JARRARD & JARRARD

[2015] FamCA 1143

FAMILY COURT OF AUSTRALIA

JARRARD & JARRARD [2015] FamCA 1143

FAMILY LAW – CHILDREN – Family Law Watch List order – mother seeks to travel regularly with the child to her country of origin, the Federation of Russia – father holds grave concerns that mother will not return the child – Federation of Russia is a state party to the Hague Convention but there are practical difficulties associated with enforcement under the Convention – mother seeks the discharge of the Watch List order – father seeks that the Watch List order be extended for five years – Mother permitted to travel with the child to Russia annually for up to three weeks per calendar year.

FAMILY LAW – CHILDREN – Where the child lives with the mother and spends substantial and significant time with the father – where there are final orders by consent as to equal shared care from 2017 when the child commences school – where the mother proposes the father spend time with the child for five consecutive nights per fortnight until the commencement of school – where the father proposes an additional night in the alternate week until the commencement of school – finding that it is in the best interests of the child for the father to spend time with the child for an additional night in the alternate week.

Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61C(3), 64B(2), 65DAA, 65Y, 68B
Family Law Rules 2004 (Cth), r 19.50

Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Raji & Hassam [2008] FamCA 4

APPLICANT: Mr Jarrard

RESPONDENT: Ms Jarrard

FILE NUMBER: MLC 9099 of 2013

DATE DELIVERED: 18 December 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 24, 25 and 26 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Matta

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

COUNSEL FOR THE RESPONDENT: Mr Davis

SOLICITOR FOR THE RESPONDENT: Monaco Lawyers

Orders

IT IS ORDERED THAT

1. All previous parenting orders, SAVE FOR the orders made by consent on 26 August 2015, be discharged, including the Watch List orders made 22 October 2013 and 21 October 2015 AND THE COURT REQUESTS THAT the Australian Federal Police remove the name of the child D born … 2011 from the Watch List at all points of international arrivals and departures in Australia.

2. As soon as practicable the Court forward a copy of this order to the Australian Federal Police.

3. Until the commencement of school in 2017, the child D born … 2011 (“the child”) live with the mother, with the exception of the long summer holidays as provided for in the orders made 26 August 2015, and spend time with the father as follows:

   (a)From 3pm on each alternate Wednesday for a period of five consecutive nights until the commencement of childcare on Monday morning of the following week; and

   (b)In the alternate week for one night from 3pm Wednesday until 11 am Thursday.

4. Changeovers occur at childcare/kindergarten where appropriate, or otherwise at the residence of the father at the commencement of the child’s time with the father, and at the residence of the mother at the conclusion of such time.

5. The Australian passport and Russian passport in the name of the child remain in the control of Sayer Jones (the solicitor’s on record for the father) and not be released to either party without the written agreement of both parties or by Order of the Court.

6. For a period of 5 years from the date of this Order, the mother is restrained from applying for or obtaining any Russian passport, without the consent of the father:

   (a)in the name of D born … 2011; or

   (b)with the name D born … 2011 entered into or endorsed upon it.

7. The mother is restrained from removing the child from Australia SAVE THAT she is permitted to travel to Russia with the child for a period of up to three  weeks per calendar year PROVIDED THAT:

   (a)the mother execute a Transfer of Land in registrable form for the transfer of the real property located at Z Street, Suburb M to the father to be held on trust for sale; and

   (b)the mother deliver the Transfer of Land to her solicitor together with proof that the property has an equity of not less than $300,000; and

   (c)the mother’s solicitor confirm in writing to the father and/or his solicitor, the mother’s compliance with Order (7)(b); and

   (d)at least 60 days before travelling to Russia the mother is to provide to the father and/or the father’s solicitor a detailed itinerary of proposed travel; and

   (e)any itinerary must include all information about the proposed trip including the flight details, the date of departure and return to Australia, a list of the places and people to be visited including the dates, telephone numbers and address of any accommodation.  A copy of hotel bookings should also be included; and

   (f)the mother return the child to Australia by the return date specified in the itinerary.

8. Upon compliance with Order (7) (a) to (e) the father shall deliver to the mother, the child’s passport at least 14 days before the proposed departure date.

9. Should the mother fail to return the child to Australia in accordance with Order (7) within 5 days of the return date specified in the itinerary, the father and/or his solicitors be at liberty to contact the solicitors for the mother advising them of the mother’s failure to return the child to Australia and upon being advised of same, the solicitors for the mother are to forthwith deliver the Transfer of Land held by them pursuant to Order (7) (b) to the father and/or his solicitors.

10. The mother is restrained from further encumbering the real property at Z Street, Suburb M so that the equity is less than $300,000 when she proposes to travel overseas with the child and until the child is returned to Australia pursuant to the conditions under Order (7).

11. All outstanding applications be dismissed.

IT IS ORDERED BY CONSENT THAT

1. The child’s Australian and Russian passports be retained by the father’s solicitors, Sayer Jones, with the exception of travelling in accordance with these orders or by written agreement between the parties and not be released to either party without the written agreement of both parties or by Court order.

IT IS CERTIFIED THAT

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of counsel.

IT IS DIRECTED THAT

All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty days from the date of these orders, or otherwise upon the conclusion of any appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jarrard & Jarrard 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 MELBOURNE

FILE NUMBER: MLC 9099  of 2013

Mr Jarrard

Applicant

And

Ms Jarrard

Respondent

REASONS FOR JUDGMENT

Introduction

1. These parenting proceedings concern competing proposals for D (“the child”), a four year old child of a three and a half year marriage.  The parties reside in Australia but the mother was born in the Federation of Russia and has dual Russian and Australian citizenship.  The father was born in Australia and is an Australian citizen.

2. The proceedings originated in the Federal Circuit Court on 21 October 2013 and were subsequently transferred to the Family Court on 30 January 2014 because of the mother’s previous application to relocate with the child for three years to work in Europe.  This application was subsequently withdrawn in this Court.

3. Property proceedings were also before the Court but final property orders were drafted by consent on the first day of trial on 24 August 2015 and formally made on 26 August 2015.  During the trial the parties agreed to final parenting orders providing for equal shared parental responsibility, for the child to live with the mother and to spend equal time with both parents in the long summer holidays.  The final parenting orders also provided for equal shared care commencing in 2017 when the child starts school.  There were numerous other orders made by agreement for special occasions and school.  The parties also agreed that they are each at liberty to travel interstate with the child provided that they disclose the details of that travel to the other party.

4. Many of the issues between the parties were ultimately not pressed or were agreed.  The trial proceeded only on the limited issues of whether the mother should be permitted to travel to Russia with the child to visit her family, the need for any Family Law Watch List order preventing the child leaving Australia and the time the child is to spend with the father until 2017. 

5. The father brings an application to extend a Family Law Watch List order made in the absence of the mother at an interim hearing in the Federal Circuit Court.     The mother opposes the extension of the Family Law Watch List order because she proposes to travel regularly to Russia with the chiuld to visit her family.  The mother seeks permission to travel to Russia with the child.  The father fears that the mother will travel to Russia with the child and fail to return the child to Australia.

6. Although the parents have equal shared parental responsibility for the child, because they cannot agree about the issue of international travel with the child, it is necessary for the Court to make a parenting order which is in the best interests of the child.  Central to the trial is the question of the risk of the mother failing to return the child to Australia to be weighed against the best interests of the child in experiencing his relationship with the maternal family in Russia and a meaningful involvement with his mother’s culture. 

