Fallon and Stirrat (No. 2)

Case •

[2013] FamCA 237

FAMILY COURT OF AUSTRALIA

FALLON & STIRRAT (NO. 2) [2013] FamCA 237
FAMILY LAW – CHILDREN – International Relocation – With whom the children live – Where the Mother seeks to relocate with the children to Spain – Where the Father lives in the United Kingdom and seeks that the children relocate to the United Kingdom to live with him or alternatively, to live with the Mother and spend time with him on alternate weekends – Where the Father has not seen the children for two years
Family Law Act 1975 (Cth)
Collu & Rinaldo [2010] FamCAFC 53
Heath & Hemming (No. 2) [2011] FamCA 749
MRR v GR (2010) 240 CLR 461
APPLICANT: Mr Fallon
RESPONDENT: Ms Stirrat
INDEPENDENT CHILDREN’S LAWYER: Ms Dart
FILE NUMBER: BRC 9207 of 2012
DATE DELIVERED: 16 April 2013
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Kent J
HEARING DATE: 11 and 12 April 2013

REPRESENTATION

FOR THE APPLICANT: In person by telephone
COUNSEL FOR THE RESPONDENT: Mr Bunning
SOLICITOR FOR THE RESPONDENT: Johnston Vaughan Solicitors
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland 

Orders

  1. It is declared that the presumption of equal shared parental responsibility is rebutted in the best interests of C born … May 1999, D born … January 2003 and E born … September 2005 (“the children”).

  2. That the Father, Mr Fallon, and the Mother, Ms Stirrat, have equal shared parental responsibility for making decisions with respect to changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with either party.

  3. That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision.

  4. That the Mother have sole responsibility for the remaining major long term issues regarding the children. The types of decisions about which the Mother has sole responsibility for include but are not limited to

    (a)       the children’s education;

    (b)       the children’s religious and cultural upbringing;

    (c)        the children’s health; and

    (d)       the children’s names.

  5. Except in the event of an emergency involving the children, the Mother is to consult with the Father about decisions to be made in the exercise of her sole parental responsibility as follows:

    (a)the Mother shall inform the Father about the decision to be made, the decision she would like to make and the reasons for that proposed decision, in writing;

    (b)       the Mother shall give the Father 14 days to respond;

    (c)the Mother shall consider the Father’s views/response when coming to decision;

    (d)the Mother will inform the Father of the ultimate decision she has made with respect to that issue as soon as practicable thereafter.

  6. That each party has responsibility for daily decisions about the day to day care, welfare and development of the children while in his or her care.

Live with

  1. That the children shall live with their Mother.

  2. That the Mother be at liberty to relocate the children’s residence to M City, Spain.

  3. The Court requests that the Australian Federal Police remove the names of the children C born … May 1999, D born … January 2003 and E born … September 2005 from the Airport watch list at all points of international arrivals and departures in Australia.

Time with the Father

  1. That pending the children’s residence being relocated to M City:

    (a)The children shall spend time with their Father in Australia as agreed between the parties;

    (b)The children shall communicate with their Father as provided for in paragraph 21 hereof.

  2. That once the children’s residence has been relocated to M City, the children shall spend time with their Father as agreed between the parties and failing agreement as follows:

    (a)From 10am to 1pm on both Saturday 4th May 2013 and Sunday 5th May 2013 with such time to occur in M City; and then

    (b)From 10am to 1pm on both Saturday 18th May 2013 and Sunday 19th May 2013 with such time to occur in M City; and then

    (c)From 9am – 5pm on both Saturday 1st June 2013 and Sunday 2nd June 2013 with such time to occur in M City; and then

    (d)From 9am – 5pm on both Saturday 15th June 2013 and Sunday 16th June 2013 with such time to occur in London; and thereafter

    (e)Commencing on the first weekend of September 2013, on the first weekend of each month from after school Friday until Sunday afternoon (with the specific changeover times to be dependent upon the father’s flight times to be advised by the Father pursuant to Order 23(b)), with such time to occur in M City.

    (f)Commencing on the third weekend of September 2013, on the proviso that the father has arranged suitable accommodation for the children in London and has provided the Mother with the address and particulars of the property, on the third weekend of each month from Friday evening until Sunday afternoon (with the specific changeover times to be dependent upon the children’s flight times to be advised by the Mother pursuant to Order 26(b)), with such time to occur in London:

    (i)with the parties to bear the costs associated with the children’s unaccompanied travel to and from London equally.

    (ii)in the event the Father is unable to afford half of the costs of the children’s travel to and from London as provided for by paragraph 11(f)(i), he shall give the mother at least 2 weeks notice.

    (g)Irrespective of the children’s schooling arrangements, if the Father is to be in M City and wishes to spend time with the children, he may give the Mother at least 14 days notice and shall spend time with the children as agreed.  The Father is to ensure the children attend school as required by Spanish Law during any such period.

  3. That the Father’s time in each succeeding step outlined in Order 11 shall not take place until each preceding step has occurred and the timetable shall be adjusted accordingly.  Further School holiday time as provided for in Orders 15 and 16 shall not commence until each step provided for in Orders 11(a) – (d) has been completed and the timetable shall be adjusted accordingly.

  4. That the Father be at liberty to involve his new partner and her son in his time with the children from the second weekend occasion that the children spend time with him in London.

School Holidays

  1. That the father’s weekend time as provided for in Orders 11(e) & (f) hereof be suspended during school holiday time.

  2. That for the Summer school holiday period in 2013, the children spend time with their father as agreed between the parties and failing agreement as follows:

    (a)A block period of 3 nights in M City in the week commencing 1st July 2013;

    (b)A block period of 4 nights in London in the week commencing 15th July 2013;

    (c)A block period of 5 nights in M City in the week commencing 29th July 2013;

    (d)For a week commencing 12th August 2013 in London, on the proviso that the father has arranged suitable accommodation for the children, in London.

  3. That with the exception of the Summer school holiday period in 2013, the children live with the parents for school holidays as follows:

    (a)the first half of the children’s school holidays in even numbered years with the Father and in odd numbered years with the Mother; and

    (b)the second half of the children’s school holidays in odd numbered years with the Father and in even numbered years with the Mother;

    (c)for the purpose of these Orders, school holiday time shall commence:

    (i)when a parent's time falls in the first half of the holidays from 12:00pm on the day after the school term finishes and conclude at 12:00pm on the day calculated to be half of the holidays;

    (ii)when a parent's time falls in the second half of the holidays, from 12.00pm on the day calculated to represent half of the holidays when spending time shall end at 12:00pm on the Saturday before the school term recommences;

    (iii)school holidays shall be deemed to commence at 12pm on the day after the school term finishes and conclude at 12pm on the day before the children return to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the Father shall retain the additional night.

  4. That C’s time with her Father, as detailed above, be subject to her wishes.

Special Days

  1. That notwithstanding any previous orders, the children shall spend time with their parents on special occasions as follows:

    (a)On each child’s birthday with the parent they are not living with on the day:

    (i)By telephone, if the parent is not in the city where the child is at that time living;

    (ii)If the parent is in the city where the child is at that time living:

    1.    a school day, from 4pm until 7pm;

    2.    if a non-school day, from 9am until 1pm;

    3.with that parent to be responsible to collect and return the child.

  2. With the exception of 2013, with the Father on the Father's day weekend and if that is a weekend that the Father would not ordinarily spend time with the children then the Father shall forego the next weekend of time in London.

  3. With the Mother on the Mother's day weekend and if that is a weekend that the Mother would not ordinarily spend time with the child then the Mother shall forego the next weekend of time in M City.

Telephone & other electronic communication

  1. That the children shall communicate with their Father as agreed between the parties and failing agreement as follows: 

    (a)by telephone and/or webcam/Skype between 7pm and 8pm (Spanish time) on each Sunday when they are not spending time with their father, with the father to initiate the call.

    (b)by e-mail, text message or via social networking sites at all reasonable times with the Mother to encourage the children to send photographs and/or updating emails to the Father throughout the week.

    (c)by post.

  2. When the children are communicating with the other parent each parent shall:

    (a)Ensure that the children are available to receive the telephone call;

    (b)Arrange for the children to telephone the other parent on the following night if, for any unforeseen circumstance, the children miss the telephone call from that parent;

    (c)Ensure that the children have privacy during their communication with the other parent.

  3. That the children shall communicate with the parent they are not spending time with on school holidays each Sunday and Wednesday between 7pm and 8pm (Spanish time) with the children to initiate the call.

  4. That the children be at liberty to telephone the parent they are not with at all reasonable times and the parents shall facilitate this.

Changeovers & Travel

  1. With the exception of the weekend travel to be paid for/contributed to by the Mother pursuant to paragraph 11(f)(i) above, that for the purposes of weekend time and for the purposes of school holiday time to be exercised in M City:

    (a)Changeover shall occur at a location agreed to between the parties and failing agreement at the Mother’s home.

    (b)The Father is to provide the Mother with a copy of his itinerary at least 36 hours prior to his departure.

  2. For weekend travel where the costs are to be shared equally between the parents:

    (a)The Mother will be responsible for making all transport arrangements for the children’s travel to and from London.

    (b)The Mother is to provide the Father with a copy of the children’s itinerary at least 7 days prior to the children’s departure.

    (c)The Father will reimburse the Mother for his half of those costs within 48 hours of receiving a tax invoice or receipt evidencing the same.

  3. For school holiday travel, with the exception of the periods to be exercised in M City pursuant to Order 15:

    (a)The Mother will be responsible for making all transport arrangements for the children’s travel from M City to London and shall in the first instance bear the costs of the same with the Father to reimburse those costs to the Mother

    (b)The Mother will be responsible for making all transport arrangements for the children’s travel from London to M City and shall bear the costs of the same.

    (c)The Mother is to provide the Father with a copy of the children’s itinerary at least 7 days prior to the children’s departure.

Communication

  1. That neither parent will denigrate the other, their partner or their family to, or in front of, or within the hearing of, the children and shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of, the children and failing their compliance with such a direction shall remove the children from that environment immediately.

  2. Neither parent shall discuss these proceedings with the children nor involve the children in any discussions regarding any issue in dispute between the parties.

  3. That the parents keep each other informed of their residential address and telephone number and advise the other of any change within 24 hours of such change.

Health & Schooling

  1. The Mother do all acts and things necessary to arrange for the children to be enrolled in the F School in M City with their attendance to commence as soon as practicable upon the children’s residence has been relocated to M City.

  2. That Mother shall use her best endeavours to ensure the children’s ongoing attendance at school as required by Spanish law.

  3. The parties shall keep the other informed of the children’s doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children and this Order shall serve as such authority.

  4. Each party shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children.

  5. The parties shall keep the other informed of any school, educational facility or extra curricular activity provider attended by any of the children and authorise those providers to provide the other parent with information that they are lawfully able to provide about the children and this Order shall serve as such authority.

  6. If there is a cost associated with the provision of any information or documents under these Orders from the children’s doctors, health care and other treatment providers, school, educational facility or extra curricular activity provider the expense shall be borne by the parent requesting the information.

  7. Subject to the conditions imposed by the children's schools or extra-curricular provider, these Orders authorise both parents to attend school functions and extra-curricular activities to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.

Travel & Passports

  1. The parties are permitted to take the children to other Hague Convention Countries for holidays and for other short periods of time during such times as the children are in their respective care and in relation to such travel:-

    (a)The parties will give each other as much notification as possible of their intention to travel with the children out of the parent’s country of residence and in any event will give not less than 28 days written notice of such intention.

    (b)The mother will release the children’s passports to the father upon provision of the information referred to in paragraph 39. 

    (c)The father will return the children’s passports to the mother with the children.

  2. The parties will furnish each other with an accurate itinerary to include the departure and return dates, the country or countries the children will be travelling to, the approximate dates on which the children will arrive and depart each country and a landline telephone number and address at which the other parent and the children can be contacted in each country.

  3. The Father shall sign within 14 days of a request being made by the Mother, from time to time, in writing any Application for an Australian Passport or a British Passport for C born … May 1999 and D born … January 2003 and E born … September 2005.

  4. Should the Father refuse or neglect to sign an Application for an Australian Passport within 14 days of a written request being received by the Mother, the Registrar of the Family Court of Australia at Brisbane is appointed to sign that Application and to do all acts and things necessary to ensure that the Application is validly executed on behalf of the Father.

Other

  1. That the parties do all acts and things reasonably necessary to arrange for these Orders to be registered and/or Orders to be made in the same terms as these Orders, in both Spain and the United Kingdom as soon as practicable from the date hereof.

  2. That all outstanding applications be dismissed.

  3. That the Independent Children’s Lawyer be discharged.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9207 of 2012

Mr Fallon

Applicant

And

Ms Stirrat

Respondent

REASONS FOR JUDGMENT

  1. The applicant Mr Fallon (“the Father”) and the respondent Ms Stirrat (“the Mother”) are in dispute as to the parenting orders to be made pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) in the best interests of their children, C born in May 1999 (now almost fourteen years of age); D born in January 2003 (aged ten years); and E born in September 2005 (aged seven years and seven months).

  2. Pursuant to s 68L of the Act Clare Dart, a lawyer employed by Legal Aid Queensland, has been appointed to independently represent the children’s interests in these proceedings.

  3. There are two striking features of these proceedings. First is the feature that neither parent seeks parenting orders that see the children remain living in Australia where they have been residing for the past two years. Each of the Father’s alternative proposals, discussed in further detail below, would see the children living in the United Kingdom where they mainly lived until coming to Australia some two years ago in April 2011. On the Mother’s proposal she would be permitted to relocate with the children to live in M City, Spain. Thus the jurisdiction of an Australian court is being enlivened to make parenting orders under part VII of the Act in circumstances where the future for these children, on either parent’s proposals, will see them internationally relocated.

  4. The second striking feature of the case is that, notwithstanding that he has not actually spent time or physically seen the children for now more than two years, the Father’s primary proposal is that they live with him in London. He maintains that position should the Mother decide to go to Spain. If the Mother chooses to live in the United Kingdom, an alternative proposal of the Father contemplates the children continuing to live with the Mother and he having time with them on alternate weekends.  

Relevant Background

  1. The Father is 40 years of age having been born in 1973. He was born in Australia but permanently relocated to the United Kingdom in June 1998. He holds dual Australian and United Kingdom citizenship.

  2. The Mother is 34 years of age having been born in 1978. Whilst she was born in the United States the Mother grew up in Australia. She also holds dual Australian and United Kingdom citizenship as do the children the subject of these proceedings.

  3. The parties commenced living together in Queensland in 1997 but in June 1998 relocated to live in the United Kingdom primarily in order for the Father to pursue his IT career. The parties lived in the United Kingdom thereafter save for a period of about eight months in 2000 when they lived in the USA. They married in December 1999 and separated in December 2010 whilst the Mother and children were holidaying in Australia.

  1. The Mother returned to London with the children in early 2011 and filed for a divorce in the United Kingdom. It seems that the Mother’s return to the United Kingdom with the children in late 2010/early 2011 was prompted by the Father foreshadowing an application under the Hague Convention if the Mother remained in Australia.

  2. Each of C and D are the biological children of both parents whilst E’s biological father is one Mr S who lives in Cyprus. Whilst E has relatively recently met Mr S and the Mother contemplates some continuation of their relationship, Mr S did not participate in these proceedings and there is no evidence that he seeks formal orders with respect to E either here or elsewhere. For all intents and purposes E was treated by the Father as his child throughout the marriage.

  3. In April 2011 the Mother and children left the United Kingdom for Australia via Thailand on one-way tickets. The Father agreed in cross-examination that prior to the departure of the Mother and children the Mother had, to his knowledge, shipped her furniture and chattels to Australia and that none of her personal belongings remained in the United Kingdom. As noted, one-way tickets were purchased and the Father agreed in evidence that he facilitated that. The Mother’s own parents had separated with her father being in Thailand at the time and the trip via Thailand was to visit her father and then to come to Australia where her mother was then residing.

  4. The Mother maintains a case that the Father consented to the Mother and children permanently relocating to Australia in April 2011. She points to a document she says is signed by the Father giving expression to that intention. The Father disputes the authenticity of the document.

  5. Whether or not the document is authentic it is difficult to escape the conclusion that the Father well knew the move was likely to be permanent. As already noted, he had earlier foreshadowed Hague Convention proceedings prior to the Mother and children returning to the United Kingdom in early 2011. Yet when the Mother and children again left the United Kingdom in April 2011 there were no formal orders or parenting agreement in place. If it was in contemplation that the Mother and children were to return and the Father was already concerned that they would not, it is difficult to reconcile the behaviour of both parties thereafter. As noted, the Mother transported all of her furniture and chattels to Australia in advance and one-way tickets were purchased and that was facilitated by the Father. Soon after coming to Australia the Mother purchased, with the assistance of her Australian-based family, a residence for herself and the children in Queensland. She owned that residence, as was known by the Father, from August 2011 until settlement of the sale of that property in October 2012. The Father was aware of the residence of the Mother and children at that address.

  6. The assertion by the Father in these proceedings that he understood the Mother and children to be going to Australia on “a short holiday” is thus rejected. I find it more likely than not that the Father knew and accepted that the Mother and children were permanently relocating from the United Kingdom to Australia at the time.

  7. At about the end of 2011 the Father re-partnered with his current defacto partner, Ms G, a Philippino national and the Father has continued to live with Ms G ever since and also with Ms G’s now ten year old son, T.

  8. The Father currently remains self-employed as an IT consultant living with Ms G and her son in a two bedroom rented flat in London. He proposed to obtain alternative accommodation with sufficient bedrooms to accommodate the girls if orders were made for them to reside with him.

  9. The Mother in oral evidence described herself as a consultant. It seems that she commenced studying toward a degree at H University but she does not hold such a degree so presumably did not complete her study. Paragraphs 25 and following of her affidavit filed 15 March 2013 describe her work experience and she was not challenged in cross-examination on her assertion that she is an international authority on an aspect of a Middle Eastern Country providing expert testimony in cases and frequently is involved in media relating to that and the organisation she established described as “J Org”. However it does not appear that the Mother has had employment since coming to Australia in April 2011.

  10. Indeed it is her economic circumstances that the Mother points to as a primary motivation for her proposed relocation to Spain with the children. She deposes to having accepted an offer with a company, K Partners, based in the Middle East. She deposes to her role with that firm being as a partner establishing a European branch and that, whilst initially she contemplated relocating to Cyprus for that purpose, can do so in Spain.

  11. In addition to that, the Mother deposes to accepting employment with a USA based firm described as L Pty Ltd. In oral evidence she confirmed that this would be office based employment in M City working from 9am until 3pm. At paragraph 29 of her affidavit filed 15 March 2013 the Mother deposes to her expectation as to a base income of 45,000 Euros plus a 20 per cent profit sharing bonus “based on performance”.

  12. It would seem to be a significant component to the current dispute between the parents as to financial arrangements between them from time to time. The Mother deposes that when she and the children left the United Kingdom in April 2011 it was agreed that the Father would provide 35 per cent of his income as and by way of child support and spousal maintenance for the Mother. Whatever the characterisation, it does seem that the Father maintained financial support of the Mother initially from April 2011 although the unchallenged evidence of the Mother is that this was not at the level that had originally been agreed. However, it seems that by the end of 2011 or early 2012 the Father ceased paying any financial support to the Mother. He says this was to, in effect; bring her to the negotiating table so far as future financial and parenting arrangements were concerned. However, I do not accept that the Father was so motivated. He re-partnered with Ms G and thereafter she and her son had been part of his household. Whilst Ms G works shifts as a healthcare worker in the United Kingdom there would seem to be little doubt that there is a sharing of financial expenses in the single household they operate. There is clearly a temporal connection between the commencement of the Father’s relationship with Ms G and his cessation of financial support for the Mother and children.

  13. In terms of temporal connections, there likewise seems to be a connection between the Mother instituting, in September 2012, formal financial support proceedings in the United Kingdom against the Father and, in October 2012 soon thereafter, the Father initiating these parenting proceedings in Australia.

  14. The Mother’s United Kingdom financial support proceedings culminated in an order being made by consent whereby the Father was liable to pay a lump sum equivalent to AUD 30,000 plus ongoing periodical support of AUD 1,086 per month. The Father acknowledged in cross-examination the likelihood of a review of child support arrangements should the children be living with him in the United Kingdom.

  15. As earlier noted, the Father last physically spent time with the children prior to their departure from the United Kingdom in April 2011. That is, the Father has not physically seen the children for some two years.

  16. On the accounts of both parties it would seem that initially the children regularly communicated with the Father whilst in Australia but then this communication became infrequent. The Father contends, in essence, that he ceased communication as a consequence of “hostility” and the fact that, he says, the Mother was actively alienating the children from him.

  17. There cannot be much doubt that from early to mid 2012 the parents were at odds with each other so far as the issues concerning financial support were concerned as well as the Mother’s proposal that she relocate herself and the children to Europe. Initially from late in 2011 the Mother proposed a relocation to Cyprus but from about May 2012 onwards she consistently sought the Father’s consent that she be permitted to relocate with the children to M City in Spain.

  18. There are, it seems to me, a number of significant internal inconsistencies in the Father’s case and evidence before me. First, if as he says the Mother and children were to return to the United Kingdom after either a “short holiday” or a period of months as he suggested during his cross-examination there is no ready explanation for the Father’s failure to pursue any formal steps to achieve that outcome when it was readily apparent that it was not taking place. That is, the Father, well knowing of the Hague Convention as earlier referred to, did not pursue such an application at any time. Second, and perhaps more importantly, whilst the Father sought to maintain a case that the Mother was actively alienating the children from him, his conduct in terms of communication with the children is not readily reconcilable with that contention. He has never travelled to Australia to visit the children. That is so, despite the feature that when he ceased contributing financially for 2012 it can be implied that he had the financial resources to do so if he chose to. He chose to limit his communication with the children.

  19. Further, on the Mother’s uncontested evidence it was the Father himself who chose to terminate his access to Skype communication with the children when, on the Mother’s account, that had been a successful form of communication and interaction between the children and the Father.

  20. I accept the Mother’s evidence, uncontested by the Father, that in September 2011 the Father declined the Mother’s invitation to the Father to join the Mother and children in Australia for Christmas that year.

  21. I also accept the Mother’s evidence that during 2011 the Father’s payments of financial support were less than what had been agreed and that when she sought to discuss this with the Father he became hostile and his communications then lessened and essentially ceased, as noted, during 2012.

  22. I accept the Mother’s evidence also that the Father did not acknowledge C’s thirteenth birthday in 2012, nor subsequent birthdays of D and E.

  23. Exhibit “O” to the Mother’s affidavit filed 15 March 2013 is a copy of an email to the Father of 21 December 2012 in which the Mother proposed travelling with the children to visit London and also Spain and requesting the Father spend time with the children on that occasion as well as investigating her proposed relocation to Spain with the children. The Father refused or declined those proposals, he says because he considered the Mother a “flight risk” such that if he gave permission for the Mother and the children to leave Australia (he having instituted proceedings in October 2012 having the effect of preventing the Mother and children leaving Australia) she would likely simply move herself and the children to some foreign destination and not keep the arrangement envisaged in the email.

  24. However, the Father’s contention in this respect does not stand up to scrutiny in circumstances where the Mother was actively pursuing international relocation from Australia from late 2011 with a firm and consistently stated plan to go to Spain from May 2012 and there had been nothing to prevent her leaving the country between May 2012 at the latest and when the Father commenced these proceedings in October 2012.

  25. Moreover, on 18 March 2013 I made interim orders in these proceedings including orders for the Father to have communication with the children. He did not avail himself of that opportunity. That is, despite orders being made to facilitate his communication it did not occur. This is in circumstances where his primary proposal is that an order be made that would see the children immediately living with him in London with his partner and her child whom the children have never even spoken to, let alone met.

  26. In this context it is relevant to note that on 10 December 2012 Registrar Coutts ordered, inter alia, that a Family Report be prepared on an urgent basis because the subject matter of the proceedings involved a potential international relocation of children. In his original affidavit in support of his application the Father had sought that his application be dealt with urgently.  

  27. On 6 and 7 February 2013 the Family Consultant in this matter, Ms B, undertook interviews for the purpose of preparation of the ordered report. As Ms B records in her report dated 7 March 2013, only two days prior to the scheduled Family Report interviews did she receive contact from the Father’s solicitors to the effect that the Father was unable to attend in person and did not have the funds to travel from London to Brisbane for the purpose of the interviews.

  28. I find it extraordinary that the Father would not avail himself of the opportunity presented to personally attend for interviews both for the purpose of advancing his case but also for the purpose of spending time with the children in the setting of a report. That is, it is clear that by February this year the Father’s relationship with C in particular but also the other girls was tenuous at best yet the Father did not avail himself of the opportunity to attend for the interviews. He knew from the December order of the Registrar that interviews for the purpose of the report would be scheduled.

  29. Similarly, as part of the orders I made on 18 March 2013, aside from the communication orders already referred to which the Father did not avail himself of, I ordered that there be an addendum report prepared by Ms B based on further interviews between the Father and the children in person. On 18 March 2013 the Father was represented at the interim hearing by his solicitors and Counsel. I adjourned the hearing on that date temporarily to enable the Father’s lawyers to confirm his availability to travel to Australia in advance of any trial for the purpose of the addendum report.

  30. Ms B again confirmed in oral evidence before me that it was only a day or two prior to the planned interviews in advance of this trial that she received notice that the Father was not attending in person.

  31. Thus Ms B has been hamstrung by having to interview the Father by telephone for the purpose of her original report and in the end result no further interviews were conducted in advance of this trial because the Father did not attend. I find that the Father’s failure to attend for the purpose of the initial report and for the addendum report referred to demonstrates a lack of commitment by the Father both to these proceedings but more importantly to his relationships with the children.

  32. On 18 March 2013 arrangements were made to have the trial of these proceedings heard and determined on an urgent basis given the nature of the competing proposals between the parties involving international relocation of the children on either proposal. Again, the Father’s then solicitors and Counsel were given the opportunity to confirm with the Father his availability to attend for the trial on the dates postulated. In the result the Father did not attend and sought at the outset of the hearing on 11 April 2013 to delay the trial of these proceedings by a further period of some eight weeks or two months. As the Father well knew, part of the Mother’s imperatives in being permitted to relocate is to allow the children to commence at the school she has chosen.

  33. Obviously, a further delay of the trial would put further time between the Father spending any time with the children irrespective of the orders ultimately made in terms of the children’s place of residence and disrupt the Mother’s aims of having the children commence at their proposed new school in Spain consistently with the commencement of the school term.

Evidence at Trial

  1. On 18 March 2013 the Mother ultimately determined not to pursue her interim application for orders permitting her to relocate with the children to Spain on the basis that trial dates of 11 and 12 April 2013 were made available.

  2. The orders on 18 March 2013 thus included procedural orders for the purpose of enabling the parties to file and serve material relied upon for the purpose of trial, as well as provision for time and communication for the children with the Father pending the trial and orders for the updating report as already discussed.

  3. In the event the Father says he could not fund his then lawyers for trial. On that basis, he did not file material in accordance with the procedural orders made and at the outset of the trial sought an adjournment to enable him, he says, to fund lawyers for a subsequent trial. For reasons delivered at the time I refused the Father’s application for an adjournment of the trial. I reject the proposition that the Father could not himself have filed material.

  4. The Mother sought to proceed on the basis that the Father’s application be dismissed and essentially proceed on the basis that the Mother’s case proceed to be heard and determined effectively on an undefended basis. However, in the result I permitted the Father to appear by telephone and to rely upon the affidavit material he had previously filed and he was also permitted to cross-examine any of the witnesses relied upon by either the Mother or the Independent Children’s Lawyer and to make submissions. He also gave oral evidence.

  5. In the result, the Mother was the only witness in her case required for cross-examination. That is, her own mother, Ms N who had filed an affidavit in the proceedings relied upon by the Mother was not required for cross-examination by either the Father or the Independent Children’s Lawyer. Thus aside from the parties, Ms B was the only other witness who gave oral evidence before me.

Statutory Framework

  1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) (sections 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.

  2. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)).

  3. Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

  4. Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests.

  5. Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. Section 64B defines that term and identifies the matters that may be dealt with by a parenting order. Section 65D(1) is expressed in these terms:

    65D     Court’s power to make parenting order

    (1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.

  6. Section 65D(1) expressly provides that the power to make a parenting order is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (s 61DA(4) of the Act).

  1. As can be seen, s 61DA(1) provides for a presumption relating to the allocation of parental responsibility but does not provide for a presumption about the amount of time the child spends with each of the parents. The latter is dealt with by s 65DAA and subsection (1) of that provision provides as follows:

    “(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

    (a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

    (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

    (c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”

  2. Subsection (2) requires, where a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child and the Court does not make an Order (or include a provision in the Order) for the child to spend equal time with each of the parents, the Court to:

    “(a) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

    (b) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

    (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”

  3. “Substantial and significant time” within the meaning of subsection (2) is defined by subsection (3) as follows:

    “(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

    (a)the time the child spends with the parent includes both:

    (i)days that fall on weekends and holidays; and

    (ii)days that do not fall on weekends or holidays; and

    (b)the time the child spends with the parent allows the parent to be involved in:

    (i)the child’s daily routine; and

    (ii)occasions and events that are of particular significance to the child; and

    (c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”

  4. The determination of “reasonably practicable” depends upon consideration of subsection (5) and the matters there identified.

  5. In MRR v GR (2010) 240 CLR 461, the High Court observed (at para [9] of the judgment):

    “[9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents.”

  6. At [13], the High Court held:

    “[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-section (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”

  7. Further, of particular significance to a case such as this, where there is the prospect of international relocation, I note that at paragraph [15] of the judgment, the High Court held:

    “[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.”

  8. In Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010), the Full Court of this Court considered an international relocation case subsequent to the decision of the High Court in MRR v GR (supra). At paragraph 140 of their reasons, the Full Court said:

    “…however, we are of the view that, ordinarily, a consideration of the relevant matters in s 60CC of the Act would be undertaken before a concluded view could be formed that the presumption of equal shared parental responsibility applies. That does not mean that such a finding could not be made at an early stage of reasons for judgment, provided that it was clear that it was made having regard to findings made in relation to the s 60CC considerations.”

  9. At paragraphs 334 and 335, the Full Court dealt with the order in which the statutory provisions in Part VII are best considered and said:

    “Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. “Parenting order” is defined in s 64B. Section 60CC then sets out how to determine what is in a child’s best interests. Section 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in s 60CC(2) being the primary considerations and the matters set out in s 60CC(3) being the additional considerations. In other words, the matters in s 60CC could be described as the “best interests” considerations, and they must be considered.

    There is a possible overlapping of a number of considerations in s 60CC of the Act. For example, the first primary consideration in s 60CC(2)(a) of the Act, which deals with a child having a meaningful relationship with both of his parents, may overlap with the additional consideration in s 60CC(3)(b) which requires consideration of the nature of the relationship of the child with each parent and other persons. So also any finding as to the nature of the relationship of a child with a parent would be relevant to consideration of s 60CC(3)(d) which requires consideration of the likely effect of any changes in the circumstances of the child including the likely effect of separation from the parent. It is for this reason that there is some attraction in the idea that perhaps the additional considerations in s 60CC(3) should be looked at before consideration of the primary considerations in s 60CC(2).”

  10. After considering the requirements in section 65DAA, at paragraph 374 of their reasons, the Full Court set out their reasons as to how following the 2006 amendments to the Act and the decision of the High Court, a trial judge should proceed. Their Honours said:

    “As to the best interests requirement of s 65DAA of the Act, in our view, it is not necessary to repeat all of the findings made in relation to the primary and additional considerations in s 60CC of the Act. However, at some point, the best interests considerations must be considered in the context of, or by reference to, the requirements of s 65DAA(1)(a) and (2)(c) of the Act.”

  11. At paragraph 375 of their reasons, the Full Court said:

    “Then the trial judge was required to consider 65DAA(1)(b) and (2)(d) of the Act. Section 65DAA(5) sets out matters that the Court must have regard to in determining whether it is reasonably practicable for the child to spend either equal or substantial and significant time with the parents.”

  12. The Full Court, by reference to authority, affirmed the principle that the court must meet the legislative requirements under subsection (5) of s 65DAA as a mandatory requirement.

  13. Mr McGregor of Counsel for the Independent Children’s Lawyer submitted that I ought follow the process which I identified in Heath & Hemming (No. 2) [2011] FamCA 749 at paragraph 87 as follows:-

    “Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation: -

    (a)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)

    (b)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))

    (c)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).

    (d)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).

    (e)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).

    (f)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.

    (g)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:

    a.Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,

    b.Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.

    (h)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.

    (i)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.”

  14. That submission was with the acknowledgment that relevant amendments were made to Part VII of the Act with effect from 7 June 2012 including to s 60CC and to adopt a new definition of “family violence” which is now contained in subsection 4AB(1) of the Act. Part VII in its amended form applies to these proceedings. I propose to adopt the approach identified taking into account the amendments to Part VII.

Proposals

  1. By his Application filed 11 October 2012 the Father sought final orders for the parties to have equal shared parental responsibility for the children; that the children live with the Father; and that the children spend time and communicate with the Mother in the United Kingdom “as agreed between the parties or otherwise as ordered by the Court”.

  2. At paragraph 8 of her report Ms B confirmed with the Father some variations in his proposed orders and likewise the Father confirmed these in his oral evidence. As Ms B records in her report:-

    “In interview he [the Father] proposed that the children live with him if [the Mother] relocates to Spain, but indicated that if [the Mother] returns to the UK with the children, he would consider (the) children living with either parent and spending regular time with the non-resident parent such as alternate weekends.”

  3. During his cross-examination at trial the Father confirmed that these alternative proposals included the children living primarily with the Mother in the United Kingdom with the children spending alternate weekend time with the Father.

  4. Admitted and marked as Exhibit 2 in the proceedings was the final form of orders as sought by the Independent Children’s Lawyer and as largely supported by the Mother. That document runs to some eleven pages containing some 40 paragraphs of detailed orders and need not be restated here.

  5. In summary, each of the Independent Children’s Lawyer and the Mother supported and sought respectively orders placing parental responsibility with the Mother other than in respect of changes to the children’s living arrangements (with a provision for consultation before decisions are made) but with an order for the children to live with the Mother and for her to be at liberty to relocate the children’s residence to M City in Spain.

  6. The orders as contained in Exhibit 2 otherwise reflected details of arrangements for the children to spend time with the Father both in Spain and in London on a graduated basis. Whilst the orders contemplated the children travelling to London to spend time with the Father commencing in May the Mother sought a three or four month delay to allow her and the children to settle in to life in Spain before they would have to travel to London for the purpose of the children spending time with the Father.

  7. Each of the Mother and the Independent Children’s Lawyer emphasised the need for the relationship between the children and the Father to be restored and that the graduated programme of increasing the time the children spend with the Father as per the orders formulated in Exhibit 2 contemplate that but equally, if the Father failed to follow that programme it was sought that the contemplated progression be likewise delayed.

  8. There were other differences as between the Mother and the Independent Children’s Lawyer in terms of holiday periods or at least so far as the length of any single period that the children would be away from the Mother and spending time with the Father was concerned.

  9. The orders proposed by the Independent Children’s Lawyer contemplate the orders being registered and/or orders being made in the same terms as orders made by this Court in both Spain and the United Kingdom as soon as practicable (paragraph 41).

  10. In the event, no party adduced expert evidence before me as to the prospect of what are known as “mirror orders” being made in the other jurisdictions referred to or as to the possibility of registration of the orders made by this Court in either the United Kingdom or Spain.

  11. In the event I have resolved to make orders along the lines suggested by the Independent Children’s Lawyer in terms of the making of “mirror orders” or at least registering these orders but I do not propose, nor think that it is reasonable, for the Court to explore those avenues when the parties have not. That is, in the absence of evidence I do not consider it is the role of this Court to ultimately determine whether or not “mirror orders” can or will be made or whether these orders can or will likely be registered by a relevant court in either Spain or the United Kingdom.

Best Interests Considerations

  1. The evidence overwhelmingly favours the conclusion, and I find, that throughout the lives of these children the Mother has been their primary carer. I find that the Mother is the children’s primary attachment figure.

  2. I accept the evidence of Ms B that there is currently no strong emotional connection or bond between the girls and the Father. In particular I accept the following conclusion expressed by Ms B at paragraph 92 of her report:-

    “The relationship between the girls and their father is at best fragile, and [the Father’s] proposal that the girls live primarily with him in London is unrealistic. He will need to commit to reconnecting with his daughters and to maintaining a consistent and regular figure in their lives before any of them will feel comfortable and secure spending any significant time with him. It is difficult for the girls to comprehend why [the Father] has attempted to prevent the Mother’s relocation to Europe, which is so much closer to his home in London than Australia. [The Mother’s] relocation to Spain with the children offers the opportunity to rebuild the Father-daughter relationships and in my opinion [C], [D] and [E] will be much more likely to want to spend time with their Father if they perceive him to be assisting rather than obstructing them to move closer to him.”

  3. I agree that the Father’s proposal that an order now be made for the children to live with him in London is unrealistic. As already noted, the children have not even spoken to, yet alone met, the Father’s current partner Ms G or her ten year old son. The Father cannot currently accommodate the children. On his primary proposal Ms G would be a significant figure in the children’s lives and would play a significant role in their care.

  1. Each parent should have parental responsibility for the day-to-day matters when the children are spending time with that parent.

  2. Given the rebuttal of the presumption in the children’s best interests if follows for the reasons earlier outlined that the making of parenting orders is at large.

Resolution and Orders

  1. I consider that it is reasonable that the Mother have the opportunity over a two month period from the time of her relocation to settle herself and the children into life in Spain before there is the obligation for the children to travel to the United Kingdom to spend time with the Father.

  2. I am also satisfied that the Father ought demonstrate his motivation and willingness to pursue his relationships with the children by adhering to the staged process of time and communication along the lines of the orders proposed by the Independent Children’s Lawyer and the Mother.

  3. I accept the merits of Ms B’s assessment that for initial visits the Father would be best to spend time with the children by himself without the children confronting also the dynamics of his new relationship with his current partner and her son.

  4. I am not persuaded that, as Counsel for the Mother ultimately contended; the Father’s holiday time with the children should be confined to one week blocks in duration at a time. As discussed during submissions that would simply add to the travel requirements for the children as well as disruptions to their living circumstances. It is reasonable that the Father have the opportunity for extended time with the children once his relationship with them is repaired, assuming that occurs.

Costs

  1. The Mother sought an order that the Father pay her costs of and incidental to these proceedings on an indemnity basis.

  2. I am not satisfied that in all the circumstances there are “justifying circumstances” within the meaning of s 117 of the Act for an order for costs in favour of the Mother, let alone costs on an indemnity basis.

  3. It seems to me that in circumstances where the parties were unable to reach agreement either a Court in Australia or elsewhere would have had to determine parenting orders. I am not satisfied that, as was contended on behalf of the Mother, that the Father was wholly and solely motivated by financial issues in pursuing the proceedings. Whilst many criticisms might be made of the Father concerning his primary proposal, and the unrealistic nature of it, in circumstances where he was confronted with the prospect of his children living in a foreign country other than Australia, where he was born, or the United Kingdom, where he lives, it does not seem to me that it can be concluded that the Father was unreasonable in pursuing the proceedings.

  4. In the event, the Mother has not been wholly successful in that the orders made do not reflect her contentions as a whole particularly as regards time and communication.

  5. I therefore do not propose to make any order as would disturb the effect of s 117(1) that each party bear their own costs of the proceedings.

  6. I therefore make the orders set out at the commencement of these reasons.

I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 16 April 2013.

Associate:   

Date:  16 April 2013

Key Legal Topics

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  • Family Law

  • Civil Procedure

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  • Jurisdiction

  • Costs

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Sayer v Radcliffe [2012] FamCAFC 209
Sayer v Radcliffe [2012] FamCAFC 209
Heath & Hemming (No 2) [2011] FamCA 749