HIBBERT & FERGUSON

FAMILY COURT OF AUSTRALIA

HIBBERT & FERGUSON

[2015] FamCA 466

FAMILY LAW – CHILDREN – Final Orders – International Relocation – where mother seeks to relocate the children to the United Kingdom – where mother previously removed children from Australia without notice – whether mother able to foster a meaningful relationship between father and children – whether reasonably practicable for father spending extended periods of time in the United Kingdom – best interests of the children – benefit to the children in maintaining a meaningful relationship with the father – orders made for children to remain in Australia in a shared care arrangement.

Family Law Act 1975 (Cth) s 60CC, 61DA, 65DAA, 69ZN, 69ZT
Evidence Act 1995 (Cth)

AMS v AIF (1999) 199 CLR 860
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Starr & Duggan [2009] FamCAFC 115

APPLICANT:

Ms Hibbert

RESPONDENT:

Mr Ferguson

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

5600

2014

DATE DELIVERED:

19 June 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Berman J

HEARING DATE:

18, 19, 20, 21 and 22 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Stanley

SOLICITOR FOR THE APPLICANT:

Nicholes Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr P Davis

SOLICITOR FOR THE RESPONDENT:

Borchard & Moore

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr O'Connell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That the parties have equal shared parental responsibility for B born … 2001, C born … 2003 and D born … 2007 (“the children”).
That the children shall live with the mother.
That the children shall spend time with the father as follows:-
(a)during the school term from 3.30pm or the conclusion of school Wednesday until 9am or the commencement of school on the following Monday (or Tuesday if the Monday is a public holiday) commencing 24 June 2015 and each alternate week thereafter;
(b)by skype, facetime, telephone and email communication at all reasonable times;
(c)for one half of each of the children’s school term and long summer school holidays as agreed between the parties and failing agreement during the first half of each of the school term holidays SAVE AND EXCEPT that as and from calendar year 2016 and each year thereafter at the election of the mother, the father’s time shall be suspended during the end of year and end of second term school holidays if the mother shall elect to take the children or any of them to the United Kingdom for either a period of four (4) weeks in the end of year holidays or the entirety of the end of second term holidays PROVIDED that the suspension of time shall relate only to the child or children that accompany the mother (and for the duration of the trip) and that such suspension shall occur only for one (1) period in each calendar year with the mother to give sixty (60) days’ notice of her intention to travel;
(d)at Christmas as follows:-
(i)in 2015 with the mother from 2.30pm on Christmas Day until 9.30am on 27 December and each alternate year thereafter; and
(ii)in 2015 with the father from 9.30am on Christmas Eve until 2.30pm Christmas day and each alternate year thereafter.
(e)       at Easter as follows:-
(i)in 2015 with the mother from 3.30pm on or after school on the Thursday preceding Good Friday until 6.30pm on Easter Saturday and each alternate year thereafter; and
(ii)in 2015 with the father from 6.30pm on Easter Saturday until the commencement of school on Tuesday and each alternate year thereafter.
(f)On the children’s birthdays as follows:-
(i)if the children’s birthday falls on a weekend then the parent who is not otherwise spending time with the children shall spend time with the children from 9am until 4pm;
(ii)if the children’s birthday falls on a week day then the parent who is not otherwise spending time with the children shall spend time with the children from 3.30pm (or the conclusion of school) until 7.30pm.
(g)       On the father’s birthday as follows:-
(i)if the father’s birthday falls on a weekend when the children are not in his care then the children shall spend time with the father on his birthday from 10am until 4pm; and
(ii)if the father’s birthday falls on a week day when the children are not in his care then the children shall spend time with the father from 3.30pm (or the conclusion of school) until 7.30pm.
(h)       On the mother’s birthday as follows:-
(i)if the mother’s birthday falls on a weekend when the children are not in her care then the children shall spend time with the mother on her birthday from 9am until 9.30am the following morning (or the commencement of school); and
(ii)if the mother’s birthday falls on a week day when the children are not in her care then the children shall spend time with the mother from 3.30pm (or the conclusion of school) until 7.30pm.
(i)On Mother’s Day and Father’s Day in the event that the children are in the care of the other parent THEN from 5.30pm on Saturday until 5pm Sunday;
That the mother be at liberty to communicate with the children when they are spending time with their father through skype, facetime, telephone and by email at all reasonable times.
Each party to inform the other as soon as possible of any illness or injury suffered by the children, particulars of any treatment required or received by the children together with the name and address of the treatment provider and/or location at which the children are a patient, any medical or health practitioner involved with the children and authorise such practitioner to discuss any treatment with the other party.
That each party authorise any school or other educational institution attended by the children to discuss their progress with the other party and provide the other party with copies of all newsletters, notices, reports, school photographs and all other information and documents ordinarily distributed to parents.
That the parties be and are hereby restrained from denigrating the other in the presence or the hearing of the children or involving the children in the dispute between them or from allowing others to denigrate the other in the presence of the children.
That the mother retain possession of the children’s Australian and British Passports at all times.

UPON NOTING that the father has been assessed to pay Child Support for the children

The father shall pay periodic spousal maintenance to the mother in the sum of FOUR HUNDRED AND FIVE DOLLARS ($405) per week (“the weekly sum”) to be paid on a fortnightly basis into an account as may be nominated by the mother, with the first such payment to be made within seven (7) days of the making of this order and the last payment to be made on a date being two (2) calendar years from the date of this order.
That the order appointing the Independent Children’s Lawyer be discharged.
That all matters be removed from the Pending List of Cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hibbert & Ferguson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLC 5600 of 2014

