LARRY & VOLK

[2019] FCCA 1506

FEDERAL CIRCUIT COURT OF AUSTRALIA

LARRY & VOLK [2019] FCCA 1506

Catchwords:
FAMILY LAW – Parenting – undefended hearing – whether the mother be permitted to relocate the children’s primary place of residence to the United States of America.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61C, 61DA

Crimes Act 1900 (NSW), s.61AA

Cases cited:

Allesch v Maunz [2000] HCA 40

Applicant: MS LARRY

Respondent: MR VOLK

File Number: SYC 6449 of 2018

Judgment of: Judge Morley

Hearing date: 15 April 2019

Date of Last Submission: 15 April 2019

Delivered at: Sydney

Delivered on: 7 June 2019

REPRESENTATION

Solicitors for the Applicant: Ms Santo of Santo Family Lawyers

There was no appearance by or for the Respondent

THE COURT FINDS THAT:

1. In respect of service upon the Respondent father, the Applicant mother has complied with paragraphs 5 and 6 of the Orders made 14 February 2019.

2. Every effort has been made to make the Respondent father aware that if he did not appear today, the Applicant mother had leave of the Court to proceed on an undefended basis.

3. It is in the best interests of [X] born … 2005 (“[X]”), [Y] born … 2009 (“[Y]’) and [Z] born … 2014 (“[Z]”) collectively referred to as the (“the children”) to make final parenting orders.

ORDERS

1. The Applicant mother be granted leave to proceed on an undefended basis.

2. The Undefended Judgment be reserved to a date and time to be fixed for Judgment Hearing.

3. The Applicant mother serve a copy of today’s Orders to the Respondent father’s last known residential address at Street A, Suburb B and last known email address at … within 7 days from the date of these Orders.

4. Any Application made in respect of rule 16.05 of the Federal Circuit Court Rules 2001 be filed within 21 days from the date of these Orders.

5. The Applicant mother be restrained from relocating the children’s residence to the United States of America for a period of 21 days from the date of these Orders.

AND THE COURT FURTHER ORDERS ON A FINAL BASIS, THAT:

1. The Applicant mother have sole parental responsibility for the children.

2. On occasions the Applicant mother exercises her sole parental responsibility for the children when making decisions about any major long-term issues, the mother must:

   (i)Inform the father in writing of the decision to be made;

   (ii)Invite the father to make any comment in relation to the decision;

   (iii)Take such comments into account when making the decision; and

   (iv)Inform the father in writing of the decision made.  

3. The children live with the Applicant mother.

4. The Respondent father spend time with [Y] and [Z] as agreed between the parties.

5. The father spend time with [X] as agreed between the parties and in accordance with [X]’s wishes.

6. The mother is permitted to relocate the children’s place of residence to the United States of America.

7. The mother keep the father informed at all times as to the children’s residential address and her current contact number.

8. The mother keep the father informed at all times as to any significant health issues relating to any of the children.

9. The mother facilitate the father having telephone contact with the children as agreed with the father to initiate the call to the mother’s telephone.  

AND THE COURT NOTES THAT:

A.     In consequence of the Orders made today and the Orders made on 21 November 2018 by consent, the Court reminds the Respondent father that he is not at liberty to approach or spend time with the children or to take the children from their school or extracurricular activities without the specific consent of the Applicant mother, and in the case of [X], only in accordance with her wishes.

B.     The Respondent was called outside of Court at 9.30am and 10.00am today and there was no response to the call.

C. Pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules 2001, the Court may vary or set aside a judgment or order made in the absence of a party and should the Applicant seek to set these Orders aside, he will need to advise the Court as to why he did not participate in these proceedings, noting that there may be cost implications.

D. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Larry & Volk is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6449 of 2018

MS LARRY

Applicant

And

MR VOLK

Respondent

REASONS FOR JUDGMENT

Background

1. These reasons arise from an undefended hearing in relation to final parenting orders in proceedings between Ms Larry, as Applicant mother (“the mother”) and Mr Volk, as Respondent father (“the father”) concerning the future parenting arrangements for their children [X], born … 2005, [Y], born … 2009, and [Z], born … 2014. 

