Garde and Homer

FAMILY COURT OF AUSTRALIA

GARDE & HOMER

[2011] FamCA 39

FAMILY LAW – CHILDREN – Relocation of children from New South Wales to Singapore or Hong Kong – whether in the children’s best interests to be relocated to either Singapore or Hong Kong – significance of Singapore not being a signatory to the Hague Convention – equal shared parental responsibility – time to be spent with a parent – expert evidence

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65AA

U & U (2002) FLC 93112
R & R (2000) FLC 93-2000
MRR & GR (2010) FLC 93-424

APPLICANT:

Mr Garde

RESPONDENT:

Ms Homer

FILE NUMBER:

SYC

6817

2007

DATE DELIVERED:

28 January 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rose J

HEARING DATES:

24 & 25 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	P Hanna
SOLICITOR FOR THE APPLICANT:	McDonell Milne Toltz
COUNSEL FOR THE RESPONDENT:	D Burwood

Orders

That the parties have equal shared parental responsibilities with regard to long-term decisions relating to the care, welfare and development of the children.
That the mother have sole responsibility for making day to day decisions in relation to the care, welfare and development of the children while they are with her.
That the father have the sole responsibility for making day to day decisions for the care, welfare and development of the children while they spend time with him.
That the children of the marriage T born … March 1996 and G born … June 1999 (“the children”) may reside with the mother and relocate with her to Singapore.
That the father promptly do all acts and things and sign all documents submitted to him by the mother to enable the children to be granted visas to reside in Singapore with the mother as school students and to be enrolled at the International School, Singapore.
That the Australian Federal Police is requested to remove the names of the children T born … March 1996 and G born … June 1999 from the Airport Watch List at all points of international arrivals and departures in Australia.
That the children spend time with the father as follows:
7.1If the father is living in Hong Kong:
7.1.1For up to a total period of four weeks each year in Hong Kong during gazetted school holidays.
7.1.2In school term in Singapore during the weekend upon the father giving the mother 14 days’ written notice PROVIDED THAT:
(a)it shall not be consecutive weekends;
(b)the father ensures that the children attend such sport and extra-curricular activities that the mother informs him have been previously arranged;
(c)the children may reside overnight with the father by agreement between the parties.
7.1.3Liberal telephone and/or any other electronic communication.
7.1.4At such other or alternative times in school holiday periods and in school term and in such places as may be agreed in writing between the parties.
7.1.5For the purpose of the children spending time with the father in accordance with Order 7.1.1 the father will provide the mother with at least two months written notice in advance of the time he proposes to spend with the children during the school holidays.
7.1.6In the event that the father elects for the children to spend time with him in Hong Kong in accordance with these Orders the father and mother will be equally responsible for the children’s travel costs including return airfare tickets and transfers.
7.2If both parties are living in New South Wales, Australia or Singapore:
7.2.1Each alternate weekend from 6.00pm Friday to 6.00pm Sunday during school term.
7.2.2For up to half of the school holiday period as agreed between the parties in writing and failing agreement for the first half of each school holiday period in even numbered years and for the second half of each school holiday period in odd numbered years.
7.2.3On the children’s birthday when they are living with the mother:
(a)In the event that the birthday falls on a weekend for four hours as agreed between the parties in writing and failing agreement from 9.00am to 1.00pm that day.
(b)In the event that the birthday falls on a weekday:
(i)by telephone between 5.00pm and 6.00pm such communication to be initiated by the father telephoning the mother’s place of residence or the mother’s mobile number;
(ii)for four hours on the Saturday immediately following the birthday as agreed between the parties in writing and failing agreement from 9.00am to 1.00pm that day.
7.2.4 On Father’s Day from 9.00am to 6.00pm.
7.2.5From 9.00am to 1.00pm on Christmas Day commencing in odd numbered years and from 1.00pm to 5.00pm on Christmas Day in even numbered years.
7.2.6Liberal telephone and/or any other electronic communication.
7.2.7At such other times as may be agreed between the parties in writing from time to time.
That the Orders made this day providing for the children to spend time with the father are suspended on Mother’s Day when the children shall be in the care of the mother unless otherwise agreed between the parties.
That the time spent between the children and the father pursuant to these Orders is conditional upon the father being personally available to care for the children during all care periods.
That in the event that the father is not personally available to care for the children in excess of four successive hours when the children are due to spend time with him in accordance with these Orders the father will provide the mother with the first opportunity to care for the children prior to making any other alternate arrangements.
That in the event of the father spending time with the children in Singapore he shall collect them from the mother’s residence at the commencement of such time and return the children to the mother’s residence at the conclusion thereof unless otherwise agreed between the parties.
That each party keep the other informed of their current residential address and provide the other with written notice of any change in their residential address, email address and telephone numbers including mobile telephone numbers within 48 hours of any such change.
That while the children are in the respective care of either the father or mother pursuant to these Orders each party will:
13.1Forthwith notify the other party in the event that any of the children are affected by serious illness, sustain a serious injury or require medical attention.
13.2Refrain from discussing the evidence in these proceedings with or in the presence or hearing of the children and from allowing any other person to discuss these proceedings with or in the presence or hearing of the children.
13.3Refrain from denigrating the other party or that party’s partner to or in the presence or hearing of the children.
13.4Facilitate the children having telephone communication with the other party in the event any of the children requesting to do so during periods when any of the children are in the care of either party.
That in the event the father and/or the mother propose to travel interstate or overseas with both or either of the children while they are in their respective care then each party will provide to the other party:
14.1at least one week’s advance written notice of their intention to travel interstate and at least two week’s advance written notice of their intention to travel overseas while the children are in their respective care pursuant to these Orders;
14.2written confirmation that any travel overseas will be limited to countries which are a party to the Hague Convention or to countries where the courts follow the Hague Convention;
14.3a copy of the itinerary showing the destination, departure and return date; and
14.4accommodation and contact details for the proposed travel interstate and/or overseas.
That if either party refuses or neglects to sign any document necessary to implement these Orders within seven days of being requested to do so then a Registrar of the Family Court of Australia is appointed to execute any such document on behalf of that party.
That pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexures A and B included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Garde & Homer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC6817 of 2007

