Langdon and Langdon

[2015] FamCA 1214

FAMILY COURT OF AUSTRALIA

LANGDON & LANGDON [2015] FamCA 1214

FAMILY LAW – CHILDREN – Interim orders – where it was decided with whom a child would live on an interim basis pending final hearing.

APPLICANT: Mr Langdon

RESPONDENT:	Ms Langdon
FILE NUMBER:	CAC	1799	of		2015

DATE DELIVERED: 18 December 2015

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 18 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Howard

SOLICITOR FOR THE APPLICANT: Armstrong Legal

COUNSEL FOR THE RESPONDENT: Mr T. North SC

SOLICITOR FOR THE RESPONDENT: Nicholes Family Lawyers

Orders

IT IS ORDERED THAT:

1. Until further order each of the parents will have equal shared parental responsibility for D, born … 2006 and M, born … 2007.

2. The children will live with their mother and that will take place in the United States of America and Australia as herein after set out. 

3. The children will return from the United States of America to Australia at the completion of their school year in the United States of America or such earlier time as the parents may agree, or this Court may order as a consequence of the final hearing of this matter to be conducted in April 2016.

4. The mother will cause the children to be returned to Australia with her in time for interviews to be conducted by a Family Consultant in Canberra on 8 February 2016 and will spend such further time in Australia at that point as may be agreed between her and the father to enable the father to spend time with the children.

5. In addition, the mother and the children will return to Australia in time for the hearing of this matter commencing on 18 April 2016 over an allotted period of five days if necessary before his Honour Justice Benjamin in Canberra.

6. The mother will remain in Australia for such time beyond the time of the trial as may be agreed between the parties to enable the father to spend time with the children.

7. The matter as to where the children will live, the time they will spend with each parent and whether or not the children should live in Melbourne or in Canberra or such other place as either of the parents may live in from time to time is adjourned for final hearing before his Honour Justice Benjamin commencing on 18 April 2016.

8. His Honour will make such further directions as to any additional affidavit material to be filed by either of the parties at a date to be fixed by him and with such further directions as he may consider to be necessary.

9. The cost of the children’s fares to return to Australia if not met by the Royal Australian Airforce will be shared equally between the parties. 

10. The children will spend time with their father from 2:00 pm on 18 December 2015, Washington DC time until 2:00 pm Sunday 3 January 2016. 

11. The parties will determine how whether the children will be returned and collected by either or both of the parents and in default of there being agreement have liberty to apply.

12. This is a matter in which there should be a family report and I direct the Senior Family Consultant in Canberra to make arrangements for such report.  It is understood that Ms F will prepare such a report and that interviews for it will occur on 8 February 2016. 

13. The Terms of Reference for the family report will include, but not be limited to, the following:

    a)The nature of the relationship between each of the children and each of the parents and with each other. 

    b)The nature of the relationship with the children with any other relevant persons.

    c)The proposals by each of the parties about the time that the children will spend with the other parent and the living arrangements proposed for each of the children and the practicability of such arrangements and the consistency of such relationships with the best interests of the children.

    d)The ability of the parents to support the children’s relationship with the other parent and to effect communication and appropriate time with the other parent.

    e)The proposals for each of the parents about the arrangements for where the children will live if the children are living principally with one parent or the other, in particular the Family Consultant’s evaluation of the proposals of the mother that she will live in Melbourne and the proposals of the father that he should live in Canberra, in each case the practicability of the arrangements in relation to the children and their care should be the subject of some examination and recommendation.

    f)To the extent that it may be regarded as being relevant by either of the parties the extent to which questions of family violence should be either further explored in the evidence of the trial, or alternatively should be the subject of some consideration based on the evidence already available.  

    g)Otherwise such other matters as the Family Consultant considers to be appropriate.

14. I formally certify for counsel and for senior counsel.

15. Also made are orders for discovery in accordance with the Minute of Orders Sought on behalf of the father, such orders to apply mutually.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Langdon & Langdon 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 CANBERRA

FILE NUMBER: CAC 1799 of 2015

Mr Langdon

Applicant

And

Ms Langdon

Respondent

REASONS FOR JUDGMENT

1. The matter I have before me arises in circumstances of some urgency as a result of the postings the parties in this matter have had.  I do not propose to review in detail the facts of the matter except to the extent that they are relevant to my determination at this point.  I have no doubt that Benjamin J, in the final hearing of the matter, will set out in more detail those facts which are relevant to his considerations.

2. It suffices to say that the parties are in dispute about what is to happen with the children pending a final hearing which is to take place in April of next year.  Both parents were in the United States of America as a consequence of postings, or at least a posting on the part of the husband and subsequent appointment on the part of the mother, I think, to positions in the Royal Australian Air Force in America.

3. The parties separated in May 2015 and subsequently the mother took steps to seek to remain in the United States of America with the children after the father returns to Australia in accordance with his new posting which was to the Canberra district.  The mother also, as a serving member of the RAAF, had been posted to Canberra at or about the same time.  Leaving aside the mutual recriminations the parties have engaged in over a large number of pages of their various affidavits, the situation remains as follows.

4. The father returns to Canberra early in January 2016.  The mother wishes to remain in the United States of America until the end of the children’s school year.  The children, who are quite young, have been involved in a Chinese immersion school program and have apparently thrived in that context.  Their opportunities for continuing with such education are a matter for dispute, at least in part as to the institution at which they might attend in Australia, on the part of both parents, but that ultimately is a matter for the final hearing. 

5. The issues in the short-term are these:

6. The mother has now amended her original intent, which was to remain in the United States, and has proposed that instead she will return to Australia, but she wants to live in Melbourne and to work remotely, if she is able to do so, to her posting in Canberra.  At this point, her ability to do that is not clear and although she is confident that she will achieve that objective there is no written evidence to support it.  The children themselves are American citizens as well as Australian citizens, having been born in America on a previous posting of the parents to that country.

7. The father’s most recent application is, in effect, that the children should now return to Canberra with him and should live with him in Canberra until the final hearing.  If the mother were to return with him to Canberra his proposal was, originally at least, that the children should spend week and week about.  If the mother chose not to return, or, I suppose, if she chose to live in Melbourne, that there would be other arrangements for the time that the children would spend with their mother, but that he would then be the primary parent.

8. There are a number of factors in this matter which are in dispute and some which are not, and there are some findings which it is probably important that I should indicate that I make before I deliver my reasons for the orders that I propose to make.  The first is this.  Notwithstanding the fact that there is some conflict between the parties, I accept on the evidence before me at this point, on an interim basis, that the mother has been the parent who has predominantly had the care of the children, certainly since separation, and to some extent, on the evidence before me, before that time as well.

9. I accept that the father would argue that this is because she has, in his words, controlled the circumstances in which he would spend time with the children.  Whether that is so or not may or may not have an effect upon the final decision Benjamin J may make in due course.  However, for my purposes it is enough that I should be satisfied at this point that for all relevant purposes, for these proceedings, the children have been more closely associated with their mother in more recent times.

10. The second matter that requires some consideration and determination is whether either parent has so indicated a disregard for the best interests of the children as to cause me to discriminate between them as to with whom the children should predominantly live.  Each of the parents has instituted these proceedings, possibly necessarily, because of the timeframes involved at a time when the emotions associated with their separation have been raw.  Consequently, each has said and done things in separation which I would hope in the future they will look back on and regret.  I think that it would have been far more useful for them to have found some different way of trying to resolve their differences.  But I accept that human emotions do not necessarily permit logic to intervene in all matters.  I accept that there is a sense of rejection on the part of each from the other and that this has affected the way in which they have responded, in some cases, with the effect of throwing petrol on a blazing fire.

11. The children to some extent have been left out of consideration by the parents in their desire to ensure that they have scored all the relevant points that they reasonably can against each other, and in my opinion this has been something which has been evident in both parents and not just in one.  It is important, in my opinion, that both parents take some time over the next few months to seriously think about what is going to be best for their children and to stop worrying about justifying their current positions, or blaming the other parent for what it is that they see as a deficit in their relationship and in the relationship of each of them with the children.

12. All of that having been said, neither parent expresses any particular view that the other parent is not capable, or should not be involved in making determinations about the long-term welfare and development of the children.  There is no evidence before me that would suggest in any way that either parent should be in some way disqualified from having a part of the decision about the major things relating to the children’s welfare.  There will inevitably be differences between them.  At the moment the differences are more frequent than the agreements, but in the future it will be necessary for both parents to reach some form of agreement about, for example, the school that the children attend and the importance in the development of the children of their attending a school which enables them to become proficient in the Chinese language.

13. I am unaware of the ethnic backgrounds of the parents and in these circumstances there is no evidence before me about it, so I have no understanding at this point about the importance to either or both of the parents of the children having some association with China, or particularly with the language.  But whatever the importance the parents associate with it, they certainly agree that it was important in the United States and, interestingly, each of them in his or her proposals about the children for the future, placed emphasis on this continuing in some way, shape or form.  The evidence before me about either of the schools it is proposed the children should attend is not such as would satisfy me that any particular objective on the part of either parent would necessarily be achieved with that school.  Again, this is not a matter that need concern me at this point.

14. Both parents have ability to contribute to decisions about the children’s long-term welfare. Section 61DA of the Family Law Act would permit, in circumstances where the matter is an interim matter, that I would refrain from applying the presumption.  It seems to me that none of the matters before me would cause me to find that the presumption is rebutted so far as these parents are concerned at this point.  It may be that the trial judge comes to a different conclusion, but that does not need necessarily to affect my decision at this point.

15. I have noted the dispute in the evidence about family violence and the effect that has had on the parties.  I note that is a matter currently unresolved and I note further that it does not appear to be a matter that is currently bearing upon the attitude of each of the parents either towards each other or towards the children.  However, the evidence in this regard may be defective and there may be other factors of which I am not aware which would cause a different view at the final hearing.

16. On the assumption that the presumption does apply (and I propose to make an order to that effect) it is then necessary for me to give consideration even on an interim basis to the desirability of the children spending equal time with each of the parents.  If I determine that it is not practicable for that to occur, or that it is not in the children’s best interests, I am still obliged to consider whether it would be appropriate for the children to spend substantial and significant time with each of the parents.  If that is impracticable, I am to give consideration to what order might best be in the interests of the children.

17. In this matter, if the parents are living in the same city it would be practicable for them to spend equal time, if it were not for the fact that under the present relationship between the parents, they could reasonably make decisions which would enable them to make such a proposal work comfortably. 

18. More importantly than that, because I am not able to make that decision finally, the plans for each of the parents, even if they were both to live in Canberra, are not sufficiently developed to enable me to work out whether it would be practicable for the children to spend either equal time, or for that matter, substantial and significant time with the other.

19. As a matter of common sense, I would reasonably conclude that if the parents were living in the same city, it would be practicable for them to spend substantial and significant time with both parents, as that term is defined in the Act.  The parents each proclaim, whether rightly or not, that they have enough flexibility in their work arrangements to enable them to be available for various aspects of the children’s lives including, it would seem, an ability to spend some time with the children in the school environment.  However, that again is a matter that is something for the future perhaps.

20. So far as the best interests of the children are concerned, in coming to any conclusion about what would be best for them in this context, the Act directs that I should take account of a number of different considerations.  These include two primary considerations, which are the benefit to the children of having a meaningful relationship with both of their parents; and the need to protect them from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence. 

21. There is nothing in the material before me in this interim hearing to suggest that the primary of those two primary considerations, that is, the need to protect the children, influences my decision this day.  I am not satisfied on any of the evidence that the children will necessarily, or even probably, be exposed to abuse, neglect or family violence, and while I consider that they are probably suffering psychological harm from the separation of their parents, and from their parents’ acrimony towards each other and their inability, in my opinion, to place the children’s interests first, I believe to be an inevitable consequence of these parents’ attitudes and actions in these circumstances.

22. The fact that the children are to have a meaningful relationship with both of their parents is a fact acknowledged by both parents and in fact each of them, in his or her own way, suggests that this is an important objective.  This would best be served on an interim basis by the children being in the same town with both parents.  However, that is not necessarily the entire suite of considerations to be taken into account and a meaningful relationship does not necessarily mean a relationship which satisfies the criteria of a substantial and significant time relationship, or even of an equal time relationship.  As Kay J has pointed out a meaningful relationship is something that may mean different things on different occasions, and what might be a meaningful relationship in one matter may not necessarily be so in another.

23. Another factor I am to take into account are what the children want.  I am not satisfied that in these circumstances I have any proper evidence about that.  I propose to make orders, as I foreshadowed to the parties, that there should be a Family Report and that that Family Report would be prepared in Canberra. 

24. I considered the possibility of obtaining a report in the United States of America, and made a number of enquiries in this regard.  However the parents are not wealthy.  Let me put it that way.  It would be preferable to find the arrangement that possibly imposes the least financial burden and one of the advantages of having a family report prepared in Australia is that that will not cost the parents any money.

25. In addition, in my opinion there are advantages of having the children’s relationship with their parents assessed by someone within the Australian context, given that on either parent’s proposals in the long-term the children will now be living in Australia.  However, again, this remains as a matter which I think is properly dealt with at a final hearing. 

26. I do accept that the children are happy in their current environment at school in America and that I further accept that they would probably, if asked, express a view that they would prefer to see out the school year in America.  However, I have no direct evidence of that, nor do I place any particular weight on that consideration.

27. The relationship of each of the parents with the children is a matter somewhat difficult to discern.  It is rather like panning for gold.  There is a lot of dross and very little gold.  I say that by reference, without particular criticism necessarily, of the parent’s affidavit material.  There is an over-emphasis on matters of either defence, or offence in some cases, relating to the other parent, and it is difficult to glean precisely what it is that each of the parents sees as the most important part of his or her relationship with the children; or for that matter how he or she sees the other parent fitting in to the children’s lives and the importance to the children of that.  Both of them recite the mantra that it is important for the children to have a proper relationship with the other parent.  I hope it is more than a mantra and I hope that it is something that they genuinely believe, and I hope it is something that they set about developing in an appropriate way.

1. I am satisfied that the children have a good relationship with each of their parents, and I am satisfied that the children have a closer relationship at the moment with their mother than their father.  I am satisfied that the children have a good relationship with their grandmother who looked after them for seven weeks recently, and I am satisfied that there are other friends and parents, some of whom are related to the children and some who are not, who will assist the children in readjusting, whatever may be the final outcome of where they live.  They are fortunate in that they have a network to support them, notwithstanding the peripatetic nature of their parent’s occupations.

2. I have been troubled by the fact that the parents have not sought to engage each other effectively – and I use the word “effectively” advisedly – in making decisions about the children’s best interests and long-term welfare and about the time that the children spend with the other parent.  Each of counsel – for reasons not quite clear to me – spent some time in cross-examination of the other’s client about an exchange of emails, which in my opinion reflects no credit on either of the parents.  There seemed to be a deliberate attempt on the part of both parents to try to interpret things in a narrow and restricted way, and in my opinion neither parent took the opportunity to break the nexus and finally come to a conclusion which might have meant that the children spend some more time with their father.  I do not attribute blame to either.  I attribute blame to both in respect of their communications.  Email is a great thing in terms of convenience.  It is also a comparatively cowardly way in which to communicate unpleasant facts in a way which does not require you to actually look at the way in which the other person is receiving, or accepting the information that is being conveyed.  This was an illustration of that proposition.

3. I am satisfied that there have been no doubts on the part of either parent that they should contribute to, and will contribute to in the future, the children’s financial support.  I do not doubt for a moment that each of the parents believes that he or she is capable of and will do their very best to support the children’s emotional and educational concerns.  I am satisfied that each of the parents is capable of doing that, although I note that the mother asserts – and that is yet to be the subject of potential or substantial cross-examination in due course – that the father has, in the past, put his work ahead of his family connections and commitments.  The uncertainty of the father’s ability to conduct his work in circumstances where he might have full-time care of the children is a factor I take into account.

4. The Act quaintly requires me to take account of the practical difficulty and expense of a child spending time with and communicating with a parent.  This, of course, is in essence what this matter is all about and the practical arrangements that might be made to maintain them, is best, on my opinion, left to a final hearing.

5. I am unaware of any cultural matters that might bear upon what might be in the children’s best interests and I assume, from the fact that neither parent has put them into an affidavit, that there are no such factors affecting any considerations that I might make, at least, at this point.

6. I am satisfied that there are allegations of family violence which, if they were to be proved, and I note they have been denied, would be significant in my opinion in demonstrating the attitude of either parent as to the potential and appropriate ways of resolving conflict, their ability as parents to model to the children conflict resolving behaviours and, moreover, the question of any danger to the children, which does not appear to be a current consideration.  Those are matters for evidence in due course if the parents persist with them.

7. I am also obliged to take into account that it would be preferable to make an order that would be least likely to lead to the institution of further proceedings.  Such an admonition in the course of interim proceedings is but worthy of a faint and hollow laugh.  I am also entitled to take into account such other matters as the court considers relevant.