2. At the time of hearing, [X] was 13 years of age, [Y] was 9 years of age and [Z] was 5 years of age.

3. The parties commenced cohabitation in 1999 in the United States of America.  They moved to Australia in … 2014 as a result of an employment opportunity for the mother. They separated on a final basis on 3 September 2018.  There had been a previous separation between the parties from sometime in 2011 until sometime in late 2013.

4. On the mother’s evidence there has been a history of family violence perpetrated by the father.

The Proceedings

1. The mother commenced proceedings by filing an Initiating Application and Affidavit on 9 October 2008 and a Notice of Risk filed on 11 October 2018.  Those documents were served on the father by personal service on 24 October 2018. I will elaborate on the issue of service later in these reasons.

2. The matter came before Judge Henderson, as her Honour then was, on a first return date of 21 November 2018.  The mother was present and represented by her solicitor, Ms Santos.  The father appeared in person on that day on his own behalf.  Interim orders were made by her Honour pursuant to a ‘Minute of Consent Orders’ signed by the parties providing that the children live with their mother and spend time with their father as agreed between the mother and father. 

3. The Consent orders further provided that the father was restrained from attending the children’s school or any extracurricular activities of the children without the prior consent of the mother.

4. The mother was permitted to take the children out of Australia for holidays, with such overseas holidays to coincide, so far as practical, within school holidays. The mother was to give the father as much notification as possible of her intention to take the children out of Australia, and in any event not less than 14 days written notice, and the mother was to furnish the father with an accurate itinerary, including particularised details, not less than 72 hours prior to departure.

5. The Respondent father was ordered to file and serve any Response, Notice of Risk and any Affidavit in support, by no later than close of Registry on 17 December 2018.  The matter was adjourned to 14 February 2019 at 9:30 am for further mention.

6. On 31 January 2019 the mother filed an Amended Initiating Application and that was the Application on which she moved in the undefended hearing.

7. On 14 February 2019 the matter was listed for mention before Judge Harper, as his Honour then was.  Ms Santo again appeared for and with the mother, but on that occasion there was no appearance by or on behalf of the father.  The matter was adjourned to 9:30am on 15 April 2019 for final hearing on an undefended basis. 

8. The time for compliance by the father with the order made on 21 November 2018 for filing of documents was extended to close of the Registry on 1 March 2019. 

9. The mother was directed to file and serve one consolidated Affidavit in support of her Application for final parenting orders by close of Registry on 15 March 2019 and was also to provide to the Court, and to the Respondent if a Notice of Address for Service had been filed, an Outline of Case document.

10. His Honour directed that the mother cause the father to be served with a sealed copy of the orders made on 14 February 2019 and any further material filed by the mother on which she would seek to rely at the final hearing. Such service was to be by way of ordinary service.

11. His Honour noted that the mother’s employment in Australia had been, or was about to be terminated, and that she had been offered employment in the United States of America, where each of the subject children were born.  His Honour noted that the mother proposed to relocate to United States of America.  His Honour further noted that on the adjourned date, being 15 April 2019 at 9:30am, the matter would proceed on an undefended basis unless the Court granted leave to the father to participate in the proceedings.

12. The mother filed a Consolidated Affidavit of the evidence on which she would rely on undefended hearing on 15 March 2019, sworn that day, in compliance with the Court’s orders.

Proceeding on an Undefended Basis

1. To proceed with a final hearing on an undefended basis, the Court must be satisfied that it is appropriate to do so both in relation to the father having been afforded due process and that to so proceed is in the children’s best interests.

2. On 2 November 2018, an Affidavit of Service by Mr C, licensed process server, sworn 25 October 2018, was filed.  Mr C deposed that at 3pm on 24 October 2018 he served the Initiating Application filed 11 October 2018, Notice of Risk, certificate by Family Dispute Resolution practitioner and Affidavit of Ms Larry sworn 9 October 2018 on the father, Mr Volk by handing documents to him personally at Street A, Suburb B, NSW.

