Kerr and Kennett (No 2)

[2019] FamCA 886

FAMILY COURT OF AUSTRALIA

KERR & KENNETT (NO. 2) [2019] FamCA 886

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – Where the mother seeks the children relocate to live with her in the United Kingdom – Where the father opposes the relocation but does not participate at the trial – Where the children have not spent time with the father for over a year and have had telephone communication with him once a month – Where relocation of the children to the United Kingdom is found to be in the children’s best interests, with the children to spend time with the father once a year in school holidays and communicate with him once a week to continue to facilitate their relationship with him.

Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)

AMS & AIF (1999) 199 CLR 60
Banks & Banks (2015) FLC 93-637
McCall & Clark (2009) FLC 93-405

APPLICANT: Ms Kerr

RESPONDENT: Mr Kennett

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

FILE NUMBER: MLC 6702 of 2012

DATE DELIVERED: 20 November 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 20 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pendergast

SOLICITOR FOR THE APPLICANT: Munro Legal Pty Ltd

RESPONDENT: No appearance for or on behalf of

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hodges

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

Orders

Amended on 26 November 2019 pursuant to rule 17.02 of the Family Law Rules 2004

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous Orders and Parenting Plans are discharged.

Parental Responsibility

1. The mother have sole parental responsibility for the children, X, born … 2009 and Y, born … 2010 (“the children”).

2. In the exercise of her sole parental responsibility, the mother shall:

   (a)notify the father in writing, by emailing … not less than fourteen (14) days prior to making any decisions about the long term issues in relation to the children, including but not limited to the children’s education and health and provide the father at least seven (7) days to respond;  and

   (b)invite the father to indicate his views in writing;  and

   (c)take the father’s views into account in making decisions;  and

   (d)inform the father in writing of her decision.

3. Order 3 of this Order shall not apply in a case of genuine emergency, in which case the mother shall be at liberty to exercise her sole parental responsibility without reference to the father in the first instance but is to advise the father of the issue and the decision that she has made without reference to him, as soon as is reasonably practicable.

Exchange of Information

1. The mother and father shall:

   (a)keep the other parent informed at all times of their postal address, contact telephone number, email address and shall notify each other within forty-eight (48) hours of any change to those details;  and

   (b)keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the children and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the children;  and

   (c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children.  This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.

2. The parents authorise, by this Order, the schools attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at that parent’s cost).

3. During the time the children are with either parent, that parent shall:

   (a)respect the privacy of the other parent and not question the children about the personal life of the other parent;  and

   (b)speak of the other parent respectfully;  and

   (c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children;  and

   (d)not discuss these proceedings or any issue raised in these proceedings with the children, and will remove the children from the presence of any other person having such discussions.

4. The parents will communicate with each other by email or text message, only in relation to issues relating to the children, except in the case of an emergency involving the children when a phone call is appropriate.

Residence

1. The children shall live with the mother.

Relocation

1. The mother is permitted to relocate the children’s residence to the United Kingdom.

Time and communication with the father

1. The children shall spend time with and/or communicate with the father as agreed between the parents in writing and if they fail to agree then as follows:

   (a)commencing in 2020 and thereafter in even numbered years:

   (i)on one occasion each calendar year for up to six (6) weeks during the Summer United Kingdom School Holidays (or school holidays as determined by the children’s schools), with such time to take place in Australia and, unless agreed in writing, to occur as follows:

   (1)for 12 consecutive nights, after which the children will return to the mother’s care for two (2) consecutive nights;  and then

   (2)for 12 consecutive nights, after which the children will return to the mother’s care for two (2) consecutive nights;  and then

   (3)for 14 consecutive nights.

   (b)commencing in 2021 and thereafter in odd numbered years:

   (i)on one occasion each calendar year for up to six (6) weeks during the Summer United Kingdom School Holidays (or school holidays as determined by the children’s schools), with such time to take place in the United Kingdom and, unless agreed in writing, to occur as follows:

   (1)for 12 consecutive nights, after which the children will return to the mother’s care for two (2) consecutive nights;  and then

   (2)for 12 consecutive nights, after which the children will return to the mother’s care for two (2) consecutive nights;  and then

   (3)for 14 consecutive nights.

2. Each year, the mother shall provide the father with written notice of the dates of the children’s United Kingdom School Holidays (or school holidays as determined by their schools) by no later than the end of the first week of the commencement of that school year.

3. Each year, the father shall provide the mother with written notice of the dates on which he intends the children to spend time with him and such written notice will be provided no later than at the start of the school term before those school holidays during which he intends the children to spend time with him.

4. In the event that the father fails to provide the mother with written notice as required by Order 13, the mother is not required to provide the children to spend time with the father as provided for in Order 11.

Communication between the children and the parents

1. The father shall communicate with the children once a week at a time agreed between the parties (the time being the current time where the children are) by telephone, FaceTime, Skype or by any other electronic means (as chosen by the father), with the father to instigate the call/contact and the mother shall facilitate the call/contact by:

   (a)making the children available to answer the call;  and

   (b)affording the children absolute privacy throughout the call.

2. During each period that the children are spending time with the father pursuant to these Orders, the father shall ensure that the children communicate with their mother by telephone, FaceTime, Skype or by any other electronic means each day.

Special Occasions

1. Notwithstanding any other Orders, the father is at liberty to Skype with the children on the father’s birthday, Father’s Day, the children’s birthday, Easter and Christmas Day if the children are not spending time with him on that day.

