Empson & Empson
[2021] FedCFamC1F 340
•23 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Empson & Empson [2021] FedCFamC1F 340
File number(s): BRC 12098 of 2018 Judgment of: HOGAN J Date of judgment: 23 December 2021 Catchwords: FAMILY LAW – PARENTING – INTERNATIONAL RELOCATION – Where the mother seeks to relocate the parents’ five children to live with her in the United States of America – Where the father opposes the relocation – Where relocation of the children to the United States of America is not in the children’s best interests. Legislation: Family Law Act 1975 (Cth) Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Morden & Coad [2019] FamCAFC 233
MRRv GR (2010) 240 CLR 461; [2010] HCA 4
U v U (2002) 211 CLR 238; [2002] HCA 36
Vigano & Desmond (2012) FLC 93-509; [2012] FamCAFC 79
Number of paragraphs: 99 Date of hearing: 7, 8, 9, 10 & 11 December 2020 Place: Brisbane Counsel for the Applicant: Mr Fong Solicitor for the Applicant: Beaudesert Legal Counsel for the Respondent: Mr Shoebridge Solicitor for the Respondent: BGM Family Lawyers Counsel for the Independent Children's Lawyer: Ms Dart Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 12098 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS EMPSON
Applicant
AND: MR EMPSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
23 DECEMBER 2021
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1.All parenting plans and previous parenting orders are discharged.
2.The mother’s application to relocate the children to live in the United States of America is dismissed.
3.The children, V, born on … 2006, W, born on … 2008, X, born on … 2011, Y, born on … 2012 and Z, born on … 2016 (“the children”) shall, unless agreed between the parents in writing, live with each of the parents on a week about basis.
4.For the purpose of implementing Order 3:
a.the children shall live with the father in the first week of the fortnight, which week shall be the week as has previously been determined pursuant to the interim parenting order made on 16 April 2019; and
b.the children shall live with the mother in the second week of the fortnight, which week shall be the week as has previously been determined pursuant to the interim parenting orders made on 16 April 2019; and
c.changeovers shall occur on Friday: at school during school term and at the C Community Centre at all other times.
IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT
5.The parents shall have equal shared parental responsibility for the major long-term issues of the children, V, born on … 2006, W, born on … 2008, X., born on … 2011, Y, born on … 2012 and Z, born on … 2016 (“the children”), with the same to include but not be limited to the children’s education (both current and future), the children’s religious and cultural upbringing, the children’s health, the children’s names, and any changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
6.Except in the event of an emergency, the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility on the following basis:
a.the parent proposing to make a decision (“originating parent”) will give the other parent details of the decision that needs to be made, what decision they propose to make and the reasons why they propose the decision be made in a particular way; and
b.the other parent will respond to the originating parent, if they wish to suggest any variation or alternative proposal, within seven (7) days of receiving notice; and
c.the originating parent will consider any feedback given by the other parent by reference to the best interests of the child/children; and
d.if the parents are not able to come to a joint decision, they shall participate in family dispute resolution as soon as practicable thereafter, with the originating parent to initiate such process within seven (7) days by nominating a panel of three (3) possible family dispute resolution practitioners (“FDRP”) at least one of which is a low or no cost option. If the other parent fails to choose one FDRP within seven (7) days, the originating parent may choose one. The costs are to be shared equally between the parents.
7.Notwithstanding the provisions of Order 5 above:
a.the father will be responsible for the daily care, welfare and development of the children when they are living with him; and
b.the mother will be responsible for the daily care, welfare and development of the children when they are living with her; and
c.neither parent shall leave the children unsupervised by an adult and they shall inform the other parent of the details of any other person engaged to care for the children; and
d.in the event that the parent with whom the children are living is unable to care for them, they shall give the other parent the first right of refusal to care for the children during that period.
8.The parents shall:
a.keep the other informed at all times of their residential address, email address and mobile telephone numbers; and
b.keep the other parent informed of the names and addresses of all treating medical or other allied health practitioners who treat the child/children from time to time and notify the other parent of appointments and invite them to attend such appointments, authorise those practitioners to provide the other parent with all the information they are lawfully able to provide about the child/children and inform the other parent as soon as is reasonably practicable and by the best means available of any medical condition, significant health issue or illness suffered by the child/children and in the event of the child/children being admitted to hospital for emergency treatment, treatment by an ambulance crew or being taken to a medical practitioner for urgent treatment following an accident, injury or sudden illness, these Orders authorise any treating medical practitioner to release the child’s/children’s medical information to the other parent.
9.The mother and father authorise, by these Orders, all schools attended by the child/children from time to time to provide to each of them all information and documentation sought by them in relation to the child’s/children’s welfare, progress and activities at school from time to time, including but not limited to providing the parents with copies of school newsletters and other notes/letters to parents, copies of the child’s/children’s school reports, details of the child’s/children’s parent/teacher interviews, copies of order forms for the child’s/children’s school photos and certificates and awards obtained by the child/children (at each parent’s own cost).
10.The mother and father shall each be at liberty to contact the teachers and/or principals and/or administrative staff of all schools attended by the child/children from time to time in order to obtain the information referred to above.
11.Each parent will at all times:
a.respect the privacy of the other parent; and
b.speak of the other parent respectfully and refrain from verbal abuse of the other parent and sending abusive or denigrating emails to the other parent or allowing that to occur by another person in the presence of the children; and
c.refrain from any form of denigrating or insulting of the other parent, the children’s grandparents, their extended family relatives or the other parent’s partner in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent, the children’s grandparents, their extended family relatives or the other parent’s partner in the hearing or presence of the children or any of them; and
d.refrain from discussing these proceedings or family law matters generally with the children or any of them; and
e.refrain from showing the children or any of them documents connected with these proceedings; and
f.refrain from allowing the children to remain in the presence of any other person who engages in any of the conduct prohibited by (11)(a)-(e) above; and
g.refrain from showing a third party any documents produced in these proceedings, without leave of the Court to do so, unless this is for the purposes of obtaining legal advice.
12.On a without admission basis, neither parent shall physically discipline the children.
13.The children shall communicate with the parent they are not then with by telephone or other electronic means on two occasions per week, being Wednesday and Sunday between 6.30 pm and 7.30 pm.
14.The children are permitted to communicate with the parent they are not then with at all reasonable times as requested by the children.
15.Unless otherwise agreed, the parents will utilise the Application known as AppClose at all reasonable times to communicate about the children’s day-to-day and long-term care, welfare and development other than in the case of emergency in which case the parents will communicate by email, text, telephone or any other means deemed necessary in the particular circumstances and, in order to give effect to that intention, within seven (7) days of any change, the parents shall notify the other of any new phone number or email address.
16.Notwithstanding the other terms of this Order and unless otherwise agreed between the parents in writing, the children shall live with the father:
a.commencing in 2022: for the whole of the June/July school holiday period in all even numbered years, in the event that the father elects to travel overseas with the children, and the father gives the mother at least 60 days’ notice of his intention to travel overseas with the children, and the travel occurs in accordance with the provisions of these Orders; and
b.from 5.00 pm on the day before Father’s Day until the commencement of school on the day following Father’s Day, each year, (in the event that day falls during the course of a weekend when the children would not otherwise be living with the father in accordance with these Orders); and
c.subject to any specific Order herein, from 4.00 pm on Christmas Eve until 2.00 pm Christmas Day in even numbered years, and from 2.00 pm Christmas Day until 4.00 pm Boxing Day in odd numbered years; and
d.subject to any specific Order herein, on the children’s birthdays each year for a period of three (3) hours if the children are not already living with him on that day; and
e.from 5.00 pm on the day before the father’s birthday, until the commencement of school on the day following the father’s birthday each year if the children are not already living with him on that day.