7. It was conceded by counsel for the mother at the outset that whilst Russia is a State Party to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), Australia has not accepted its accession to date.  As a result, the 1980 Hague Convention has not entered into force between Australia and the Russian Federation, and there are not the necessary procedural or other arrangements for comity to invoke the recovery mechanisms under the Hague Convention in the event the mother failed to return the child to Australia. 

8. However, there was no evidence adduced by the father that there is no justice or opportunity to bring proceedings in Russia for the return of the child in the event that the mother failed to return the child to the jurisdiction.  There is simply no evidence about this.

9. The mother proposes to provide a surety of $300,000 drawing upon the equity in the real property she owns in Australia, and agreed in cross-examination to an injunction from otherwise accessing that equity.  The father’s lawyers are in possession of the child’s Australian and Russian passports and the mother in her case outline does not seek to change this arrangement provided the child’s passport is released to her to travel to Russia when the conditions she proposes are fulfilled.

10. The current arrangements under interim orders of Judge Small in the Federal Circuit Court on 30 January 2014 under paragraph 6 are:

    The child spend time and communicate with the father:

    a)Each week from 3.00pm on Wednesday until 11.00am on Thursday by collecting him from and returning him to childcare in Suburb M;

    b)Each alternate weekend from the conclusion of childcare on Friday until the commencement of childcare on Monday commencing 31 January 2014;

    c)Each other weekend from 8.00am until 4.00pm on Saturday commencing 8 February 2014; and

    d)Such other times as agreed to in writing by the parties.

11. Regarding the long summer holiday period until the commencement of school in 2017, the final parenting orders made on 26 August 2015 provide for the child to live with the father from 16 December until 31 December and 21 January to 27 January each year.  They provide for the child to live with the mother from 31 December to 21 January each year.

12. From the commencement of school in 2017, those orders also provide that the child spend one half of each long summer holiday period as agreed between the parties and in default of agreement that the child spend time with the father from the conclusion of the last day of school term to 31 December and from 21 January to the commencement of school in the New Year.  The child is to spend time with the mother from 31 December to 21 January each year.

13. There were no submissions made about the details of the timing of the mother’s proposal to travel with the child, and on the basis of the final parenting orders agreed between the parties it would appear that the only opportunity to travel during the time that the mother spends with the child would be for a period of up to 3 weeks during the long summer holiday period.  There were no submissions made about make-up time.

14. Until the commencement of school in 2017, the father agrees with the mother’s proposal that he spend from 3.00 pm Wednesday until Monday morning with the child in alternate weeks however he seeks additional time with the child for one night being Wednesday after daycare until Thursday morning in the other week. 

15. Essentially the mother proposes that the father spend a period of five consecutive nights per fortnight with the child and no time with him in the alternate week.  The father seeks that he spend a total of six nights per fortnight with the child.

16. Both parties proposed that changeover occur at the childcare facility where the child attends or at the residence of the other party when the child is not attending childcare.

17. The current interim arrangements for the child spending time with the father were unsatisfactory to both parties because they resulted in the mother having limited weekend time with the child.  The father conceded that the Saturday daytime contact arrangement should be removed.

Background

1. The father is aged 44 years and the mother is aged 41 years.  They met in May 2009 and married in April of the following year.  The child was born in 2011 and the parties separated on 5 October 2013 when the father left the matrimonial home.  Both parents are in good health.

2. The mother lived in various locations in Europe and the United States because her father worked internationally.  She studied in the United Kingdom and moved to Australia in 1997 to complete her university studies.  She became an Australian citizen in 1999 and qualified as a financial professional.  At the time she swore her affidavit, the mother was completing a Diploma and proposed to undertake a Masters degree to improve her qualifications.

3. The father is self employed as a financial professional. 

4. The child is bilingual and has dual Australian and Russian citizenship.  The child is in good health but has been diagnosed with a ventricular septal defect, which is expected to close spontaneously as he matures. 

5. The father issued an urgent application for a Family Law Watch List order when the mother, through her solicitors, requested his permission to travel with the child to Russia over the 2013-2014 summer.  This application was heard in the absence of the mother on 22 October 2013.  Orders were made which had the effect of restraining the mother from removing the child from the Commonwealth of Australia.  On 16 January 2014, the mother filed a Response to the father’s Initiating Application seeking, amongst other things, permission to relocate with the child to Europe in order to work there under a three year contract.

6. On 30 January 2014 when the interim orders were made by Judge Small in the Federal Circuit Court, the proceedings were transferred to this Court.

7. An interim application by the mother to travel with the child to Europe was dismissed by order of this Court on 28 July 2014, which also provided by consent that the parties do all things necessary to ensure the child’s enrolment at S School commencing Prep in 2017.

8. On 14 August 2014 the father filed an enforcement application seeking the mother’s compliance with the S School enrolment and the matter was resolved at an interim hearing before Senior Registrar FitzGibbon on 21 August 2014 whereby the father signed an undertaking that he would be solely responsible for all school fees in exchange for the mother’s compliance.

9. On 13 October 2014 the father filed a Further Amended Initiating Application which sought a Family Law Watch List order for a further period of five years, and the mother abandoned her relocation application to Europe by way of Response filed 27 October 2014.

10. On 5 November 2014 an order was made in this Court that the appointment of the Independent Children’s Lawyer be discharged because the mother had withdrawn her application to relocate.

11. The mother obtained an interim intervention order from the Melbourne Magistrates’ Court on 17 October 2014 in the absence of the father.  The order names the mother and the child as affected family members.

12. A further interim intervention order was made at the Melbourne Magistrates’ Court on 11 November 2014 pending a contested final hearing.  The child’s name was removed from this order.  The order notes that the father was present at the hearing and did not agree with the order being made.[1]

    [1] Annexure BHDJ-17 of the father’s affidavit filed 13 January 2015

13. The final hearing of the contested intervention order application by the mother was listed on 5 February 2015.  The mother did not proceed with her application on that day.

The evidence

1. The documents relied upon by each party are listed in Annexure A.  Only the parties were cross-examined at trial and the evidence of the report writers Ms K and Dr A were unchallenged.

Standard of proof

1. When determining what final orders the Court should make, the relevant standard of proof is the balance of probabilities.  Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:

   (a)the nature of the cause of action or defence; and

   (b)the nature of the subject matter of the proceeding; and

   (c)the gravity of the matters alleged.[2]

   [2] Evidence Act 1995 (Cth) s 140.

Evidence of the father

1. The father in his affidavit  filed 13 January 2015 expresses his concern that the mother will not comply with court orders if the Watch List Order is discharged, given what he says are the mother’s “breaches” of interim parenting orders.

2. The father deposes to three trips to Russia with the child during the marriage. For the first trip in 2012, the father deposes that he was very concerned because when he arrived in Russia the child did not appear to recognise him after an absence of four weeks.  Moreover, when he requested that the trip into Moscow to celebrate the child’s birthday and christening be postponed so he could spend Father’s Day with the child, he states he was told by the mother that “Russians don’t celebrate Father’s Day, it’s an Australian thing”.

3. The father deposes that the second holiday to Russia in late 2012 was intended to be completed with a week in the United Arab Emirates, but that the mother decided she wanted to remain in Russia for the extra week and he complied.