MR GARDE

Applicant

And

MS HOMER

Respondent

REASONS FOR JUDGMENT

By his Amended Application for Final Orders filed 21 December 2010 the father sought parenting orders in relation to the two children of the parties:
(a)T, 14 years of age born in March 1996 (“T”); and
(b)G, 11 years of age born in June 1999 (“G”)
(hereinafter referred to as “the children”).
The substance of the orders sought by the father is that the children live with him in Hong Kong and spend periods of time with the mother whether she resides in Singapore, Hong Kong or Sydney.
In addition, the father sought an order for equal shared parental responsibility in relation to the children.
Whilst equal shared parental responsibility is not an issue so far as the parties are concerned, and arguably unnecessary to seek such an order given that Order 14 of the Orders made by consent on 10 December 2007 remain current, nonetheless, it was appropriate to seek such an order given that the mother is seeking to relocate with the children to Singapore and the father seeking orders that the children reside with him in Hong Kong.
The father sought orders in relation to the child support agreement previously entered into by the parties as well as property orders which were characterised by his counsel as being “enforcement” of property settlement orders.
Those two issues were not before me for determination.
The mother opposes the orders sought by the father.
By her Response to Final Orders filed 26 October 2010 the mother sought orders to enable the children to live with her in Singapore and for periods of time to be spent by them with the father whether he lives in Hong Kong or New South Wales.
The context in which the proceedings were instituted is that the mother seeks to relocate with the children from Sydney to live in Singapore with her partner, Mr S. For the past four years the children have lived with the mother in Sydney. During that time and to date the father has lived in Hong Kong where the parties and the children previously cohabited from January 2003 until September 2006. Ultimately the mother and the children left Hong Kong to reside in Sydney in December 2006.