Ms Hibbert

Applicant

And

Mr Ferguson

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Further Amended Initiating Application filed on 22 April 2015 Ms Hibbert (“the mother”) seeks parenting orders in respect of B born in 2001 (“B”), C born in 2013 (“C”) and D born in 2007 (“D”) (“the children”). In addition and conditional on the children not being permitted to relocate their place of residence to the United Kingdom, an order that Mr Ferguson (“the father”) shall pay periodic spousal maintenance in the sum of $405 per week in addition to any assessment of child support.
A summary of the orders sought by the mother are as follows:-
(1)That if permitted to relocate to the United Kingdom:-
(a)The mother be permitted to relocate with the children to the United Kingdom (and if possible in time for their enrolment in the 2015/2016 academic year commencing in September 2015);
(b)That the mother have sole parental responsibility for the children;
(c)That the children live with her;
(d)That the children spend time with the father for a period of no less than two weeks in each alternate year in the United Kingdom during the December/January Christmas school holidays provided that the father is able to spend one week with the children in the intervening year at his election; and in Australia in July/August in each alternate year for a period of three weeks and in each intervening year for a period of three weeks if the father elects to spend time with the children in the United Kingdom;
(e)That the mother will pay the travel costs associated with the children travelling to and from Australia but not otherwise;
(f)That the children and the parties would be at liberty to communicate with each other via skype, face-time, telephone and email as may be agreed and at all reasonable times;
(g)That the parties keep each other informed of medical, health and educational issues that affect and impact upon the children.
(2)If the children are not permitted to relocate to the United Kingdom:-
(a)That the parties have joint parental responsibility for the children;
(b)That the children live with the mother;
(c)That the children spend time with the father:-
(i)in week one from 3.30pm or the conclusion of school Wednesday until 8pm and from 3pm from the conclusion of school Friday until 9am before school Monday;
(ii)in week two, from 3pm or the conclusion of school Wednesday until 9am or the commencement of school Thursday;
(iii)by skype, face-time, telephone and other email communication;
(d)for one half of the school holidays and failing agreement the first half together with time at Christmas, Easter, the children’s birthdays, the party’s birthdays, Mother’s and Father’s Day and other special occasions;
(e)That the parties keep the other informed in respect of matters of medical health and education that impact upon the children;
(f)That the father pay periodic spousal maintenance in the sum of $405 per week.
The broad thrust of the orders sought by the mother is that if she is allowed to relocate the children to the United Kingdom, the children spend time with the father in one year for a cumulative period of five weeks in the United Kingdom and in the alternate year in Australia for a period of three weeks.
If the children remain in Australia the children would spend four nights a fortnight and half school holidays in their father’s care.
By Amended Response filed 12 May 2015, the father opposed the mother’s application for the relocation of the residence of the children, sought an order for equal shared parental responsibility and that the children live with him.
At the commencement of the proceedings the father had clearly reconsidered his position and abandoned his application that the children would live primarily with him.
Accordingly, the orders sought by the father are as follows:-
(1)That the parties have equal shared parental responsibility for the children of the relationship;
(2)That the children live with the mother;
(3)That the children spend time with the father as follows:-
(a)From the conclusion of school or 3pm on Friday to the commencement of school or 9am on Monday of each alternate weekend;
(b)From the conclusion of school or 3pm on Wednesday to the commencement of school or 9am on Thursday;
(c)For half of school holidays and failing agreement the first half in odd years and the second half in even years;
(d)From 3pm Wednesday to 8pm Wednesday in the first week;
(e)On special occasions including Christmas, Easter, the children’s birthdays, the father’s birthday, Father’s Day and other special occasions.
Whilst it was not necessarily a matter of concession by the father, during his evidence there was some recognition that the children spending time with him each Wednesday whether it be for time after school or overnight, potentially presented a logistical disadvantage and disruption to the children given the proximity of Wednesday to the commencement of his time with the children on Friday of each alternate week.
Whilst it will be the subject of more detailed discussion, the father acknowledged the mother’s claim for spousal maintenance in the sum of $405 per week. Understanding as he did that he is currently the subject of an assessment of child support for the current period concluding 13 January 2016 at the monthly rate of $421.50, through his counsel the father offered the sum of $800 per week. I considered that the father’s proposal of financial support for the mother was genuinely made but ultimately ill-considered. I did not consider that the evidence presented by the parties but in particular the father, would enable the Court to have sufficient confidence of the father’s financial resources and ability to pay that would in and of itself be a factor upon which the Court could rely to assess the competing proposals of the parties.
I was however satisfied that the orders sought by the mother namely, the continued payment of child support as may be assessed but at least at the monthly rate of $421.50 and the additional payment by way of spousal maintenance of $405 per week is within the capacity of the anticipated financial resources of the father and therefore was a matter upon which weight could be given and an order made. If the children are able to relocate to the United Kingdom, it is not proposed that the mother will seek any other financial contribution from him other than her entitlement pursuant to an assessment of child support that may be in force from time to time.
The trial commenced before me on 18 May 2015 with final submissions being heard and judgment reserved on 22 May 2015. The parties were ably represented by counsel and the Court was assisted by the involvement of the Independent Children’s Lawyer (“ICL") via his counsel.
The mother relied upon the following documents:-
(1)Further Amended Initiating Application filed 22 April 2015.
(2)Trial Affidavit of mother filed 22 April 2015.
(3)Affidavit of Ms B Hibbert (maternal grandmother) filed 22 April 2015.
(4)Financial Statement of mother filed 22 April 2015.
(5)Affidavit of Mr F (mother’s partner) filed 22 April 2015.
(6)Affidavit of Ms G Hibbert (mother’s sister) filed 22 April 2015.
(7)Affidavit of Dr H (general practitioner) filed 5 March 2015.
(8)Affidavit of Dr I (rheumatologist) filed 3 March 2015.
The father did not require Dr H, Dr I or Mr F for cross examination and their affidavits are read into the evidence.
In addition, the mother relied upon her case outline document filed 11 May 2015.
The father relied upon the following documents:-
(1)Amended Response to Initiating Application filed 12 May 2015.
(2)Trial Affidavit of father filed 12 May 2015.
(3)Financial Statement of father filed 12 May 2015.
(4)Affidavit of Ms J (father’s partner) filed 12 May 2015.
(5)Affidavit of Mr K (the father’s adult son) filed 12 May 2015.
(6)Affidavit of Mr L (father’s business partner) filed 12 May 2015.
(7)Affidavit of Ms M (father’s sister) filed 12 May 2015.
The mother did not require Mr L or Ms M to attend for cross examination and accordingly their affidavits are to be read into evidence.
I was also assisted by the father’s outline of case document.
Whilst not initially relied upon, during the evidence and arising from the cross examination of the father I have had regard to his earlier financial statement filed 25 August 2014.
The ICL has relied upon the affidavit of Dr N filed 17 February 2015 which annexes his Family Assessment Report dated 2 December 2014.
Consistent with the conclusion of the family consultant but tendered at the end of the evidence, the ICL seeks the following orders:-
(1)That the mother’s application to relocate the residence of the children be dismissed.
(2)That orders be made in accordance with paragraph 2 – 15 of the orders sought by the mother in her outline of case document.
(3)That the mother and father enrol as soon as practicable in and complete an appropriate parenting course to assist in their relationship between each of them but also the children following the resolution of the proceedings.
(4)That the parties shall be responsible for the payment to the family consultant each in the sum of $1,250.
Other than the opposition of the ICL to the mother’s application to relocate the residence of the children to the United Kingdom, there is generally broad agreement between the position of the parties and the ICL that if the children remain in Australia they should spend substantial and significant time with the father.
At the commencement of the proceedings I advised counsel that I brought to account the provisions of s 69ZN of the Family Law Act 1975 (Cth) (“the Act”) and took the opportunity to explain to them (but really for the benefit of the parties) the importance of the application of the principles for conducting child related proceedings. In determining and giving effect to the principles of s 67ZN, I reminded the parties of the general duties and powers as set out in s 69ZQ and the ability that I have to make determinations, findings and an order at any stage of the proceedings pursuant to s 69ZR.
I also considered it important to determine whether the provisions of s 69ZT be dispensed with namely, that the Evidence Act1995 (Cth) (“the Evidence Act”) should be applied to determine questions of admissibility.
Whilst I in no way diminish the matters raised by the mother in respect of allegations of aggressive behaviour by the father whilst the parties were together and possibly post separation, I did not consider that the circumstances were exceptional as required by s 69ZT(3) before I should dispense with its provisions and have regard to the Evidence Act.
In making this determination I have considered the following matters:-
(i)the importance of the evidence in the proceedings;
(ii)the nature of the subject matter of the proceedings;
(iii)the probative value of the evidence; and
(iv)the power of the Court (if any) to adjourn the hearing to make another order or to give directions in relation to the evidence.
There are no circumstances in this case which would fall into the category of “exceptional”. Whilst admittedly the mother’s concession in respect to equal shared parental responsibility is only to apply if the wife’s application to relocate the children to the United Kingdom is unsuccessful, nonetheless the concession by her that if they remain in Australia whether the children should spend significant and substantial time with the father, but in the United Kingdom whilst the time offered might suffer from lack of frequency the periods would be of substantial duration. This concession would appear to be inconsistent with proceedings predicated upon family violence.
The parties did not seek to have determined any objections to affidavit material. Notwithstanding that the Evidence Act does not apply, the provisions of Rule 15.13 of the Family Law Rules 2004 (Cth) would enable the Court to strike out material of an affidavit if the material is:-
(a)inadmissible, unnecessary, irrelevant, unnecessarily long, scandalous or argumentative; or
(b)sets out the opinion of a person who is not qualified to give it.

Perhaps of greater relevance is the provision of s 69ZT(2) which provides:-
The Court must give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision of the Evidence Act 1995 not applying because of sub-section (1).
Whilst the affidavit material filed by each of the parties suffers by the inclusion of rank opinion of the parties and their witnesses, within the limitations of this case those opinions are likely to carry little weight.
A matter of greater moment is the method and manner by which the mother presents her evidence in her trial affidavit. The document is voluminous and comprises three separate binders. This is predominantly contributed to by the inclusion of 74 annexures comprising 326 pages. At the outset of the proceedings, I made it clear that I did not consider documents to be before me and to form part of the evidence simply because they are an annexure to an affidavit. To the extent that a document is referred to is the subject of examination or cross examination or is the subject of tender, it has relevance but not otherwise.

CHRONOLOGY

1961   Date of birth of father
1978   Date of birth of mother
1998              Parties commenced cohabitation
1980              Father moved to Australia
1993              Father becomes an Australian Citizen
1998              Parties commence a relationship
2001   Date of birth of B
2003   Date of birth of C
2007   Date of birth of D
April 2009     Parties separate
June 2009An interim intervention order is obtained by the mother against the father
August 2009 The parties reconcile their relationship and in October 2009 the mother withdraws the intervention order
19/12/2009The mother alleges that father signs a letter of consent enabling her and the children to relocate to the United Kingdom. Father denies ever seeing the document but accepts that his signature and that of his son are not forgeries.
23/7/2013The father admits that he signs a letter consenting to the relocation of the children with their mother to the United Kingdom.
August 2013 The parties separate
5/8/2013The mother and children leave Australia and travel to the United Kingdom
26/1/2014The father files an application for the children to return pursuant to the Hague Convention
11/3/2014-
16/4/2015Various orders made in the Hague Convention proceedings for the children to spend time with the father and in particular for a continuous period of four days in April 2014 in Ireland
22/5/2014The Court orders that the children be returned to Australia
10/6/2014The children arrive back in Australia
26/6/2014The mother files an initiating application in the Family Court of Australia seeking that the children be permitted to relocate to the United Kingdom
18/8/2014Mother obtains an interim intervention order against the father
25/8/2014Father files a response in the Family Court
4/9/2014Interim orders are made such that the children live with the mother and spend time with the father on a regular basis
16/10/2014Interim orders made by consent that the parties have equal shared parental responsibility and that the father have substantial time with the children.