3. At the time of service Mr C said:

   Are you Mr Volk?

4. Mr C received a reply:

   Yes.

5. Mr C then said:

   I have an Initiating Application and supporting documents for you.  Are you the person named in these proceedings?

6. To which the “male person” replied:

   Yes

7. Mr C then asked:

   Will you sign this acknowledgement of service?

8. To which he male replied:

   No

9. As stated above, at the first return date before the Court on 21 November 2018 the father appeared on his own behalf.  Accordingly, the father was present when the order was made in open Court that the matter was adjourned to 14 February 2019 at 9:30am for mention.  There was no appearance by or on behalf of the father before the Court on 14 February 2019.

10. On 13 February 2009, the mother filed an Affidavit of Service sworn by Carla Santo, her solicitor, in which Ms Santo deposed that she served the mother’s Amended Initiating Application, filed 31 January 2019, on the father by posting the document in a prepaid envelope addressed to the father at Street A, Suburb B NSW on 31 January 2019, and also by emailing the document to the father to ….

11. On 3 April 2019, the mother filed a further Affidavit by her solicitor, Carla Santo, sworn 3 April 2019, confirming the detail of posting and emailing to the father the Amended Initiating Application on 31 January 2019, and deposing that on 19 February 2019 Ms Santo sent a letter to the father by both email and post enclosing a copy of the orders made by the Court on 14 February 2019. On 15 March 2019, Ms Santo sent a letter to the father by both email and post serving a copy of the Affidavit of the mother filed 15 March 2019.

12. Ms Santo also deposed that on 28 March 2019 she sent a letter to the father by both email and post serving a copy of the Case Outline filed 28 March 2019.

13. I note that it was not necessary for the mother to prove service of the Case Outline document as the order relating to service of the Case Outline was predicated on a Notice of Address for Service having been filed by the father. No Notice of Address for Service, or any other document, has been filed in the proceedings by the father.

14. On the basis of the above evidence, I am satisfied, and I find, that the father was aware that the matter was listed before the Court for further mention on 14 February 2019 and that he did not appear before the Court on the day.

15. I am further satisfied, and find on the balance of probabilities, that the father has been properly served with the mother’s Amended Initiating Application filed 31 January 2019, her Affidavit sworn and filed 15 March 2019, a copy of the orders made by the Court on 14 February 2019 and the mother’s Case Outline filed 28 March 2019.

16. The High Court authority of Allesch v Maunz[1] holds that a party has the right to appear and be heard in a matter. I refer to the comments of Justice Kirby in paragraphs 38 to 40:

    ... Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided.  Affording opportunity is all that the law in principle require.

    Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests.  This consideration may be especially relevant in relation to the family Court where emotions, often engendered by the highly personal issues involved, and sometimes cloud rational thought.

    Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer for some other individual committed to speak for them you can explain the need for an adjournment.  The rights of other parties are commonly involved.  In the family Court, the rights of non-parties (especially children) may be affected.  Additionally (as this court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.

    [1] Allesch v Maunz [2000] HCA 40.

17. I am satisfied that this matter should proceed to final hearing on an undefended basis.  On the basis of the evidence before the Court, I am satisfied that it is in the best interests of the children, and that it is entirely appropriate, to proceed with the matter to final hearing on an undefended basis.

The Proposals

1. The mother sets out the orders she seeks in her Amended Initiating Application filed 31 January 2019:

   a)That the mother have sole parental responsibility for the children, and when making any decision about any major long-term issue, the mother must:

   i)Inform the father in writing of the decision to be made;

   ii)Invite the father to make any comment in relation to the decision;

   iii)Take such comments into account when making the decision; and

   iv)Inform the father in writing of the decision made.

   b)That the children live with the mother.

   c)That the mother be permitted to relocate the children’s residence to the United States of America.

   d)That the mother keep the father informed at all times as to the children’s residential address and her current contact number.

   e)That the mother keep the father informed at all times as to any significant health issues relating to the children.

   f)That the father spend time with [Y] and [Z] as agreed between the parties.

   g)That the father spend time with [X] as agreed between the parties and in accordance with [X]’s wishes.

   h)That the mother facilitate the father having telephone contact with the children as agreed with the father to initiate the call to the mother’s mobile phone.

   i)That the father is restrained from attending the children’s school or any extracurricular activities of the children without the prior written consent of the mother.