Changeover and Travel Arrangements

1. For the time in accordance with Order 11a:  the father or his nominee, provided this is a person known to the children, shall collect and return the children at the arrival/departure gate at the Melbourne Airport Terminal or from such other location as is agreed between the parents in writing.

2. For the time in accordance with Order 11b:  the father or his nominee, provided this is a person known to the children, shall collect and return the children from a public location near the mother’s residence as agreed between the parents in writing.

3. Unless otherwise agreed in writing:

   (a)the father shall meet the costs for the air travel of the children from the United Kingdom to Australia; and the mother shall meet the costs of the air travel for the children from Australia to the United Kingdom;  and

   (b)each party shall purchase the relevant tickets for the children to travel in accordance with 20a above, and provide copies of the children’s booked flights itinerary, return tickets and details as to who will be travelling with the children not less than six (6) weeks prior to travel;  and

   (c)the mother is at liberty to travel with the children until the children are of an age where they are able to travel unaccompanied and the parents agree that they will travel unaccompanied;  and

   (d)each parent will be responsible for preparing and submitting any documentation required by the airline for the children departing from their care to travel unaccompanied;  and

   (e)the father shall be responsible for the entire costs associated with his spending time with the children in the United Kingdom including but not limited to his airfares, transfers and accommodation;  and

   (f)the mother shall be responsible for the entire costs associated with her travelling to Australia for the children to spend time with the father in Australia including but not limited to her airfares, transfers and accommodation.

4. In the event a parent requires a change to a booked flight, that parent shall be responsible for reimbursing the other any fee incurred in changing the children’s flight.

5. The parent from whose care the children are departing will send a SMS text message to the other parent confirming the children have boarded the flight, and the other parent shall send a SMS text message to the other parent confirming the children have arrived in their care.

6. Each parent is entitled to have another person attend any changeover on their behalf provided that such person is known to the children. 

7. Each parent shall take all reasonable steps to ensure that they or their nominee are punctual in attending changeovers and, if there is to be a delay, then the delayed parent shall text the other parent at least one hour before the time scheduled for changeover.

8. Each parent shall return all of the clothing and possessions the children brought with them at the commencement of their time with that parent.

Specific Issues

1. The time the children spend with the father pursuant to these Orders shall be conditional upon all of the following:

   (a)the father not taking the children to work with him and not taking them unrestrained in his vehicle at any time;  and

   (b)the father not subjecting the children to any physical discipline;  and

   (c)the father not questioning the children about things that the children have told their mother;  and

   (d)the father not abusing or assaulting the children or any other person in the presence of the children;   and

   (e)the father not leaving the children unattended at any time.

Passports

1. Pursuant to s 11 of the Australian Passports Act 2005 (Cth) the children, X, born … 2009 and Y, born … 2010 be permitted to have those international travel documents required to leave the Commonwealth of Australia issued or renewed.

Family Dispute Resolution

1. The process to be used for resolving future disputes about the children or the terms or operation of these Orders shall be as follows:

   (a)the parents shall consult with the Family Dispute Resolution Practitioner or a Family Relationship Centre to assist with resolving any dispute in relation to the children or reaching agreement about changes to be made to the parenting arrangements for the children;  and

   (b)in the event that they are unable to, for any reason, to have an appointment with the Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, the mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;  and

   (c)the father shall choose one of the listed practitioners within seven (7) days of receipt of the list;  and

   (d)if the father fails to choose then the mother may choose.

2. Unless there are some emergent circumstances, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the children, each party is to take the steps referred to in the preceding Order.

AND IT IS FURTHER ORDERED THAT

1. All outstanding Applications are dismissed.

2. The Independent Children’s Lawyer is discharged.

3. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

NOTATION:

This Order has been amended pursuant to Rule 17.02 of the Family Law Rules 2004 by amending paragraphs (2) and (27) to record the correct date of birth for the child, X.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: MLC 6702 of 2012

Ms Kerr

Applicant

And

Mr Kennett

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings require the determination of those parenting orders which are in the best interests of two children:  X, who was born in 2009, and Y, who was born in 2010. 

2. The Court is assisted in this determination by the contents of two Family Reports prepared by Ms G.  She first interviewed the mother and children on 7 September 2018.  She first interviewed the father and observed the children’s interactions with him on 24 September 2018.  Her first report, dated 29 March 2019, is the result of these interactions.  Ms G interviewed the mother and children again on 2 October 2019 and interviewed the father by telephone on 7 October 2019.  Her second report is the consequence of this further engagement with the parents and the children.  I will refer to Ms G’s second report as the updated Family Report in order to distinguish between them where necessary. 

3. Whilst I will refer to Ms G’s reports in greater detail during the course of the oral delivery of these Reasons, it is appropriate that I record at the outset my acceptance of her evidence and my acceptance of the opinions she has expressed in each of her reports.

Broad Overview

1. The children’s mother was born in England.  Her parents, the children’s maternal grandparents, remain living in the United Kingdom.  The mother has a sister who lives in Melbourne.  It appears on the evidence that the mother travelled to Australia in about 1987 when she was about 25 years of age.  She is not a citizen of this country.  As a consequence of her absence of citizenship, there have been some reductions in the amounts of the government provided payments that she is eligible to receive – in particular when Y turned eight in October 2018. 

2. At present, the mother is not in paid employment or engaged in study.  She has been and remains the children’s primary care provider.  I accept Ms G’s assessment that she is the person to whom the children are primarily attached. 