Historical Background

The following are further brief relevant historical matters of no controversy.
The father is 49 years of age an employed as a banker by a bank in Hong Kong. He lives with Ms A who is 46 years of age and employed as a senior merchandiser. The father and Ms A have permanent residence in Hong Kong.
The mother is 44 years of age and employed as an administrative manager in Sydney.
Mr S, the mother’s partner with whom she has been living with in Sydney until October 2010, moved to Singapore to take up permanent employment in the employ of what appears to be a subsidiary of an American company.
The parties married in 1993.
The parties separated in September 2006.
In 2007 the mother formed a relationship with Mr S.
On 10 December 2007 the consent orders were made in relation to parenting and property settlement matters.
On 16 December 2007 the marriage was dissolved by a decree.
In mid-2008 the father formed a relationship with Ms A.
In April 2009 the children, the father and Ms A attended a family wedding in Australia and spent a week travelling around New South Wales and Canberra.
In July 2009 Mr S moved from the United States to live with the mother and children in her home in Sydney.
In December 2009/January 2010 the children, together with the father and Ms A, spent time together in Lismore and the Gold Coast.
In July 2010 the children, the father and Ms A travelled to Lismore to attend the father’s brother’s birthday and then travelled to Goulburn.
In July 2010 Mr S was offered the position he has taken in Singapore.
In the latter half of 2010, and prior to the institution of the current proceedings, the mother informed the father of her intention to remove the children from the school that they had been attending, namely W School, and relocate to live with them in Singapore. The father informed the mother that he did not provide consent and would seek legal advice.
On 1 October 2010 there was an unfortunate incident at the home occupied by the mother and the children involving the father and Mr S. They each gave evidence of the events on that occasion. At issue was the question of whether or not the father would sign relevant documents referred to as “consent” to the children leaving Sydney with the mother to live with her in Singapore. It matters not, in terms of the significant issues for determination, as to whose version of events is more reliable. Regrettably, the event occurred and T was visibly upset.
In October 2010 the children spent time with the father holidaying in Queensland.
On 20 December 2010 upon the listing of the father’s interim application, and the interim orders sought by the mother in relation to her proposed relocation with the children to Singapore, and after hearing submissions by counsel, I made orders appointing by consent Ms B, psychologist as the single joint expert for the purpose of preparing a report in relation to the children and addressing the issues set out in the document entitled “Minute of Directions”. I made ancillary orders to enable Ms B to complete her report as soon as possible. In addition, directions were made for the filing and service of an amended application and an amended response. Orders were also made requiring the solicitor for the mother to ensure that the children’s passports were delivered forthwith to the Registry Manager of the Sydney Registry, to be held in safe custody until further order.
Given the issues that arose for determination, it was obvious that a final hearing of the proceedings should be fixed on the earliest available date. That was an approach agreed to by counsel for the parties. As a consequence, the final hearing of the proceedings was set down for two days commencing at 10.00 am on 24 January 2011.
On 20 December 2010 various undertakings were noted. Amongst the notations were that counsel for the father informed me that it was unlikely that the expert witness in relation to Singaporean law with reference to the Hague Convention would be required for cross‑examination. In addition, it was noted that the solicitor for the father may furnish that witness with a list of questions to be answered in relation to the Affidavit sworn by the witness on 10 November 2010. Ultimately, the evidence of the last-mentioned expert witness was received and I was informed by counsel for the parties that the witness was not required for cross‑examination.

Relevant legal principles

The relevant legal principles in these proceedings include the following.
Section 60CA of the Family Law Act makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in s 65AA. For the purpose of determining what is in a child’s best interests, I am required to consider the matters in ss 60CC(2) and 60CC(3). I am required to also consider the object of the provisions of Part VII of the Act in relation to the children and the principles that underlie those objects. In substance, they include the benefit to a child of the parents having a meaningful relationship in their lives to the maximum extent consistent with the best interests of the child. It is important to note that the relevant provisions of the Act in relation to principles and objects and objectives, as well as rights of children and the benefits that they may receive from parenting by both parents, is subject to an important exception often not referred to. That exception is:
“When it is or would be contrary to a child’s best interests.”
To that extent, the amendments to the Act, which came into force on 1 July 2006 in relation to children, continue what has sometimes been described as “the over-arching principle” namely, that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
Section 61DA(1) provides a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) provides that presumption does not apply should one or other of the following grounds be established, namely, reasonable grounds to believe that a parent of a child has engaged in the abuse of a child or another child who was a member of the parent’s family, or family violence, or a further ground, that it would not be in the best interest of a child for the child’s parents to have equal shared parental responsibility for the child.
No issue was raised that there should not be an order for equal shared parental responsibility. I have previously referred to that matter.
Section 60CC(1) makes it clear that for the purpose of determining what is in a child’s best interests, I am required to consider what are described as primary considerations, as well as additional considerations. The exception is found in s 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings. The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect a child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
For the purpose of the primary considerations, it is necessary to make findings of fact, without which the conclusions that must be reached cannot be achieved.
Fortunately, in these proceedings the second primary consideration is not relevant.
Consequently, I propose to make findings of fact in relation to matters which are sign-posted in s 60CC(3) to the extent to which they are relevant in these proceedings.

The expert evidence

Before proceeding with such findings, I have considered the written and oral evidence of the single child expert, Ms B. Her written evidence is contained in a comprehensive and succinct report which became Exhibit 1. The Report is dated 13 January 2011 and followed interviews with the parties, their respective partners and the children.
Ms B was required to attend for cross‑examination and gave extensive oral evidence. I was impressed by both her written and oral evidence due to the sensitivity that Ms B displayed in relation to the relevant issues, the professionalism with which they were considered, and the manner in which her considerations were applied to her recommendations.
Accordingly, unless stated otherwise, I accept the totality of Ms B’s evidence which was not disturbed or shaken in relation to any significant aspect of it.

