Hidaka & Hidaka
[2024] FedCFamC1F 4
•16 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hidaka & Hidaka [2024] FedCFamC1F 4
File number(s): SYC 8022 of 2023 Judgment of: ALTOBELLI J Date of judgment: 16 January 2024 Catchwords: FAMILY LAW – PARENTING – Interim – Where the mother has unilaterally relocated with the children to Country B – Where the mother has commenced concurrent proceedings in Country B – Anti-suit injunction – The father seeks recovery orders for the children – Circumstances where the father is unable to visit the children in Country B – Best interests principle – It is ordered that the children be returned to the Commonwealth of Australia. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZW
Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children
Cases cited: Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Morgan & Miles [2007] FamCA 1230
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Pascarl & Oxley [2013] FamCAFC 47
Division: Division 1 First Instance Number of paragraphs: 41 Date of hearing: 15 December 2023 Place: Sydney Counsel for the Applicant: Ms Kennedy Solicitor for the Applicant: Lagom Family Law Counsel for the Respondent: Mr Batey Solicitor for the Respondent: Genuine Legal ORDERS
SYC 8022 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HIDAKA
Applicant
AND: MS HIDAKA
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
16 JANUARY 2024
THE COURT ORDERS THAT:
Return of the Children
1.The Respondent mother (“the mother”) forthwith and within 72 hours do all acts and things and sign all documents as shall be necessary to return X born 2018 and Y born 2019 (“the children”) to the Commonwealth of Australia and disembark at Sydney International Airport.
2.The mother do all acts and things to inform the Applicant father (“the father”) in writing of the children’s flight details back to Australia in her care or, alternatively, that if she does not intend to return to Australia, that she will not be accompanying the children back to Australia.
3.If the mother fails or neglects to comply with Order 1 above, the father or his nominated agent, be entitled to take possession of and assume primary care of the children in Country B for the purpose of returning the children to Australia and, if he does so, the mother be and is hereby entitled to be a passenger on the same flight as the father (or his nominated agent) and the children at her own expense and subject to her obtaining a ticket to be a passenger on that flight.
4.The father advise the mother as soon as possible following the mother’s notification pursuant to Order 2 above (that she will not accompany the children back to Australia) of the flight details of any flights booked by him for the children’s passage back to Australia.
5.The father be at liberty to make a copy of these orders available to such persons, agencies and organisations, in Australia, Country B or such other jurisdiction as the children are or may be taken, as is reasonably required to assist in the implementation of these orders, including but not limited to any airline on which the children travel or are booked or seek to travel.
Family Law Watchlist
6.Until further order, each party, Mr Hidaka born 1985 and Ms Hidaka born 1985, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the children, X born 2018 and Y born 2019 (“the children”) from the Commonwealth of Australia, AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until the Court orders its removal.
Parenting Arrangement
7.Provided the mother and the children return to the Commonwealth of Australia, the father is to do all acts and things necessary to facilitate the following:
(a)The mother is to receive a partial property settlement of $100,000 within seven days of her arrival to Australia;
(b)If, before she returns to Australia, the mother notifies the father that she wishes to live in the property on her return to Australia, the father is to vacate the property 24 hours before the mother and the children’s arrival to Australia;
(c)The father is restrained from spending any overnight time with the children unless he has commenced a lease on a property; and
(d)Not to drink alcohol within 12 hours of commencing any time with the children.
If the mother returns to Australia with the children
8.Until further order, the children live with the mother.
9.The mother be restrained by injunction from relocating the residence of the children from a 10 km radius of Suburb C Sydney or Suburb D NSW.
10.Until further order, the children spend time with the father from the first Tuesday or Thursday after the children return to Australia:
(a)Each Tuesday and Thursday from 8.00 am until 4.00 pm;
(b)Each Saturday and Sunday from 12.00 pm until 4.30 pm.
If the children return to Australia without the mother
11.Until further order, the children live with the father.
School Enrolment
12.Within seven days of the children’s return to the Commonwealth of Australia, the parties will do all acts and things and sign all documents as shall be necessary to enrol the children at E School or F School to ensure the children commence their primary schooling at either of those schools.
13.For the purposes of Order 11 above, the mother shall complete the enrolment forms in the first instance and provide them to the father by email for him to complete and sign the forms where necessary.
Communication
14.Upon the mother’s return to the Commonwealth of Australia with the children, Order 25 of the orders made on 29 November 2023 be varied such that the time for electronic communication between the children and the father be each Monday and Wednesday between 7.00 pm and 7.30 pm.
Changeover
15.For the purposes of changeover, the following shall occur:
(a)If the children are not attending school at the commencement of time or conclusion of time then the father shall collect the children from the mother’s residence at the commencement of his time and the mother shall collect the children from the father’s residence at the conclusion of the father’s time; and
(b)If the children are attending school at the commencement of time or conclusion of time then the father shall collect the children from school at the commencement of his time and deliver the children to school at the conclusion of his time.
Leave to Relist
16.The parties have leave to relist this matter before me on seven day’s notice.
THE COURT NOTES THAT:
A.The father has not acquiesced to the retention of the children in Country B by the mother.
B.Upon the children’s return to the Commonwealth of Australia, the parties will exercise their parental responsibility for the children.
C.Upon the children’s return to the Commonwealth of Australia, the father will not seek any action be taken against the mother in relation to any alleged wrongful removal of the children to Country B.
D.This Court requests that the competent authorities and courts in Country B recognise and enforce these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hidaka & Hidaka has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders that the Court has made in proceedings between the applicant father (“the father”) and the respondent mother (“the mother”). These proceedings concern the interim parenting arrangements for the parties’ two children: X aged five years old and Y aged four years old (“the children”).
BACKGROUND
The parties were married in 2013 in City G, Country B and immigrated to Australia in 2013. The parties resided in Sydney from early 2015 until late 2020, when they embarked on a long‑term travelling sabbatical primarily around Australia. In late 2022, the parties arrived in New Zealand and commenced residing there for eight months before they recommenced travel. The parties’ intention was that they would return to Australia from 2024 so the children could commence primary schooling in Australia. During this sabbatical the parties separated on a final basis on 12 August 2023.
In late 2023, the parties arrived in Country H for the children and the mother to board a flight to Country J for a holiday. The following month, the father travelled from Australia to Country J to spend time with the children. The father did not spend time with the children although the reason for this is disputed. Later that month the mother and the children travelled to Country B, and this is where she currently remains. There is no suggestion that the father was aware of or consented to this. The mother and the children currently remain in Country B.
The father has requested that the children be returned to Australia and the mother has refused. The father has not spent any time with the children since late 2023.
The father commenced urgent proceedings in this Court on 25 October 2023 and the mother has commenced concurrent proceedings in Country B. The circumstances around the mother’s filing of the Country B proceedings will be discussed further below.
Orders were made on 29 November 2023 requesting that the NSW Police and the Department of Communities and Justice provide information pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”). Orders were also made by consent for the father to submit to Carbohydrate Deficient Transferrin (“CDT”) testing to detect excessive alcohol use, the children be at liberty to contact either parent via telephone and/or video call, a call be facilitated between 7.00 pm and 7.30 pm each Tuesday and Friday and between 11.00 am and 11.30 am on Sunday for the children and the parent they are not residing with, the children call the father on Christmas Day and birthdays between 7.00 pm and 7.30 pm, various mutual restraints against physical discipline, discussing the proceedings in front of the children, consuming alcohol and illicit drugs and non-denigration, and orders for exchange of the children’s schooling and medical information.
The matter came before me on 15 December 2023. Both parents were capably represented by counsel who made very useful submissions in relation to the legal and factual issues before the Court. It became necessary to make an urgent decision in relation to an anti-suit injunction as the parenting proceedings in Country B were listed on 15 December 2023 (a few hours after the hearing in this Court). I provided short ex tempore reasons for making this order on an interim basis. Orders were also made restraining the mother from disposing of, or dealing with, her shares held with K Company without the consent of the father save for liquidating shares to the value of $4,000 per month for the purposes of her living expenses. However, this order will automatically be discharged upon the mother returning the children to Australia.
THE COMPETING PROPOSALS
The father seeks that the mother return the children to the Commonwealth of Australia and the children be placed on the Airport Watchlist. Upon their return, he seeks that the children live with the mother and she be restrained by injunction from relocating the residence of the children from a 10 km radius of Suburb C Sydney or Suburb D NSW. He proposes to spend time with the children in a graduated regime from one night per week to five nights per fortnight to equal time. He seeks specific orders for special occasion time with both parents. In the event the mother does not return to Australia, he seeks that the children live with him. The father also seeks an anti-suit injunction order restraining the mother from prosecuting the Country B proceedings.
The mother seeks orders for a family report to be completed. She proposes that she have sole parental responsibility for the children and the children live with her. If she remains residing in Country B, she proposes that the children live with her and spend supervised time with the father when he is in Country B as agreed between the parties, and the children communicate with him each Tuesday and Friday from 7.00 pm until 7.30 pm and each Sunday from 11.00 am until 11.30 am. If the children return to Sydney Australia, she seeks orders that the father complete CDT testing and parenting courses and then spend professionally supervised time with the children for two hours each alternate weekend on Saturday from 10.00 am until 12.00 pm. The mother proposes special occasion time between the children and the father depending on whether the children are residing in Country B (via videocall) or in Sydney (professionally supervised).
THE MATERIAL BEFORE THE COURT
In support of his case, the father relies on the following documents:
(a)Further Amended Initiating Application filed 13 December 2023;
(b)Notice of Child Abuse, Family Violence or Risk filed 25 October 2023;
(c)His affidavit filed 13 December 2023;
(d)Affidavit of Ms L filed 13 December 2023;
(e)Amended Outline of Case Document filed 14 December 2023; and
(f)Various documents tendered throughout the proceedings, and marked Exhibits A1–A13.
In support of her case, the mother relies on the following documents:
(a)Response to Final Orders filed 28 November 2023;
(b)Her affidavit filed 28 November 2023;
(c)Notice of Child Abuse, Family Violence or Risk filed 28 November 2023; and
(d)Outline of Case Document filed 13 December 2023.
APPLICABLE LAW
The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68.In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72.In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82.In an interim case that would involve the following:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
The Full Court, in Morgan & Miles [2007] FamCA 1230, made a number of comments relevant to these circumstances in [82]–[88]:
82. It is important to note that there are no separate provisions in the Act dealing with interim, as distinct from final orders, although s 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order. Thus there is no legislative mandate to consider different criteria in interim parenting application involving relocation to final applications, although the former will of necessity, be an abridged enquiry.
83.I have noted above that cases before the introduction of amending Act generally applied principles enunciated in Cowling, and particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements. Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.
84.The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.
85.In Goode the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act, particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph. Whilst lengthy, it aids understanding to set out the relevant passages from Goode:
71.The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.
72.In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
73.That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).
86.I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.
87.As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.
88. It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.
(Emphasis added)
SUBMISSIONS SUMMARISED
The father’s case for an anti-suit injunction and a recovery order relies on the Full Court’s decision in Pascarl & Oxley [2013] FamCAFC 47 which discusses matters pertaining to parenting only:
86.…Where an application is made under provisions of the Act which prescribe the best interests test, whether or not the child is within the jurisdiction, then it is that test, and not the test of forum non conveniens, which will apply.
When applying the best interests test to this matter, the father contends that the parties’ circumstances do not in any way constitute a “no time case” because the children are at an unacceptable, unmitigable risk of harm in the father’s care. The father deposes to the close and loving relationship that he has with the children which has been significantly impacted by the period of time that he has not seen the children. It is alleged that at a minimum, the Court would order that the children spend time with him and it is therefore necessary for the Court to make a recovery order. Further, as it is the mother’s own case that the children spend supervised time with the father if the children are ordered to return, she is acceding that it is in the best interests of the children to spend time with the father.
Counsel for the father also made submissions in relation to the chronology and the change in the mother’s attitude to the father’s parenting. The Court was referred to text messages between the parties in late 2023 (Exhibit A14) prior to the father’s visit to Country J to spend time with the children. Counsel submits, and the Court accepts, that the records show the mother was proposing 50:50 time, or in the alternative 30:30:40 time including the maternal grandmother, with the father with no allegation of risk alleged by the mother. At this point in time, the mother is identifying that the children will spend time with the father and the grandmother when he travels to Country J. The father deposes that on the next day, the mother found out the father had instructed conveyancers acting on the sale of parties’ property that he did not agree to the sale proceeds being distributed to the mother and her attitude changed in relation to parenting. The next day, the records show the mother messaging the father, “If you want war, I’ll just take the kids and get out of [Country J], block you everywhere and you’ll never find me. I don’t need this money from the apartment. Stop freezing if you want to negotiate normally” and further “Until you stop freezing, you won’t see or hear the children” (Exhibit A4). Although the reason is disputed, both parties agree that the father did not spend any time with the children when he travelled to Country J in late 2023.
Counsel for the father also emphasises significant concerns in relation to the chronology of this litigation and the mother’s international movement. In late 2023, the mother disclosed to the father that she had moved to Country B from Country J. The next day, the father served the mother with his Initiating Application in these proceedings requesting the immediate return of the children. The father believes that a few days later, the mother filed an application for divorce in Country B. It should be noted that the mother still has not disclosed in her documents precisely when she filed the Country B proceedings. On 6 November 2023, the father’s solicitor sent a letter to the mother’s solicitor requesting information about whether the mother had taken any steps to commence proceedings in Country B and the father received no response. On 28 November 2023, the mother filed an affidavit in these proceedings and there is no mention of the concurrent proceedings in Country B even though the mother filed documents for the proceedings to be heard in Country B on an earlier date. The father contends, and the Court accepts, that this Court may not have known about the concurrent proceedings in Country B had it not been disclosed by the father. Counsel for the father submits the mother has been dishonest with this Court in not giving disclosure and there are serious concerns in regards to her credit.
The mother submits that the Court should not order the return of the children to Australia in circumstances where there is no concrete proposal for where the children will live and the mother has no support here. She further alleges that she has always been the primary carer of the children and there is no current risk to the children in her care. Even if the mother can be criticised for her past behaviour, counsel for the mother submits that the Court needs to look at what is in the best interests of the children now and in the future. There is no benefit to the children returning to Australia other than having an easier relationship with the father.
Further, counsel for the mother submits that she may not return to Australia even if an order is made that she is to return. Counsel for the father submits this is a contemptuous submission.
DISCUSSION
It was not contended that the Court lacked jurisdiction to entertain the respective applications of the parents or the power to make the orders sought. That is undoubtedly correct. The father is present in Australia. Counsel for the mother quite properly conceded that the habitual residence of the children was probably Australia. I am satisfied from the affidavit evidence of Ms L, an experienced qualified lawyer in Country B, that Country B is a signatory to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children. Orders of this Court can, therefore, be enforced in Country B subject to an application to a Country B court under Country B law.
Counsel for the mother, undoubtedly on instructions, informed the Court that whatever order the Court makes, she will not return to Australia. That, of course, is her choice. The Court observes that it is but one of many disconcerting aspects of the mother’s approach to the separation from the father. The return to Country B with the children was unilateral in every sense of the word. The commencement of proceedings in Country B on what is, in reality, an ex parte basis, is disconcerting. The children have never lived in Country B. Of course, they are being cared for by the mother and the maternal grandmother, but they are in a completely different culture, community and political system. She has taken them to a country that is experiencing civil unrest notwithstanding a DFAT travel advisory recommending against travel. She has resumed a relationship with her former partner who, until recently, was a total stranger to the children. Bizarrely, the first order that she seeks relates to the preparation of the family report in circumstances where she does not intend to return to Australia, and the children’s main language is the language of Country B. Notwithstanding her stated position that she will not return to Australia, she proposes alternate orders that if the children return to Australia, they live with her and spend time with the father. Having regard to these matters the Court expresses its scepticism about the mother’s contention that she will not return to Australia if the children are so ordered. A reasonable inference for the Court to draw, in the circumstances, is that the mother remains somewhat confused, no doubt attributable to the significant changes in her life. This is quite understandable.
Through his counsel, the father indicated to the Court that should the mother return to Australia he agrees to her receiving a partial property settlement of $100,000, he would vacate the property, he would not spend any overnight time with the children unless he had a lease on another property, and he would agree to an undertaking not to drink alcohol before commencing time with the children.
Noting the competing factual contentions of both parents, a regular feature of contested interim parenting applications, based on all the material before the Court, the strong impression formed is that the children enjoy a meaningful relationship with both parents. It is implicit in the mother’s own proposals for the children to spend time and communicate with their father. Even if the mother contended that the children do not have a meaningful relationship with the father, the Court would find that this lacks plausibility in circumstances where they lived in a relatively confined environment while travelling for several years. Prospectively, however, it is difficult to discern from the mother’s case how the children’s meaningful relationship with the father would be continued on her proposal. The submission made on behalf of the father that he cannot return to Country B without political consequences, provides a plausible explanation for why he cannot travel to Country B to spend time with the children. The Court notes that the mother’s counsel did not cavil with the father’s submission in this regard.
The mother contends that the children are at risk of harm in the father’s care. She raises issues about family violence towards her, abuse and neglect of the children, controlling behaviour, and alcohol abuse. The father denies these allegations. All of these allegations and denials are taken at face value, as are the inconsistencies in the allegations. The electronic communication between the mother and the father is plainly inconsistent with her family violence allegations and manifests a significant narrative change on the mother’s part when financial issues seemingly did not go her own way. The father has submitted Country B records that show he has no criminal history in Country B (Exhibit A9). Section 69ZW material from the NSW Police and the Department of Communities and Justice has also shown nil records in relation to the father and this family. The father has also submitted to CDT testing in December 2023 which shows no excessive use of alcohol (Exhibit A10). Her contention of financial control is inconsistent with the evidence suggesting she has independent access to significant financial resources. But even if all of her allegations were accepted by this Court, she seemingly makes no attempt to address why both she and the children could not be adequately protected in Australia, pending the determination of any application she might make for an international relocation.
The father contends that the risk of harm to the children is that they will lose their relationship with him unless they are returned to Australia. This is a plausible contention.
There are no views expressed by the children on which the Court would place any significance in the present context.
The Court accepts the mother’s contention that she was the primary carer of the children. To the extent that she contends that the father had nothing to do with them, it is not only inconsistent with the father’s evidence, but this is simply implausible on the circumstances of this case given the years that they travelled together.
The mother has brought about a significant and unilateral change in the lives of the children for reasons that she has articulated in her affidavit, but which have not been subjected to the critical scrutiny of the Court’s processes. She wants to continue that. The Court has no evidence about the potential impact on the children of the exclusion of the father from their lives. She seems to give little consideration to this as well. The submission made on the father’s behalf that the mother has sought to substitute and prioritise the maternal grandmother’s relationship with the children over that of the father, has some credence. The children’s relationship with the mother’s new partner is a new, and unknown but significant issue for the Court.
There are enormous issues of practical difficulty and expense of the father spending time with the children if they remain in Country B. This would affect their relationship with him.
The evidence filed, and submissions made on behalf of both parties raise issues about parental capacity and attitudes that cannot properly be assessed in the context of an interim hearing.
Having regard to all of the material presently before the Court, the Court believes that it is in the best interests of the children that the mother be ordered to return the children to Australia. The orders proposed by the father at Orders 1–6 of his Minute of Order, as contained in his Case Outline Document filed 13 December 2023, are appropriate. As the father proposes, the Court will order that the children continue to live with the mother provided she returns with them to Australia. Orders will be made reflecting the proposal put to the Court by the father’s counsel at the interim hearing. Order 9(a) of the father’s minute will be made such that he spends time with the children on their return four days weekly during daytime is only. The progression, if any, at this time along with special occasion time will be reviewed. The orders proposed by the father for communication and changeover will be made. On return of the children to Australia the order for school enrolment proposed by the father will also be made. As the orders that this Court makes will, in all likelihood, be produced by him to a Country B court, the notation proposed by him will also be made. The father proposes that should the mother return to Australia she be restrained from relocating the residence of the children from certain named areas. This order will be made on the basis that some framework is better than none, but on the clear understanding that it is the view of this Court that the mother should be entitled to live where she likes in Australia, subject only to the father being able to spend time with the children in accordance with these orders. The orders can be revisited.
If the children return to Australia without the mother, the order will be that they live with the father and the question of spending time with the mother will be assessed by reference to further evidence.
This matter will remain in my docket, for the time being, and the parties will have leave to relist the matter on seven days’ notice.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 16 January 2024
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