17.Notwithstanding the other terms of this Order and unless otherwise agreed between the parents in writing, the children shall otherwise live with the mother:
a.commencing in 2022: for the whole of the June/July school holiday period in all odd numbered years, in the event that the mother elects to travel overseas with the children, and the mother gives the father at least 60 days’ notice of her intention to travel overseas with the children, and the travel occurs in accordance with the provisions of these Orders; and
b.from 5.00 pm on the day before Mother’s Day until the commencement of school on the day following Mother’s Day, each year, (in the event that day falls during the course of a weekend when the children would not otherwise be living with the mother in accordance with these Orders); and
c.subject to any specific Order herein, from 4.00 pm on Christmas Eve until 2.00 pm Christmas Day in odd numbered years, and from 2.00 pm Christmas Day until 4.00 pm Boxing Day in even numbered years; and
d.subject to any specific Order herein, on the children’s birthdays each year for a period of three (3) hours if the children are not already living with the mother on that day; and
e.from 5.00 pm on the day before the mother’s birthday, until the commencement of school on the day following the mother’s birthday each year if the children are not already living with the mother on that day.
18.Those changeovers which occur on school days shall take place at the children’s school and, otherwise, shall occur at the C Community Centre.
19.Neither parent will record, or purport to record, any changeover.
20.Both parents shall forthwith do all acts and things and sign all documents required to enrol Z at D School to commence Prep in January 2022.
21.The children shall be enrolled at D School and, in order to give effect to same, both parents will continue to do all things necessary including sign all documents required to complete and maintain said enrolment.
22.Each of the mother and father shall forthwith do all acts and things and sign all documents required to ensure that each of the children are vaccinated in accordance with the Queensland Government schedule of vaccinations and that any future vaccinations are given at the time recommended by the schedule.
23.The parents shall forthwith arrange for X to undertake an Autism Spectrum Disorder assessment as directed by her GP or paediatrician and the parents shall follow any and all recommendations of X’s treating practitioners in relation to that assessment and any further treatment or behavioural management techniques that flow from the assessment.
24.Each party shall do all acts and things and sign all documents necessary for the children to be baptised in the Catholic Church and participate in the sacraments of the Catholic Church.
Overseas Travel and Long Distance Travel within Australia
25.The mother and father are each at liberty to take the children out of the Commonwealth of Australia for the purpose of holiday travel provided that:
a.such time will take place during that parent’s usual school holiday time or at such other times as agreed between the parents in writing; and
b.the parent who intends to take the children on the holiday (“the travelling parent”) will provide the non-travelling parent with at least 60 days’ (or such other time as agreed) notice in writing of their intention to travel with the children, along with an accurate proposed itinerary with the proposed travel destinations, dates of proposed travel including departure date, return date and travel dates between destinations; and
c.at least two weeks immediately prior to the departure date, the travelling parent will supply:
i.an accurate itinerary with the date of the departure together with, though not limited to, the relevant flight numbers and destinations and return tickets including air tickets; and
ii.a contact telephone number and address at which the children can be contacted in each country or destination;
d.the travelling parent will be responsible for all of the children’s costs associated with such travel including airfares, petrol, transportation, insurances, living expenses, health care, food, mobile phone costs and accommodation.
26.In respect of international travel for the children, unless otherwise agreed between the parents in writing, the following applies:
a.unless otherwise agreed between the parents in writing, neither parent shall take the children to a destination which is subject to one of the following categories of risk of travel advices from the Commonwealth Department of Foreign Affairs and Travel at the time of travel:
i.exercise a high degree of caution;
ii.reconsider your need to travel; and
iii.do not travel.
b.the parents shall ensure that, within seven (7) days of any request to do so, each will do all acts and things and sign all deeds, documents, instruments and writings as may be necessary so as to facilitate the travelling party travelling, including travelling overseas and returning to the Commonwealth of Australia with the children, and including, but not limited to, signing United States passport applications and/or United States passport renewal/extension applications and any other necessary visa/other travel documentation for the children, and that the costs associated with obtaining said passport and/or documentation is to be borne equally between the parents; and
c.the mother and the father shall do all acts and things and sign all documents directed to the Australian Passport Office (or such other Department or instrumentality administering the Australian Passport Act 2005), within seven (7) days of receiving that document from the parent requesting the passport, to enable the children to be issued with an Australian Passport (travel document) and to renew the children’s passports from time to time so as to ensure the children have, at all times, a current Australian passport; and
d.in the event that either the mother or the father refuses or neglects to sign any document necessary to cause the issue to the children of an Australian passport despite these Orders and having consented to an Australian passport (or travel document) being issued, such refusal will constitute sufficient special circumstances for a party to seek that the Minister administering the Australian Passports Act 2005, give consideration to issue an Australian passport (travel document) pursuant to s 11(2)(1) of the Australian Passports Act 2005; and
e.the parent who holds the passports shall do all acts and things as may be necessary so as to provide those passports to the other parent at least four (4) weeks prior to any period that the other parent is to take the children overseas in accordance with this Order (or forthwith upon the return of the children in the even that both parents intend to travel overseas with the children during the same holiday period).
AND IT IS FURTHER ORDERED THAT
27.Save for in therapeutic counselling, neither parent shall discuss these proceedings, nor the allegations made in them, with the children, nor involve the children in any discussions regarding any issue in dispute between them.
28.Each parent and the Independent Children’s Lawyer has leave to provide a copy of the Family Report of Ms E dated 14 March 2019, the Family Report of Ms E dated 22 September 2020, the Order made 23 December 2021 and the Reasons for Judgment published in support of the same to any counsellor or therapist upon whom the parents and/or the children attend.
29.Each parent and the Independent Children’s Lawyer has leave to provide a copy of the Order made 23 December 2021 to any school at which the children attend.
30.Save as is otherwise ordered herein, no party is permitted to use any documents provided to them in the course of this proceeding for any purpose other than any appeal in respect of these Orders or any future parenting proceedings or any future proceedings to enforce this Order.
31.The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
32.All outstanding applications are otherwise dismissed.
33.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
IT IS NOTED THAT THE PARENTS AGREE
A.The parents previously agreed that they would forthwith do all acts and things and sign all documents required to enrol Z at F Day Care at D School to attend day care five (5) days per week, commencing in January 2021.
B.Nothing in these orders is intended to prevent necessary travel in the event of an emergency.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Empson & Empson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT[1]
HOGAN J:
[1]I apologise to the parties for the delay in the finalisation of the proceedings. I have revisited and reread my notes, the affidavit material, the exhibits, the expert reports prepared for the Court’s assistance and the material relied upon by each party. I have also had regard to the transcript of the proceedings.
