due to the father’s employment with R Company.

18. Both the mother and the children’s mental health deteriorates in Country Z where the father is often away on business trips in connection with his occupation and finally, the father is successful in having his family transferred to Australia. It was a very difficult time for everyone in Country Z.

19. The allegations are, from the father’s point of view, that in April 2017, X sees his father being threatened by his mother, with a knife, and X refers to this in the AA Service notes.

20. In July 2017, the father filed an application for divorce and custody of the children in Country S.

21. On 4 October 2017, the parties moved to Australia and the mother continued her treatment with various therapists, the father continues his position with R Company and the parties become concerned about the children and begin to consult various psychologists, paediatricians and other child therapists.

22. The children are enrolled in school in Sydney.

23. 16 November 2017, the mother becomes aware – she says, initially – of the Country S divorce proceedings and she contacts the husband’s employer and requests to be repatriated, with the children, to the Netherlands.

24. The mother files a response to the Country S divorce proceedings on 8 January 2018.

25. On 3 February 2018, the police are called by the mother to their home and this results – strangely – in the father taking out an AVO against the mother, which is withdrawn by police on 6 February 2018, and the mother says an apology was offered to her by the police.

26. Be it 3 February or 5 February 2018, the mother leaves the former matrimonial home on either of those days, and that is effectively the end of the marriage.

27. 7 February 2018, the mother files an amended response in the Country S proceedings. The father files a response on 13 February.

28. 24 February 2018, the father seeks the mother’s visa in Australia be cancelled, as his marriage was over.

29. 26 March 2018, the Country S Court discharged any claim for custody of the children and child maintenance.

30. From 27 March 2018 to 9 September 2018, the mother lives in a women’s refuge. Since September 2018, she has lived in private accommodation paid for by the father’s employer.

31. 15 June 2018, the father files an application in the Australian Courts in relation to the children.

32. 20 July 2018, he files for an application for property settlement in the Country S Courts. The mother files an application for property settlement in the Australian Courts on 30 November 2018.

33. In 2019, a divorce is granted in Country S.

34. 18 March 2019, the father submits an application in Country S – or a settlement – of a prenuptial agreement

35. Through 2018 and 2019, the mother, at times, her father at times and a Ms BB from the women’s refuge – where the mother was living for a substantial period of time – contact the father’s employer at R Company on her behalf. There is documentary evidence to support the father’s assertion that this contact caused him significant difficulty in maintaining his position in Australia, but that is a matter for another Court.

36. In February 2018, X told his father he wanted to kill himself, cannot live with his mother, and he grabs a steak knife and pointed it to his chest. The child commences some therapeutic intervention. X spoke to his general practitioner – Dr CC – about his panic attacks, arguments with his mum, having suicidal ideation and is then referred to Mr E, a child psychiatrist.

37. On 3 February 2018, the mother left the home and the father commenced Y on a course of Ritalin, which had been prescribed by a Dr DD in early 2018, but that had not occurred until after February 2018.

38. The mother attended the FF Hospital after separation, saying she was a victim of domestic abuse.

39. On 5 February 2018, the mother returns to the home and attempts to take Y. She is stopped by X and the paternal grandfather, who was assisting the father and a nanny to care for the children whilst continuing to work.

40. The paternal grandfather intervenes and the mother leaves the property, and she makes a complaint to the Suburb GG Police that her 10 year old son verbally abused her and pushed her against a wall, and this is - as best I can determine on an interim basis – part of the genesis of the difficulty with the mother’s relationship with X and what he is talking about to her at the AA Service notes.

41. On 1 March 2018, the mother appears – unannounced – at the children’s school, to collect Y. A teacher intervenes and the paternal grandfather and his nanny collect him.

42. 26 March 2018, the Country S Court delivers a judgment in relation to divorce and spousal maintenance and the mother had withdrawn her consent to parenting proceedings being dealt with by the Country S Courts.

43. On 7 June 2018, the mother attends Y’s school again. The child sees her, becomes panicked, the staff keep him in a separate office until his father collects him from school.

44. 14 June 2018, the father commences parenting proceedings.

