Gagan & Pavola
[2023] FedCFamC1F 897
•20 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gagan & Pavola [2023] FedCFamC1F 897
File number(s): PAC 44 of 2022 Judgment of: SCHONELL J Date of judgment: 20 October 2023 Catchwords: FAMILY LAW – PARENTING – Relocation – Where the mother sought to relocate to Country B with the children – Where the father sought for the children to stay in Australia and for him to have the children’s primary care – Where the parties and children migrated to Australia in 2018 – Where the Court is unable to make findings of family violence as contended for by the father – Where the Court is satisfied that both parents have capacity to capably care for the children and are not a risk to the children – Where there are advantages and disadvantages to each of the proposals – Where the mother’s ability to obtain a permanent visa is unknown – Where the mother will be able to engage in financially remunerative and intellectually stimulating work in Country B – Consideration of primary and additional considerations pursuant to s 60CC of the Family Law Act 1975 (Cth) – Mother permitted to relocate to Country B. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Franklyn & Franklyn [2019] FamCAFC 256
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230
Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76
Oswald & Karrington (2016) FLC 93-726; [2016] FamCAFC 152
Sayer v Radcliffe& Another (2012) 48 Fam LR 298; [2012] FamCAFC 209
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
U v U (2002) 211 CLR 238; [2002] HCA 36
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 211 Date of hearing: 9 – 11 September 2023 Place: Sydney Counsel for the Applicant: Mr Apelbaum Solicitor for the Applicant: Ramsden Family Law Counsel for the Respondent: Mr Shaw Solicitor for the Respondent: Khalil Lawyers Solicitor Advocate for the Independent Children's Lawyer: Mr Clack Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
PAC 44 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GAGAN
Applicant
AND: MS PAVOLA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
20 OCTOBER 2023
THE COURT ORDERS THAT:
1.The respondent mother (“the mother”) be permitted to relocate the permanent residence of X born 2014 and Y born 2017 (collectively “the children”) to Country B.
2.The parties do all acts and things necessary to enable these orders to be registered with the relevant authority in Country B such that these orders are enforceable in both the Country B and Australian jurisdictions.
3.Upon compliance with Order 2, the children, X born 2014 and Y born 2017, be removed from the Family Law WatchList in force at all points of arrival and departure in the Commonwealth of Australia.
4.The mother have sole parental responsibility for the children.
5.The children live with the mother in Country B.
6.The children spend time with the applicant father (“the father”) as follows:
(a)For the entirety of the Term 1 and Term 3 Country B school holiday periods, with such time to take place in Europe, noting that the Country B Term 1 holidays generally take place in October/November and the Country B Term 3 holidays generally take place in April;
(b)In the Term 4 Country B school holiday period for a period of no less than five weeks as agreed between the parents but failing such agreement from 17 July until 21 August each year;
(c)In the Country B Christmas school holiday period for a period of no less than one week as agreed between the parents in writing with such time to occur in Europe; and
(d)Such other times as may be agreed between the parents in writing.
7.That the father notify the mother no less than 35 days prior to each Country B school holiday period that he intends to spend time with the children in accordance with Order 6 and, if travelling outside Country B during that time, he shall provide the mother with the following:
(a)A copy of the children’s return international ticketing information which shows the departure and arrival times for the children and the cost of the ticket;
(b)An itinerary for the children’s travel including telephone contact details for the children whilst they are travelling with the father and an address for the accommodation/s at which the children will be staying during the period the children are in the father’s care
8.Within 21 days of the father complying with Order 7, the mother shall reimburse the father for half of the cost of the children’s international flights between Australia and Country B.
9.For the purposes of changeover:
(a)When such changeover is to take place in Country B, the father shall collect and return the children to and from the mother’s home at the commencement and conclusion of his time;
(b)In the event that changeover is to take place outside Country B, the mother shall deliver the children to the relevant international airport in City C no less than three hours prior to any international flight the father has booked for the children and the father shall collect the children from the arrival airport following their flight.
10.The mother shall ensure that the father is provided with the children’s passports at any time he requires them to travel internationally with the children in accordance with these orders and the father shall return the children’s passports to the mother upon the children’s return from such travel.
11.The children shall communicate via Facetime, WhatsApp or another similar video platform with the other parent as agreed between the parents in writing but failing agreement as follows:
(a)The parent with whom the children are living with shall facilitate a video call to the other parent at 6.00 pm each Tuesday, Thursday and Saturday in the time zone where the children are located; and
(b)The parent with whom the children are living with shall facilitate any reasonable request for the children to communicate with the other parent.
12.For the purposes of parental communication, each parent shall utilise the parenting application “Our Family Wizard” to communicate with the other parent about any issues relating to the children’s care, welfare and development, with each parent to be responsible for their own fees relating to the use of this application.
13.Each parent shall notify the other parent of any health or medical issue concerning the children as soon as is reasonably practicable and these orders shall constitute authority for each parent to make enquiries with the children’s treating health professionals as to the children’s health.
14.Each parent shall notify the other parent as soon as is reasonably practicable of any serious illness, hospitalisation or serious injury sustained by either of the children whilst the children are in that parent’s care and provide particulars of any treatment or medication required or received by the children together with the name and contact details of any relevant health professional treating the children.
15.Each parent shall keep the other parent informed of their current residential address, telephone number and email address and shall notify the other parent of any change to these details within 48 hours of such change occurring.
16.These orders shall constitute sufficient authority for either parent to make enquiries with the children’s school about the children’s education progress and each parent shall be at liberty to obtain from the school copies of the children's school reports and any other communications generally extended to parents by the school at the requesting parent’s expense.
17.The parents do all things and sign all documents necessary to enable a valid Country B passport to issue for X acknowledging her usual surname Gagan Pavola but noting that her legal surname will remain Gagan.
18.Within seven days of the date of these orders, the father shall collect the children’s Country B and Country D passports from his former solicitors and provide those passports to the mother.
19.Each parent is restrained from:
(a)Denigrating the other parent or any member of their extended family or household in the hearing or presence of the children and shall not allow any third party to do so;
(b)Using any method of physical discipline on the children;
(c)Allowing the children to access or read any document filed or created in these or any other court proceedings involving the parents; and/or
(d)Communicating with the other parent through using the children as a messenger to the other parent.
THE COURT ORDERS BY CONSENT THAT:
20.The mother pay to the father by way of reimbursement of her share of the single expert’s fees the amount of $8,800 with such amount to be paid by 31 July 2024.
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 Gagan & Pavola has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
The applicant father (“the father”) and the respondent mother (“the mother”) are the parents of X and Y (collectively “the children”). The father is a Country B citizen whilst the mother is a citizen of Country B and Country D. Both children are citizens of Country B and Country D. The parties arrived in Australia from Country B in 2018.
The proceedings relate to what living arrangements are in the best interests of the children in circumstances where the mother wishes to relocate the children’s residence to Country B whilst the father opposes the children’s relocation and seeks that he has their primary care in Australia.
At the commencement of the hearing, each party made their position clear. The mother indicated that if orders were not made for the children’s relocation to Country B, then she intended to move to Country B without the children. During the hearing, the mother’s position changed, and she said that if her application for relocation were refused, then she would remain in Australia as the children’s primary carer. The mother provided no explanation for the change. Inexplicably, it was not explored by either counsel for the father or solicitor advocate for the Independent Children’s Lawyer (“the ICL”). To postulate why there was a change would be to embark upon speculation. I do not propose to do so.
The father sought orders for primary care of the children in Australia. His counsel advised that if orders were made permitting the children’s relocation to Country B, the father would remain living in Australia.
An area of common ground was that of parental responsibility. Each parent sought an order for sole parental responsibility irrespective of the location of the children. The parties also agreed that if the children remained in Australia, the non-primary carer should spend time with the children for five nights a fortnight in school terms and for half of each school holiday.
Whilst the ICL at the commencement of the hearing informed the Court that her preliminary view was that she preferred the father’s proposal, following the evidence of the single expert, the ICL advised that she could not reach a position in what the solicitor advocate described as a finely balanced decision. The ICL proposed two alternative Minute of Orders; one that provided for the children’s relocation to Country B with the mother and school holiday time with the father and another that provided for the children to live in Australia in the mother’s primary care and spend five nights a fortnight in school terms and half of each school holidays with the father.
BACKGROUND AND PROCEDURAL HISTORY
The father was born in 1984 in Country B and is currently 38 years of age. The father is a Country B citizen and permanent resident of Australia.
The mother was born in 1984 in Country D and is currently 39 years of age. The mother has dual Country B and Country D citizenship. The mother is currently in Australia on a student visa that will expire in 2024.
The parties commenced cohabitation in or around 2010, married in 2013 and separated on a final basis on 18 June 2021.
The parties have two children together: X born 2014 who is currently aged 9 years; and Y born 2017 who is currently aged 6 years. Both children are currently in Australia on a bridging visa.
Both parties contended that the other party had perpetrated family violence including physical violence. Both parties agreed that the children had been present during some of these incidents of family violence.
In 2018, the parties and children migrated to Australia. The children were 4 and 1 years of age at the time. The mother contended that the parties planned to return to Country B in late 2021, while the father contended that they planned to stay in Australia until at least late 2022 after which they would reassess their circumstances.
As stated earlier, the parties separated in June 2021 after the father left the parties’ home. The father contended that following separation, the mother restricted his time with the children. In his affidavit, he said that from mid-July 2021 he spent time with the children each alternate weekend as well as on Tuesday nights and half school holidays.