BACKGROUND

The husband is a tradesman but his evidence is that he has been a builder for a number of years and is now a partner in a building and construction business. The extent to which the Court should accept the somewhat optimistic view of the future success of that enterprise assumes some importance in the proceedings. He was born in Ireland and holds dual Australian and Irish Citizenship. He moved to Australia in 1980 and has been an Australian Citizen since about 1993. He considers that his health is generally good but denies the assertion of the mother that he consumes alcohol to excess. He does agree that he drinks alcohol and his evidence is that from time to time he has consumed alcohol to excess. Generally he considers that he is a social drinker.
The parties commenced a relationship in 1998 under the somewhat unusual circumstances of the mother alleging that initially the father continued to reside with his former wife Ms R. Following the breakdown of the relationship in August 2013, the father has now re-partnered with Ms J. They reside in the near Melbourne suburb of Suburb Q. Ms J gave evidence on behalf of the father during the proceedings.
The mother was born in 1978 in O Town, P District in the United Kingdom. She is 36 years of age. She has family but in particular her mother who continued to reside in the town of her birth and it is a return to O Town that is the focus of her application seeking orders that would allow the children to relocate to the United Kingdom. Of immediate connection is her mother Ms B Hibbert and her sister Ms G Hibbert both of whom ordinarily reside in the United Kingdom and gave evidence in the proceedings.
The mother is in good health but she alleges that she suffers from stress and anxiety. The extent to which psychological stressors impact upon mother generally but her ability to parent the children in particular, is an important foundation to her case.
Following separation the mother returned with the children back to the United Kingdom alleging that the father had given his consent. . Following proceedings under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (The Hague Convention) the mother and children returned to Australia. Central to the mother’s case is that whilst in the United Kingdom she re-partnered with Mr F. In a demonstration of the strength of his relationship with the mother, Mr F travelled to Australia to give evidence. He has two children who reside in the United Kingdom, his son aged 22 years and his daughter aged 16 years. Whilst it is not his preference to leave the United Kingdom during the minority years of his daughter, he would give serious consideration to doing so (subject to visa and residency requirements).
Currently the mother is unemployed but considers that she is likely to be successful in obtaining employment at her previous place of employment in the United Kingdom.
As at the date of hearing, the father has been a resident of Australia for about 35 years and the mother for a period of about 20 years. The mother alleges that there was family violence during the course of the relationship. She says that the father would become physically and verbally aggressive and violent and that stress was placed upon the relationship by his continued infidelity. The father denies the mother’s allegation but admits that at times their relationship was marred by conflict, hostility and aggressive conduct usually in the form of demeaning and offensive language used by each to the other.
Whilst the final separation occurred in August 2013, the parties agree that there was a temporary separation between April and August 2009. For some part of that period the separation took place under the same roof.
The children generally enjoy good health save and except that B suffers from juvenile dermatomycosis (JDM) which requires particular attention to the management of the condition and resultant symptoms.
There is some dispute between the parties as to whether the father is sufficiently vigilant in respect of B’s condition when in his care. The father says that he understands and is able to appropriately care for B notwithstanding the mother’s trenchant misgivings. The Court is also assisted by the uncontested evidence of the child’s rheumatologist namely Dr I.
The father has two adult children from his marriage to Ms R namely, Mr K Ferguson (Mr K) and Mr S Ferguson (Mr S). The Court had the considerable advantage of hearing the evidence from Mr K. The father’s adult children were resident in the household of the parties. I accept the assertion of the mother that she cared for those children in a manner not dissimilar to the care exercised in respect of the subject children.
Ultimately Mr S was not called to give evidence but the Court has had the considerable advantage of evidence from Mr K. He proved to be an impressive young man. Whatever the level of dysfunction in the household, the parties are entitled to feel satisfied that Mr K has clearly benefited from the love, care and attention that he received in their household, particularly following the death of his mother in 2008.
Notwithstanding that there have been orders made in the proceedings, the current arrangements by which the children live with each of the parties is by agreement as follows:-
(a)In week one from 3pm or the conclusion of school Wednesday until 8pm and from 3pm or the conclusion of school Friday until 9am or before school Monday;
(b)In week two from 3pm or the conclusion of school Wednesday until 9am or the commencement of school Thursday;
(c)By telephone at other times;
(d)Such other times as may be agreed.
The children live with the father for four nights a fortnight and whilst this is a relatively recent arrangement, it has been surprisingly free of incident, alleged breach or other difficulty.
It is integral to the mother’s case that her relocation with the children to the United Kingdom on 5 August 2013 was based upon the expressed consent of the father. On 26 January 2014 the father made application for the return of the children pursuant to the Hague Convention and ultimately pursuant to a return order made by Justice Parker in the High Court in the United Kingdom on 22 May 2014, the children and the mother returned to Melbourne on 8 June 2014.
To the extent that it is a matter raised by the mother, it is her case (and she says consistent with a finding by the UK Court) that whilst the father gave initial consent he later withdrew that consent.
To some extent the removal to the United Kingdom and then the return of the children to Australia are matters of historical moment but does not necessarily impact or influence these proceedings. It appears that the UK Court found that Australia was the most appropriate jurisdiction to consider the question of relocation. The time the children spent in the United Kingdom is relevant.
The father does not deny that he gave written consent. Whilst his explanation in respect of the circumstances of that consent given in 2013 (as opposed to 2009) was not impressive, the gravamen of the children’s removal was the clandestine nature surrounding the children leaving Australia in circumstances where the mother believed the father’s consent was freely given. Her explanation for her precipitous conduct is difficult to reconcile.
The parties had a differing view as to the parenting arrangements for the children during the relationship. The mother alleges that whilst the father was a good provider, whether because of his need to socialise usually involving significant consumption of alcohol or long hours at work, the result was that she was the primary parent and caregiver. Initially the father sought to place the parenting arrangements into context. He agreed he worked hard and clearly when at work the mother did assume their primary care. When not at work he did the best he could to engage himself in the children’s activities and importantly to him, their studies.
I generally accept that the primary care of the children was likely to have been undertaken by the mother, but the father was impressive in the evidence of his focus on education and their academic development.
Following the return of the children from the United Kingdom the mother filed an Initiating Application in this Court on 26 June 2014.
Interim orders made on 4 September 2014 provided for a graduated approach to the children re-establishing their relationship with the father.
It is a part of the father’s case that the mother has resisted the father’s application for the children to spend significant and substantial time with him. He focusses on the history of the proceedings leading up to the final hearing and what he says is the mother’s clear opposition to orders that would see the children spending extended time in his care. The mother does not accept that criticism but rather points to the ability of the parties to negotiate orders by consent (17 December 2014) and then ultimately the current arrangements by agreement dispensing with the need for a court order. The father’s focus on the willingness of the mother to allow the children to spend time with him in the United Kingdom and her denial of any recalcitrance on her part was the subject of lengthy cross examination of the parties.

CHILDREN’S EDUCATION

The mother alleges that the father often became aggressive with the children if he did not consider that they were performing to the best of their academic ability.
The mother says on the topic:-
[41]I was primarily responsible for assisting the children with their homework. [Mr Ferguson] assisted occasionally with [B’s] maths homework and assisted him with two school projects. On these occasions he lost his temper with [B] if he did not get the correct answer and shouted at him and gave him a “clip over the ear”. [Mr Ferguson] also pulled [C] and [D’s] ears if they got something wrong in their school work. This caused the children to become upset and thus the children have been reluctant to participate in homework activities with [Mr Ferguson] as he regularly becomes frustrated and short-tempered with them. This continues as at the date of signing this, my affidavit, and has been an ongoing source of anxiety to the children, matters to which I will refer later herein.
[42][Mr Ferguson] has always had very high expectations of the children and expected them to receive straight A’s in their school reports. When the children did not receive straight A’s [Mr Ferguson] lost his temper and shouted to the children that he was “not going to pay private school fees anymore” if they didn’t improve. The children felt under a lot of pressure to perform academically. [Mr Ferguson] instructed me to organise a tutor for [B] when he was nine year of age to improve his grades. He also instructed me to organise a tutor for [C] when she was nine years of age. I organised the tutors and sat with the children while they were tutored. [Mr Ferguson] did not participate in the tutoring despite insisting I arrange this for the children.
The father’s response to those allegations is to deny the contents generally of paragraphs 41 and 42 in so far as they relate to any overt or aggressive act.
The evidence from both parties supports that which appears uncontroversial namely, that the father considered education and academic advancement to be important. Mr K gave evidence that he was grateful for the father’s focus and the issue is therefore not the level of attention paid to the children’s education but rather whether there was an inappropriate level of compulsion or aggression associated with the father’s expectations.
The father does not challenge the mother’s evidence that:
I was involved in parents committees at the children’s schools and volunteered my time as a class representative at [T School] and [U School]. I also ran the coffee cart at the [T School] Open Day and cooked sausages at football games. I assisted with cutting up of fruit for the children in the prep class and worked in the canteen at [V School].
The mother’s clear and highly commendable involvement with the children’s day to day activities is unchallenged. I also note the father’s concession that other than his view that the mother seeks to restrict his ability to have a relationship with the children and that in doing so there is a real risk that the children will be alienated from him, he considers that in all other respects she is a good parent.

REMOVAL OF CHILDREN FROM AUSTRALIA

The mother considers that by about June 2013 the relationship between the parties was irretrievable. She alleges that he was inconsiderate and uncaring towards her and in particular was not respectful of her physical condition following a gynaecological procedure in June 2013.
The father denies the assertion and whilst he agrees that the relationship was troubled, says that the mother did not make the depth of her feeling known to him. In particular, he denies any suggestion that he was aggressive or domestically violent towards the mother.
The mother alleges that on 23 July 2013 the parties argued over a television program that she and the children were watching. Strong language was exchanged between them and it is during this argument that the mother sought the father’s consent to relocate to England.
Whilst the father denies the tenor of the mother’s version of the events, he does not deny that she later presented him with a document that if signed by him, would evidence his consent to the relocation of the children. The document is annexed to the mother’s trial affidavit at “NH1”. He accepts that he signed the document on 24 July 2013.
Consequent upon the execution of the document the mother says that the parties lived separately and apart from that time. She moved out of the shared bedroom. The father denies the mother’s version of events and does not admit the mother’s allegation that he was insistent that the parties engage in sexual intercourse. She refused but the father continued to request sexual intercourse. For his part, the father makes a blanket denial but does not deny forwarding offensive text messages requesting sexual intercourse on 29 July 2013 and 3 August 2013.
On 1 August 2013 the mother transferred the sum of $24,575.19 from the company bank account into her account to assist with the costs of relocating to the United Kingdom. She also transferred further funds from another company account that represented the proceeds of an insurance claim following a motor vehicle accident. The mother concedes that she did not have the father’s consent for the transfer of any funds nor did she inform him that she had effected the transfer.
On 2 August 2013 the mother purchased the airline tickets and used a credit card linked to the father’s primary credit card. She did not inform him of the purchase and considered that she was in fear of his reaction. She says the clandestine nature of the travel arrangements were made necessary by the history of family violence. The father denies any allegation that he engaged in family violence.
The children’s school was only advised on 2 August 2013 that the children would be relocating to the United Kingdom.
At paragraph 55 of the mother’s trial affidavit she seeks to explain what appears to be an anomaly in the information contained in email communication between the principal of T School to the father dated 11 March 2014 suggesting that she had told the principal that she was taking the children to visit an unwell family member in the United Kingdom. The mother denies any conversation to that effect. She does not deny however that on 4 August 2013 she and the children flew to Sydney in anticipation of the flight to the United Kingdom the following day. Only B was told that they were relocating to the United Kingdom. C and D were told that they were visiting their sick grandmother. There was some opportunity for the children to say farewell to their friends but it was limited and in all the circumstances the arrangements put in place by the mother were unsatisfactory.
It was only once the children had arrived in the United Kingdom that the father was advised of their whereabouts.
On 8 August 2013 B and D’s school were advised that the children would not be returning to the school or to Australia.