These proceedings require the determination of those parenting orders which are in the best interests of the parents’ five children:
(a)fifteen year old V, who was born in 2006; and
(b)thirteen year old W, who was born in 2008; and
(c)ten year old X, who was born in 2011; and
(d)nine year old Y (who is also referred to as “B”), who was born in 2012; and
(e)five year old Z, who was born in 2016.
By way of broad overview, the mother wished to relocate the children to live with her in City G, H State in the United States of America (“the USA”). The father opposed this. If successful on her application to move the children to live in the USA, the mother proposed that they spend time with their father for four consecutive weeks each year during the USA summer school holidays either in Australia (with the father to meet the costs of the children’s return airfares) or in the USA (with the mother to meet the costs of the father’s return airfares) and for a further period of time (albeit shorter) at the end of the year, in either Australia or the USA at the father’s nomination and on the premise that, if the time was to occur in Australia, the father would meet the cost of the children’s return airfares and, if the time was to occur in the USA, he would be responsible for meeting his own travel costs.[2]
[2] As well as communicate with him frequently by FaceTime or other electronic means or telephone.
The mother also proposed, at least initially during her evidence, that, in the event that she was permitted to move the children to live in the USA and the father chose to follow them and returned to live in that country, the children should live with their parents in an equal-time, week-about parenting regime. However, the father’s position was that, if the mother is permitted to move the children to live in the USA, he will not return to live in that country but will remain living in Australia.
If the mother is unsuccessful in her application to move with the children to live with her in the USA, she will remain living in Australia and continue to parent them here. In the event that the children remain living in Australia, the father proposed that all of them live with their parents in an equal-time, week-about parenting regime. The mother opposed this: she advanced that, in such a scenario, it would be in the children’s best interests for them to live primarily with her and spend time with their father from after school Thursday until before school Monday (each alternate weekend, albeit extended) and for half of the school holidays. Whilst her evidence and that given in her case expressed some significant concerns about the father’s care of the children, it seemed to me – particularly given her proposal was that all of the children spend four consecutive weeks in their father’s care during holiday periods if they live in the USA – that the primary reason for her proposal for the children’s time with their father if they continue to live in Australia was that this reflected the wishes of at least some of the children.
The four oldest children have lived in an equal-time week-about parenting regime since interim parenting orders were made on 16 April 2019.[3] Pursuant to that order, Z has lived primarily with her mother and has spent time with her father from 9.00 am Thursday until 9.00 am Monday each fortnight. The April 2019 orders provide for changeovers to occur at school on Mondays and otherwise at a local community centre. They also restrain each parent from physically disciplining the children.
[3] See the 16 April 2019 Order for its full terms.
Both parents proposed that an order for equal shared parental responsibility be made. The Independent Children’s Lawyer supported the making of such an order, albeit that it was submitted that the presumption in relation to the allocation of parental responsibility does not apply in this case. [4] I agree that the presumption does not apply. Given the parental agreement and the support of the Independent Children’s Lawyer, I consider that it is in the children’s best interests for their parents to have equal shared parental responsibility for the major long-term issues relating to them.
[4] Family Law Act 1975 (Cth) ss 61DA and 61DA(2).
Overview of some relevant background matters
Both of the parents were born in the USA. They started to live together in 2003[5] or on 1 January 2004[6] and married, in H State, in 2008. Having relocated to live in Country J in late 2004, the parents subsequently moved from there to live in Country L. V was born in that country. It is accepted that the parents and V relocated from Country L to the City K area in 2007. All of the other children were born in Australia and have only ever lived in this country. The children have only ever participated in the Australian education system. Z has never been to the USA and the four oldest children and their mother last visited that country, and their family and friends who live there, in 2015.
[5] According to the mother.
[6] According to the father.
None of the mother’s extended family live in Australia – they all live in the USA. The maternal grandparents have visited the mother and the children in Australia on about four occasions over the years. The paternal grandparents live in Australia but also maintain a home in M State, in the USA. In the past they have spent a number of months each year living in that home; however, the current world-wide pandemic has made their future travel plans less certain. Other members of the extended paternal family live in the USA.
The children’s mother is an educator. It is uncontentious that she was primarily engaged in caring for the children prior to the parental separation. I accept that, whilst she did some casual work after her second pregnancy, she subsequently ceased working outside the home in order to care for the children. I also accept that, from 2018 onwards, she started to do some lessons and, from 2019, has undertaken work as an educator on a casual basis (albeit on a very limited basis as at the trial), including at a school at Suburb R.
Whilst the mother qualified as an educator in the USA, she has not maintained her registration there and would be required to undergo some retraining of some sort in order to regain registration to enable her to work as a teacher in the USA if she returns to live in that country. Whilst evidence in the mother’s case included that she had been offered a job in the USA by a family friend, the details of the same were, I consider, uncertain. Given that the mother’s evidence about her intended commencement of employment and the maternal grandparents’ understanding of her proposed timeframe differed somewhat, I was left somewhat unclear about when the mother planned to start working if permitted to move the children to live with her in the USA. I also note that, as the evidence included that she would be eligible for benefits such as health insurance which would cover her and the children only after completing six months of full-time employment, it seems much more likely than not that she (with the assistance of the maternal grandparents) would have to pay for any of the children’s medical costs in the USA if they arise prior to the insurance cover starting.
The father previously worked for N Company; after that entity was taken over by P Company, he has continued in his work. I accept that, as at the trial, his annual income was in the vicinity of $290,000.00 (gross) per annum. When he first started with N Company in March 2012, he was required to work in O Town during the working week and returned home to City K on weekends. When the father first started to work away from home during the week, V was about six years of age, W was about three years of age, X was about 12 months of age and the mother was either pregnant with B or fell pregnant very shortly thereafter. The father’s work regime subsequently changed to one by which he worked away from home for two consecutive weeks and was at home for two consecutive weeks. When B was born in 2012, the parents had four children under seven years of age. The father’s two weeks on/two weeks off work regime continued until about March 2017.[7] When he stopped travelling away from City K for work, the parents’ five children ranged in age from about four months of age to 11 years of age.
[7]Whilst I note that the mother told Ms E in February 2019 that the father was working on a fly in/fly out basis for periods of two weeks in June 2017, the difference in the respective contentions matters little.
It is uncontroversial that, in about May 2018, the parents discussed the prospect of moving the family to live in the USA or Europe. I generally accept that this discussion involved a premise that the parental relationship would continue and that, if they relocated to live outside of Australia, they would be doing so as an intact family. I accept that, in contemplation of this possible move, the father made some very limited and minimal enquiries with his employer to determine whether he might be able to be transferred to an office in the USA; I also accept that, after it became apparent – for reasons which I do not intend to discuss in these Reasons as I consider the same to be relevant to the determination of those parenting orders now in the children’s best interests – that the parental relationship was not going to endure, the father did not support the children moving to live in the USA.
I accept that the parents separated under the one roof in about mid-2018.[8] I accept that, until shortly after the April 2019 interim parenting orders were made by consent, the parents and the children continued to live in the same house. I consider it much more likely than not that this was a very stressful and difficult time for all concerned; I also consider it much more likely than not that the children were exposed to the tensions in the home at this time and that each, to varying degrees, was affected by this and that each manifested their distress and upset in different ways, which, for some of them, included oppositional and defiant behaviour.