2. The father did not file a Response or any other document in the proceedings, and accordingly, has not sought any orders prior to the undefended hearing other than the consent orders made on 21 November 2018.

The Evidence

1. On hearing, the mother relied on the Affidavit of service of Mr C sworn 25 October 2018 and filed 10 November 2018, the Affidavit of service of Carla Santo sworn and filed 13 February 2019, the Affidavit of Carla Santo sworn and filed 3 April 2019, and the mother’s Affidavit sworn and filed 15 March 2019.  The mother relied on two documents tendered on her behalf and marked as Exhibits A1 and A2.

2. I have considered and dealt with the evidence in relation to service contained in the Affidavits by Mr C and Ms Santo above.

3. In the mother’s Affidavit, she details the course of the relationship between herself and the father and sets out a history of the proceedings up to that time.  She deposes that:

   The children are all in good health. At present the children live with me and spend time with Mr Volk on an ad hoc basis with either myself or our au pair present

4. The mother deposes that she is currently employed as a professional at Employer.

5. The mother deposes that in November 2014, the mother, the father and the children moved from the United States of America to Australia after the mother was offered a position with her employer in Sydney.

6. Following that move, the mother deposes that she has worked full-time, whilst the father has not engaged in any paid employment in Australia.  She deposes that the parties separated on 3 September 2018.

7. On 31 October 2018, the mother had a conversation with her boss, Mr D, who is based in the United States, in which he advised the mother that she was required to relocate for her employment to either the United States or Country E.  The mother told Mr D that she needed to think about it.

8. The mother had a conversation with the father on 21 November 2018 in which she said to the father:

   I’m thinking about going back to United States with work.  What you think? 

9. The mother deposes that the father responded:

   You do what you think is best for the girls.  I am leaving it up to you.

10. The mother deposes that on 11 December 2018 she sent the father an email attaching draft Consent Orders prepared by her solicitors. The mother attaches as Annexure “C” to her Affidavit a copy of those draft Consent Orders, including a proposed order:

    a)That the mother is permitted to relocate the children’s residence to United States of America

11. During a conversation with the father on 11 December 2018, the mother deposes that the father said to her:

    I don’t want anything to do with this process at all, and I’m not signing anything else.  It’s your problem, and you’ll have to figure it out without my signature on anything.

12. The mother then deposes that on 29 January 2019 she had a conversation with the father during which she said:

    Is it okay if I go with the kids to the United States?

13. The mother deposes that the father replied:

    It would be good for them.  Good exposure.

14. On 13 March 2019 the mother received a formal offer from her employer, which she attaches as Annexure “E” to her Affidavit.  The letter confirms the offer of a secondment of the mother to the company’s United States office.

15. The mother gives evidence of her enquiries in relation to schools that can be attended by the children on a move to the United States of America. She gives evidence of a connection of both the father and the mother to the United States, including the mother having a number of close friends in the United States, and many members of the father’s family being resident in the United States.

16. The mother refers in her evidence to her Application that she have an order for sole parental responsibility for the children, that she has always been responsible for all decisions in relation to the children including their education, religion and medical decisions and that the father has had very little input into these decisions. 

17. The mother deposes that she does not believe there is any indication from the father that he is willing to cooperate with her in relation to arrangements for the children.

1. In paragraphs 42 to 95 of her Affidavit, the mother gives evidence of various matters affecting the children’s parenting in relation to the father, including evidence of family violence perpetrated by the father.  The evidence includes details of conversations between [X] and school teachers, as relayed by the teachers to the mother, in which [X] makes disclosures of the father hitting him and his sisters.