TIME SPENT WITH THE CHILDREN WHILST OVERSEAS

The father commenced Hague Convention proceedings on 26 January 2014.
For the purposes of those proceedings the father travelled to the United Kingdom in order to spend time with the children.
Whilst it is the subject of contest, the father alleges that the mother did not cooperate in providing him with any information as to the whereabouts of the children immediately upon their return to the United Kingdom and it was only after significant effort on his part that he was able to secure any reasonable opportunity to resume a relationship with them.

The father did not want to spend time with the children in the locality of O Town, P District but rather sought to take the children on a holiday to Ireland where he still has family. At first that was opposed by the mother and the father alleges that it was only following orders made by the Hague Judge that enabled him to spend time with the children as follows:-
(1)On 11 March 2014 skype communication with the children from 9am to 10am each Saturday and Sunday.
(2)On 11 April 2014 with the children to spend time with the father from 12 noon on 12 April 2014 to 12 noon on 14 April 2014 in O Town and then from 9am 14 April 2014 to 7pm on 20 April 2014 in Ireland.
(3)On 16 April 2014 with the children to spend time with the father from 7.15am on 17 April 2014 to 7pm on 20 April 2014 in Ireland; and
(4)On 22 May 2014 requiring the children to be returned to Australia on 8 June 2014.
There is therefore a dispute between the parties as to whether the mother was resistive to the father spending time with the children and sought to “make it difficult for the children to spend time with the father in England”.
At paragraphs 91 to 75 inclusive the mother relies upon the views expressed by the children in the CAFCASS Report prepared by report writer Mr W as part of the Hague Convention proceedings.
It is difficult to assess the weight that should be given to the views of the children as presented in the report but generally I have found that whilst the report prepared by Mr W accurately reports that which the children have said, little or no weight should be attributed to the expressed views. The children were clearly confused and it could not be said that their relationship with their parents was sufficiently balanced at the time for them to maturely reflect on their circumstances and the relationship that they have with each of their parents.

USE OF ALCOHOL BY FATHER

The mother alleges that the father is not able to control his use of alcohol. In summary, the father is alleged to drink alcohol to excess.
The mother focusses on an extraordinarily poor driving record by the father which features four drink driving convictions. The result of those convictions is that the father had an interlock device fitted to his car. The driving conditions including the interlock device was removed in 2014. The father agrees with those allegations.
The issue of the mother’s concerns in respect of the father’s use of alcohol but in particular relating to his use of a motor vehicle with the children as passengers caused considerable conflict between the parties. The mother insisted that the father only drive a motor vehicle in which the children are passengers if it was fitted with an interlock device. She alleges that the children would tell her when the father did not use the interlock device. The parties themselves argued and the mother’s affidavit at paras 115 to 121 allege that the children reported the father’s consumption of alcohol in particular associated with him driving a motor vehicle. For his part, the father denies the mother’s allegations and argues that she inappropriately questions the children following their time with him. In any event he denies consuming alcohol in respect of driving a motor vehicle in which the children are a passenger or that there is any condition in his license that requires an interlock or other device to be fitted.

PROPOSALS OF THE PARTIES

The proposal of the mother is to relocate on a permanent basis with the children to live in X Town, P District in the United Kingdom. Whilst no date was nominated, the mother would seek the relocation take place as soon as possible. The Court was advised that the United Kingdom academic year commences in August/September.
I alerted the parties to what I consider to be deficiency in the evidence namely, whether there is any symmetry between the school levels of the children in Australia and those in the United Kingdom. I am not advised whether the proposed move will likely be to the children’s educational benefit or detriment beyond the obvious difference in the commencement of the school year.
No evidence was provided in respect of curriculum in the United Kingdom and it is generally unsatisfactory that I am not able to bring to account educational factors that may impact upon the children.
The mother sets out the support network which she considers both important to her but likely to benefit the children. If the children are permitted to relocate they would live close to the mother’s family but in particular the maternal grandmother and her sister.
Of prime importance is the advantage to the mother of being able to more fulsomely pursue her relationship with her partner Mr F.
Notwithstanding the considerable absence from the United Kingdom, the mother and children did reside there from August 2013 to June 2014.
The mother considers that she will be able to resume employment with her previous employer or at the very least considers that her employment prospects in the United Kingdom are promising.
There is no evidence in respect of matters relating to the mother’s ability to gain employment in the United Kingdom other than her own opinion.
The mother recognises that the distance between the children (if allowed to relocate) and the father will have an effect on their relationship. She considers that heavy reliance upon electronic communication via skype, facetime, telephone and email contact will adequately support the retention of the relationship.
In addition, the mother proposes that the children spend time with the father for extended periods to coincide with the United Kingdom school term calendar both in the United Kingdom for a period up to five weeks and in Australia for up to three weeks. The mother will contribute to the costs of the children spending time with the father in Australia each alternate year but not otherwise.
The mother considers that she was the primary carer of the children and that as a result, they rely on her almost entirely. When that consideration is considered against the background of her assertion that she has little support in Australia, whereas in the United Kingdom she has the advantage of family and her partner, she considers that “it will be difficult, if not impossible, for me to provide the same level of emotional and financial security if I was to remain living in Melbourne”.
She does not consider that the children are opposed to their proposed relocation and instead gives evidence that the children have developed a positive connection with the United Kingdom and any connection with friends, school, extended family and other cultural or emotional ties with Australia is of passing significance only. In summary, she considers any attachments that the children may have made in Australia are able to be readily replicated and replaced in their new environment.
It is of note that notwithstanding the various allegations directed against the father in terms of the mother and the children being the victims of family violence, his controlling nature in terms of money and finance and her concern as to the father’s consumption of alcohol, she is nonetheless prepared to put in place the children remaining with the father for extended periods whether that be in the United Kingdom or Australia.
Integral to the mother’s proposal is that if the children are permitted to relocate to the United Kingdom then she seeks an order that she have sole parental responsibility.
It is not proposed by the mother that there be any real dialogue or consultation with the father about matters that would have significant impact upon the children. He is not to be involved in decisions arising out of major issues other than the provision of information as to their wellbeing, health and academic progress.
The father opposes the children’s relocation. He considers that the mother’s behaviour as reflected in the evidence entitles the Court to find that her previous alienating conduct is likely to be repeated if the children live in the United Kingdom. The effect of the move will immediately impact on the relationship that he has with the children. In short, he will be out of sight and out of mind.
He argues that even if the Court finds that the mother has been supportive of the children’s relationship with the father and therefore is likely to be so in to the future, there is a tyranny of distance which must have a quantitative and qualitative deleterious impact upon the children’s relationship with him. Not only is the distance not conducive to regular and ongoing contact with the children, but it would also disenfranchise him from their day to day lives including school, extra-curricular activities and their peers. The reliability of the mother returning the children to Australia each alternate year is entirely dependent on her financial position. At this stage the mother does not have employment and whilst it is reasonable to suggest that she will get support from her family and her partner consistent with the more recent history, it is nonetheless uncertain. On a more practical level, whilst the mother offers three weeks in each alternate year for the father to spend with the children in the United Kingdom, it requires him to travel there at his expense. Whilst his airfare might not be considered onerous, once in the United Kingdom he will have the likely considerable expense of having to support himself and the children for an extended period.
Irrespective of the financial cost he would not be able to assist the children with their homework and will lose any ability to influence their academic advancement. It is likely to be unsatisfactory for both the father and the children.
The father is not unsympathetic to the connection that the mother has in the United Kingdom. To that extent, there is no dispute between the parties that the mother will hold the children’s passport and there is no opposition to the children travelling to the United Kingdom during their Australian school holidays.
The father has also re-partnered with Ms J. I have the advantage of hearing evidence from Ms J. Generally her involvement with the children is uncontroversial. It could be said that the mother’s more relaxed attitude towards the children spending time with their father is in part attributed to her confidence that they are appropriately protected and supervised by Ms J.
Whilst favourably impressed by Ms J, her involvement in the proceedings is ultimately less significant once the father withdrew his application for the primary care of the children.
An unexpected consequence of the relocation of the children is that they would be unlikely to maintain any relationship with Mr K. I was favourably impressed with the evidence given by him and consider that their current involvement with Mr K is to the children’s considerable benefit.
In the final analysis the competing proposals of the parties are of relatively narrow compass. The father is concerned that (whilst not supported by the history of the parental relationship and the current level of conflict) whilst a relationship can be maintained by recourse to the matters raised by the mother even without conflict, it will cease to be a “meaningful” relationship.
For her part, the mother strongly promotes the position that a move will enhance her wellbeing in terms of family, relationship with her partner, employment and stability of environment for the children which will be to their advantage, she opines that whilst the relationship between the father and the children must of necessity take a different form, it will still meaningful.
The parties are not significantly apart in terms of their separate proposals if the children are not permitted to relocate. Both parties will remain in Melbourne and the mother considers that the proximity of the parties and the children should properly promote an order of equal shared parental responsibility. In fact the mother considers that of recent date there appears to have been a much improved relationship between the parties and notwithstanding that they deal with each other mostly by way of email and text messaging nonetheless evidence of the new détente is reflected in the significant and substantial time that the children currently spend with the father being the product of agreement rather than court order.
Moreover the mother confirms that she is:-
on good terms with [Mr Ferguson’s] partner [Ms J] who more recently appears to care for the children while they are spending time with [Mr Ferguson]. I have discussed the care of the children directly with [Ms J], including organising play dates, [B’s] illness and haircuts for the boys.
There is also some prospect of the mother’s partner relocating to Australia.
The evidence of Mr F was important and not dissimilar to that of Ms J, he was also impressive. I have no doubt that he has a good relationship with the children and that they would benefit from his continued involvement.
I am also satisfied as to the extent of his commitment to the mother and their relationship. The difficulty for Mr F is that he has children aged 16 and 22 in the United Kingdom. He honestly expressed his desire to place his relationship with the mother on a more formalised basis but would have difficulty in leaving his daughter for at least two years assuming that there would be no visa or other residency issues that would prevent him seeking to live in Australia. Mr F also has current employment and his ability to gain employment if he relocates is obviously uncertain.
The father effectively seeks that the children spend five days a fortnight with him comprising a block of three nights over each alternate weekend and an overnight on Wednesday of each week.
As discussed, when the reality of the orders that he seeks was put to him, he recognised that it may represent too many moves for the children in each week or fortnight. In short, notwithstanding his desire to maintain a relationship with the children, the frequency of the orders may be tiring for the children and ultimately create instability.
The mother is not opposed to the father spending significant and substantial time with the children and proposes that he have four nights a fortnight comprising a block of three nights in each alternate week, an overnight Wednesday in the intervening week and some hours after school but not overnight on the remaining Wednesday.
The parties are generally agreed that school holidays will be shared although they differ as to the detail of holiday arrangements and other special occasions.
The father does not consider that the mother’s proposal comprising a relocation of the children to the United Kingdom to be reasonably practicable.
For her part, whilst it is not her preference and considers that it may be to the ultimate detriment of the children, nonetheless she promotes orders that would see the children spending substantial and significant time with their father if they are required to remain in Australia.