3. The mother and children currently live in B Town where they have resided since 2014.  They are financially supported by the mother’s receipt of a carer’s pension for X.  He has previously been diagnosed as having agenesis of the corpus callosum, which, it seems, is a rare congenital defect in which there is a complete or partial absence of the corpus callosum, which is the band of white matter connecting the two hemispheres of the brain.  As a consequence of that, he has developmental and speech delays, and, as Ms Pendergast, who appears on behalf of the mother, submitted, he is a child who has to deal with a plethora of difficulties. 

4. The mother has been relatively unsupported by the father in her management of X’s requirement to deal with those difficulties.  Not only has he failed to spend time with the children in the manner provided for by existing operative orders since July 2018, there is, at present, an arrears of child support in the amount of about $12,500.00.  Given the mother’s financial circumstances, which I accept as dire, this is a significant absence of financial support, and I think it open for me to conclude that it is more likely than not that the absence of such financial support has had real and practical negative impacts upon the care of the children. 

5. The children’s father was born in Australia in 1985.  Until recently, it appeared that he lived in Melbourne and worked on a three week on/one week off fly in/fly out basis in the L Region.  However, given the contents of his email dated 11 November 2019 to the Independent Children's Lawyer, which forms part of Exhibit 1 in the proceedings, it appears that he is currently living and working in far North Queensland.  As I understood the submissions made by Ms Pendergast on behalf of the mother, her receipt via her solicitors of a copy of that email was the first that the mother knew of this change to the father’s residential arrangements and employment. 

6. This demonstrated absence of communication between the parents certainly corroborates the mother’s account to Ms G during her most recent interview where she reports that she did not then know where the father was living; that, whilst he had told the children that he was “working away”, he had never told her where he was living and working and that she did not know how to contact him other than by email.  It seems to me that the contents of the father’s 11 November 2019 email corroborates the mother’s recounting of the absence of communication between the parents.

7. As I have already alluded to, despite the terms of the current operative parenting order, the children have not spent time with the father (other than during their interactions with him in late September 2018 for the purpose of interviews conducted by Ms G) since about July 2018. 

8. On the occasion of Ms G’s interview in September 2018, it appears well established that the father travelled from Melbourne that day for the purposes of participating in the interviews and returned to Melbourne the same day and that, because the process took longer than he appeared to have thought, he was unable to spend any additional time with the children that day.  According to Ms G’s report, he was unable to stay longer in Queensland because of his work commitments. 

1. Despite the existence of orders which provide for the father to communicate with the children twice per week by telephone or other electronic means, it appears on the evidence before me that he has only spoken with them at a frequency of about monthly during this year.  The mother’s evidence in this respect seems to me to be corroborated by the father’s own reporting to Ms G most recently, where he said that he had not been telephoning the children because of:  the time difference between the L Region and Queensland; his work hours; and a lack of phone services in the L Region. 

2. Given the absence of face-to-face time and the absence of telephone and electronic communication between the father and the children, it is unsurprising that the mother told Ms G, during her most recent interview, that the contact between the children and their father appeared to have died off. 

3. In the absence of any evidence to the contrary, I accept the mother’s evidence about those circumstances which resulted in the children not spending time with the father since about July 2018:  that is, I accept generally that this time did not occur as a consequence of the father’s failure to contact the mother to seek that the children spend time with him during the September and October 2019 school holiday periods.  I note that the father himself told Ms G that he had not arranged to spend time with the children during this holiday period, because he had no funds.  He also told Ms G that he had not contacted the mother to arrange to spend time with the children during any of his time away from work, because he could not afford this either.  I accept that the father previously advised the mother that he could not take time away from his employment during the June – July 2019 school holiday period to spend time with the children.

4. I accept that, because he needed surgery in April 2019, the children did not spend time with him during that period; I also accept that, as a consequence of the father’s failure to provide the mother with the requisite notice required by the operative orders, the children did not spend time with him during the Christmas 2018/January 2019 school holiday period.  In the absence of evidence to the contrary, I accept that, as the mother had herself travelled with the children to Melbourne to spend time there with members of her family during this period, contact was made with the children’s paternal grandmother in an attempt to facilitate the children spending some time with the father at that time, but that that time did not occur. 

Proposals

1. The mother’s proposal for the children to live with her and relocate to live with her in the United Kingdom and to spend time with the father in such circumstances is as outlined in the Case Outline filed on her behalf and as refined in the manner set out in the document which is Exhibit 2 in the proceedings. 

2. Whilst the father initially, in a Response to Initiating Application filed 2 May 2018, proposed that the children live with him in Victoria and that he be accorded sole parental responsibility for the major long-term issues relating to them, his position at present appears to me to simply be opposition to the children relocating to live in the United Kingdom and support for a continuation of the operative orders with which he has not complied since July of last year.

3. It is relevant, I think, to record that, when interviewed most recently by Ms G, the father told her that, if the mother was not managing financially, he would pay for the children to attend school in Melbourne and for a removal truck to bring them to Melbourne.  Such assertion is, it seems to me, completely at odds with: his admitted failure to Ms G to contribute to the costs of particular therapy for X, despite telling the mother earlier that he would pay half of the costs of the same; the fact that, as I accept, there is in existence current child support arrears of about $12,500.00 owing by him;  and the contents of his most recent email to the Independent Children's Lawyer in November of this year, which forms part of Exhibit 1.

4. Despite the father’s failure to participate meaningfully in the proceedings by filing affidavit material as required by the directions made earlier, I accept that his position remains that he opposes the children relocating to live with the mother in the United Kingdom. 

5. Mr Hodges, who appears on behalf of the Independent Children's Lawyer, outlined the Independent Children's Lawyer’s support for the mother’s proposal that the children relocate to live with her in the United Kingdom.  Mr Hodges also recorded the Independent Children's Lawyer’s support for, and adoption of the contents of, the submissions made by Ms Pendergast on behalf of the mother in urging that I conclude that the orders proposed by the mother, as amended during discourse this morning, are orders which are in the children’s best interests and proper. 

Overview of Previous and Current Operative Parenting Orders

1. I accept, in broad summary, that the children have spent the following time with their father since they and their mother moved from the previously shared residence in about March 2012. 

2. It appears that there were some periods of supervised time on a fortnightly basis while the mother and children lived in Victoria.  This time occurred in addition at Christmas 2014 and in August 2015 before moving, following an order made in November 2015, to an unsupervised period of time. 

3. It appears the children spent two overnight, unsupervised visits with their father in about January and/or February 2016; that they then spent three days with him in July of 2016 in Melbourne; that they spent time with him for Christmas 2016 in Melbourne; and for Easter 2017; for half of the July 2017 school holidays; for a weekend in September 2017 for Father’s Day.

4. Orders made by Carew J on 27 October 2017 provided that the children live with their mother and, amongst other things, provided that they spend time with their father as agreed, but if not agreed, for one weekend every month and for half of the school holidays.  The orders her Honour made also provided for telephone communication twice a week.  They also required that the father provide the mother with two weeks’ notice of an intention to spend time with the children so that appropriate arrangements could be made.

5. The evidence before me appears to suggest that, after these orders were made in October 2017, the children spent time with the father in Melbourne for three weeks from about 30 December 2017.  The mother’s evidence is that, during this period of time, the children spoke with her only on a few occasions.  She says she was worried about them and that, on 18 January 2018, she missed a call from the father.  After following that up, she telephoned back and X answered the phone.  It appears, on her evidence, that he was unaccompanied at the father’s home; following the mother’s intervention, police apparently attended there and found him to be unaccompanied.

6. The mother’s evidence about the children’s presentation following their return from their time with their father in Victoria is set out in her affidavit.  Relevantly included in that evidence is her account that the children told her that they had been witnesses to a fight between the father and his then-partner.  She also says, in essence, that the children would not tell her anything further about that.  It was after this, it seems, that the mother applied to suspend the operation of the children’s time with their father.

7. On 29 March 2018, Forrest J adjourned that application and made orders to facilitate the children spending time with their father during the Easter school holidays.  His Honour made orders that the father’s time with the children be conditional upon those maters particularised in the order he made that day.  Those conditions, or at least conditions in line with them, are conditions which the mother seeks continue by way of final order – she is supported in this respect by the Independent Children’s Lawyer.

8. The evidence suggests that, after the Orders of March 2018 were made, the children spent time with their father during the 2018 Easter break, although the mother’s evidence is that the father was not present for at least three nights of this time. 

9. On 31 May 2018, Forrest J made further interim parenting orders.  These again provided that the children’s time with their father in Victoria was conditional upon those matters his Honour particularised in the orders he made.

10. The mother’s evidence is that, insofar as the June/July 2018 school holiday period is concerned, the father failed to provide her with the requisite notice prescribed by Forrest J in the May 2018 orders.  Despite this and despite late notice, her evidence appears to me to be that the children spent time with their father from 30 June to 7 July 2018.  Again, the mother’s evidence is to the effect that the father was not present during all of this time.

11. Forrest J made further interim parenting Orders on 27 July 2018.  In doing so, his Honour accepted or honoured the undertaking that it appears the father had given that he would not leave the children unattended at any time; his Honour also continued the requirement that the father’s time with the children be conditional upon those matters particularised in his order. 

12. Despite that Order – the operative July 2018 parenting Order – the children have not, as I have said, spent any time with their father since that holiday period.

13. I accept, in the absence of any evidence to the contrary, the mother’s evidence in relation to those occasions on which the father has been, as a consequence of the terms of the operative parenting order, entitled to have the children spend time with him.  I accept that the father has not sought that the children spend such time with him on those occasions, during which, pursuant to the operative parenting Order, he was entitled to have them interact and spend time with him.

14. I also accept that the longest continuous period of time during which the children have spent time with their father is three weeks.  The mother’s evidence is that this time occurred at a time when the father was in a relationship and he was, therefore, assisted in meeting the children’s care needs by his then-partner. 

Principles

1. It is against this background, summarised very broadly, that I turn to consider whether the orders proposed by the mother – as supported by the Independent Children’s Lawyer – are orders which are now in these children’s best interests and proper.  In doing so, it is relevant to record that the statutory framework imposed by the applicable sections of the Family Law Act 1975 (Cth) does not deal differently or specifically with cases involving a proposed relocation of children. Therefore, the well-known statutory provisions provide that, having had regard to the Objects of Part 7 of the Act, the principles which underline those Objects, and subject to s 61DA, s 65DAB, and Division 6 of Part 7 of the Act, such parenting order as thought proper may be made.

2. It is clear that, in deciding whether to make a particular parenting order, I must regard X and Y’s best interests as the paramount consideration.  However, such interests should not be viewed in the abstract or separate from the circumstances of their parents.  Further, the statutory exultation to regard X and Y’s best interests as the paramount consideration does not mean that the legitimate desires and interests of their parents are to be completely ignored.  Rather, where legitimate parental interests conflict with the children’s best interests, the former must give way: see, for example, the discussion in AMS v AIF[1].  That is, the determination of the orders which are in these children’s best interests may well mean that one parent’s choice is effectively outweighed in the balance and, from a parent’s perspective, the outcome may not be optimal.

   [1] (1999) 199 CLR 60 at [207] – [208].

3. The matters to be considered in determining those parenting orders which are in the children’s best interests are, of course, those prescribed by s 60CC of the Act.  However, it is unnecessary for each consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion: see the discussion of the Full Court in Banks & Banks.[2] Any failure, therefore, to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in the children’s best interests and proper. 

   [2] (2015) FLC 93-637.

4. I have considered all of the relevant considerations in arriving at my conclusions about the orders which are in the children’s best interests and proper. 

5. It is clear that the Act does not define the term “meaningful relationship”, nor does it prescribe criteria on which, or by which, the Court should rely to assess how a child’s parents have or should have a meaningful involvement in that child’s life.  It is important, though, to remember that the term “meaningful” is not synonymous with the term “optimal”. 

6. The Full Court of this Court in McCall & Clark[3] has concluded that the preferred interpretation of the phrase “benefit to a child of a meaningful relationship” is to take a prospective approach.  That is, this Court is required to consider and weigh the evidence at trial and determine how, if it is in the children’s best interests, orders can be framed to ensure that the children have a meaningful relationship with both of their parents.  The Court, therefore, must consider and determine whether there is a benefit to the children in having a meaningful relationship with each of their parents, noting that such a finding is not dependent simply upon an absence of danger or an absence of physical or psychological harm which might arise from time or communication with that parent.

   [3] (2009) FLC 93-405.

7. If it is determined that such benefits exists, then it is necessary to consider whether in any particular case, it needs to give way to the requirement to protect children from physical or psychological harm. 

8. Given the mother’s evidence about the violence perpetrated against her by the father, there might have been, in this case, some issue taken about whether the children will, in fact, derive a benefit from having a meaningful relationship with their father.  However, the mother’s Case Outline document filed 15 November 2019 contains the submission that the children will benefit from having a relationship with both of their parents.  It is also clear, from reference to the contents of Ms G’s report, that both children have enjoyed that interaction they have had with their father, and it seems to me that, in particular, Y has expressed disappointment at the father’s failure to spend time with her.

9. I accept, therefore, that there is a benefit to the children of a meaningful relationship with both of their parents.  The manner in which this is to be facilitated though, of course, must take account of the circumstances in which the children find themselves at present, the circumstances of their historical interaction with their father, the fact that their mother has always provided to them the source of their primary care and the fact that she is the person to whom they are primarily attached.

10. Given the absence of time the children have spent with their father since about July 2018, and the minimal or relatively minimal telephone communication they have had with him this year, Ms G’s comment to the effect that she saw little difference in the children being able to maintain a relationship with their father from the United Kingdom vis à vis maintaining a relationship with him in Australia, is accurate – I accept it.

11. I also accept Ms G’s analysis, in essence, that given the absence of face to face time, and the relative absence of communication between the father and the children, the fact that the children might move to live with their mother in the United Kingdom would be unlikely to adversely impact upon their ability to maintain a meaningful relationship with their father, and or on their ability to spend time with him, or communicate with him, in a manner similar to that which has existed since about July 2018.

12. It is, I think, unnecessary to detail completely the mother’s evidence about the father’s behaviour toward her during their relationship.  However, given her proposal that the children spend unsupervised time with their father in both Australia and the United Kingdom (if she is permitted to relocate them to live with her in the United Kingdom) I consider it appropriate to record her evidence, in some respects at least.  I do so, lest there be a future need for any court to revisit and reconsider these children’s parenting arrangements.

13. I accept that, in informing Ms G of those matters of domestic and family violence, perpetrated by the father against her during their relationship, the mother was truthful and accurate.  That is, I accept that that which is recorded by Ms G in her reports as the mother’s recounting of violence committed against her by the father was an accurate and truthful account of that which occurred. 

14. By way of summary, the mother’s evidence, which I accept in the absence of any evidence to the contrary, is to the effect that there was a course of conduct by the father toward her which involved him grabbing her around the throat on occasion, yelling at her and threatening her, shoving her and attacking her in their shared residence.

15. I accept that, after a number of occasions on which the father placed his hands around the mother’s throat, he was violent towards her whilst she was pregnant with Y.  I accept that, on this occasion, he placed his hands around her neck.  As a consequence of his assault upon her, she called the police.  I accept that following their attendance, the father was charged with her assault. 

16. I accept that, after this violent assault, it appears that the mother separated from the father and travelled with the children to the United Kingdom.  I accept that, after the father himself travelled to the United Kingdom, and during a shared return flight to Australia, the father threatened to assault the mother by stabbing her.  I accept that he was arrested after the plane landed. 

17. I also accept the mother’s recounting to Ms G that thereafter, on occasions when the father continued to attend at her home, he smashed her mobile phone. 

18. I accept that, after the mother sought assistance and support from a family violence service, she and the children were accommodated first in a motel and then in a refuge, and then into transitional accommodation.  I also accept the mother’s account to Ms G that, during this period of time, the father continued to locate her and to threaten her.  I accept that, at a time after this, the mother and children relocated to live in B Town – it was following this that the children spent, first, supervised time and then unsupervised time with the father in the manner I have already recounted. 

19. It is relevant in this context, as well as others, to note and record that, at present, there is in existence a domestic violence protection order of a duration of 10 years, put in place in order to protect the mother from the actions of the father. 

20. It is against that background, then, that the mother’s reporting of the children’s comments to her following their return to her care after the December 2017/January 2018 school holiday time with their father needs to be considered.

21. According to Ms G’s reporting of the mother’s recounting to her, X had reported to her after this that, whilst he was present and spending time with his father, and his then-partner, the father had broken the door and smashed his partner’s phone; it seems that the children subsequently spent some time with their paternal grandmother before returning to their mother’s care.

22. All of these matters are relevant to an assessment of the mother’s capacity to continue to be almost solely responsible for the support of the children in Australia in the absence of any familial support.  They also place into context her recounting of her rationale in seeking to relocate the children to live with her in the United Kingdom, and they place into context Ms G’s assessment of the importance of ensuring that the mother is supported in her primary parenting of the children.  They also provide context and a factual basis for the fact that the mother seeks a continuation, in essence, of the imposition of conditions upon the father’s time with the children in the manner previously ordered on a number of occasions by Forrest J.  It is implicit in the mother’s proposal that the imposition of such orders and such conditions upon the father’s time with the children is sufficient to ensure that they are not placed at an unacceptable risk of suffering harm whilst in his care.

The children, their views, the nature of their relationship with each of their parents, and, in part, the likely effect on them if the orders for their relocation to live in the United Kingdom are made

1. I turn now to a brief consideration of the children, their views, the nature of their relationship with each of their parents, and, in part, the likely effect on them if the orders for their relocation to live in the United Kingdom are made as their mother seeks. 

2. Y is currently in Grade 3 at a primary school in B Town. 

3. Ms G reports, most recently, that Y told her that she had not seen her father this year, and that he had stopped ringing them.  It appears that, when Ms G asked Y why she had not seen her father, the child told her that her mother had said that he had to organise flights for them to travel, and she (Y) did not think he had been able to do so.  She also said that she was worried that her father did not like seeing them.  She corroborated, to some extent at least, the mother’s evidence that, during the Christmas/January 2018 visit to Melbourne, they had tried to contact her father so that she and her brother could visit him.

4. It is clear from Ms G’s most recent report that Y told her that she would like to see her father and that, when she visited him, she liked having sleepovers with her “Nan” (her paternal grandmother).  She also said that she liked spending time with her. 

5. Ms G records that Y told her that she would like to go to the United Kingdom to live because she had been there before, and she liked being able to see members of her extended maternal family and having snow at Christmas time.

6. Y also said that, whilst she liked spending time with her father, she never got to see him.  Particularly relevantly, she said she worried about her mother because she is sad a lot, especially during FaceTime communications with the maternal grandparents in the United Kingdom. 

7. Ms G records that Y described her mother as: “The best mummy ever.”

8. When Ms G first spoke to X for the purpose of preparing her reports, she records that he told her that he did not think his parents were good friends.  He also recounted that he thought, as a consequence of information provided by his mother, that his father did not help out much.  Given the evidence before me, I consider that to be an understatement. 

9. According to Ms G’s most recent report, X conveyed to her that his father lived away; that he had not spent much time with him because he had not booked flights to come and see them; and that, on an occasion, he had been in trouble and his father had yelled at him and snapped or broken one of his games.

10. Ms G reports that X told her that his father had not been ringing them much because he was working away; he said he loved and liked his mother; that she helped him and made him feel safe, and that, in essence, as I interpret Ms G’s report, he found such help and support particularly helpful given his recounting to Ms G that he found the work in Grade 4 difficult and that he thought he needed help because, from his perspective, he is not as smart as his sister.

11. Ms G records that X also told her that he would like to see his father more but he worked a lot; that he would like to go and live in the United Kingdom with his maternal family as he loved it there.  Ms G reports that, when she asked X how he thought it would impact on him seeing his father if he were to live in the United Kingdom, he told her that he knew the United Kingdom was a long way from Australia, but that he and his sister could still come on the plane to see their father, could speak with him on FaceTime and he could visit them in the United Kingdom.

12. X thought, from his perspective, it would be nice to live in the United Kingdom because he regarded himself as close to his maternal grandparents and his mother. 

13. Given the absence of interaction between the father and the children, it would have been easy – if the mother had intended to act so as to undermine the children’s view of their father – for that to occur.  That Ms G records both of the children saying to her most recently that they liked spending time with their father and thought that this was not occurring because he was out working, provides some evidentiary support, in my view, for a conclusion that the mother has not positively acted, at least more recently, to undermine the children’s interactions and relationship with their father.

14. In considering the father’s discharge of those responsibilities cast upon all parents to meet their children’s emotional, intellectual, and other needs and in assessing his attitude to the responsibilities of parenthood, generally, it is relevant to note – as I already have – that the father has not positively sought out the opportunity to spend time with the children in the manner provided for by the operative orders;  and to record the existence of a relatively large child support debt and to record my acceptance of Ms G’s assessment of the father’s general attitude and/or approach toward complying with the requirement that he provide the mother with requisite notice of an intention to spend time with the children. 

15. Ms G’s report certainly records the father’s recounting of the difficulties he experienced in giving the mother requisite notice because of his then working arrangements and his assertion that she attempted to make it more difficult for him to spend time or communicate with the children and to appear that he does not care about them.  However, I consider that the comments I have already made about the children’s reporting, most recently, to Ms G to place the father’s assertions in context. 

16. I also note and accept the mother’s evidence about the fact that time between the father and the children occurred in the June/July 2018 holidays despite the father’s non-compliance with the requirement to give notice in the manner prescribed by the operative orders. 

17. I also record that Ms G reports that the father told her most recently that he paid $60.00 per week in child support to the mother for the support of the children.  Given the evidence about the extent of the child support arrears, it does not appear that this assertion is accurate or truthful. 

18. I also note that, during his discussion with Ms G, the father appears to have conceded that, despite telling the mother at some prior time that he would pay half of the costs of X’s attendance on a particular therapist, he had not paid or contributed what he said he would.  In that circumstance then, this provides a further basis upon which I can confidently accept the mother’s evidence about the manner in which she has been left to bear, almost totally, responsibility for meeting the children’s financial needs. 

19. I also note that Ms G reports that, in the most recent interview, the father told her that he did not know too much about X’s current presentation because the mother did not tell him and he did not want to upset her by asking.  Such assertion, seems to me, to provide evidence of the father leaving the management of X’s condition almost entirely to the mother.  It does not appear, even from those comments to Ms G, that he has sought to take up any responsibility for discharging any of the tasks associated in assisting X. 

20. These circumstances, as outlined above, are the circumstances in which the mother has discharged the obligation of providing primary care to the children. 

21. In addition to the absence of support from the father in both a practical and financial sense, the mother at present is required to rely on public transport and the assistance of friends in order to be able to transport X to those appointments he must attend.  Her evidence, in essence, may be summarised to include that she has been unable to commit to working other than, at the very best, on a casual basis because it has taken all of her energy to ensure that the children’s needs are met; to ensure that they attend school and appointments and to deal with the imposts consequent upon this litigation. 

22. It is in that context then, that the mother advances that the children’s best interests would be served by permitting them to relocate with her to live in the United Kingdom because in doing so she will be able to take up the support of her family in a practical and emotional sense.  Her evidence is to the effect that she will be able to obtain additional support to ensure that X’s needs are met; that he will be afforded the opportunity to receive various therapies (including speech therapy, occupational therapy) and the input of a specialist paediatrician at no or lesser cost to her in the United Kingdom than will be the case in Australia; and, in that sense, his ongoing medical needs will be better met if he were to live with her in the United Kingdom. 

23. Her evidence is, in essence, that her financial circumstances, and thus those of the children, will be improved if she is permitted to relocate them to live with her in the United Kingdom.  She says that she intends to live where her mother lives and so take up the opportunity to call upon members of her extended family for support in dealing with and meeting X’s particular needs. 

24. In addition, I accept that the mother is truthful in her evidence in saying, in essence, that her own functioning and emotional state will be improved by the opportunity to be supported by members of her family in the United Kingdom.  I do so in the context where I accept her evidence to the effect that she has previously received therapeutic support from a psychologist for the consequences of the trauma she has suffered as a result of the father’s violent behaviour toward her during their relationship. 

25. I accept the submissions made by Counsel for the mother to the effect that being permitted to relocate the children to live with her in the United Kingdom will provide the mother with emotional, practical, and psychological support such that she will have a greater opportunity to be the best parent that she can be:  to be, and continue to be, the parent that her daughter clearly sees her to be. 

26. I accept that, in the absence of the ability to relocate the children to live with her in the United Kingdom, it is highly likely the mother will continue to struggle to support the children. 

27. I also note and accept Ms G’s assessment of the mother as highly anxious about the co-parenting relationship with the father; given my acceptance of her evidence of his behaviours toward her, such anxiety could hardly be thought to be unexpected.  I also accept Ms G’s assessment and opinion to the effect that the parents’ future engagement should be minimised as much as possible and I have taken that into account in formulating the orders I intend to make. 

28. It is clear that, in the circumstances of this case, the statutory presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them does not apply.  As a consequence, the power to make parenting orders pursuant to s 65D of the Act is “at large”, albeit subject always to the children’s best interests being the paramount consideration. 

29. Given the evidence which I have accepted, the father’s absence from participation in these proceedings in the manner I have already outlined, the history of the proceedings and the history of the violence perpetrated by the father toward the mother, there could be no conclusion other than that these two parents could not possibly be thought to be likely to be able to consult with each other about decisions to be made about major long-term issues relating to the children. 

30. I think it completely unlikely that there could be any meaningful communication between them as would be required to enable them to come to joint decisions about such matters. 

31. For such reasons, then, I consider that an order for equal shared parental responsibility is not an order which is in the children’s best interests. 

32. I am easily satisfied, given that the mother has historically provided the children with the care they have required and has historically discharged the obligation of making decisions in their best interests about major long-term issues relating to them, that it is in their best interests that she be accorded sole parental responsibility for major long-term issues relating to them, subject to her being required to advise the father about such proposed decisions, to seek his input into the same and to take that into account in making whatever determination she ultimately decides is appropriate for the children. 

33. I accept the thrust of the submissions made by Ms Pendergast on behalf of the mother in advocating for a conclusion that it is in the children’s best interests that they relocate to live with their mother in the United Kingdom.  In doing so, I note that those submissions have the support of the Independent Children’s Lawyer. 

34. I accept that a relocation to the United Kingdom would enable the mother to obtain great support from her family there.  I accept her evidence to the effect that she considers it will also place her in a position of being able to ensure that X receives all of the medical assistance and other associated therapeutic assistance that he requires, because she considers that he will be able to do so as a consequence of the operation of the United Kingdom’s National Health Service. 

35. I therefore consider, on the mother’s evidence, that, it is more likely that X will be able, in the future, to receive treatment by way of attendance upon therapists such as speech pathologists, occupational therapists, and paediatricians without the concern that his attendance on the same might, in some way, be limited as a consequence of the mother’s straightened financial circumstances. 

