Galipo and Anor and Christie
[2021] FCWA 140
•5 AUGUST 2021
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: GALIPO & ANOR and CHRISTIE [2021] FCWA 140
CORAM: DUNCANSON J
HEARD: 12, 14, 15, 18, 19, 20, 21, 22 JANUARY, 21, 22, 23, 24 JUNE 2021
DELIVERED : 5 AUGUST 2021
FILE NO/S: PTW 320 of 2020
BETWEEN: MR GALIPO and MRS GALIPO
Applicants
AND
MR CHRISTIE
Respondent
Catchwords:
CHILDREN - where the parents of the children are deceased - where the paternal grandparents and the maternal uncle seek orders in relation to the children - consideration of the nature of the children's relationships and the respective capacities of the parties to provide for their needs - where the children's best interests are served by maintaining their primary attachment - children to live with the grandparents who have permission to relocate them to Country A
Legislation:
Family Law Act 1975 (Cth) s 60CA, s 60CC, s 65DAC
Category: Reportable
Representation:
Counsel:
| Applicants | : | Ms A |
| Respondent | : | Ms B |
| Independent Children's Lawyer | : | Ms C |
Solicitors:
| Applicants | : | Law Firm A |
| Respondent | : | Law Firm B |
| Independent Children's Lawyer | : | Law Firm C |
Case(s) referred to in decision(s):
Donnell & Dovey (2010) FLC 93-428
Valentine & Lacerra (2013) FLC 93-539
Yamada & Cain [2013] FamCAFC 64
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Galipo and Christie has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
1These proceedings concern the children, [Child A], [Child B] and [Child C] who are aged eight years, four years and one year and eight months respectively. Tragically [in] January 2020 the children's parents died as a result of [an accident] which was described as sudden, violent, catastrophic and shocking.
2The applicants are the paternal grandfather [Mr Galipo] and the paternal grandmother [Ms Galipo] (known as "the grandfather" and "the grandmother" and collectively as "the grandparents"). The grandparents were visiting the parents in Perth from their home in [Country A]. The children and the grandparents were [involved in the accident]. They were injured and discharged from hospital after treatment. The grandparents have remained in Perth since the accident living with the children in the family home.
3The first respondent [Mr Christie] is the children's maternal uncle ("the uncle"). He travelled to Australia after the accident, followed by his wife, [Ms D] ("the aunt") and their son, [Child D]. They lived in the children's family home for a period of time after the accident. Currently the children spend time with the uncle and his family for three weekends in every four.
4The grandparents and the uncle each seek orders in relation to the children as set out below. The grandparents seek to relocate the children to Country A and they seek orders that the children live with them there and spend time and communicate with the uncle in both Country A and Australia.
5The uncle holds a Temporary Activity visa to remain in Australia by virtue of the aunt's employment. She intends to apply for permanent residence to remain in Australia with her family. The uncle proposes that the children live with him and his family in [Town A] and spend time and communicate with the grandparents in both Australia and Country A.
6The grandparents believe it is in the best interests of the children to live with them in Country A where they are able to provide for them and where they have the assistance of their family. The grandparents' position is that they are the children's primary attachment figures and it would be detrimental to the children to be separated from them. The uncle and the Independent Children's Lawyer (“the ICL”) are critical of the grandparents' capacity to provide for the children by reason of their age and health. The uncle and the ICL assert that the grandparents have failed to encourage the relationship between the children and the uncle.
7The uncle believes it is in the best interests of the children to live with him and his wife and son in Town A. He says it was the parents' dream that the children be raised in Australia. The uncle asserts the children are also attached to him and his family in particular his son, Child D. The grandparents are critical of the uncle's ability to provide for the children by reason of his instability, financial considerations and the significant responsibility of having four young children in his care.
8The cases of both parties were supported by witnesses who were family and friends. Central to my determination as to the best interests of the children is an assessment of the children's relationship with the parties and an assessment of the parties' respective capacities to provide for their needs.
THE ORDERS SOUGHT
9The children are represented by an ICL, [Ms E]. On 15 June 2021, part way through the respondent's case, and before evidence was given by the single expert witness, [Ms F], the ICL filed a minute of proposed final orders. The ICL proposes that the uncle have sole parental responsibility for the children and that they live with him. The ICL proposes that the children remain living in Perth and continue to attend [School A] until the end of 2021. Thereafter the uncle be at liberty to change their place of residence outside of the Perth metropolitan area. The ICL proposes that the children spend time with the grandparents each alternate year in Country A for a period of four weeks and each intervening year in Australia for a period of four weeks. The ICL further proposes that in the event that the children relocate to Country A with the uncle they spend time with the grandparents as agreed, but failing agreement as set out in the minute.
10The ICL proposes that the children's names be removed from the Australian Federal Police Watch List. She proposes orders in relation to the children's communication with the grandparents, information sharing, injunctions and an order that the proceedings in Country A be discontinued.
11The ICL reserved the right to change her position once the remaining evidence had been heard and tested. She did not do so. In closing submissions, counsel for the ICL proposed that there be an order to facilitate the transition of the children to the uncle's care and that the ICL remain appointed to facilitate the provision of support as to the issue of the children's attachment.
The orders sought by the grandparents
12The orders sought by the grandparents are contained in a minute of orders sought within their papers for the judge filed 12 January 2021.
13The grandparents seek orders that the children's names be removed from the Family Law Watch List and that they be permitted to relocate the children from Australia to Country A. They propose that they and the uncle have joint parental responsibility for the children. The grandparents seek an order that the children live with them and spend time and communicate with the uncle as may be agreed between the parties.
14Exhibit 3 is a proposed minute of final orders sought by the grandparents in which they set out the spend time orders proposed if the children live in Country A with them or in Australia with the uncle. In broad terms they propose that the children spend four weeks with the party with whom they are not living in Country A and in Australia in alternate years. The grandparents seek orders for communication, costs of air fares, provision of information and a non-denigration order. The grandparents seek an order that if the children spend time with their half-brother [Child E], they should have adult supervision.
The orders sought by the uncle
15At the commencement of the trial the uncle sought orders in terms of a minute of proposed orders which became exhibit 4. In closing counsel for the uncle informed the Court that the uncle adopted the position of the ICL and he sought orders in terms of her minute of proposed orders filed 15 June 2021.
FAMILY BACKGROUND
16The grandfather was born [in] July 1950 in Country A. He is 71 years of age. The grandmother was born [in] January 1953 in Country A. She is 68 years of age.
17The maternal grandmother, [Ms G] was born [in] February 1959 in Country A. She is 62 years of age. She was previously the second respondent in the proceedings but withdrew from them on 15 January 2021.
18The maternal grandmother was previously married to the maternal grandfather, [Mr H]. Their children are the mother, [Ms J] and the uncle. They were divorced in 2006. The maternal grandfather is married to [Mrs H].
19The grandparents married on 29 December 1973. They had three children including the father, [Mr K]. Their son is [Mr L] and their daughter is [Ms M], who are the paternal uncle and aunt.
20The father was born [in] October 1978 in Country A. The mother was born [in] October 1982 also in Country A.
21The uncle was born [in] June 1986 in Country A. He is the mother's brother. He is 35 years of age. The aunt was born [in] August 1992 in [Country B]. She is 28 years of age.
22The mother was previously married to [Mr N]. Their son Child E was born in Country A [in] April 2004. He is 17 years of age. Child E lives in Country A with the maternal grandmother.