2. In paragraph 49 of her Affidavit, the mother details a conversation she had with [Z] on 15 September 2018, in which it is asserted by [Z] that the father touched her on her private parts whilst she was in the bath. 

3. The mother deposes that she:

   …was not particularly alarmed by the comment as it occurred while [Z] was in the bath and I assumed that Mr Volk was washing [Z]

4. There is further elaboration by another conversation between the mother and [Z] on 22 September 2018, during which [Z] said to the mother:

   Daddy opened my legs and I was upside down and he kissed my private parts.  Like this 

5. The mother reported these matters to Family and Community Services on 25 September 2018. As a result, she attended a police station and the JIRT team interviewed [Z].  The mother was told that [Z] did not make any disclosures during the interview and accordingly, police did not progress the matter any further.

6. The mother deposes in paragraph 64 that on 29 January 2019 she had a conversation with the father during which he said words to the following effect:

   I saw what you said in your Affidavit.  I know what [Z] is alleging.  Yes, I probably kissed her there.  I kissed her everywhere.  We played the kissing game.  I did it.  I did it to [Z] and [Y] and [X] too.  I did it [sic] all of them.  We were playing.  And, so what if I hit [X].  He hit [Y], so hit him back!

7. In paragraphs 67 to 82, the mother details family violence perpetrated by the father during the cohabitive relationship.  Most of the instances referred to comprise verbal abuse and the father smacking [X]. 

8. One of the incidents, occurring in early 2014, resulted in [X]’s school principal contacting the mother and saying words to the following effect:

   [X] has significant red marks surrounding as [sic] neck.  We have just spoken with Mr Volk, and he has admitted to doing it and that he lost his temper and was very sorry.  I have a duty to the school to report all incidents however I know how difficult it can be managing children.  I therefore decided to let Mr Volk off with a one-time warning instead of reporting it.

9. In paragraph 82 the mother deposes:

   Since [Y] attained the age of 4 years I observed Mr Volk physically discipline [Y].  When she misbehaved Mr Volk hit her across the body or slapped across the face or knocked her to the ground.  This initially occurred approximately once every few months but over time became more frequent to a point where it was occurring almost weekly

10. Striking a child above the neck or in a manner that causes lasting hurt or a lasting mark is outside what may be referred to as lawful chastisement pursuant to section 61AA of the Crimes Act 1900 (NSW).

The Applicable Law

1. Section 60CA of the Family Law Act 1975 (“the Act”) provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

2. Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects and principles do not form part of the substantive law, but assist in informing the Court’s interpretation and application of the substantive law provisions contained in Part VII.

3. I have had regard to those objects and the principles underlying in my consideration of what orders may, as final orders on an undefended basis, be in the best interests of these children.

Parental Responsibility

1. In considering what orders are to be made in the children’s best interests I must have regard to the primary considerations and the additional considerations set out in section 60CC of the Act. I must also have regard to section 61DA of the Act that provides that when making a parenting order in relation to the children, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them, though the presumption does not apply if there are reasonable grounds to believe that a parent of the children has engaged in abuse of any of the children or has engaged in family violence.

2. The section provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the children’s parents have equal shared parental responsibility for them. 

3. As detailed above there is evidence before the Court in the mother’s Affidavit of family violence perpetrated by the father. On that basis, the presumption in section 61DA does not apply. Nevertheless, the Court should consider the issue of parental responsibility.

4. Under section 61C of the Act the parents each have parental responsibility for the children. In the event that final orders are made as a result of the undefended final hearing that the children live with the mother and that the mother has opportunity to relocate the children’s place of residence the United States of America, I consider that it would be in the best interests of the children for the mother to have an order, as sought by her, that she have sole parental responsibility for the children. Provided that the mother informs the father of parental responsibility issues arising and consults him about those issues, the mother would, in effect, have through that order for sole parental responsibility, the final say.

Primary Considerations

1. Section 60CC sets out the primary considerations for determining what orders are to be made in the children’s best interests. Those primary considerations are the benefit of the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Subsection (2A) requires that in applying the primary considerations, the Court must give greater weight to the need to protect the children over the benefit to the children of a meaningful relationship with both of their parents.