36. I also take into account the contents of the father’s most recent email of 11 November 2019 and note that, whilst unsworn, he has asserted that he has more recently taken up a job opportunity in far North Queensland.  Should that in fact be true, then it seems to me to provide a basis for a conclusion that, with time, the father will have available to him those funds that may be required to ensure that the children are able to travel from the United Kingdom to Australia for the purpose of spending time with him in Australia, and also such funds as would permit him to be able, practically, to travel to the United Kingdom on occasion in order to spend time with them there.

37. I accept Ms G’s assessment that the mother has devoted herself to meeting the children’s needs.  I accept her assessment that the children have a very close bond with her.  I also accept, therefore, that there is a particular need to focus on the mother’s capacity to manage the stress she has reported currently experiencing, so as to ensure that she is as supported as possible in discharging her primary obligation of caring for the children and acting to meet their needs.

38. Whilst I accept that the children have expressed to Ms G their views that they would like to see their father and spend time with him, the reality of the current situation – which has existed since about mid-2018 – is such that, in my view, it is unlikely that there will be any detrimental impact on the children’s ability and opportunity to spend time with, and communicate with, their father if they move with their mother to live in the United Kingdom.

39. I accept that moving to live in the United Kingdom will also permit the children to continue to develop their relationships with members of their extended maternal family and that, whilst it will arguably have some impact upon their ability to spend time with their paternal grandmother, they will have such opportunity on those occasions that they travel to Australia to spend time with their father.

40. I also accept Ms G’s assessment and comment generally that the United Kingdom, whilst geographically distant, is relatively easily accessible through travel.  I accept the submissions made by Ms Pendergast – taking up the contents of Ms G’s report – to the effect that a relocation of the children to live in the United Kingdom will not require them to deal with, or manage, any particular cultural or linguistic changes:  matters which, particularly in X’s case, are, I think, important to note.

41. I think it more likely than not that, if the mother’s application to relocate the children to live with her in the United Kingdom was refused, there would be a future deleterious impact on her ongoing capacity and emotional resilience to continue to try to ensure that X’s ongoing need of support is met, in the absence of financial resources and practical day-to-day support from any others.  I consider that it is more likely than not that the mother will receive such practical day-to-day support and increased financial assistance if she is able to relocate the children to live with her in the United Kingdom.

42. I consider that the children’s interests can only be advanced by having the opportunity to be parented by their mother in circumstances where she is able to obtain support that is likely to ensure that she can be the best parent that she is capable of being. 

43. I note that, in the most updated Family Report, Ms G recommended that, if the children were permitted to relocate to live in the United Kingdom, orders should be made to ensure that they spend time with their father during school holidays once a year, with such time to occur on the basis that the children travel to Australia every second year and that the father travel to the United Kingdom every second year.  The mother’s proposed orders take up and adopt such recommendation.

44. Given the circumstances of this case, and the evidence about the father’s absence from the children’s lives since mid-2018, I consider that the children will be as able to maintain their relationships with him if they move to live with their mother in the United Kingdom and spend time with him once per year in either Australia or the United Kingdom as if they remain living in Australia with their mother and spend time with him in the same way as has occurred since mid-2018.

45. For those reasons, then, I am persuaded that it is in the children’s best interests that they relocate to live with their mother in the United Kingdom. 

46. The orders that I intend to make to facilitate this decision will also require that the children have the opportunity to spend time with their father in both the United Kingdom and Australia. 

47. Given the evidence about the manner in which the father has previously approached his organisation of the children’s permitted time with him and the likely impact on both the children and the mother of uncertainty in arrangements, in the absence of the father providing proper notice of his intention to have the children spend time with him in the manner provided for in the orders that I will make, it is proper to also order that such time not occur in the absence of the father’s compliance with the requirement to give notice.

48. Mr Hodges submitted on behalf of the Independent Children's Lawyer that, given the absence of the father from the children’s lives and his noncompliance with the existing operative parenting orders since mid-2018, it may be in their best interests simply to make orders which provide for the children to spend time with the father as agreed between the parents.  He also submitted this may be proper on the basis of a concern held by the Independent Children's Lawyer about the possible situation if the father continued not to take up the opportunity to spend time with the children (in the manner prescribed by orders) for a number of years and then suddenly recommenced the same, with the consequent potential negative impact on the children of such a circumstance.

49. I consider that such submission is well made.

50. However, given the complete absence of cooperation in a practical sense between the parents and that I consider it is in the children’s best interests to have the opportunity to spend time with their father if he gives notice required by the orders I intend to make, I consider that it is in the children’s best interests that I make prescriptive orders today for their time with the father.

1. I do so knowing, as I now do, that the father apparently has employment in far north Queensland and that he will have the opportunity to take up the opportunity to have the children spend time with him in Australia in 2020. 

2. In the event that there is an ongoing absence of time between the father and the children into the future, followed by a request from the father, in essence, to activate the orders that I intend to make, I think it would always be open to the mother to apply to be heard about whether such terms remained, in whatever circumstances then exist, in the children’s best interests.

3. To the extent that any other aspect of the parenting orders I intend to make have not been the subject of particular discussion, I have concluded that the same are in the children’s best interests because, for example, such orders will enable both parents to be kept informed about the children and their progress; they will afford the children the opportunity to maintain communication with both of their parents in the time between face-to-face interactions; and they will also endeavour to ensure that, as far as possible, the children are protected from harm which is likely to be caused to them if they are exposed to, for example, derogatory comments expressed by a parent about the other. 

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 20 November 2019.

Associate:                 

Date:    20 November 2019