45. 27 July 2017, Rees J makes Consent Orders on an interim basis that:

    a)The children live with their father;

    b)Noting the mother had made an appointment to attend upon her psychiatrist and will continue with that appointment and will continue to attend upon her psychologist regularly;

    c)Noting that the respondent mother’s medical costs are paid by the father’s employer;

    d)That the mother be permitted to communicate with the children indirectly, by letters, through their respective treating psychologists, Mr J and Mr L;

    e)The mother maintain her authority to allow the children’s psychologists and psychiatrists to consult with each other;

    f)She undertakes not to attend the children’s school when the children are reasonably anticipated to be in attendance;

    g)The father is to keep the mother informed of their progress.

46. On 14 August 2018, the mother posts denigrating information to Y on Facebook, about his dad.

47. The mother has an appointment with Dr KK, the HR Director for R Company – the father’s employer – in relation to the issues the father’s employer is having with the father remaining in Australia consequent on the breakdown of the parties’ marriage and relationship.

48. The father is informed on 24 August 2018 that the company has determined not to follow the doctor’s recommendation that the family remain in Australia. The father and mother, at that time, wished to remain in Australia as the children were beginning to settle down from the Country Z experience and were progressing reasonably well at school, and enjoying school.

49. The father receives a letter on 28 August 2018 from his employer that his assignment in Australia will end on 31 January 2019, by which time he is expected to have returned to the Netherlands, despite his initial contract being until – I think – September 2021.

50. The father takes immediate steps and provides the opinions from the children’s psychiatrists and psychologists of the impact this would have upon them, and R Company determine not to pursue that decision at that time and to review the position on an ongoing basis.

51. On 21 February 2019, the mother files an application seeking interim parenting and property orders, and that the final proceedings be expedited. This application for expedition was not actioned and I apologise to the parties for that serious fault in the system. It was not actioned until a particular Registrar saw it in December 2019 and brought it to my attention and I can only, again, apologise to the parties for that.

52. On April 2019, R Company was pressing the father to move to the Netherlands and the father asked them to reconsider this whilst Australian proceedings were on foot, particularly in relation to the children.

53. There were some limited video calls between the mother and Y in May 2019.

54. On Y’s birthday – mid 2019 – the mother attends the father’s home with two police officers and the child became very upset. This is a prime example of the mother’s clear distress at not spending time with her children, understandably, overwhelming her and her consequent actions having a very negative impact upon the children.

55. In September 2019, the father’s visa expired and he applied for a bridging visa for himself and the children.

56. In October 2019, the father arranged for some face to face time between the mother and children, supervised by EE Service as recommended by the Independent Children’s Lawyer. The mother declined to use EE Service and six weeks went by without the children spending any time with their mother.

57. In October 2019, the Judgment of the Court of The Hague, determining the property settlement between the parties is delivered. This is the Judgment the mother is to appeal from, she tells me.

58. On 19 October 2019, the father received a formal letter from his employer, regarding the final decision they have reached, which the assignment of his Australian position was confirmed to end in December 2019.

59. The mother agrees to some counselling with a Ms JJ in which regular sessions are to occur in an endeavour to bring the mother and children together in some fashion.

60. On 13 November 2019, the father was threatened by R Company, to cease paying his salary if he does not return to the Netherlands.

61. On 2 December 2019, the father files an Application in a Case seeking an interim order he be able to remove the children to the Netherlands. This is the application which is the genesis of the hearing before me.

62. 19 December 2019, orders are made for the children’s passports to be renewed, both parties to do all acts and things necessary, and sign all consents – and the mother did not carry this out immediately or as quickly as she could have, until shortly before the interim hearing.

63. The father is currently on what is described as “garden leave”, which is a form of paid leave – and that is described by his employer in the letter of 17 December 2019 which is annexed to his material and it is important that I read out the terms of that letter so that it is on the record, the terms of the father’s, and mother, and children’s return to the Netherlands and what his employer will provide:

    Dear Mr Dejna,

    On 11 November, you received the letter confirming your assignment will end 31 June 2019. You will return to R Company as confirmed, your suspended employment contract with R Company will resume and the regulation in force at R Company will once again be applicable as of 1 January 2020. As discussed in the phone call, below is the overview of the terms and arrangements as of 1 January 2020. R Company’s returning expat policy is to search for a period of six months for other positions when you are in the Netherlands.

    The search period starts immediately after the end of the assignment. You will be exempted from duties while receiving your non-expat salary and this, your employment agreement, ends on 1 July 2019. Your salary will be €154,967 and we (R Company) and you will jointly look for other positions within R Company. If you are not able to secure another role in the company within six months, your employment contract will end on 1 July 2020 and the termination agreement was attached to this letter.