2. On the evidence before the Court, it is beyond contest that the children have a meaningful, and indeed a close and loving relationship, with their mother. Further on the evidence before the Court, I find that the children have a relationship with their father, though as to how meaningful that relationship is it is difficult to say.  The Court does not have the assistance of an Independent Children’s Lawyer or of a Child Dispute Conference or Child Inclusive Conference Memorandum to the Court, or of a Family Report. 

3. On the evidence of the mother, it appears that the relationship between [X], who was 13 and a half years of age at undefended hearing, and his father is less than ideal. [X] is apparently feeling a need to physically defend himself from his father.

4. The orders sought by the mother at undefended hearing provide opportunity for the children to have a relationship with their father by the father spending time with [Y] and [Z] by agreement between the parties, and with [X] as agreed between the parties and in accordance with [X]’s wishes. 

5. In the event that an order is made enabling the mother to relocate the children’s residence to the United States of America, there may be difficulties with the children maintaining a relationship, meaningful to whatever extent, with their father.  The Court has very little material available to consider this difficulty due to the father’s failure to engage with the Court process. 

6. On the material available, being the mother’s evidence, and the inference of either complicity with the mother’s wishes or indifference to the children’s best interests consequent upon the father’s failure to engage with the Court process, I find that it is in the children’s best interests to make the orders as sought by the mother despite the possible detrimental effect of those orders on a meaningful relationship between each of the children and the father.

7. The Court is very conscious of the evidence contained in the mother’s Affidavit in relation to family violence perpetrated by the father, and the possible inappropriate conduct by the father towards [Z].  In giving greater weight to the need to protect the children from harm over the benefit of the children of having a meaningful relationship with both parents, I find that the need to protect also makes it in the best interests of the children to make the orders as sought by the mother.

Additional Considerations

1. In considering the additional considerations set out in section 60CC(3), I refer to each of those additional considerations by way of a subheading.

The Views of the Children

1. I do not have any material in relation to the views of the children about spending time with their father or about relocation to the United States other than what is contained in the mother’s Affidavit. 

2. In paragraph 24, the mother sets out a conversation in late November 2018 between herself and the children, [X] and [Y], in which she discusses with them the possibility of relocating back to the United States. 

3. She deposes that [X] said words to the following effect:

   I’m more than happy to go back.  I loved living in United States.  I still have some friends there that it would be cool to get back in touch with them

4. The mother deposes that [Y] said words the following effect:

   I’m happy to go if you want to go mum

5. The Mother deposes that she did not speak about the matter to [Z], given [Z]’s age.

6. It would appear that the two older children have no opposition to relocating back to living in the United States of America.

The Nature of the Children’s Relationship with Each Parent

1. As stated above, the children self-evidently have an excellent relationship with their mother.

2. It is difficult to define in any way the relationship between each of the children and their father. On the evidence of the mother, the relationship between the father and [X] is less than ideal. 

3. Whatever the nature of the relationship between each of the children and their father, that relationship must suffer and decline if the children relocate to reside in the United States of America and the father continues to live in Australia.  This is a serious consideration for the Court when examining what is in the best interests of the children. 

4. Once again it must be said that the father’s failure to engage with the Court process leaves the Court with very little alternative than to find that it is in the best interests of the children for the mother to be able to pursue her career path with her employer and so continue to provide for her family unit. This is currently more important than making orders best designed to attempt to ensure a maximum opportunity for the father and the children to maintain and continue to develop their relationship, however meaningful or otherwise that may be.

The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child

1. The mother deposes in paragraph 40 of her Affidavit that she has always been responsible for all decisions in relation to children including their education, their religion and medical decisions.  She deposes that the father has had very little input into these decisions. 