4. The father states that the third trip took place in May 2013 and that he remained in Australia due to work commitments but arranged to meet the mother and the child in Southeast Asia.  He deposes that as he was boarding the plane to Southeast Asia he received a phone call from the mother telling him that she would not be taking the arranged flight and that she and the child remained in Russia for a further six days, spending only four days with the father in Southeast Asia.

1. Following separation, the father deposes that he attended at the former matrimonial home to collect his personal items and that he also took the child’s Australian and Russian passports, as he had grave concerns that the mother may leave Australia with the child and not return.

2. He deposes to receiving notice from the mother’s then solicitors that the mother intended to travel over the 2013 holiday period. He deposes to a series of correspondence from late 2013 to mid-2014 regarding the mother’s various proposals to travel overseas.  He deposes to the mother’s statements to him during the relationship that her family is very wealthy.  He expresses doubt that the security the mother proposes will be sufficient incentive for her to return the child to Melbourne if she left Australia with the child.

3. The father deposes that he is supportive of the child being involved in his Russian culture but also states that he feels marginalised when the mother only speaks Russian to the child in his presence.  He states that although he was ineligible for paternity leave because he had recently commenced a new job, he prepared frozen meals during the pregnancy and paid for professional nannies to be engaged.  He deposes to having cared for the child on numerous occasions while the mother attended conferences, went to the gym and went out with her friends.

4. The father deposes to the spend time arrangements following separation and complains that the mother acts unilaterally, such as withdrawing the child from childcare and demanding that changeovers take place at McDonalds.

5. The father deposes to his efforts to facilitate the child’s relationship with the mother, such as choosing presents and cards for her for special occasions, engaging the child in Skype calls with the mother while she is overseas, and agreeing to several changes to the parenting orders during the period when the maternal grandmother was in Australia.

6. The father referred to the course of correspondence which took place in November 2014 with regard to the child’s name day, where he deposes to miscommunications between the parties’ solicitors and the mistaken belief that his name day was on 29 November, rather than 21 November.  He deposes that the child ultimately spent his name day with the mother.

7. The father claims the mother has breached court orders, particularly by reference to her keeping the child home from childcare in circumstances where he interprets the 30 January 2014 orders to require the child to attend for the purposes of changeover.

8. The father deposes to a series of events which transpired the day after the mother’s birthday in late 2014. The father states that at changeover on the mother’s birthday, the child gave the mother the birthday present they had chosen together and that the mother avoided eye contact with him and took the child quickly inside.  The next morning, he deposes that he intended to Skype the child to ascertain his whereabouts and sent the mother three emails requesting a Skype call over the space of an hour.  He deposes to resorting to calling the mother half an hour after the last email, and then calling the child’s childcare centre where the worker advised him that he was absent that day.

9. The father deposes that he then attended at L Police Station and informed a constable there of the interim parenting arrangements and Family Law Watch List order made.  After the constable made enquiries, the father was told that the child was in the mother’s care but that he could not be informed of the child’s location.  The constable informed the father that the mother had the child and was permitted to travel interstate with the child.

10. The father deposes that this information caused him significant concerns and that he contacted the Police on 000 and asked them to conduct a Welfare Check on the child. The same afternoon he sent two text messages to the mother stating that he did not consent to her travelling interstate with the child, and caused his solicitors to write to the mother’s solicitors asking her to urgently advise whether the child was interstate with her.

11. Later that afternoon, the father deposes to sending the mother another text message repeating that he did not give consent for her to take the child interstate.  He deposes that his solicitor then received correspondence from the mother’s solicitor whose instructions were that the mother advised the child was at home unwell, and had not gone to childcare that day. The father notes that the mother never informed him of the child’s illness.

12. The father deposes that he met with a sergeant at the U Police Station in relation to a complaint he made with Victoria Police about these events.

13. The father alleges that the mother is capable of earning a significant income given her qualifications and work experience.

14. The father also filed an affidavit in reply to the mother’s affidavit on 10 February 2015, in which he denies the mother’s allegations that he monitors her movements and communications and belittles her religion and accent.  He admits threatening to deduct money from her salary when she failed to prepare meals for him.  He also denies being frequently absent from work because of commitments to his political party.  He deposes to the mother becoming involved in the same party of her own volition.

15. The father deposes that he accompanied the mother to several hospital visits when she was pregnant with the child and that he was attentive to her needs during pregnancy and after birth, returning early from work to care for both her and the child.  He states that he attended several medical appointments for the child subject to his work commitments and that he is supportive of the child learning Russian.  He also deposes to making himself available to look after the child when the mother has had to travel for work or study.

16. The father objects to the fortnightly parenting arrangements the mother seeks on the basis that it would not be in the best interests of a three-year-old child to have no contact with him for nine consecutive nights.  He also expresses concern that the child does not attend childcare when in the mother’s care and alleges that the mother wants to be with the child as much as possible to his social detriment.

17. The father referred to the mother withdrawing her Intervention Order application before the Magistrates’ Court and international relocation application before this Court to allege that she is trying to financially ruin him with legal fees.

18. Regarding the permission to travel with the child, the father alleges that the mother’s family is very wealthy, and that the quantum of security that the mother offers will not be sufficient incentive for her to return the child to Australia.

Evidence of the mother

1. The mother in her January affidavit deposes that she was born in Russia and moved to Australia in 1997 to complete her studies.  She deposes that she met the father in May 2009 and that he moved in to her apartment shortly after their marriage in 2010.

2. The mother deposes to falling pregnant with the child in late 2010 and becoming involved in volunteering activities with the father’s political party.  She deposes that after the father moved in she took responsibility for household duties and that he was often late home due to work and political responsibilities.

3. She states in her affidavit that the child had difficulties in the foetal stages and that she was forced to hire a maternity nanny to help her care for him after his birth, because her mother was unable to travel to Australia following surgery, and the father and the paternal grandmother refused to provide assistance.  The mother states that the father was inattentive to the child and did not help care for him at all or attend his medical appointments.  As a result, she hired a nanny, first intermittently in November 2012 and then regularly from February to December 2013 when she started her further studies.

4. Since soon after the child’s birth, the mother deposes that she has been actively engaged in his learning and that she took him to story time at the local library, a Russian language playgroup, music classes, and swimming classes.

5. The mother states that she was pressured into accompanying the father to business and political functions, and that for this and her other work and study commitments she was required to engage the nanny.

6. The mother deposes that since the child’s birth the maternal grandparents have spent several months with him. The mother denies the father’s assertions that she did not have a good relationship with her family but she was not cross-examined on this point.

7. The mother states that difficulties in the marital relationship stemmed from her enquiries about the father’s financial situation, his removal as a director by his business partner, and the mother’s choice to care for the child following his diagnosis of a hole in the heart rather than continuing in her volunteer work for the father’s political party.  During this time the mother also deposes to the father monitoring her movements and emails and text messages, as well as belittling her religion and accent.  She states that the father was never forthcoming with his finances and that in the lead-up to the separation he started threatening to deduct from her salary $20 for each lunch and $30 for each dinner that she failed to prepare for him.

8. Following separation the mother obtained a job offer with a generous salary package in Europe and flexible work hours for her parenting responsibilities.  She deposes to a salary of AUD$300,000 per annum and to negotiating the right to work from home two days per week and leave work at 3 pm on other days, and the opportunity to work after hours when the child was asleep.  She deposes that if the father wanted to move with the child to stay close to him, his European heritage and qualification as a financial professionakl would be recognised in Europoe.