[8]Whilst I note that the mother contended that separation occurred in May 2018, the father appeared to contend it occurred in August 2018: I do not consider it necessary in these proceedings to resolve the apparent difference.
APPLICABLE PRINCIPLES
The statutory framework does not deal differently or specifically with cases involving a proposed relocation of children. Therefore, the well-known statutory provisions provide that, having had regard to the Objects of Part VII of the Family Law Act1975 (Cth) (“the Act”), the principles which underpin those Objects[9] and, subject to s 61DA, s 65DAB[10] and Division 6 of Part VII of the Act, such parenting order as thought proper may be made.[11]
[9] Family Law Act 1975 (Cth) s 60B.
[10] Parenting plans.
[11] Family Law Act 1975 (Cth) s 65D.
In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration.[12] Such interests should not be viewed in the abstract or separate from the circumstances of the children’s parents.[13] Further, the statutory exhortation to regard the children’s best interests as the paramount consideration does not mean that the legitimate desires and interests of their parents are to be completely ignored – rather, where legitimate parental interests conflict with the children’s best interests, the former must give way.[14]
[12] Family Law Act 1975 (Cth) ss 60CA and 65AA.
[13]See, for example: AMS v AIF (1999) 199 CLR 160 at 207-208.
[14] Ibid.
Where there is an issue of relocation, a parent’s right to freedom of movement is just one of the factors to be weighed, together with all other relevant factors, in deciding what is in the children’s best interests.[15] That is, the determination of those orders which are in the children’s best interests may well mean that one parent’s “choice” is effectively outweighed in the balance; from a parent’s perspective, the outcome may not be optimal. Whilst any parent enjoys the right of freedom of mobility to live wherever the parent chooses to live, that right must defer to the expressed paramount consideration – the welfare of the children – if that were to be adversely affected by a movement of a parent.[16]
[15] Bolitho and Cohen (2005) FLC 93-224 at [72].
[16]See, for example: U v U (2002) 211 CLR 238 at [89] per Gummow and Callinan JJ with whom Gleeson CJ, McHugh and Hayne JJ agreed.
The matters to be considered in determining those parenting orders which are in the children’s best interests are those prescribed by s 60CC of the Act. However, it is unnecessary for each consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion.[17] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in the children’s best interests. Rather, I have considered all of the relevant considerations in arising at my conclusion about those orders which are in the children’s best interests. Similarly, it is unnecessary to refer specifically to the evidence of each of the witnesses called in each of the parents’ cases: I have had regard to the same in arriving at those findings necessary, in the context of the parenting orders proposed by each of the parents, to the determination of those parenting orders which are now in the children’s best interests.
[17]See: Banks & Banks (2015) FLC 93-637 (whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings).
Whilst the Act does not define the term “meaningful relationship” [18] and does not prescribe criteria by which the Court should assess how each child’s parents have, or should have, a meaningful involvement in that child’s life, the Full Court has concluded that the preferred interpretation of “benefit to a child of a meaningful relationship” is the prospective approach.[19]
[18] Family Law Act 1975 (Cth) s 60CC(2)(a).
[19] McCall & Clark (2009) FLC 93-405.
I consider it clear that, despite various actions and comments at varying times, all of the children have good and established relationships with each of their parents. Given Ms E’s evidence about the children’s relationships with their father and the mother’s evidence that she wants the children to continue to have a relationship with their father and that, if the children move to live in the USA, she wanted him to return to live in that country also, I consider that the children will benefit in the future from having a meaningful relationship with their father. Given Ms E’s evidence about the children’s relationships with their mother and the father’s proposal for all of the children to live with their parents in an equal-time week-about parenting regime, I consider that the children will benefit in the future from having a meaningful relationship with their mother.
As I think it clear that the children have benefited in the past from having meaningful relationships with each of their parents, I consider it much more likely than not that they will benefit in the future if able to continue to have and develop such relationships with both of their parents in the future.
Having determined that such benefits exist, I am required to consider whether the same needs to give way to the requirement to protect the children from physical or psychological harm.[20]
[20]Vigano & Desmond (2012) FLC 93-509 at 86,517 per Bryant CJ, Strickland & Murphy JJ; Family Law Act 1975 (Cth) ss 60CC(2)(a) and (2A).
Despite adducing evidence about the mother’s asserted neglectful parenting of the children a number of years ago – when he was working away in O Town – the father’s case proceeded on the basis that it is in all of the children’s best interests to live in an equal-time, week-about parenting regime. That this is the case seems to me to dispel any concern that, should such a parenting regime continue to be implemented for the oldest four children and, in the future, encompass Z, the children will be at any risk of harm in their mother’s care.
Further, the father’s case also included the assertion that the mother would be able to be the best parent she could be if the children lived in an equal-time parenting regime because he asserted she needed help to parent all of the children on a full-time basis: a suggestion with which it appeared the mother did not take issue given that one of the reasons she said she wished to be able to relocate the children to live in the USA was that she thought that she would be better supported (in a financial, emotional, practical and spiritual sense) in her parenting of them if they lived close to members of the extended maternal family who are willing and able to assist her with the children’s care.
Strangely then, both cases appeared to advance that the children would benefit if their mother was able to obtain assistance to discharge the day-to-day tasks of parenting five children: what they obviously differed about was how that assistance should be provided, with the father saying that this could continue to happen if the children continued to live in Australia in a week-about parenting regime (which should include Z) and the mother saying that this could best occur if she was permitted to relocate the children to live with her in the USA where she would be assisted by her parents.
Whilst the evidence in the mother’s case included various concerns about the father’s parenting of the children, including the manner in which he has disciplined them and interacted with them, the mother’s proposal for the children’s time with him – whether in Australia or if they are permitted to move to live in the USA – involved them spending unsupervised time over relatively lengthy duration/s on a regular and (if they live in Australia) frequent basis.
There is no doubt at all that both parents love all of their children dearly and want what each of them regards to be best for them. There is similarly no doubt at all that the children love both of their parents.
The children: their views and the nature of their relationship with each of their parents[21]
[21] Family Law Act 1975 (Cth) ss 60CC(3)(a), (b), (d) and (g).
All of the children who attend school currently attend at D School in Suburb R.
I accept that, when Ms E interviewed the parents and children on 27 February 2019, everyone was still living in the same house, despite the parental separation: the children’s comments, as recorded in the 14 March 2019 Family Report (“the March 2019 report”) need to be considered with this in mind.
I accept that Ms E conducted further interviews with the parents and children, via Zoom, on 4 September 2020 and subsequently authored the 22 September 2020 Family Report (“the September 2020 report”). [22]
[22] Prepared following interviews which occurred after the parents started to live separately.
V
I accept the mother told Ms E in February 2019 that V was introverted but intuitive; creative and healthy but suffered from some anxiety. I accept the father said V had no difficulty making and maintaining friends and did well at school.
I accept V told Ms E in February 2019 that:
(a)she thought that her father did not like talking to her and was angry at her for some reason; and
(b)she had a lot of family in the USA and missed them; apart from her immediate family, she had only her paternal grandparents in Australia and, whilst she would miss her friends if she moved to live in the USA, she thought family was more important and she knew that she would make new friends; and
(c)she thought things would be easier once her parents lived in different houses: whilst she said she would prefer to spend more time with her mother once this happened, she also said that she loved her father a lot; and
(d)she got upset when her father said mean things about her mother and she had heard her paternal grandmother call her mother a “bitch”; and
(e)if her mother went back to the USA and her father did not go too, she thought this would be bad: she did not want her parents to live in different countries as this would make it too difficult for her to see them both frequently.