Section 60CC(3) matters

The number of matters that fall for consideration pursuant to s 60CC(3) are limited. That is fortunate so far as the parties are concerned, and in particular, their children. The matters considered were the subject of counsel’s submissions.
An illustration of the lack of controversy is that there is no issue that the parties have a loving and devoted relationship with the children. Each is bona fide and sincere in relation to the matters which have been put forward in their evidence and their proposals so far as the future care of the children. Indeed, no submission to the contrary was made.

At the heart of the factual issues for determination are the views expressed by the children and other relevant factors.
There is no doubt that, so far as T is concerned, her views are to continue to live with the mother and the living arrangement with the mother take place in Singapore. The real issue raised in relation to T’s views was whether or not such views were so influenced by the mother that little weight can be attached to them.
It is well established that the views expressed by children, who are no longer very young, may be given significant weight.[1]
[1] R & R (2000) FLC 93-2000
The evidence of Ms B is that T’s views, which are consistent with the mother’s desire to move, have “undoubtedly been influenced” by that wish. In addition, Ms B expressed the opinion that such influence was “as any children would in these circumstances”.
Great store was placed upon that particular part of Ms B’s evidence, which she reiterated during the course of her oral evidence. However, in doing so, counsel for the father did not refer to the next sentence in Exhibit 1, namely:
“Nevertheless, I consider that [T’s] wishes are consistent with her position in the current dispute and should therefore be given weight.”
In addition, G’s views are also recorded in Exhibit 1. In the circumstances of this case and having regard to the loving relationship that G has with both parents, Ms B recorded that:
“[G] does not wish to express what may seem like a preference for one parent at the expense of the other.”
It is noted that G is only 11 years of age and has lived substantially with the mother since separation. In those circumstances, Ms B concluded:
“It is likely that her needs would be best served by her continuing to live substantially with her mother and this would be consistent with her expressions to me about her mother.”
Whilst a number of questions were directed to Ms B in relation to T and the influencing of her views by the mother, little if any cross-examination was directed to that part of her report quoted above, so far as G is concerned.
Consequently, I have concluded that the children’s views are to continue to live with the mother, notwithstanding that her proposal is to live in Singapore.
So far as the children’s relationship with the parties and their partners, no issue arises.
As I have already found, the children have a loving relationship with each of the parties. It is clear from the undisputed evidence that they have a fond and affectionate relationship with the partners of both the father and the mother.
With regard to the issue of willingness and the ability of the parties to facilitate and encourage a close and continuing relationship between the children and the other party, again no issue was raised either in the evidence or during the course of submissions.
The only matter raised in this regard, is in relation to the father. Part of the father’s case was that the mother had a history of failing to consult with him so far as possible changes in the location of the children and her proposals for the future.
One of the matters referred to was the mother leaving Hong Kong with the children at the end of 2006 without prior notice to the father. The evidence, which I accept, is that the marriage had broken down a few months beforehand. The parties had lived separate and apart continuously since that time. It was common ground that the mother would leave Hong Kong with the children to commence residing in Australia.
Indeed, as the father has emphasised in evidence, the joint plan of the parties in the circumstances of the unfortunate breakdown of their marriage was that the children would live with the mother in Australia to provide, as they saw it, stability in their lives and their future education. The real issue was the practical circumstances of the mother leaving Hong Kong without the father having an opportunity to converse with them before they actually left.
The evidence is far from clear-cut on that particular matter. In my view, regardless of any finding of fact that might be made, it does not advance matters any further, having regard to the difficult determinations that I must make in January 2011, being a little over four years since those events took place.
It is significant that consent orders were made in 2007 providing for the children to live with the mother and for particular periods of time that might be spent by them with the father, apart from other issues that were compromised.
With regard to the likely effect of any changes in the circumstances of the children, including separation from the mother or other person with whom they have been living, this also lies very much at the heart of these proceedings.
The father’s proposal is that there be changes to the lives of the children.
Those changes include, but are not limited to: the children ceasing to live with the mother as their primary carer; the children coming into the primary care of the father, assisted by his partner; the residence of the children be changed from Australia to Hong Kong; and that they attend the appropriate school in Hong Kong where they had previously been enrolled some four years earlier.
A further change is, of course, that they will spend far less periods in the care of the mother than they have been accustomed. The mother has been their primary carer for the past four years.
An effect of the changes, which I accept, is that the children are likely to benefit from closer parenting by the father assisted by his partner, and in circumstances where both the father and his partner are permanent residents in Hong Kong.
There is no evidence before me to suggest that the physical circumstances in which the children might live in Hong Kong, as well as the education they may receive, have any adverse features to them.
One likely effect of such changes is that the children may be adversely impacted by no longer being in the primary care of the mother. That is consistent with the evidence given by Ms B, especially where G is concerned.
With regard to an adjustment in a change of physical circumstances by each of the children, Ms B expressed concerns as to any beneficial adjustment to living substantially without the mother. Indeed, Ms B’s opinion is:
“It is difficult to predict how they would adjust to living there with the proposed new arrangements. [T], on the other hand, may show resentment and strong opposition to living with the father in Hong Kong. The father’s evidence is that he considered there may be some difficulties initially but that she would soon settle down.”
The question that arises is, is it in T’s best interests to face such an emotional upheaval, notwithstanding that a tangible change of moving to Hong Kong, ignoring relationships with the mother and the effect that this might have upon the child, are matters which nonetheless can be considered as being in T’s best interests.
I have strong reservations as to whether such a proposal is in T’s best interests, let alone G, notwithstanding the acceptance by me of the evidence of Ms B, in relation to the influence that the mother has effected, where T’s views are concerned.
I should emphasise at this point that the evidence does not suggest that the mother was seeking to alienate both or either of the children against the father.
Notwithstanding the difficulties that this litigation has created, it is clear on the evidence that the children have continued to enjoy their relationship with the father as demonstrated by the various periods of time they have spent with him during last year and the beginning of this year in Australia, together with his partner.
With regard to the mother, there will also be changes which must be considered. Those changes include: moving from Sydney to Singapore; attending a different school; living in a different physical and cultural environment (as Hong Kong); and making adjustments that are necessary for such changes.
There is also the issue raised by the father as to whether or not the move to Singapore is likely to result in further moves in the near future, destabilising the children’s educational progress.
In relation to the mother’s visa status, currently she does not have a visa to reside in Singapore.
On one view of the evidence, the mother has an application for a visa.
On another view, there is a proposed application for the relevant visa, which in each instance involves receiving either the written consent of the father, so far as the children are concerned, and/or appropriate orders made by this Court.
Consequently, until such a visa is successfully sought, the children are not able to leave Australia to live in Singapore.
On the assumption that such a visa would be granted, the likely effect of any changes in the children’s circumstances, on the mother’s proposal, is that they would have to adjust to living with her and her partner in Singapore as well as adjustments to a different school and social network.
Neither the father nor the mother raised any issue as to any adverse consequences of the children attending the school proposed by the father in Hong Kong or the school proposed by the mother in Singapore.
Whilst issues arise in relation to the disruption of the children’s friendships with other children of their own age in Sydney, again there is an absence of evidence before me that the children are likely to suffer in making such relationship adjustments.
Indeed, the mother’s evidence, which I accept, is that electronic communication, including the use of Skype, will enable such adjustment to be effected more easily than would otherwise be the case. No doubt that could also occur in Hong Kong.
A further aspect of a possible change in the circumstances of the children revolve around the length of time that the mother and her partner will live in Singapore.
The mother has employment with her current employer and has accepted an offer of employment in Singapore, the particulars of which are set out in Exhibit 4.
It was strongly submitted to me by counsel for the father that the mother did not have an employment contract.
On the evidence before me, the mother does have an employment contract represented by the written offer of employment dated 30 September 2010 and the mother’s written acceptance of the offer being the documents comprised in Exhibit 4.
The fact that it is not documented in one document, as is customarily the case, does not detract from the fact that the evidence before me, represented by Exhibit 4 apart from the mother’s own written and oral evidence, makes it clear that she does have an employment contract. The terms of the employment reflected in Exhibit 4 provide for a commencement date of 13 December 2010, annual holidays, and the mother to be based in Singapore with a requirement to travel to other countries as necessary. The tenor of those documents makes it clear that this is not meant to be a short-term employment. No finite date given for the conclusion of such employment.
Consequently, it does raise the possibility that such employment may not be one which extends for some years into the future. However, it is not possible to come to a conclusion based on being reasonably satisfied as to what timeframe the length of employment is likely to be.
So far as the wife’s partner is concerned, his undisputed evidence is that he has been engaged in permanent employment in Singapore where he has resided since October 2010.
Counsel for the mother pointed out that there was an absence of evidence of the mother’s partner’s visa status and even raised the spectre of whether or not he might even be living and working in Singapore illegally.
In my view, the latter submission is without any objective and reliable foundation.
Counsel for the mother reluctantly agreed that if I accepted the mother’s partner’s evidence of being permanently employed in Singapore since October 2010, the inference can reasonably be drawn that he is living and working there on a legal basis, in accordance with the visa considered appropriate by the Singaporean authorities.
So far as the mother’s partner’s employment is concerned, whilst described as being “permanent”, it is not clear beyond doubt that such employment may change in the future. The mother’s partner has a history with his previous employer of carrying out work in his occupation in different parts of Europe as well as in Asia and the United States of America. Whether it follows from what he describes as “permanent employment” with a different company in Singapore will, on the balance of probabilities, raise the likelihood of him leaving Singapore for short or long periods of time, I am not in a position to say.
I appreciate the propositions and arguments put on either side of that particular topic, all of which have merit. However, on the evidence before me, I can conclude nothing other than to accept the mother’s partner’s unshaken evidence that he has permanent employment in Singapore where he has been living since October 2010 and that such employment is likely to extend into the foreseeable future.