In September 2021, the father applied for permanent residency in Australia. An application for the children was also lodged. The mother deposed that because the parties had separated, she was unable to lodge an application for permanent residency (as she was no longer a spouse of the father) and therefore applied for a temporary visa.
In late 2021, the mother travelled to Country B with the children. She deposed that this was with the consent of the father. The father contended that he did not consent and was unaware of the travel until the next day when he became aware that the children were not at school.
On 6 December 2021, the father commenced proceedings under the Hague Convention on the Civil Aspects of International Child Abduction seeking the return of the children to Australia (“the Hague proceedings”).
In late 2021, the father travelled to Country B. The father said he was only able to see the children on two occasions for short periods and that the mother placed the children on the airport watchlist in Country B.
Two weeks later, the mother advised the father that she intended to remain in Country B with the children permanently.
On 7 January 2022, the father commenced proceedings in this Court seeking parenting orders.
In early 2022, the father returned to Australia.
In mid-2022, the mother lodged a request to cancel the children’s temporary visa. This was subsequently cancelled by the Department of Home Affairs two days later.
In mid-2022, the father travelled to Country B again to spend time with the children. He said the mother only allowed him to spend limited time with them.
In mid-2022, the father made a request to the Department of Home Affairs for the children’s visas to be reinstated.
In mid-2022, the City C Judicial Tribunal made orders in the Hague proceedings requiring the mother to return the children to Australia.
Two weeks later, the children were granted eVisitor visas allowing them to return to Australia.
In mid-2022, the mother and children returned to Australia.
On 24 August 2022, interim orders were made providing for the children to live with the mother and spend time with the father for four nights a fortnight as well as half school holidays. Orders were also made for the parties to do all acts and things necessary to maintain the children’s passports and visas.
On 30 August 2022, the father was advised by the Department of Home Affairs that the cancellation of the children’s temporary visa had been revoked and that their visa would now expire in late 2022. A subsequent different class of temporary visa for the children was granted, with an expiration date of early 2023.
In late 2022, the father obtained Australian permanent residency. He subsequently applied for a child residence visa for both children. The children then moved to a bridging visa pending the application for their child residence visas.
In late 2022, the mother was granted a visitor visa.
In early 2023, the mother was granted a student visa which expires in mid-2024.
In mid-2023, X’s passport expired. Despite orders that both parties were to do all acts and things necessary, the passport has not been renewed due to an issue about what surname should be on the passport.
In September 2023, the mother received an offer of employment for a permanent position in Country B.
The hearing commenced on 9 October 2023 and concluded on 11 October 2023.
DOCUMENTS RELIED UPON
The father relied upon the following documents:
(1)Amended Initiating Application filed 4 September 2023;
(2)Notice of Child Abuse, Family Violence or Risk filed 7 January 2022;
(3)Affidavit of father filed 4 October 2023 (“trial affidavit”);
(4)Affidavit of father filed 7 January 2022;
(5)Affidavit of Ms E filed 4 October 2023;
(6)Affidavit of Mr F filed 5 October 2023;
(7)Affidavit of Mr G filed 5 October 2023;
(8)Affidavit of Ms H filed 5 October 2023;
(9)Affidavit of Mr K filed 22 August 2022;
(10)Financial Statement of father filed 4 October 2023; and
(11)Case Outline document.
The mother relied upon the following documents:
(1)Further Amended Response to Initiating Application filed 25 September 2023;
(2)Affidavit of mother filed 4 October 2023;
(3)Affidavit of Mr J filed 16 August 2022;
(4)Financial Statement of mother filed 4 October 2022; and
(5)Case Outline document.
Both parties relied upon the Family Report dated 27 June 2023 of the single expert Dr L.
Each of the parties were cross-examined as was the father’s partner Ms E. None of the other deponents in either party’s case were required for cross-examination.
The single expert was cross-examined by each of the parties and the ICL.
THE SINGLE EXPERT’S EVIDENCE
I have carefully read the report of the single expert and listened closely to her oral evidence in cross-examination. There was no challenge to her experience or expertise. Having read the Family Report and watched her give her evidence, I am satisfied that she has a comprehensive understanding of the issues and a unique insight into the problems facing both children. I found the Family Report and her oral evidence considered, insightful and logical. I accept the opinions and recommendations as set out in the Family Report and qualified and/or expanded upon in her oral evidence.
Relevant for the purposes of my determination, she opined in the Family Report that the children’s interactions with the mother “were warm, emotionally intimate and appropriate” (at paragraph 127), while in her observations of the father and Ms E she recorded that “[b]oth children were very excited to see the father and [Ms E], and ran to them and gave them cuddles” and that they “were affectionate, enthusiastic, and kind with the children” (at paragraph 147). The single expert interviewed the children and opined that they related positively to their parents and to the father’s partner.
Under the heading “evaluation and terms of reference”, the single expert opined:
155.… both the mother and the father are intelligent, caring and stable adults who want the best for their children and who have very good parenting skills. I do not think that there is any indication that the children are at risk in the care of either parent or household.
…
159.I do not think that either child is at risk of abuse or neglect in the care of either parent or household. Both parents and households presented as dedicated, stable, consistent, and loving, and providing the children with appropriate experiences, supervision, and care.
One of the single expert’s concerns centred around the high degree of parental conflict. In that respect, she opined as follows:
171. The level of conflict between the parents is extremely high. They have had disputes about both major and minor matters with respect to the children. There has been conflict about the children’s belongings, managing the children’s homework, enrolment in extracurricular activities and parental decision-making. The parents have extremely low trust and do not have the requisite skills to engage in the sort of business-like, child focused communication that is necessary to make decisions for the children in a timely manner and to protect the children from becoming “go-betweens” or being involved in the adult conflict. The parents appear, on each of their accounts, to either be involved in recursive conflict, undermining the other’s parenting authority, or making unilateral decisions with respect to the children.
The single expert addressed the advantages and disadvantages of each party’s proposal in the Family Report and concluded:
198. Ultimately, I think that both [Y] and [X] will thrive irrespective of the country they live in if they have regular time with and a meaningful relationship with both of their parents. The best outcome for these children would be for both parents to reside in the same country as the children. The real issue then comes down to the parents’ capacity and willingness to compromise and to live with appropriate social, family and community support and have meaningful work commensurate with their education and qualifications. The issue of the mother’s capacity to remain in Australia from an immigration perspective is also highly relevant to the children’s long-term outcomes; and if she cannot remain in Australia, the children would experience significant distress and loss.
She acknowledged when cross-examined that the children had close relationships with both of their parents and notwithstanding the father’s view that the mother had attempted to alienate the children, she bluntly stated the children are “100 per cent not alienated” (Transcript 11 October 2023, p.22 line 11).
In relation to the mother’s application for the children to relocate to Country B, she acknowledged that, given the children’s age, they would be able to maintain a relationship with their father, albeit it would cause them grief and they would feel a sense of loss.
The single expert reported that the mother presented to her as very distressed about the prospect of remaining in Australia; that her coping capacity was very compromised by her inability to engage in her chosen profession; and that she was marginally coping because she felt trapped in Australia and was not able to engage in her chosen profession. She said that while the mother was a very resilient person, it would have a negative impact on her parenting capacity. The single expert was not able to predict how the mother might react if she were not able to relocate with the children, but she thought that she would cope albeit it would not solve her loneliness, grief, or sadness and that it would be a suboptimal outcome for her.
The single expert was very concerned about the high degree of conflict between the parties and that the risk occasioned to the children by the conflict may continue even if one party had sole parental responsibility. She said that the relocation to Country B offered an opportunity to protect the children from the conflict. In that sense, she said the day to day experience of the children would be better by living in Country B.
In relation to the father’s application for primary care of the children, the single expert said:
I don’t see any reason that that would be in the children’s best interests when they’re settled, happy, well-developing. All reports from them at school, socially, academically was that they were doing well and they have very positive relationships with both their parents, so in my view there would be risk disrupting that. I can’t see why one would seek to change an arrangement that’s working for them.
(Transcript 11 October 2023, p.23 lines 26–30)
SUBMISSIONS OF THE ICL
The ICL submitted that it was a finely balanced decision and that the ICL did not support, consistent with the evidence of the single expert, a change in the children’s primary care from the mother. The ICL submitted that consistent with the evidence of the single expert, the parties appeared incapable of working in a co-parenting arrangement and that if they were to remain in Australia, then the mother should have sole parental responsibility and primary care and that the children should spend time with their father for five nights in a block.
If a relocation was permitted, then such relocation should not occur until such time as the orders have been registered in a court in Country B. If that were to occur, then the ICL submitted that their arrangements for holiday time largely followed the proposals of the father.
The ICL submitted that the parties were two very competent parents and that, consistent with the single expert’s evidence, they would thrive in any country in which they lived in, provided they had a meaningful and significant relationship with the other parent. The ICL submitted that the Court should put little weight upon the views of the children and that there were advantages and disadvantages to each party’s proposal; such advantages including that if they remained in Australia, they would maintain their current friendship groups, schooling activities and lifestyle and continue to have the benefit of an exposure to both Australian culture and their Country B heritage.
The ICL recognised that there are risks if they remain in Australia and that those risks rest primarily with the mother in that she would be living in a location where she does not want to live and would not be able to fulfil her professional desires. The ICL submitted that while the single expert described the mother as resilient and that she would try to protect the children, there was still a risk that she would not be able to do so and that it would have an impact on her parenting capacity. In addition to that risk, there was also the issue of the mother’s ability to remain in Australia.
SUBMISSIONS OF THE MOTHER
The mother’s counsel submitted that one of the advantages of relocation was that it would reduce the exposure of the children to the interparental conflict and that it would enable the children to maintain connections with their Country B culture and heritage as well as with their extended families on both sides. Counsel for the mother also submitted that the mother has not ever really settled in Australia.