23The parents were married [in] June 2011 in Perth.
24Child A was born [in] 2013 in Country A. Child B was born [in] 2016 and Child C was born [in] 2019. Child B and Child C were born in Australia.
25The uncle and aunt's son Child D was born [in] 2014. He is seven years of age.
26The father and the mother died [in] January 2020 aged 41 years and 37 years respectively.
HISTORY
27The following history has been drawn from an agreed chronology and otherwise represents my findings.
28In 2001 the grandfather retired from [Government Department A] as [an employee] but continued working as a [consultant] in the Government Department A, Country A.
29In 2003 the father completed a [Bachelor of Architecture] at [University A in Country A] and commenced work as [a consultant] in Country A.
30The parents met in December 2007 and in February 2008 they commenced a relationship. The father was working as [a] consultant and the mother was studying [pharmacy].
31In 2010 the parents were granted student visas. They travelled to Perth to study. The mother left Child E in Country A with the maternal grandmother.
32In December 2011 the parents returned to Country A for Christmas with the uncle and maternal grandmother and then returned to Perth.
33In [mid] 2012 the parents left Australia temporarily. They travelled to [Country C] and subsequently returned to Country A to await their Australian permanent residency visa. The mother was expecting Child A. The parents spent time with family. The parents also spent time apart while the father worked.
34[In] September 2012 the aunt moved to Perth on a student visa.
35In [late] 2012 the uncle travelled to Australia on a student visa to study English. He stayed in the parents' [Property A] rental.
36In [late] 2012 the uncle and aunt met in Perth and commenced a relationship. They became engaged in [mid] 2013.
37[In] 2013 Child A was born in Country A.
38[In] October 2013 the parents returned to Australia with Child A before their permanent resident visa was granted. They lived in Property A with the uncle and aunt.
39From October 2013 to December 2014 the aunt looked after Child A at [Company D] where she worked each day while the parents worked.
40In [early] 2014 the parent's permanent resident visa (which covered Child A) was granted, allowing them to remain living in Australia indefinitely.
41From January 2014 to April 2015 the uncle and the father worked at [Company B] together.
42In mid-March 2014 the uncle and aunt moved to their own home in [Suburb B].
43In December 2014 the maternal grandmother and Child E came to Perth from Country A and lived with the parents and Child A in their home in [Suburb C].
44In early 2015 the uncle, aunt and Child D moved into the Suburb C home and lived there with the parents, Child A, the maternal grandmother and Child E.
45In May 2015 the maternal grandmother and Child E returned to Country A. Child E lived with the maternal grandfather and his wife for approximately six months.
46In September 2015 the uncle, aunt and Child D moved to [Suburb D].
47From 2015 to 2017 the aunt studied and obtained her [carer qualifications]. She also worked as a [carer] between 2015 and 2018.
48In around May 2015 the uncle left Company B and in June 2015 commenced employment at [Company C], where he worked until January 2019.
49In late 2015 the parents and Child A moved to [Suburb E] to be closer to the uncle and aunt. The aunt cared for Child A on her days off.
50From 31 March 2016 to February 2017 the aunt's mother stayed with the uncle and aunt. She took care of Child D and Child A together most days while the parents of both children worked.
51On 18 December 2016 the grandparents came to Perth for Child B’s birth. This was their first visit to Australia.
52On 23 December 2016 the maternal grandmother and Child E came to Perth also for Child B’s birth.
53On 13 January 2017 the grandparents returned to Country A.
54In February 2017 the maternal grandmother and Child E returned to Country A.
55From 2017 to 2018 the uncle, aunt and Child D lived in Suburb D and the parents, Child A and Child B lived in Suburb E.
56In 2018 the grandfather [suffered from a medical condition] which he described as mild and which was treated with medication.
57The uncle and aunt decided to return to Country A as they could not get a permanent visa and their visas were about to expire. In late 2018 they lived with the parents for a few weeks before their return to Country A on 14 January 2019.
58The aunt is not a citizen of Country A and entered the country on a visitor's visa which permitted her to stay for three months however she stayed for eight months. The family lived with the maternal grandmother and subsequently with the maternal grandfather and his wife.
59In early 2019 the parents commenced building the family home in [Suburb F].
60In March 2019 the mother applied for a Child Visa (subclass 101) for Child F.
61Following a period of unemployment and the aunt overstaying her visa in Country A, the uncle, aunt and Child D relocated to Country B in August 2019 where they lived with the aunt's mother.
62On 23 October 2019 the grandmother travelled to Australia for the birth of Child C who was born a few days after her arrival. The maternal grandmother was unable to travel at that time due to commitments in Country A. The grandfather was not able to travel at that time, as he was recovering from [surgery] which had taken place that month.
63On 6 November 2019 the parents passed the Australian citizenship test.
64On 19 December 2019 the grandfather arrived in Perth. The grandparents' return ticket to Country A was booked for 17 January 2020.
65The parents, the grandparents and the three children were in the [accident]. The children and the grandmother were flown to [Hospital A] and [Hospital B] respectively. The grandfather was taken to [Hospital C].
66The uncle was informed of the parents' passing and he made plans to go to Australia via Country A, to travel with the maternal grandmother and Child E.
67[Money was raised] to assist the family and the children. Approximately $120,000 was collected at the time. It was used to pay for flights and visas for the maternal grandmother, the uncle and Child E, electricity bills and funeral expenses. Currently [Mr O], a family friend and [Mr P] are responsible for the fund in the amount of approximately $97,000.
68The grandfather was discharged from hospital on 13 January 2020.
69The grandmother was discharged from hospital on 14 January 2020.
70On 14 January 2020 [Dr A], clinical psychologist at Hospital A met the children. She met with the children and provided therapy to Child A and Child B on various dates thereafter.
71An application was filed by the grandparents on 14 January 2020 seeking orders on an urgent basis that they have parental responsibility for the children and that the children live with them. Orders were made on that day. The parties disagree as to when the uncle and maternal grandmother were informed of the orders.
72On 14 January 2020 the uncle left Country B and flew to Country A. He met the maternal grandmother and Child E in Country A and they travelled together to Perth.
73Child A and Child B were discharged from hospital on 15 January 2020.
74On 17 January 2020 the uncle, the maternal grandmother and Child E arrived in Australia. They stayed at the family home with the grandparents and the children.
75In around January 2020 family friends raised funds of $9,000 for the children. The grandfather used this donation, together with his personal funds for the living expenses of the house.
76The parents' funeral was held [in] January 2020.
77The grandparents' position is that on 21 January 2020 they informed the uncle and the maternal grandmother of the court orders made on 14 January 2020. The uncle deposed they were unaware of the orders until 10 February 2020.
78On 22 January 2020 Child C was discharged from hospital. The uncle, the maternal grandmother and the grandmother shared care of Child C throughout the day and night.
79On 29 January 2020 Child C was re-admitted to hospital with [brain injuries]. He required a surgical procedure on 3 February 2020. He recovered from the surgery and was discharged from hospital on 7 February 2020. A roster was created by family and friends to spend time with him at the hospital.
80In January 2020 the Department of Communities ("the Department") initiated an investigation following the parents' death to ensure that there was a suitable carer in Child A’s life. The Department worked with both grandparents and supported them in relation to this matter. The case was closed with the outcome of "suitable adult" and no further action.