With regard to the place of residence in Singapore, Exhibit 5 is a copy of a tenancy agreement, albeit for a term of two years, commencing 1 February 2011. It would seem then that at a minimum, it is agreed that between the mother and her partner, they will live in the premises described in the tenancy agreement for two years. It is notorious that people change places of residence whether for good or bad reasons in all countries in which they might reside. The fact that this tenancy agreement is for a term of two years does not necessarily lead to the inference that the mother and partner will cease living in Singapore in two years’ time.
Indeed, as the High Court has emphasised in U & U in accordance with the headnote to that judgment:
“Just how far ahead it is possible for a trial judge to look, and how reliable long‑term predictions about domestic marital and social arrangements in modern times can be, are matters upon which minds will inevitably differ. The exercise of looking to and making orders for the future is a discretionary one. The exercise of the discretion in this case has not been demonstrated to be erroneous.” [2]
[2] U & U (2002) FLC 93.112
In that particular judgment, the evidence related to the “predictions” as to the mother’s proposals for living in India.
In relation to the practical effect, difficulty and expense of the children spending time with and communicating with a parent, quite clearly there is practical difficulty and expense given that whether the children live with the father in Hong Kong or with the mother in Singapore, they will be living with one parent or the other in different countries necessitating practical difficulties and expense in spending time with the other parent.
There is no evidence before me of any difficulty and expense so far as communication is concerned.
With regard to the matter of travel and expense, the periods involved in relation to travel between Singapore and Hong Kong are far more favourable in terms of the children spending time with one parent or the other, compared to the situation that has existed now for a little over four years of the children living with the mother in Australia and the father travelling from Hong Kong to see them three or four times a year.
Consequently, whether the children live with the father in Hong Kong or with the mother in Singapore, the practical difficulty and expense of spending time with the other parent will be minimised compared to the situation that has occurred since the end of 2006.
So far as the capacity of the parties and any other person to provide for the needs of the children including emotional and intellectual needs, no issue was raised in relation to the physical environment in which the children may be resident in either country, nor in relation to their intellectual needs. The exception is that part of the father’s case, to which I have already alluded, is that by moving with the mother to Singapore concerns are raised that their education may be disrupted due to the mother deciding to leave Singapore and returning to live in Australia compared to the stability that they have had in the last four years of living with the mother in Australia.
As I have already acknowledged, that is a possibility. The extent to which it is a probability is, of course, a different matter.
Counsel for the father has tendered copious material from the appropriate government departments showing the movement records of the mother from Australia to other places since she left with the children from Hong Kong to Australia at the end of 2006.
I was not taken by counsel to any detail of that copious material. Upon my perusal of it, it is clear that the mother has travelled during that time on a number of occasions. As the mother freely conceded during the course of her oral evidence at least some of that travel was without the children.
It does not follow that because a parent has travelled without a child, therefore the child was not properly cared for in that parent’s absence. There is a lack of evidence before me that would demonstrate that the children were not properly cared for during all or any of the overseas travel the mother took without both or either of the children being with her. After all, it must be remembered that, by the agreement of the parties, the two children have lived with the mother since the end of 2006. That was in circumstances where the parties’ marriage had broken down and the mother left with the children to live in Australia from Hong Kong. The consent orders gave a legal imprimatur to that situation in terms of the mother’s care of the children in Australia.
The father has continued with his employment in Hong Kong throughout that time and has had the opportunity to spend time with the children on three or four occasions a year during their school holiday periods. Without criticising the father at all for that situation, the fact remains that if the children had not been properly cared for or were unlikely to have been properly cared for when the mother was not with them, or when they were in her care, one might have expected a loving and dedicated parent as the father undoubtedly is, to have taken such steps as were open to him to remedy that situation.
Fortunately, from the children’s viewpoint, there is no evidence of any concerns that the father may have had being taken to the level to which I have referred.
It is relevant that the loving relationship between the children and the father has not been disturbed throughout the four year period that the children have lived with the mother in Australia. It is unarguable that four years in the lives of children of these ages represents a significant period in their young lives.
In those circumstances, I find that each of the parties has the capacity to provide for the intellectual and emotional needs of the children. It must also be emphasised that the father has played his part in ensuring that the children’s emotional needs are met so far as relationships with him, his partner and the mother are concerned, have not been disturbed, notwithstanding his continued residence in Hong Kong and the mother with the children in Australia.
The children have the maturity commensurate with children of their ages.
They have had an international lifestyle and background which does not suggest any difficulty for them during their upbringing.
I find that each of the parties has an appropriate parental attitude in that each of them has a devoted approach to the children’s care, albeit that there are differences in terms of future living arrangements that each has brought to bear, as demonstrated in these proceedings.
Fortunately, family violence and family violence orders are not relevant in these proceedings.
With regard to an order least likely to lead to the institution of further proceedings in relation to the children, counsel did not address any submission specifically in relation to this matter. That is understandable given some unknown aspects of these proceedings, in terms of predictions, were the children to make the physical changes necessary in ceasing to live in Australia and living with the father in Hong Kong or with the mother in Singapore.