EVIDENCE

The Mother

The mother provided some further evidence in examination in chief. She relied upon her trial affidavit but also her financial statement filed 22 April 2015. She made reference to an error in the financial statement under Part D of the document namely, that the Centrelink payments referred to at Item 12 is a fortnightly payment not weekly.
By the tender of a facetime screen dump the mother also sought to establish that despite the allegation of the father, there had been no attempt made to alter the surname of C.
It was put to the mother that it was an important part of her case that if permitted to relocate with the children she will be able to persuade them to maintain a relationship with the father.
The mother recognised that there will be difficulties particularly given that the children will be in the United Kingdom and the father will remain living in Melbourne. Distance will be a significant barrier.
The mother was also questioned as to her understanding and insight of the extent to which the children will be socialised by their environment in the United Kingdom as distinct from their more familiar circumstances in Australia.
The mother considered that the children do not have an easy relationship with the father. He is not a “hands on” father and even on the mother’s case his long hours at work did not assist in strengthening his relationship with them.
The mother considered how to best promote the relationship and was satisfied that in addition to physical time, skype and other electronic communication would be sufficient.
The mother was challenged as to her preparedness to facilitate contact between the father and the children upon their return to the United Kingdom. At first the mother and children lived with the maternal grandmother. The children did not have mobile phones and whilst the mother did have a phone she very quickly changed the number on to a United Kingdom phone plan.
Little or no information was provided to the father as to how he could contact the children and notwithstanding her focus on the assistance that skype may provide in the maintenance of the relationship between the children and their father, she conceded that there was no skype for an initial period of about six weeks. It was put to her that she did not let the father speak to the children either directly or via skype while they were at the home of the maternal grandmother.
The mother agreed that she did not make any arrangements for that to occur and her explanation was that she was hurt by the husband’s actions following separation.
Between mid-September and November 2013, the father managed a skype connection with the children on about three or four occasions. It was put to her that from time to time the connection was terminated by her without warning.
The tenor of her evidence was directed to the extent by which she co-operated and facilitated the children speaking to the father.
In reality, I find that the mother was not co-operative with the attempts by the father to speak with the children. I accept the assertion put to the mother that in January 2014 the father attempted to skype the children 15 to 20 occasions.
The attempts to regularise the communication between the children and their father was torturous. Solicitors were involved. The mother was clear in her evidence that whilst she would comply with the arrangements there would be little or no flexibility afforded to the father.
In November 2013 the father advised the children that he had placed money on a winning bet in the Melbourne Cup for the children. The mother alleges that because the father would not forward the winnings to the children but rather suggested that he would hold the money pending their return to Australia, they refused to speak to him between November 2013 and Christmas Day.
The mother was unconvincing and I find that she did nothing to encourage the children to ring or speak to their father. I do not accept the mother’s evidence on the alleged attempts to promote skype communication. Her presentation on this matter was poor. When asked what good attributes she could recognise in the father’s relationship with the children she conceded that there might be an advantage in the father being a male role model but that if the children had a good relationship with him it was based upon academic considerations and not fun. The obvious difficulty with the mother’s response was that if the children are in the United Kingdom they will certainly not have the father as a male role model. Her overall response was at best unenthusiastic.
The mother conceded that B got a mobile phone. When asked why the mother did not give the father the child’s phone number she had no response with her only explanation being that she did not think about it.
The father made contact with the children by telephone on Christmas Day in 2013. The children apparently spoke to him in another room and then returned to the mother telling her that the father wanted to speak to her. The mother states that she terminated the call because the father allegedly threatened her. She was cross examined about the alleged threat and notwithstanding her assertion that she raised the alleged threat with the father she could give no explanation as to why it did not appear in any affidavit. I am not convinced by the mother’s evidence on this topic.

