Grehan & Tarasovna
[2023] FedCFamC1F 372
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Grehan & Tarasovna [2023] FedCFamC1F 372
File number: MLC 2916 of 2022 Judgment of: GILL J Date of judgment: 16 May 2023 Catchwords: FAMILY LAW - PARENTING – International relocation – Removal by the father of children from Country B to Australia without notice to the mother revealing compromised parenting capacity and causing trauma to the children – prospects of children being relocated to Country C with mother carrying an attendant risk of re-traumatisation – Weight to be given to competing factors – Children to live with father in Australia – Parental conflict – Protective nature of order for equally shared parental responsibility – International travel Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA
Convention on the Civil Aspects of International Child Abduction done at the Hague on 25 October 1980
Cases cited: Morgan & Miles (2019) 60 Fam LR 160
MRR v GRR (2010) 240 CLR 461
Phillips and Hansard (2007) FLC 93-343
Taylor & Barker (2007) FLC 93-345
Division: Division 1 First Instance Number of paragraphs: 161 Date of hearing: 18-21 April 2023 Place: Canberra Counsel for the Applicant: Ms Chia Solicitor for the Applicant: Starnet Legal Pty Ltd Counsel for the Respondent: Mr Neil, SC Solicitor for the Respondent: Swan Lawyers Counsel for the Independent Children's Lawyer: Mr Eidelson Solicitor for the Independent Children's Lawyer: Perry Weston Lawyers ORDERS
MLC 2916 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GREHAN
Applicant
AND: MS TARASOVNA
Respondent
order made by:
GILL J
DATE OF ORDER:
16 MAY 2023
THE COURT ORDERS THAT:
1.Mr Grehan (the father) and Ms Tarasovna (the mother) equally share parental responsibility for X, born 2015, and Y, born 2017 (the children);
2.The children live with the father.
3.The mother spend time and communicate with the children as follows:-
(a)In Country C, unless elected in writing by the mother otherwise:
(i)Each year during the Victorian (Australia) school holiday period as gazetted by the Victorian government following the second and fourth school terms from the second day of the term holidays until no later than 72 hours before the commencement of the next school term;
(ii)In odd numbered years commencing in 2023, during the Victorian (Australia) school holiday period as gazetted by the Victorian government following the third school term from the second day of the term holidays until no later than 72 hours before the commencement of the next school term;
(b)Upon giving the father no less than six weeks written notice of her intention to spend time with the children in Australia for a period up to two weeks on one occasion during each of the children’s school terms, with changeovers to occur to and from the children’s school(s) and the mother shall ensure the children attend school during this period, including any extra-curricular activities.
(c)Unless agreed otherwise by the parties in writing, by electronic means each day between 7.00am and 7.30am as that time is determined at the place at which the children are living, during which time the father shall ensure that the children are given privacy.
4.In aid of Order 3(a) and the children’s time with the mother in Country C, unless otherwise agreed in writing:
(a)Up until the end of 2028:
(i)The father or his agent will deliver the children to the arrivals section at the main airport closest to the mother’s place of residence at the commencement of time; and
(ii)The mother or her agent will deliver the children to the arrivals section at the Melbourne airport at the conclusion of time.
(b)From the commencement of 2029 the children are permitted to travel to and from Country C as unaccompanied minors;
(c)The father shall pay for the cost of the children’s return flights to Country C;
(d)Whilst the children are to be accompanied on their flights the father shall arrange for and meet the costs of an adult accompanying the children from Melbourne airport to the closest main airport to the mother’s place of residence.
(e)Whilst the children are to be accompanied on their flights, in the event that the adult accompanying the children’s flights to Country C does not travel with the children on the return trip to Australia, then the mother shall arrange and pay for the costs of an adult accompanying the children on the return trip to Melbourne.
5.During periods of time that the children are spending with the mother pursuant to these orders, unless agreed otherwise by the parties in writing, the father may communicate with the children by electronic means each day between 7.00am and 7.30am as that time is determined at the place at which the children are staying, during which time the mother shall ensure that the children are given privacy.
6.The parents are at liberty to remove the children from the Commonwealth of Australia for temporary periods.
7.In the event that a parent is to cause a child to travel outside of Australia or Country C during periods of time that the child is with that parent then the following additional obligations apply:
(a)The parent proposing such travel shall give to the other parent no less than six weeks’ written notice in advance of the proposed travel providing:
(i)details of the names and places where it is proposed the children will be staying (being countries, cities and towns); and
(ii)details of the proposed departure and arrival dates to and from each country to which it is intended travel will occur;
(b)The parent proposing such travel shall give to the other parent no less than three weeks’ prior to the travel:
(i)a photocopy of all return airline and/or shipping tickets for the children evidencing the children’s return to Country C or the Commonwealth of Australia together with copies of all written itineraries;
(ii)written notice of the contact telephone numbers and addresses of all places where the children will be staying overnight while travelling;
(c)The parent proposing the travel must ensure the children travelling outside of Country C or the Commonwealth of Australia are covered by a valid travel insurance policy for the duration of travel, and a copy of such policy shall be provided to the other parent not less than 3 weeks prior to the proposed travel.
8.The parents do all things and sign all documents to ensure that the children have a current Australian passport and a current passport for any other country to which they are entitled and shall do all acts and things necessary to ensure that the passport is renewed no less than six months before expiry, and all associated costs shall be shared equally.
9.That the mother is permitted to apply for and obtain Australian, United States of America and Country C passports for the children without the father’s consent.
10.The children’s names shall be removed from the Airport Watch list.
11.The father shall maintain current Australian passports for the children and provide the mother with certified copies of same.
12.The father shall provide the mother with certified copies of the children’s original birth certificates or in the alternative upon the mother’s request, sign all documents necessary to allow the mother to apply for and obtain her own birth certificates for the said children.
Other Orders
13.Each parent shall notify the other if either child is seriously ill or is to be admitted into hospital at such times as the children are living with the parent.
14.Each parent is to keep the other parent advised in writing of any change of address or telephone contact number no later than 14 days before any proposed change including the details of their new residential address or new telephone contact number, with such notice to be in writing (including by email or text message).
15.The parents are each restrained from denigrating the other parent or members of the other parent’s family to the children or in the presence of the children.
16.The parents are each to use their best endeavours to ensure that no other person denigrates the other parent or members of the other parent’s family to the children or in the presence of the children.
17.That forthwith upon the making of these Orders and continuously thereafter, the parents shall each provide all authorities and shall give all necessary consents to ensure that the children’s treating medical practitioners are authorised and directed to communicate with, and provide information and copies of documents directly to, each parent upon either parent’s respective request and at the requesting parents own cost.
18.That within 21 days of the date of these Orders the parents shall do all things to advise the children’s school of both parents’ details as a parent and an emergency contact.
19.That forthwith upon the making of these Orders and continuously thereafter, the parents shall provide all authorities and shall give all necessary consents to ensure that the principal of the children’s school and/or the children’s schoolteachers, are authorised and directed to communicate with and provide any information and copies of documents directly to each parent upon either parent’s respective request and at the requesting parent’s own cost.
20.That both parents shall be at liberty to attend all official school functions and events to which parents are invited and/or expected to attend along with all special event days in which the children may be involved or are participating.
21.That both parents shall be at liberty to attend all parent/teacher meetings for the children as they may arrange.
22.That both parents shall be at liberty at all times to attend all sporting and school related or sporting extra-curricular activities and events in which the children are involved or are participating.
23.That both parents are required to provide copies of any documents held by them relating to the children following any reasonable request by the other parent to do so.
24.The parents are at liberty to depart from the arrangements under these orders by agreement in writing.
25.The Independent Children's Lawyer is discharged from the proceedings 60 days following the registration of these orders in a competent Country C court.
26.It is certified that it was appropriate for counsel to appear on the trial of this matter.
Registration
27.The parties shall forthwith do all acts and things to register these orders in a competent court in Country C, being the Family Court in City D or such other court as is appropriate under Country C Law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
Introduction
These proceedings concern the living arrangements for X, born 2015 and Y, born 2017, the children of Mr Grehan, the applicant father, and Ms Tarasovna, the respondent mother.
At present, the children live with the father in Australia, the father having removed them from Country B where they had lived their whole lives without notice to the mother in early 2022. The children and father are Australian citizens, although the children had only previously visited Australia on limited occasions. He seeks that the children remain living with him in Australia.
Although the mother, who is both a Country E and United States of America citizen, initially sought the children’s return to Country B, she has now relocated to Country C with her current husband who is a Country C citizen, near to where her other children, the half siblings of these children, currently live. She seeks that the children live with her in Country C.