Conclusion

In this matter, I have concluded with some difficulty, that it is in the children’s best interests to continue to live with the mother which included the proposed relocation with them in Singapore.
The proposals of the father are that it is in the children’s best interest to cease to live in Australia and live with him in Hong Kong.
I have made findings in relation to both proposals and the positive and potential adverse aspects of the changes that the children would have to meet in those circumstances.
In addition, the children have not lived with the father for over four years, other than during entertaining and relaxing holiday periods. Four years in the lives of these children have been significant. They have different needs and reasonable requirements which have obviously changed to those they had when they were much younger.
I accept the father’s evidence that he will apply himself to the upmost to ensure that such changes take place with the least difficulty as possible, notwithstanding his appreciation of some troublesome period that may eventuate due to T’s objection in ceasing to live with the mother and to living with him in Hong Kong. In addition, the father’s partner, whilst having developed a fond relationship with the children during holiday periods where she has become acquainted with them, she has no experience of the children living with her on a day-to-day basis or assisting in their care. Indeed, the father’s partner has no previous experience of caring for or raising a child on a daily basis.
I accept, as I have already found, that the father has an appropriate physical environment for the children and will provide stability, represented by the permanent residence in Hong Kong that he and his partner currently enjoy.
With regard to the mother, her proposal is that she continue the primary care of the children which she has provided to their advantage and benefit for the past four years, albeit now to take place in Singapore on the assumption that the necessary visas are granted. The mother’s proposal is that she and the children live with her and her partner in Singapore during the course of which she will carry out her employment, as will her partner. A large part of the mother’s employment, at least in the initial stage, can be carried out from her proposed residence, given that her instructions are to establish a company office for her employer in Singapore.
There are no issues raised as to the appropriateness of the proposed accommodation or the education that the children will have or their potential lifestyle or social relationships. The real issue, so far as the father is concerned, is disruption to the stability that they have enjoyed in the last four years in Australia, particularly so far as their education is concerned; and whether or not the mother will seek to leave Singapore with the children after a relatively short period of time, thereby providing further disruption to their education and lives. Those matters are cause for concern.
With regard to education, I have found that the school that the children would attend, being the same overall institution as in Hong Kong proposed by the father, is one likely to further their education given that no defect or difficulty is exposed in the evidence, or even alleged by the father.
With regard to the children adjusting to a change, they will also have to adjust if they were to be with the father in Hong Kong. Again, there is no evidence of substance to suggest that the children would have difficulty on that score, whether in Singapore or in Hong Kong.
So far as a possible disruption by the children leaving Singapore to return to Australia, whilst that is a possibility there is no evidence before me of any reliability to say that the relationship with the wife’s partner is likely to break down or that the wife’s employment is likely to move in a different direction, or her partner’s current employment is likely to travel to and reside in a different country. It must be recognised that the wife’s partner’s current employment is not with the same employer that he previously had. So far as predictions of the future, I follow the guidance provided by the High Court in U & U, to which earlier reference has been made.[3]
[3] supra
A critical factor which has persuaded me to grant the mother’s application is that the mother has been the primary carer of the children now for just over four years. The children have obviously progressed in her care. The expert evidence, which I have accepted, is that it is to the children’s benefit for their continued emotional development to maintain their primary care with the mother. This approach would accord with T’s expressed wishes, notwithstanding the influence that has been brought to bear, not in a malicious way, of the mother’s desire to move to Singapore. The mother’s partner is experienced in the daily care of the children having lived with them and the mother for over 12 months commencing in 2009.
In addition, the requirement of the Act that children have the benefit of a meaningful relationship with both parents will be enhanced. Counsel for the father expanded in her submission about the need for a meaningful relationship.
There is no issue on that particular topic.