81The grandfather was released from his position at the Government Department A on 17 February 2020 to remain in Australia caring for the children pending the Family Court proceedings. He deposed the position remains available to him in the event he decides to return to work upon his return to Country A.
82On 17 February 2020 the maternal grandmother, the uncle, the aunt and Mr N (Child E’s father) jointly filed a response to the grandparents' application. They sought an order:
That these proceedings stand adjourned pending any party to these proceedings initiating Family Court proceedings in [Country A] in relation to the Children on an urgent basis.
83The grandfather said in February 2020 the uncle told him he was taking the children for a walk to the park but instead the uncle had arranged for news reporters to interview him and the children at the park. The uncle denied this and said the children were nowhere near the reporters in the park and they did not speak to them.
84In February 2020 the Department investigated sexual abuse concerns after it was reported that Child E inappropriately touched Child A. The Department conducted a child assessment interview with Child A who made no disclosure of abuse. Harm was not substantiated and the case was closed in June 2020. The parties disagree as to who reported the incident to the Department. The uncle expressed concern to Ms F that the allegations were made by the grandparents as part of a wider attempt by them to advance their position in these proceedings. The grandparents denied reporting the incident to the Department. They told Ms F that they had disclosed to Dr A that Child E was seen by a family friend touching a child inappropriately and that same evening Child A disclosed to the grandmother that he was frightened of Child E.
85On 25 February 2020 orders were made formally joining the uncle and the maternal grandmother to the proceedings. Further orders were made, including an order restraining the parties from removing or attempting to remove the children from the Commonwealth of Australia and/or Western Australia. The children's names were placed on the Family Law Watch List and it was ordered that the injunction remain in force for a period of two years.
86On 1 March 2020 the aunt and Child D arrived in Perth. They lived in the family home with the grandparents, uncle, maternal grandmother, Child E and the children.
87On 2 March 2020 proceedings were commenced in Country A by the grandparents. They and the maternal grandparents are parties to the proceedings.
88On 3 March 2020 the maternal grandmother and Child E returned to Country A.
89On 2 April 2020 the proceedings in Country A were suspended due to the global pandemic.
90In May 2020 the aunt obtained a COVID-19 Temporary Activity visa (subclass 408). This visa allowed her to work in Australia.
91On 20 August 2020 orders were made appointing Ms F as single expert witness and procedural orders were made for the filing of trial documents.
92On 24 August and 26 August 2020 [Dr B], general practitioner provided reports relating to the grandmother and the grandfather respectively containing an assessment of their injuries sustained in the accident.
93On 8 June 2020 the aunt was offered employment with [Company D] as a [carer] in Town A. On 21 September 2020 she was promoted to acting team leader.
94On 14 September 2020 the aunt commenced living in Town A each Monday to Thursday. The uncle and Child D remained at the family home in Perth. The uncle drove the aunt to work each week on Sunday and returned to Perth with Child D on the Monday. He collected the aunt on Thursday and together they spent Thursday to Sunday at the family home with the children.
95On 3 November 2020 the aunt suffered an injury at work. She was hospitalised in Perth for four days and had several weeks off work. The uncle said during this time he stayed at a friend's home close to the hospital. The uncle and aunt moved back into the family home after the aunt was discharged from hospital.
96[Dr C], consultant psychiatrist, provided reports dated 5 and 6 November 2020 in relation to the grandfather and grandmother respectively containing his psychiatric opinion. On 12 November 2020 Dr C provided supplementary reports with respect to each of the grandparents.
97[Initiating documents] were filed in [another jurisdiction] [in] November 2020 on behalf of the grandparents.
98On 17 November 2020 Dr B published a supplementary medical report relating to the grandfather.
99On 4 December 2020 the aunt was admitted into hospital after feeling unwell. Upon the doctor's recommendations the aunt, uncle and Child D left the family home in December 2020 and moved into [Ms Q’s] home.
100On 7 December 2020 Dr B published a report relating to Child A.
101On 11 December 2020 Ms F provided a single expert report.
102On 14 December 2020 Dr B published two more reports, relating to Child B and Child C.
103On 16 December 2020 the parties attended a Dispute Resolution conference and interim orders were made by consent for the children to spend time with the uncle during the Christmas period.
104On 21 December 2020 interim orders were made by consent for the children to spend time with the uncle in the lead up to the trial, to include overnights for Child B and Child A and four hours during the day time for all three children on several occasions.
105The trial commenced 12 January 2021.
106On 17 January 2021 the aunt returned to Town A with Child D.
107The aunt returned to work on 18 January 2021 on reduced hours. Child D was cared for by a friend of the aunt when she was at work. Child D commenced Year 2 at [School B].
108On 22 January 2021 the trial was adjourned part heard to 21 June 2021.
109The parties reached agreement as to the children's time with the uncle at weekends. The arrangements were changed in March 2021 and by agreement the arrangement is that in weekend one, Child A and Child B spend time with the uncle from Friday to Sunday and Child C on the Saturday only between 10.00 am and 4.00 pm. In weekend two all three children spend time with him from Friday to Saturday at 4.00 pm, in that weekend Child C is returned on Saturday at 4.00 pm, but Child A and Child B stay until 2.00 pm Sunday. In the third weekend, Child A and Child B spend time with him from Friday to Sunday at 2.00 pm and Child C on Saturday from 10.00 am to 4.00 pm the same day. In weekend four, the children remain with the grandparents.
110On 12 April 2021 Ms F provided an updated single expert report.
111The children continued to see Dr A in 2021. Dr A last saw Child A and Child B on 14 May 2021.
112On 25 February 2021 [Dr E], consultant occupational physician provided a report in respect of the aunt.
113On 18 March 2021 [Mr R], consultant orthopaedic surgeon provided reports in respect of the grandparents.
114On 14 April 2021 [Dr D], consultant neurologist provided a report in respect of the aunt.
115On 11 May 2021 judgment was entered for the grandmother in proceedings at her instance against the [Government Insurance Scheme] in the sum of $80,000.
116On 20 May 2021 [Professor A], clinical professor of neurology provided a report in respect of the aunt.
117On 20 May 2021 judgment was entered for the grandfather in proceedings at his instance against the Government Insurance Scheme in the sum of $125,000.
118The uncle commenced work with Company C on 21 May 2021.
119On 1 June 2021 the aunt and the uncle were each granted a temporary activity (subclass 408) visa.
120On 18 June 2021 [Ms S], psychologist provided reports in respect of each of the grandparents.
THE EVIDENCE
121The trial took place over 12 days. It commenced on 12 January 2021 and was adjourned part heard on 22 January 2021. The trial resumed on 21 June 2012 and concluded on 24 June 2021.
122I have considered all of the evidence very carefully. In these reasons I have not referred to all of the evidence as I do not consider it necessary and nor is it practicable to do so. If I do not refer to the evidence of a particular witness or part of it, it should not therefore be assumed that I have ignored or overlooked it.
123English is not the first language of some of the parties and their witnesses. In my account of their evidence, I have, so far as practicable, repeated their own words.
Mr Galipo
124The grandfather is a retired [employee] of Government Department A of Country A. He was an honest witness who gave his evidence clearly and firmly through the interpreter. He did not embellish his evidence. He did not try and place himself in a good light and he gave his evidence in a very matter of fact way.
125The grandparents' home is in Country A. They were scheduled to return there [in] January 2020 but did not do so. They have not returned to their home since the accident and are committed to caring for the children.