The contest between the parties as to what is in the children’s best interests is one that can only be productive of a stark result in respect of the children’s relationship with, and benefits of relationship with each parent. If the father is successful, the children will have a limited relationship with the mother due to the effects of the parties’ geography. If the mother is successful, a similar outcome awaits the children’s relationship with the father.
DOCUMENTS RELIED UPON
Applicant father
The father relied upon:
(1)Amended Application for Final Orders filed 4 January 2023;
(2)Affidavit of the father filed 4 January 2023;
(3)Affidavit in reply of the father filed 16 January 2023;
(4)Affidavit of Ms F filed 5 January 2023; and
(5)Affidavit of Ms G filed 5 January 2023.
Respondent mother
The mother relied upon:
(1)Response to Amended Initiating Application filed 9 January 2023;
(2)Affidavit of Ms Tarasovna filed 9 January 2023;
(3)Affidavit of Mr H filed 9 January 2023;
(4)Affidavit of Ms J filed 30 May 2022;
(5)Affidavit of Ms K filed 1 June 2022;
(6)Affidavit of Ms Tarasovna filed 14 June 2022;
(7)Affidavit of Ms L filed 3 June 2022;
(8)Affidavit of Mr M filed 3 June 2022;
(9)Affidavit of Mr N filed 30 May 2022; and
(10)Affidavit of Mr P filed 10 January 2023.
Independent Children’s Lawyer
The Independent Children's Lawyer (“ICL”) relied upon:
(1)Affidavit of Ms Q filed 17 April 2023; and
(2)Affidavit of Ms Q filed 6 June 2022.
Orders sought
The specific orders sought by the mother and the ICL are annexed to this judgment. At the end of the case the father adopted the ICL’s proposed orders save for some modifications.
In general terms the father sought orders that provide for him to exercise sole parental responsibility, and for the children to live with him. Although he initially opposed orders that the children spend time with the mother outside of Australia, by the end of the hearing he no longer pursued such a limitation, although he did seek some safeguards to ensure that the children are returned.
The mother sought orders that she exercise sole parental responsibility, although she also stated that she was not averse to an order for equally shared parental responsibility, for the children to live with her in Country C and for the children to spend time with the father in both Country C and Australia. In the event that the orders do not provide for this but for the children to live with the father, the mother sought that the father have sole parental responsibility for the children, and that the children spend time with the mother in Country C during each school holiday period.
The ICL pursued orders for equally shared parental responsibility, for the children to live with the father in Australia and to spend time with the mother including in Country C. The ICL also sought orders in relation to parallel orders being made in Country C, or for the registration of Australian orders in Country C.
PRINCIPLES
The paramount consideration in determining what order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the best interests of each of the children. Those are to be determined on consideration of the matters set out at s 60CC of the Act, and in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.
The objects and principles contained at s 60B provide that:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It may be readily recognised that the objects and principles do not all necessarily point in the same direction.
In the light of the objects and principles, in order to determine what is in a child’s best interests, the Court is required to consider the two primary considerations and the additional considerations, as set out at s 60CC, to the extent that they arise in a case. In Phillips & Hansford,[1] Strickland, Ainslie-Wallace and Aldridge JJ explained that the considerations in s 60CC are “not a mantra to be recited in every case”. Rather, their Honours said that “only those that are in issue in the proceedings require detailed consideration”.
[1] (2019) 60 Fam LR 160.
In this case the s 60CC considerations with the most significant engagement were s 60CC(2)(a), which deals with the benefits of a child having a meaningful relationship with a parent, s 60CC(3)(b), being the nature of the children’s relationships with each parent and significant other persons, s 60CC(3)(d), being the likely effect of a change in circumstances, s 60CC(3)(e), being the practical difficulties and expense associated with a child spending time with a parent and s 60CC(3)(f) being the capacity of each parent to provide for the children's needs, including, but not limited to, emotional needs. It may be seen that these considerations overlap to a significant degree.
Although, consistently with s 60CC(3)(a), the views of each child were also the subject of some evidence, the ages and stages of development of each, combined with each child’s limited insight into the nature of the proposals means that this was not a consideration of weight.
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest.
In terms of the reasoning process or pathway that the court is to follow, the allocation of parental responsibility starts with a presumption that it is in a child’s best interest for there to be an order for equally shared parental responsibility. Such an order requires the parents to cooperatively make major decisions in relation to the child. It is, however, a rebuttable presumption, as it is not always consistent with a child’s best interests that such an order be made. The presumption is also rendered inapplicable where there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence.
If an order for equally shared parental responsibility is made, the court is required to consider whether an order for equal time is in a child’s best interests, or whether an order for substantial and significant time is in a child’s best interests, in that order, and, on either case, whether such is reasonably practicable.[2] In this case, even if an order for equally shared parental responsibility is made, given the mother lives in Country C and the father in Australia, there is no scope for the making of either an equal time or a substantial and significant time order, neither being reasonably practicable.
[2] See MRR v GRR (2010) 240 CLR 461
In this case a key circumstance is the fact that the parents live in different countries. The history of the matter is that each child has already been the subject of a significant relocation from their familiar home, and separation from a parent, a situation that will either continue, or be followed by a further relocation and separation from a parent.
While there is no separate category of relocation cases, such cases, and in particular cases that involve an international move pose hard questions with difficult consequences that weigh heavily on the children and the parents. The preferred approach is not to deal with the relocation as a discrete issue but, where possible, “as just one of the proposals for the child’s future living arrangements” (Taylor & Barker (2007) FLC 93-345).
In Morgan & Miles,[3] Boland J at [89] observed that:
80. It follows from my exposition of the legislation, that earlier core principles:
•that the child’s best interests remain the paramount but not sole consideration;
•that a parent wishing to move does not need to demonstrate “compelling” reasons;
•that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
•the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement, remain valid.
[3] (2007) FLC 93-343.
In this case, a simplifying factor is that each party is wedded to remaining in the country in which they currently reside. The father contemplates no move from Australia, even if the children are ordered to live with the mother. The mother contemplates no move to Australia, even if the children are to live with the father. Each party further leads evidence as to a lack of ability to live in the other country. In particular, the mother has established that she has no right to remain in Australia.
FACTUAL ISSUES
The parties lived in Country B during their relationship, which commenced in about 2005. X was born in 2015 and Y in 2017. The children were born in Country B. The parties had the assistance of a nanny who was employed by them. English, and the languages of Country B and Country E were spoken in the household, the mother being fluent in all three languages, the father speaking both English and the language of Country B.
The mother’s children from her previous relationship lived with the parties for a period, in particular the mother’s youngest child, R.
From 2018, the mother was reliant upon the father’s work visa for her right to remain in Country B.
The parties gave evidence about a number of incidents occurring during the relationship.
The father accepts that in 2019 he threw an object during an argument about whether he was having an affair.
In or about late 2019 a physical altercation took place between the parties, struggling over the father’s telephone, the mother accusing the father of infidelity. After the argument the father says that he deliberately damaged a photocopy of the parties’ marriage certificate and the parties’ rings. He then left for a work trip to City S.
The mother asserts that she regarded the relationship as over from February 2020, following an incident where she described saying to the father that she had suicidal thoughts. She says that the father responded to her “what a pity you didn’t commit suicide! It would have been better for everyone.” The mother said that when he later repeated this statement she told him that the relationship was finished. The father accepts that the parties occupied separate rooms from February 2020.
The father, however, asserts that separation did not occur until June 2021 (although in his Initiating Application he placed separation as at 18 March 2022).
It may be accepted that until the father removed the children to Australia in early 2022, there was ongoing occupation of a common residence by the parties, including moving together into a new residence, along with the sharing of expenses. The parties also continued to attend some social functions together.[4]
[4] Exhibit F2. (pictures from a wedding in father’s trial affidavit)
The mother started a relationship with Mr H in early 2021, having met him in 2020.[5] She did not tell the father about the relationship, although the issue of whether the mother had formed a relationship was a point of tension in the household.
[5] Affidavit of the mother filed 9 January 2023, paragraph 167.
The mother says that in early 2021 she introduced the children to Mr H. She says that although there were no displays of affection between herself and Mr H, the children may have understood that they were close to each other. Thereafter the children regularly spent time with the mother and Mr H together. The mother did not tell the father that she was introducing the children to Mr H.
The father accepts that there was a physical altercation between the parties in mid-2021, when the father took the mother’s telephone to check the mother’s taxi records. He explained that he wanted to see the records as he believed that the mother was seeing someone else. He took the phone, held it up to the mother’s face to unlock it and was then pursued by the mother. At least X was nearby during this incident.
In mid-2021, the parties moved apartments together, despite, on both accounts, then being separated.