However, as the Act makes clear it is not enough to refer to “meaningful relationship”, it is necessary to refer to the “benefit” of a meaningful relationship. The benefit in this case is that the children will have continuity of the benefits they have gained through the primary care of the mother in Singapore, and at the same time, the father will be able to enhance his relationship with the children, given the relatively short travel time between Hong Kong and Singapore which will be available to him, compared to travel from Hong Kong to Australia.
An issue was raised in the father’s case that Singapore is not a signatory to the Hague Convention.
The expert evidence of the Singaporean lawyer, who was not required for cross‑examination, is that an appropriate Bill has been passed by the Singaporean Parliament and is awaiting assent by the President of Singapore.
In addition, the case law in that country demonstrates an approach to the question of the wrongful removal of children across international boundaries as being in accord with the principles and guidelines set out in the Hague Convention.
Consequently, on the evidence in these proceedings and absent any evidence to the contrary, I find that the Singaporean legal system supports the objectives and principles of the Hague Convention and that Singapore is likely to become a signatory to the Convention given that the appropriate Bill has passed through all readings in the Singaporean Parliament.
In a recent decision the High Court emphasised the necessity to make findings in relation to the consideration of equal time that children should spend with parents and whether or not it is reasonably practical in the event that it is likely that an order for equal shared parental responsibility will be made.[4]
[4] MRR & GR (2010) FLC 93-424
As I have already referred, such an order is sought by consent in these proceedings. An order had already been made in those terms in 2007. Therefore, I do propose to make such an order.
With regard to spending equal time, neither of the parties sought such an order.
It would not be practicable for such time to be spent given that one party lives in Hong Kong and the other in Singapore and having regard to the educational requirements of the children, the subject of the proceedings.
The orders that I will make shall provide for periods of time to be spent by the children with the father whether in Hong Kong during holiday periods, or in New South Wales or Singapore during school term. In substance, those orders shall reflect the orders sought by the mother in Exhibit 2.
I will not include an order in relation to the children being taken to a country which is a signatory to the Hague Convention or to countries where the courts follow the Hague Convention. In my view, it is not practical to consider the latter alternative. It would mean that a parent would have to obtain legal advice as to whether or not a country’s legal system follow the Hague Convention and that may be difficult, given that in some countries decisions do show a preference for the Hague Convention and at other times do not.
In summary, it is my view that it is not a reasonable nor a practical requirement.
So far as countries that are not signatories to the Hague Convention, the only one that is relevant on the evidence before me is Singapore and I have made findings and conclusions in relation to that country.
Consequently I see no need to make such an order.
With regard to the injunctions to restrain the parties from discussing the proceedings, it seemed to me that it is more appropriate to grant the injunction restraining each party from discussing the evidence, as opposed to the proceedings, because quite clearly the children are aware of the proceedings and it is reasonable to infer that they need to be informed of the result. If I was to grant the injunction sought by the mother, that would not be possible.
There is some evidence to suggest that there has been some denigration, particularly by the father of the mother’s partner. Quite obviously, regardless of the views that either party might have of the other’s partner, they should avoid making those views known if they are unfavourable, in the presence or hearing of the children who are still young and at an impressionable age. Those children have had visited upon them the pressure of these proceedings and they can well do without any derogatory comments made by one party or the other about the other party or his or her partner.
The orders sought were not the subject of opposition and consequently to reinforce the situation it seems in the children’s best interests that such orders should be made.
It is possible that the father will be called upon to sign some documents to facilitate the granting of visas for the children, notwithstanding some confusion in the evidence on that subject.
On the one hand, the evidence of the mother’s partner is that such a written consent is required.
On the other hand, when I raised the matter with counsel for the mother, and after he obtained further instructions, he informed me that it was not necessary.
Nonetheless, an appropriate order will be made. In the event of either of the parties refusing or neglecting to sign any document necessary to implement the orders within seven days of being requested to do so, then an order will be made that a Registrar of the Court may execute any such document on behalf of that party.

I certify that the preceding one hundred and fifty three (153) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 28 January 2011.

Associate:

Date: 7 February 2011

[2011] FamCA 39

28 January 2011

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