I accept that, when interviewed by Ms E in September 2020, the mother said that V was doing reasonably well in Year 9; however, she also reported she had anxiety, was introverted and could be withdrawn, appeared to suffer the same symptoms as she (the mother) did and often complained of being dizzy and having an upset stomach. I accept that, when discussing V’s relationship with her father, the mother told Ms E that V is a “people pleaser” who gets on well with people and does not want to cause stress. I accept that, when he spoke with Ms E in September 2020, the father told her that V had been going reasonably well – although she was a 14 year old girl who he sometimes found difficult to understand. I accept he said she tended to spend time in her room and slept a lot. I also accept the father told Ms E that V had not spoken to him about attending university in the USA but, instead, had spoken with him about going to Q University or S University and also about universities in Country J. I accept the father told Ms E that V was an emotional child who could be sad and who did not like conflict; he said he thought she had settled into a routine and was going reasonably well at school. He also said he had gone with V to a subject selection night at school and that she had spoken to him about being very focused on the OP pathway. I accept the father described V as a good student overall.
I accept that, when interviewed by Ms E in September 2020, V told her that:
(a)she believed her mother was doing better than she had in the past, that her father remained the same and that her parents did not communicate well; and
(b)the week-about arrangement stressed her out and she felt that it did not help her feelings of anxiety; and
(c)she felt her father had difficulty dealing with the sibling group and tended to become angry and frustrated: W and the father fought all the time; he did not talk to the children; they were having difficulties living in the week-about arrangement and Z did not like going to his home; and
(d)it was difficult moving between homes and that she never felt that she was stable in one place; and
(e)she would like to “return” to the USA (although she has never lived there) as she believed she was losing her connection to family and friends there; and
(f)whilst she had not been to the USA for four years, her maternal grandparents had visited on a number of occasions; and
(g)she believed her mother needed the support of her maternal grandparents.
I accept V also told Ms E that, irrespective of whether the Court made an order for the children to relocate to the USA, she wanted to attend university there anyway. When she is an adult, a decision such as this will, of course, be entirely a matter for her.
I accept that V’s first preference was to “return” to the USA with her mother and that, if she could not do this, she would prefer to live primarily with her mother and spend extended time with her father every second weekend.
W
I accept that, when she spoke with Ms E in February 2019, the mother told her that W was more outgoing than V; was imaginative and “quirky”; bright and became bored easily; and did not have any problems making friends. I accept the father supported at least the latter assertion.
I accept that, when she spoke with Ms E in February 2019, W told her that:
(a)she loved the USA and wanted to go “back” there to live – although it must be remembered that she has never actually lived in that country; and
(b)she had lots of family living in the USA, but also had lots of friends in Australia and loved her school; and
(c)if her parents lived separately, she would like to live with her mother who she felt was nicer and calmer; and
(d)she would like it if her whole family moved back to the USA as she did not think it would be good if her father stayed in Australia, as they would not see him as much.
I accept that, when interviewed by Ms E in September 2020, the mother told her that W was more extroverted and vocal and did not like the week-about arrangement. She said W had told her she did not want to spend time with her father, but tended to deal with it and was adaptable: she described her as a child who did not like talking about things and who became angry and called things “stupid”. She also said that she was doing quite well in Grade 6.
I accept that, when interviewed by Ms E in September 2020, the father told her that W, at 11, was “like looking into a mirror”. I accept he described her as opinionated and with a soft heart. He said she had taken out a lot of anger on him and had written things like “I hope you burn in a fire pit in hell and suffer”. I accept the father also told Ms E that W often voiced her opinion and tried to influence the other children; she lived with her emotions on her sleeve and was more comfortable when her emotions were released. He also described her as finding comfort in her religion.
I accept that, when interviewed in September 2020, W told Ms E that:
(a)she really wanted to spend more time with her mother; and
(b)she would like to live with her mother and spend time with her father every second weekend; and
(c)whilst she did not hate it with her father, she would like more time with her mother and found it difficult having to move between households.
I accept that W told Ms E that her first choice was to “return” to the USA. I also accept she said that she would like the whole family – including the father – to return to the USA but, if the Court did not make an order that they return there as a family, she would like to live in Australia with her mother and spend every second weekend with her father. She would also like to be able to holiday in the USA.
X
I accept the mother told Ms E in February 2019 that X may have Asperger’s Syndrome: she described her as “eccentric”. I accept she said she had attended on a behavioural psychologist who had suggested that X’s difficulties may be environmentally sourced and wanted her to return for further assessment and attend on a paediatrician. I accept the mother also told Ms E that X had difficulty making friends. I accept the father told Ms E in February 2019 that X appeared to have some sensory and social issues, but had been getting better at making friends. He said that, whilst there had been some concerns she may have Asperger’s Syndrome, this had never been formally assessed. He said he had sought for X to undergo a paediatric review; he had also sought a Mental Health Plan for her.
I accept that, when she spoke with Ms E in February 2019, X told her that she had a lot of family in the USA and that she loved them. I accept she also said that she had no friends at school because she was not popular.
I accept that, when the mother spoke with Ms E in September 2020, she told her that X (then in Grade 4) was doing quite well and was a unique person; she also said she had started the process of determining whether she had ASD. I accept the mother said that X appeared to be happy going to spend time with her father because she loved him and was not as disturbed about the changes in routine. I accept that, when he spoke with Ms E in September 2020, the father told her that X was doing well and liked animation and cartoons; he described her as having achieved significantly improved results at school over the last year. I accept he also described her as an emotionally sensitive child, who had developed a few more friendships. Given this, he was not confident that she was as autistic, as the mother thought. He also told Ms E that X’s counsellor had told him that she was doing great.
I accept that, when interviewed by Ms E in September 2020, X told her that the week- about arrangement was going well: she liked it and was happy with it and was able to spend time with each parent. I accept she said she was happy and had a good relationship with each of her parents. I accept she was aware that her mother wanted to return to the USA. I accept X told Ms E she thought that was good but, if her father did not want to go, they should all stay in Australia.
Y (also known as B)
I accept the mother told Ms E in February 2019 that Y (who is also referred to as “B” in the family) did well at school and was bright but also quick to start a physical fight. I accept she described that she had had significant difficulties getting him back into routines after the school holidays. I accept the father told Ms E that B was meeting all of his developmental milestones and appeared to be able to make and maintain friends.
I accept that, when he spoke to Ms E in February 2019, B told her that:
(a)he loved his mother very much, also loved his father, wanted them to be nice to each other, and did not want his father to fight as much as they do and that he was sick of listening to them yell at one another; and
(b)if his parents lived in separate houses, he wanted to spend time with both of them; and
(c)he thought it would be really bad if he did not get to see his parents frequently.