The father alleges that when he came to the United Kingdom to spend time with the children the mother was resistive and various hurdles were placed in his way. In particular, initially and prior to the making of any orders by the Court hearing the Hague Convention proceedings, the mother wanted her sister to supervise the father’s time with the children. There was no reasonable explanation given by the mother and it could not be said that the father behaved inappropriately or posed a risk to the children.
The mother was asked to reflect upon the circumstances that would exist if the children were allowed to relocate to the United Kingdom and a dispute arose between the parties. The conflict in this case is high and it would have to be said that based upon the relevantly recent history, the potential for further litigation cannot be discounted.
The children saw the Family Consultant in November/December 2014 having returned from the United Kingdom in June 2014.
The mother was reminded of her earlier evidence that the children, but in particular A, would benefit from the father being a role model. On how this could be reconciled with the somewhat diffident attitude expressed by C to the Family Consultant about her father.
The following paragraph form the Family Consultant’s Family Report was put to the mother for her comment:-
[44]The impression from [C] was that her father was replaceable, that her relationship with him was unimportant and that he fulfilled an unnecessary role in her life. She complained that her father never did anything for any of them, that he was never fun and so not having him in her life felt no different at all. [C] was dismissive of her father’s contribution or relevance in her life and conveyed a sense of indifference as to whether she had a relationship with him or not. She complained that her father was constantly negative and told me “…we didn’t even want him to come to England because we were going to England to get away from him! He always made arguments”. She spoke about her fear about her father and the decisions that he might make, including changing her school, and she referred to the pressure she felt from him around homework and academic performance. She also added that if forced to stay in Australia, she would have to change schools because her father would refuse to pay to her continuing education at [V School].
The impact of the cross examination was to highlight that in the space of less than one year there had been a substantial diminution in the relationship and regard that C had for the father. Importantly, the mother considered that the indication given to the Family Consultant was a true reflection of the child’s attitude towards her father. She did not concede that there had been any change in the child’s relationship with the father nor the proposition that if allowed to remain in the United Kingdom there would be the real risk that any deterioration in the relationship between the father and the children would become entrenched.
Moreover, the matters raised by C to the Family Consultant were clearly unlikely and incredible.
When put to the mother that the observed interaction between the father and C presented a very much more positive observation of their relationship, she had difficulty in conceding the point but ultimately was prepared to admit that whilst there appears to be a better relationship between C and her father, she is not at all happy and any improvement is to be attributed to the father’s partner Ms J rather than to the father.
That the mother was prepared to accept the proposition that according to the children there are only negative issues associated with the father but only positive issues associated with the mother is to confirm the view of the Family Consultant that the time in the United Kingdom has resulted in C presenting as very damaged.
The Family Consultant noted that the mother had nothing good to say about the father and highlighted her concerns that he was a heavy drinker of alcohol, spent his spare time when not at work at the hotel and was not able to prioritise the needs of the children.
The mother left the impression from her evidence that in an environment where the father was not readily present there would be nothing to dispel the toxic environment into which the mother has clearly inculcated the children.
The mother was asked whether the father could take the children to Ireland if they lived in the United Kingdom. The mother’s position is that this could now occur notwithstanding that initially she had insisted on supervision. When asked what had changed she considered that at the time he was angry and that the two children were fearful.
I do not find that the evidence supports the mother’s contention and if anything has changed it is her clear understanding that the prospects of the children relocating will be enhanced if she appears to support the children’s relationship with their father.
It is difficult to rationalise the mother’s evidence that she was confident to act upon the father’s consent for the children to relocate to the United Kingdom in circumstances where her conduct could only be considered as clandestine. The mother took $26,000 out of the bank account without advice to the father. Importantly, the mother did not embark upon any discussion with the father as to the terms and conditions by which the children would spend time with him.
Prior to their departure, the children have only visited the United Kingdom for a holiday and had certainly not experienced life in a different country. There was no enquiry made by the mother as to whether the children would be adversely affected or indeed whether their emotional stability would suffer insult from the premature withdrawal from their various schools and the disruption to friends and family. The father’s initial consent was clearly a relevant factor but it could not be said that it represented the complete answer. It may be that the father was reckless in his consent but so important is the relationship between the parent and the children that the adults need to act responsibly and with caution.
The mother agreed that if the children had not settled in the United Kingdom there was no alternate plan or strategy other than ultimately she would have to return with the children to Australia. The mother did not resile from her view that the father is a poor parent but she says she can now be trusted to foster a relationship if allowed to relocate because she realises now since completing a parenting course the importance of children having a meaningful relationship with their parents.
It was put to the mother that it was her view that it was better for the children to escape the father and move to the United Kingdom. It was not so much about the advantages to the children of the mother’s proposal for relocation but rather, her view that distance should be placed between the father and the children.
The mother considers that B is the most affected of the children and has little or no relationship with the father. The father is only interested in academic results and has never kicked a football with B or undertaken any activity that might be considered as fun.
Whilst the mother denied that the move to the United Kingdom was seen by her as an escape, B understood from the mother that her reason for the permanent move was because of the way that the father had treated her.
The Family Consultant considered that B “conveyed an idealised view of life in England and of the time with his family in England”. B had clearly demonised the father and his life in Australia. It was put to the mother that B saw the United Kingdom as an escape and a sanctuary where such an exaggerated position was not objectively warranted.
The mother had difficulty in accepting the proposition of the Family Consultant that the views of B but also C were both extreme and unrealistic.
The mother was not persuasive in her attempt to reconcile the children’s poor view of their father and her perception that they were reluctant to see him with the orders she promotes if permitted to relocate which would see the children spending extended periods with him either in the United Kingdom or in Australia but in any event unsupervised.
To her credit, the mother recognised that the children have a good relationship with the father’s adult sons Mr K and Mr S. They continue to have skype communication with the children and it is clear that the mother does not visit the sins of the father on to his adult children.
The following paragraph from the Family Consultant’s Report was put to the mother:-
[58]Possibly the most significant aspect of this assessment was my observation of the children in the company of their father. Each of them, when seen individually, spoke negatively about him, they were unequivocally hostile and critical, they split him off into being all bad and that everything about him was worthless, unimportant and also irrelevant. However, when seen in the company of their father their behaviour with his was completely different. They were relaxed, engaged easily, played comfortably and confidently; maintained excellent levels of dialogue, were friendly and overtly affectionate. There was playful banter between [Mr Ferguson] and [B] and the two younger children seemed completely unbridled with regard to their enthusiasm and affection for their father. The same was certainly true of their relationship with their mother, but they described their mother in a positive sense. My observation of them in relation to their father was that the way they behaved with him was completely at odds with what they said about him and how they described him.
Under cross examination the mother’s explanation for the presentation of the children to the Family Consultant is that their positive attitude was an act on the part of the children because such was their fear of the father’s potential response that they put on an act or a performance.
Even a kiss from B to the father was an indication of the child’s fear. According to the mother, he never kissed the father. Because the behaviour was so unusual, the mother has rationalised that “fear” is the only explanation.
The mother’s response to the observations of the Family Consultant is at odds with her proposal which would see the father spending time with the children in circumstances where the mother would promote the father’s relationship with them.
In the mother’s Case Outline document she alleges that the father was abusive but now the mother apparently has no concerns for the safety of the children.
The mother admitted that she has discussions with the children from time to time about their father but has not ever reflected on whether her presentation and clear hostility towards him may adversely affect their view of him.
Under cross examination by counsel for the ICL the mother conceded that earlier in their relationship the father was a good provider but that circumstances changed when the business of the parties became financially precarious. Notwithstanding the straightened times the mother properly conceded that she usually had access to money and throughout the relationship had access to a credit card. Whilst following separation certain restrictions were put in place by the father, the mother continued to have access to a credit card facility.
The mother was challenged on her allegation that the father would excessively discipline the children but in particular B. This allegation focussed on the alleged insistence by the father that B persist with homework and study. The implication of the mother’s evidence is that the father would become overly aggressive and would persist until he received the correct answer to the particular problem.
In addition, the mother alleges that the father would force feed the children and he would become angry if he saw them not eating their food or food being wasted.
These matters tendered to fall within the general complaint of the mother that the father perpetrated family violence and that he was also at times financially controlling.
Whilst there were many examples of family violence, the mother focusses on four significant incidents.
In April 2009, the mother alleges that the father was intoxicated at the local hotel and when the mother arrived he was offensive and sexually demeaning towards her. At home, the mother asserts the father’s aggressive behaviour escalated to the point where she considered it necessary to call the police. It is alleged that the father threatened the mother and said he would “put a bullet in my head if I became involved with another man and no other man would raise his children”. The police were called for a second time and ultimately resulted in the mother obtaining an interim intervention order on 19 June 2009. Those proceedings were dismissed on 12 October 2009 following a reconciliation of the parties.
A more serious incident is alleged to have occurred on 12 June 2009 when following an argument and the mother’s apparent refusal to engage in sexual intercourse with the father, he pinned her to a mattress on the floor and threatened to snap her neck with one hand. As the emotion and alleged threat subsided, the mother rang the police. Photos of the alleged bruising to the mother’s neck were annexed to the mother’s trial affidavit. They were indistinct and of little forensic purpose. Whilst the matter was raised with counsel, the original photographs were not produced.
On 12 June 2014 the mother alleges that at 10.30pm she saw the father driving a motor vehicle towing a trailer past her house. She states that she was able to recognise some of the furniture as being from the former matrimonial home and considered that the father was attempting to intimidate her. On 18 August 2014 the mother applied for and obtained an intervention order against the father but she withdrew those proceedings before the final hearing.
On 17 and 18 January 2015 the mother was contacted by the local police and was told that the father was being charged with breaches of the intervention order made on 18 August 2014 as a result of the mother’s complaint that the father rang her on four occasions, sent a blank text message to her and had sat in front of her home for 20 minutes after he had returned the children.
Other than a general concession by the father that there was high conflict in the home from time to time, the father in his affidavit material denies the mother’s allegations.
It was ultimately conceded by the father that there had been a technical breach of the intervention order, but I am satisfied that his explanation for the phone calls and the attendance at the mother’s home was capable of proper explanation and benign purpose.
It is difficult to assess the weight to be given to the mother’s evidence in relation to her concern that the father was the perpetrator of family violence.
I am not satisfied that the evidence of the mother of the observations of the father behaving aggressively towards the children are sufficiently particularised for them to be afforded significant weight.
The mother complains of a recent incident involving the children but in particular C. It is alleged that whilst in the father’s care he forced them to read books for hours, in particular that C was required to read a Marilyn Monroe book from lunch to dinner. The import of the allegation is that when the children return to the mother’s care from spending time with the father they are like “time bombs”, they are bottled up and because they do nothing in the father’s care the mother describes their conversation as “verbal diarrhoea”.
The mother was challenged on the circumstances of C being required to read the Marilyn Monroe book. I found the mother’s response unconvincing and lacking insight. Even taken at its highest, there could not be anything sinister in C reading a biography on Marilyn Monroe. It would seem likely that if the children did complain it is not because they were genuinely distressed but rather, they have developed an understanding that the mother is attuned to negative remarks involving their time with the father. Given the mother’s own view that when the time with the father was observed by the Family Consultant they were acting out of fear, it is a reasonable extrapolation that the children were prepared to make a complaint for no other reason than they were acutely aware of their mother’s receptiveness.
The mother agreed in evidence that if she was required to stay in Melbourne then she would need to look for part-time work. She did think she would get a job but it would be by necessity be lowly paid and securing employment may not be easy given her poor skill set.
Doing the best that she could, the money available to her would be from a part-time wage, some Centrelink top up, spousal maintenance and child support.
At present her expenses are high. As part of the father’s obligations to the Hague Convention Court, the mother was supplied with a four wheel drive motor vehicle. Whilst there is some issue in respect of its reliability, the principal concern is that it is an expensive motor vehicle to run on a limited budget.
She will have to leave her current residence given that the rent is about $750 per week. She has not secured alternate accommodation but whilst she considers she will be able to rent elsewhere, it is likely that the children will need to change school.
There was some limited evidence as to the benefit she would receive if living in the United Kingdom, but essentially her case was that the town of O Town, P District is a small town with a lower cost of living.
The mother’s evidence as to her financial position if the children are required to remain in Australia is more reliable than what she considers will be her financial situation in the United Kingdom.
Obviously much depends upon the relationship between the mother and Mr F.
Ultimately the mother’s evidence satisfies me that she is genuine in her presentation of the personal benefits to her and the children of a relocation to the United Kingdom. Her evidence is however coloured by her strongly held view.