126The grandfather deposed as follows:
52.The sudden death of our beloved son and daughter in law was the ultimate tragedy, nothing could be more devastating. I truly feel for all parties affected by this tragedy. As a parent, we give birth to life as a promise to the future. Our grandchildren had this promise taken away from them way too early. Now my wife and I have made a new commitment and promise to nurture and protect our grandchildren in the same way we did with our three children.
127He is a caring person who showed a good understanding of and sensitivity for the children's emotional needs. He was asked if Child A was still saying "God is bad for taking his parents". He considered what one would tell a child in this situation and he told Child A that mum and dad had an accident, God took them to the sky and now the two of them are stars in the sky.
128The grandfather described Child A as a child who is extremely kind with good manners. He described Child B as a child who is extremely intelligent, agile and bright. The grandfather described Child C as a "rare jewel".
129Child A attends school and the grandfather said his teacher has said he is doing well with normal development. Child A now eats normally. If he becomes sad and stressed, the grandfather calms him down and tells him he is with his grandma and grandpa. When the uncle and aunt were in the home, the grandfather told Child A that he also has his uncle and aunt.
130The grandfather explained Child B did not go to day care or kindy in 2020, because it was some distance away from the family home and he expected the case to be finished in two or three months.
131The grandfather and the uncle took Child A and Child D to [sporting activity A] each week. The grandfather was asked if it was necessary for the uncle to obtain orders to spend time with the children. The grandfather replied that he was responsible for the children and in any event the uncle lived in the same house. For some time, the children did not go out by reason of COVID-19 and the grandparents did not leave the house because they were at risk. The grandfather said his intention was to protect the children. He also said he restricted the children's time with the uncle because it appeared to him the uncle had talked to them about the Court's decision and also by reason of the risk posed by COVID-19.
132The grandfather said he liked the uncle who has a good relationship with the children, as does the aunt. He said if the children want to speak to the uncle and aunt and Child D on the phone they can do so at any time. The grandfather had no concerns about Child A and Child B after they returned from a visit with the uncle and aunt.
133The grandfather described the uncle as a young man with no experience, because he had not been through this situation. Although he was 34 years old, he has always had somebody to support him, except when he was in Australia for a short time. The grandfather said the aunt did not have enough experience to look after four children.
134The grandfather said if Child A was upset he would take him to the doctor and a psychologist. After he has moved to Country A he was confident Child A would get used to and adapt to a situation. Child A would be supervised by a psychologist and doctor there by way of follow-up of the treatment he is having here. The grandfather has not discussed the proposal to move to Country A with the children. He said he did not want to talk to the children until this case is finished because he did not want to create an expectation.
135The grandfather acknowledged that Child A and Child D are very close. They are cousins and friends. In relation to being separated from Child D the grandfather said he could only imagine what Child A felt after losing his parents, but he said Child A is coming out from that. He will feel that separation from Child D because they are friends, but the grandfather thought he would overcome this. Child A will feel sad when he has to leave his school friends, but the grandfather was confident that he will make friends in Country A.
136In his sworn evidence the grandfather described the daily routine of the family during various months in 2020 and annexed to his affidavit at [Annexure A] his diary entries. At this time the uncle, the aunt and Child D were living in the family home with the grandparents and children. The grandfather noted the uncle and aunt and Child D were away from the home often for most of the day and also for a few days at a time.
137The grandfather deposed that funds of over $100,000 have been raised which is held by the Public Trustee. His understanding is that the children could access the money after they turned 18 years of age. If he takes them to Country A, he would not be allowed to use it unless there was a health situation. He readily acknowledged that the funds would stay with the Public Trustee and these funds have not been used for the children's living expenses. The grandfather did not expect to access those funds and has and intends to continue to apply his own funds to the living expenses of the family. While all parties were living in the house the uncle contributed to the living expenses and the household accounts in that both parties paid half of the household accounts and the grandparents paid for the food.
Mrs Galipo
138The grandmother was an honest witness and her evidence was reliable. She made concessions which were appropriate including that the aunt had a lot to do with Child A in the early years and they were family. She also said that when the uncle and aunt were in the home Child A spent more time with them because he wanted to play with Child D.
139The grandmother is sensitive and caring. The grandmother said that she told Child A and Child B that their mum and dad went up to the sky and sometimes when they are in the park she looks up at the stars and says "there is mum and dad" and they say "look mummy and daddy". She denied telling Child B that his mother disappeared.
140The grandmother described Child A as a very happy, caring and loving child. She said Child B is a survivor because his parents always worked hard and he was brought up in day care centres, so he is very independent.
141She described Child B as very good and when she was asked if he needed help to cope with the loss of his parents, she said all of us need help. When asked what she has done to help Child B she said, "I gave love". The grandmother's love and devotion to the children was palpable when she described how at night time Child B would hold her face and say, "nanna I love you so much". She became very distressed when she described his need for his mother and father and said he feels a lot and misses his parents.
142The grandmother denied much of the evidence of the aunt that was put to her in cross-examination concerning events in the household when all parties were living there. I am unable to make a finding about many of these instances but I accept there was conflict between them at the time. It must have been difficult for them living in the house together and it is not entirely surprising that some difficulties arose.
143The grandmother acknowledged that she previously had a good relationship with the uncle and aunt but had lost confidence in the aunt over an incident when the aunt read the contents of her phone. The grandmother also said if the aunt apologised, for the sake of the children, she would forgive her and said she does not "keep hate in her heart".
144The grandmother was asked why the uncle could not have Child C overnight in January of this year. She said the uncle and the aunt did not know what food he liked and did not know his routine and they had not asked about this.
145The grandmother denied she had depression as reported by Dr B, although his report refers to her scores being consistent with a major depressive disorder of moderate severity. The grandmother said that was because she was very sad having lost her son and daughter-in-law. She was not socially withdrawn after the accident. She said she did not have time to do anything, or to be by herself, she had to look after the children. Notwithstanding what was said about her recovery in another jurisdiction proceedings the grandmother was confident she will recover completely. She said she has the grandfather to help her and although she has some pain, at this time she does not need help.
146The grandmother said the maternal grandmother blocked her from WhatsApp and Facebook and therefore she has not arranged for the children to speak to her, but the uncle and aunt arrange this when they speak to her. She said that it was important for the boys to have a connection with Australia, where they have friends here and they will try and make contact with the friends. Similarly, if the uncle and aunt want to speak to the children, she will allow it. She is not opposed to that.
147The grandmother's evidence was consistent with that of the grandfather regarding Child B attendance at play group in 2020. She referred to the distance. They thought the Court proceedings would not go on for so long and they thought they would be back in Country A where he would attend day care. Instead she spent time with Child B at home, going to the park and playing in the jumping castle.
148There are photographs of the parents in the house, also photographs of the maternal grandmother and Child E. She said that if the children were to ask about Child E she would explain to them that he is their brother and they have to love him and as their older brother he will protect them.
149A friend made a book and when the children see their parents in it, they point to it. The grandmother showed the book to the children. She said she talks to the children about the parents all the time.
150The grandmother said they will bring the children to Australia to visit the maternal relatives and if the children miss the uncle, they will tell the children that they will have holidays to go and see their uncle and cousin. She said, "we don't want them to forget the uncles and aunties and even the friends, what we want is to join not to divide".
151The grandmother was asked if she thought the uncle would contact her if the children were in Australia and said they were missing the grandparents. She said she thought he would.