I accept that, when she spoke to Ms E in September 2020, the mother told her that B (then in Grade 2) had been doing well at school but had had some behavioural issues such as picking fights and not always being respectful. She said that, despite this, he appeared to do quite well socially. I accept the mother said B still wore night nappies at home. I accept the mother told Ms E that B appeared to be doing a lot better in the week-about arrangement and, from her perspective, was the child who appeared to be coping best with it. I accept that, in September 2020, the father told Ms E that B was an “awesome” seven year old boy who loved doing things with him. I accept he described him as being more aligned with the younger children and as a healthy child who had good social skills.
I accept that, when interviewed by Ms E in September 2020, B told her that:
(a)he wished he had more time with each of his parents and would really like them to get back together; and
(b)he knew that his mother wanted to return to live in the USA – which he said he thought would be “way funner”; and
(c)his only worry would be that he would want to see his father and he was worried that he would not return to the USA with them; and
(d)school was going well.
Z
I accept that, in February 2019, the mother told Ms E that Z was generally shy around new people, “personable” and loved by everyone; she also said she did well socially, although had not yet started at day care. I accept the father told Ms E that Z appeared to be meeting her developmental milestones and had not demonstrated any difficult behaviours that were not age-appropriate. I accept that, when interviewed by Ms E in September 2020, the mother told her that three year old Z cried a lot when the older children went to spend time with their father and also cried when she had to spend time with him. I accept the mother also said that Z loved seeing the other children. I accept the mother told Ms E that Z was meeting her developmental milestones, was beginning the process of toileting, but was still in night nappies. I accept that the mother told Ms E Z had not attended day care due to COVID-19, but she wanted to start her at playgroup. I accept that, when interviewed by Ms E in September 2020, the father told her that Z was a “little treasure”. I accept he said that, as the other children were then at school, he and Z spent a lot of time together on the Thursday and Friday. I accept he said that Z did not like it when the other children had to go to school because she missed them; he described her as a healthy child who had met all of her developmental milestones and who was already starting to read – he understood that she may miss her mother at times, but said she also ran to him when she saw him and cried when she had to go back to her mother’s care.
I accept that, when Ms E spoke with three year old Z in September 2020 (because Z wanted to speak to her because her siblings had done so and she felt left out), she said that she loved mummy and that she loved daddy.
The father: his involvement in the children’s lives; his capacity to meet the children’s emotional, intellectual and other needs; his attitude to the children and to the responsibilities of parenthood[23]
[23] Family Law Act 1975 (Cth) ss 60CC(3)(c), (ca), (f), (i) and (m).
I accept that the father’s employment is flexible enough for him to be able to continue to care for the children – on either a week-about basis or from Thursday until Monday morning each alternate week – if they remain living in Australia.
I accept the mother told Ms E in September 2020 that both she and the father had the capacity to parent and to build good relationships with the children. However, I also accept that she said he had previously lost his temper with the children, that they had been manipulated by him and that he had squeezed them in a manner that the children found distressing. I also note that, at least an aspect of the mother’s case – although not as it was initially advanced, given that Counsel who appeared for her advised that she did not seek any finding that the children would be at an unacceptable risk of harm if they continued to spend unsupervised time with their father – included the contention that moving to live with her in the USA would be in the children’s best interests because it would protect them from exposure to the father’s temper and “abuse”; moodiness; violent outbursts; neglect; intimidation; threats; coercion and control. Despite these concerns and the evidence adduced in her case, the mother’s proposal, if the children move to live in the USA, included that they return to spend time with their father for four consecutive weeks each year and her evidence included her expressed hope or wish that, if the children move to live in the USA, the father would leave Australia and return than live in that country also.
I accept that the father was telling the truth when he told Ms E in September 2020 that he believed Australia’s education system would give V a very good educational grounding and that he thought that the children would be better served by continuing to live in Australia as this would enable them to take advantage of the health system here: a system he clearly considered superior to that likely to be available to them if they relocated to live in the USA. I also accept that the father wants to be able to continue to be involved in the children’s day-to-day lives and that he considers that this will, simply, be impossible if he and the children do not live proximate to each other. I also accept that he was genuinely concerned that, if the children moved to live in the USA and he remained firm in his decision not to follow them to live in that country, the consequences of the geographic distance would include the destruction of the children’s relationship with him.
I consider that the father has not been proactive in seeking out employment that may be available to him the USA because he does not want to return to live there. Irrespective of this, though, I am simply unpersuaded on the evidence before me that it is likely that the father could obtain employment in the USA that would see him receive the financial benefit he receives from his current employment. It is trite to observe that the consequences of lesser income would not only impact upon the father but would, inevitably, also have a negative impact on the children.
The mother: her involvement in the children’s lives; her capacity to meet the children’s emotional, intellectual and other needs; her attitude to the children and to the responsibilities of parenthood[24]
[24] Family Law Act 1975 (Cth) ss 60CC(3)(c), (ca), (f), (i) and (m).
Whilst I accept that the father told Ms E in February 2019 that the joint parental decision for the mother to remain at home and care for the children whilst he engaged in paid employment had been a blessing and of benefit to the children, this assertion seems at odds with other aspects of the evidence in his case, which appeared intended to convey that the mother had, on occasions, struggled to ensure that all of the children’s needs were met.
Despite this, given that he contended that the children’s best interests would be met by all of them living in an equal-time, week-about parenting regime, his concerns must be regarded as being historical in nature.
I accept that the mother honestly thinks that moving to live in the USA is in the children’s best interests. I accept that she feels that her parenting of the children would be assisted by proximity with her parents and other members of the maternal extended family and her friends who live in the USA. I accept that she is joined in that view by the maternal grandparents; I accept that they would do everything they could to support the mother whether she moved to live in the USA or, if the children are not permitted to relocate to live there, decided to remain living in Australia in order to continue her parenting of the children here. Whilst I accept that those who provided information in the mother’s case about the support they would provide to her and the children if the children are permitted to move to live in the USA were truthful and genuine, the reality is that the children simply do not have any relationships with them at all.
I accept that the mother has engaged with therapeutic supports in relation to, amongst other matters, her anxiety and her unhappiness at not being able to move the children to live with her in the USA; I accept that, if necessary in the future, she will be proactive in seeking the same out again.
I accept that, if the children are permitted to live in the USA with their mother, they would initially stay with their maternal grandparents and attend at a local school and that the mother, alone, or with the assistance of her parents, would make all the arrangements necessary for this to occur.
Whilst I accept that the mother was genuinely expressing her feelings about her circumstances when she told Ms E in February 2019 that she was not in a financial position to be able to live alone with the children in Australia because she had no home to live in, no income or employment and limited supports and friends, the evidence suggests that aspects of those circumstances changed after then: for example, she has lived with the children in her own accommodation since about May 2019; she has maintained connection with her church and its community; she has a number of friends, including those who provided evidence in the proceedings; she has been able to engage in paid employment as a tutor and teacher, albeit on a casual basis.
As already remarked upon, whilst the evidence in the mother’s case included that she had been offered a job in the USA by a family friend, I consider that the details of the same were somewhat vague and left me unable to be certain that, if the children were allowed to move to live in the USA and the mother obtained that employment there, she would be able to contribute financially to them spending time with their father in the manner she advanced.
