Mannix and Mannix

[2020] FamCA 81

FAMILY COURT OF AUSTRALIA

MANNIX & MANNIX [2020] FamCA 81

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – mother’s application to relocate the children’s residence to Northern Ireland – where the youngest child is currently spending week about time – where the father opposes the application until the parties reach agreement on day three of the final hearing – final consent orders made providing for the parties’ two youngest children to relocate to Northern Ireland.

Family Law Act 1975

APPLICANT: Mr Mannix

RESPONDENT: Ms Mannix

FILE NUMBER: BRC 11893 of 2017

DATE DELIVERED: 7 February 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 5, 6 and 7 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms R Mannering

SOLICITOR FOR THE APPLICANT: Northside Family Law Centre

COUNSEL FOR THE RESPONDENT: Ms A Frizelle

SOLICITOR FOR THE RESPONDENT: Freedom Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms S Christie

INDEPENDENT CHILDREN’S LAWYER: Mr N Grainger
Legal Aid Queensland

Orders

1. That all previous Orders relating to the children, Y born … 2005 and Z born … 2012 (collectively “the children”) be discharged:

2. That from 1 August 2020, Y be permitted to leave the Commonwealth of Australia to live in Northern Ireland.

3. That save for Order 2, there be no further orders made in relation to Y.

4. That:

(a)should Orders 7, 8 or 11 apply, the parents will have equal shared parental responsibility for all major long-term issues (as that is defined in the Family Law Act 1975 (Cth)) in respect of Z.

(b)should Order 9 apply, the mother have sole parental responsibility for all major long-term issues (as that is defined in the Family Law Act 1975 (Cth)) in respect of Z. In exercise of the mother’s sole parental responsibility she shall:

i.inform the father in writing (via email) about decisions to be made twenty one (21) days prior to making any decisions, save in the case of an emergency and then such notice to be provided as soon as practicable;

ii.seek a response from the father in writing about the decision to be made;

iii.the father shall have fourteen (14) days to respond to the mother’s email correspondence;

iv.the mother shall consider the father’s response and keep in mind the best interests of the child as her paramount consideration; and

v.the mother shall inform the father in writing of the decision she has made.

1. That subject to the mother:

(a)serving on the father and the Independent Children’s Lawyer documentary proof that she has:

i.requested a decision from a court of competent jurisdiction in Northern Ireland about recognition of these Orders in Northern Ireland pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996 (“the Child Protection Convention”);

ii.obtained from a court of competent jurisdiction in Northern Ireland a declaration of registration and enforceability of these Orders in Northern Ireland pursuant to Article 26 of the Child Protection Convention; and

(b)Filing in this Court an Affidavit verifying her compliance with the conditions set out within Order 5(a),

then from 1 August 2020, the mother is not subject to any restraint concerning relocating Z’s residence to Northern Ireland and the mother is at liberty to remove Z from the Commonwealth of Australia.

1. That the children’s passports held by the Honourable Court be released to the mother forthwith.

Time spent with the father

1. That whilst ever the mother remains living in Australia, or the father relocates to Northern Ireland and lives within seventy five (75) kilometres of the child’s school in Northern Ireland, Z shall spend time and communicate with the father as may be agreed but failing agreement as follows:

(a)Week about Friday 6:00pm to the following Friday 6:00pm, with changeover to occur at Suburb A McDonalds; and

(b)By telephone, Skype or Facetime at all reasonable times.

1. That whilst ever the father relocates to Northern Ireland and lives more than seventy five (75) kilometres from the child’s residence, but no more than a one (1) hour drive from the child’s residence, Z shall spend time and communicate with the father as may be agreed but failing agreement as follows:

(a)During school terms, each alternate weekend from 6:00pm Friday until 6:00pm on Sunday, commencing on the first Friday of each school term; and

(b)Week about Friday 6:00pm to the following Friday 6:00pm during all school holiday periods;

(c)With changeover to occur at the nearest McDonald’s restaurant B Town; and

(d)By telephone, Skype or Facetime at all reasonable times.

1. That whilst ever the father lives more than three hundred (300) kilometres from the child’s residence, Z shall spend time and communicate with the father as may be agreed but failing agreement as follows:

(a)Each year, for a period constituting up to 75% of all of Z’s school holiday time;

(b)That Order 9(a) be subject to the father giving at least ninety (90) days written notice to the mother of his intention to exercise such time;

(c)The father to be at liberty to designate the commencement and end dates of any time spent in accordance with Order 9(a) subject to the child returning to her residence with the mother at least seventy two (72) hours prior to her recommencing school;

(d)That the costs of any flights necessary to transport Z to facilitate the operation of Order 9(a) be shared equally between the parties; and

(e)By telephone, Skype or Facetime at all reasonable times.

10. That the mother will make Z’s British passport available to the father for the purposes of allowing Z to travel with the father.