2. It is not clear from that evidence if the father having ‘very little input’ into the decisions is a consequence of him not being consulted, or a consequence of his disinterest. As the paragraph can be read as referring to the whole of the children’s lives by reason of the mother using the word ‘always’, I am prepared to infer that the circumstances described by the mother subsisted throughout the period of cohabitation of the parties, as well as after separation.  On that evidence, and there is no other available to the Court, I infer that the father has failed to take opportunity to participate in decision-making about major long-term issues in relation to children.

3. The consent orders made in these proceedings on 21 November 2018 provided that the father spend time with the children as agreed between the mother and the father.  In paragraph 61 of her Affidavit, the mother details the time spent by the father with the children following the making of those orders. All of that time was supervised by either the mother, or her live-in au pair, Ms F. 

4. The maximum amount of time on any occasion is:

   Approximately two hours

5. There has been no application to the Court by the father for orders providing for greater time between himself and the children, or orders specifying time without supervision.

6. The mother deposes in paragraph 61:

   I have offered Mr Volk additional time however, he has said to me that he would rather not spend time with the children as he does not wish for his time to be supervised

7. In paragraph 66, the mother deposes:

   I have said to Mr Volk on many occasions that I am agreeable to facilitate telephone or face time between him and the children however, Mr Volk has told me that he does not wish to exercise this option

8. In the mother’s evidence there is an element that the father’s refusal to spend extra time with the children or communicate with them is in some instances connected to the disclosure made by [Z].

9. In consequence of the father’s failure to engage in the Court process, I find that the father has failed to take opportunity to spend time with and communicate with the children to the maximum amount that circumstances would have allowed.

The extent to which each of the children’s parents has fulfilled, or failed to fulfil, their obligation to maintain the children

1. The Court is not given any specific evidence in relation to this consideration.

2. It is inherent in the evidence that all of the financial support of the children since the family relocated from the United States of America to Australia, and certainly since the separation of the parents, has been provided by the mother. 

3. The mother deposes in paragraph 10 of her Affidavit that the father is unemployed and is not engaged in any paid employment since the family moved to Australia.  The mother deposes that the father supports himself from rental income he receives from properties he owns in the United States of America. 

4. The mother does not depose to receiving any financial assistance for the support of the children from the father.

The likely effect of any change in the children’s circumstances, including the likely effect of the children of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. This is an important consideration in view of the order proposed by the mother that she be allowed to relocate children’s place of residence to the United States of America. 

2. Unfortunately, through the father’s failure to engage with the Court process, the Court does not have any evidence of the likelihood of the father spending time with and/or communicating with the children following a relocation of the children to the United States of America. 

3. It is unknown if the father will also relocate to the United States of America or, indeed, if he has already done so.  The father is a citizen of United States of America.

4. Accordingly, it is difficult, if not impossible, to give adequate consideration to the likely effect of a relocation of the children to the United States on their relationship with their father, as it is not known what contact or communication there will be between the father and the children in that event. 

5. In the circumstances as referred to above, the Court finds that it is in the children’s best interests to make the orders sought by the mother allowing her to relocate the children’s place of residence United States of America despite whatever effect that may have, if any, on the children’s relationship with their father through a separation due to the distance between Australia and the United States of America.

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The same difficulty that I have referred to in several of the above additional considerations applies equally to this consideration. 

2. In not knowing what the father’s reaction will be in relation to his own place of residence if the children’s place of residence is relocated United States of America, it is hard to gauge what practical difficulties or expenses may arise. 

3. At the extreme, the difficulty and expense will relate to travel by either the father or, if agreed between the parents, the children between the United States of America and Australia.  At the other extreme, there will be no particular difficulty or expense in the children spending time with and communicating with their father if, following relocation of the children to the United States of America, the father also relocates back to the United States, from whence he came.

4. The Court finds that as the practical difficulty and expense of the children spending time with and communicating with their father is an unknown quantity, either in context of the children living with their mother in Sydney, Australia, or the children living with their mother in the United States of America, it is not a consideration against making the orders sought by the mother in the best interests of the children.

The capacity of: (i) each of the children’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

1. The mother demonstrates day-to-day capacity to provide for all of the children’s needs including their practical, financial, emotional and intellectual needs.  No question is raised in the proceedings as to her capacity to so provide.