The likely effect on the children if the orders sought by their parents are made
I consider that, if the children are permitted to relocate to live with their mother in the USA, it is likely that they will only be able to spend in-person time with their father, at best, on perhaps two occasions each year if he remains living in Australia. I also accept, though, that such a move would likely enable them to spend more time with those members of their extended maternal and paternal families who live in the USA.
I accept that relocating to live in the USA would require V, W, X and B (all of whom currently attend D School) to engage for the very first time in their lives in the USA education system. They would, obviously, be completely removed from their school friends and from their current, known school environment.
Whilst I accept Ms E’s recounting, in the March 2019 report, that none of the children spoke of a potential move to the USA as being a negative experience, I consider that their comments must be assessed in the context of them never having lived in that country. Their experience of the USA is as a country visited for holidays and a place where they are able to spend time with members of their extended family whilst on holidays: they simply have no experience of what it would be like for each of them individually and as a unit to actually live in the USA and attend school there.
I have concluded that, when distilled, all of the children share the view that they want their parents to live close enough to enable them to spend time with each of them on a regular and frequent basis. Given this, I think it much more likely than not that all of the children would be upset and distressed and negatively impacted emotionally in a short and long-term sense if they moved to live in the USA and – as I accept he would – their father remains living in Australia.
Whilst the relationships between the four oldest children and their father may well be able to be maintained – at least to some extent – notwithstanding the lengthy in-person absences that would be the consequence of the father remaining resident in Australia and their relocation to live in the USA, I think it highly unlikely that this would be the case with Z’s relationship with him. Even if the oldest four children’s relationship with their father could be maintained, it is obvious that they would be significantly changed: they would go from having him in their lives every second week, to only seeing him in person twice each year (at best).
Family violence[25] and parental relationship
[25] Family Law Act 1975 (Cth) ss 60CC(3)(j), 60CC(3)(k) and 60CG.
That there are no Protection Orders in place between the parents does not, of course, mean that there was no domestic violence during their relationship. The mother’s evidence included that, in 2008, the father grabbed her around the neck and squeezed her throat with sufficient force that she passed out. The father denied acting in this manner; he also denied being physically abusive of the mother on any other occasion or in any other way during their relationship. His denial of the allegation that he grabbed the mother around her throat in 2008 was, I consider, completely refuted by the evidence given by his mother (the children’s paternal grandmother), which included that, when she asked the father if he had grabbed hold of the mother, he said he had; her evidence at this point was accompanied by a spontaneous demonstration of her putting her own hands around her throat, with her thumbs pointing down toward her collarbones and her fingers outstretched and each resting on the side of her neck. I accept that the father behaved as the paternal grandmother described.
I note that the paternal grandmother’s evidence also included that, when she asked the father if he had ever done that to the mother again or had ever hit the mother, he said that he had not.
Whilst each of the maternal grandparents also said in their affidavits that during a visit they made to the home in 2018 they had seen the father push the mother’s head against the wall, their respective cross-examinations revealed that they had not in fact seen that alleged action but had assumed that it had occurred because of a noise they heard before they entered the room where the parents were. The fact that both of the maternal grandparents were so definite in asserting that they had seen an action which they their subsequent evidence revealed not to be accurate casts some of a doubt over other aspects of their evidence and asserted observations. A further example is the discrepancy between the maternal grandfather’s affidavit account that he had seen the father lift B up by the shirt collar and hit his head against the wall and his evidence when cross-examined, which was to the effect that he had not actually seen this but had been told that this had happened.
I accept that, during an argument with the maternal grandmother, the mother slapped or punched the wall with sufficient force as to cause a hole in it. Whilst other aspects of her evidence included that the father had acted violently toward her on many occasions, the mother was unable to particularise these and said that she could not remember them and had no memory of them.
I note that the mother told Ms E that, whilst the father had occasionally been angry with the children during their relationship, he had mainly ignored them. I also note that, in the March 2019 report, Ms E said it was clear that the parents had engaged in verbal arguments to which the children had been witness.
Whilst the evidence includes other allegations that the father has previously acted in an abusive manner, the orders proposed by the mother for his interaction with the children (whether they are allowed to move to live in the USA or remain living in Australia) suggest that she does not regard him as posing a risk of harm to the children. Her evidence also included that, if the children were able to move to live in the USA, she hoped that the father would return to live in that country also so that he could spend time with the children on at least a substantial and significant basis.
I note that, in the March 2019 report, Ms E expressed her opinion that it was clear that the parental relationship was characterised by mistrust and had been dysfunctional in the past. She also noted that parents who cannot communicate and are at war with one another and have no respect for each other, place their children at risk of suffering emotional harm. I accept that all of the children (other than Z) told Ms E in February 2019 that they knew that their parents were not good friends. I also accept that all of them (other than Z) described their parents yelling at each other.
When interviewed by Ms E in September 2020, the mother told her that the father did not speak to her apart from about basic things through a parenting app on the phone. She said that she would like to have a co-parenting relationship with the father, but he blames her for the conflict in their relationship. I accept that, when interviewed by Ms E in September 2020, the father told her that there was no communication between himself and the mother and that all of their communication was then going through lawyers. He described that his attempts to communicate an offer to the mother that the children go to her on the Saturday night so they could wake up and have Mother’s Day with her had resulted in the mother asking him why he was sending her text messages through the app.
Despite all of this evidence, both parents agreed that the children’s best interests would be met by an order that they have equal shared parental responsibility for the major long-term issues relating to the children; that they did so can only suggest that, as at the trial, each had decided that he or she was confident that, by whatever means (for example, the app they had been using), they would be able to make decisions about such issues jointly, as required by the Act.
Some other aspects of Ms E’s evidence
I accept that, as Ms E noted in her March 2019 report, the children clearly love both parents and have relationships with each of them; I accept that the children then did not want to be separated from their sibling group. I accept that, as Ms E noted then, the children wanted to spend frequent time with each parent and “want to spend slightly more time with their mother than their father”. I note Ms E opined that this may have been because they perceived him as being stricter and their mother as more fun. I accept that, as Ms E noted in her March 2019 report, the children then had strong views and wishes. I accept her assessment of them as mostly articulate and able to transition between their parents; I accept her assessment that they had maintained relationships with both parents over their childhoods. I accept that, as at February 2019, all of the children appeared to enjoy the school they attended and all, save for X, had a close circle of friends there. I accept Ms E’s assessment that all of the children loved their family in the USA and wanted to maintain relationships with them.
I note that Ms E said, in her March 2019 report, that, if the Court did not permit the children to relocate to live in the USA, both parents should remain living in Australia. As already noted, the mother was clear in saying that she did not intend to return to live in the USA if the children were not permitted to move to live in that country. I note that Ms E also opined that, if the children were not permitted to move to live in the USA, they should live with their parents in an equal-time, week-about parenting regime as she considered that the parents would be able, once living separately, to manage the communications necessary to make such a regime work for the children.
I accept Ms E’s assessment, as expressed in the September 2020 report, that the children were a very close sibling group who ranged in age and across many developmental levels: I accept that, as a result, their needs are quite different and that, consequently, multiple factors need to be considered in making decisions about their future parenting regime.
I accept Ms E’s assessment that the children clearly have established relationships with both parents, that they love both of their parents and that they want to spend frequent time with each of their parents.