1. That in default of the mother’s compliance with the conditions set out within Orders 5(a) and 5(b) hereof, the parties are restrained from moving Z’s residence to a place beyond a radius of seventy five (75) kilometres of Suburb C, Queensland, Australia and Z shall spend time and communicate with the father as may be agreed but failing agreement as follows:

(a)Week about Friday 6:00pm to the following Friday 6:00pm; and

(b)By telephone, Skype or Facetime at all reasonable times.

12. That notwithstanding any order in regards to Z spending time with the father, Z shall spend Christmas from 9:00am Christmas Eve to 6:00pm Boxing Day with the mother in even numbered years and with the father in odd numbered years.

13. That at all other times other than those set out in Orders 5 through 11, Z shall live with the mother.

14. That each parent is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

15. That this Order is an authority for the principal of any school attended by the child to provide to the father, at his expense, copies of all school reports and school photograph order forms relating to the child.

16. That each parent shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.

17. That each parent shall forthwith inform the other, and keep the other informed, in writing, of their respective current residential address, mobile telephone number, and email address.

18. That the parents and Independent Children’s Lawyer are at liberty to furnish a copy of these Orders to:

(a)the Australian Federal Police and any competent authority or officer empowered under the Australian Passports Act 2005 (Cth);

(b)Northern Irish legal representatives and courts for the purpose of recognition, registration and enforcement under Child Abduction and Custody Act 1985 and/or any other relevant Act; and

(c)the principal of any school attended by the children.

19. That the Independent Children’s Lawyer is discharged upon the latter of:

(a)the expiration of any applicable appeal period; or

(b)the mother’s provision to the Independent Children’s Lawyer of documentary proof pursuant to Order 5(a) hereof.

20. That any and all outstanding applications are dismissed.

21. That the mother have liberty to apply after 30 June 2020 in relation to any inability to comply with Orders 5(a) and 5(b).

IT IS NOTED:

A.    That the parents agree to attend upon Dr D with Y and the parents will each pay half of the out of pocket costs of the counselling.

B.    That the parents agree that :

i.in the event the parents are both living in Australia, or respectively in Northern Ireland, the United Kingdom, Republic of Ireland or a European Union country, child support will be as assessed; and

ii.in the event the father is living in Australia and the mother is living in Northern Ireland, the mother will not seek child support from the father, after 1 August 2020.

C. That pursuant to s.65DA(2) 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 the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.

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 Mannix & Mannix 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: BRC 11893 of 2017

Mr Mannix

Applicant

And

Ms Mannix

Respondent

REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. This is an international relocation case involving, ultimately, two children:  Y, who is now aged fourteen and a-half, and Z, who is nearly eight.  These children are part of a sibship of four children who, with their parents, emigrated to Australia in 2013.  The basis on which they were to remain in Australia is disputed between the parties, the mother saying that it was for a trial period of some two years.  Be that as it may, the father, who is an engineer, is now an Australian citizen, and wishes to remain in Australia.

2. For reasons which I do not need to explore or make findings upon, the parties having reached consent orders. The four children, Ms W, 20, Ms X, 19, and the subject children, Y and Z, already mentioned, have had a quite difficult journey between the two countries since at least August 2015.  There is a period until July 2016 where the mother lived in Northern Ireland, but, in February 2016, the two older children, Ms W and Ms X, returned to Australia and lived with the father.  When the mother returned in July 2016, with a view to reconciling with the father and giving their relationship another go and she brought with her, of course, Y and Z.  For reasons which I do not need to explore, the relationship was not able to be sustained, and, by April 2017, final separation had occurred.

3. It is clear, on all the material, for a number of reasons, some of which are disputed and which I do not need to make findings on, that the breakdown of the parents’ relationship has been traumatic for these four children.  It has manifested in a range of different ways.  It has, in my view, been contributed to by the conflict that has now developed between the mother and the father, shaped, the mother says by family violence, and the father says, most recently, by the mother’s decision, as he calls it, to “abduct and kidnap” the children.  Parental trust and respect have basically evaporated.

4. As a result, sadly, Ms W and Ms X were initially following separation and still seem to be estranged from their father.  Whilst they are adult children, that is a regrettable outcome and clearly shapes some of the thinking of Y in particular, but not so much Z.

5. The mother, whilst proceedings were pending in the Federal Circuit Court of Australia, and without the father’s authority or knowledge, chose to leave Australia (at or about the time the father was admitted to hospital for an operation), ostensibly arising from an incident on 1 April 2018.

6. In so doing, the mother exposed herself to applications in Northern Ireland under the Hague Convention and, to the credit of the Northern Ireland justice system, the mother having unilaterally relocated and changed the children’s clear habitual residence in Australia at that time, was required by order of the Northern Ireland High Court to return to Australia, which she did on or about 10 October 2018.  Since that time, sadly, the relationship between the mother and father has only got worse.

7. Z recommenced time with her father shortly after returning to Australia and, from January this year, the parents, without Court order but to their credit, have put in place an equal time arrangement for Z.  Despite the assistance of two family reports from social worker Mr E, extensive therapy from Dr D in respect of Y, and no shortage of other therapeutic intervention for both children, particularly Y, and also the mother, by the time of the trial, at this stage, Y’s relationship with the father is also estranged, as his is with Ms W and Ms X.