A further incident occurred in late 2021, the father accusing the mother of being irresponsible for going away whilst the children were ill. He says that the mother struck him on the head and that he then pushed past her. He accepts that she shortly after accused him of having hit her with either his hand or a pillow. What actually occurred remained unclear.
Some effort was expended by the father during the trial to suggest that the mother was largely absent in the period leading up to the removal of the children to Australia, the mother having formed a new relationship.
It may be accepted that the mother formed a relationship with Mr H (to whom she is now married), whilst the parties were still under the one roof. The mother asserts that this started in early 2021,[6] at a point after she says that the parties had separated under the one roof. On the father’s case the relationship was still on foot. It does not advance the case to determine precisely when the relationship between the father and mother ended, other than to observe that the home was, as between the parties, a place of high tension.
[6] Affidavit of the mother filed 9 January 2021, paragraph 167.
I do not accept that the mother was an absent parent in the lead up to the children’s removal by the father. Such conflicts with the evidence of the nanny, and is not made out by the father’s tender of various text messages indicating that the mother was out for various evenings. The mother’s evidence was that she went out at times to avoid conflict with the father, describing abuse from him and conflict in front of the children. On her account this included being called a “shit mother” and “a cunt and a fucking slut.”[7]
[7] Affidavit of the mother filed 9 January 2023, paragraph 189.
I do not accept that the mother’s nights out constituted the practical abandonment of her role as parent that appeared to be suggested by the father. I am unable to make conclusions regarding the contested allegations of abuse, such matters not being explored to any significant extent in the hearing.
As best as can be reckoned, both parents were heavily involved in the children’s lives, their roles and input varying from time to time. Each had the assistance of a nanny. Each was employed.
The move to Australia
In early 2022, the father travelled to Australia with the children.
The month prior to this, the father used his sister’s credit card to purchase tickets to Australia. He tendered his resignation from his employment a few days before travelling to Australia, effective from the day before travelling. At the time of his resignation the father was reliant upon a family visa that was connected to his employment, and the mother and children were also reliant upon that visa. The cessation of the employment then rendered uncertain the mother’s status in Country B.
After telling the real estate agent in early 2022 that he wished to end the lease in Country B, the father terminated the lease on the home that he, the mother and the children had been sharing until his departure, paying for the lease then defaulting and forfeiting the deposit.
The father had further discussions with his former employer, including enquiring as to the process in respect of the visa. He styled this as a discussion about process rather than an attempt to have the mother’s status affected.
The father also spoke to Australian lawyers prior to his departure from Country B, commencing discussions in January 2022. He then lodged an initiating application on 22 March 2022, following his arrival in Australia.
The father accepts that he concealed his plans from both the mother and the children’s nanny who was intimately involved in the children’s care. He accepted that in order to effect the removal of the children he actively deceived the mother, obtaining her consent that he take the children on a local “staycation” whilst he was in fact planning to remove the children from the country.
It was uncontroversial that in early 2022 the father said that he would take the children to a local hotel for a “staycation” where they could swim and have a nice time.[8] The father and children left the mother and their apartment on the day of travel to Australia. The mother says that she agreed to this.
[8] Affidavit of the mother filed 9 January 2023, paragraph 9.
The next day, at 9.49 am the father messaged the mother that he and the children had just arrived in Melbourne Australia, and that he would let the mother know when they got to City T (being where the father’s mother and sister live).[9] The father later called the mother, telling her that it was in the children’s best interests to travel to Australia, and that the mother could come to Australia to see them. The father accepted that he removed the children from Country B without any knowledge on the part of the mother.
[9] Affidavit of the mother filed 9 January 2023, paragraph 15.
The mother says that the father had not even raised the possibility that he might remove the children from Country B.[10] Although during the relationship the father had previously raised the idea of the parties moving together to Australia, it was uncontroversial that the mother rejected such an idea. The mother, in fact, refused to characterise these exchanges as even amounting to a discussion about a move to Australia. However they might be characterised, they did not amount to the father placing the mother on notice that he was going to remove the children, or to the mother offering some form of agreement.
[10] Affidavit of the mother filed 9 January 2023, paragraph 16.
The father accepted that in removing the children to Australia he was taking them to a country that the mother was resistant toward. It was also the case that the children had minimal prior experience of Australia prior to the father’s removal of them. Although they are Australian citizens, X had only been to Australia twice, for a few weeks in 2016 and for a few weeks again in 2019, and Y once, for a few weeks in 2019. Country B had always been the children’s home. The move for the children was to a strange country, although the children did have pre-existing relationships with the paternal grandmother and paternal aunt, particularly given the paternal grandmother’s previous travel to Country B.
The father accepted that he, in removing the children, did not care what the mother thought. He described his actions as “horrible.”
The father accepted that his actions in removing the children have caused the mother anguish, and accepted that his actions showed a complete disregard for the children’s right to have the mother meaningfully involved in their lives. Whilst the father asserted that he gave weight to the deprivation of the mother’s meaningful involvement in the children’s lives in deciding to remove the children, this is an assertion that could not be accepted, there being no appearance of any such weight being given to the importance of such involvement by the mother.
The father attributed his decision to the need to ensure that the children were safe, to provide security and to allow the children to move forward and develop. He said that it was a matter of necessity and that he was motivated by the children being without legal status in Country B, his financial and educational concerns for them in Country B, and his concerns that the mother might take them to Country C.
The father was challenged as to whether his actions were designed to force the mother out of Country B and away from her relationship with Mr H. He denied that this was so.
It may, however, be observed that his actions at the point of departure removed the children to another country, ended the lease on the property that they occupied together and placed at uncertainty the mother’s capacity to remain in Country B due to her visa status. The father accepts that at the time of removal he was suspicious that the mother was in a relationship with Mr H. He accepts that he told the mother that she could come to Australia to see the children. The father’s actions not only demonstrated a callous disregard for the mother’s personal circumstances, but, contrary to his denial, appear calculated to force her to Australia, in a context where he suspected that she was in a relationship with Mr H.
As it unfolded, none of the justifications relied upon by the father explained any need for the father to act so precipitously as to remove the children in the manner that he did. Those justifications are examined below.
Firstly, in relation to the legal status issue the father ultimately conceded that there was nothing about the legal status of the children in Country B as at early 2022 that required that action be taken immediately by him to remove them from the country. Although he explained that there was uncertainty, in that his employment and visas could effectively be revoked at any time, he accepted that there was no immediate threat. The material tendered indicated that the father was highly valued by his employers, who did not want him to leave the position, a matter that pointed away from his position being in immediate peril.
Similarly, the issues as to education were less than persuasive. Both X and Y were attending school free of tuition fees, by virtue of the father’s employment. The father accepted that there was no immediate issue for Y regarding this school arrangement, but rather the issue was in respect of X, as he would only be able to remain at the school for the balance of that school year, until late 2022, after which he said that there would be issues in finding and funding another school. While it may be anticipated that some action would need to be taken in advance of late 2022, there was no demonstration by the father of the need to take the presumptive action of early 2022.
While the father also pointed to the financial circumstances of the parties in Country B, he accepted that in leaving Country B he had left behind subsidised education for the children, a comfortable three bedroom flat, and a nanny, in circumstances where he was in employment and the wife also had two jobs. When he left for Australia he had secured no employment, nor did he have any steps in place to secure work, a situation illustrated by the lengthy delay before the father secured employment in Australia. Further, on arrival in Australia, the father and children moved into, and have remained living with the father’s mother, the father and children sharing one of the two bedrooms in his mother’s residence. In terms of financial support for the children, the father was unemployed or studying for the bulk of the period from arrival in Australia until the hearing.
A further reason proffered by the father for the removal of the children was his concern that the mother may remove the children to Country C, noting that the mother had previously expressed a desire that they all live in Country C, and that the mother’s other children are living there. Further, at the point of removal the father says that he was suspicious that the mother was in a relationship with Mr H, who is a Country C citizen.
The father however accepted that as at early 2022 the mother had never suggested taking the children to Country C without his permission, nor had any third party suggested that the mother had said such a thing. He accepted that he was unaware of any preparation by the mother to remove the children to Country C. The father, rather, relied upon a “gut feeling that something was off.”
When asked to explain how he had asserted in an affidavit of March 2022 that he believed that the mother was planning to leave for Country C with the children, he explained that it was because of the state of the relationship between he and the mother. He pointed to no further factors than identified above to explain his then assertion to the court. If genuinely held, the father’s fear was at best wholly speculative and without reasonable basis.
The father has also pointed to the mother’s conduct (presumably her angry exchanges with him since his taking of the children) as potentially pointing to a risk of removal. To the extent that this anger is relied upon to suggest a risk at the time of removal, such is not rationally sustainable. To the extent that it is relied upon to suggest a risk of retention by the mother after his removal of the children, such will be addressed later.