9. The mother deposes that the child has been in her full-time care since separation and in February 2015 will undertake dance classes, music classes, Russian language kindergarten and junior athletics classes.  He also speaks to his maternal grandparents at least every couple of days and his maternal uncle and cousin every couple of weeks.

10. Regarding her opposition to the father’s proposals for the spend time arrangements she claims that the child is too often disrupted in his routine because of the current configuration of nights, and because the father leads a busy professional and political life.

11. The mother deposes that the father has been inattentive to the child’s medical issues and that he has been unresponsive to enquiries from her solicitors as to how he will pay fees for S School where the child has been enrolled.  

12. The mother alleges that the father has breached the parenting orders many times and that he prefers to place the child in childcare rather than having her care for him.  She denies that the father facilitated Skype and telephone contact over the Christmas 2014 period.

13. The mother deposes that after taking maternity leave she was being pressured by her previous employer to return to full-time work 12 hours a day and travel interstate at a moment’s notice.  She deposes to having commenced further study in order to qualify for more flexible employment options and points out that the father’s employment is flexible as he is self-employed.  At the time of filing the affidavit she was dependent upon a Centrelink pension and drawings from her home loan.  She deposes to having made enquiries about flexible work options but that no suitable opportunities had arisen.

14. In her July affidavit, the mother deposes that on several occasions since January, the father has acted inappropriately by, amongst other things, unilaterally enrolling the child in an early learning program without informing her, sitting in the same café after changeover despite an intervention order and refusal to cooperate for the child’s mid-year concert.

15. The mother’s evidence was that she had previously spent two years working in Europe.  She stated that the father had a European background and, because he had a passport from the United Kingdom, that he could work in Europe.

16. In cross-examination she gave evidence that she applied for a position in November 2013 for a company based in Europe and that she was interviewed in December 2013 by Mr F.  In cross-examination she stated that she was interviewed by the then-Director by Skype in December 2013 and then had an interview with Mr R, the current Director.  She stated that she was looking for an overseas role because financially the Melbourne market was not particularly robust and the hours of work were not flexible.  She stated that she did not know Mr O but that she had a contact with whom she had kept in touch from the time when she worked in Europe.

17. She stated that the job offer was made in early January 2014 to begin in April 2014 with T Firm.  She conceded in cross-examination that the job offer was unsigned but could not state whether the name of the Director was misspelled in the covering letter to the contract.  She stated that it was withdrawn in early August 2014 after being extended once in late January 2014.  In cross-examination she stated that in March 2014 she instructed her lawyers that she no longer sought to relocate but that they advised her to keep the offer open.  She stated she had read the unfavourable Family Report and instructed her solicitors that she wanted to withdraw the application for relocation.  Her evidence was that she was told that there would be six months until a hearing date and no hearing date had been fixed in this Court following the transfer of proceedings from the Federal Circuit Court to the Family Court on 30 January 2014.  She was advised that there was no need to amend her application at that time because there was no hearing date.

18. She was cross-examined about a letter from her lawyers dated 8 August 2014 which referred to the offer of employment being extended to 1 October 2014. She maintained that her advice was to keep the application on foot in any event, given that the matter had not yet been listed in this Court.  The mother’s offer of employment is annexure PAJ 7 of her trial affidavit filed 28 January 2015.

19. When asked about the inconsistency between her instructions to withdraw the relocation application and her affidavit sworn 14 July 2014 where she objected to the father’s schooling proposals for the child on the basis that her application for relocation remained on foot, she was asked whether she had intentions to relocate.  She responded “yes but I was concerned about whether my application was successful, I wouldn’t do anything if I was to lose my son”.  She went on to say that she had not instructed her solicitors in March 2014 to  withdraw her application to relocate but that she had sought their advice and she said “the family report was bad- what can I do?”

Report of Family Consultant Ms K

1. On 30 January 2014 Judge Small ordered that a Family Assessment Report be prepared by Family Consultant, Ms K.  This report was completed on 19 February 2014 in the context of the mother’s proposed relocation with the child to Europe for three years to take up the job offer, which the father opposed.  The father sought to rely upon this report as per his case outline filed 18 August 2015 and there was no objection raised to the father relying upon this report for background information purposes.  The issues in dispute at the time of the report were the impact on the relationship between the father and the child if relocation were to take place and the impact on the child if he relocated to another country.  The child was aged two years and five months at the time of the interview.  Interaction between the child and each of his parents was observed to show strong attachments to each.  The family consultant noted that travelling overseas to spend time with her family is also a high priority for the mother.  She noted that the mother’s brother is also expecting his first child. 

2. The father’s concern was that the lengthy periods of separation from the child would negatively impact on the father-son relationship, as well as upon the child’s proficiency in English.  The father was also very concerned that the mother would travel to a non-Hague Convention country with the child.  For the mother’s part, she pointed to past conversations with the father about working abroad and refuted the concern that she would return to Russia to live with the child, stating that she has no desire to live in Russia.

3. The family consultant stated at paragraphs 29 and 30 of her report:

   In summary, [the mother’s] proposal to relocate for three years to [Europe] is based on her career ambitions and a desire to return to international finance, the hub of which is located either in [Europe] or Singapore.  [The mother] is also extremely motivated to spend time with her family who are Russian, so that [the child] can get to know his maternal family and learn about his Russian heritage and culture.

   Finally, it is significant that the application in this matter occurs in a context where [the mother] has travelled extensively as a child and she has studied and worked in a number of countries in Europe.  She insists that she has no interest in living in Russia and she offers extensive time between [the child] and his father. Travel and distance appear to present no obstacle for [the mother] and it is noted that [the child] has already travelled to Europe on a number of occasions.[3]

   [3] Family Assessment Report of Ms K dated 19 February 2014

4. The family consultant noted that the father expressed significant concern about the mother failing to return to Australia with the child after the conclusion of a three-year period.  However at interview, the family consultant was of the opinion that [the mother] “appeared genuine in her assertion that she intends to return to Australia and it is acknowledged that [the mother] has lived in Australia for around 20 years.”[4]

   [4] Ibid at par 43

5. The family consultant observed that the mother’s proposal to leave the child with her parents for weeks at a time was unrealistic.  She also observed that Skype with a young child would be difficult to manage in this case, where the parties were observed to be uncomfortable in each other’s presence.  She also observed that the mother feels restless and unsettled in Melbourne and that her connection to Australia appeared tenuous, especially given her experience as an expatriate.  Given the child’s age, the family consultant determined that the child’s relationship with the father would be at risk if the mother relocated to Europe.  However, she considered that the mother’s alternative proposal to relocate to Sydney may be more manageable if this were temporary and based on the understanding that the child would return to Melbourne to begin school.

6. The family consultant’s recommendations almost 12 months ago were that:

   ·The child live with the mother;

   ·The child continue to spend time with the father in line with the then arrangements; and

   ·The child not be permitted to relocate to Europe.[5]

   [5] Family Assessment Report of Ms K dated 19 February 2014 at par 47

Family report of Dr A

1. Consultant child and adolescent psychiatrist, Dr A, completed a Family Report for the trial dated 17 April 2015.[6]  Dr A was not cross-examined in the trial and his evidence was unchallenged.  His report canvassed matters which were ultimately resolved between the parents and was not specifically directed towards the spend time arrangements ultimately litigated.  The issue of schooling for the child and the school fees has now been resolved.