Mr L
152Mr L is the paternal uncle to the children. Mr L is 43 years of age. He has two daughters, one aged 12 years and one aged two years. He lives close to the grandparents.
153Mr L deposed to a good upbringing by the grandparents, with privileges and the best education they could provide. He deposed to his extended family being very close and he is supportive of the grandparents' application to have the children live with them in Country A.
154Mr L met Child A when he was born although he was just three or four months old when the family left for Australia. He has never met Child B or Child C. The children were included in conversations with the father prior to the accident. Mr L became visibly upset when he described how Child B called him "daddy" because he looks like his late brother. He corrected Child B and told him that he was his uncle.
155He described a close extended family who sometimes get together and there can be as many as 46 people. He spoke to the children about coming to Country A and meeting their cousins.
156Mr L does not have a close relationship with the uncle or the maternal grandmother. Mr L acknowledged it was important for the children to have a relationship with their maternal grandmother and Child E and very important for them to have a relationship with the uncle and Child D. He said he will encourage those relationships. Consistent with the grandparents I consider Mr L’s evidence in this respect was sincere.
157Mr L is ready to assist his parents including financially, if they bring the children to Country A.
Mr H
158Mr H is the father of the uncle and the mother.
159He last saw the uncle with his family in March 2019 when they lived with him for about a month. Mr H last spoke to the uncle at the beginning of 2020 and sent him a message on his birthday in June that year. He said his son stopped talking to him.
160Mr H deposed that it was his understanding and clear to him that the uncle is more interested in legally remaining permanently in Australia than being the legal guardian of the children, being the ones who will be the medium to facilitate his long dreamed desire to obtain his permanent residency.
161He said the uncle is a good person with a good heart who tries to walk in the right line, but he is badly orientated by which he meant, he is very easily led, specifically in relation to his application to care for the children. Mr H said this is led by the maternal grandmother.
162Mr H did not think the uncle would be a good carer for the children as he is not mature and does not discipline Child D. In his view the aunt is a good mother, but she and the uncle spoil Child D. Mr H did have a relationship with Child E, although he does not do so now.
163Mr H deposed to the uncle having opportunities, but not completing courses in which he enrolled including medicine, physiotherapy and pharmacy.
164Mr H said that the children should stay in the care of the grandparents for two reasons:
•They have experience. The grandfather was [an employee] in Government Department A, a highly qualified person who financially can support three children, including schooling and health; and
• if the children go to the care of the uncle, he will have four children in his care. At that time, he did not have a job. He lacks maturity and he lacked interest in employment which Mr H found for him.
[Ms T]
165Ms T deposed that the father and the mother were her close friends. Their children played together and continue to do so.
166From her observations the parents were not close to the uncle and aunt.
167Ms T said Child A and Child D are very close. She deposed that when the maternal grandmother was in Australia with Child E the father said he would not trust and leave his children with her or the uncle and said he was concerned about the way the maternal grandmother was raising Child E.
168Ms T provided support to the grandparents and the children after the accident. Child A spent some time at her home during the holidays and in September 2020 school holidays the grandparents and the children spent a week at her home with their family and she lent them a motor vehicle. She deposed the grandparents showed love and affection towards the children and the children towards them. She deposed as follows:
31.[Mr and Mrs Galipo] showed love and affection towards the children and the children towards them, often disputing for their attention between themselves. [Child C] and [Child B] are very close to [Mrs Galipo] and when she is not near them, I have observed [Child C] looking and sometimes crying until he sees [Mrs Galipo]; and [Child B] calling out for her or [Mr Galipo]. [Child A] is older and a little more independent, but I have seen him also showing affection towards his grandparents.
169On two occasions as a friend she accompanied the grandparents to see a doctor for the children.
170Ms T said she observed the aunt interacting with the children and described her as aggressive. Ms T deposed the aunt said to her after the funeral that she could not see herself looking after the children but would do so for her husband.
171She recalled reprimanding the uncle and aunt about the inappropriateness of an invasion of privacy after learning that the aunt had accessed the grandmother's mobile phone and passed on some private messages to a friend.
172She was distressed when she said she will do anything for the children wherever they live. She plans to visit her family in Country A and would visit the children there. Her house is open to the grandparents if they visit Australia.
[Mr U]
173Mr U was born in Country A. He has three children aged eight, four and two years. He had known the parents for more than seven years and they were close family friends. The family lived in a house adjacent to his and their children played together daily.
174Mr U and his wife and the parents supported one another, caring for and supervising their children. Mr U deposed to a difficult relationship between the parents and the uncle. He said he got on alright with the uncle although they were not friends.
175Mr U deposed to an incident when Child E held down the child of one of their friends, rubbing an iPad between the cheeks of the boy's bottom. He reprimanded Child E for this and told him it was inappropriate and informed the boy's mother of the incident. He deposed to another occasion when the children were playing on the trampoline Child A shouted that Child E was trying to grab his penis. He told the children to get off the trampoline and Child E to stop doing this. He did not tell the maternal grandmother or the uncle of the incidents as he thought they were suffering enough and he did not want to bother them.
176Mr U deposed the maternal grandmother and uncle learned of the court orders on the evening of the funeral. He deposed he overhead the uncle say to the maternal grandmother words to the effect of "Shut up mum, I told you that we both need to work as a team".
177Mr U said when the uncle and aunt were living in the house they got on well with the children and Child D and Child A got on well.
178He is supportive of the grandparents. He and his wife visit them once a week and continue to help them with the children. The grandparents have never asked for help with either cleaning or looking after the children. They have not complained of depression or physical pain.
179If the children are in Australia, Mr U and his wife would visit them. He would provide help to the grandparents if they came to Australia to visit.
[Mrs U]
180Mrs U is [Mr U’s] wife. She was an honest witness who was a good and accurate historian.
181Mrs U confirmed her friendship with the parents. Prior to the accident the families spent time together every day. Theirs was a close relationship.
182She met the grandparents at the end of 2019 and she had known the maternal grandmother since about 2016. She spoke positively of the uncle and aunt in their interaction with the children. She said Child A and Child D were very close.
183Mrs U expressed concern that the uncle and aunt have used this tragic event for their personal advantage to change their lives and fulfil their dream to live in Australia. She deposed she heard them talking about who would keep the money and how they would spend it. She deposed to the uncle, the maternal grandmother and Child E making plans about living in Australia and asking how much the mortgage is. She was critical of Child E’s behaviour towards the younger children.
184Mrs U deposed to the mother having confided in her about a difficult relationship she and the father had with the uncle and aunt. She deposed to the father's comments about the uncle having no goals, future plans for himself or his family and not completing his university degree. She deposed that the father said his brother-in-law never worked hard for anything, was dependent on others and had expectations of his wife. She deposed to a close relationship between the mother and the grandmother, and said they shared a close bond.
185Mrs U said Child A does not talk much about his feelings. Child A is quiet and enjoys his PlayStation. Child B runs to the grandparents and asks a lot about his mum. Child B runs and jumps around and is very close to the grandfather. Mr U described Child C as a very cute, happy and healthy child who is crazy about the grandmother, not leaving her at all.