    In addition to this, you will be entitled to the following.

    We will support you and your children with a monthly housing allowance of €3600, we will also support your spouse for the duration of the maximum six months with a housing allowance of €2300 starting 1 January 2020. 1 January 2020, we will support you with a car allowance of €500 per month. Schooling for your children was already paid for until April 2020 and we will extend contribution of reasonable schooling fees until 1 July, upon submission of an invoice.

    As an exception, we will continue medical insurance until you return to the Netherlands. When you return, this insurance will lapse and you will need to have arranged for your own –

64. There is discussion about other matters such as removal and transport of goods, taxes, and others basics and terms of the move to the Netherlands.

65. A similar proposal was foreshadowed to the husband in a letter of 9 October 2019 which was exhibited before me.

66. Going now to the orders I am asked to make which is both the consent orders, but most particularly those which are contested.

67. They are parenting orders, and in so doing, I must have regard to section 60CC(2) and (3) of the Family Law Act 1975 (Cth) “the Act”, and follow the pathway set out in Goode & Goode[1].

    [1]Goode & Goode [2006] FamCA 1346.

68. On an interim basis, the parties have agreed to rebut the presumption of equal shared responsibility for specific areas only. I will not today determine whether the presumption should be rebutted on an interim basis in that the totality of the presumption reside solely with the father, however, make the following comments.

69. At this point in time, I cannot see how such responsibility can be shared as the parties cannot communicate. The mother is totally distrustful of the husband, and did not even comply with my Order of 19 December 2019 to forthwith sign the documents in relation to the children’s passports, when there was a degree of urgency in so doing.

70. The mother’s attitude to her children as set out in the notes of the supervised time.

71. Her stubborn refusal until 14 January 2020 to agree to the father and the children returning to the Netherlands, despite his employment being terminated in Australia, their Australian visas, therefore, being terminated, and she and the father and the children being in Australia without any income, access to Medicare benefits, perhaps the children not even being able to attend to school and the like, given that Australia is no longer a kind country, and having regard to the generous position taken by the husband’s employer of providing him with his income for six months, rent for a property for him and the children and the mother if they return to Netherlands.

72. It is clear to me the mother has been at times unable to focus on what is best for her children, and the father is the only parent with this capacity at this time.

73. As I have not rebutted the presumption of equal shared parental responsibility I must consider whether I should make an order for equal time or significant and substantial time. The reality is I can make no order for any time with the children and their mother as Y simply refuses to spend any time with her and X has spent time supervised for a limited period only. Y will not even speak to his mother, and on the last occasion X had time with his mum, he had difficulty speaking to her, even though he has spoken to her previously. Thus, I will make no order for time and could not do so on this evidence.

74. The father is the only parent who is able at this stage to provide for the children’s psychological, emotional and educational needs, and that can only be carried out in the Netherlands, and that should have been apparent to the mother from at least the date of the letter of his employer of 9 October 2019, when it became clear he would get no extension of his assignment from 31 December 2019. This position was made abundantly clear by the letter of 17 December 2019 which was a letter received two days prior to the interim hearing before me on 19 December 2019 when there was still an intransigence from the mother in the children returning to the Netherlands.

75. Now, true to their word, the husband’s employer has confirmed in their letter of 17 December 2019 that the father’s position is no longer available in Australia, and the mother still refused to agree and was tardy in signing necessary documents so that the children’s Dutch passport could be updated to enable them to travel from Australia to the Netherlands.

76. If the father had no employment in this country, he had no visa. He had no right to stay and neither did the mother or the children. They would be denied Medicare benefits, and perhaps the children’s schooling, had no money for accommodation, and no ability to access social security. Yet, the mother persisted. The father’s employer had not only paid for the father and children’s accommodation, but also the mother’s accommodation and her medical expenses post-separation, and this was to continue in the Netherlands, and, still, the mother could not see her way clear to make a decision which was clearly in the children’s best interest early in December despite Australia holding nothing for this family. Only the Netherlands did.

77. The wishes of the children are not relevant, as without their father’s visa they have no right to live in Australia and would be deported by our authorities with one of their parents.