   [6] Annexure RA-1 of the affidavit of Dr A filed 18 August 2015

2. Both parents told Dr A that they have re-partnered but did not live with their new partners.  This was not raised by the parties in cross-examination.

1. The mother reported to Dr A that the father’s refusal to allow her to travel with the child is “more about punishing her than a real concern that [she] will abscond with [the child].”[7]  She stated that the father is very angry with the maternal grandparents for not securing Russian money for the father’s business interests.

   [7] Ibid at page 15

2. When he prepared the report the mother’s offer of employment in Europe had lapsed and the mother had withdrawn her application to relocate.  Instead she expressed a desire to travel with the child to visit the maternal family twice a year until the child commences school, and once a year after that.  She also clarified that she considered her long-term future to be in Australia.

3. Dr A noted that the child had a warm and positive relationship with both parents but that each of the parents appeared to be more focused on their own needs rather than giving priority to meeting the child’s needs in a more cooperative manner.  He reported that there has “certainly been a breakdown of trust and communication” between the parents.[8]

   [8] Family Report of Dr A dated 17 April 2015, page 25

4. Dr A identified a second source of conflict, being that the mother believes the father has an unrealistic view of the wealth of the maternal grandparents and she believes that the father has understated his own income.

5. Dr A made the following recommendations at page 25 of his report:

   ·The parents be encouraged to settle taking into account the mother’s wish to be allowed to visit her parents with the child, and the father’s wish regarding the child’s schooling;

   ·In the absence of agreement, the Court consider:

   oContinuing equal shared parental responsibility for the child;

   oThe child spending substantial and significant time with each of his parents, with the child to continue living primarily with the mother and spend up to five nights per fortnight with the father (and if the parties become better able to co-parent effectively then the child could even spend up to equal time with the father);

   oOrders allowing the mother to visit the maternal grandparents with the child with a clear undertaking to return on an agreed date; and

   oIf geographical considerations play a major role in the mother’s opposition to the child attending S School, the mother consider relocating closer to the school.

The Law

1. The objects and principles which apply to Part VII of the Family Law Act 1975 (Cth) (“the Act”) are set out in s 60B which relevantly provides that the best interests of children are met by ensuring that children have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child. The principles underlying the objects include that children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Division 2 of Part VII of the Act provides for parental responsibility. Each of the parents of a child who has not attained the age of 18 years has parental responsibility for that child. Parental responsibility about decisions for the future of a child means all the duties, powers and authority which by law parents have in relation to a child. Section 61C(3) provides that parental responsibility is subject to any order of the court.

3. A parenting order may deal with any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child pursuant to s 64B(2)(i) of the Act. A meaningful involvement in the life of the child where there are issues of cultural heritage and extended family means that international travel is a significant consideration and an aspect of parental responsibility.

4. In deciding whether to make a particular parenting order, a court must regard the best interests of the child as the paramount consideration under s 60CA. This is to be determined applying the primary and additional considerations under s 60CC.

5. The parents have equal shared parental responsibility for the child as provided for in the consent orders made 26 August 2015.

6. In the face of opposition from the father, the mother seeks permission to travel to Russia with the child to visit her family.  The mother’s proposals in her outline of case include conditions upon her being “permitted to travel overseas with the child”. The mother’s proposals in the form of order sought are not limited to travel to Russia, but her entire case was directed to the need to travel to Russia to visit her family.  As this was the focus of the trial and submissions, it is not appropriate to consider the more broad form of order sought by the mother.  I have considered the proposals of the mother based on the case which she argued.

7. A balance is required in considering the best interests of the child here between what the father asserts is a risk of abduction of the child by the mother in failing to return the child to Australia, and what the mother seeks, which is the capacity to travel to Russia with the child to spend time with her family and connect the child with his Russian heritage. 

8. In terms of the Act, any abduction of the child would be serious because of the difficulties of recovery mechanisms under the Hague Convention, outlined previously. It is also a criminal offence to take a child outside Australia in breach of orders.[9] The primary considerations loom large under s 60CC(2) which include the benefit to the child of having a meaningful relationship with both of the child’s parents. The young age of the child is also a consideration here.

   [9] Family Law Act 1975 (Cth) s 65Y

9. Counsel for the mother relied upon Raji & Hassam [2008] FamCA 4 for the proposition that the risk needs to be established for a s 68B order and a mere possibility is not enough. In that case Guest J emphasised that the power under s 68B(1) of the Act is discretionary and found on all the evidence that there was a risk that the children may be removed from the Commonwealth of Australia to a country which is not a signatory to the Hague Convention.

10. The decisions of the Full Court of this Court in Kuebler & Kuebler (1978) FLC 90-434 (“Kuebler’s case”) and Line & Line (1997) FLC 92-729 (“Line’s case”) remain relevant.  I have had regard to the length of the proposed stay outside the jurisdiction, the bone fides of the application, the effect on the child of any deprivation of contact with the father, any threats to the welfare of the child in the circumstances of the proposed country’s environment and the degree of satisfaction about the assessment of the promise of a return to the jurisdiction being honoured.  The length of the stay was not really particularised by the mother in submissions.  However the final parenting orders agreed between the parties would only allow for the child to travel to Russia with the mother for a period of up to three weeks in the long summer holidays.

11. There were no submissions about any threats to the welfare of the child in the circumstances of a visit to the maternal family home in Russia and the parties have previously travelled there with the child.

12. In Line’s case the Full Court of this Court considered questions of security for overseas travel and the matters to be considered on the security issue. 

13. The overseas travel in that case was for a limited period of not more than six weeks to the United States of America and the trial judge had fixed a sum not exceeding $3,000 as security.  There were two children aged six and four, the subject of the orders.  The husband appealed the adequacy of the security fixed on the basis that it was manifestly inadequate and that in lieu thereof the wife should have been required to provide the sum of $25,000 as security for her returning the children to Australia at the end of her holiday period.  The husband successfully appealed and the sum of $20,000 was substituted.

14. Murray, Lindenmayer and Kay JJ pointed out that the fixing of an appropriate level of security is always a delicate matter and one very much for the discretion of the trial judge.  The Full Court referred to some of the matters relevant to the exercise of that discretion already highlighted by Asche SJ in Kuebler’s case.  At Paragraphs 4.48 to 4.51 of Line’s case the Full Court stated:

    4.48The first of those matters to which the trial Judge should have regard is the purpose of such security, … namely:

    (a)to provide a sum which will realistically entice the person removing the children to return; and

    (b)to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.

    4.49The next matter is obviously the degree of risk that the departing parent, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return.  In assessing that degree of risk, obvious considerations are the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there). 

    4.50We think it will also be relevant, in exercising this discretion, to consider whether the country to which the departing parent intends to travel with the children is or is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on the 25 October, 1980 (“the Convention”).  However, in considering and deciding what weight to give to this factor, the Court would have to bear in mind that, even if the designated destination is a convention country, once the departing parent has left Australia there may be little to prevent him or her deviating from that designated destination to another destination in a non-convention country or, after going to the designated destination, from then travelling on to a non-convention country. 

    4.51Finally, we think that a relevant consideration in the exercise of this discretion is the financial circumstances of both parties, and in that context the relative hardship which the departing parent would suffer by the imposition of security at a particular level as compared with the hardship which the non-departing parent would suffer if the security were fixed at a lower level.  In each case, questions of hardship to the children flowing from any hardship experienced by the relevant parent would also come into consideration. 