186Mrs U has developed a strong bond with the grandparents and considers them as family. The grandparents never asked for help, but after the accident she went to the home every day to see if they needed anything. She helped with transport to medical appointments and on a few occasions, she took Child A to school. Since June or July of 2020, the visits have reduced to two or three times a week. Mrs U has discussed the grandparents' plans for bringing up the children in Country A. She described them as healthy, respectful, caring and loving people who have demonstrated a capacity and willingness to continue in their full-time role and care of the children. She has no concern about the physical welfare of the children in the care of the grandparents.
187Mrs U was not supportive of Child B going to day care last year. She discussed with the grandparents that it would be very difficult for them to get to the day care in Suburb E. She was not able to be responsible for transporting him and she did not know if the uncle could do so.
188If the children live with the uncle Mrs U wishes to continue to have a relationship with them and she did not think he would prevent that. If the children go to Country A she will keep in contact by Skype or WhatsApp.
Mrs H
189Mrs H is 43 years of age. She is married to the maternal grandfather. She is a lawyer in Country A.
190Mrs H said the last time she saw the uncle was when he came to their home in February or March 2019 when he and the aunt stayed at her house for just over a month with Child D.
191The last time she spoke to him was on the day of the accident when she rang him to offer her help and support for him to get to Australia. Her conversations with him stopped when she and the maternal grandfather found out about these proceedings because their opinion about the proceedings differ. Mrs H said she had a friendship with the aunt, but subsequently the aunt blocked her communication.
192Mrs H said she knows the uncle and aunt very well and she knows they are not responsible enough to look after the children. She said the uncle is a good man, but he is lost about his future. She described him as living in a world of fantasy and he does not think he has to work hard and pay the price to achieve something in the future.
193Child E lived with Mrs H and the maternal grandfather for six months in 2015. The mother was grateful to her and the maternal grandfather for looking after Child E. Mrs H deposed Child E had some strange behaviours and that the school had contacted her informing her that Child E had been acting out sexually on other children at school. She does not now communicate with the maternal grandmother.
194Contrary to the uncle's position outlined below, Mrs H deposed that the aunt cannot return to Country A until she pays an overstaying of visa fine of [$]10,000.
195Mrs H said she did not know the grandparents prior to the accident, nor had she visited Australia. Now Mrs H speaks with the grandfather occasionally and with the grandmother all the time regarding the wellbeing of the children. At the moment her relationship with the children is only through videos and information from the grandmother.
196Mrs H said that they are united to look after the children and that she and the maternal grandfather would spend time with the children when they are in Country A. Mrs H said it is important that the children have a relationship with the maternal grandmother. If the children ask her about the uncle, she would say he loves them very much.
Ms M
197Ms M is the grandparents' daughter. She has two children aged 11 and 15 years. They live with her and she shares care with their father from whom she is separated.
198The last time Ms M saw the parents was when they spoke on video at New Year and prior to that when they were in Country A. She has only met Child A. By way of video and WhatsApp she speaks to her parents regularly and lately every day. The boys are often involved in that conversation.
199Ms M deposed that after the accident the uncle contacted her to inform her of it and she deposed that he delivered the news to her in a very cold manner and commented on the opportunity he had to return to live in Australia.
200Ms M said she was not told of any health issue of her parents after the accident. She was asked about her mother having depression and she said she knew her mother took tablets because she was affected. When asked if her mother had told her she finds it difficult emotionally, she described her mother as a very strong woman. She had not been told that her mother had needed and will need assistance in household tasks, but she will help her parents and is ready to do so. If her parents need assistance, she can help taking the children to school. Ms M lives about five kilometres from her parents' house.
201Ms M is [an education assistant] . She is working from home and the classes are happening through video. The complex that her parents live in is a gated community like many others. There is a pool, barbeque and other facilities. The gates are there for security and she said that is normal. She described it as a private area, very important and a high‑class area.
202Ms M said if the children remain in Australia she will continue with the conversations and if possible, she would visit them.
Mr Christie
203The uncle was a cooperative and courteous witness. He was pleasant and I consider he is a good and well-meaning person. I formed the view from his evidence about his past that he previously lacked direction in his life.
204The uncle studied pharmacy for one and a half years but did not complete the course. He went to [Country D] to study [accounting], but he did not complete that course. He explained it was very difficult to study accounting in Country D when he did not know the language. He returned to Country A and studied [marketing], but he did not complete the course. Between 2008 and 2011 he completed a [business] course. In 2012 the mother invited him to go to Australia. He was not working at the time and had applied for various jobs but without success.
205The uncle did not agree with the maternal grandfather's opinion of him. The uncle said it makes no difference to his visa status if the children are with him or not.
206In Australia the uncle had a student visa. He studied English and worked in a [shop]. He met the aunt and they married. Child D was born in Australia. He did not consider returning to Country A which he described as a hard, unsafe and terrible place.
207The uncle remained on the student visa for seven years. He had to leave Australia in January 2019 as he had not applied for a visa to remain in the country and decided to return to Country A with his family.
208When in Country A the aunt overstayed her visa and had to leave the country. They went to Country B in August 2019, where Child D started school.
209The uncle said there was a fine for the aunt overstaying her visa. He said in Country A if one waited long enough, after five years the fine would be extinguished. This was not consistent with the evidence of Mrs H. The uncle said the aunt can go back to Country A and she stopped in Country A after leaving Country B on her way to Australia. She left the airport and nothing came as a consequence of not having paid the fine. In evidence it was stated that although unnecessary to do so, the maternal grandmother paid the fine this year.
210The uncle's evidence as to how he supported himself after leaving Australia was confusing. He lived on savings and/or superannuation.
211The uncle intended to move to Country A in January 2020 and from there obtain a [Country E] passport. While there he would be supported by the aunt who was working in Country B. He intended to bring his family to Country E as he thought that was a good way to get citizenship in Australia. Ultimately his plan was to return to Australia, and he said it was easier to get into Australia with a Country E passport. He did not apply for a Country E passport because the accident happened.
212The uncle said his family plan was never to be in [Continent A]. He described it as a dangerous continent. He said it is not safe for any family although his mother lives there with Child E. His father and the grandparents also live in Country A. He said that if the children lived in Country A, he would not go back there to live, only to visit.
213The uncle flew to Australia with the maternal grandmother and Child E. Friends paid for his ticket. They stayed at the family home with the grandparents and the children. The children knew the uncle but he did not know the grandparents.
214The uncle was involved in the children's care when he was living in the house. He spent time with Child C in the hospital and when he could he took Child A to school and took Child A and Child D to sporting activity A. He attended medical appointments for the children.
215After July 2020 the uncle spent time out of the house during the day when Child A went to school and returned in the evening. From September when the aunt started working in Town A, she stayed at the family home on Thursday and Friday and then the uncle and his family spent Saturday nights at a friend's house. From there the aunt returned to Town A on Sunday and the uncle returned with Child D to the family home on Monday. Child D was home schooled. After moving out of the family home in December 2020 and prior to getting a job the uncle lived in Town A from Sunday to Friday for a period of months and when he and his family travelled to Perth to see the children they stayed with Ms Q.
216After the aunt's accident in November she was very stressed and the doctor recommended she move out of the family home. At the beginning of December, the uncle, aunt and Child D stopped staying overnight there altogether.
217The uncle said when he arrived in Australia he tried to speak to the grandfather about the children, but the grandfather said they would talk later. Ultimately, they did not discuss the children's arrangements until about a month after he had arrived when the grandfather showed him the court papers. The uncle filed his documents on 17 February. He did this because he said the grandfather told him that he had guardianship and the uncle would have to ask permission to take the children out.