8. It was urged upon me by Mr Howard on behalf of the father that I should order that the children return to Canberra and that I had the power to and should order the mother to return to Canberra.  In those circumstances he suggests that the children would not be exposed to multiple travel arrangements between now and the time that they leave the United States of America, that they would have the best opportunity to settle into a school in Australia at the beginning of the school year, that there was a reasonable school available to satisfy at least most of the aspirations of the parents regarding the standard of education that was appropriate, and the desire for the children to have a high degree of development in their ability to speak Mandarin in an efficient and competent way.  Mr Howard pointed out that the school curriculums in Australia are now common and that therefore there is little disadvantage, he would argue, that the children might begin school in Canberra but then continue school in Victoria.  It is a matter that neither he nor I is qualified to comment on educationally, but a matter which does have some advantage in commonsense.

9. The further advantage, of course, is that if both parents are living in Canberra, both parents are both close to their place of work, the mother would be fulfilling her contract – if that is what you call it – with the Royal Australian Air Force.  The father would be engaged in his occupation and there appears to be no reason why, in the circumstances, it would not be feasible for that arrangement to continue.  That proposition is supported by the fact that the mother’s mother lives in Canberra and at least at the present time, has a house in which the mother agrees she could live pending the hearing.  So that, while it might be difficult for the mother (long-term) to obtain accommodation in Canberra, certainly the short-term is not an immediate problem.

10. I note that over objection from counsel for the father I enquired of the mother as to her state of belief about what her mother would be likely to do, and the mother, in these proceedings, indicated that she was of the belief that even if she were – she, Ms Langdon – were to remain in Canberra, her mother would nevertheless move to Melbourne.  It remains to be seen, I guess, as to whether or not that occurs.  That is, in essence, the proposal on behalf of the father. 

11. Mr Howard, in answer to a question from me, resolutely and impressively produced a reference to Samson & Hartnett (No. 10), however, I am not sure that the section to which he referred me necessarily supports the contention he asserts.  The relevant sections of Samson & Hartnett to which I was referred begin at paragraph 57 and I read them for the purposes of dealing with this issue:

    If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare because the effect is more drastic.  The person being ordered not to move, at least, has chosen that location at some stage and for reasons which one assumes at least once existed.  This contrasts with a person who may not wish to go somewhere and therefore the order is much more of an imposition on that person’s freedom.

12. Pausing at this point.  It seems to me that while, even before I move to the next paragraph which asserts that there is a power under s 114(3), that it would not be sensible in the ordinary course of events, to order someone to relocate unless there were very serious reasons for doing so “because the effect is more drastic”, a comment with which I agree.  Paragraph 58 continues:

    However, we conclude there is a power under section 114, subsection (3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child.  The proper exercise of such a power is likely to be rare because (i) the location of the child will usually be the critical factor, leaving to the parents the choice about their roles, and (ii) in a parenting case an order directing a parent to relocate or not will likely only serve a useful purpose if that parent is then to discharge a particular role as a parent.  If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely to be superfluous.  If the evidence does not support such a finding the order will be coercive in nature and be equivalent to forcing the parent to discharge a role in circumstances not of the parent’s choosing.

13. In my respectful opinion, it is precisely that situation that would be faced in this matter where I would be coercing a parent, over her clearly nominated preference not to live in Canberra, to do so, and in my opinion that would be coercive in the sense that their Honours are referring to in Samson & Hartnett (No. 10).  The interesting proposition raised, and I think this highlights the difficulties associated with an order requiring a parent to live somewhere, is in paragraph 59, which says:

    The prospect of ordering a parent to relocate, and in effect parent in a situation not of that parent’s choosing, legitimately gives rise to concern, particularly in respect of enforcement. 

14. What if the parent in response to such an order simply hands the child to the other parent, perhaps in circumstances such as the case (that is, not this case but that case) where for whatever reason there is not a well-established relationship between the child and the other parent?  Will the primary parent be punished?  The fact that such vexing questions arise does not mean the power does not exist and may be rightly exercised at times.  Enforcement is discretionary and may be rare in the situation exemplified.  On the other hand, enforcement may be appropriate if a primary parent ordered to relocate simply did not do so.  In my opinion, Samson & Hartnett (No. 10) is authority for the proposition that I should not, on this occasion, exercise coercive powers to require the mother to live in Canberra.

15. That, of course, would not prevent me from making an order requiring the children to live in Canberra, allowing the mother to make her own decision about whether she was going to choose a parenting role in those circumstances or not.  The move [to Canberra] is one of the desirable options (if I can put it that way – given the mother’s stated evidence about where she wants to live) because it would mean the two children in the same town as both parents at the same time.