SUBMISSIONS OF THE FATHER
The father’s counsel submitted that the Court needed to make a finding as to family violence as it would inform the outcome of the relocation application and the primary care application of the father. The father’s counsel submitted that there were risks to the children if the mother were permitted to relocate because of the history of family violence, the mother’s abduction of the children, the clear lack of goodwill and communication about the children, that the mother has commenced proceedings against the father personally in Country B, and that a relocation would impact upon the children’s relationship with the father such that their relationship would be harmed. In addition, he submitted that the mother has problems with self-control and that there are problems given the underlying lack of trust between the parents.
Counsel for the father placed particular emphasis on the problems that the father had in maintaining a relationship with the children when they were in Country B. He submitted the mother was an unsatisfactory witness and that the Court would on balance prefer the evidence of the father to that of the mother, including making findings in relation to all the allegations of family violence as contended for by the father.
Notwithstanding a submission that the children were at a risk of harm in the mother’s care, he submitted that they both are very capable parents and that it was a finely balanced case.
Counsel for the father submitted that the mother’s connections to family in Country B and Country D are not as strong as the mother would contend.
In respect of the mother’s employment in Australia, he submitted that the visa resolution would solve the mother’s employment problem and vice versa, and that whilst there was no evidence that the mother would be able to obtain a visa, it was unlikely there ever could be such evidence as it was a decision at the discretion of the Department of Home Affairs. The father’s counsel emphasised the single expert’s evidence that the mother is resilient and made a submission that as time progressed in Australia the mother would come to accept the outcome.
He ultimately submitted that the children’s welfare would be adversely affected if the mother were permitted to relocate with them to Country B.
THE PARTIES’ EVIDENCE, THEIR PROPOSALS AND THE ADVANTAGES AND DISADVANTAGES OF EACH PROPOSAL
Due to the positions of each party being reframed in the manner referred to earlier, it seems to me that the primary issues for determination, amongst others, include:
(1)Whether it is in the children’s best interests to live in Australia in the primary care of the father;
(2)Whether it is in the children’s best interests to live in Australia in the primary care of the mother; and
(3)Whether it is in the children’s best interests to live in Country B with the mother.
Each of the proposals has advantages and disadvantages and I will address those below.
In relation to the mother’s desire to live in Country B, the Court has an obligation to explore and consider her right to freedom of movement to live where she wishes, and to pursue her legitimate interests and desires. This consideration is even more sharply focused where a primary carer is required to undertake the role of primary care in a place not of his or her choosing. As Kirby J observed in AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”):
144. Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
145. Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modem family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
(Footnotes omitted)
In Oswald & Karrington (2016) FLC 93-726, their Honours in the Full Court observed in the following terms:
17.Consequently, as emphasised by the Full Court in D and SV and by the Full Court in Sampson and Hartnett (No 10) (supra), there is an imperative for the Court to explore and consider alternatives to restricting freedom of movement, particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary caregiver undertaking that role in a place not of that parent’s choosing.
(Footnote omitted)
The single expert was of the view that the mother’s desire to live in Country B was entirely legitimate and not because of any desire to exclude the father from the children’s lives.
No submission was advanced that the mother’s desire to reside in Country B was other than bona fide. I am satisfied that mother’s desire to live in Country B is entirely legitimate and comes from an honestly held belief that the children’s best interests are served by living with her in Country B.
The father’s evidence is that he does not want to return to Country B if the relocation is permitted. He advanced various reasons for his decision including what he regards as superior employment prospects in Australia, lifestyle considerations, his relationship with his partner and financial difficulties associated with living in Country B because of the parties being “blacklisted” with a bank.
According to the submissions, various factual matters also call for a determination. It was submitted (mainly by the father’s counsel) that the resolution to some of them inform the outcome of the primary issues. They include:
(1)The father’s submission that the mother abducted the children from Australia without his consent;
(2)The father’s submissions that the mother perpetrated family violence and the children are at risk of harm in her primary care;
(3)The father’s submission that the mother would not facilitate time between the children and the father if relocation was permitted;
(4)The residency status of the mother in Australia and her capacity to remain in Australia; and
(5)Whether the mother’s parenting capacity would be enhanced if relocation were permitted.
I will deal first with the various factual disputes and then address the advantages and disadvantages of each party’s proposal. I am adopting this approach as the father’s counsel submitted that the resolution of some of these factual issues will inform the outcome.
Did the mother “abduct” the children from Australia
Throughout the father’s affidavit and his interviews with the single expert, the father raised as a significant issue what he describes as the mother’s “abduction” of the children.
It is not in issue that the mother removed the children from Australia in late 2021 and took them to Country B. Nor is it in issue that she did not agree to return them to Australia and the father commenced proceedings in Country B for their return. In mid-2022, the City C Judicial Tribunal in the Hague proceedings made an order requiring the children’s return to Australia and the children ultimately returned a month later.
Notwithstanding this significant event in the parties’ lives, it barely rates a mention in the mother’s affidavit. The mother’s explanation was that she did not regard it as relevant. How she could come to that conclusion considering its significance, including some prominence in the Family Report, was not satisfactorily explored in cross-examination.
The mother said that the parties agreed to return to Country B either upon the expiration of their visa or if either of them found a job in Country B. The mother further contended that during a family meeting on 26 July 2021, it was agreed that the entire family would return at the expiration of their visa in late 2022 or during the children’s school holidays in 2021/2022 if the mother or the father were able to secure a job in Country B.
What was said at this meeting was contested. Mr J called in the mother’s case swore an affidavit confirmatory of the mother’s position. The father’s father swore an affidavit confirmatory of the father’s position. Neither of these persons were cross-examined. At its highest and most favourable to the mother, it speaks of a trip later in 2021 not in the month of the children’s removal. As much is clear from the emails sent by the parties between 23 and 25 August 2021.
On 23 August 2021, the mother wrote saying she would file an application with the Court seeking to travel in the later month if the father did not agree. The father responded on 25 August 2021 seeking written confirmation of the dates of travel and written confirmation that they would return. No such written information was ever provided prior to their travel.
The mother contended that she and the father had several telephone conversations about her trip to Country B including when they would return and that he knew when she was going to leave Australia, including that she had obtained a return airline ticket. Once in Country B, she said, consistent with the parties’ agreement that they would return to Country B if one or other of them obtained employment, that having obtained employment she did not have to return the children.
The father denied any such conversation prior to departure or any such agreement.
The mother was cross-examined extensively about the circumstances surrounding her travelling to Country B with the children in late 2021. In almost every instance, her responses were non-specific, she had a very poor recall of any of the details and almost every response to a question calling for a specific answer was met with a “I don’t know” or “I can’t recall”. I found the mother’s responses on this issue unconvincing. Various documents which she said she had confirmatory of her position were not produced or tendered in her case.
In contrast, the father gave specific and detailed evidence of the circumstances of the mother’s departure from Australia, including that the mother had given him no notice and the circumstances of the children’s removal from school. The father’s evidence in his trial affidavit was as follows:
76. [In late 2021], around 8pm I called [Ms Pavola] to speak with the children (and texted her at *: 18pm “are you free?”) and she replied by text message at 10:02pm (2h later) that the children were already asleep. That was the night she took the flight to [Country B] and she was at the Sydney Airport at that time. … [Ms Pavola] indeed boarded a flight from Sydney at approximately 10.00pm [that night] and arrived at [City C Airport] [the next morning] at around 6.00am.
77. The first I heard about this was when [Ms M], the Director of [N Preschool] called me [the next] morning. She said words to the effect “[Y] is not at school.” I then called [O School], and after checking with her schoolteacher, the reception lady told me [X] was not at school neither. [Ms Pavola’s] phone was disconnected. I then called [Ms Pavola’s] real estate agent [P Agency] and a staff member advised words to the effect “She gave back the keys yesterday after removing most of her belongings. She said she was taking a taxi to the airport to take a flight to [Country B]. She said she would not come back.” [Mr Q] from [P Agency] sent me [Ms Pavola's] overseas shipping forms which are annexed hereto and marked “[MG]-10”.
Whilst the mother could not recall receiving the text messages, I am satisfied that she did.
The father was not challenged on any of the evidence that he advanced about the circumstances surrounding the mother’s leaving Australia.
I further note that attached to the mother’s affidavit is a copy of the judgment delivered by the City C Judicial Tribunal in mid-2022. In that judgment there is recorded:
[Ms Pavola] left [in late] 2021 with the children for [Country B] without informing her husband of this trip beforehand.
In emails exchanged [over the next two days], [Ms Pavola] told [Mr Gagan] that she had left little earlier for the […] holidays to visit her sick father, subsequently refusing to bring the children back to Australia for the start of the school year in January, having tried to enrol them in school in [Country B] and being refused by [Mr Gagan] who demanded their return to Australia.
(Affidavit of mother, Annexure T)
Such emails are inconsistent with the case now presented by the mother. The alleged agreement in telephone calls does not sit consistent with the emails and what the father was insisting upon in August or his texts messages to her on the date of removal.
I found the mother’s explanations unconvincing and her denials in cross-examination, such as they were, also unconvincing. I found the father’s evidence on this issue persuasive. I also note the findings made by the City C Judicial Tribunal.
I am satisfied that the mother removed the children from Australia in late 2021 without the father’s consent.
Family Violence and whether the children are at a risk of harm in the mother’s care.