Proposals for the father to spend time with the child until 2017

1. Regarding the proposals for the father to spend time with the child until 2017, the limited issue is the number of nights in a fortnight the child is to spend with the father. I am obliged to take into account s 65DAA of the Act, which provides that the Court must consider ordering equal time with each parent in the event that it orders equal shared parental responsibility.

2. A final parenting order was made in this case by agreement between the parties which provides for equal shared parental responsibility. Under s 65DAA of the Act, the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child, whether spending equal time with each of the parents is reasonably practicable and, if it is, consider making an order to provide for the child to spend equal time with each of the parents. Again the Court must have regard to the best interests of the child as the paramount consideration. In determining what is in the best interests of the child, the court must have regard to the primary and additional considerations under s 60CC.

3. In this case I have considered s 65DAA but am satisfied that it is in the best interests of the child to live with his mother until 2017 having regard to his young age, the recommendations of the family report writers and the agreement of the parties.

4. Substantial and significant time must be considered in this case, in these circumstances where the Court does not make an order for the child to spend equal time with each of the parents.[10]

   [10] Family Law Act 1975 (Cth) s 65DAA(2)

5. A child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:

   ·days that fall on weekends and holidays;

   ·days that do not fall on weekends or holidays; and

   the time the child spends with the parent allows the parent to be involved in:

   ·the child’s daily routine; and

   ·occasions and events that are of particular significance to the child; and

   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.[11]

   [11] Family Law Act 1975 (Cth) s 65DAA(3)

Findings

1. The report prepared by Ms K dated 19 February 2014 was ordered by Judge Small in the Federal Circuit Court to assist the parties in particular with the relocation application made by the mother.  The recommendations of Ms K were that the child live with his mother and continue to spend time with his father in line with the current arrangements.  She recommended that the child not be permitted to relocate to Europe “at this point in time”.  After the case was transferred to this Court, acknowledging the recommendations in that report, the mother withdrew her application to relocate to Europe.  The report is of some historical assistance but was not specifically directed to the current dispute.

2. Counsel for the father relied heavily upon cross-examination of the mother about her instructions to her solicitors after this report was released to the parties.  In closing submissions he suggested that the mother had been disingenuous in failing to communicate that she intended to withdraw her relocation application.  He submitted that this reflected poorly upon the mother’s credit.  He submitted that the mother had perjured herself in court because in her affidavit of 14 July 2014 she stated that she opposed the S School enrolment because of her difficult financial circumstances, geographical location, and three-year relocation proposal.  Her relocation proposal was formally withdrawn in October 2014.  He argued that four months previously she had already instructed her solicitors that she wished to withdraw the relocation application and so her affidavit of July 2014 was based on an untruth. 

3. I do not accept that submission on the basis of the cross-examination of the mother which revealed that she sought advice from her lawyers in the context of Ms K’s unfavourable report regarding relocation, but that she was in the process of weighing up the merits of her own application which she was entitled to do until the matter was listed for hearing in this Court.  I do not accept that this reflects poorly upon the mother but in fact that it is an indication of her willingness to undertake the proper legal processes in respect of the arrangements for the chilkd and to reasonably reconsider her plans following the recommendations of the family consultant which displays a propensity to accept the legal boundaries.

4. I reject the submission of counsel for the father that the mother had previously breached court orders because she had refused to sign a S School enrolment form.  In cross-examination the mother conceded that she had not signed the enrolment because of financial issues regarding responsibility for payment of fees.  However this issue was ultimately resolved between the parties without the need for any litigation regarding enforcement and no finding was made against the mother.  I am satisfied that the mother’s application is bona fide on the basis of her evidence and her conduct.

5. Counsel for the father argued that the maternal grandparents can spend time with the child in Australia rather than in Russia and that there was no medical evidence to prove that the maternal grandparents are unfit for travel.  It was common ground that the maternal grandparents were in Australia visiting the mother during the trial.  Counsel for the father also argued that the child’s exposure to Russian culture is already adequately met having regard to the fact that the child is bilingual, and attends a Russian church and kindergarten in Australia.

6. This may well be the case, but I am satisfied that it is in the best interests of the child to have the opportunity to visit the maternal family in Russia having regard to the history of travel during the relationship and the significance for the child of experiencing the Russian culture and language. There is a qualitative difference between experiencing a visit from the maternal grandparents in Australia and being exposed to the total Russian experience in the mother’s country of birth. The father acknowledges the importance of the child’s connections with his Russian heritage and claims that during the relationship he encouraged the mother to rekindle her relationship with the maternal grandparents.  In cross-examination the father conceded that the mother was rebuilding her relationship with the maternal grandparents and he encouraged this in their first trip in 2010 before the birth of the child and when visiting for the child’s first birthday.

7. The mother’s claim in her affidavit material that the maternal grandparents are not wealthy was not challenged in cross-examination and there is insufficient evidence for me to make any finding about this aspect of the father’s case.

8. The father claimed that during the marriage, the mother had a history of overstaying her visits to Russia to visit her family with the chilkd but I am satisfied on the evidence of the mother that she had a legitimate reason to do so.  I accept her explanation that the child was sick on one occasion and do not find that the mother has a ‘history’, as the father puts it, of overstaying.

9. I have considered the degree of risk in terms of the father’s assertion that the mother may not return the child to Australia and particularly the fact that any mechanisms for the return of the child from Russia to Australia would involve considerable complexity and expense for the father.  It is uncontentious that the maternal grandparents reside near Moscow in Russia where both parents have visited with the child.  The mother’s only motive to stay in Russia would be her family links with the maternal grandparents with whom the father asserts that the mother has only repaired the relationship since the birth of the child.  The mother has real estate in Australia, is an Australian citizen and has lived and worked in Australia for many years.  She is studying in Australia and there is no evidence of her owning any property in Russia or having employment there.  The mother has a partner here and all of her assets are in Australia.  She has continuing ties through her relationships in Australia as a result of the child’s activities here including kindergarten.

10. I accept the affidavit evidence of the mother that “Australia is now my home and I am well settled here.”  I accept her evidence that her only reason to relocate to Europe was that she was presented with a well-paid employment opportunity which would allow her to work from home, provided full childcare facilities, was close to family and was a destination which might have been acceptable to the father having regard to his European heritage.

11. I am satisfied that because of the mother’s citizenship status in Australia and her ties to the jurisdiction together with the duration of her residence here, that the risk of non-return of the child is low.  There can, of course, be no guarantee in these type of cases involving international travel that such a parenting order is without any risk.  I must do the best I can on the available evidence before me.  All of these cases require an assessment of future risk which has an element of uncertainty.

1. I am not satisfied that the concern of the father that the mother is a flight risk is proved on the evidence.  I am satisfied on the balance of probabilities that the risk of the mother failing to return the child to Australia is acceptable given the security which she has proffered. 

2. The mother’s Financial Statement filed 22 July 2015 indicates that her real property at Z Street Suburb M has a value of $780,000, and this figure was not contested by the father at trial.  This property is subject to a mortgage of $408,492 on the basis of that Financial Statement.  The father foreshadowed in opening submissions that this figure may be disputed, but did not adduce evidence to contradict the figures in the wife’s Financial Statement.

3. It was agreed between counsel that even if the mother’s current equity in the property was less than $300,000, that if her proposal was accepted, that she would increase the equity to no less than $300,000.

