Goodner and Jeppesen - [2009] FamCA 1052

FAMILY COURT OF AUSTRALIA

GOODNER & JEPPESEN

[2009] FamCA 1052

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – Mother sought to relocate the children to Denmark to live with her – Father opposed relocation and sought orders that the children live with him in Australia – Mother is of Danish background, has travelled to Denmark with the children throughout their lives – No concerns of parental capacity – Expert evidence that the children’s best interests would be met by spending no less than significant time with each parent – Assessment of each parties proposals and a ‘third option’ that deferred any relocation – Children to remain in Australia for two years – Mother at liberty to relocate with children in 2012

Family Law Act 1975 (Cth) ss 4, 60CC, 61DA, 65DAA

APPLICANT:

Mr Goodner

RESPONDENT:

Ms Jeppesen

FILE NUMBER:

SYC

294

2009

DATE DELIVERED:

6 November 2009

PLACE DELIVERED:

BRISBANE

PLACE HEARD:

SYDNEY

JUDGMENT OF:

WARNICK J

HEARING DATE:

7 – 9 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Levy

SOLICITOR FOR THE APPLICANT:

Hamish Cumming Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hodgson

SOLICITOR FOR THE RESPONDENT:

Fox O’Brien

Orders

IT IS ORDERED BY CONSENT

That the parties have equal shared parental responsibility for M, born … October 1999 and E, born … December 2002 (“the children”).

IT IS FURTHER ORDERED:

That until 31 December 2011, each party; MR GOODNER born … 1962 and MS JEPPESEN born … 1966, their servants and/or agents be and are herby restrained from removing or attempting to remove or causing or permitting the removal of the said children from the Commonwealth of Australia, without agreement of both parties, in writing and signed by each, or further order of the court.
That the Australian Federal Police give effect to order 2 above by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the court orders its removal.
That, provided the mother remains resident in Sydney, Australia until 31 December 2011, then the children live with the father in alternate weeks from 6.00pm Monday until 6.00pm the following Monday to commence according to the pattern established by interim orders made 25 March 2009.
That the children live with the mother in alternate weeks from 6.00pm Monday until 6.00pm the following Monday to commence according to the pattern established by interim orders made 25 March 2009.
That in the event the children are not otherwise living with the father, and notwithstanding any other order, the children shall spend time with the father on the following occasions of special significance:
(a)on the children’s birthday as follows:
(i)    on a school day from after school until 7.00pm;
(ii)   on a non-school day from 2.00pm until 8.00pm.
(b)from 2.00pm Christmas Eve until 2.00pm boxing Day in odd numbered years;
(c)on Father’s Day from 9.00am until 5.00pm;
(d)on the father’s birthday as follows:
(i)    on a school day from after school until before school the following day;
(ii)   on a non-school day from 9.00am until 5.00pm.
That in the event the children are not otherwise living with the mother, and notwithstanding any other order, the children shall spend time with the mother on the following occasions of special significance:
(a)on the children’s birthday as follows:
(i)    on a school day from after school until 7.00pm;
(ii)   on a non-school day from 2.00pm until 8.00pm.
(b)from 2.00pm Christmas Eve until 2.00pm Boxing Day in even numbered years;
(c)on Mother’s Day from 9.00am until 5.00pm;
(d)on the mother’s birthday as follows:
(i)    on a school day from after school until before school the following day;
(ii)   on a non-school day from 9.00am until 5.00pm.
That in order to facilitate the children living with each of the parties, the transportation to and from each party’s residence at the commencement and conclusion of such living periods shall be shared equally between the parties.
That the children have telephone communication with the parent with whom they are not living at all reasonable times.
That each parent ensures the other parent is kept informed of:
(a)any medical problems or illness suffered by the children while in their care;
(b)any medication that has been prescribed for the children;
(c)any social, school or religious functions which the children are to attend;
(d)their current residential address and contact telephone number and advise the other party of any changes to these details within 48 hours of such change occurring.
That unless otherwise agreed, each party be permitted to remove the children from Australia to travel overseas twice per year, provided that:
(a)the travelling party provides to the other party six (6) weeks prior written notice of the intended trip specifying the proposed dates of the trip and destination;
(b)the travelling party provides to the other party two (2) weeks written notice of the intended trip specifying the date and time of the departure, the means of transportation and all details thereto including the details of the airline whom they will be travelling with, the intended destination, contact number and addresses for the children for the duration of the trip and the intended date and time of return.
(c)if by taking the children overseas, the holiday encroaches on the other party’s time with the children:
(i) the non-travelling party shall have additional periods of time equivalent to that foregone whilst the children are overseas; and
(ii) the make-up period shall be taken at dates and times nominated by the non-travelling party following the children’s return from overseas.
That within 24 hours of the making of these orders, the mother shall provide the father with the passport of M, which shall thereafter be retained by the father.
That the passport of E shall be retained by the mother.
That within 24 hours of the mother complying with order 11 above, the father will release the passport of the child M to the mother and she shall return the passport to the father within 24 hours of returning from any travel with the children in accordance with order 11 above.
That within 24 hours of the father complying with order 11 above, the mother will release the passport of the child E, to the father and he shall return the passport to the mother within 24 hours of returning from any travel with the children in accordance with order 11 above.
That the father be responsible for the cost of economy class travel for the children and the mother from Sydney to H, Denmark on two occasions each year.
That the mother be at liberty to remove the children from Australia to reside in Denmark as and from 1 January 2012 and the father release to the mother, not less than 14 days prior to that date, the passport of the child M.
That in the event the mother relocates with the children to Denmark, the children shall spend time with the father as agreed but failing agreement as follows:
(a)in Australia, during the Danish Christmas school holidays for a minimum of 4 weeks in each and every year;
(b)in Australia, during the Danish July/August school holiday period for a minimum of 4 weeks in each and every year;
(c)for the purpose of the above, and unless otherwise agreed between the parties, the mother shall deliver the children to the father at Sydney International Airport at the commencement of his time with the children and the father shall return the children to the mother at Sydney International Airport at the conclusion of his time with the children.
That in addition to the above, the father be permitted to spend time with the children when he travels to Denmark and to remove the children from Denmark during such periods provided he give the mother notice of the intended dates, including the date and time of the departure, the means of transportation and all details thereto including the details of the airline whom they will be travelling with, the intended destination, contact number and addresses for the children for the duration of the trip and the intended date and time of return.
That the cost of travel in order 18 be shared equally between the parties.
That the mother ensure the children are available for communication with the father by telephone or Skype each day between 7.00am and 8.00am (Danish time), with the father to initiate such communication.
That in the event the children express a wish to have telephone communication with the father, or a member of the father’s family, the mother will do all acts and things to facilitate such telephone communication.
That within 14 days of the children’s subsequent enrolment at any school, the mother shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the father copies of all of the children’s school reports, any merit cards, any written material pertaining to the children’s academic and extra curricular activities, and all order forms for school photographs of the children.
That the mother ensure the father is kept informed of:
(a)any medical problems or illness suffered by the children while they are in her care;
(b)any medication that has been prescribed for the children;
(c)any social, school or religious functions which the children are to attend; and
(d)the children’s current residential address and contact telephone number and any change to these details within 48 hours of such change occurring.
That in the event the mother relocates to Denmark without the children, the children live with the father and spend time with the mother as follows:
(a)in Denmark, during the Australian Christmas school holidays for a minimum of 4 weeks in each and every year;
(b)In Denmark, for the entire Australian June/July school holiday period in each and every year;
(c)for the purpose of the above, and unless otherwise agreed between the parties, the father shall deliver the children to the mother at Copenhagen International Airport at the commencement of her time with the children and the mother shall return the children to the father at Copenhagen International Airport at the conclusion of her time with the children.
That in addition to the above, the mother be permitted to spend time with the children when she travels to Australia and to remove the children from Australia during such periods provided she give the father notice of the intended date and time, including the date and time of the departure, the means of transportation and all details thereto including the details of the airline whom they will be travelling with, the intended destination, contact number and addresses for the children for the duration of the trip and the intended date and time of return.
That the cost of travel in order 25 be shared equally between the parties.
That the father ensures the children are available for communication with the mother by telephone or Skype each day between 7.00am and 8.00am (Sydney time), with the mother to initiate such communication.
That in the event the children express a wish to have telephone communication with the mother, or a member of the mother’s family, the father will do all acts and things to facilitate such telephone communication.
That within 14 days of the children’s subsequent enrolment at any school, the father shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the mother copies of all of the children’s school reports, any merit cards, any written material pertaining to the children’s academic and extra curricular activities, and all order forms for school photographs of the children.
That the father ensure the mother is kept informed of:
(a)any medical problems or illness suffered by the children while they are in his care;
(b)any medication that has been prescribed for the children;
(c)any social, school or religious functions which the children are to attend;
(d)the children’s current residential address and contact telephone number and any change to these details within 48 hours of such change occurring.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC294/2009

MR GOODNER

Applicant

And

MS JEPPESEN

Respondent

REASONS FOR JUDGMENT

This case over parenting issues between Mr Goodner and Ms Jeppesen involves no significant concern about the parenting capacity of either, nor about the relationship between each and their two children, M, now nearly ten years of age and E, nearly seven years. However, acute difficulty arises because the mother, Danish by birth, whose family live in Denmark and who has long wished to return there, seeks to take the children with her to live there. The father, born in the United States of America, but an Australian citizen since the age of seven, wishes the children, both of whom were born in Australia, to remain here.
As with any application for parenting orders, the outcome will be determined by the application of the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
In that regard, s 61DA(1) of the Act provides:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The parties agree, and for reasons given later I conclude, that they should have equal shared parental responsibility. This intention invokes the operation of s 65DAA of the Act, and thus the court must consider whether the children spending equal time, or, if that is not to be ordered, substantial and significant time with a parent, is in the children’s best interests.
In these circumstances, after a recount of background information, I will address matters as follows:
(i)The proposals of each party and other options for care of the children.
(ii)The “additional considerations” which must be addressed when determining what is in the children’s best interests, as set out in s 60CC(3) of the Act.
(iii)Parental responsibility and the “pathway” to a result provided by s 65DAA.
(iv)The ultimate conclusion, including the significance of the “primary considerations” set out in s 60CC(2) of the Act.

Background

In mid-1966, the mother was born in H, Denmark, a small town. She left H when a young adult. She met the father some years later in Europe and commenced cohabitation with him in early 1993, when about 26 years of age. The father, born in 1962, was then 30 years of age. In about October 1995, the parents moved to Australia, though they returned to Denmark to be married in September 1996. The mother says that she was apprehensive about a permanent move to Australia and that the original proposal between her and the father was of residence here for a maximum period of two years.
M was born in October 1999 and E in December 2002. The mother, who had worked in a number of roles, ceased work not long after the birth of the first child.
Over the years, the parties had many discussions about returning from Australia to Europe and the father made a number of promises about that. Nonetheless, the parties and children have remained resident here. However, the mother has taken the children to Denmark with some frequency.
For some years leading up to 2008, the marriage of the parties suffered some difficulties. In January 2008, while the mother and children were holidaying in Denmark, the mother saw a Mr W, whom she had known since school days. Before the mother had left H as a young adult, she and Mr W had been boyfriend and girlfriend for a few months. Over the years Mr W, the mother and father had occasional social contact.
In March 2008, the mother and Mr W met and re‑commenced a romantic relationship. In circumstances which will be discussed later, the mother and children spent the last six months of 2008 in H. Not long after the commencement of that period, the mother told the father of her relationship with Mr W.
The mother contended that separation occurred when she took the children to Denmark on 29 May 2008. The father said separation was in July 2008, when the mother informed him that their relationship was over. The point does not need to be determined.
On 24 December 2008, by agreement, the father collected the children in Denmark and went to the United States, where the father has family. On 5 January 2009, the mother arrived back in Australia, accompanied by Mr W. Her intention was to return with the children to Denmark on 25 January 2009. The father returned from America to Australia with the children on 6 January 2009. He retained the children’s passports and had the children placed on the airport watch list. He instituted proceedings in this court on 20 January 2009. As a result, the mother was prevented from leaving Australia with the children. Mr W returned to Denmark. For financial reasons and to look after the children, the mother moved into the former matrimonial home. The parties did not resume cohabitation.
In anticipation of the mother obtaining separate accommodation, on 25 March 2009, interim parenting orders were made by consent, under which the children were to live with each parent, week-about. The father was also ordered to pay $250.00 per week in respect of child support and $550.00 per week towards the rental by the mother of residential premises. The mother moved to rental accommodation on 2 April 2009.
The parties have not yet finalised their financial affairs following the breakdown of their marriage.
There are only a few issues of fact of any significance. I will discuss them later and will also refer to a number of questions of fact which, though they received attention in the trial, in the end, are of no or little significance to the end result.
The father was the only witness in his case while, in her case, the mother was joined by Mr W, who gave evidence be telephone link from Denmark. Ms N, a family consultant in the Sydney Registry had prepared a report in April 2009 and she gave oral evidence.
The mother also sought an order for payment of a sum of money for legal costs, but that issue was resolved by orders I made by consent on 9 September 2009.

The proposals of each party and other options for care of the children

The mother’s proposal is that, upon being permitted to remove the children from Australia, she will do so as soon as arrangements can be made and thereafter live with them, with Mr W, in H. His home is described by the mother and there has been no question about its adequacy.
All the evidence of the school at which the children attended during the last six months of 2008, and to which the mother proposes they return, is that it is at least adequate. There is a high school available for the future. I accept that the children made friends at school and settled well into a social life in H. The mother’s parents and sister live in H. Her sister has a ten year old daughter and twins aged seven months. There is a close relationship between the children of the parties and their ten year old cousin. The mother’s brother lives close by. The mother has many aunts, uncles and cousins close to H.
The mother proposes that the children spend time with the father, in Australia or as he wishes, during two holiday periods, that is seven weeks in the Danish summer vacation and 4 weeks Christmas holidays, alternating in a way so that the Christmas festive days are spent with her in one year, with the father in the next. There is also one week holiday in February, at Easter and in October each year and though the mother seemed to propose that the children could come to Australia at those times, it is scarcely feasible. The mother offers that the father can have contact with the children at any time he travels to Europe. She deposes that she is “happy for [him] to telephone the children whenever he wants to or for the children to telephone him or for them to contact each other by email or by Skype”.

Should the mother’s residential proposal come about, the father does not wish to take up all the holiday time offered, as he considers that that would be to prevent the children having holiday time in their home town. He proposes four weeks in each of the major holiday periods. He would take up the other proposals, though indicates that, because of his work commitments and financial circumstances, he might well have difficulty seeing the children in Denmark more than, at best, a couple of times a year. As to communication by other means, he finds the use of Skype distressing.
The father’s primary proposal is that the children live in Australia. If the mother remains here, he proposes that the interim week-about arrangements become the long term arrangements. The mother did not have a counter-proposal about that.
The father’s mother lives (with his stepfather) in the Sydney area and the father says that she has a close relationship with the children. The father’s brother also lives in Australia.
Currently, the father resides in the former matrimonial home in Sydney. It is a five bedroom residence which, the father suggests, has a value of $1,500,000.00. It is subject to a mortgage of $1,200,000.00. The father gave evidence of his other financial circumstances.
As stated, the parties have not yet settled their financial affairs, but the Sydney home is to be sold. The father said he would endeavour to buy a cheaper home, but with the same accommodation, or rent such accommodation. The significance of this aspect is that even if the children remain in Australia, they will not remain in their present home. A change in accommodation also raises the prospect of a change of school.
The mother stated in her oral evidence that if she is not permitted to take the children from Australia to live, she will return to Denmark alone.
If she does so, the father proposed that the children go to the mother for a minimum of four weeks each Christmas and for the whole of the mid-year holidays and that the mother spend time with the children when in Australia. He proposed telephone and/or Skype communication.
The mother appeared not to have really contemplated what she would seek if the children remained in Australia and indeed, to only contemplate that question with difficulty. I took her to say that she would like whatever holiday time the children had, to be spent with her.
Ms N did not support either of the parents’ proposals, but said that it was undoubtedly in the best interests of these children that each parent live at least on the same continent and in any event, in a position where the children could spend no less than substantial and significant time with each parent (though she was not necessarily using that term as defined in the Act).
A third option, which derived from recommendations made by Ms N was, as framed by me, that the mother not be permitted to remove the children from Australia for a period of two years. At the end of that period, she either be permitted, by order made now, to then take the children to Denmark to live with her or, no provision be made now for living arrangements beyond that time. The parties had the opportunity to ask of witnesses questions relevant to this option and to make submissions about it.
In informing the parties of the proposal, I suggested that in two years time the children would likely be better able to maintain a relationship if one parent lived on the other side of the world. Also, if the children were to live in Denmark, E’s ability to retain the English language would likely be facilitated. The father had been concerned that her facility had deteriorated when she was in Denmark in 2008.
The father said that the proposal that I framed would be a time bomb for him, both in respect of his working arrangements and because it would impede his entry into a new relationship. However, he did not suggest that he had any present relationship.
As to any impact on the father’s work arrangements, he is Chief Executive Officer, Managing Director and a 25 per cent shareholder of an independent company. He deposed:
As a condition of [B Company] taking an interest in [FI] Pty Ltd and [FP] Pty Ltd the three other partners had to agree that they would have to be exclusively involved in the companies for a period of five years unless another agreement was reached.
B Company acquired its interest in June 2007, so the agreement lasts until about June 2012. The father claimed that, therefore, he was locked into a particular employment arrangement for some years yet.
However, he further deposed:
In February 2009 [B Company] and another of the partners bought out the interest of a fourth partner. At this time it was agreed that the departing partner could leave notwithstanding the five year agreement mentioned in the above paragraph and I understand this was reflected in the price paid for that partner’s interests.
Thus, there is some prospect that the father might not be prevented from pursuing other employment.
However, as to other employment, the father contended that he was best off in Australia; he needs to operate in an English-speaking environment, he is not necessarily entitled to work in other countries, his recent enquiries about working in Copenhagen and London caused him to be pessimistic about opportunities there.
On the other hand, over a long period of time, the father has promised the mother to return to Europe. He has contemplated working overseas. The father acknowledged that if the children went to live in Denmark, he would be compelled to consider moving closer.
A period of two years will bring the father close to the end of his contract. It would give him more time than he has had and, depending on the order made, more certainty about the future with regard to his children than has so far existed, to reconsider his future work arrangements. I do not accept that his only prospects for well remunerated activity rest in Australia to the degree for which he contended. However, I do accept that he will not obtain employment in his field in H. The father cited the global financial crisis as currently affecting his position and it is a matter of general knowledge that some optimism exists that that crisis is already diminishing.
As to any effect on his personal life, that the father might well see a need to rearrange his affairs to relocate to the northern hemisphere in two years time is a complexity perhaps in, but surely not a bar to, the establishment of a new relationship.
As to the third option, the mother’s evidence was that if the children were not permitted to relocate even for a limited period such as two or three years, she would still go to Denmark to live. I do not accept that evidence without qualification.
Ms N recorded that:
24.[The mother’s] comments about the prospect of the children not being permitted to relocate were that she has lived in Australia for a long time and “can’t be here any longer”. At the same time, however, she indicated that she could not leave them. In other words, she feels caught in a bind.
…
31.In the event that the children are not permitted to relocate, Mr [W], despite the difficulties he might confront with doing this, would relocate to Australia in order to continue the relationship with [the mother].
Mr Hodgson, no doubt concerned to support the credibility of the mother’s position that she would be returning to Denmark in any event, quizzed Ms N as to whether she had been acting on impression, when she expressed herself in paragraph 24 just quoted. He suggested that the mother voiced to Ms N a position not inconsistent with her stated intention at trial. While Ms N accommodated the possibility that she drew incorrect inferences, she overall adhered to her assessment of the mother’s stance at that time. She confirmed that she had considered that the mother was likely to stay if the children remained here. I accept Ms N’s assessment. It is supported by Mr W’s evidence that the mother’s intention had changed in the couple of months preceding trial.
The mother also said that she could not afford to continue living in Australia, but I also do not accept that claim without qualification. Firstly, there has as noted, as yet been no financial settlement between the parties.
Secondly, as part of her contention, the mother sought to show that the father had not provided to her at all or in a timely fashion, financial support as agreed or ordered, since she moved out of the former matrimonial home. The suggestion was she could not rely upon him in the longer term. I accept the father’s explanation of the matters raised with him in this regard and do not consider that the mother established the proposition for which she contended.
I question the commitment of the mother to the course she states. I do not accept that the mother would definitely return to Denmark if the children were required to remain here until adult, though she well might. I think if any requirement that the children remain here is limited, to say two years, she is much more likely to remain here.
I accept Mr W’s evidence that, given the mother’s change of stance he too has reconsidered whether he would move here if she stayed. In any event, while I do not rely on what Mr W attempted to say he was told by Australian Immigration authorities, it is not established that he is free to relocate here on a long term basis, and work. However, the mother said in oral evidence that she thought Mr W would look at the possibility of moving to Australia.
Ms N saw some advantages in the “third option”, though she acknowledged as qualifications; that a move for M could be harder in some ways if delayed until his adolescence and, in short, some factors likely to be relevant then to the question of the children’s best interests cannot be determined now.

The “additional considerations” which must be addressed when determining what is in the children’s best interests (s 60CC(3) of the Act)

The factors to be addressed under this heading primarily involve findings of a factual nature. The “primary considerations” referred to in s 60CC(2) are values, or aspirations and in my view are best discussed at a later stage.
I use as headings those paragraphs of subsection (3) that I consider apply to this case.

(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

Ms N reported:
36.Both of the children wished that their parents could be back together again and neither of them wanted to express any views about the question about where they might live. [E] indicated that she found it too hard to do so, although, at an earlier point in her interview, she said that she thought Denmark might be better because one can go to the playground there whenever one wants, one does not have to wear a school uniform in Denmark and she has more friends there. On the other hand, one of the good things that [E] identified about Australia was that she gets to live close to her friends. For [M] there are good things in Australia and good things in Denmark and he loves his mother and father. The decision as to where he lives he wants to leave to his mother and father. It makes him sad to think of it.
Probably because of their history of regular contact with Denmark, these children are likely to be adaptable, even at their present ages, wherever they reside. Given their “evenhandness” recorded by Ms N, in my view, it is likely that they would be particularly receptive to an arrangement which seemed to treat both environments and each parent, in relation to that parent’s preferences as to where he or she lived, in an equal or fair way.

(b) the nature of the relationship of the child with:

each of the child's parents; and

other persons (including any grandparent or other relative of the child);

During the cohabitation of the parties, the mother was responsible for the primary care of the children. The father often worked long hours and spent some time travelling for business purposes overseas. Mr Hodgson, counsel for the mother, argued that particular weight should be given to the fact that the mother had been the primary carer.
However, Ms N wrote:
CHILDREN AND THEIR RELATIONSHIPS
32.Both [M] (9 years 4 months) and [E] (6 years 3 months) present as being polite, intelligent and charming children. Each of them spoke in positive terms about life in both Australia and Denmark and they clearly demonstrate significant relationships with family and friends in both places.
33.[M] and [E] each spoke about their mother and father in ways that indicated strong and secure attachment relationships with both.
…
37.The children were warm and spontaneous with their parents.
In oral evidence, Ms N said that although the mother had been the primary carer, now that the children were older, M was especially close to his father, E to her mother, but that for each child the relationship with each parent was crucial.
The children are beyond being young infants. Both are at school. They have lived overseas and gone to school there. They have been spending week-about with each parent since early April 2009. Given Ms N’s observations, which I accept, I do not perceive that the historical fact of the mother’s primary care impacts on the assessment now of the children’s best interests.
The children met Mr W in May 2008. The mother deposes that she, Mr W and the children went on many activities together. About a month after the mother leased her own house in about July 2008, Mr W began staying overnight on occasions, as often as four nights a week. The mother and children commenced to live with Mr W in November 2008. As seen earlier, Mr W was in Australia in January 2009 and he came again to Australia in April 2009. Mr W deposed that he has a very comfortable and relaxed relationship with the children. He did not seek to be a substitute for the children’s father and considers it important that the children maintain their relationship with their father. He has extended family living in H. However, he has never before lived in a household with small children.
Ms N said:
38.[M] and [E] were also observed with their mother and Mr [W]. They appeared to get on quite well with Mr [W] and he, in turn, was appropriate and playful in his interaction with them.
If he remains in a relationship with the mother, I consider Mr W likely to be a positive aspect in the children’s lives.

(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

(f) the capacity of:

(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

It is primarily in relation to these factors that each party makes some criticism of the other. As to the complaints of the mother, Ms N wrote:
22.With regard to the question of the children living with their father, [the mother] raised a number of issues concerning his capacity to adequately care for the children. One was his work commitments and his need to employ a nanny to look after the children while he works. Another was his history of depression. In connection with this issue, [the mother] stated that she has no concerns about the children’s safety with their father but some concerns about his ability to properly attend to their needs when he is depressed. She has no concerns about the children spending holidays with their father. Another concern that [the mother] raised was [the father] allegedly using [M] as a confidante (just as [the father’s] mother had used him) and the impact of this on [M] in terms of his anxiety about his father’s wellbeing. Finally, [the mother] raised some basic parenting skills issues, such as the children getting McDonalds and pizza rather than cooked meals and not being made to brush their teeth or, in [E’s] case, to have her hair washed.
As to the father’s emotional/mental state, he deposed that when he was six years of age his mother abducted himself and his younger brother from the USA to Australia. His mother changed their family name to Goodner, had the children naturalised as Australians and prevented any contact with the children’s father and family in the United States. Until he was in his mid-20’s, the father did not see his own father again.
The mother said that in 2002 the father was diagnosed with acute anxiety and a sleep disorder. At this time, he had great difficulty being in close contact with the older child without feeling a form of claustrophobia. He told the mother he was having difficulty coping with the fact that they were having a second child. The father was prescribed sleeping tablets, then valium and later Zoloft. He attended a psychiatrist.
The father said of his anxiety in 2002 that it was due to financial pressures and the obligations to provide a good lifestyle for his family following the birth of the second child.
In 2003, the father commenced his own business in which he worked very long hours. Again in 2005, the father suffered from symptoms similar to those he displayed in 2002/3. He saw another psychiatrist. The father said that his depression in 2005 was due to the guilt associated with having an extramarital affair and the repercussions that caused in his home life. He said that many of his symptoms were diagnosed to relate to his early childhood trauma, deriving from his mother’s abduction of himself and his brother.
He deposed that he has never been diagnosed with clinical depression. Finally, he deposed that he has been treated for depressive symptoms and prescribed medication by a psychiatrist as a result of the anxiety he experienced upon news that the mother did not intend to return with the children from Denmark. This was a reactive condition. He no longer takes any medication and has not done so since the recovery of his children at Christmas in 2008.
Ms N reported:
14.…[The father] described himself as having “a terror” of not being a “proper father”. He spoke of his great love for his children, his desire to be the best father that he can be for them and his feelings of anxiety and inadequacy. He demonstrated insight into why he experiences the level of trepidation that he does in relation to being a father (and losing his children).
…
16.[The father] gave a poignant description of the abduction itself and of the impact of the proscription against talking with anyone about his former life on his ability to grieve the loss of his father (and, one assumes, other aspects of his life). He said that it became easier for him to think of his father as being dead, as this avoided awkward questions and embarrassment.
…
18.The relevance of [the father’s] history to the current dispute is self-evident. [The father] made the comment that when he discovered that [the mother] intended to stay in Denmark with the children his reaction was to feel that he could not “live through it twice”. This suggests that he might have experienced re-activation of the original trauma of his own abduction through the perception of threat of catastrophic loss of his children.
While this history of the father, including episodes of anxiety and depressive symptoms is relevant, and might, if linked with expert evidence or clear behaviour of, for example, “over-possessiveness” of the children go to his capacity to parent, I do not think that of itself it gives rise to any particular concern about his ability to parent the children, save for two aspects. Firstly, he might find it hard to avoid depressive symptoms and anxiety if the children go to Denmark and he cannot follow. His symptoms might distress the children.

Secondly, his history and its aftermath might cause him to oppose the mother’s proposal with greater vehemence than is warranted. At one point in his cross-examination, he referred to his concern about the mother’s proposal to take the children to Denmark being that they would lose their Australian culture. This seemed a rather narrow view of matters bearing on the children’s best interests, in the face of the mother’s wish to live in Denmark (and the children’s Danish inheritance). I have lingering concerns that the father’s attitude now is clouded by an approach that it is the mother who has and is causing the family’s dilemma and so he will resist any interference with his wishes.
Questions of the father’s treatment of M as a confidante and any impact of that on M’s relationship with his father were not pursued.
Questions of the father’s provision of fast-food for the children, and of his attention to matters of hygiene or grooming have not taken on concerning proportions. The father may, under pressure of time have taken the “easy” road in such matters at times, but, I conclude there is no issue of neglect in these regards.
As to the availability of the father to care for the children having regard to his work commitments, the mother points to his work history and her involvement in the care of the children since the beginning of 2009. Since the beginning of the interim arrangements, the mother has normally collected the children from school. The father would pick the children up from the mother’s home, usually between 7.00 and 7.30pm.
The father deposed that, if the children were to live with him and the mother on a week about basis, he would, when the children were with him, be able to deliver the children to school. He would arrange after school care for the children. He said that if the children were in his care during school holidays he should be able to make himself available to care for them. His own mother had stated her willingness to assist him in the children’s care.
I am satisfied that, given his parenting capacities, the father would make proper arrangements for the care of the children if they were in his full-time care, the mother living in Denmark.
The criticism of a parent which attracted most attention, was in relation to the mother’s intention (whenever formed) to retain the children in Denmark at the end of 2008. The father suggested that the mother’s behaviour reflected poorly on her attitude to his continued involvement with the children, but each party also sought to extract other advantages from these events or to resist perceived adverse conclusions. The mother said, and I accept, that after she told him that she wished to stay in Denmark the father asked her to move back to Australia until he could work out what to do with his company. The mother was critical of the manipulation (my word) used by the father to bring her back to Australia. The father was anxious to establish that he never consented even to the possibility that the children would remain permanently in Denmark. The mother sought to show that such a possibility was within the contemplation of each of them.
The mother deposed that the parties had agreed or at least mutually understood that she and the children live in Denmark for six months and then, around Christmas, she and the father would sit down and talk about the future. The father acknowledged that in a conversation in May 2008 the mother said that she wanted to spend six months in Denmark and that the time away would “help me decide what I want to do”. However, he points out, return airline tickets were purchased. The father also said that because the parties asked the children’s school to continue their enrolment, he believed that the mother intended to return with the children. I have no doubt that the mother did not expressly disabuse him of that perception. There is little doubt that the mother did not initially tell the father of the extent of her thoughts about the future and in particular did not tell him of her relationship with Mr W.
On the other hand, a letter that the father wrote to the mother on 29 May 2008 is difficult to reconcile with the proposition that he had no indication or inkling that the mother may not wish to return.
I accept the mother’s evidence that in July/August 2008, when she told the father of her wish to stay in Denmark with the children, he presented himself as somewhat receptive to her wish to stay in Denmark with the children and even as willing to explore prospects of his moving to Holland, London or Copenhagen to work. However, the father was then concerned to maximise the prospects of a reconciliation and to seem sensitive to the mother’s expressed needs.
In the end, I do not think that, whether the parties were entirely frank with each other at this time or somewhat manipulative of each other, that that was conduct that goes to parenting capacity, in a case where each effectively concedes that the other party is a good, or better than good, parent and there is persuasive evidence of that in any event. I draw no other conclusion from these events, for or against either party.
Such criticisms of parenting capacity and/or attitudes of one parent to the other as have been made in this case are diminished in foundation where the parties consented to a week-about arrangement (albeit interim), they agree on equal shared parental responsibility, and of them, Ms N said:
28.It should be noted that the way both of these parents spoke about their children was very observant of and attuned to each of the children’s personality. It was also with manifest enjoyment.
As to Mr W’s capacity to provide for the needs of the children, I accept Ms N’s observation:
29.Mr [W] (aged 43 years) presents as a personable man who appears to have an appreciation of the boundaries of his role in these children’s lives. …
I have already said I expect he would be a positive influence in the children’s lives.
In considering each of the matters in ss (c) and (i) I have in mind ss (4) and (4A) of s 60CC obliging the court to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular the extent to which each of the children’s parents has taken or failed to take the opportunity to; participate in making decisions about issues, spend time with the child, communicate with the child and facilitated the other parent in doing those things, particularly with regard to events that have happened and circumstances that have existed since the separation occurred.
In my view, the mother would be more capable of listening to the children’s views (if any) particularly as they grow older, as to where they wish to live and responding to them, than would the father. This is because of the intensity and background to his feelings about the prospect of “losing” the children. But otherwise, I think neither parent significantly better placed than the other in relation to the factors under discussion.

(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

As to these matters, Ms N said in her report:
21.[The mother] acknowledged that the children would miss their father in the event that they relocated without his also doing so. She further acknowledged that [M] is likely to miss his friends, although she pointed out the [M] [sic] also has friends in Denmark and that he makes new friends easily. [The mother] considers that, along with the disadvantages however, there would also be considerable benefit to the children from living in Denmark. For example, aside from the obvious benefit of her feeling happier, she feels that the children would benefit from living in closer proximity to her extended family with whom she believes they have closer relationships than they have with members of their father’s family. Such relocation would also allow the children to have greater exposure to their Danish cultural heritage.
…
EVALUATION
39.[M] and [E] have extended family and friends in both Australia and Denmark and they identified good things about both countries. It would appear that, for them, the predominant issue involved in a possible relocation is one of separation from one or other parent. This is to be expected in children who have loving relationships with both of their parents and who have had fundamentally good parenting from both parents. It is also to be expected that parents who love their children will experience trepidation at the thought of being separated from them for long periods of time. It is [M’s] and [E’s] good fortune that they have two parents who are pained by such a prospect.
…
41.If [the mother] were not permitted to take the children with her to live in Denmark, in all likelihood, she would react to this with disappointment and some despondency although she also impresses as a woman with considerable internal resources. In this event, if she were to decide to remain in Australia, the comfort of knowing that she can continue to take the children to Denmark frequently and for reasonably long periods and if there were to be some prospect of her being able to move to Europe at some time in the not too distant future would probably be helpful to her maintaining a positive frame of mind. I am mindful that there are issues for Mr [W] in relocating, although that is what he indicated he would do if [the mother] were to remain here.
42.…Because of [the father’s] background, there is reason to be concerned about his potential reaction to the children relocating to another part of the world without his also going.
43.Finally, while the children, in their interviews, did not refer to any denigration by either parent of each other or of anyone else, it is clear that [the father] is finding the situation of another man’s involvement with his children very difficult, particularly when he had hoped, until mid last year, that there might have been a reconciliation of the marriage. It is very possible, however, that there has been leakage of [the father’s] feelings about the marital separation and about [the mother’s] partner. [The father] needs to ensure that he gets help to contain this, in order not to himself repeat any aspect of his own dreadful experience.
This consideration, the likely impact of change on the children, is the most concerning aspect in this case. Yet the effect of the proposals of each parent is that the children will be separated by oceans from one parent.
The likelihood of distress and loss for the children if one parent lives in Australia and the other in Denmark, the children living with one of them, is obvious from Ms N’s evidence. Yet, perhaps because of Ms N’s view that the mother would not return to Denmark if the children were to remain in Australia, she did not in her report say much about the likely severity of the children’s feeling in such a situation.
However, in her oral evidence Ms N, referring to the prospect that in two years time the father may not be able to move to Europe, though the children move there with the mother, said that M could be devastated.
On the other hand, the father acknowledged in oral evidence that the impact on the children of the separation from their mother might well be greater than that upon separation from him.
In assessing the likely impact on the children of separation from their father, if they are living permanently in Denmark and he in Australia, I regard their familiarity with Denmark as a positive factor, but do not accept the proposition put on behalf of the mother, that the children’s ready adjustment during the period in Denmark in the second half of 2008 is an indication of how they would react to the same situation on a permanent basis. I am satisfied that in the children’s minds, at least for the great bulk of that time, the situation was temporary. As well, the father visited twice, for more than five weeks in total, during the period.
On either parent’s proposal, the children will be separated from extended family.
In assessing the other evidence about the likely impact on the children if either parent’s proposal is implemented, I note Ms N’s comment about the possible impact on M, but do not take that prospect as a probability.
These children have excellent relationships with each parent and each parent has an excellent relationship with each child. The parties are very capable parents. Thus, there are deep resources to deal with the children’s sense of loss, that will definitely follow one parent living on another continent from them.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

This factor is closely connected with the preceding consideration and shares its significance.
In short, I find on the evidence that, if each parent lives where he or she wants, the parents cannot afford contact between the children and the parent with whom they do not live, in the country where that parent lives, more than twice a year.
While, if the mother lives in Denmark, she has reasonable to good prospects of obtaining employment, and the father will be relieved of paying as he does now towards her rental, the net asset position of the parties (though I do not know the value of the father’s businesses) seems modest.
The evidence of the father, which I accept, shows that the trip from Sydney to H, if all goes well, can take thirty hours, involves at least three flight connections and a car trip and, with a parent accompanying, can cost $10,000.00-$15,000.00. The father can take, but only for himself, a half-fare benefit arising from his mother’s position with Qantas, but there are drawbacks with that, including that the opportunity is on a stand-by basis. The children cannot fly unaccompanied until aged ten years, but, in any event, I agree with the approach of the father, that even at and for a time after that age, the number of connections and the prospect of overnight stays if any problem arises, make it inappropriate for the children to travel unaccompanied.
The father, because of business travel, has a greater opportunity to travel to see the children in Denmark than has the wife to travel to see the children in Australia. She may be able to come here a couple of times a year, but that, I think, would be the upper limit. The father said, probably correctly, that the mother could readily obtain accommodation as a visitor in Sydney, whereas it is very difficult to find such accommodation in H, bearing in mind also that Mr W works at the only hotel there. This is not an insurmountable problem.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

This factor is best discussed in this case in the context of the ultimate deliberations.

(m) any other fact or circumstance that the court thinks is relevant.

The child M is in year 4; the children E is in year 1. I am informed that in New South Wales M will commence high school in year 7.

Parental responsibility and the “pathway” to a result provided by s 65DAA entitled “COURT TO CONSIDER CHILD SPENDING EQUAL TIME OR SUBSTANTIAL AND SIGNIFICANT TIME WITH EACH PARENT IN CERTAIN CIRCUMSTANCES”

There is nothing in this case to rebut the presumption of equal shared parental responsibility unless it be that if one parent is in Australia and the other in Denmark, that arrangement would not be workable. I do not see, with modern communication why that would be so.
Section 65DAA(1), (2) and (5) provide:
(1)If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
(2)If:
(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
…
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
I do not consider that I ought now make an order that is intended to operate for the remainder of the children’s infancy, for equal time, or substantial and significant time.
On the evidence, it is not an available option. The mother will more probably than not return to Denmark. The father is not currently free to move without unacceptable impact on his financial situation – which in turn would impact on his opportunity to remain closely involved in his children’s lives.
If each parent lives on a different continent, arrangements for equally shared time or substantial and significant involvement are not practicable at all, for reasons of difficulty of travel and finance. These aspects overwhelm the other aspects referred to in s 65DAA(5) that would favour equal time or no less than substantial and significant time with each parent, namely the parties’ capacity to communicate and the impact of such arrangements on the children.

The ultimate conclusion, including the significance of the “primary considerations” set out in s 60CC(1)

The choices therefore are to order one or the other of the primary proposals, which would see the children separated from one parent by great distance, or the “third option”.
In my view, the advantage/disadvantages of the mother’s primary proposal and that of the father, as immediate arrangements, are close to equal.
Mr Levy submitted that there was much more uncertainty associated with the mother’s proposal than with the father’s proposal. To the extent of the children’s familiarity with the established environment, I accept that this is so. But I do not see that separation of the children from the father is any less fraught or more fraught with difficulty and risk for the children, than separation from the mother.

Mr Levy submitted that the mother’s taking up living with Mr W was an uncertainty. This is so, but the children have the advantage that they have known and spent time with Mr W, as they have the advantage of being very familiar with Denmark and the environment there and their extended family and friends. If the father, as he indicates some wish to do, enters into a new relationship, that would be with a person currently unknown to anyone.
If there were no other options, I would lean marginally towards the mother’s proposal, because:
· If the children are in Denmark, the father may be able to visit more frequently than the mother, if they remain in Australia.
· I have the concerns expressed arising out of the foundation and intensity of the father’s feelings about “loss” of the children.
However, in my view, the best interests of the children will be served by their remaining in Australia for a further two years and then the mother being at liberty to take the children with her to Denmark to live with her. I have come to the conclusion that the children should remain here for two years because:
·   I accept and agree with Ms N’s conclusions that it is in the best interests of the children that both their parents live in such proximity that equal, or no less than significant substantial time, is possible with each parent.
·   I think it a strong possibility, even a probability, that the mother will remain in Australia for that period, though perhaps having some visits to Denmark in the meantime.
·   Two years will give M time to mature to close to his teenage years and E to a stage of greater cognitive development and maturity and facility with the English language.
·   Two years will allow the children the chance to remain at their current schools and for M to complete his primary schooling.
·   The children will, for the period, remain in an environment with which they have grown up, albeit change of residence is likely. Thus, in a period of turmoil following the breakdown of their parents’ marriage, change will be minimised.
·   I do not know the consequence for Mr W if the mother remains here for the next two years, but there seems to be a number of possibilities consistent with the continuation of his relationship with the mother, be that an extended holiday period here, some regular returns to Denmark for the mother.
·   The mother may in that defined period be able to obtain employment. Otherwise, financial assistance from the father for that defined period may well be possible.
·   The father will have time to calmly and methodically consider his future working arrangements. This may assist him to avoid anxiety.
·   The parents have abdicated to the court the resolution of their family dilemma, within parameters as set by them which can only lead to a poor result for the children. These parents have such capacities that they ought be encouraged to parent their children after separation including resolving dilemmas, rather than surrendering their responsibilities to the court.
·   Moreover, even if the mother does not remain in Australia, for all the other reasons given above, it is best for the children to do so for two years, and it is also likely that given the defined period, the mother would be able to maximise her time in Australia, albeit she might live in Denmark.
As to the decision that, after two years the mother be at liberty to take the children to Denmark to live, in addition to the factors already referred to, I have so concluded that that is in the children’s best interests or the reasons already expressed and:
·   I do not think the mother will remain here any longer than two years.
·   I think the father will do all he can to relocate to Europe and the prospects that he will are fair.
·   As earlier indicated, I consider a “shared” arrangement as between the countries of each parent’s preferred residence, likely to be considered a fair arrangement by these children.
·   Though some circumstances likely to affect a decision as to what will be in the children’s best interests in two years time may not be as expected, their best interests can be protected by the availability of further consideration by the court, if sufficient change of circumstance occurs. While the prospect of further proceeding is to be considered, I do not think the likelihood any greater from the arrangement that I propose, promoting as it does what is presently in the children’s best interest, than would arise if change as sought by either parent was implemented, with all the potential for harm that that contains.
·   If the mother stayed beyond two years, I conclude that she would have difficulty, particularly as the children become more cognisant of their parents’ emotions and thoughts, in concealing her dissatisfaction from them. This is likely to generate in them feelings detrimental to their equilibrium.
Because of the other factors, even if the father was not to move to Europe in two years time, I consider the children being with the mother in H, the arrangement that is best for them.
Section 60CC(2) provides:
(2)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 the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The second consideration does not require discussion in this case.
The first clearly does, but raises no broader or other issues than those already discussed. In my view, the orders proposed fulfil that primary consideration as best can be achieved in the circumstances.

Orders

I have in relation to time to be spent by the non-residential parent if the parents live on separate continents, largely adopted the arrangement proposed by the father, to allow the children some (longer) holiday time in their country of residence.
As to cost of travel, I have also adopted the father’s proposal of equal sharing. It is extremely difficult to specify the financial circumstances of each party following relocation of the mother and finalisation of the parties’ financial affairs. However, both are likely to have some property and some income.
In the interim orders was one providing for the mother to supervise the children, if the father was unable to, during times when he was the “residential” parent. I have not included that order as, unless it has the parties’ agreement, I consider it as a long term proposition unduly disruptive to the children’s routine. The parties can of course agree that the interim arrangements continue.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.

Associate:

Date: 6 November 2009