During his oral evidence the father supplemented the above reasons, asserting that it would be much more detrimental to go through the dispute about the children in Country B, and that he had no confidence in the Country B legal system. In this sense it appears that the father’s removal of the children could be seen as a pre-emptive strike, justified on the basis of a flimsy pretext of concerns for visa status, education, finances and risk of removal by the mother.
It may be observed that there was no matter raised by the father that genuinely pointed to the need to act in the manner that he did in removing the children.
Following the children’s arrival in Australia, the mother describes that the parents had a conversation where the father told her that she would be able to speak to the children at any time. The mother accepts that she described the father as a “criminal” and that she said that he had stolen the children from their mother. She told the father that he would not escape the consequences of his child abduction.
Over the next few days the parties exchanged a number of messages. In general terms they involved the father insisting that the mother be civil in the call to the children, and the mother responding, in strong and abusive terms, that the father had done wrong in abducting the children and asking when he would return them.
Three days after the children’s arrival in Australia, the mother reported the father’s actions to the local police in City U.
The following day the father told the mother that she could speak with the children if she kept things “civil” and without “accusation or name calling.” He also insisted that the conversation be in English or the language of Country B (implicitly not in the language of Country E, a language then often used by the mother and children). The mother says that in this time she repeatedly asked the father to return the children to Country B. She also contacted Australian authorities, who advised her that they could conduct a welfare check if the mother wished. The mother, however, declined this offer as she did not desire the children to be disturbed by a visit from the police at their home.
In the context of these exchanges, the father first permitted the mother to speak to the children five days after their arrival in Australia, and then again about a week later, before the mother saw the children face-to-face in Australia on 11 April 2022, following the father’s application first being dealt with in court.
The mother accepts that she has spoken in abusive terms to the father since the removal of the children. She describes that she felt in “helpless despair” and was in the “grip of intense feelings” following the taking of the children.[11] She says that she found those feelings difficult and, sometimes, impossible to control. She further says that she understands the need to manage her anger, and that she has participated in a parenting course to assist her in the circumstances.[12] Importantly, the mother says that she has progressed in how she feels about the father’s actions. She describes that she has worked on forgiving him, and although that process is as yet incomplete for her, that she has now largely forgiven him. As described by the ICL, the mother’s evidence on this point was compelling.
[11] Affidavit of the mother filed 9 January 2023, paragraph 164.
[12] Exhibit M9.
Current circumstances
The father and children live with his mother in a two bedroom residence in City T, the father and children sharing a room. The father’s sister and her family live across the road from them. The father enrolled the children in a local school. This was without reference to the mother. The father did not include the mother on the enrolment form, and wrongly recorded the children as not having siblings.[13] He also did not disclose to the school that the children speak the languages of Country B and Country E in addition to English.
[13] Exhibit M10.
The father has not informed the school of the circumstances of the children’s removal from Country B, meaning that the teachers have been left in the dark about circumstances that have the potential to be traumatic and troubling to the children.
While the children spoke English, and the languages of Country B and Country E in the home that they shared with the parents, and despite the mother’s request to the father, the children have not been enrolled in language tuition, the father asserting that such would impose too great a burden on the children. He says that he sometimes speaks in the language of Country B to the children, and sometimes plays Country E cartoons to them, which appear to be poor substitutes for what the children experienced in their home life in Country B. The mother notes that although Y appears to understand the mother when she now speaks in the language of Country E, he is unable to speak it himself. X still holds some Country E language skills, but it appears that both children have suffered a decline in the ability to communicate in the mother’s native tongue.[14]
[14] Affidavit of the mother filed 9 January 2023, paragraph 105.
The father has organised counselling for the children through an organisation called “V Organisation.” Although the mother denied that she was consulted, she in fact gave her permission prior to the counselling taking place.
However, the father engaged in misrepresentation to the counsellor, telling her that the family report writer recommended that the children be with him, a recommendation that was not made by the report writer. The father also said that he could not recall whether, in explaining the children’s situation to the V Organisation counsellor, that he had told her of the circumstances of his removal of the children from the mother and bringing them to Australia.
Interactions with the mother
Pursuant to orders made on 11 April 2022, the mother spent time with the children from 7 pm on 11 April 2022 until 10 am on 19 April 2022.
The father alleges that the mother, on arrival for the first court ordered time with the children, screamed at him that he had stolen the children from their “loving mother.”[15] He says that the mother was abusive to him on one occasion when he sought to speak with the children while they were with her on this visit. He further says that, on 19 April 2022, after the visit X spoke about going back to City U, that the mother did not want the father and was taking them back to be with Mr H, and that he and his brother would buy toys together in City U.[16] X also said that the mother had told him that the father had hit her, that he was questioned about having brought the children from City U and that X told the father that he was a “bad person.”[17] He says that the children said he was bad, in part because he had hit the mother into the wall with a pillow. X said that it was scary coming to Australia “because mummy said it was.”[18]
[15] Affidavit of the father filed 4 January 2023, paragraph 119.
[16] Affidavit of the father filed 4 January 2023, paragraph 122.
[17] Affidavit of the father filed 4 January 2021, paragraph 124.
[18] Affidavit of the father filed 4 January 2021, paragraph 125.
After a subsequent visit in early 2022, the father says that X said that the mother was taking them back to City U, that “everyone in the earth doesn’t like you” and Y said that the mother wanted to spit in the father’s face, but that he told her to stop.[19] He says there was then further discussion where the children raised the issue of why the father had brought them to Australia, and that Mr H would be their stepfather, and querying whether the father would be their father anymore.[20]
[19] Affidavit of the father filed 4 January 2021, paragraph 126.
[20] Affidavit of the father filed 4 January 2021, paragraph 127.
The father says that in early 2022 when the mother was speaking with the children, she again referred to the father as having “stolen” the children. The father ended the call. He says that when he called back the mother said that he had abducted the children, and that he then ended the call again.[21]
[21] Affidavit of the father filed 4 January 2021, paragraph 130.
The father says that the mother and children speak on a daily basis, on average for about fifteen minutes.[22] He says that often the children are resistant to beginning the calls. He says that X sometimes covers his ears, and that he suspects that the mother is saying inappropriate things in the language of Country E to the children. He says that following calls he has been called a “poo” and has been asked, after a call in mid-2022 whether he will still be the children’s father.[23]
[22] Affidavit of the father filed 4 January 2021, paragraph 132.
[23] Affidavit of the father filed 4 January 2021, paragraph 135.
He says that after various calls the children have said what they would do when they return to City U.[24]
[24] Affidavit of the father filed 4 January 2021, paragraph 139.
The father describes that in mid-2022 the mother called out, whilst on a call to the children “you stole the children.”[25]
[25] Affidavit of the father filed 4 January 2021, paragraph 218.
The father says that the mother has been abusive to him, and has threatened him about future communication with the children should they return to City U.
The mother denies having exposed the children to the conflict as described by the father. However, the mother accepts that the children have spoken to her about having been stolen by the father. This is indicative that the children have been exposed at some point to the mother’s view that this is what the father did.
The mother complains that the father interfered with and monitored the children’s interactions with her. She describes that the father previously gave commentary on what she said to the children, and intervened when she spoke in the language of Country E with the children.[26] She also describes that the children make hostile comments directed to the father during calls.
[26] Affidavit of the mother filed 9 January 2023, paragraph 108 and 133.
Justice Carter made orders on 15 June 2022 requiring that the parties not record the interactions with the other party, and that the father give the children privacy during calls. While the mother does not make further criticisms of the character above, she complains that the privacy is compromised as the father walks in on the children during calls. The father, for his part, asserts that he attempts to encourage the children in their communications with the mother.
Neither party pursued these allegations in the context of their conflicting affidavit evidence during the trial. In the absence of testing of the conflicting evidence there is an insufficient basis to conclude that the mother has exposed the children to the dispute to the degree that the father asserts, although the children have been exposed to her view that they were stolen. It may also be observed that the mother’s characterisation of the father’s actions as abduction was not unreasonable given the manner of their removal, however, her exposure of the children to her characterisation would undoubtedly be unsettling and confusing for them. Further, it may be concluded that the father was, at least early on, interventionist in the mother’s time with the children.
The father says that since coming to Australia he has communicated with the mother daily, and has shared photos with her.
He accuses the mother of sending hundreds of messages accusing him of abducting the children, of thereby being a criminal, and that she has been abusive in her messaging. It may be concluded that the mother was vociferous in her complaints to the father that he had abducted the children.
The father also says that his mother was threatened by the mother’s brother, and that he has received a veiled threat from the mother about the father owing her brother.
Divorce
The parties are now divorced. The mother filed an application in April 2022 which was opposed by the father on the basis that the parties had not been separated for the requisite twelve months. The matter came on to be determined in June 2022 at which point the father agreed that the parties had then been separated for a sufficient period. It was put to the father that he had opposed the divorce as a means of continuing the marriage, noting his inconsistency as to the date of separation, initially and wrongly stating on the Initiating Application that the date of separation was in March 2022. However, I am unable to determine that the opposition was other than for the reason expressed by the father given there being some ambiguity as to the end of the relationship. It appears that the parties held different views about what constituted the end of the relationship.
Proposals as to future living arrangements
The father is now employed. He proposes that the children live with him. He says that he will obtain accommodation independent from his mother, but intends to live locally to his mother and sister. He intends no change to the children’s schooling arrangements.
The mother proposes that the children live in Country C with herself, Mr H and their half-sister R. The mother led evidence persuasive that she and the children would have a right to live in Country C by virtue of her marriage to Mr H.[27] The mother describes that she has been offered employment. She proposes that the children attend an international school so that they may be taught in English as well as the language of Country C (a language that they are not as yet familiar with).[28] When challenged as to capacity to meet the expense of an international school Mr H expressed a commitment to utilise his savings and to sell his apartment if necessary. While the durability of the relationship between the mother and Mr H was challenged, there is no good reason to view it as fragile.
[27] Exhibit M8.
[28] Affidavit of the mother filed 9 January 2023, paragraphs 70-71.
The mother says that one of her reasons for moving to Country C was so that there were stronger guarantees for the court and father of the children’s return, Country C being a Hague Convention country whilst Country B is not.[29]
[29] Affidavit of the mother filed 9 January 2023, paragraph 62.
The family reports
Two family reports were prepared in this matter by Ms Q, on 7 June 2022 and 13 April 2023.
The first report was conducted with a face-to-face assessment of the children and the father, with the mother, Mr H and R taking part remotely by electronic means.
The reporter observed a warm and close relationship between the father and the children.
The children were then resistant, refusing to take part in the assessment with the mother. She observed that the father did not set boundaries for the children to cause them to participate. The family report writer considered that, as a consequence of the manner of their removal from Country B, that “[X] and [Y] have been left feeling confused, bewildered, lacking confidence and suffering some grief at not having [Ms Tarasovna] close by. It is my view that on the day of the interviews, all of these feelings were at play for [X] and [Y].”[30]
[30] Family Report filed 7 June 2022 paragraph 72.
The mother was physically present for the preparation of the second report. In contrast to the first assessment process both children were cooperative participants.
In the second assessment, X expressed that he feels safe, although it was unclear what it was that he then felt safe from. He spoke positively about both parents, but also recalled that in Country B the father had called the mother names. He expressed that he would miss the father if he was living with the mother, but also that he would be sad if it was determined that he would live in Australia, being concerned that the mother would have nightmares.
Y said that he would be happy to live with either parent.
However, given their ages and stages of development the family report writer considered that the children had little understanding of the reality or ramifications of living in either country with either parent. She considered that they were too young to be able to provide an informed view.
During the assessment the children appeared happy to see the father, the mother, Mr H and R, the children being “all over” the mother and happy to be physically close to her.[31]
[31] Family Report filed 13 April 2023, paragraph 69.
The children displayed a warm and close relationship with the mother, a warm and accepting relationship with Mr H, and a warm and close relationship with R.
As in the first assessment, the children displayed a warm and close relationship with the father.
The family report writer considered that “the trauma experienced by [X] and [Y] left them confused, possibly feeling insecure, as well as feeling wary about what may happen next.”[32] Ameliorating the impact of the removal has been the time that the children have subsequently spent with the mother.
[32] Family Report filed 13 April 2023, paragraph 72.
In her oral evidence the family report writer considered that the capacity to provide for the children’s well-being and emotional needs was critical to determining which parent the children should live with, and that if one parent presented risk in respect of the children’s emotional well-being, then it was best not to live with that parent. Her view was that each parent is capable of providing for the well-being of the children on a day-to-day basis.
The family report writer observed that if it is the case that the father currently manifests a lack of insight into the impact of his actions in removing the children, then such would call into question his capacity and will to support the relationship with the mother.
Whilst the report writer saw positive implications as to the father’s support of the children’s relationship with the mother from the improvement in their presentation across the two assessments (that their relationship appeared to be “back on course”), she also considered that his understanding of the children’s well-being needs was undermined in his failure to tell the children’s counsellor that the children were removed in the manner that they were (she considered that whether the children understood that the mother did not acquiesce to their removal, or abandon them, is a matter that is significant to the impact upon the children of the move to Australia), his telling the children’s counsellor that the report writer had made recommendations that the children stay with him when she had not, his failure to communicate the circumstances of removal to the school and teachers to enable them to understand where the children may be coming from, and in his restrictions in permitting the parents of the children’s school friends from understanding the children’s circumstances. She also considered that the father preventing the mother from communicating with the children in the language of Country E may have been significantly puzzling and confusing for the children.
The report writer placed significant emphasis on the importance of stability for the children, particularly in the context of the trauma and instability that they have already experienced.
The report writer observed that the children’s removal from Country B had been traumatic for them. She also accepted the ICL’s proposition that a move to live with the mother in Country C carries with it the risk of re-traumatisation from such a major disruption to the children’s lives. Further, accompanying such a risk is that the children would need to deal with such while living in new circumstances, including the new family arrangement of being in a household with Mr H, in a foreign country with foreign language and a new school. She accepted that this may be like the whole world being turned upside down again for the children, and may lead to them feeling insecure, and anxious that they may face further such changes in the future. She accepted that this could constitute trauma on trauma, compromising the children’s recovery from the trauma occasioned by the father’s removal of them, and leaving them with insecurity as to their futures.
DISCUSSION
The best interests of each of the children form the primary consideration in determining what orders should be made, including which parent the children should live with and, as an incident of such, which country the children will live in.
The focus that this court is required to give to the best interests of the children means that while a parent may have a legitimate grievance as to the conduct of the other parent, it is not the role of the court to enact retribution in relation to that grievance. Any such grievance (for example, the unilateral removal of the children by the father) is taken into account only insofar as it bears upon the children’s best interests, not in order to right a wrong between the parents.
An important aspect of the orders that will govern these children are the arrangements for decision making about them. Given the background recited above, it may be taken that there are serious interpersonal difficulties between these parents. Despite this the ICL’s position is that there be an order for equally shared parental responsibility.
Such an order would place upon these parents the requirement to make the major decisions for the children cooperatively, without the scope for one parent to make such decisions without reference to the other. The requirement that the decisions be cooperative can be expected to be one that these parents would struggle with.
There are however a number of circumstances that indicate that such a regime would be workable despite the personal difficulties between the parents.
The first circumstance flows from the mother’s evidence that she has moved in her attitude to the father and his conduct, as indicated in her evidence where she attested to having mostly forgiven the father for his conduct in removing the children.
The second circumstance, as submitted by the ICL is that the issues that may require the cooperation of the parents in terms of long-term decision making are anticipated to be limited. No current issues emerge, for example, regarding schooling, health or religion.
An important matter identified in support of an equal shared parental responsibility, again as submitted by the ICL is that such would be protective against the father’s unilateral exercise of parental responsibility as seen in the removal of the children and what has followed in respect of his decisions about education and language.
The same issues have not been identified in relation to the mother.
Bearing these matters in mind, it will be necessary to return to the allocation of parental responsibility on determination of which parent the children will live with.
There is a strong case that points toward orders for the children to live with the mother. They have a warm and positive relationship despite the separation that has been imposed upon them. They have a positive relationship both with Mr H, and with their sister R, with whom they would also be living. Although its particular importance has not been identified, they would also be proximate to their other siblings. There are appropriate proposals for their living arrangements, education and spending time with the father if they are to live in Country C.
Further, the mother has not demonstrated the same serious deficiencies in her parenting capacity as has the father. The father has shown a lack of either regard for, or understanding of the importance of the relationship between the children and the mother, in his removal of the children. He has uprooted the children from their home country, placed barriers in their interactions with the mother, and upended their lives in a manner productive of trauma for the children. They have been left feeling confused, possibly insecure and wary of what may happen next, having been so abruptly removed from their mother and home. The father’s actions have traumatised the children. Their capacity to communicate with the mother in the language of Country E has degraded or disappeared. Even in retrospect the father’s understanding of the significance of his actions has been unconvincing.
If orders were made for the children to live with the mother they would not be under the day to day care of a father who has displayed such a poor commitment to, or understanding of their long term and day to day needs.
Against that, it may also be seen that despite their removal the children have, at present, warm positive relationships with the mother, Mr H and R. While that may be taken in part to have come from the commitment that the mother has shown in travelling to Australia and spending time with them, and in her commitment to utilising electronic communication with the children, it also falls in part to the father who has facilitated and promoted the electronic communication between the mother and children. This has seen an improvement across the two assessment processes engaged in by the report writer.
Further, as in the case of the mother, it appears that the father is generally competent to provide the day to day care for the children. In his care the children have the benefit of engagement with his mother and sister and her family (albeit in circumstances where they appear to harbour some hostility toward the mother). Although the living arrangements, being the sharing of a bedroom in the mother’s home for an extended period, have been restrictive, such appear unlikely to be the ongoing arrangement. Despite the lack of information provided to the school by the father, and to the counsellor, the children appear to have settled and are immersed in extra curricular activities.
Importantly, the report writer has assessed that the children are at risk of exposure to further trauma and uncertainty if they are to be removed from the care of the father into the care of the mother in Country C. Whilst it is true that, unlike the father’s actions, this removal would be pursuant to a court’s evaluation as to the children’s interests, and would take place in an orderly manner, the children would still face a reasonably abrupt removal from one parent’s care into the care of the other, and into a strange country, school, language and household.
The context of an order for the children to live with the mother in Country C is one where they have already suffered the removal from one parent, with a change in country, school and home and ongoing limitation in the relationship with that parent. Orders to live with the mother would see, in general terms, a repeat of such features, albeit with more appropriate arrangements to support it.
The risk, identified by the report writer is that whilst ongoing stability is helpful to promote recovery from the trauma that accompanied the original removal, should orders be made for the children to live in Country C, they potentially face trauma on trauma, an effect deleterious to their well-being.
A further issue arose during the trial, but which was subject to only limited attention and, to a large degree, not pursued. That was the issue of the children being returned to Australia by the mother should they travel to spend time with her outside of Australia.
The mother holds a Country E and a United States passport. She proposes that the children live with her in Country C or, in the alternative, spend time with her in Country C. While at the commencement of the proceedings the spectre of non-return by removal to a third country was raised, it received not serious attention. By the end of the proceedings what was sought by the ICL and father was the assurance of registration of orders in Country C or the making of parallel orders, Country C being acknowledged to be a participant in the Convention on the Civil Aspects of International Child Abduction done at the Hague.
The mother offers to undertake such a process. It should be clear that she does not ask for the court to order registration or the entry into parallel orders, by rather she offers to do so as an added security.
A number of observations emerge. Firstly, Country C in a signatory to the relevant convention. However, no evidence was led as to the domestic efficacy or implementation of the Convention to secure the return of children. Secondly, no evidence was led as to the availability of, or mechanisms to secure the making of parallel orders in Country C, or even, from a Country C perspective, the propriety of doing so. Thirdly, there was limited evidence as to a registration process. That evidence stipulated that orders of this court are automatically recognised in Country C if declared by the Family Court at City D to be enforceable.
Given the lack of serious pursuit of this issue with the mother, given the general tenor of the mother’s evidence, and given the mother’s evidence as to her move to Country C being in part to bring herself within a Hague Convention country, I do not harbour significant concerns as to the potential for the children to be removed. To the extent that the concerns were derived from the mother’s reasonable fury at the father’s actions in removing the children, her evidence as to a shift in her attitude provides a compelling counterbalance. The mother should merely be taken up on her offer in respect of registration given that such will give clarity as to the binding nature of the orders of this court in Country C, and provide further assurance.
It may then be taken that the prospect of retention is not a significant issue within the determination of what is in the children’s best interests. Whether they live in Australia or in Country C it can be anticipated that they will spend time with their other parent in the other parent’s home country.
The difficult issue is which parent the children should live with, in circumstances where that will have a flow on effect as to which country the children will live in.
That is an issue that can only be resolved by assigning weight to the various matters pursued by the parties and, in particular, the two major issues canvassed above, being exposure to the limitations in the father’s parental capacity weighted against the prospect of potential re‑traumatisation by a further move.
Where, as assessed by the report writer, the children face their whole world being turned upside down yet again, and face a risk of being insecure and anxious that they may face further such changes in the future, and then a further risk that the experience could constitute trauma on trauma, compromising the children’s recovery from the trauma occasioned by the father’s removal of them, heavy weight is placed upon these potential consequences. They outweigh the other matters that point to orders to live primarily with the mother, including the weight to be assigned to the father’s demonstrated parenting capacity deficits.
Given those deficits it is important to ameliorate them in the realm of long term decision making, by providing for equally shared parental responsibility despite the difficulties that the parents will face in cooperative decision making. This acts as some corrective in relation to the father’s deficiencies in parenting capacity.
CONCLUSION
Orders will be made for equally shared parental responsibility, and for the children to live with the father.
While the father sought that there be a departure from an equal sharing of parental responsibility at least in part, due to logistical issues, I am unable to identify what logistical issues mean that the parents should not be equally involved in major long term decisions.
Difficult questions then emerge as to the arrangements for the children to spend time with the mother. Prior to the children spending time overseas with the mother the ICL and the father sought that mirror orders be entered into in Country C. No evidence was led in respect of mirror orders, and so neither their availability nor efficacy has been established, leaving no justification for such to be a prerequisite for travel.
The mother has offered to register the orders of this court, as set out above. Whilst the orders should be promptly registered in Country C, as this provides added certainty about the children’s arrangements, this should not be a prerequisite to the children’s travel, as no significant risk of non-return on the part of the mother has been made apparent. The parties will be the subject of joint obligations to effect the registration promptly.
The mother sought that the children travel to Country C each school holiday period, departing the day after the last day of school and returning the day before the commencement of the school term.
The proposal of the ICL is for the children to spend time with the mother in Country C during the first and third school holidays, along with each alternate long summer holiday, departing for Country C on the second day of the holidays and returning no later than 72 hours prior to the recommencement of school.
The father adopted this arrangement, but for seeking for the departure during the long summer holiday to take place on the fifth day of the holidays, with the return of the children on all of the holidays no later than five days prior to the recommencement of the term.
While there is some attraction in permitting the children time around their travel, such a consideration is of lesser weight than benefits of maximising the time that the children spend with the mother.
The mother’s proposal would mean that the children would have no holiday time in Australia, and no holiday time with the father and miss out on that experience with him. They should not travel every holiday period to Country C.
Rather, a hybrid of the mother’s and the ICL’s proposals should be adopted. The time that the children have with the mother ought to be maximised by their spending of the long break each year with the mother, along with the end of term 2 holiday period each year, and an alternating arrangement for the end of term 3 holidays. As part of the maximising of time with the mother, the ICL’s proposal as to timing of travel should be adopted as being also sympathetic to the demands placed on the children by international travel.
In the event that she was successful, the mother proposed that she would meet the costs of travel for the children to spend time with the father. In the event that the children are to live with the father, the ICL and the mother proposed that the father meet the costs of the travel, including for the accompanying adult until the children reach an age to travel unaccompanied, with the parents or their agent sharing the task of accompanying. The father, however, sought that the father meet the costs of the travel of the children, subject to an equal sharing of the cost of the accompanying adult. Little focus was given by the parties to why the costs of travel should be divided in a particular manner.
By the various orders pursued by each of the parties there is a tacit acceptance as to capacity to the extent necessary to meet the orders pursued. The key consideration in allocating the expense burden is ensuring that the children’s relationship with the mother is able to be supported by travel. The tacit acknowledgements are sufficient to be persuasive that as long as the orders sit inside what has been conceded the travel should reliably be able to take place.
Accordingly, the orders will provide for the father to meet the children’s expenses, with each parent responsible for half of the expense of the necessary accompanying adult travel.
All parties asked that orders be made to allow the mother to spend two weeks with the children in Australia during each school term at her nomination. The mother and the ICL sought that there be daily electronic communication, whilst the father sought that it be limited to four to five times per week. The father sought that he speak to the children in the same manner whilst they are visiting the mother. The report writer had expressed some concern that the daily electronic communication may be too burdensome for the children. However, daily contact has been part of the arrangement that has seen the relationships between the children and the mother restored and should be continued, despite the potential burden.
The parties were in some dispute in relation to obtaining passports for the children. The mother seeks to obtain all passports that the children are entitled to, presumably including a Country E passport given the mother’s nationality, and potentially a US passport. Whilst the father sought that there be a restraint on applying for passports, there seems no significant reason as to why this should not occur, given that the substantive opposition to international travel on his part has been let go.
Orders will also be made generally in accordance with those sought by the mother to facilitate the children otherwise being able to travel overseas, noting that the children have spent the majority of their lives overseas, and the parents have spent significant periods living outside of Australia. Those orders will require relevant notice to be given such that if an issue arises the other parent may take appropriate steps in advance.
Otherwise each of the parties sought various orders allowing access to information, and restraining the parties from exposing the children to their dispute. Such orders should be made, other than the orders sought by the mother to restrain discussion about the proceedings, leaving such discussion to a counsellor. Whilst the involvement of the counsellor is appropriate, it is a matter that the parents can deal with absent orders to do so. The orders proposed provide too restrictive a regime for explaining the orders to the children. Whilst the children should not be exposed to the dispute, the fact of the orders, including what they mean, and that both parents desired that the children live with them, are the sort of matters that may require ongoing communication, but which a restraint on discussion would prevent to the potential detriment of the children.
Orders will be made accordingly.
I certify that the preceding one hundred and sixty-one (161) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 16 May 2023
ORDERS SOUGHT BY THE INDEPENDENT CHILDREN'S LAWYER (EXHIBIT C3)
1.That the children of the marriage
X born 2015, and
Y born 2017
Live with the Father.
2.The Father and Mother equally share parental responsibility for the said children and in the event they cannot agree in relation to any long term parenting decision required concerning the said child/ren, they shall attend mediation and use their best endeavours to reach a consensus concerning same, prior to initiating any legal proceedings.
3.The said children be removed from the Airport Watch list.
4.The Father maintain current Australian passports for the said children and provide the Mother with certified copies of same.
5.The Father provide the mother with certified copies of the children’s original birth certificates or in the alternative upon the Mother’s request, sign all documents necessary to allow the mother to apply for and obtain her own birth certificates for the said children.
6.The Mother shall make application to the appropriate Court in Country C and obtain Courts Orders in that Jurisdiction which provides for mirror Orders to be made in that Jurisdiction in relation to these Orders concerning residence, parental responsibility and spend time arrangements for the said children
7.The Father shall consent to the said Country C Court making mirror Orders in that jurisdiction in relation to these Orders concerning residence, parental responsibility and spend time arrangements for the said children.
8.In the event that the Father fails to comply with Par. 7 above, this matter be remitted back to Gill J for his further consideration and adjudication concerning any application made regarding that event.
9.Pending Par. 6 and 7 being complied with and the said Orders being made by the appropriate Country C Court, the Mother spend time with and communicate with the said children in the terms outlined in Par 10 e. and g, save that pending Par. 6 and 7 being complied with and subject to any Orders made by Gill J. pursuant to Par. 8 above, the Mother may spend the said time during any term and summer holiday in Australia, rather than during school terms.
10.That upon Par.6 and 7 being complied with, and the said Orders being made by the appropriate Country C Court, the Mother spend time with and communicate with the said children as follows:-
(a)To be exercised in Country C on the first and third term holidays from the second day of the term holidays until no later than 72 hours before the commencement of the next school term.
(b)To be exercised in Country C on each odd numbered year commencing 2023/24, during the long summer Australian school holidays, from the second day of the holiday period until 72 hours before the commencement of the next school term.
(c)the Father shall pay for the cost of the return flights to Country C including the costs of an adult accompanying the said children from Melbourne airport to the closest main airport to the Mother’s place of residence.
(d)for the purposes of changeover in relation to Par 9 a. and b. above, and until such time as the children are legally able to travel unaccompanied, but no later than the end of 2028.
(i)the father or his agent shall deliver the said children to the arrivals section to the closest main airport to the Mother’s place of residence, at the start of the Mother’s time.
(ii)the Mother or her agent shall deliver the said children to the departures section of the closest main airport to the Mother’s place of residence at the conclusion of the Mother’s time.
(iii)from 2029, the children are permitted to travel unaccompanied to and from Country C.
(iv)the Father shall notify the Mother of the precise arrival and departure dates/ times for the said children no later than 30 days prior to same.
(e)That upon giving the Father no less than 6 weeks written notice of her intention to spend time with the children in Australia the mother be at liberty to spend time with the said children for a period up to 2 weeks on one occasion during each of the children’s school terms, and the Mother shall ensure the said children attend school during this period, including any extra curricular activities.
(f)In relation to time spent pursuant to Par. 9 e. above, changeovers shall occur from and to the children’s school.
(g)That the said children communicate with the Mother on a daily basis at times agreed, taking into account the difference in the time zones, and the Father ensure the said children are given privacy during the said calls.
(h)Such other times as the parties may agree upon in writing.
11.The said children continue to attend W School, subject to agreement otherwise by the Mother and Father in writing, or Order of the Court.
12.The Father do all things to authorise the said school to provide the Mother with copies of any information prepared by the said school for release to parents in relation to the children’s social and academic progress, and the said school is hereby requested to forward such information directly to an email address provided by the Mother to the said school for such purpose.
13.The Mother be at liberty to obtain and utilise any website provided by the said school for the use of parents in relation to the said children’s progress, including speaking with the children’s teachers as to the children’s progress and attending in person or via zoom where available any school functions to which parents are welcome.
14.The Father and Mother inform each other without delay of any illness or injury suffered by the said children during their respective care, requiring medical or hospital treatment, including the names and contact details of any treating professionals.
15.The Father and Mother, their servants and agents, are hereby restrained from:
(a)discussing these proceedings with the said children or within their hearing.
(b)denigrating insulting or abusing the other parent, their partner or any member of their family to the said children or within their hearing.
16.The Father and Mother shall at all times when in the company of the other parent together with the said children use their best endeavours to behave in a civil, respectful and co operative manner towards each other and any partner or member of the other parent’s family.
17.The Appointment of the ICL shall be discharged 60 days following the process referred to in Par. 6 and 7 being completed, but no later than 6 months from the date of these Orders, subject to any subsequent Orders of the Court.
18.S. 65DA(2) and S. 62B provisions of the Act apply to these proceedings.
19.Certify
ORDERS SOUGHT BY THE MOTHER (EXHIBIT C4)
Amendments to Response to Amended Initiating Application marked with double lines
Parenting
Primary application – time spent with parents
1.That the respondent mother have sole parental responsibility for the children X born 2015 and who is currently seven years old, and Y born 2017 and who is currently
fourfive years old and collectively referred to as “the children” provided that the mother shall not make or effect any decision about a major-long term issue within the meaning of s4 Family Law Act 1975 without first taking all reasonable steps to genuinely consult with the father about any such decision, save in the event of a medical or other emergency.2.The children live with the mother.
3.That the children be permitted to relocate to AA Street, Suburb BB in the vicinity of City D, CC State in Country C to live with the mother.4.That for the purpose of effecting order 3, the father deliver the children at 9am two business days after judgment in this proceeding is handed down to DD Street, Suburb EE, Victoria, to the mother or her nominated agent.
Time with the father
5.[no order 5]
6.The children will spend time with the father at any times agreed in writing between the parents and in the absence of agreement, during the Country C Summer school holidays (“the July-September school holidays”) as agreed and failing agreement, in Australia from 5.00 pm on the first Saturday after the conclusion of the school term for a period of five weeks.7.The children will spend time with the father in odd numbered years during the December/January school holidays as agreed and failing agreement, in Country C from 12 noon on Christmas Day until 5.00pm the day before school recommences, which in 2024, will be 10 January 2024.
8.In the even numbered years, from the conclusion of school until 12 noon on Christmas Day in Country C and again from 9am on 27 December until 5pm the day before school recommences.
9.At all other times in Country C which the father requests in writing six weeks prior to the commencement of travel, for a period of no longer than two weeks on each occasion, provided that the father undertakes to and does take the children to school and their extra-curricular activities in Country C.
The children’s travel
10.The mother will be responsible for booking the children’s travel to and from Australia as follows:
10.1The mother will send the father the proposed flights at least six (6) weeks prior to travel;
10.2The father is at liberty to propose alternative flights for the children and the
fathermother will book the flights proposed by the father provided they do not exceed the price of the flights proposed by the mother by more than $100 per ticket.10.3In the event that the father has not proposed alternative flights two (2) weeks after receiving the mother’s proposal, or the father’s proposal exceeds the mother’s proposal by more than $100 per ticket, or the father’s proposal will give rise to a breach of any of the other orders, then the mother is at liberty to book her proposed flights.
11.The costs of the children’s flights to and from Australia will be borne solely by the mother, except in circumstances where new flights are required to be booked due to events caused by the father, in which event the costs of the new flights to and from Australia will be borne solely by the father.
12.Up until 2028 the mother or her agent will accompany the children to and from Australia, with the mother to bear the costs of the accompanying traveller solely.
13.After the commencement of 2029 the children are permitted to travel to and from Australia as unaccompanied minors.
Changeovers
14.Changeovers during the father’s time with the children in Country C shall occur at the mother’s residence.