4. I am satisfied that where there is no trust between the parties, as is the case here, that it is appropriate to give some comfort to the party opposing the travel.  The security offered by the mother would provide that comfort and is all that the mother can offer.

5. I am satisfied that the mother’s proposal for security is sufficient and that it is reasonable in all the circumstances. 

6. Both parents have historically had the financial capacity to frequently travel overseas and the father is self-employed.  The mother is studying and receives a Centrelink pension of $369 per week.  The father deposes to income of approximately $100,000 per annum.[12]  Pursuant to final consent orders regarding financial matters, the parties did not adjust their assets save that the mother divested her shareholding in the father’s company.  Her assets other than the M property are her motor vehicle, her bank account and trading accounts, and her superannuation. She has a nominal amount of savings only.  Her motor vehicle is leased.  For the foreseeable future, there is nothing else of value she can offer to the father as security.

   [12] Father’s affidavit filed 13 January 2015, par 292

7. The mother has offered all the equity in the only real property that she owns by way of security and there would be sufficient funds for the father to travel to Russia if necessary to institute proceedings.  I also regard the security as sufficient encouragement for the mother to return the child to Australia.  Given the purposes of the security, the low degree of risk that the mother may choose not to return the child to Australia and the relative degrees of hardship which an order of varying magnitude would impose on the parties having regard to their financial circumstances, I am satisfied that the quantum of the security offered by the mother is adequate.  

8. I accept Dr A’s recommendation that if the parents cannot agree, that the mother be permitted take the child to visit his maternal grandparents with a clear undertaking to return on an agreed date to give her the freedom to travel with the child while also giving the father confidence that she will return on the agreed date.  He recommended that any parenting arrangements take account of the mother’s wish to visit her parents with the child.

9. Having regard to the child’s young age and the recommendation of Dr A that there be a specific period of time for travel, I consider that a period of up to three weeks travel to Russia annually is in the best interests of the child and appropriate.  The child has already travelled several times to Russia for extended periods and now has an established relationship with his father.  This relationship can only strengthen with appropriate arrangements in place to spend time with the father.  Given the travelling time from Australia to Russia, I am not satisfied that a shorter period would be practical or reasonable to allow the mother to visit her family with the child.  I envisage the three-week maximum will allow her to spend that period of time in Russia subject to the spend time arrangements the parties have already agreed over the long summer holidays.  There is of course nothing to prevent the maternal grandparents from travelling to Australia to see the child here.

10. The recommendations of Dr A in his report were not challenged.  The detailed proposals of the parties about the spending time arrangements for the childl until the commencement of school were not specifically put to him after the report was written.  His report is not directed to the ultimate issue in the trial as to whether the father should spend an additional Wednesday night with the child in the alternate week.

11. However, I accept his recommendations that the child spend substantial and significant time with each of his parents and that “for the present it seems appropriate for [the child] to continue living primarily with his mother and to spend up to five nights per fortnight with his father.”[13]

    [13] Family Report of Dr A dated 17 April 2015, page 25

12. The finer detail of the ultimate settlement reached between the parties as to parenting arrangements have not been canvassed with Dr A.  He was not cross-examined in the trial.  However, I am satisfied, on the basis of concessions made in evidence by the mother, that it would be in the best interests of the child to spend the additional Wednesday night with his father in the alternate week.  This is particularly so where the parties have now agreed to move towards equal shared care in 2017 and where interim parenting orders were made by consent providing specifically for the child to spend time with the father each alternate Wednesday overnight.  The Wednesday night arrangement is a familiar fortnightly routine for the child and I reject the evidence of the mother that there is a need in this case to minimise the changeovers because of conflict between the parties.  The mother did not satisfy me that there is any substance in her argument that block time consisting of five consecutive nights per fortnight is more appropriate because the additional night in the alternate week would be too disruptive for the child.

13. Regarding the factors under s 60CC of the Act, there is no real challenge to either parent’s capacity or responsibility as a parent. The relevance of the primary considerations under s 60CC(2) of the Act in this particular case is the benefit to the child of having a meaningful relationship with both parents. This will be met by the child living with the mother and the father spending substantial and significant time with the child for five consecutive nights and one overnight per fortnight until 2017.

14. In terms of the additional considerations under s 60CC of the Act there is no evidence of the views of the child and having regard to the child’s age, they are not relevant.

15. The mother is the child’s primary attachment figure but the child has a strong bond with his father.  The child also has a good relationship with the maternal grandparents and has spent regular time with the paternal grandfather when spending time with the father.  The child’s time with the father will allow for him to continue his relationship with the paternal grandfather.

16. There is no issue that both parents have been responsible in taking the opportunity to participate in making decisions about major long-term issues in relation to the child.  However they cannot agree about international travel and seek that this be resolved by a parenting order.

17. Both parents have fulfilled their obligations to maintain the child and there are no practical difficulties or expenses in the child spending time with a parent that would affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

18. The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from the father and his family, is a factor I have taken into account.  The child has travelled frequently and visited the maternal family in Russia during the marriage.  He has done so on occasions without the father and on the basis of the evidence of Dr A, I am satisfied that visits of up to three weeks to Russia would not adversely affect his relationship with the father.

19. There is no practical difficulty and expense for the child spending time with and communicating with the father which will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.  Given the degree of cooperation around the final parenting orders already made, the child can communicate with both parents when in the care of the other by telephone and or Skype.

20. There are no issues about the capacity of the parents to provide for the needs of the child, including emotional and intellectual needs.

21. The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents are relevant.  The child is four years old and there is no evidence that his relationship with the father would be jeopardised by an annual visit to Russia of up to three weeks on the evidence of Dr A.  The child’s Russian culture is important to his development and the mother’s connections and personal contact with her Russian culture and family is important for her parenting capacity given she resides in Australia.

22. The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents have been generally responsible.

23. There is no relevant evidence before me to make any findings of any family violence involving the child or a member of the child’s family.  The parties made no submissions about family violence, although counsel for the mother submitted that the father’s conduct has been controlling and inflexible in his approach to these proceedings.  I am satisfied that there has been a level of conflict between the parties such that they have not been capable of resolving the ultimate issues raised in this trial in a cooperative manner.  This is largely because of the level of mistrust and breakdown in communication identified by Dr A.  The parties’ settlement regarding the other issues in the trial indicates some progress in their capacity to make concessions and cooperate in compromise.

24. An additional consideration is whether a family violence order applies, or has applied, to the child or a member of the child’s family, and any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter.  

25. It would appear that there is no controversy that the father approached the police on 3 October 2014 about conducting a welfare check for the child when he was in the care of the mother because he was concerned that the mother had not taken the child to childcare that day.  The mother claims that the father was suspicious that she had taken the child to the airport and left Australia with the child and that he had made this claim to the police.  The police ultimately found the mother with the child and other mothers and their children at a local park.  There were no concerns for the safety of the child and the mother had not taken him to childcare that day so that she could spend time with him as she was not working.  The mother claims that she was advised by the police to apply for an intervention order on the basis of harassment by the father.

26. I am not in a position to draw any inferences from the making of the interim intervention orders because there was insufficient evidence about this.  The complaint made by the mother was not tested, the first interim order was made in the absence of the father and the mother ultimately abandoned her application.  There is no suggestion of any family violence that impacts upon these orders, nor is there a need to protect the child from harm by being exposed to abuse or family violence.