218The uncle alleged from February 2020 to present the grandparents have restricted his and the maternal grandmother's time with the children. He deposed the grandfather is "actively trying to destroy [Child A’s] relationship" with him and the aunt. He deposed the grandparents banned the uncle and aunt from spending time with the children and taking them out.
219The uncle said the mother used to work at the day care in Suburb E and they offered a place for Child B free. He offered to take Child B, but the grandfather said it was too far. He said the grandfather did not want to spend money on petrol and they thought the proceedings would be over quickly.
220In the uncle's case information affidavit, which became exhibit 12 he referred to "When we return to [Country A]". This is a reference to the children returning to Country A to live with him and the maternal grandmother. It was put to him that it was his intention to return to Country A. He said at that time he did not have a visa and if he could not stay in Australia, he would go back to Country A. Contrary to his earlier statements about Country A he then said it is a good country, although its economy is not good.
221As to the funds raised the uncle explained that in his view the money was for the four children and that Child E had been excluded. He said the grandfather did not want to involve Child E.
222In January 2021 the uncle and the grandparents agreed that Child A and Child B would spend the first three weekends in every four with the uncle and the fourth weekend with the grandparents. Child C would spend the first and third Saturday between 10.00 am and 4.00 pm with him. In the second weekend Child C would spend overnight time from Friday to Saturday 4.00pm with the uncle.
223The children currently spend time with the uncle regularly. The uncle described an enjoyable time with the children. He said all of the children are happy in his care and Child C is happy to be with his brothers. He described an enjoyable weekend with other friends, including children at [Location A] at Easter and he organised a joint birthday party for Child A and Child D. Child A was invited to a school friend's party later that day and the aunt took him to it.
440There have been difficulties between the parties in circumstances which were extremely difficult. After the loss of the children's parents, the parties lived under one roof and yet competed in Court proceedings for orders in respect of the children.
441The children have maintained a close and loving relationship with the uncle, the aunt and Child D and this indicates that the grandparents have not failed to encourage or promote that relationship. In December 2020 orders were made for the children to spend time with the uncle. Subsequently by agreement of the parties a further arrangement was made extending the time the children spend with the uncle, including overnight time for Child C.
442Ms F reported that the grandfather said he shares a "diplomatic" relationship with the uncle and aunt and that they try to communicate in a respectful manner. She reported he believes it is important to have a relationship with them as he knows the children love them and enjoy spending time with them. He is always willing to compromise or change days as needed. Ms F reported that the uncle said the amount of conflict between him and the aunt and the grandparents has decreased significantly since they moved out of the house. He said he and the grandfather communicate about issues relating to the children and they keep handovers business like and cordial.
443I consider the grandparents and the uncle were sincere when each explained how they would facilitate the children's time with the other.
444I consider that once these proceedings are concluded and there is some certainty in the children's arrangements, both the grandparents and the uncle who are motivated by what is in the children's best interests will promote and encourage the children's relationship with the other members of their family.
445The children have been cared for by the grandparents in the most difficult circumstances including the deaths of their son and daughter in law which they witnessed, living in a country which is not their home and practical difficulties including language and transport. In saying that I have not overlooked that the uncle and maternal family also cared for the children although to a lesser extent after the aunt moved to Town A. Notwithstanding these difficulties the children are all doing well as reported by Dr A. Ms F also reported the children were progressing well. This is largely to the credit of the grandparents by reason of the children's attachment to them and their primary care of the children. It is a good indication that they are capable of providing for the needs of these three young children now and in the future.
Background and characteristics of the children
446Child A was born in Country A. Child B and Child C were born in Australia. All three children are Australian citizens. The children hold dual citizenship with Country A.
Any other fact or circumstance that the court thinks is relevant
447The grandparents' commitment to the children is readily apparent. They have remained in Australia since the accident. They have not returned to their home in Country A, to their friends, family and work commitments. Instead they have devoted the last 18 months to the care of the children.
448The uncle's commitment to the children is also readily apparent. He has continued to assist the grandparents in practical ways notwithstanding his complaint that he was excluded from important matters in relation to them. The children have consistently spent time with him.
449It may be suggested that the uncle's motive in seeking care of the children was at least partly driven by his desire to remain in Australia. The uncle said whether or not the children are in his care would have no effect on his visa.
450Having regard to the grandparents' and uncle's clear and unquestionable commitment to the children and the close bond the children share with each of them, I can be satisfied that the children's relationship with each of them is a meaningful one and it is to their benefit that it continues.
451Dr A said the children would need ongoing monitoring of their functioning into the foreseeable future. Child A and Child B were close to being discharged from the Program and will have to access community mental health services once these proceedings are concluded. Ms F said Child A would be assisted by counselling or psychological support as he is older and although Child B is very young she would recommend it for him. Ms F said whatever the outcome the children should have some preparatory psychological counselling sessions with Dr A to assist them with the transition. Similarly, Dr B reported that if Child A relocated to Country A he would likely need to see a paediatric psychologist by reason of the transition. Dr B reported Child B could be reviewed by a child psychologist in the future. Dr B reported Child C was progressing well from a neurological and development perspective and only required yearly reviews moving forward. He recommended if Child C was to relocate to Country A he should be referred to a neurosurgical team and monitored by a paediatric rehabilitation team.
452In the context of travel or face-to-face time being an issue, counsel for the ICL submitted I could take judicial notice of what is happening in the world. She did not elaborate on this.
453Counsel for the uncle suggested that I could take judicial notice that Country A has struggled with the pandemic, extraordinarily high daily figures of death and infection and that I could infer that there would be a lot of difficulty for a family from Country A to come to Australia for a holiday. She submitted there was no "flagged" end in sight in relation to the pandemic, international travel and what the Australian Government's attitude is going to be in that respect and what Country A will do about it.
454Counsel for the applicants submitted there was a limit to the extent that I could take judicial notice of what was going on in the world and certainly not in Country A. Counsel submitted that I should know it is a significant country with a significant economy from where parties involved in these proceedings have come, being educated, and decent people.
455The impact of the COVID-19 pandemic cannot be ignored. I am able to take judicial notice that there is a pandemic and there are current prohibitions against international travel. However, there was very little evidence about the pandemic in Country A and its impact in that country. It was not a basis for the ICL's or the uncle's opposition to the children living with the grandparents in Country A. The ICL made no mention of the pandemic in the definitions and recitals which precede her proposed final orders. I was not referred to any publications of which I could take judicial notice. No expert evidence was provided to me.
456The matters of which I was asked to take judicial notice being those pertaining to the pandemic in Country A are matters which are reasonably open to question and matters on which expert opinion may differ. These are matters about which I am not able to take judicial notice.
457Concerns have been raised by the grandparents about risks associated with the children spending time with Child E, their half‑brother, after allegations that he behaved in a sexually inappropriate manner when in Australia. The maternal grandfather's wife also referred to such behaviour. In contrast the uncle had no concerns about Child E’s behaviour. If the children live with the grandparents in Country A they are likely to spend time with Child E in the company of the grandparents. If the children live with the uncle in Town A, they are likely to spend time with Child E, when Child E and the maternal grandmother visit Australia. As reported by Ms F the exact nature of Child E’s issues are unclear. As a precaution, I accept her recommendation that the children be supervised by adults when interacting with Child E in the future.