I note that, in the September 2020 report, Ms E said that she did not support the children relocating to the USA. Whilst she appeared to place weight on the father’s opinion that the children would receive a more positive education and better access to health care in Australia than in the USA and the likely interruptive impact of the current pandemic on international travel (a prescient assessment), she also opined that, if the children moved to live in the USA and the father remained living and working in Australia, each of their relationships with him would be negatively impacted.
WHAT ORDERS ARE IN THE CHILDREN’S BEST INTERESTS?
Given that I will make an order, by consent, for the parents to have equal shared parental responsibility for the major long-term issues relating to the children, I am required to consider (having regard to the reality of the situation for the children and their parents and by way of a practical assessment of the feasibility of the possible parenting regimes[26]) whether the children spending equal time with each parent is in their best interests and reasonably practicable.[27]
[26] MRRv GR (2010) 240 CLR 461.
[27] Family Law Act 1975 (Cth) ss 65DAA(1) and 65DAA(5).
It is trite to observe that, if the mother is permitted to relocate the children to live with her in the USA, the practicalities are such that, if the father remains living in Australia, the only time the children will be able to spend with their father will be during the USA school holidays.
However, if the children remain living in Australia, there is nothing of a practical nature to suggest that continuing to live in an equal-time, week-about parenting regime, as the four oldest children have since about April 2019, cannot feasibly continue to be implemented.
Is it in the children’s best interests to relocate with their mother to live in the USA?
It is well settled that the exercise of the discretion involved in determining those parenting orders which are in any child’s best interests “necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition”.[28]
[28] Morden & Coad [2019] FamCAFC 233 at [13] and the reference to U v U (2002) 211 CLR 238 per Gummow and Callinan JJ (with whom Gleeson CJ, McHugh and Hayne JJ agreed) at [90]; CDJ v VAJ (1998) 197 CLR 172 per the plurality at 218-219.
I accept that the mother genuinely considers that the children’s best interests will be met if they are permitted to move to live with her in the USA, with or close by to their maternal grandparents. However, I consider that the benefits associated with such a move – predominantly, that their mother will likely be happier and feel more supported in her parenting of them and that they will have a greater opportunity to develop relationships with members of their extended maternal and paternal families – do not outweigh the disadvantages of the same – which I consider predominantly to be that they would be unable to continue to live with their parents in the equal-time arrangement that has been in place (for all children other than Z) since April 2019 and that they would be completely dislocated from the location that has been their home since 2007.
I am simply not persuaded that the benefits to the children of moving to the live in the USA outweigh what I regard as the detriments to them: in particular I consider that, if they moved to live with their mother in the USA, they would be unable to maintain a meaningful relationship with their father in the same way as will be possible if they remain living in Australia and spend at least significant and substantial time with him. I consider this to be particularly the case for Z given her age and the associated difficulty I assess in her being able to develop and maintain a meaningful relationship with her father if she is only able to spend face-to-face time with him once (or, at best, twice) each year.
Whilst I accept that communication via the telephone, FaceTime and email can certainly assist children to maintain relationships with parents from a distance, I am not persuaded that this is likely to be the case for Z given her age. Insofar as the other children are concerned, whilst they may well be able to maintain a relationship of sorts with their father with the assistance of telephone or FaceTime communication and by being able to email him, such relationships would, I consider, be so vastly different from their actual experience to date as to be deleterious for them.
I accept that, if the children moved to live in the USA with their mother, they would be required to engage with an entirely different and, to them, foreign educational system. Whilst I think it much more likely than not that, over time, they would adapt to the same, the fact is that this would initially likely cause them some disruption and, possibly, in V’s case particularly given her academic focus, anxiety. Whilst I accept that she has clearly said that she would like to go to university in the USA, the reality is that she does not have any actual experience of the USA education system. I consider that disrupting her education at this stage is something which is not in her best interests.
I am not simply persuaded in this case that the benefits to the children of a move to live in the USA for the very first time in their lives outweigh the likely deleterious impacts on their lives as they have lived them to date.
I consider that the children will be likely be able to continue to develop relationships with their extended family (both maternal and paternal) who live in the USA if they are afforded the opportunity to travel to that country with either of their parents during their school holidays.
The children’s time with each parent given they will continue to live in Australia
When interviewed by Ms E in September 2020 the mother told her the children complained about having to constantly move as they lived in the week-about parenting regime. She said they complained about never feeling settled; she considered that the week about arrangement was quite challenging for them.
As noted earlier, her proposal, if the children remained living in Australia (as they will) was that their time with their father should decrease so that they are spending time with him from Thursday afternoon until Monday morning each alternate weekend. As I understood it, a large part of her case in this respect was that such a regime would demonstrate that the views and/or wishes of both V and W to spend more time with her and less time with their father were accorded appropriate weight.
Whilst orders in the terms sought by the mother would achieve that, such orders would, I consider, fail to accord sufficient weight to the views expressed by X and B – both of whom I considered wanted to continue to spend time with each of their parents in the manner that they have since the April 2019 orders were made.
Given that neither parent suggests a continuation of the current parenting regime whereby Z is separated from her siblings each fortnight, it is obviously necessary to determine whether the children’s best interests will be better met by decreasing the time that the oldest four spend with their father from an alternate week to four nights each fortnight or increasing Z’s time with him from four nights each fortnight to the week that her siblings have been spending since about April 2019.
Whilst both V and W have expressed the views to Ms E that I have set out and whilst I have taken the same into consideration, I have concluded that it is more likely than not that the children’s best interests – considered as a sibling group and individually – will be better met by continuing the equal-time week-about parenting regime in which the four oldest have lived for more than two years and having Z join them in the same. I consider that this will enable all of the children to remain together in the care of each of their parents for a week every fortnight; it will maximise the time that they have together, particularly noting the difference in age between Z and V and the consequences for the siblings of that reality; it will enable the children to settle during the entirely of each school week, as opposed to requiring them to transition between their parents’ homes on every second Thursday and every second Monday; given that I intend to order that changeover occur on Friday rather than Monday, it will also accord the children the opportunity to move between their parent’s homes at the end of the school-week rather than at the very beginning of the same: they will be able to have each weekend to settle.
Should the frequency of overseas travel be nominated?
Whilst the September 2020 report contains a recommendation that the children be able to travel overseas at a frequency of no more than once every second year with each parent, I am not persuaded that it is in the children’s best interests to limit the frequency of their travel- especially given that every overseas trip would have to occur during school holidays in any event. I also note that neither parent supported the making of an order in such terms.
Final comments about the terms of the orders to be made
To the extent that any other aspects of the parenting orders to be made are not the subject of particular discussion in these Reasons, I have concluded that the same are in the children’s best interests because such orders will, for example: enable both parents to be kept informed about the children and their progress; afford the children the opportunity to maintain communication with each parent in the time between face to face interactions; ensure, as far as possible, that the requirement for in-person interactions between the parents is minimised and occur in a public place; ensure, as far as possible, that the children are protected from the harm which may be caused to them as a consequence of exposure to derogatory comments about each of their parents and eliminate the possibility that the children will be subjected to physical discipline.
For the reasons expressed, I consider that the orders set out at the commencement of these Reasons are the orders which, in the reality of the children’s circumstances, as established by the evidence before me and as adverted to above, are now in their best interests.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 23 December 2021
7
1