27. I am satisfied that an order providing for the child to visit his maternal family in Russia for up to three weeks annually is the order that would be least likely to lead to the institution of further proceedings because the historical background of the mother is that she travelled to Russia with the child during the relationship and she is likely to have the need to visit her family who reside in Russia in the future.

28. The original Watch List order lapsed on 22 October 2015 and the only such order which exists is a holdover order made pending the delivery of judgment and the making of new orders. I am not satisfied that the father has proved his case or established that there is a risk that the child will not be returned to Australia if the mother is permitted to travel with the child to Russia, provided the conditions are met. I am not satisfied that it is appropriate to extend the Family Law Watch list order under s 68B of the Act. For all of the reasons previously outlined the Watch List order will be discharged.

Conclusion

1. The issues around international travel for the child in this case require a balancing of the best interests of the child in being immersed in his Russian heritage which includes culture, language and relationships with extended family, including the maternal grandparents and extended family, residing in Russia, with the risk of him failing to return to Australia, being separated from the father and prevented from having a meaningful relationship with him.

2. I am satisfied that there are obvious cultural advantages in the child travelling to Russia with his mother to spend time with members of his extended maternal family.  I am satisfied that he has a good relationship with the maternal grandparents whom the mother proposes to visit.

3. There is no issue that the relationship between the child and his father is extremely good and international travel to Russia for short periods of time would not interfere with that.  This is supported on the evidence of Dr A.

4. It is uncontroversial that if the mother failed to return the child to Australia, the father would have considerable difficulties initiating proceedings in Russia for the recovery of the child.  For this reason the mother has proffered a surety of no less than $300,000 and agreed to a proposal that the solicitors for the father retain the child’s passports.

5. The father has a firm view that the mother is a flight risk and that the security offered would be insufficient to provide him with funds to recover the child in the event of the mother failing to return the child to Australia.  He is also concerned that the security will not realistically entice the mother to return the child.  A background of a proposal by the mother to relocate to accept a job offer in Europe has contributed to his concern about the bona fides of the mother.  Following recommendations made in a family report by Ms K, the mother withdrew that application.  The father’s fears have been heightened by a suspicion that the maternal grandparents are wealthy and therefore this security would not present an obstacle if it were forfeited by the mother.  The mother denied that the maternal grandparents are wealthy and that evidence was not challenged in cross-examination.  There is no other evidence as to the wealth of the maternal grandparents for any finding to be made in this regard. 

6. I do not accept the issues of credit raised by the father regarding the mother’s offer of employment in Europe.  I do not accept the father’s case that the mother’s credit is damaged because of her decision to withdraw the relocation application or his argument about the timing of her notification to withdraw the application for the reasons previously outlined.  The mother’s conduct in pursuing court proceedings for the relocation and her subsequent withdrawal indicates a propensity for using legitimate court processes and accepting professional advice.  It adds to her bona fides.  I am satisfied that the mother has lived in Australia for many years, has Australian citizenship, is studying full-time in Australia, and has equity in real property in Australia.  She has strong ties to this country.  There is no proper foundation on the evidence to support the father’s assertions that the mother will fail to return the child to Australia.

7. I am not satisfied that there is evidence to establish that it is appropriate to engage s 68B of the Act and to make a Family Law Watch List order.

8. I accept that the recommendations of Dr A regarding orders allowing the mother to visit the maternal grandparents with the child for specific periods are in the best interests of the child.

9. I am satisfied that it is in the best interests of the child to make orders in accordance with the father’s proposals for spending the additional night in the alternate week with him until the commencement of the equal shared care arrangement in 2017.  This is having regard to the concessions made by the mother in cross-examination and the utility of commencing a transition towards the ultimate settlement for the living arrangements of the child to be shared between the parents in 2017. There was a reference in final submissions to the father seeking a commencement time of 12 noon on the alternate Wednesdays but I consider that there is no reason consistent with the best interests of the child to depart from the current arrangement of commencing the time for the father with the child at 3pm on the alternate Wednesday until 11am on Thursday.  The father was concerned to maintain the child’s routine of spending time with the paternal grandfather on the alternate Wednesday evening and this will continue.

10. The parties’ proposals were prepared in the context of a trial involving other issues which were ultimately settled between them.  The submissions regarding the mechanics of any orders were limited.

11. Other than the mother’s proposals in her case outline, there were no submissions about the mechanics of any orders permitting the child to travel with the mother to Russia.

12. In her case outline, the mother proposed certain orders and I am satisfied that an order to give effect to the following is appropriate:

    The mother is restrained from removing the child from Australia save that she is permitted to travel to Russia with the child for a period of up to three weeks per calendar year provided that :

    ·she execute a Transfer of Land in registrable form for the transfer of the real property located at Z Street, Suburb M to the father to be held on trust for sale; and

    ·the mother is to deliver the Transfer of Land to her solicitor together with proof that the property has an equity of not less than $300,000; and

    ·the mother’s solicitor is to confirm in writing to the father and/or his solicitor, the mother’s compliance with this order; and

    ·at least 60 days before travelling to Russia the mother is to provide to the father and/or the father’s solicitor a detailed itinerary of proposed travel; and

    ·any itinerary must include all information about the proposed trip including the flight details and the date of departure and return to Australia, a list of the places and people to be visited including the dates, telephone numbers and address of any accommodation.  A copy of hotel bookings should also be included; and

    ·the mother return the child to Australia by the return date specified in the itinerary.

    Upon compliance with the above conditions the father or his solicitors shall deliver to the mother, the child’s passport at least 14 days before the proposed departure date.

    Should the mother fail to return the child to Australia within five days of the return date specified in the itinerary, the father and/or his solicitors be at liberty to contact the solicitors for the mother advising them of the mother’s failure to return the child to Australia and upon being advised of same, the solicitors for the mother are to forthwith deliver the Transfer of Land held by them to the father and/or his solicitors.

1. The mother gave evidence that she was prepared to provide an undertaking that she would not further encumber the real property which is the subject of the security.  Accordingly an order should be made to restrain the mother from doing so.

2. I am satisfied that it is appropriate to make the orders proposed by the father regarding the child’s passports being held by his solicitors and released to the mother provided the conditions proposed by the mother including the security proffered by the mother are met.  The mother agreed to this proposal.

3. I am also satisfied that it is appropriate to accede to the father’s proposal that the mother be restrained from making an application for a Russian passport in the name of the child without the consent of the father or having her Russian passport endorsed with the name of the child without the consent of the father.  Counsel for the mother did not indicate any opposition to this course.

I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 18 December 2015.

Associate: 

Date:  18 December 2015

Annexure A

Documents relied upon by the applicant father:

• Second Further Amended Initiating Application filed 13 January 2015;

• Affidavit of the father filed 13 January 2015;

• Affidavit in Reply of the father filed 10 February 2015;

• Family report of Ms K dated 19 February 2014 (ordered by Judge Small in the Federal Circuit Court 30 January 2014); and

• Affidavit of Dr A annexing Family Report dated 17 April 2015.

Documents relied upon by the respondent mother:

• Affidavit of the mother filed 28 January 2015;

• Affidavit of the mother filed 20 July 2015; and

• Affidavit of Dr A annexing Family Report dated 17 April 2015.

Exhibits tendered by the respondent mother:

• Exhibit A – email from the applicant father to the paternal grandfather dated 14 April 2013

• Exhibit B – email from the applicant father to the paternal grandfather dated 15 June 2013

• Exhibit C – email from the applicant father to the paternal grandmother dated 14 June 2010