8. Whilst it might be said by the mother that the father has either caused or grossly contributed to this estrangement, on the evidence that I have seen, it would have been reasonable for me to make a finding that the mother has possibly not done all she could have done to prevent that occurring.  Nonetheless, I accept that the mother has, probably since at least June 2014, when there was at least contemplated a return to Ireland at that stage, been unhappy living in Australia, for whatever reason, and her unhappiness has no doubt influenced her daughters’ thinking – that is all four daughters – and has caused the mother to pursue the application which I was asked to determine, permitting her to relocate with Y and Z back to Northern Ireland.

9. There have been delays in the case, unfortunately, not only because of the mother’s unilateral move to Northern Ireland but also because a trial initially listed before a judge of the Federal Circuit Court in July 2019 did not occur, and caused the matter to be transferred to this Court.  Overarching these difficult issues for the parents, but particularly the children, have been pending family violence proceedings in the State Court with allegations, hotly disputed and contested by the father, made by the mother.

10. There are, of course, a number of other issues.  However we got to this point, two things appear clear to me: 

    a)Y’s relationship with the father is in serious disrepair and may not be able to be salvaged during her infancy.  The parties, taking on board the comments of Dr D reflected in her report tendered as Exhibit 1 in these proceedings at the commencement of the trial on Wednesday, is prepared to give one last chance and opportunity to Y to at least engage with the father, in the hope of something better occurring in the future; and

    b)Amazingly, Z has continued to float through and navigate these very difficult parental and family waters and maintain a good, happy and loving relationship with her father.  That could, of course, be associated with her innate personality, which is described by Mr E, but not accepted by the mother, as “robust” and “resilient”.  It could be because she sees her relationship with her father quite differently than do Y, Ms X and Ms W.  It could be because the mother has, as she says, tried to ensure that her very negative views about the father, which I feel she has certainly shared with Ms W and Ms X in the past (and maybe Y), but not as much with Z, has allowed Z to have the confidence and ability to explore her relationship with her father.

11. On that basis, Z, now being accepted by the father to return to Northern Ireland by 1 August 2020 to join her siblings and her family in Northern Ireland, will have the opportunity, whilst remaining in Australia, to have a chance to further strengthen her relationship with her father.  Whether or not that relationship can survive the distance and the difficulties inevitable in overseas communication is yet to be seen.  My impression, from all the evidence, is that Z will demand it occur.

12. I could not discount the prospect that Ms W, Ms X and perhaps even Y might put pressure on her to see their father in the way they see their father.  It is up to the mother to ensure that that does not occur.  She is a schoolteacher and it seems to me, likely to be aware of the impact on children of separated families and the need for each child to express their own need for relationships independently of what might be the wishes of older siblings.

13. Naturally, the father is fearful, having essentially lost a relationship at this stage, hopefully not forever, with Ms W, Ms X and Y, that that will not befall Z.  However, in circumstances where, I think, with difficulty and emotionally very toughly, he conceded that Y’s current emotional and mental health condition is such that she should be able to relocate to Northern Ireland, he sees the sense for Z to do so as well.

14. I give him great credit, having heard two days of evidence, for reaching this conclusion, one which the mother might say ought to have been reached some time ago.  Sometimes, in my experience, it is necessary for the parties to hear all the evidence to be able to make these difficult decisions.  Certainly the Court generally requires to hear all the evidence before it can make a decision.  In my view, having heard all the evidence, I am satisfied with the orders the parties now consent to, and which I slightly had to make a ruling on in terms of holidays, are in the best interests of Y and Z.  If I was not so satisfied, I would not make them.

15. Accordingly, for the reasons which I give, the consent orders made by the parties will become orders of the Court under my hand.  I require the Independent Children’s Lawyer to forward to the Court the amended orders that includes the amendment relating to – some typographical amendments, and relating to the need for leave, for the mother to have leave if she is unable to comply with Order 5.1 by 30 June 2020, and, secondly, to adjust the order for school holiday time in a way that ensures, in the absence of other agreement, that Z has the opportunity to spend alternate Christmases in Australia and Northern Ireland.

16. My last hope is that the older siblings, rather than possibly contaminating their little sister’s view of the father, might, in fact, work the other way. Seeing the benefits and love that Z gets from her father, which I have no doubt he is more than capable of providing to the other siblings, might make them reflect more positively on him, even though it might well be that both he and the mother have, at times, acted in a way for which they now regret and which they have changed.

17. Children, ultimately, work out that parents make mistakes.  Children can be very harsh judges of their parents’ behaviour, but these four girls will only have one father and only have one mother.  The fact that they may have parents living in different countries may be an opportunity for them, in their lifetime, to in fact explore experiences that may not be open to other children.  Whether that can come to pass after such a long, arduous, distracting and no doubt difficult course of litigation is yet to be seen.

1. I of course discharge the Independent Children’s Lawyer as per the orders, and I ask you to produce those orders to the Court.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 7 February 2020.

Associate:

Date: 14 February 2020