78. Both the parents and children being in the Netherlands will obviate instantly any difficulty of the children spending time with or communicating with each parent, and given they will not communicate with the mother at this stage, or Y will not, and X does, but it is difficult for him, this is not a particular focus of my decision.

79. For all these reasons, it is proper I exercise a discretion to make the interim orders sought to enable the children and their father to return to the Netherlands, and to additionally make the orders sought by the father the children live with him when they return as there is no other order to make, given that Y will not speak to his mother, X will only spend limited time with his mother supervised by a third party, and for the mother to have resisted that order being made on an interim basis is inexplicable to me. I am merely by order confirming the reality to this family, and I do not understand the mother’s opposition to this order being made.

80. Going now to the remainder of the contested orders. I will allow the father to keep the children’s passports once they are obtained by him. The mother’s assertions that in some way he will spirit the children away, falls on deaf ears. There is no support for her assertions. He has never behaved in that fashion, and I will not make an order restraining a parent from exercising parental responsibility unless there is cogent evidence to support me making such order, and there is simply none. The parent who is struggling to keep the children’s best interest at the forefront of their decisions or decisions they make at present is the mother, not the father.

1. It may be correct that the father will obtain another job overseas, particularly if he is unable to retain a position with R Company in the Netherlands. However, that is unlikely to happen in the next three weeks or even a month, and the mother is leaving for the Netherlands on 1 February 2020 and is well capable of filing any application she seeks when in that country to restrain the father taking the children out of the Netherlands, and there is an interim order to that effect. This was an order sought by her without any merit.

2. I will make the order that the mother is restrained from attending upon the children’s school at times when the children are in attendance at the school. The mother has caused the children stress by attending upon their school in Australia, and it is most important that the children know their school is a place of safety for them. As hard as this is for the mother, this is an order in the children’s best interest and this is my focus, my obligation, and my duty under the Act to make an order in the children’s best interest.

3. Such an order does not prevent the mother from attending the school before or after the children have arrived or left the school, or contacting the school by any other means such as email, telephone and the like, and she should be encouraged to contact the school as she knows which school the children are enrolled in.

4. I will not dismiss the mother’s application for property settlement in Australia at this time until after the mention in June 2020, and the parties have determined the status of the Netherlands proceedings.

5. I will entertain a costs application on that occasion and make no cost order at this stage as sought by the father.

6. I will not restrain the father where he lives in the Netherlands as the mother seeks, as he has told me chapter and verse in his affidavit what he proposes to do, and the mother knows what he proposes to do. He will be living in an area close to his parents to have the support of his parents and enrol the children in a school in that area.

7. I accept his evidence and the mother would do well to accept it as well. If he is successful in reobtaining employment with R Company, then there may be an issue of where he is to live, or if he is to obtain employment elsewhere, this also may be an issue. However, he has six months of pay, accommodation costs paid by his employer, and for him and his employer to find him a position in that company, and this is ample time for the father to make decisions that he must as to his future employment, and he has an obligation to inform the mother of these decisions and I am confident he will do so. There is no reason for him not to do so. The mother’s order that she seeks is unworkable. She is not the one providing the home, the accommodation for the children. They will not speak to her let alone live with her. Only the father has that capacity at this stage, and the mother’s order that she seeks is not only unworkable it is not practical. It is not in the children’s best interest and it is the antithesis of a child-focused order.

8. At this time, it is only the arrangements the father can put in place for the children that are practicable and in their best interest, given the children’s resistance to even speaking to their mother at this time, and as hard as this is for the mother to understand, it is the reality and she must deal with this in an adult child-focused way.

9. I will not entertain any application the mother makes for interim costs, interim property distribution or whatever her claim for $150,000 may be characterised as. The mother has not previously made an application for the father to pay her a sum of $150,000 only now and he has not responded to this. There appears to be final property orders and there is simply no evidence to support the mother’s application at this stage, and I will not exercise my discretion to entertain that application at this time.

10. I refuse to restrain the father from returning to live or work in Australia and/or with the children until they are aged 18 years of age, as the mother seeks. The father is perfectly entitled under Australian law to live and work where he chooses, and to make such a restraint, as the mother seeks, is an offence to the constitutional rights of freedom of movement of people in Australia. I will make no such order. It is not child-focused, not necessary at this time, and outside my power to make.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 17 January 2020.

Associate:

Date: 24 January 2020