15.Changeovers during the father’s time with the children in Australia shall be as follows:
15.1Up until the end of 2028:
15.1.1The mother or her agent will deliver the children to Melbourne International Airport arrivals section at McDonalds at the commencement of time; and
15.1.2The father or his agent will deliver the children to McDonalds at Melbourne International Airport at the conclusion of his time.
15.2From the beginning of 2029:
15.2.1The father or his agent will collect the children from the Melbourne International Airport at the commencement of time and deliver the children to Melbourne International Airport at the conclusion of his time.
Communication
16.That the children be allowed to communicate with the father at any times by agreement between the parents and in the absence of agreement: -
16.1During the school week daily between 5pm and 5.30pm in Australia during the wintertime zone in Country C (typically between the last Sunday in October and the last Sunday in March) and between 3pm and 3.30pm in Australia during the summertime zone in Country C (typically between the last Sunday in March until the last Sunday in October) and in failure of agreement on Tuesday and Thursday at the times previously set out; and
16.2During the school week as agreed after 1:00am but before 5:00am in Australia during the wintertime zone in Country C and after 11:00pm but before 2:00am in Australia during the summertime zone in Country C.
16.3On weekends and school holidays as agreed.
16.4Where there are variations in time differences between Country C and Melbourne due to inconsistencies in the dates on which daylight savings time takes effect or comes to an end in each location, the spirit of orders 22.1 and 22.2 are made in consideration of the children’s school hours being between 8am and 2:30pm Central European Standard Time and the children’s bedtime of 7:30pm Central European Standard Time. The parties are to make arrangements for communication in consideration of these facts.
16.5Otherwise in accordance with the children’s requests so far as reasonably practicable.
17.In the event that the children are spending time with the father, then the father shall ensure that they speak to the mother every day between 7am and 7.30am which is Central European Standard Time.
Passports and birth certificates
18.That the mother be permitted to apply for and obtain Australian, United States of America and Country C passports for the children without the father’s consent.
19.That the father return the original birth certificates of the children to the mother forthwith and that the mother be obliged to sign all documents necessary to allow the father to apply for his own birth certificates for the children.
Alternate relief – time spend
20.In the event that this Court does not grant the relief sought by the mother set out in Orders 1 to 17 above, that the father has sole parental responsibility of the children. provided that the father shall not make or effect any decision about a major-long term issue within the meaning of s4 Family Law Act 1975 without first taking all reasonable steps to genuinely consult with the father about any such decision, save in the event of a medical or other emergency.
21.That the children shall live with the father.
22.That the children shall spend time with the mother in Country C on each of their school holidays departing Australia for Country C on the first day after the last day of school and returning to Australia the day before the commencement of the school term and that in order to facilitate such time, the father shall pay for the children’s costs of flights for all the school holidays including the costs of the flights for an adult to accompany the children between Melbourne and the airport closest to the mother’s place of residence.
Children’s travel – alternate relief
23.For the purposes of changeover in Order 22 above, up until the end of 2028: -
23.1The father or his agent will deliver the children to the arrivals section at the airport closest to the mother’s place of residence at the commencement of time; and
23.2The mother or her agent will deliver the children to the departures section at the airport closest to her place of residence at the conclusion of his time.
23.3After the commencement of 2029 the children are permitted to travel to and from Country C as unaccompanied minors.
24.That upon the mother giving six weeks’ notice of her intention to spend time with the children in Australia, the children will spend time with the mother for a period of no more than two weeks provided that the mother shall ensure that the children attend school during this time and all their extracurricular activities.
Changeovers – alternate relief
25.For the purposes of changeover in Order 22 above, the mother shall collect the children from school on the first day of time spend and return the children to school on the last day of time spend, or if it is not a school day from the father’s place of residence.
Communication – alternate relief
26.That the children be allowed to communicate with the mother daily between 7:00am and 7:30am Australian Eastern Standard Time and as otherwise agreed between the parties.
27.That the father maintain valid passports for the children.
28.That the father be obliged to sign all documents necessary to allow the mother to apply for her own birth certificates for the children.
Overseas Travel
29.Pursuant to Section 65Y of the Act both parents are permitted to temporarily take the children on holidays provided that:
29.1The parent proposing overseas travel gives to the other parent, at least 6 weeks’ notice in advance of the proposed travel, written details of the names and places outside of Country C or if the children are living in Australia, outside of the Commonwealth of Australia where it is proposed the children will be travelling (being countries, cities and towns); and
29.2The parent proposing overseas travel gives to the other parent, at least 6 weeks in advance of the proposed travel, written details of the proposed departure and arrival dates to and from each country to which it is intended travel will occur; and
29.3Not less than 3 weeks in advance of the proposed travel, the parent taking or sending the children outside of Country C or if the children are living in Australia, the Commonwealth of Australia must provide to the other parent a photocopy of all return airline and/or shipping tickets for the children evidencing the children’s return to Country C or the Commonwealth of Australia together with copies of all written itineraries;
29.4Not less than 3 weeks in advance of the proposed travel, the parent taking or sending the children outside of Country C, or if the children are living in Australia, the Commonwealth of Australia must provide to the other parent written notice of the contact telephone numbers and addresses of all places where the children will be staying overnight while travelling; and
29.5The parent proposing overseas travel must ensure the children travelling outside of Country C or the Commonwealth of Australia is covered by a valid travel insurance policy for the duration of travel outside of Country C or if the children are living in Australia, Australia, and a copy of such policy shall be provided to the other parent not less than 2 weeks prior to the proposed travel.
30.That the parents do all things and sign all documents to ensure that the children have a current Australian passport and a current passport for any other country to which they are entitled and shall do all acts and things necessary to ensure that the passport is renewed no less than six months before expiry, and all associated costs shall be shared equally.
Other Orders
31.That irrespective of the Orders made by this Court in relation to the live with and spend time with either parent, that both parents be restrained from discussing the Orders with the children and that the children attend either in person or in a Zoom conference with Ms FF, Senior Children’s Counsellor, V Organisation, Suburb GG Office, HH Street, Suburb GG, Victoria contact number … and …@... in order that she can explain the Orders in a neutral setting to the children.
32.That the children be removed from the airport watchlist.
33.That the mother execute and file an undertaking to the court (as a measure of protection pursuant to the 1996 Hague Protection Convention) that these orders be registered both in this court and in Country C in a court of competent jurisdiction.
34.That the parties do all acts and things to register a copy of these orders, or make application for equivalent orders, in the competent court in Country C, being the Family Court in City D or such other court as is appropriate under Country C Law, including applying for an enforcement clause at that court.
35.That either parent notify the other if either child is seriously ill or is to be admitted into hospital at such times as the children are living with the parent.
36.Each parent is to keep the other parent advised in writing of any change of address or telephone contact number no later than 14 days before any proposed change including the details of their new residential address or new telephone contact number, such notice to be in writing (including by email or text message).
37.The parents are each restrained from denigrating the other parent or members of the other parent’s family to the children or in the presence of the children or at all; and each parent is to remove the children from the presence of any third party denigrating the other parent or members of the other parent’s family.
38.The parents are each to use their best endeavours to ensure that no other person denigrates the other parent or members of the other parent’s family to the children or in the presence of the children.
39.The parents are each restrained from discussing these proceedings with or in the presence of the children or showing to the children any document connected with these proceedings.
40.That forthwith upon the making of these Orders and continuously thereafter, the parents shall each provide all authorities and shall give all necessary consents to ensure that the children’s treating medical practitioners are authorised and directed to communicate with, and provide information and copies of documents directly to, each parent upon either parent’s respective request and at the requesting parents own cost.
41.That within 21 days of the date of these Orders the parents shall do all things to advise the children’s school of both parents’ details as a parent and an emergency contact.
42.That forthwith upon the making of these Orders and continuously thereafter, the parents shall provide all authorities and shall give all necessary consents to ensure that the principal of the children’s school and/or the children’s schoolteachers, are authorised and directed to communicate with and provide any information and copies of documents directly to each parent upon either parent’s respective request and at the requesting parent’s own cost.
43.That both parents shall be at liberty to attend all official school functions and events to which parents are invited and/or expected to attend along with all special event days in which the children may be involved or are participating.
44.That both parents shall be at liberty to attend all parent/teacher meetings for the children as they may arrange.
45.That both parents shall be at liberty at all times to attend all sporting and school related or sporting extra-curricular activities and events in which the children are involved or are participating.
46.That both parties be required to provide copies of any documents relating to the children following any reasonable request to do so.
Procedural orders
47.That the ICL be discharged following the expiry of time for an appeal.
48.Such further and alternative relief as this Honourable Court deems fit.
49.Costs.
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