16. The proposition on behalf of the mother is that the children require, at this stage of their life, stability, and if they were to come to Canberra at this point then they would start a new school, other than the one they are presently attending, and possibly, if the mother is successful in her application in the final hearing in April, have to then suffer another change of school later in the year.  This contrasts, she says, with the proposition that if the children continue to live with her in the United States until the end of the United States’ school year, that even if subsequently – as they will – they have to recommence school in Australia, there will only be one change of school and not two – or potentially two.  Even if the children were to be ordered to remain in Canberra with the father after the final hearing, there would be no particular disadvantage to the children having finished their school year in the United States.

17. The mother would say that the children should subsequently live with her in Melbourne and she has made enquiries of an appropriate school in Melbourne.  She says that their late enrolment – if I can put it that way – in the middle of the year could be accommodated by that school.  In addition, she says that the children have expressed a wish to her (and this is part of the wishes that are not terribly well-represented in the evidence) that they would like to spend the time with their friends and ultimately to say goodbye to them in the United States after the usual end of school concerts and other functions.

18. She has proposed that on it being indicated that I thought a family report was desirable, she would arrange to return to Australia with the children for the purposes of the interviews on 8 February and her counsel advised me that the proposal of the mother, at least on a tentative basis, was that the children’s grandmother should travel to the United States and remain with them during the course of the trial - which is set for five days in April.  This obviously involves quite a lot of travel on the part of everyone, which is a disadvantage of her arrangements.  But she would argue, and there is some force to the argument in that it provides a higher level of stability for the children than the alternative.

19. This is a matter which is very narrowly balanced.  There are issues in respect of each of the parents, which are not capable of being resolved at this point.  I am not satisfied that any of the actions of either of the parents are such as in any way to disqualify them from fulfilling a proper role in the care of the children on an interim basis.  I think it would be highly desirable, and would have been and will be highly desirable, for the children to spend as much time with each of their parents during this period as they reasonably can.  However, reasonably along with a proper relationship, or a meaningful relationship, are factors which must be the subject of some comparison.  On balance, I believe that the children’s stability would be best served by their remaining living with their mother pending the final hearing in circumstances where their mother chooses, as she does, to remain living in the United States during this period.  In my opinion, that may not be the best arrangement for the children, but in comparison to the other alternatives it represents the best arrangement that might be made on an interim basis.

20. I propose to make orders which would involve the children in being returned to Australia for the purposes of the interviews for the preparation of the family report.  I do not propose to prescribe time that the children would spend with their father at or about that time.  However, while my disappointment may be of no concern to the parties, it would be a source of great disappointment to me if they were unable to make arrangements to enable the children to spend more time with their father than simply the two days that might be set aside for the purposes of the interview.

21. Similarly, notwithstanding the mother’s current tentative arrangements, it seems to me that the best way that the children might spend some sensible time with their father if, during the period when the parties are engaged in a trial before Benjamin J, the children were nevertheless in Australia, their grandmother who was otherwise to be committed to their care can continue to be caring for them.  I would hope, again, without any particular order from me, that the parents would demonstrate their commitment to the best interests of their children by making appropriate arrangements for the children to spend as much time as they reasonably could with their father.  I accept that this is time which is likely to see the father preoccupied with the proceedings before the court and in essence I am suggesting that upon conclusion of the court proceedings it would be appropriate for the children to spend some days, at least, with the father.  However, that is a matter for the parties and the exercise of their parenting responsibilities, and if they choose not to demonstrate their responsibility, I have no doubt that Benjamin J will take due note of that in the final proceedings.

22. Those then are the principal matters that I propose to make orders about.  I do not, again, propose to make any particular orders about the form of communication for the children with their father during this interim period.  I would expect that they will continue to communicate with him by Skype and by telephone, and I presume that both parents will facilitate that.  If either or both parents require some guidance about the extent of such communications, or the restrictions that might be placed upon them, I invite each to submit a minute of orders and I will make a determination, which must to some extent be arbitrary at this point, in Chambers after this matter has finished.

23. Otherwise, for the trips of the children to Australia with their mother, the cost of the children’s fares will be borne by the parties equally.  The mother will bear her own fares and costs and the father will, as I say, contribute to the cost of the children.  If there are other arrangements which mean that the fares can be met from Commonwealth resources or something of the sort, then obviously there is no requirement that the parents personally contribute.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 18 December 2015.

Associate: 

Date:  24 February 2016