2. There is a lack of evidence consequent upon the father’s failure to engage with the Court process as to his capacity to provide for any of the children’s needs, including their need for a beneficial meaningful relationship with him.

3. Given the satisfactory evidence before the Court as to the mother’s capacity, and the lack of evidence as to the father’s capacity, I find that the orders as sought by the mother are in the best interests of children.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. [X] is 13 years and six months of age.  Based on the evidence in the mother’s Affidavit, it would seem that [X] rather considers himself to be the man of the family and, unfortunately, to a somewhat extreme extent, in that he seems to consider that it is up to him to defend himself, his sisters and his mother from his father. 

2. [Y] is nine years and six months of age, and [Z] is five years and two months of age.  [Z] will know nothing of the culture and circumstances in the United States of America, having been a tiny infant when the family moved from the USA to Australia. 

3. On the evidence in the mother’s Affidavit, [X] has definite memory of his time living in the United States and it is to be presumed that as [Y] was between four and five years of age when the family moved to Australia, she will have some memory of the United States.

4. I do not consider that the cultural differences between life in Sydney, Australia and life in the United States, need close examination in considering what parenting orders should be made in the best interests of the children.

1. The mother deposes that both she and the father are citizens of the United States of America and permanent residents of Australia.

Any family violence involving the child or a member of the child’s family

1. I have referred to the evidence contained in the mother’s Affidavit in relation to family violence perpetrated by the father.  On the basis of that evidence, it would seem that it was such that on occasions [X] felt it necessary to arm himself with a “big kitchen knife” to defend himself from his father and thereafter to place items such as “rulers and wooden spoons in unusual places in the home”.

2. The mother deposes that [X] said words to the effect:

   That is what dad hits me with.  If I take them all away, then dad cannot hit me with them

3. I have only the material contained in the mother’s Affidavit in relation to the assertions of family violence perpetrated by the father.  On the basis of that evidence, the Court is able to find that there was some family violence perpetrated by the father and that it has had a seriously detrimental effect on the nature of the relationship between the father and, at least, [X]. 

4. This is another consideration that leads the Court to find that it is in the best interests of the children to make the orders as sought by the mother.

Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children

1. The father has not engaged in these proceedings to date other than to appear on his own behalf on the first return date, and to enter into some brief consent orders.

2. The father has not seen fit to file any documents, or to provide any evidence. 

3. The Court has found that the father has been served with the evidence relied on in this matter, and with the mothers Amended Initiating Application. The Court has found that the father is therefore aware of the orders being sought by the mother, and that the father is also aware that the matter can proceed to a final hearing an undefended basis, as it has done.

4. It may be that the father will seek to engage with the proceedings once orders are made as sought by the mother. It may be that the father will seek to have the matter reconsidered by the Court pursuant to rule 16.05 of the Federal Circuit Court Rules. 

5. Rather than making the order in the terms as sought by the mother that the she be permitted to relocate the children’s residence to the United States of America, I intend to make an order restraining the mother from doing so for a period of 21 days from the date of the orders.

6. The Court further intends to make an order that the mother serve a copy of the orders on the father at his last known residential address at Street A, Suburb B NSW, and his email address, being …, within seven days of the date of the orders. The effect of this will be to give the father an opportunity to make urgent Application to the Court in the 14 days space (or more depending on when service of the order is affected) between receiving knowledge of the orders made and the mother’s first opportunity to relocate the children United States of America.

Best interests of the children

1. As stated earlier in these reasons, section 60CA of the Act provides that when making a parenting order in relation to the children, the Court must have regard to the best interests of the children as the paramount consideration.

2. Having considered the primary considerations in section 60CC and such of the additional considerations in that section as are relevant, I find that making the orders as sought by the mother in her Amended Initiating Application, with additional orders giving the father opportunity to make urgent application to the Court before any relocation of children to the United States of America may occur, is in the best interests of the children.

3. Accordingly, I have made the orders as set out at the start of these reasons.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Morley

Date: 7 June 2019