CONCLUSIONS
458I am satisfied it would not be in the best interests of the children for the parties to have equal shared parental responsibility for them having regard to the effect of such an order as set out in s 65DAC of the Act.
459The ICL appears to be of the same view as she proposes the uncle have sole parental responsibility for the children.
460The evidence demonstrates that although the parties are reasonably cooperative, they have not made decisions concerning the children jointly. An order was made until further order that the grandparents have parental responsibility for the children and they have demonstrated a child focused attitude towards making decisions about long-term issues concerning the children.
461As discussed below upon the evidence I have concluded that it is in the best interests of the children to live with the grandparents and consequently that they be permitted to relocate them to Country A.
462Having determined that the children will live with the grandparents, I intend to order that the grandparents have parental responsibility for them. I consider such an order to be in the best interests of the children. The grandparents will be best placed to make decisions about long-term issues including those pertaining to the children's health which should be made promptly and with the benefit of the grandparent's local knowledge and advice. Having regard to the distance between the parties it is not practicable to consult particularly if a decision requires to be made urgently. The grandparents must keep the uncle informed of any decisions made by them concerning the children's long-term care.
463The proposals of both parties involve significant changes for the children. The grandparents propose that the children live with them in Country A. The uncle proposes that the children live with him in Town A.
464It is a significant undertaking for the grandparents to assume the care of three young children. They have a demonstrated history of the primary care of the children. It is a significant undertaking for the uncle and the aunt who have one child already, to have three more young children in their care. The uncle is untested as their primary carer. I have found that both the grandparents and the uncle have the capacity to provide for the children's needs. The grandparents are well resourced financially. The uncle intends to work and to support four children with his income and that of the aunt.
465If it is ordered that the children live with the grandparents, their circumstances would remain unchanged in that that they would remain in the care of the grandparents who have looked after them continuously since their parents died. They would remain in the care of their primary attachment figures.
466If the children were to live with the uncle, they would maintain their close relationship with him, a relationship which is a significant one but not the primary one. There is a positive foundation to that relationship which the grandparents have encouraged and I consider they will continue to do so. The children would be separated from their primary attachment figures and this gives rise to the need for careful consideration of the consequences of that occurring.
467Tragically the children have lost their parents. Since then they have been cared for by the grandparents and to a lesser extent by the uncle. The severance of their attachment to the grandparents would result in further loss and grief to the children. Ms F said being separated from the grandparents will have a significant impact on the children in the short-term as described above. In young children it can be difficult to predict the long-term effects of such an event, however Ms F was of the view a separation from the grandparents had the potential for a long-term impact.
468If the children live with the grandparents and relocate to Country A their relationship with the uncle and his family would be impacted.
469I accept Ms F’s opinion that a separation from the uncle would not be as great a loss to the children as a separation from the grandparents.
470There are changes and challenging facing the children if they live with the grandparents and move to Country A. They will live in a new country, attend a new school and meet relatives who they do not know. Their environment and circumstances would be very different. What would remain constant and stable for them would be their attachment to the grandparents and the care provided by them. There are changes and challenges facing the children if they live with the uncle and move to Town A. They will live in a new town, attend a new school and become part of a new community. Similarly, their environment and circumstances would be very different. The children would not however have the continuity of the attachment to the grandparents to assist them to adjust to the changes or be a protective factor as was described by Ms F.
471In my view an outcome which avoids the severance of the children's primary attachments and the possible adverse consequences of that is in their best interests. I consider the benefits to the children of remaining in the primary care of their grandparents outweigh the benefits to them of living with the uncle and his family.
472I am mindful that the ICL proposes that the children live with the uncle. In my view this proposal does not give sufficient weight to the evidence as to the children's attachment to the grandparents and the impact upon them of a separation from their primary attachment figures. The ICL's proposal is contrary to the opinion of Ms F. I agree with the opinion of Ms F as it accords with my own.
473Having considered the evidence carefully and having regard to my findings with respect to the s 60CC matters as set out above, I have concluded it would be in the best interests of the children to live with the grandparents. The grandparents' home is in Country A. It follows that the grandparents will have permission to remove the children from Australia to Country A.
THE PROPOSED ORDERS
474Subject to hearing from counsel, I propose to make the following final orders.
1All previous parenting orders be and are hereby discharged.
2The Australian Federal Police be requested to remove the names of the children, [CHILD A] born [in] 2013, [CHILD B] born [in] 2016 and [CHILD C] born [in] 2019 ("the children"), from the Family Law Watch List operating at all international ports in Australia and the Applicants, [MR GALIPO] and [MRS GALIPO], do supply the Australian Federal Police with a sealed copy of this order.
3The children live with the Applicants.
4The Applicants be permitted to relocate the children from the Commonwealth of Australia to [Country A].
5The Applicants have joint parental responsibility for the children.
6The children communicate with the Respondent, [MR CHRISTIE] as agreed between the parties.
7The children spend time with the Respondent as follows:
(a)each alternate year commencing 2022 for a period of four weeks in [Country A]; and
(b)each alternate year commencing 2023 for a period of four weeks in Australia with the Applicants to accompany the children to Australia.
8The time the children spend with the Respondent during the four-week period be as follows:
(a)in Australia:
(i)to commence at 9.00 am until 5.00 pm on the second day after the arrival of the children in Australia for the first 3 days;
(ii)thereafter for the remaining period that the children are in Australia with the children returning to the Applicants 24 hours prior to their departure from Australia; and
(iii)upon [Child C] attaining the age of six the children spend time with the Respondent from 9.00 am the day following their arrival in Australia for the period that they are in Australia with the children returning to the Applicants 24 hours prior to their departure from Australia.
(b)In [Country A]:
(i)to commence at 9.00 am until 5.00 pm the day after the Respondent's arrival in [Country A] for the first 3 days;
(ii)thereafter for the remaining period that the Respondent is in [Country A], and with the children returning to the Applicants 24 hours prior to the Respondent's departure from [Country A]; and
(iii)upon [Child C] attaining the age of six the children spend time with the Respondent from 9.00 am the day following the arrival of the Respondent in [Country A] for the period that the Respondent is in [Country A] with the children returning to the Applicants 24 hours prior to the Respondent's departure from [Country A].
9During the time the children spend with the Respondent the children communicate with the Applicants on one occasion per week.
10In the event the Respondent is residing in [Country A] the children spend time with the Respondent as agreed between the parties.
11The children communicate with the Respondent at all reasonable times by electronic means, including special occasions such as the children's birthdays and Christmas.
12The costs of the children spending time with the Respondent be as follows:
(a)the Applicants pay the return air fares of the children to travel to Australia; and
(b)the Respondent pay for the cost of the time he spends in [Country A].
13The children spend time and communicate with the Respondent other than as set out in these orders provided such variations are agreed in writing.
14The Applicants be at liberty to file with the competent Family Court in [Country A] a copy of the final order made in the Family Court of Western Australia.
15The parties each be at liberty to provide a copy of these orders to the Australian Passport Office, the Department of Immigration and [Country A] Consular authorities.
16The parties do all things and acts and sign all documents necessary to give effect to these orders.
Procedural orders
17Subject to the institution of an appeal by any parties or the Independent Children's Lawyer, the Independent Children's Lawyer be discharged.
18All extant applications be and are hereby dismissed.
19All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
20In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today's date;
(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits; and
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.
21In the event of an appeal being lodged prior to the expiration period of 42 days, orders 20 and 21 above do not apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate
5 AUGUST 2021