Maternal Grandmother

The evidence of this witness was not the subject of challenge by counsel for the father.
I am satisfied that the maternal grandmother is entirely supportive of her daughter as evidenced by her having been in Australia for a period of almost one year.
Moreover, she has financially supported the mother’s endeavours to an amount of $219,900.
To the extent that it is relevant, I am satisfied that if the children are permitted to relocate to the United Kingdom they will have the fulsome support of the maternal grandmother.
Under cross examination by counsel for the ICL, the maternal grandmother said that during the six week period that the children stayed with her in the United Kingdom, they did not appear to miss their father and that they would only speak of him when they had any communication via skype or telephone. She appeared “a little concerned” that the children were not talking about their father.
She was also questioned on her observations of the presentation of the children following the “Marilyn Monroe” occasion. It was not the view of the maternal grandmother that the children were hysterical notwithstanding that was the mother’s observation.
Her evidence was however similar to that given by the mother in terms of their negative perception of their father.
Ordinarily such an observation may be unimportant but it has particular residence in a case where the gravamen is the extent to which the Court can find that the mother and those who assist her will reliably support the relationship between the children and their father during periods of long absence and separation.

Ms G Hibbert

This witness is the sister of the mother and the children’s aunt.
From time to time this witness visited the family in Australia and made observations of the deteriorating relationship between the parties. It is open to find that she did not hold the father in high regard. To the extent however that the essence of her evidence is the extent to which she would support the mother and the children if relocation was permitted, that stance is not the subject of challenge.

In Mazorski & Albright (2007) 37 Fam LR 518 Brown J commented on the definition of “meaningful” and said:-
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship” is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
When considering the primary considerations and the application of the objects and principles of the Act a meaningful relationship or a meaningful involvement is one which is important, significant and of value to the child or children.
It is a qualitative adjective, not strictly a quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equal shared parental responsibility and the requirements for the time with the child to be, where possible in their best interests substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court said at paragraph 119:-
We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit the court making appropriate orders in circumstances where a significant relationship had not been established between a child and parent as at the date of trial.
I must therefore consider orders that serve the best interests of the children and must weigh up the competing primary considerations, namely the benefit to the children of having a meaningful relationship with both of their parents, but the need to protect them from physical or psychological harm.
The mother was disparaging of the nature and extent of the relationship that existed between the father and the children prior to them moving to the United Kingdom.
It was her evidence that the father worked hard which entailed long hours away from the home, but when home he was either aggressive or demonstrably uncommunicative and he would often be away from the home and seek the society of others which usually involved the heavy consumption of alcohol.
It was the mother’s position that the children were either frightened of their father or were at the very least wary of him.
His evidence was somewhat more measured and balanced. He conceded that he was away from the home for significant periods of time but that he felt able to concentrate on work and employment because the mother was a particularly good parent. The father’s concession in respect of the ability of the mother to parent the children is important.
That state of affairs was tempered by his evidence that saw him invest as much time and attention to the children as the rigors of his employment allowed. Clearly, the father was focussed upon the children’s education and academic performance. In this regard I have determined that his interest in the children’s education was not only benign in its execution but beneficial in terms of purpose and outcome.
It is difficult to gauge with precision the extent of the relationship between the children and their father prior to separation. The observations of others, in particular the father’s adult son, are insightful.
The principal factor that may have affected the father’s relationship with the children is the consequences of the inter-parental conflict. Put simply, the parties were aggressive towards each other but with the balance skewed towards the father. I find the evidence of the father retiring to a different room when he returned to the home from his employment was not simply to gain the advantage of extra warmth to assist his shoulder injury but to avoid unnecessary interaction with the mother.
The somewhat surprising and aggressive response by the father to the mother and the children watching a banal but ultimately benign reality television program is telling.
There is little doubt however that upon the children relocating to the United Kingdom, whatever their relationship may have been hitherto with the father, it was demonstrably altered upon his arrival following the commencement of the Hague Convention proceedings. I accept his evidence that the children appeared fearful of him and that he had difficulty in re-establishing a relationship. I do not consider that the children’s presentation during their period in the United Kingdom is consistent or corroborative of the relationship that existed in Australia. Their attitude and view of their father had changed dramatically and he was “demonised”.
It was confirmed in the children’s presentation to the family consultant. He formed the view that there was a level of irrationality in the extent to which the father and their previous life in Australia was “all bad” and their life with their mother in the United Kingdom was “all good”. The children expressed significant fear and dislike for their father and his extended family including the adult half siblings with whom I have found they had a strong and beneficial relationship.
Their expressions of dislike and disinterest were in stark contrast to the observations of the family consultant during the observed interaction.
I have also considered the conduct of the mother whilst in the United Kingdom in terms of the effort undertaken by her to maintain and promote a relationship between the father and the children. I find that not only did she not encourage and foster a relationship but rather she actively erected barriers to prevent it. It was only by the most extreme action on the part of the father in terms of Hague proceedings and his preparedness to travel to the United Kingdom that he was able to redress the balance to some degree albeit limited.
The evidence of the family consultant on the importance of a meaningful relationship between a parent and a child whilst restated is nonetheless obvious. It should only be disrupted in circumstances which are compelling or if the Court can be satisfied that the moving party will conduct him or herself as “a gatekeeper on steroids” and actively promote and foster the relationship at all opportunities.
As was the opinion of the family consultant, a meaningful relationship is based upon parenting that involves the mundane but necessary activities together with those that are fun and represent a happy diversion.
There has been some alteration in the mother’s conduct towards the father even from the poor opinion of him as expressed in the report of the family consultant.
It is encouraging that the father now enjoys significant and substantial time with the children and that the current arrangement is not the result of a court order but rather the parties being able to reach an agreement.
A further concern of the father is that if the children do relocate, any dissatisfaction on his part that would ordinarily require further proceedings to be initiated would be difficult if not impossible in the United Kingdom.
Whilst complimentary of the maternal grandmother and aunt in respect of the care that they are likely to give the children and the assistance and support to the mother, they did not impress as having any willingness to promote or support the children’s relationship with their father.
Whilst perhaps less important but in terms of the evidence unexpected, was the relationship between the father’s adult son Mr K and the children. His observations of their respective personalities, behaviour and development was impressive. He was not an observer in their lives but rather was an active participant. I accept that the children actively seek Mr K out and he willingly provides sibling support. A loss of that relationship would be to the children’s detriment.
Whilst the mother’s proposals if relocation is permitted might be viewed by the father with scepticism, taken at their highest the children would spend a significant block period of time with him each year. I am entitled to consider that this would represent recognition by the mother that the relationship between the children and their father needs to be given some focus.
In considering the competing proposals of the parties, the very issue of whether the time proposed by the mother that the children see their father and spend time with him would be sufficient to promote a meaningful relationship. The opinion of the family consultant is that it would not have this desired outcome. It would maintain the connection but not a relationship that could be seen as beneficial.

Section 60CC(2)(b)

Unfortunately the issue of family violence features significantly in the evidence. There are intervention orders that have been put in place by or on behalf of the mother and also allegations of alleged but also admitted breaches.
The mother was fearful of the father and whilst it is difficult for me to assess where the gravamen of the evidence is centred, I consider that the father was of aggressive demeanour and conduct.
I have already made strong comment on the text messages forwarded by him that the mother relied upon as a catalyst to remove the children without any warning or notice of their departure. Whilst the mother can properly be criticised for her lack of transparency in their removal, the father should gain no comfort from that finding given his disrespectful, offensive and frightening communication.
The children however did not display any sign of fear of their father. I reject entirely the mother’s position that any observation of favourable interaction and relationship between the children and their father should be suspect and explained by the children acting because they were frightened of him. The mother’s case was not assisted by her explanation of that which on the evidence of the family consultant is clear and unequivocal namely, that when the children finally had an opportunity to spend time with their father they were loving and affectionate and had clearly missed his company and involvement.
I do not accept that the father was financially controlling of the mother. If anything the mother’s evidence was that she always had access to money whether it be in an account or by reason of a credit card notwithstanding that there were times when the family endured significant financial disruption and hardship.
The father’s acceptance of what he considers to be a technical breach of the most recent intervention order is an appropriate response in circumstances where any breach cannot be tolerated.
I do not find that if the mother remains in Australia she is at risk of family violence by the father. Equally there is no risk to the children.

Section 60CC(3)(a)

I am not satisfied that the views and wishes of the children as expressed to the family consultant and as relayed and related by the mother and her family should be given substantial weight. Their presentation to the family consultant was unreliable and he much preferred his observations of their interaction with their father as a more reliable indicator of the depth and extent of their relationship with him.
The children have not been resistive to the graduated extension of time that they spend with their father and it appears that they have settled into a routine that has a level of stability and reliability. Whist the children have clearly “adapted” to their current circumstance it should not be seen that they are simply coping with the best of a bad lot. Their relationship with the father is demonstrably beneficial and they have developed a good relationship with the father’s partner and continue their beneficial involvement with the father’s adult son.
I accept the evidence of the family consultant that in relation to any desire that the children may express to reside in the United Kingdom caution should be exercised.

Section 60CC(3)(b)

The children have a strong attachment to each of their parents. As has often been stated in these proceedings it is not about the mother’s ability to care for the children or their relationship with her. The father has conceded that she is a good parent and I have found that she has been their primary carer. The issue is whether there will be any meaningful relationship that can be preserved, promoted or fostered if the children reside in the United Kingdom. Whatever the position may have been prior to separation, I find that the children’s relationship with their father has been restored and it is now one of mutual benefit. I consider that if the children reside in the United Kingdom it will not be the same relationship and I fear based upon the evidence of the family consultant is that it will be down-graded to one of “connection” as opposed to a “meaningful relationship” where the children derive a positive benefit.