The father’s counsel submitted that the Court should find that the father and children had been the victims of family violence perpetrated by the mother and that the children were at risk of harm in the mother’s primary care. He further submitted that the Court needed to make findings about family violence as it informed the conclusion that the father should have primary care of the children and that the mother would not facilitate a relationship between the children and the father if the relocation were permitted.
Attempts to engage with the father’s counsel the logic of a submission that the children were at a risk of harm in the mother’s care but could still spend unsupervised time with her for five nights a fortnight in school terms and half of each school holidays proved pointless.
The father in his Case Outline under the heading of “parental responsibility” asserted:
2. … Some of the violence was significant, resulting in the father having bleeding wounds and very large bite marks over his body. The violence occurred between April 2020 and March 2023.
3. The father also asserts that the mother was violent towards the children on a number of
The father further asserted in his Case Outline under the heading “best interests – primary considerations” as follows:
5. The father seeks that the children be placed in his primary care. This is premised on a need to protect the children from the emotional and psychological harm caused by aggressive and volatile parenting from the mother. The father asserts that the mother has problems with self control and losing composure.
In the father’s trial affidavit, the father recounted incidents of family violence perpetrated by the mother as follows:
103. While [Ms Pavola] is a good mother, she tends to be overly aggressive with the children and me. I detail some examples below.
104. [In mid] 2020, I observed that [Ms Pavola] hit [X] on her legs and shoulder because [X] was making [Y] upset by taking his toys. I said to [Ms Pavola] words to the following effect, “Please don’t hit [X].” I observed that [X] had bruises from these incidents.
105. [In late] 2020, I was driving with [Ms Pavola] and the children to [Suburb S] Beach from our home at the time in [Suburb R]. During the drive, [Ms Pavola] and I started to argue about [Ms Pavola] waking up to help me drop [X] to [sport] in [Suburb S]. During our argument, [Ms Pavola] hit me on my left hand hard. This caused me to brake suddenly and caused [Y] to suffer whiplash. I saw my doctor the next day as my finger was heavily bruised. The medical records of this consultation are annexed hereto and marked “[MG]‑12”. It took about six weeks to heal.
106. [In late] 2020, [Ms Pavola] was repetitively shouting at [X] because she was upset about [X’s] behaviour during the evening. Two police officers attended our residence at around 9.00pm as neighbours had made a noise complaint.
l 07. [In late] 2020, [X] was doing homework in our kitchen. After [X] made a grammar mistake, [Ms Pavola] hit [X] on the shoulder hard. I observed that it left [Ms Pavola] with red fingers.
l 08. [In mid] 2021, while at home eating lunch, [Ms Pavola] became upset at [X’s] behaviour and pushed [X]’s head into her pasta plate to reprimand her. She also hit [Y] and left a red mark on his arm.
l 09. [In late] 2021, [X] complained to me that, “Mum hit me on the leg because I cracked a balloon”. I observed that [X’s] leg was very red.
110. [In late] 2021, [X] said to me words to the following effect, “Mum hit me twice since she was thinking I was bothering [Y], since [Y] was shouting. She thought I was doing grimaces to make him shout but it was wrong. She hit me on the head It hurt me.”
I 11. I reported some of the above incidents and others to [Suburb S] Police [in late] 2021.
112. [In early] 2022 in [Suburb T] ([Country B]) at approximately 5.00pm, when [Ms Pavola] and I went to the unit to collect the children as described above, [Ms Pavola] pushed me against a wall to prevent me from going for a walk with the children which bruised my back. The children were present. [X] was happy and excited to be going to the park with me and was holding my hand. When [Ms Pavola] changed her mind about allowing me to take the children to the park, [Ms Pavola] became aggressive and pushed me as described above. I reported this to the Police in [Country B] […] The Police also interviewed [X] as part of their investigation, and [X] verified my version of events.
113. [In early] 2023 during the children’s handover at [Ms Pavola’s] house, there was an incident regarding the [sports] shoes I shared with the mother. While I was asking for her to give them back to me, the mother became very aggressive at her front door and didn’t want to give back [Y’s] [sports shoes] I had purchased before, and [Y] was supposed to use to play [sport] 2 days later. The mother lost control and became so aggressive that she smashed the door on my hand and [Y] was pushed back.
114. There are other incidents set out in my Notice of Abuse filed 7 January 2022.
These are a repetition of the evidence given by him in his affidavit of 7 January 2022, with the exception of an incident in early 2020, which is recorded in that affidavit as follows:
89. [In early] 2020, at around 11.30pm, I woke to [Ms Pavola] yelling angrily at me accusing me of infidelity. She started recording me with her mobile telephone. I said to [Ms Pavola] words to the following effect, “Please stop, please don’t record me”. I took the mobile telephone from [Ms Pavola] and she then started to hit, scratch and bite me. She also grabbed my genitals which caused me to scream which woke the children. The next day I visited my doctor and took photographs of my injuries.
The father was not cross-examined on the incidents he recounted in his affidavits other than the incident that occurred in early 2023.
The mother in her affidavit gave her version of what occurred that day. The father was cross‑examined about what the mother reported in her affidavit and denied the mother’s assertions.
The mother was cross-examined by the father’s counsel about some of the allegations of family violence and denied the father’s assertions that she had ever perpetrated family violence on either him or the children other than conceding that she had “slightly pushed him” when he was standing at the door during the incident in early 2023.
The single expert recorded the mother informing her that:
36.… By [early] 2021 she said they were sleeping in separate bedrooms. She said that she did not leave the relationship, despite the increasing arguments and physical violence. She said she was in an extremely vulnerable position because she had lost her contract due to the pandemic and she felt that it would have been easy for [Mr Gagan] to report her to immigration. …
The mother also recounted to the single expert incidents of physical violence that occurred post-separation.
The father recounted to the single expert that the mother was manipulative, deceitful, and made false allegations. He reported that she had physically assaulted him on several occasions including causing injuries and that the reason he separated was because of the violence. The single expert recorded his assertions in the Family Report as follows:
88.I asked [Mr Gagan] whether he had ever physically assaulted or hurt the mother. He said he had never done anything like this, it was against his character and it is an entirely false allegation. He said that the mother has made numerous false accusations against him related to family violence, and that all their friends and connections would testify that he would “never touch a woman”.
89. With respect to the mother’s assertion that he had attempted to take [X] from the mother’s apartment in [City C], he said this was also untrue and the situation was that the mother had in fact assaulted him.
Parenting Concerns
90. I asked [Mr Gagan] if he had any concerns about the mother’s parenting capacity, and he said he did have some concerns. He said that one of his concerns is that [Ms Pavola] may become aggressive and volatile with the children. He said he has concerns about the children’s safety. He said there was an incident recently regarding [sports] shoes where [Ms Pavola] became very aggressive at her front door and would not give him [Y’s] [sports shoes] which, he pointed out, he had purchased himself. He said that she became so aggressive that she smashed the door on his hand and that [Y] was pushed back.
91. In addition, [Mr Gagan] told me that he thinks that the mother can be particularly harsh on the children, and described incidents where she has been verbally and physically abusive to them. For example, he said that on one occasion [X] was doing her homework and [Ms Pavola] was not satisfied with the quality of it and she pushed [X’s] head into her pasta bowl. He described [Ms Pavola] as being aggressive with the children for silly things and spanking them frequently. He said she can lose patience over minor things and that he has no idea what she is capable of. He said he knows that [X] is very anxious when she returns from her mother.
92.[Mr Gagan] told me he is also very concerned about the children’s mental health as a result of the mother’s behaviour. He said that he thinks that [X] is being manipulated by her mother. …
Whilst the parties each raised issues of family violence as important aspects of the case, I found the cross-examination on these issues cursory and of little assistance in resolving the factual controversy. Each denied the other’s assertion and the cross-examination such as it was took the matter no further. In relation to the incident in early 2023, the father’s assertions are in conflict with what X reported to the single expert at paragraph 141 of the Family Report and what Y said to the single expert at paragraph 131 of the Family Report.
In relation to matters of family violence, the single expert said:
187. I think that the children have been exposed to several disturbing incidents between their parents. As mentioned previously, each parent has given a contradictory account of these episodes. However, both parents agree that the children were present at these episodes, and both children spoke to me about the recent episode involving a dispute about the children’s [sports shoes]. The children appeared to have developed some wariness and anxiety about times when their parents are in the same vicinity, such as handovers …
In relation to the father’s assertions that the mother is aggressive and violent towards the children, the single expert said:
181. I carefully considered the father’s assertion that the mother poses a risk to the children insofar as she was emotionally volatile, had physically chastised them and could expose them to episodes of verbal and physical violence. There was no evidence in the children’s interviews with me, their presentation, their development, or their observed interactions with their mother that they had been exposed to such abuse or unpredictable or volatile behaviour. The children in contrast were relaxed, playful, irreverent, and affectionate and open with their mother. There was no indication that either child was wary or had any trepidation or any concern about poor behaviour in front of their mother, as might be the case when children have been exposed to unpredictable or volatile parenting reactions. The children are doing well socially, academically, and socially, and there have been no concerns raised by any other adult or person in relation to the mother’s parenting of them.
182. I do think that there have been times when the mother has been relatively emotionally expressive and I think that there are times when she has screamed at the children on occasions when they have been misbehaving. However, I think that these isolated incidents have occurred against a background of consistent, loving, and stable parenting and are not indicative of emotional abuse.
183. I also noted that the father was previously unconcerned enough to leave the children in the extended care of the mother, and I find it difficult to accept that he genuinely had fears about the children’s safety during the years of the marriage.
I also note that the single expert recorded:
171. The level of conflict between the parents is extremely high. They have had disputes about both major and minor matters with respect to the children. There has been conflict about the children’s belongings, managing the children’s homework, enrolment in extracurricular activities and parental decision-making. The parents have extremely low trust and do not have the requisite skills to engage in the sort of business-like, child focused communication that is necessary to make decisions for the children in a timely manner and to protect the children from becoming “go-betweens” or being involved in the adult conflict. The parents appear, on each of their accounts, to either be involved in recursive conflict, undermining the other’s parenting authority, or making unilateral decisions with respect to the children.
That said, I note the single expert’s opinion as follows:
155. Individually both the mother and the father are intelligent, caring and stable adults who want the best for their children and who have very good parenting skills. I do not think that there is any indication that the children are at risk in the care of either parent or household.
…
159. I do not think that either child is at risk of abuse or neglect in the care of either parent or household. Both parents and households presented as dedicated, stable, consistent, and loving, and providing the children with appropriate experiences, supervision, and care.
160. I do consider that there is a moderate risk of the children being exposed to family violence. The parents have had heated verbal disputes at changeovers which have included, at times, allegations of physical assault. Each parent has provided contradictory accounts of these episodes, blaming the other and alleging that the other has physically assaulted and/or threatened them...
161. Irrespective of these limitations, I have formed the view that the parents are highly volatile at times when they come into physical contact with one another, and there have been episodes which have been frightening and distressing for the children. In my view, the children continue to be at risk of being exposed to these episodes, and ongoing exposure to these sorts of episodes will continue to have a deleterious impact on the children’s psychological safety and potentially their physical safety.
I accept the single expert’s opinions referred to above.
The single expert was not cross-examined on her conclusions at paragraphs 155 and 159 of the Family Report that the children were not at any risk of abuse or neglect in either party’s care notwithstanding that the father put in issue these conclusions.
I raised with counsel for the father but did not seek a satisfactory answer as to the necessity for making findings as to family violence. This is particularly pertinent where there is no issue about parental responsibility, no issue about significant and substantive time and no party sought an order for supervision.
I am not obliged to resolve every factual controversy between the parties (see Whisprun Pty Ltd v Dixon (2003) 200 ALR 447). That said, paucity of cross-examination on the issue, the conflicting versions and where directly engaged the ineffectiveness of the cross-examination renders the urged fact-finding exercise as to who was the perpetrator of acts of family violence impossible. In circumstances where I do not make an overall credit finding, I cannot reductively resolve the competing versions by accepting one party’s evidence in preference to the other. It was the father’s case to prove, and he has not discharged the onus he carries.
I accept the evidence of the single expert at paragraphs 155 and 159 that the children are not at any risk of harm in either party’s care. I also accept the evidence of the single expert at paragraph 181, which is irreconcilable with the case the father sought to present. I do accept that the children have been exposed to family violence. I am for the reasons referred to earlier unable to make the findings that the father urges and even assuming I were, I fail to see the relevance in the context of the issues I have to determine within the rubric of the orders each proposes, including those the subject of broad agreement.
Whether the mother would facilitate time if a relocation were permitted
The father submitted that because of the mother’s propensity to violence, her lack of self‑control, her history of having restricted the children’s time with the father in Country B, having commenced proceedings in Country B seeking he be dealt with for having used an “inaccurate or forged certificate … as part of legal proceedings” (Exhibit 5) and her “abduction” of the children, the Court should conclude that the mother would not facilitate a relationship between the father and children if she were permitted to relocate the children to Country B.
I have addressed in these reasons my findings as to whether the mother “abducted” the children and in relation to matters of family violence. I am unable to form any view about the proceedings she has commenced in Country B. They may be doomed to fail or may be entirely proper. I just do not know. The submissions did not establish any causal link (no matter how remote or tenuous) between those proceedings and the issue of facilitation of time in Country B. The single expert observed that both parents (not just the mother) have at times acted in a highly volatile way (Family Report, paragraph 161).
The father gave detailed evidence of his attempts to spend time with the children in Country B following the mother’s unilateral removal of them. He referred to two visits to Country B; one in late 2021 and another in mid-2022 and the difficulties he faced in spending time with the children. The father also gave evidence of the mother’s reluctance to enable his father, who lives in City V, to spend time with the children. The father was not cross-examined on any of this evidence. The mother does not address in her affidavit any evidence about time she facilitated between the children and their father in Country B. I accept this aspect of the father’s evidence. It was not the subject of contest.
However, I also accept the unchallenged evidence of the single expert which contextualises the mother’s response to the father’s requests for time in Country B. In that respect, she said the following:
175. However, the mother has, at times, restricted the children’s time with their father, most notably by her decision to unilaterally keep the children in [Country B] without the father’s consent. The mother has expressed a view that she was anxious and fearful about the children being taken by the father back to Australia. I think that this was a reasonable concern, and it is possible that the mother felt insecure, anxious and fearful about this possibility, given her precarious immigration status in Australia and the father’s history of unilaterally failing to return the children to the mother when he disagreed with her. If the mother’s restrictive behaviours arose in the context of her insecurity and fear, then it is likely that they would not be representative of her long-term parenting behaviour once final orders have been made. In other words, if orders are detailed and well-structured they are likely to assuage the mother’s anxiety and mean that she will be more likely to be encouraging of the children’s relationship with their father. I note that the mother has been compliant with court orders and is preparing the children well [practically and psychologically] for time with their father.
The single expert was not cross examined on this opinion.
During her cross-examination, the single expert identified that one of the risks in a relocation was whether or not the live-with parent would adopt a gatekeeping role in relation to the absent parent by restricting their time. I specifically asked the single expert whether she was of the view that the mother would adopt such a gatekeeping role and whether she would be restrictive of the children’s time with their father. Her evidence was clear and unequivocal that she did not think the mother would adopt such a role. Each of the parties were given an opportunity to ask further questions of the expert and declined to do so.
I further note that the father does not contend that upon the parties’ return to Australia and the making of orders by this Court the mother has breached any such order.
I am satisfied, consistent with the single expert’s evidence and the mother’s attitude to orders subsequent to her return to Australia (notwithstanding her having removed the children from Australia without the father’s consent), that the mother will facilitate time between the children and the father in the event that a relocation was permitted.
Residency status of mother
The mother is presently in Australia on a student visa. The mother’s evidence about the circumstances in which she comes to be on a student visa was not the subject of any challenge. In that respect, she said:
45. After the family visa expired in [late] 2022, I had no choice than to apply for a temporary visa which was granted [two months later]. This visa does not allow me to work. Marked and annexed ‘N’ is a copy of this visa.
46. I applied for another temporary visa requesting work entitlements based on financial hardship and compassionate grounds. However the work entitlements were not granted. Marked and annexed ‘O’ is a copy of the letter from Department of Home Affairs.
47. My current student visa now allows me to work only on a part time basis.
48. The issue is that my field of expertise is Financial […] and these are mainly full-time positions, meaning I had to accept a job as a receptionist in [mid] 2023 where the pay is close to 4x less than what I would usually make for the sake of having an income.
49. I also kept applying for jobs in my expertise in Australia but they either required full-time commitment or citizenship/permanent residency.
50. I don’t meet the criteria to get any income support payment from Centrelink services whereas I could benefit from the “[Country B] Centrelink” should I live in [Country B].
51. I cannot receive neither “JobSeeker Payment” nor “Parenting Payment” because, as I don’t meet the “Residence rules”. I am not an “Australian resident” as I am not in the following cases:
i. An Australian citizen
ii. A permanent residence visa holder
iii. A protected Special Category visa (SCV) holder from New Zealand
Annexed and marked ‘P’ is a copy of the criteria.
52. Also, I cannot claim “Special Benefit” Payment because I don’t meet all the criteria. Annexed and marked ‘Q’ is a copy of the criteria.
The father’s counsel cross-examined the mother as to why she had not applied for a permanent resident visa to which the mother responded questioning why should she apply for one when she does not wish to stay in Australia. That attitude no matter how strident does not address the issue as to whether she would be able to obtain one.
The single expert recorded the mother’s evidence about work and her visa. In that respect, the single expert’s evidence was:
23. [Ms Pavola] said her work situation is very difficult because she is currently on a student visa. Initially, when she returned to Australia in 2022, she was on a temporary visa and was not able to work at all. She explained that when she came to Australia, she was the dependent on [Mr Gagan’s] visa, and once they had separated she had no right to work in Australia. Since acquiring the student visa, she told me she has been relentlessly pursuing employment opportunities in her field, but she has had no job offers, not even for very junior roles. She said that in every job she has applied for, the first question asked is “what is your visa status?”, and when she indicates that she is on a student visa, the applications do not progress further. She opined that it is virtually impossible to find a company to sponsor her immigration to Australia. She said the only job she could get was working as a receptionist […] which is located in [Suburb U]. She explained that it takes her approximately one and a half hours by public transport to get to work, but that as that was the only job she could get and she needed to bring in some income, she had to take the job.
24. As she was explaining this, [Ms Pavola] became very distressed. She said it feels humiliating to not be able to get employment in her area of expertise. She said she felt ashamed and embarrassed about it, but her mother had reassured her that as long as she was working in any capacity, she was doing the right thing. [Ms Pavola] pointed out that she has made many efforts to get employment, including applying for hundreds of positions. She said she uses Excel spreadsheets to generate to-do lists and track job applications and she has pursued more than 700 jobs. She said she has evidence of the extent to which she has tried to find appropriate employment.
The mother was not cross-examined on those paragraphs.
The father relied upon an affidavit sworn by Mr G, a solicitor from Victoria. He identified that there were two forms of visas potentially available to the mother. The first was a permanent resident visa (Subclass 186), which required sponsorship by an employer. There was no evidence before me that there was an available employer prepared to sponsor the mother’s visa. The other was a skill nominated permanent resident visa (Subclass 190). According to the terms of Exhibit 9, for the mother to qualify for this visa, she must either submit an expression of interest and following submission, could be nominated for the visa by a state or territory government or alternatively, be nominated for the visa by an Australian state or territory government agency. There is no evidence that the mother has lodged an expression of interest and nor is there any evidence that even if she did, she would be nominated for the visa.
The single expert recorded in the Family Report:
198.The issue of the mother’s capacity to remain in Australia from an immigration perspective is also highly relevant to the children’s long-term outcomes; and if she cannot remain in Australia, the children would experience significant distress and loss.
If the mother’s student visa were not renewed and she was required to leave Australia then, considering the single expert’s evidence, the children’s welfare would be significantly compromised. Given the highly conflictual nature of the parties’ relationship and their inability to reach agreement about even the most basic of things, I have little confidence they would be able to cooperatively reach some agreement or accommodation which might find a solution to such a dilemma. The consequence for the children in those circumstances would be dire.
The simple fact remains, however, that the mother is here on a student visa that expires in 2024, that the visa considerably restricts her capacity to earn an income and that she has no access to the benefits that accrue from permanent residency.
I am satisfied that there is some risk that the mother may not be able to stay permanently in Australia.
Whether the mother’s parenting capacity would be enhanced if relocation were permitted
The oral evidence of the single expert was that the mother was operating on a suboptimal basis in Australia as a consequence of her inability to obtain satisfying work. Whilst the single expert on a number of occasions remarked upon the resilience of the mother, such resilience needed to be tempered against her other observations of the mother. In that respect, in answer to questions from the ICL, she described the mother as presenting as very distressed about the prospects of remaining in Australia and that her coping capacity was compromised by her inability to work. The single expert observed that at the time that she saw the mother she felt that the mother was marginally coping. She observed that in her view, the mother was functioning at a less optimal level and that if she stays here and cannot find work, then that would affect her self-esteem and in particular, her view as a role model for her children.
I accept the evidence of the single expert. Notwithstanding what is described as the mother’s resilience, the evidence of the single expert was clear that the mother’s parenting capacity and functioning in Australia was suboptimal. The mother has available to her employment in Country B that would provide her with some degree of financial independence as well as enhancing her self-esteem and meeting her intellectual and emotional need for employment.
Advantages and disadvantages of each party’s proposals
By virtue of the terms of the orders as proposed by the parties, the proposals of the parties amounted to in essence either:
(1)The children living in the father’s primary care in Australia and spending five nights a fortnight with their mother in school terms and half school holidays; or
(2)What might be described as the mother’s primary application, namely that she be permitted to relocate the children’s residence to Country B and that the children spend time with the father in school holidays or the mother’s alternative case that the children live in Australia in her primary care and spend five nights and half school holidays in their father’s care.
The parties’ differences in relation to time in Australia revolved around whether it should occur in a block or each alternate weekend and one night on the off week. In that respect, the father’s proposal was that the children would spend time with their mother in a block of four nights over a weekend and then another night in the off week, whereas the mother’s proposal was for a block of five continuous nights.
In relation to the competing times in the event of relocation, the father sought time in all the school holiday breaks if the children resided in Country B whereas the mother proposed time to the father in three of the four school holiday breaks.
Each of the proposals of the parties have various advantages and disadvantages.
The father’s application that the children reside in his primary care is inconsistent with the evidence of the single expert who saw no basis in changing the existing parenting arrangements in relation to primary care in circumstances where it was working to the children’s benefit. I accept her evidence.
In relation to the children remaining in Australia in their mother’s primary care, a clear advantage of this proposition is that it is a continuation of a known and stable pattern of care where the children can spend time with their father during weekends, school terms, in the holidays and on special occasions. It is a regime of time and care with which the children have become familiar, and it is one in which, consistent with the evidence of the single expert, the children are doing well. It enables the children to maintain a relationship not just with the father but also his partner with whom the children have a positive relationship. Another advantage is that the children are well settled in Australia and there is limited disruption to their lifestyle, relationships, and schooling. They can engage with their Country B heritage and culture, not only through their relationships with their parents but through their attendance at a bilingual school.
There are, however, disadvantages to the proposal of the children remaining in Australia. One such disadvantage is that it compels the mother to remain living in a location that is not of her choosing and is one that impacts upon her income earning capacity. It also has the possibility of exposing the children to the highly conflictual parenting dynamic.
The father has been able to maintain well paid stable employment. The mother has not. Due to her current visa status, she can only work on a part time basis and consequently, her ability to improve herself financially is significantly limited. She gives evidence that was unchallenged that she has attempted to find employment, identifying approximately 700 applications for which she has been unsuccessful. She is currently working in financially unrewarding as well as intellectually unstimulating work which the single expert opined is impacting upon her self‑worth and the role model she seeks to project to her children. The single expert opined that the mother was very distressed about the inability to find meaningful work in Australia and that the mother’s distress in this regard would have some negative impact upon the children (Family Report, paragraph 194). The single expert’s evidence was that the mother was in Australia parenting sub-optimally and that the ongoing resentment by the mother at having to remain in Australia could exacerbate the parental conflict which is already at a high level.
The alternative proposal, namely that of the mother being permitted to relocate the children also carries with it advantages and disadvantages. One advantage is that the mother and children would be able to engage with members of extended family. The father put this squarely in issue, contending that the mother does not have the strong relationships with her family that she sought to portray and pointed to the mother’s reluctance and reticence to engage with members of the paternal family whilst she was in Country B for nearly a year. The single expert, however, opined that familial relationships are important for the children’s sense of stability, connection, and identity and this can be even more important where there is an acrimonious separation (Family Report, paragraph 192).
Another advantage of the relocation is that the children would “experience a stronger sense of their own [Country B] culture and heritage” (Family Report, paragraph 192) and that in circumstances where the children have already spent time in Country B and the mother has retained the apartment in which the children were living in, then it is a return to a known environment rather than to one that is untested. The single expert identified that the children already have a strong Country B identity which has been promoted and encouraged by both of their parents (Family Report, paragraph 192).
In one sense, one of the most persuasive arguments for relocation is the mother’s capacity to engage in work on a more financially remunerative basis than that currently available to her in Australia. The mother’s evidence was that there is a job available to her which is significantly more financially rewarding than the part time work that she has available to her in Australia. Furthermore, the single expert opined that the employment prospects would:
194.… have a significant bearing on the children’s lifestyle, their capacity to observe their mother as a positive role model and their own educational attainment. It would allow the children to have a continuity of their significant attachment with their mother in a positive environment. …
A significant advantage to the relocation is the lessening of the conflict and in particular, the evidence of the single expert that the children’s day to day experiences will be better.
A disadvantage of the relocation is clearly the reduction in the day to day contact that the children would otherwise have with their father and the loss of living in Australia. They will lose the benefit of having the presence in their life on a day to day basis of both their parents and there is little doubt that the nature of their ability to engage with their father and his partner would be significantly different to that they currently have.
The single expert also opined that it is likely that the children would in the short term miss Australia and the lifestyle that they have come to know (Family Report, paragraph 196). There is also the possible risk that the mother would not facilitate a relationship between the children and their father.
APPLICABLE LAW
Parenting matters are governed by Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA of the Act mandates that the best interests of a child are the paramount consideration. The objects of the Act are identified in s 60B, which sets out not only the objects of the Act but the principles to be applied.
Section 60B of the Act provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
While the best interests of children are the paramount consideration in the making of a parenting order, they are not the only consideration. Where one of the issues involves the relocation of a child’s residence, the legitimate desires, and the right of a parent to live where they wish is an important consideration.
In a relocation case, a parent is not required to establish “compelling reasons” in support of the place of their chosen or proposed residence: AMS v AIF; U v U (2002) 211 CLR 238 (“U v U”). However, where that legitimate desire of a parent to live where they want conflicts with the child’s best interests such that the child’s welfare is adversely affected, then the right of a parent to choose where they want to live must give way to the paramount consideration: U v U at [89].
In Franklyn & Franklyn [2019] FamCAFC 256 (“Franklyn”), the Full Court explained the applicable law in these terms:
27. There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207–208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
28. While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223 –224, 231 –232; Sampson and Hartnett (No.10) (2007) FLC 93–350; Zanda & Zanda (2014) FLC 93–607 at [132]–[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262 ).
A relocation case is to be determined in the same way as any other parenting case. Relocation cases are not a special category of cases: Morgan & Miles (2007) FLC 93-343 at [72]; Sayer v Radcliffe& Another (2012) 48 Fam LR 298 (“Sayer v Radcliff”) at [47]–[48].
The Full Court in Sayer v Radcliffe observed:
48.A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents: see Palmer (No 2) at [76]; Morgan at [80]–[81]. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
However, the Court is not bound by those proposals in determining what is in the child’s best interests: U v U at [80].
Pursuant to s 61DA(1), the Court is required to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for him or her but that presumption may be rebutted if there are reasonable grounds to believe that a parent of a child has engaged in abuse or family violence or there is evidence which satisfies the Court that it is not in the bests interests of the child for the presumption to be applied.
If the Court is satisfied that the presumption applies, then pursuant to s 65DAA of the Act, the Court must positively consider whether orders should be made which result in a child spending either equal time or substantial and significant time with both of the child’s parents.
Substantial and significant time is defined by s 65DAA(3) of the Act as:
(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.
In determining what time order should be made under s 65DAA(1) and (2) of the Act, the Court looks to whether spending equal time or significant substantial time is in the best interests of the child, and whether as a separate consideration it is reasonably practical.
The best interests of a child are determined by an examination of the factors as set out in s 60CC of the Act. Section 60CC(2) sets out the primary considerations in determining what is in the child’s best interests. These primary considerations are:
60CC How a court determines what is in a child’s best interests
…
(2) …
(a)the benefit to the child of having a meaningful relationship with both of the child's parents and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse neglect or family violence.
In applying these considerations, the Court is to give greater weight to the consideration set out in s 60CC(2)(b).
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. Those considerations so far as they are applicable will be discussed below.
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ stated:
76.It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Emphasis in original)
In reaching my decision, I have considered all the relevant sections of the Act, albeit that I am not required as a matter of law to specifically address each such consideration.
PRIMARY CONSIDERATIONS
Meaningful relationship
It is ordinarily in children’s best interests to have a meaningful relationship with each parent.
The Full Court in Sigley & Evor (2011) 44 Fam LR 439 identified the following as important matters of guidance in relation to s 60CC(2)(a) at 463–464:
(a)“A meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 at [26];
(b)“The court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)”: McCall & Clark (2009) FLC 93-405 at [118];
(c)“What the legislation aspires to promote is a meaningful relationship, not an optimal relationship”: Godfrey v Sanders (2007) 208 FLR 287 at [36]; and
(d)“The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make the orders most like ensure the children had a ‘meaningful relationship’ with both parents. This is an incorrect assumption. The courts obligation is to make orders most likely to promote the child’s best interests”: Champness & Hanson (2009) FLC 93-407 at [103].
On the competing applications of each party, they both contended that the children should spend periods of time with the other party.
In relation to the question of meaningful relationship, the single expert observed as follows:
173. I have very mixed views about the willingness and ability of each parent to facilitate and encourage a meaningful relationship between the children and the other parent. Both parents spoke effusively about their desire for the children to have a good relationship with the other parent and the necessity of the children maintaining these bonds. However, there have been aspects of each parent’s behaviour which have appeared to contradict these expressed views and I think the children, over time, will intuit this contradiction.
174. With respect to the mother, I think that she has generally supported the children’s relationship with the father. There is no indication in the children’s behaviour, attitudes or sentiments that they have been exposed to negative views about their father or [Ms E]. This would be extremely unlikely if the mother was undermining the children’s relationship with the father, particularly given the children did not spend much time with their father in 2021 and 2022 when they were living in [Country B]. There was no indication that the children blame to the father for their return to Australia.
175. However, the mother has, at times, restricted the children’s time with their father, most notably by her decision to unilaterally keep the children in [Country B] without the father’s consent. The mother has expressed a view that she was anxious and fearful about the children being taken by the father back to Australia. I think that this was a reasonable concern, and it is possible that the mother felt insecure, anxious and fearful about this possibility, given her precarious immigration status in Australia and the father’s history of unilaterally failing to return the children to the mother when he disagreed with her. If the mother’s restrictive behaviours arose in the context of her insecurity and fear, then it is likely that they would not be representative of her long-term parenting behaviour once final orders have been made. In other words, if orders are detailed and well-structured they are likely to assuage the mother’s anxiety and mean that she will be more likely to be encouraging of the children’s relationship with their father. I note that the mother has been compliant with court orders and is preparing the children well [practically and psychologically] for time with their father.
176. With respect to the father, he spoke very positively about the need for the children to have a good relationship with their mother, and there was no indication in the children’s behaviour or in my observations of the children and their father that he has deliberately or overtly undermined the mother’s parenting to the children. However, on individual interview with me the father was extremely critical of the mother, suggesting that she was an unsafe parent, that she posed a risk for the children, and that she had been deliberately manipulating [X] to develop a negative view about him.
177. I am concerned that the father appears to have had no such concerns during the marriage and was satisfied to leave the children in the mother’s care, for example, when he was engaged in sporting activities or travel. I think that the father has felt deeply offended by the mother’s behaviour in retaining the children in [Country B] and will find it difficult to trust the mother in the future. I also observed that the father was very focused on the children integrating into his new family with his partner. He repeatedly referred to himself, [Ms E] and the children as being a stable family unit, in contrast to what he perceived as the mother’s instability and emotional volatility and risk to the children. Whilst it is understandable that the father is highly motivated to have the children feel accepted and loved in his household and with his new partner, he has perhaps failed to understand that the children do not necessarily identify in this manner, are still recovering from the loss of the family unit they knew, and still consider that their mother is a core part of their family unit.
It is clearly to the benefit of the children to have a meaningful relationship with each of their parents. For the reasons given earlier, I am satisfied that the mother would facilitate a relationship between the children and the father in the event of a relocation to Country B. I am cognisant of the authorities I have referred to earlier that a meaningful relationship can be achieved on a particular proposal even if it is not the optimal one.
I am satisfied, given the proposals of the parties, that the children will, to the extent that is possible, have a meaningful relationship with each of their parents on each of the competing proposals.
Section 60CC(2)(b) abuse and family violence
Each party contended that they have been the victim of family violence perpetrated by the other.
For the reasons given earlier, I am satisfied that the children have been exposed to incidents of family violence occasioned by their parents and that the “level of conflict between the parents is extremely high” (Family Report, paragraph 171). I find, consistent with the single expert’s evidence (and contrary to the case presented by the father) that the children are not at a risk of harm in the care of either parent. However, consistent with the single expert’s evidence, one advantage of the mother’s proposal for relocation is that the children’s exposure to future incidents of family violence may be lessened and/or reduced.
ADDITIONAL CONSIDERATIONS
(a) Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the High Court stated:
34.In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
35.... whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed.
The single expert observed in relation to the question of views the following:
162. Both children are too young to assess the relative merits of each parent’s proposal in the long term, particularly given the parents are in dispute about the children’s country of residence. Both children spoke about positive experiences in each of their parents’ households, expressed love towards each parent and demonstrated loyalty towards each parent.
163. …Although [X] can present as a mature child, her emotional coping mechanisms are not necessarily commensurate with her presentation.
The mother’s affidavit sought to portray the children’s views as supportive of a return to Country B and to live there permanently. Considering the children’s age and the observations of the single expert, which I accept, I place little weight upon the children’s views given that they have a limited comprehension of the magnitude of the issues at play.
(b) The nature of the children’s relationship with each of the parents and other persons
I accept the evidence of the single expert that the children have a significant attachment with their mother and accept her evidence that the children appear to turn towards their mother for reassurance in a new situation for comfort and acknowledgement. I note the single expert observed as follows:
165. I think that [X] has a particularly strong attachment with her mother. I observed that [X] related very well to her mother, that they had a shared sense of humour and similar personality attributes, and that [X] valued and respected her mother. I think that [Ms Pavola] has parented [X] in a manner which makes [X] feel secure, safe, and loved. …There may have been times when [Ms Pavola] has inadvertently drawn [X] into adult dynamics, given the alignment between them. I think that [X] is an inquisitive child who may, at times, take on adult burdens and responsibilities, and I think she has seen her mother distressed and stressed, and has taken on a protective stance in defence of her mother. Having said that, I do not think that [X] has been alienated as the father claims. Instead, I think she tends to intuit and interpret her mother’s behaviours and has assumed some of the concerns of the mother.
166. I think that [Y] also has a very close and developmentally appropriate relationship with his mother. At times I think [Y] can be clingy and finds separation from his mother to be difficult, although this in in the normal range for a child of his age. I think that as he matures, [Y] is becoming much more capable of managing separation from his mother, particularly now that his language and social skills have improved and he has started formal education.
167. I also think that both children have very close, warm, loving, and secure relationships with their father. Although they have spent less time with their father in aggregate, I observed that the children were loving, warm, and naturally spontaneous with their father. I think that the father relates to the children very well, piques their interest, and has a warm, caring, and loving parenting style.
168. I think that [X] feels securely loved by her father, and relates to him with naturalness and warmth. There was no indication that she is wary or anxious around her father or that she has been improperly influenced by the mother to develop a negative view of her father. In contrast, she was relaxed, humorous, playful, and loving towards her father.
169. I also think that [Y] feels secure and supported by his father, although he perhaps does not have as strong an attachment relationship with his father as he has experienced with his mother, given the lapses in time. Despite spending lengthy periods of time away from their father when they were living in [Country B], the children have been able to maintain close, positive, and healthy relationships with their father.
170. I also think that the children are developing a warm relationship with [Ms E]. … I think that [Ms E] has exceptionally good communication skills with children and has positioned herself as a nonthreatening, loving adult who cares for the children and who supports the father in his parenting of them. She has demonstrated a good understanding of her role in the children’s lives, has developed a positive relationship with them, and has expressed a long-term commitment to the children, which is to her credit.
I accept the evidence of the single expert that the children have a close and loving relationship with both of their parents and that Ms E is a positive force in the children’s lives. The depth of the children’s relationship with their father is a testament to both the father’s involvement in the children’s lives and the mother’s positive reinforcement of their relationship with their father. It is also, as the single expert opined, the antithesis of that one would expect to see if the mother was alienating the children from the father.
(c) Extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children; spending time with the children; and communicate with the children
I am not satisfied that this is a relevant consideration.
(ca) Extent to which each of the parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the children.
I am not satisfied that this is a relevant consideration, and no submissions were put to me to contending it was.
(d) Likely effects of any changes in the children's circumstances including the likely effect on the children of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the children), with whom he or she has been living
In that respect, the single expert observed as follows:
178. I think that both children have come to expect the continual involvement of both parents and households in their lives…I think that both children benefit from having continual input and involvement with each of their parents in their lives and that they would each be adversely affected if they were to be separated, in the long term from either parent.
I accept that the proposals of the parties in the event of relocation do not provide the children with the same amount of time they would have in Australia and is not a substitute for the regularity of weekend and mid-week time. I also accept that a move to Country B will change the nature of the children’s relationship with their father. I accept the evidence that the children would suffer a sense of loss if the relocation were permitted.
I also accept the evidence of the single expert referred to above and her evidence at paragraph 197 of the Family Report that the children will thrive irrespective of the country they live in if they have regular time and a meaningful relationship with both parents. I am satisfied that the regularity of the time proposals of the ICL in the event of a relocation are such that the children would spend regular time with their father and be able to maintain a meaningful relationship. The children already have a clearly established relationship with their father, which they were able to maintain notwithstanding spending nearly 10 months in Country B in 2021/2022. On the competing proposals, in the event of a relocation, they would spend more frequent and more regular time then they did in 2021/2022 when they were in Country B.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is no practical difficulty or expense associated with the children remaining in Australia.
There is clearly a practical difficulty and expense in the children maintaining a relationship with the father if the relocation occurs. The reality is that there will be costs involved in maintaining physical contact given international flights will be required to be undertaken to ensure the children maintain a relationship with the other parent. There could also be practical difficulties of maintaining a relationship in between the holiday occasions with the parties reliant upon video and/or other forms of telecommunication. The time differences will also pose a problem.
I am satisfied that the proposal of the ICL provides a pragmatic framework of time to enable the children to maintain their relationship in the event relocation is permitted. The mother’s counsel confirmed that the mother would contribute to the cost of travel.
Each of the parties, however, maintain a position that they will be able to afford to have a relationship with the child irrespective of where they are living, and it is not an impediment to the maintenance of a meaningful relationship.
(f) The capacity of each of the child's parents and any other person to provide for the needs of the child, including emotional and intellectual needs
In this respect, the single expert observed as follows:
180. I think that the mother has a very good capacity to provide for the needs of the children including their physical, social, emotional, psychological and intellectual needs. The mother presented as supportive, kind, loving and consistent. The children’s behaviour indicated that they felt secure and positive in their mother’s care.
181. I carefully considered the father’s assertion that the mother poses a risk to the children insofar as she was emotionally volatile, had physically chastised them and could expose them to episodes of verbal and physical violence. There was no evidence in the children’s interviews with me, their presentation, their development, or their observed interactions with their mother that they had been exposed to such abuse or unpredictable or volatile behaviour. The children in contrast were relaxed, playful, irreverent, and affectionate and open with their mother. There was no indication that either child was wary or had any trepidation or any concern about poor behaviour in front of their mother, as might be the case when children have been exposed to unpredictable or volatile parenting reactions. The children are doing well socially, academically, and socially, and there have been no concerns raised by any other adult or person in relation to the mother’s parenting of them.
182. I do think that there have been times when the mother has been relatively emotionally expressive and I think that there are times when she has screamed at the children on occasions when they have been misbehaving. However, I think that these isolated incidents have occurred against a background of consistent, loving, and stable parenting and are not indicative of emotional abuse.
183. I also noted that the father was previously unconcerned enough to leave the children in the extended care of the mother, and I find it difficult to accept that he genuinely had fears about the children’s safety during the years of the marriage.
184. I also think the father has a very good capacity to provide for the needs of the children. He has provided the children with a range of positive experiences, activities, and social interactions, as well as having appropriate care for their educational attainment. The father presented as insightful, caring, and concerned about the children’s emotional experience.
185. I think that at times the father has underplayed the degree to which the children are attached to their mother and exaggerated their capacity to cope with change. For example, he suggested that the children would adapt to a situation where their mother was living overseas and they did not have contact with her, if she returned to [Country B]. I also think the father has focused on the children’s integration to his new family unit and has failed to see that the children have had to cope with enormous and tumultuous changes to their lives and circumstances over the last few years.
…
189. Separately, I think that each of the parents has a very good capacity to protect the children and to protect them from physical, emotional and psychological harm. Both parents are intelligent, insightful, and capable people who presented as devoted to the children and ensuring they have optimal outcomes in all areas of their lives.
I accept the single expert’s evidence. I am satisfied that both parties have the capacity to provide for the children’s needs including their emotional and intellectual needs.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
These children are from a Country B and Country D cultural background. One advantage of the mother’s proposal is that it will enable the children to maintain a closer and more natural connection and relationship to their culture of birth as well as the culture of their parents’ place of birth. The mother’s proposal also has the benefit of enabling the children to maintain a relationship with their extended family all of whom reside either in Country B and/or Country D.
In Australia the children attend a bilingual school and would be exposed to their Country B heritage through their parents and school.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her culture; and the likely impact any proposed parenting order under this Part will have on that right
This is not a relevant consideration.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
In this respect, the single expert observed as follows:
186. I think that both parents have a responsible attitude to parenthood and a commitment to the children. Both parents presented as devoted to the children and caring and loving towards them.
(j) Any family violence involving the child or a member of the child's family
I have already addressed this earlier.
k) Any relevant inferences that can be drawn from a family violence order, if it applies
This is not a relevant consideration.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I am of the view that the orders I propose are the ones that are least likely to lead to the institution of further proceedings.
(m) Any other fact or circumstance that the court thinks is relevant
There is no other matter that I consider relevant to my determination that I have not otherwise addressed.
CONCLUSIONS
I am satisfied, consistent with the evidence of the single expert referred to above, that placing the children in the father’s primary is not in the children’s best interests.
I am not satisfied that it is in the best interests of the children that they remain in Australia in the mother’s primary care. In my view, the stated advantages are outweighed by the disadvantages. The mother would be compelled to remain in a place not of her choosing and to exist at a financially inferior level to that of the father as well as engage in employment that undermines her self-worth and the image she wishes to present to her children as a role model. I also accept the evidence of the single expert that the mother is currently parenting sub‑optimally and while she is resilient, there remains a risk that the mother’s distress at remaining in Australia could impact on her parenting capacity. There is also an issue underlying her capacity to remain in Australia given her visa status.
For the reasons referred to above, I am of the view that the mother’s legitimate desire to live and work in Country B is bona fide and it will provide her with superior financial opportunities over those available to her in Australia.
I am satisfied that the ICL’s proposal for time is such as to ensure that the children can maintain a meaningful relationship with their father if they are living in Country B and spend regular time with him. In that regard, therefore, I am satisfied, consistent with the single expert’s evidence at paragraph 198, that the children will thrive in such an environment.
I am satisfied that the mother is supportive of the children maintaining a meaningful relationship with their father and will facilitate such a relationship if relocation was permitted.
I am satisfied that a relocation to Country B would be of benefit to the mother from a social, financial, and family perspective to that which would endure if she were compelled to remain in Australia.
I am also satisfied that an advantage of relocation is the possibility of a reduction in the level of conflict to which the children are exposed.
I accept, as stated by the ICL, that this is a finally balanced decision. I am, however, satisfied for the reasons I have referred to throughout this judgment that on balance, the best interests of the children are served by permitting the mother to relocate their residence to Country B. In making such an order, I accept the mother’s undoubted right to freedom of movement must also always defer to what is in the best interests of the children.
I am satisfied for the reasons referred to above including the practicality of the relocation proposal put forward by the ICL and both parties’ undoubted devotion to the children that their welfare would not be adversely affected if they were to relocate to Country B (Franklyn).
I am confident given my view that the father is clearly devoted to his children that he will make whatever arrangements are necessary to ensure that he is able to maintain a meaningful relationship with them. I am, as stated earlier, satisfied that the mother will facilitate and ensure that the children maintain a meaningful relationship between the children and the father.
The parties agreed that whichever parent had primary care should have sole parental responsibility. The single expert was supportive of a sole parental responsibility order.
Pursuant to s 61DA(1) of the Act, the Court is required to apply a presumption that it is in the best interests of children for the parents to have equal shared parental responsibility.
That presumption may be rebutted if there are reasonable grounds to believe that a parent of a child has engaged in abuse or family violence or there is evidence which satisfies the Court that it is not in the best’s interests of the child for the presumption to apply.
I am satisfied, given the distance at which these parties are apart and the highly conflictual nature of their relationship as well as the agreement that there should be an order for sole parental responsibility, that it is in the best interests of these children that an order for sole parental responsibility is made in favour of the mother.
Having made such a finding, I am consequentially not required to consider s 65DAA.
I have carefully considered the orders of each of the parties and am satisfied that the proposed orders of the ICL in Exhibit 11 meet the best interests of the children in the event of relocation, and I propose to make orders in accordance with them subject to some minor amendments.
Neither party raised any issue about the effectiveness of the ICL’s proposal in relation to the children spending time with the father in the event of a relocation.
The ICL sought orders that the children not be permitted to travel as unaccompanied minors until they attain 12 years. The mother sought no order about these matters and the father sought a very general order in relation to this issue, seeking the parent who is meeting the costs of the international travel to meet that cost. No submission was to put to me about any of these matters. In those circumstances, I do not propose to make any order that restricts the children’s travel in this regard.
No submissions were advanced by the mother’s counsel against the proposals of the ICL and the father that a prerequisite to return to Country B was the registration of the orders in Country B. I am satisfied in those circumstances that is an appropriate order to make.
The mother’s counsel indicated that the mother consented to the father’s proposed Order 34 for the repayment of half of the single expert’s fees and accordingly, I will make that order by consent.
I will make orders to give effect to the above.
I certify that the preceding two hundred and eleven (211) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 20 October 2023
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