Section 60CC (3)(c) and (ca)

Following the return of the children to Australia the children have spent increasing time with the father to the extent that it can now be considered significant and substantial time. They have lived with the mother at all other times.
The parties have difficulty in their inter-parental communications but as I have already found, they are high functioning individuals who have the interests of the children as their foremost objective. Whilst faltering and as yet absent any goodwill, where it is necessary the parties have been able to communicate.
Each of the parties are able to provide appropriately for the physical needs of the children although there is no doubt that the preponderance of the children’s parenting falls to the mother. The mother’s case is focussed on the significant benefits for the children in their relocation to the United Kingdom but predominantly because her circumstances will be much improved and enhanced and that will provide greater stability for the children.
There is no doubt that the mother has support in the United Kingdom and the very real advantage of a fulfilling relationship with her current partner.
What is absent is any confidence that if relocation took place, the extent to which there would not be irreparable damage to the children’s relationship with their father. The evidence of the family consultant is that the relationship trauma would be manifest and that whilst the children would adapt they would lose that real benefit of a parental relationship with their father. It is that relationship and the fostering of it which must be seen as in the best interests of the children.
In Australia the parties would enjoy equal shared parental responsibility. The father would have the ability to spend time with the children on a regular basis and by necessity a range of parental activities that he would be able to engage in would be across a broad spectrum. He is keen to do that and I accept that he is genuine in that presentation.
The mother’s position is obviously more precarious. She is concerned as to her ability to obtain employment although she concedes (to her credit) that in all probability employment will eventuate. There is some prospect, but not without substantial personal cost, that the mother’s current partner will relocate to Australia. That is not without difficulty both in terms of his relationship with his own children who would remain in the United Kingdom but also his ability to find employment and fulfil the role that he considers important to him namely, to look after the mother and provide a home for each of them as a couple but the children as a family.

Section 60CC (3)(d) and (e)

If the children relocate to the United Kingdom they will clearly be separated significantly from their father but would remain with the warm affection and care of the mother and her extended family including her current partner.
There is a practical difficulty that arises from the tyranny of distance. Whilst I accept that the mother is generally now receptive of the father visiting the children in the United Kingdom, that first requires the father to be able to pay the costs of his travel but then he would have the potentially onerous costs of looking after the children in hotel accommodation with all that it entails including food, travel costs, entertainment and the difficulty that he would experience with transport.
Whilst it is deceptively attractive to offer substantial time to the father in the United Kingdom it is likely to be unrealistic and not able to be undertaken.
The mother and the children travelling to Australia so they could spend time with him in his home is obviously more achievable.
There is however nonetheless a substantial cost in that regard and it is likely that there will be a range of logistical issues that will arise even in the more acceptable option of the children spending time with their father in his home.
It may be that the practical difficulties do little more than add insult to the likely injury that the children living in the United Kingdom will cause to their relationship with their father. I have found that whilst the mother’s proposal will enable the children to remain connected with their father, that is qualitatively different to them having a meaningful relationship with him. That is the impracticability of the mother’s proposal namely, the extent to which it will adversely affect the children’s relationship with their father.
The father’s proposal would see the children remaining in Australia. The mother’s own evidence is that she would remain with them and continue the admirable parenting role that she currently undertakes. That will not be without difficulty for the mother and it must be said that of the two, it will be significantly more onerous on her to remain here than where she would wish to reside namely, in the United Kingdom with family, partner and friends. I find however that whilst difficult and initially distressing, the mother is able to remain in Australia in circumstances where she has lived here for many years. She has a support network in terms of a group of friends who clearly support her. The children are familiar with their life in Australia and whilst there will be some readjustment arising out of their possible enrolment in different schools, nonetheless that is no different to the need for them to adapt to a different educational system in the United Kingdom.
Whilst no certainty of outcome, if the mother’s partner is able to relocate to Australia that will be of substantial advantage and support to her.
The father is willing to make reasonable financial arrangements which together with child support likely to increase if the father’s assertion of his income comes to fruition and the further additional payment of spousal maintenance will be of assistance to the mother and will supplement her ability to support herself and the children.

Section 60CC(3)(f)

The mother has sought medical assistance for depression. I accept that she is upset and that she would wish to be in the United Kingdom rather than in Australia. I am uncertain whether her current wellbeing is so compromised by her having to remain here that this affects her ability to adequately and appropriately parent the children. The medical evidence does not support the contention. I accept the mother has a genuine desire to remain in the United Kingdom but I also find that she has sufficient resilience that she will accept her predicament and continue to support and parent the children in a manner not dissimilar to the previous discharge of that parenting role.
I do not consider that there has been a serious breakdown in her parenting ability and the evidence of her current depression and anxiety is such that a resolution of the proceedings whilst initially likely to be distressing nonetheless are likely to dissipate as she simply gets on with the task at hand.

Section 60CC(3)(g), (h), (i), (j) and (k)

I do not consider that I need to make further comment in respect of matters relating to family violence and intervention orders. The evidence is relatively clear that I have found that ultimately my findings of poor conduct on the part of the father should not be elevated to the point where the benefit to the children of a meaningful relationship with him be ignored, put aside or given lesser weight.

Section 60CC(3)(l) and (m)

It is difficult to assess what the future holds for this family. The father conceded that B at 14 years of age is somewhat the master of his own destiny and that in the next few years the children will ultimately determine the relationship that they would wish to have with their parents.
It may be that as time passes the children will be less interested in the United Kingdom and be satisfied to maintain their connection with the mother’s family by spending significant holiday time in the United Kingdom without changing their place of residence.
Equally as time passes the children may develop a greater interest in the United Kingdom and would wish to further explore that part of their heritage.
To some extent the current ages of the children is such that over the next few years the need for litigation between the parties will dissipate as the parental decisions are more likely to be guided by the children rather than the parents.
In all the circumstances, I consider that the orders I propose to make are least likely to lead to the institution of further proceedings.

FINANCIAL MATTERS

The father concedes that he will have an ongoing obligation to pay child support pursuant to a Child Support Assessment. At present his current obligation is $421 each calendar month. That will continue until the end of the current assessment period in or about January 2016.
The father concedes that the assessment is based upon an income of about $47,000 per annum which is likely to change given his evidence both orally but also in his most recently filed financial statement that alludes to an income stream of about $2,000 per week.
The father was challenged in respect of his future financial arrangements and whilst I cannot say his evidence filled me with confidence, nonetheless I accept his assertion that he will be in receipt of a substantial income, that it will be taxable and therefore it is likely to be the foundation for a reassessment of child support based upon a child support income amount of $100,000 as opposed to the current assessment.
The mother seeks spousal maintenance in the sum of $405 per week. The father does not oppose the mother’s order but in fact offered significantly more. The father’s evidence as to his ability to fund the further sum of $800 a week as offered by him was unimpressive. There would seem to me to be no benefit to these parties in an order being made which is not able to be complied with and is said only to attempt to enhance the strategy of the father’s case.
I am satisfied however that the father is able to pay the further an additional sum of $405 per week as sought by the mother in addition to the child support as may be assessed from time to time.
Whatever other amounts the parties agree in terms of the children’s education are matters for them but I propose to order that the father pay spousal maintenance as requested by the mother in the sum of $405 per week for a period of two calendar years. Thereafter the parties will either need to re-negotiate or reconsider their circumstances at that time.
In determining the appropriateness of a spousal maintenance order I am mindful of the evidence given by the parties generally but in particular their examination and cross examination of their current financial circumstances with the assistance of financial statements as prepared by the mother and filed on 22 April 2015 and by the father and filed by him on 12 May 2015.

CONCLUSION

I have given careful regard to the evidence of the parties and have focussed on a consideration of the separate and competing proposals of each of them. Ultimately I have determined that the flaw in the mother’s proposal is the likely detrimental effect on the meaningful relationship that the children currently have with their father. I am not satisfied that the mother would support the relationship with any enthusiasm and that whilst the children would adapt to their new circumstance, they would do so without the benefit that a proper relationship with their father would bring.
The father’s proposal would see the children reside in Australia and the parties are agreed that if that is the outcome, they would each have equal shared parental responsibility.
The mother would find it is difficult to remain in Australia without the support of her family and partner resident in the United Kingdom. I have found however that she has the ability to adapt and it could not be said that she is without strong connection in Australia having lived here for many years, enjoyed employment and a social network.
The children will benefit significantly by them remaining in Australia until such time as they decide the extent to which they would wish to spend time with their mother or their father. As the father candidly agreed, B in the next few years will reach that position. C and D will not be far behind as their ages advance.
Ultimately it may be to the great advantage of these children that they have a home in Australia but a strong and beneficial connection with the mother’s home and family in the United Kingdom.
The father is not opposed to the mother taking the children out of Australia to visit her family in the United Kingdom. That is to his credit notwithstanding the difficulty that he experienced and the personal cost both financial and emotional in the Hague Convention proceedings that were required to be instituted to have the children returned to Australia.
There does need however to be adjustment to the orders that the father seeks to reflect that frequency is not necessarily of benefit to the children given their current age. I consider that the less the children transition and move between the parties the more likely they will enjoy a greater level of stability and certainty. I propose to make orders that would see the children spending a longer period with the father each fortnight but with less frequency of transfer between the two homes. I also consider that the mother should be given the benefit of being able to travel with the children to the United Kingdom during the children’s school holidays for extended periods if she chooses to do so.
I make orders as appear at the commencement of these reasons.

I certify that the preceding four hundred and thirty five (435) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 19 June 2015.

Associate:

Date: 19 June 2015

[2015] FamCA 466

19 June 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness