Mickenburg and Coventry

[2008] FamCA 978

FAMILY COURT OF AUSTRALIA

MICKENBURG & COVENTRY [2008] FamCA 978

FAMILY LAW – CHILDREN - With whom a child lives – relocation – mother’s application for international relocation – whether there is the ability to maintain a meaningful relationship between children and father having regard to their ages and stage of development

Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(3), 60CC(4)

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

B and B: Family Law Reform Act (1997) FLC 92-775
A and A:  Relocation Approach (2000) FLC 93-035
AMS v AMF; AIF v AMS (1999) 199 CLR 160
U and U (2002) 211 CLR 238
Goode v Goode (2006) FLC 93-286
M and S (2007) FLC 93-313
Godfrey and Sanders 208 FLR 287
Taylor and Barker (2007) FLC 93-345

APPLICANT: Ms Mickenburg

RESPONDENT: Mr Coventry

FILE NUMBER: MLF 1467 of 2006

DATE DELIVERED: 31 March 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Watt J

HEARING DATE: 25 - 28 February 2008

EXTEMPORE ORDERS: 31 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dickson

SOLICITOR FOR THE APPLICANT: R&G Lawyers

COUNSEL FOR THE RESPONDENT: Mr Mort

SOLICITOR FOR THE RESPONDENT:   Jane Baldwin

Orders

31 March 2008

1. All previous parenting orders in so far as they relate to the children of the relationship M born … July 2001 and Y born … January 2004 be and are hereby discharged.

2. The parties have equal shared parental responsibility for making major decisions concerning the long term care, welfare and development of the children.

3. Subject to paragraph 5 the said children live with the father:

   (a)each alternate weekend during the school term from 5.00pm Friday until 6.30pm Sunday and in the event that the Monday is a public holiday until 5.00pm on Monday;

   (b)       on each Wednesday during the school term from 5.00pm until 7.30pm;

   (c)subject to subparagraphs 4(a) and (b) of this order for a period of two weeks in the long summer vacation and as follows, failing agreement:

   (i)in even numbered years from 5.00pm on Christmas Eve until 5.00pm on the 14^th day thereafter;

   (ii)in odd numbered years from 5.00pm on Christmas Day until 5.00pm on the 14th day thereafter.

   (d)       for term holiday periods, failing agreement:

   (i)for the first half of such holidays which commence in even numbered years;

   (ii)for the second half of such holidays which commence in odd numbered years,

   subject to the father giving the mother 28 days’ written notice of his intention to exercise holiday time with the children;

   (e)in the event that Father’s Day falls on a day when the children are not normally with the father, then from 5.00pm Father’s Day eve until 6.30pm on that occasion;

   (f)in the event that either of the children’s birthdays or the Father’s birthday fall on a day when the children are not normally with the father then the father shall have the children as follows:

   (i)when such birthday falls on a week day from 5.00pm to 7.30pm;

   (ii)when such birthday falls on a weekend, from 10.00am to 2.00pm;

   (g)       at such other times as may be agreed.

4. The said children live with the mother at all other times and irrespective of all other arrangements, the mother will have the children:

   (a)from 5.00pm Christmas Eve to 5.00pm Christmas Day in odd numbered years;

   (b)from 5.00pm Christmas Day to 5.00pm Boxing Day in even numbered years;

   (c)in the event that either of the children’s birthdays or the mother’s birthday fall on a day when the children are normally with the father, then the mother shall have the children as follows:

   (i)when such birthday falls on a week day, from 4.30pm to 7.30pm;

   (ii)when such birthday falls on a weekend, from 10.0am to 2.00pm;

   (d)in the event that Mother’s Day falls on a day when the children are not normally with the mother, then the father’s time with the children on that weekend will suspend form 5.00pm Mother’s Day eve;

   (e)       at such other times as may be agreed.

5. Subject to paragraph 9 of this order the mother is permitted to take the children to The Netherlands (and to any other country that is a signatory to the Hague Convention on International Child Abduction) for a period of 30 days (including travel time) in each calendar year commencing in 2008 each such period to include a 2 week period of the children’s school holidays whenever practicable and in 2008 the mother is permitted to remove the children from the Commonwealth of Australia and take them to The Netherlands departing on 19 April 2008 and returning on 19 May 2008 and the Australian Federal Police and all other relevant authorities are hereby ordered to remove the names of the said children from the Airport Watch List for the said period to enable the said travel to take place and to replace their names on the Airport Watch List upon their return to Australia.

6. The wife’s solicitors are hereby authorised to deliver to the mother any passports held now or later received by them to enable the mother and the children to travel in accordance with paragraph 5 of this order and upon her return to Australia the mother is to deliver the children’s passports to her solicitors to be held by them until she is next entitled to travel with the children in accordance with this order, and after each such visit to The Netherlands she is to return them to her solicitor unless the parties have agreed in writing that they are to be held by someone else. 

7. Starting in 2009, the mother is to give 60 days notice in writing to the father of her intended dates of travel under paragraph 5 of this order and is to provide to the father no less than 30 days before each such period of travel, an itinerary and proof of advance purchase of return tickets for herself and the children and in 2009 and each third year thereafter the mother’s dates of absence from Australia with the children may include Christmas Day and the two week period thereafter (being the father’s period of annual leave at Christmas time).

8. During any period that the children are overseas with the mother in accordance with paragraph 5 of this order the mother is to make the children available to receive a telephone call from the father between 8.00am and 9.00am (at the overseas location where the children are) each Sunday morning and if the children will not be available to receive the call at the home of the maternal grandmother the mother must advise the father by email of the number on which the children may be called no less than 48 hours before the call is due to be made.

9. In 2008 and 2009 by way of security for the children’s return to Australia the mother is to deposit the sum of $20,000 into her solicitor’s trust account, such amount to be deposited by no later than 11 April 2008 and 30 clear days before the intended date of departure from Australia in 2009, and in each of those years the said sum may be paid to or at the direction of the mother upon the return of the children to Australia and upon delivery of their passports to the wife’s solicitor and the solicitor for the wife is to provide written confirmation to the solicitor for the husband that the security deposit has been received forthwith upon lodgement of the said sum into the wife’s solicitor’s trust account.

10. In the event that the children or either of them do not return to Australia by 26 May 2008, or within 7 days of the return date specified in their itinerary for their visit that will commence at the end of 2009, the said sum is to be paid to the father and applied by him to securing the return of the children to Australia.

11. In 2009 and each year thereafter, within 14 days of receiving notice from the mother in accordance with paragraph 7 of this order, the father is to do all such acts and things reasonably required of him to enable the children’s names to be removed from the Airport Watch List for the duration of the period of travel to The Netherlands of which the mother has given him notice in accordance with paragraph 7 of this order and any request to consent to an order removing the children’s names from the Airport Watch List for the period of 30 days (such order to be made 21 days before the children’s intended date of departure in 2009 and each year thereafter) must not be unreasonably refused by the father.

12. For the purpose of changeovers:

    (a)the mother will deliver the children to the father at the commencement of the period that the children are to live with the father; and

    (b)the father will deliver the children to school, school care or crèche, where appropriate, or otherwise on non-school days, to the mother’s residence at the commencement of the period that the children are to live with the mother; or

    (c)       as otherwise agreed between the parties from time to time.

13. Each party:

    (a)do all things necessary to authorise the children’s schools, crèche or kindergarten to provide to the parties at their own expense, all notices and other information normally provided to parents;

    (b)keep the other informed of any significant issues concerning the children’s health.

14. Each party be permitted to telephone the children with a frequency of not more than each 48 hours when the children are in the care of the other party for a period in excess of 48 hours.

15. Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help” a copy of which is annexed to these orders.

16. All applications are otherwise dismissed.

17. Pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF1467/2006

MS MICKENBURG

Applicant

And

MR COVENTRY

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. Six-year-old M and four-year-old Y have lived with their mother for the past two and a half years since their parents’ separation.  The father has spent regular, gradually increasing time with the children.  The children have shown strong affection and attachment towards both parents, despite the tension that exists in the parents’ relationship. The father seeks to preserve the existing arrangements whereby the children live with the mother in Australia and spend time with him on a regular basis.

2. The mother wishes to relocate with the children to The Netherlands, her country of origin, where her mother, sister and close friends reside.  If permitted to relocate, the mother proposes that the children spend four weeks with the father in June or July of each year in The Netherlands, in addition to up to four weeks each year, accompanied by her, in Australia in December of each year.  If she is not permitted to relocate, she proposes that the current arrangement for time spent between the children and the father continue and that she be permitted to travel to The Netherlands with the children for up to four weeks per year. 

3. The father is opposed to the relocation and proposes that the current arrangements remain in force.  The current arrangements differ only slightly from the interim parenting orders made by Senior Registrar FitzGibbon on 28 November 2006.  Variations to each parent’s proposed orders were made in the course of the hearing, but the broad thrust of each case did not change. 

BACKGROUND

1. The mother, Ms Mickenburg, was born in The Netherlands and is aged thirty-seven.  She is employed on a part time basis as a consultant.  She has lived in Australia for the past 13 years.  The father, Mr Coventry, is aged thirty-nine.  He was born in Australia and is currently employed on a full-time casual basis, as a tradesman.   The parents reside in separate rental accommodation in G.

2. The parents met in the United States in 1991.  They commenced cohabitation in The Netherlands in April 1992.  Two years later, they relocated to Australia.  The mother was subsequently granted a permanent residency visa.

3. The parents separated temporarily for five months in late 1999. Their first child, M was born in July 2001 and their second child, Y was born in January 2004.  Both children were born in Australia, are dual citizens of Australia and The Netherlands, and are bilingual, speaking both English and Dutch. The mother has travelled two times to The Netherlands with M in 2002 and 2003 and with both children in 2005. The father (in paragraph 9 of his affidavit sworn 6 December 2007) stated that he did not accompany the mother to The Netherlands with the children once the children were born due to the expense and his work commitments however the mother’s evidence was that he came for two weeks in 2003 for her father’s funeral. The mother’s visit to The Netherlands in May 2005 was scheduled to be for four weeks but the mother extended the trip to approximately 11 weeks and returned in August 2005.

4. Prior to Y’s birth in January 2004, the father began presenting with symptoms of depression.  This condition was not diagnosed until November 2005.  The father has since made a complete recovery.

5. In November 2005, when M was aged four years and Y one year, the parents finally separated.  The single expert witness, Mr P, released the first family report on 10 July 2006, as an attachment to an affidavit sworn by him on 3 August 2006.  It reads in part as follows:

   According to [the mother], the turning point (in their relationship) coincided with her father’s death in 2003.  Even though there had been great dissatisfaction in the relationship leading up to that time, it was [the father’s] complete lack of support, empathy and emotional availability that became so strikingly apparent.  She felt she had not been genuinely true to how she really felt, and whilst she had been committed to and had “hung in there,” she knew how she felt and that she needed to separate.

6. Soon thereafter the parents discussed the possibility of the mother relocating to The Netherlands with the children.  The father indicated to the mother that he did not want to come between her and the children. This implied consent was revoked by the father in February 2007, after the mother made it clear that there was no possibility of reconciliation. 

7. Neither parent has since re-partnered.  The former family home was sold, with settlement occurring on 11 February 2008, and the proceeds have been distributed in accordance with a Deed of Agreement dated 13 April 2007 which formalised the division of their property.

8. The mother’s application for final orders was filed 5 May 2006. An amended application was filed 23 August 2007.The father’s response to the mother’s application for final orders was filed 2 June 2006 and an amended response was filed 11 September 2007.

MATERIAL RELIED UPON

1. Mr P, clinical psychologist, was jointly engaged by the parties. He prepared three reports relevant to these proceedings, dated 10 July 2006 (“first report”), 19 November 2006 (“second report”) and 19 November 2007 (“third report”). The affidavit of Mr P sworn 3 August 2006 annexes the first family report, and his affidavit sworn 21 November 2007 annexes the second and third family reports.

2. The mother relied upon the following documents that were filed on her behalf: 

   ·Her amended application for final orders affirmed 23 August 2007;

   ·Her affidavit sworn/affirmed 6 December 2007; and

   ·The affidavit of Ms R sworn/affirmed 22 November 2007.

3. The father relied upon the following documents that were filed on his behalf: 

   ·His amended response to final orders affirmed 7 September 2007;

   ·His affidavit affirmed 6 December 2007;

   ·His financial statement sworn 25 February 2008.

4. The parties filed a Joint Case Summary document, the mother filed a Summary of Argument and the father handed up his final submissions in writing in a document headed “Submissions on behalf of the father”.

5. The hearing occupied four days, beginning on 25 February 2008.  During the course of the trial a further application was made by the mother, whereby she sought to travel to The Netherlands with the children from 19 April until 17 May 2008, in order for her to attend her sister’s wedding.

6. I made orders dealing with both applications on 31 March 2008, and indicated that I would deliver my reasons later.  These are my reasons.

RELEVANT LEGAL PRINCIPLES

1. The High Court of Australia and Full Court of the Family Court of Australia have over many years considered the law to be applied in cases where one parent seeks to move to a location that will separate the other parent from the children of the relationship.  These types of cases, commonly referred to as ‘relocation cases,’ do not fall into a “special category” of cases under the Family Law Act 1975:  B and B: Family Law Reform Act (1997) FLC 92-775 at 84,176. This case must be considered in light of the amendments brought about by the Family Law Amendment (Shared Parental Responsibility) Act 2006.

2. Prior to these amendments, the Full Court (Nicholson CJ, Ellis and Coleman JJ) in A and A:  Relocation Approach (2000) FLC 93-035 had laid down the requisite three stages of analysis in response to the decision of the High Court in AMS v AMF; AIF v AMS (1999) 199 CLR 160.

3. The CCH Australia Limited headnote of the Full Court’s judgement in A and A provides an accurate summary of the applicable principles at 87,544 - 552 :

   In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas, the following principles apply:

   ·     The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.

   ·     A court cannot require the applicant for the child's relocation to demonstrate 'compelling reasons' for the relocation of a child's residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances.

   ·     It is necessary for a court to evaluate each of the proposals advanced by the parties.

   ·     A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child.   There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'.

   ·     The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.

   · It is necessary to follow the legislative directions espoused in s 60B and s 68F of the Family Law Act 1975 (Cth). The wording of s 68F(2) makes clear that the Court must consider the various matters set out in (a)-(l) of that sub-section.

   ·     The object and principles of s 60B provide guidance to a court's obligation to consider the matters in

   s 68F(2) that arise in the context of the particular case.

4. The Full Court held that reasons should contain the following three stages of analysis:

   1.A court will identify the relevant competing proposals;

   2.For each relevant s. 68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s.60B;

   ·As one, but only one, of the matters considered under s. 68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue.   Paragraph 9.63 of B and B: Family Law Reform Act 1995 (1997) FLC 92-755 is no longer an accurate statement of the law.

   ·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.

   ·Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.

   3.On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child's best interests are the paramount but not sole consideration.

1. Furthermore, the Full Court concluded that the process of evaluating the competing proposals should have regard to the following matters:

   a)None of the parties bears an onus:

   ·In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child.   That decision must be made having regard to the whole of the evidence relevant to the best interests of the child   

   (b)The importance of a party's right to freedom of movement:

   ·In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s 92 of the Constitution, where applicable.

   ·In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child's rights to regular contact with a parent no longer living permanently in close physical proximity.   If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.

   (c)Matters of weight should be explained:

   ·In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss 60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.

   ·In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.

2. Following the judgment of the High Court (Gummow and Callinan JJ, with Gleeson CJ and McHugh J agreeing) in U and U (2002) 211 CLR 238 at 260, the Full Court (Nicholson CJ, Kay and Monteith JJ) in D v SV (2003) FLC 93-137 at 78,280 adopted the proposition that the, “Court is not, on any view, bound by the proposals of the parties” but must give notice of any course that is a departure from those proposals.

3. In a later decision, the Full Court of this court identified in U v U a modification of the Full Court’s approach in such cases as A v A (set out above): KB & TC (2005) FLC 93-224 at paragraph 72

   We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A.  In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child. 

4. Following the enactment of the Family Law Amendment (Shared Parental Responsibility) Act 2006, the course outlined by the Full Court (Bryant CJ, Finn and Boland JJ) in Goode v Goode (2006) FLC 93-286 was applied to a relocation case by Dessau J in M and S (2007) FLC 93-313 at [81,386]. Her Honour’s decision was cited with approval by Kay J in Godfrey and Sanders 208 FLR 287 at 295 - 298 and adopted by a majority of the Full Court (Bryant CJ and Finn J) in Taylor and Barker (2007) FLC 93-345 at 81,916-917.

5. In Goode v Goode the Full Court concluded at 80,898 - 899:

   In summary, the amendments to Part VII have the following effect:

   1.Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child.  “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility.  That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)). 

   3.If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).

   4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)). 

   6.The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonably practicable” (s 65DAA(5)).

   7.The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)      the time the child spends with the parent includes both:

   (i)       days that fall on weekends and holidays; and

   (ii)      days that do not fall on weekends and holidays; and

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

   (i)       the child’s daily routine; and

   (ii)occasions and events that are of particular significance to the child; and

   (c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent. 

   8.Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC. 

   10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents.  These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.The child’s best interests remain the overriding consideration.

6. With respect to the intention of the amendments, Dessau J in M and S  held at 81,386:

   The legislature has not explicitly prohibited the relocation of a child away from one parent.  It has not introduced a specific presumption against it, nor an onus of proof on the moving party.  Nor has it suggested that just because the relationship between a child and parent will inevitably be affected by a move away, that in itself should preclude the court from permitting relocation.  Otherwise, given the inevitability of some change to the nature of the child/parent relationship when the structure of the time spent together is changed, virtually all requests for relocation would as a matter of course be disallowed.  Had that been the intention, the Act would have been amended accordingly

7. The Full Court in Goode v Goode had earlier remarked at [80,901]:

   … it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children

8. With respect to the nature of the relationship between parents and children, Kay J in Godfrey and Sanders remarked at 298:

   … what the legislation aspires to promote is a meaningful relationship, not an optimal relationship

9. Deputy Chief Justice Faulks in W and S [2006] FamCA 1094 at 26 added:

   It seems to me that what is meaningful in one context will not necessarily be meaningful in another and that the term must necessarily be a relative one.  It can not be the case that parents separated by vast distance can have, in a practical sense, the same sort of meaningful relationship with their children as do parents who live next door to each other. 

EACH PARTY’S PROPOSAL

1. The children have lived with the mother since separation.  Both parents have equal shared parental responsibility for the children.  Neither parent seeks to alter this arrangement.

2. Pursuant to the mother’s amended application for final orders affirmed 23 August 2007, the mother seeks permission to remove the children from Australia and relocate to The Netherlands on 1 August 2008, which will coincide with Y beginning primary school.  In the mother’s affidavit sworn 6 December 2007, at paragraph 31 she states:

   If I am permitted to re-locate to The Netherlands I plan to rent a suitable three bedroom house in [W].  This is the town where I grew up.  It is located about 20 kilometres from the capital, Amsterdam.  [The father] and I lived together in The Netherlands for two years between 1992 and 1994 and we spent our second year in [W].  Accordingly [the father] is familiar with the township and its amenities.  [W] is a village in the province of […] with a population of about 6,598.  It has all the facilities necessary to enable us to live comfortably and well including schools, medical services, shops and recreational facilities.

3. At paragraph 34, she goes on to say: 

   I have made enquiries though my family and friends in [W] and from information they have provided I believe I would have no difficulty in obtaining accommodation suitable to the needs of myself and the children. 

4. The mother’s proposal is that until 1 August 2008, the father spend time with the children each alternate weekend from 5:00pm Friday until 8:00am Monday provided that the father is personally able to care for the children.  In the event that he is not, she proposes that the children be returned to her residence at 6:00pm Sunday.  Furthermore, she proposes that the children continue to spend each Wednesday with their father, from 5:00pm until 7:30pm.   She also seeks that the children spend half of the school holidays with their father. 

5. The mother proposes that the children spend one period in Australia and one period in The Netherlands with the father.  Her proposals initially included not less than four weeks in Australia during their summer school holidays and not less than four weeks in The Netherlands at a time to be agreed upon between the parents.  In her affidavit sworn/affirmed 6 December 2007 at paragraph 82, the mother states that, “(t)he children can spend each evening and every weekend with him during this period” acknowledging that the children would be attending school during the father’s visit to The Netherlands.

6. With respect to communication with the father whilst in The Netherlands, the mother proposes that the children utilise various forms of communication: email, webcam and Skype^TM, and that she facilitate telephone communication between the children and the father on at least one occasion per week in addition to special occasions, such as the father’s birthday. 

7. The mother also proposes that both parents contribute to the costs of the children’s travel to Australia and the father’s travel to The Netherlands.  Written submissions made by the mother’s counsel’s particularised that the mother’s proposal would not involve any financial cost to the father as the sum of the airfare initially paid by the father would be credited against his Child Support payments. 

8. These written submissions also put forward the mother’s proposal that the father could reside in her home with the children during any time that he spends in The Netherlands, and she would vacate her home for any such period.

9. If she is permitted to relocate, the mother would be eligible for a number of payments from the Dutch government.  Furthermore, she intended to work on a part time basis, not commencing until February 2009 at the earliest.

10. With respect to the children’s education, the mother proposes that the children attend a public school namely WP School, a school which she attended as a child.  The school has approximately one hundred and seventy-three students enrolled.  It operates from 8:30am until 3:00pm.  English is taught from grade five and continues throughout secondary education.   

11. During the course of the trial, the mother amended her application to include the following:

    ·A security deposit with funds to be used for return travel from The Netherlands to Australia for one adult and the two children (see paragraph 41);

    ·Periods of face to face time to be spent between the children and the father to coincide with the summer season in each country (see paragraph 42);

    ·A realistic time frame for Skype^TM use; and

    ·Accommodation for the mother and children whilst in Australia.

12. At my direction, the parties disclosed their financial positions following the sale of their jointly owned home and the division of the proceeds between them. The mother has AUD$110,000, being the balance of her share from the proceeds of the sale.  She proposes to deposit AUD$60,000 into a high interest bearing account as security for travel.  Her counsel estimated the cost of the return airfares for one adult and two children in June or July at AUD$6,000 (at the time of trial). He then based his calculations on AUD$8,000 per return journey to take into account future increases.  The mother submitted that such a travel fund, including interest earned, would provide for ten years of travel by which time M would be sixteen and Y fourteen years of age. See also paragraph 98 below.

13. The mother accepted my suggestion to adjust her proposal regarding the two annual periods of time to be spent by the children and the father to coincide with the summer season in each country.  Accordingly, she proposes that the father spend time with the children in The Netherlands for up to four weeks during their (Netherlands) summer school holidays and two weeks in Australia over the Christmas period, reduced from four weeks because of the holiday limitations (two weeks at Christmas in The Netherlands).  The children would be accompanied by the mother whilst travelling to Australia for their time with the father in this country, and she would remain in Australia and return to The Netherlands with them.  Her evidence was that application would need to be made to the principal of the children’s school in The Netherlands to extend the children’s vacation time with the father at Christmas. Approval would be at the principal’s discretion. She was willing to make such an application.

14. During the father’s examination-in-chief, suitable timeframes for conversations with the children using Skype^TM  (or other forms of electronic voice contact) were established.  The parties agreed that the time difference between The Netherlands and eastern Australia, (Australian Eastern Standard Time) is eight hours during daylight savings time and ten hours during standard time.  The children could therefore use Skype^TM before school at 8:00am to 8:30am in The Netherlands, which corresponds with 4:00pm to 4:30pm during daylight saving time in Australia, and 6:00pm to 6:30pm during standard time. That is immediately after the father has finished work for the day.  Additionally, the children would be available for approximately forty minutes over their lunch break, between 12:00 noon and 1:00pm.  This would correspond to 8:00pm during daylight saving time and 10:00pm during standard time in Australia.

15. During the mother’s oral evidence she particularised her plans for accommodation whilst travelling to Australia with the children if she was living in The Netherlands.  The mother proposes to stay with the paternal grandfather during those periods.  The father did not assert that this was an unlikely scenario and the paternal grandfather was not called to give evidence by either party during the trial.

16. In the event that the mother was not permitted to relocate with the children, she sought permission to remove the children from Australia once a year for up to four weeks (later amended to 30 days), to enable her to travel to The Netherlands with the children.  This proposal is broadly consistent with a request made by the mother by letter dated 19 February 2007 (Annexure SM5 to the mother’s affidavit sworn 6 December 2007). In that letter, she sought the husband’s consent to travel to The Netherlands from 12 June 2007 until 20 July 2007.  Her request was accompanied by a proposed itinerary and included provisions for M’s schooling, additional time with the children to compensate the father for missed time with them, security for travel, a request for passport release and details of the purpose and benefits of the travel.  The father did not agree to this request and opposed the order sought by the mother for permission to take the children to The Netherlands once per year if her primary application was unsuccessful.

17. In his amended response to an application for final orders affirmed 7 August 2007, the father opposed the mother’s proposal to relocate to The Netherlands with the children.  He sought that the children spend time with him each alternate weekend from 5:00pm Friday until 9:00am Monday, in addition to Wednesday evenings from 5:00pm until 7:30pm until such time as Y commences school.  In the course of the hearing, the father amended his proposal for the children to spend time with him each second weekend to the effect that he would return the children to the mother’s care at 6:30pm Sunday and not at 9:00am Monday, having regard to his work commitments.  Furthermore, the father proposed that he spend half of each of the school holidays and long Christmas vacation with the children.   

18. The father put his case on the basis that he was unwilling to travel to The Netherlands if the mother was permitted to relocate.  Furthermore, he submitted that such travel would be impracticable for him, as his current leave entitlements are minimal and the associated costs would not be manageable.  In his financial statement sworn 25 February 2008, the father states that his weekly wages before tax amount to $1050.00.  The father was given leave to adduce evidence from his employer and a written outline of that evidence was provided (Exhibit F2).  His employer Mr A later gave oral evidence by telephone. Mr A is the proprietor of C Pty Ltd. The company installs flooring and imports the material for this application. The company installs the flooring for outdoor facilities. The father’s work therefore involves attending at different locations for each job, sometimes requiring travel to rural Victoria, and occasionally, interstate.

1. Mr A spoke highly of the father and the quality of his work.  He described the father as a reliable and committed employee.  He gave evidence that the father had been employed by C Pty Ltd since October 2007. During his oral evidence, the father stated that since his bout of depression, he prefers to work outdoors.  Due to the seasonal nature of his work, he is employed as a casual worker but currently undertakes full time hours. Mr A deposed that the father’s work hours are from 6:30am/7:00am until 3:00pm on weekdays. 

2. As a result of the father’s casual status, he is entitled to a casual pay loading but no annual leave. C Pty Ltd closes each year for ten days over the Christmas and New Year period and the father is required to take leave at that time.  At present, any other leave that the father takes is unpaid.   His position is to be reviewed in August 2008, with a view to commencing work on a full time basis.  If successful, the father will be entitled to twenty days annual leave, ten of which will have to be taken during the Christmas and New Year period.

3. Mr A indicated that although possible, leave of more than ten days during the middle of the year would need to be negotiated and agreed between the father and the company.  Mr A was clear that such extended leave could not be guaranteed on a long term basis, as it would disadvantage the company by not having the father available when needed.  He did however indicate that adequate notice of such a request would be a great advantage to the father, if one was made in the future.  Furthermore, he stated that the father has not made any requests for flexible starting times or leave.

4. I will now turn to the considerations raised under s 65DAA.

EQUAL TIME OR SUBSTANTIAL AND SIGNIFICANT TIME (S 65DAA)

1. Pursuant to paragraph 9 of the orders made by Senior Registrar FitzGibbon on 28 November 2006, the parties share equal parental responsibility for making major decisions concerning the long-term care, welfare and development of the children. Neither party sought to change the equal sharing of parental responsibility.  Irrespective of the issue of relocation, it is common ground between the parents that the children are to live with their mother and spend time with their father.  Consideration of the children spending equal time with each parent under s 65DAA(1) in this case, as in many others that come before the court, requires no more than to find, as I do, that neither parent seeks such an order, and the evidence makes clear that the father’s employment and other circumstances would effectively prevent him from undertaking such a regime. 

2. Section 65DAA(2) requires that I must now consider the children spending substantial or significant time with the father.  The meaning of substantial and significant time is defined in s 65DAA(3) and ‘reasonably practicable’, in s 65DAA(5). If the mother and the children remain in Australia, both parents propose an arrangement that is broadly in line with the arrangements in place at the time of trial, save only for the mother’s application to take the children to The Netherlands for a period of 30 days per year. Neither party argued that the existing arrangement – even if modified as the mother seeks - does not provide substantial and significant time for so long as the children remain living in Australia.

3. It was certainly the father’s case, however, that significant and substantial time with the children would not be available if the mother and the children relocated to The Netherlands. His objection was more fundamental, however, as will appear as I move to consider the objects and underlying principles under s 60B in addition to the primary and additional factors in s 60CC.

OBJECTS AND PRINCIPLES UNDER PART VII

1. I will now turn to the objects and principles relevant to the current proceedings under s 60B.

2. Section 60B(1) sets out the objects of Part VII to be:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. The principles underlying those objects are set out in s 60B(2):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. The father’s position since the outset of these proceedings has been that the relationship that he enjoys with his children could not be preserved if the mother and the children were living in The Netherlands.    In light of section 60B(1)(a) and s 60B(2)(b), the concern raised by the father needs to be weighed carefully against the benefits of the mother’s proposal.

FACTORS TO BE CONSIDERED UNDER S. 60CC

1. In order to determine the best interests of the children, which is the paramount consideration pursuant to s 60CA, I will now turn to the primary considerations set out in s 60CC(2), the additional considerations under s 60CC(3), in addition to considering how each parent has fulfilled or failed in their parental responsibilities under s 60CC(4).

PRIMARY CONSIDERATIONS (s 60CC(2))

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

1. I am satisfied that the children currently enjoy a meaningful relationship with both parents.  Despite the difficulties (between the parents) experienced since their separation, it is clear that the children love their parents and that the parents love their children.  In Mr P’s third report dated 19 November 2007 he states:

   From my perspective however the children very clearly have a strong and secure attachment to both parents, albeit that they also interact with their mother as though she is their primary carer and there was a flavour of familiarity with her that was unmistakable.  However it should clearly be emphasised that the children related extremely well with their father.

2. In his first report, Mr P stated at p 12 :

   From my perspective, probably the most important consideration is the developmental context.  With the chronological ages of 5 and 2½ years respectively, the children are still very dependent upon both parents, and them developing a strong relationship with both will be dependent upon regular, consistent and frequent contact.  This is especially true for [Y], who still requires very regular contact with her father in order to ensure that he becomes psychologically prominent in her life, and given her age and stage; and the limitations of her cognitive capacities, [the father] being out of her life for long periods will make it extremely difficult for her to maintain a psychological attachment to, let alone a memory of him.  Whilst there may ultimately be good reasons for relocation, from a child developmental perspective, and with regards to [Y] alone, it would be significantly better to delay the relocation for at least another 2 years, as from that time, she will be in a better developmental phase to be better able to maintain a relationship with her father, in the case of physical absence from him.

   …

   On the basis of the information available, it is difficult to foresee how relocation at this stage in the children’s lives could be of benefit to them.  It is easier to foreshadow how relocation runs the risk of future difficulty, if only from the perspective of limiting the opportunity for the establishment of real interaction with both parents.

3. I am mindful that a long distance relationship, such as that proposed by the mother, with longer but less frequent periods of time to be spent between the children and the father, inevitably results in a relationship that is different from the relationship that the children currently enjoy which involves regular face to face contact.  The likely impact of relocation on the children’s relationship with the father is a central issue that I must consider.  In this respect, Mr P observed in his first report at p 13:

   The inescapable reality however is that relocating both children, either now or in the future, will very significantly compromise their relationship with their father, will prevent the establishment of the level of intimate interaction that can only be born from regular, persistent and frequent contact and interaction and in my view, it is not possible to sustain that kind of intimate relationship with parents when there is such a geographic distance and such limited opportunity for contact.

4. Also of concern in this case is the impact of the parents’ ongoing conflict and inability to communicate on M.  Mr P described M as feeling torn between his parents.  Mr P in his second report released on 19 November 2006 provides a valuable insight into M’s perception:

   He understands that his parents are not friends, that they do not like each other, that they do not talk and that they do not agree.  He recognizes that they are in disagreement about the issue of overnight contact and their indecisiveness becomes paralysing to him. 

5. In the first paragraph of this report (his second) Mr P sets out the history of overnight contact between the father and the children:

   A report in this matter was previously completed dated 10 July 2006. Since then, the two children of the relationship … have continued to live with their mother and see their father each weekend, that being overnight Friday one weekend, and Friday and Saturday and Sunday but not overnight the second weekend. Orders were made for the introduction of overnight contact, and even though this occurred on one occasion on 14 July 2006, thereafter [M] became distressed, and overnight contact ceased between 21 July 2006 and 8 September 2006, but was reintroduced one night in each fourteen night cycle, starting 8 September 2006.

6. In his oral evidence, Mr P noted that when the mother initially brought the application (to relocate) in June 2006, it would have been extremely difficult to maintain a meaningful relationship between the children and the father, given that M was nearly five years of age and Y merely one and a half years old.  The transcript of Mr P’s evidence on 27 February 2008 at page 6 reads:

   … it would obviously be better, from my perspective, if the relocation occurred in two years rather than now, and it would be better if it occurred in four years rather than in two years. The longer children have a relationship with their parents the better it is. The significance of two years of age is that at 5 the child hasn't developed the basic internal representation of his or her parents, and so the ability to then transfer that relationship is extremely difficult.

7. During his evidence, Mr P discussed that need for face to face contact for these children considering their young age.  With respect to the appropriate age for the relocation, Mr P stated (transcript at pp 12-13):

   There is no magical age. If all things are equal it's better to have your parents in your life than not have your parents in your life. If you're 15 and you're living halfway around the world you can still have your parents very actively involved in your life and very constructively involved. The linchpin to all of that, however, is having parents who get on. I've seen families, your Honour, who will arrange for the other parent to come and live in the house for a month so that the children can spend time with that parent, or who vacate their family homes with their new partner so that the children can spend time with the father. That's not going to happen here.

8. Unbeknownst to Mr P, the mother, in the event that she was permitted to relocate, offered to vacate her residence in The Netherlands to the father during periods when the father was in The Netherlands.  This would allow the father to interact with the children in an environment in which they feel at ease.  During his oral evidence, the father rejected this offer, stating the he would feel awkward and uncomfortable.  He said that if forced to travel The Netherlands, he would seek alternate accommodation at his own cost.  He reiterated that such costs would be a financial burden. 

9. The mother is consistent in her position that she has and will continue to promote the children’s meaningful relationship with the father, regardless of whether she relocates to The Netherlands or remains in Australia.  The father adamantly challenges this.  He asserts that the mother is prepared to elevate her needs above his and those of the children. In written submissions prepared by the father’s counsel he asserts:

   It is the father’s position that the Mother does not view the relationship between the Father and the children as a significant priority in the children’s lives, or as important as her relationship with the children. 

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

10. The considerations in (b) are not in issue in the current proceedings.

11. In the context of this case, in my consideration of the only relevant primary consideration being that set out in s 60CC(2)(a), I find that the evidence of Mr P points to the ongoing need for the children to have ongoing regular face to face time with their father in order to maintain a significant and meaningful relationship with him. This is partly because of the children’s ages and stages of development, and partly because of the animosity between the parents. But I must now consider the additional considerations, which could in some circumstances outweigh the benefits of the primary considerations.

12. I will now consider in turn the relevant additional considerations under section 60CC(3).

ADDITIONAL CONSIDERATIONS (s 60CC(3))

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

1. Since his first report, Mr P has had the benefit of spending time with M on two further occasions.  In his first report he described M in glowing terms as a “happy, confident and engaging boy.” M was quite forthcoming with information concerning his parents’ separation.  He was adamant that the separation had occurred because his parents no longer liked each other.  Prior to commencing overnight contact with his father, M stated:

   I really like my dad and I like going to his house … one day I will have sleeps there and it will be good … I’ll have my toys there and my dad and my bed and I’ll get to see my dad.

2. M is aware of the ongoing dispute between his parents and his mother’s desire to relocate The Netherlands.  He knows that this desire is strong and that it has been the cause of conflict between his parents for some time.  He has had the good fortune of travelling to The Netherlands with his mother on three occasions.  He has a basic understanding of what life would be like for him if he lived in The Netherlands.  With respect to M’s views on the issue of relocation, Mr P’s third report states:

   He was ambivalent around the issue of relocation, on the one hand stating that he thought that he would probably stay in Australia, but that it would also be good to live in Holland.

3. M realises that relocation to The Netherlands would mean that he would have less contact with his father. Due his young age and basic level of understanding however, I consider that he is unable to grasp the complexities and practical implications that such relocation would have on his relationship with his father. This view is supported by the following extract from Mr P’s third report:

   [M] however also stated that he really didn’t know what it would be like to relocate, how it would be to not see his father or how he would feel not seeing him, on a regular basis. 

4. Due to Y’s young age, no evidence was presented about her relevant views. I find that M’s views are ambivalent and having regard to his age and limited capacity to comprehend the effects of moving to live in Holland on his relationship with his father, no weight should be given to his view “that it would also be good to live in Holland” when evaluating the parties’ competing proposals.

(b)the nature of the relationship of the child with:

(i)     each of the child’s parents; and

(ii)   other persons (including any grandparent or other relative of the child);

1. The children have lived with the mother since the parents’ separation in November 2005.  They perceive her to be their primary care giver and relate to her exceptionally well.  In his first report, Mr P remarks:

   Both children were very focused and very centred around her, that is, they orbited around her and maintained a close physical connection. [The mother] maintained a very active level of conversation and physical interaction with the children, and engaged with them in a manner that invited a high level of participation and reciprocation from them. 

2. The children also have a loving relationship with the father.  They have spent regular time with him since the parents’ separation which has gradually increased to include overnight contact since July 2006.  At first, M experienced some difficulty with this. I will return to that issue later.  In his first report Mr P observed:

   It was significant that both children made the transition from their father to their mother and back without difficulty, and even though they definitely wanted to see their mother, they were happy and relaxed upon their return, played confidently, easily and comfortably with their father, maintained a physical closeness, were overtly affectionate, actively sought his attention and affection, and received his affection effortlessly.…

3. The children also enjoy a close relationship with the maternal grandmother and the extended maternal family who reside in The Netherlands.  The maternal grandmother and maternal aunt have visited Australia on a number of occasions.  The maternal grandmother was present, supporting her daughter, throughout the trial. As set out earlier, the children have also travelled to The Netherlands.  

4. The children’s relationship with the paternal grandparents, who are separated, has been impacted by the father’s fractured relationship with his own parents.  It is common ground that the father does not have a good relationship with the paternal grandmother.  As a result, prior to the parents’ separation the children had little contact with the paternal grandmother who resides in country Victoria.  The mother asserts in her affidavit sworn 6 December 2007 that she contacted the paternal grandmother in December 2006 in an attempt to reconcile the relationship between them. Since that time, the children have enjoyed regular communication with the paternal grandmother by telephone and on at least one occasion, overnight contact at the paternal grandmother’s residence. 

5. I was informed by counsel (without objection) that a male person who was present in court on every day of the trial was the paternal grandfather but as stated in paragraph 45, above, he was not called by either party to give evidence. The evidence is that the father and his father experienced a major falling out in February 2007, and they have not spoken since that time.  It is common ground that prior to the parents’ separation, the paternal grandfather was a regular visitor at the parents’ home.  During his oral evidence, the father indicated that he did not hinder the children’s relationship with the paternal grandfather.  I am satisfied however that he does not facilitate or encourage the children’s relationship with the paternal grandfather.  During her oral evidence, the mother asserted that she continues to facilitate and maintain the relationship between the children and the paternal grandfather, despite the father’s issues with him.  She vowed to continue this, even if she was permitted to relocate to The Netherlands.  This is consistent with her proposal that if permitted to relocate, she would stay with the paternal grandfather during subsequent periods spent by her in Australia whilst the children were spending time with the father..

1. Significantly for consideration of this additional matter, I find that the father’s relationship with the children continues to function in the manner described in Mr P’s first report. This is reiterated in his third report:

   However it should be clearly emphasized that the children related extremely well with their father. They obviously enjoyed the time with him, they were overtly spontaneously affectionate, they maintained a great level of physical contact and comfortable interaction, there was a warm and flowing dialogue between them throughout, they played comfortable and confidently together but the same was obviously true of their interaction with their mother.

   The nature of all relevant relationships under this sub-paragraph is positive and beneficial for the children.

   (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

2. Unfortunately, it is common ground that these parents do not parent cooperatively.  This theme is apparent throughout all of Mr P’s reports.   Mr P states in his second report:

   Unfortunately, tensions between [the mother] and [the father] remain high.  Predictably, with the passage of time and with the advent of litigation, their communication has deteriorated significantly. 

3. The father’s position is that that the mother does not truly appreciate or respect his importance in the children’s lives.  He believes that the mother has minimised the time spent between him and the children in order to bolster her application for relocation.  He asserts that this negative attitude towards him and the mother’s failure to prioritise the relationship is evidenced by her failure to withdraw her application for final orders sworn 5 May 2006, despite Mr P’s recommendation (in his first report) that the relocation be delayed for two years.

4. He is also critical of a period of travel that the mother undertook with the children to The Netherlands in May 2005.  The travel was initially for a four week period; however the mother called the father after she had arrived in The Netherlands requesting his permission to extend their time away.  The father gave oral evidence that in essence he had no choice but to consent.  The mother and children spent ten and a half weeks in The Netherlands, and as a result, the father was unable to celebrate M’s fourth birthday with the child.  The mother deposes that she called the father once a week during their absence, and that the father did not call during that time.  I accept her evidence.

5. During his oral evidence Mr P was clear in his belief about the mother’s willingness and ability to foster the relationship between the children and the father, even if she were permitted to relocate.  In response to Mr Mort, he stated that he did not, “believe that she intends to stop them having a relationship with their father”.

6. The father also asserts that although the mother complies with Court orders she has been “hostile and resistant” with respect to the father’s involvement in the children’s day-to-day care and development.  The father also criticizes the mother for being inflexible in respect of varying Court orders. 

7. The mother disputes this and claims that the father’s account is unfair.  She deposes that she has always encouraged the relationship between the children and the father, and points to the children’s strong and loving relationship with their father as ample evidence.  Mr P’s oral evidence on this point was consistent with the mother’s position:

   Ultimately, the best way to judge someone's future behaviour is to at least factor in their past behaviour, and I think in fairness the counterbalance to that is the children have seen their dad, they have seen him regularly, they have developed a good relationship with him.

8. The mother’s willingness to facilitate, and encourage, a close and continuing relationship between the children and the father is an important factor for consideration because it is a major part of the father’s concern that relocation would not be in the children’s best interests.  The father’s claim that the mother undervalues his relationship with the children was a major focus in Mr P’s first report.  Written submissions by the father’s counsel state:

   … the father remains suspicious of the mother’s motivations in terms of her overall desire to relocate and signalled certain transparencies.

9. It is apparent that the father’s position is partly fuelled by the parents’ ongoing conflict.  The impact that this has on the children is another important matter.  In Mr P’s second report, he recommends that the parties seek out some form of joint counselling.  The parents interpreted his words quite differently.  That recommendation read as follows:  

   Currently, [the mother] and [the father] have no mechanism available to them to resolve their conflict or build on parental communication other than through their solicitors … [the father] and [the mother] may well choose to pursue individual psychological treatment in order to help them cope better, however what their children need is for them together to be able to function better as parents, to establish some kind of a working parenting contract …

10. During his oral evidence Mr P was quite adamant that the parents’ high conflict would continue regardless of the relocation issue.  Furthermore, he acknowledged that the pending relocation issue and current court proceedings, have added to the parents’ communication difficulties.  He also commented on the impact that such conflict could have on the children.  In his evidence Mr P said:

    However, it's not just the conflict, it's the embroilment of the children in the conflict. Parents can have enormous amounts of conflict and encapsulate that conflict, and not expose their children to it, and their children will be no better or worse off for them having done so.  If, however, they're embroiled in the conflict, it's in front of them and they actively participate in that conflict then the long-term implications are very significant. So it's not just the conflict per se, but rather the embroilment of the children in that conflict.

11. When the parents do communicate with each other it is by limited means.  It is common ground the father instigated the use of the communication book in order to minimize the parents’ conflict in the presence of the children.  The only other means of communication adopted by the parents has been mobile telephone text messages. 

12. The father has also been critical of the mother’s proposal for failing to suggest modes of communication other then webcam, Skype^TM and email.  Written submissions by the father’s counsel put forward alternatives such as videos, DVDs, letters tapes and drawings. 

13. My assessment of the mother is that she is genuinely willing to foster the children’s relationship with their father. She has the ability to do this. The question remains, however, as to whether this willingness, even if exercised to the fullest extent in the circumstances that would prevail if relocation takes place would provide for the children the benefit of a meaningful relationship with their father. Mr P’s evidence expresses serious doubts that it would.

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child 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. Since separation, both children have experienced difficulty in dealing with the state of their parents’ relationship and the new ‘spend time with’ arrangements with their father. 

2. Registrar Lethbridge made consent orders on 6 June 2006 introducing overnight contact on each alternate weekend.  This occurred successfully for both children on 14 July 2006.  In his second report. Mr P described the events that followed:

   ... thereafter [M] became distressed, and overnight contact ceased between 21 July 2006 and 8 September 2006, but was reintroduced one night in each fourteen-night cycle, starting 8 September 2006.

3. Mr P goes on to state (at p 2):

   In this context, the reluctance by [M] to have overnight contact takes on added significance.  [M] told me that he relates well with his parents, enjoys the time spent with both and enjoys the time spent with his father.  He also confirmed that he was looking forward to having one more overnight contact and that he previously enjoyed it, but then decided he no longer wished to do so.  [M] however also told me that he expects that overnight contact will commence in the foreseeable future, that he is looking forward to this, but is also apprehensive.  Importantly, he drew for me a picture and told the story in which the child of the parents in his story had overnight contact with his father because his parents discussed and decided upon this decision, and the boy was then at ease with his parents having made that decision on his behalf and were in full agreement about the decision.  He added that he did not know whether his parents had agreed to him having overnight contact or not. 

4. If the mother and the children are living in The Netherlands, the time that the children will spend with their father will be less frequent than under the current arrangement.  It is the mother’s proposal however that the children will spend substantial periods of time with the father in The Netherlands and in Australia, accompanied by her.  Consistent with the mother’s past behaviour, I am satisfied that she will ensure that the children spend time with their paternal grandparents whilst in Australia. Whilst in The Netherlands, the children will be able to communicate with their father, but they will not, on those occasions, be able to demonstrate spontaneous physical interaction that was evidenced when Mr P saw them together: they can not respond physically in the course of a telephone call.

5. In his affidavit sworn 6 December 2007 at paragraph 37 the father refers to a period around October 2007 when he noted that Y was experiencing “separation anxiety” at the start of the time she was to spend with him.

6. In cross-examination by counsel for the father about the mother’s proposal for the children to have two blocks of four weeks with their father either in The Netherlands or Australia, Mr P said:

   How will they manage that and what will it be like to be out of their mother’s care for that long period of time as well? Inevitably that’s one of the difficulties with this sort of relocation given the ages of the children. Four weeks is a very long [time] to be out of the care of one parent. It’s also a long time to be in the care of another parent with whom they may not have been for six months. If they do have a good relationship with that parent whilst visiting, what does it then mean about their return back to the care of their mother and how will they deal with that. It is typically a far better arrangement for much older children.

7. Mr Mort for the father then referred Mr P to his second report and his discussion about M’s separation anxiety difficulties then and was asked if there was a risk that, if M was living in The Netherlands and did not see his father for a period of time, that previous anxiety could be aggravated again. Mr P answered:

   It’s been a while since I’ve seen [M] so I don’t want to make too many objective statements. …. The resiliency factor in the children is a major factor that determines the success or lack thereof of any scheduled visitation. It’s a long way to go and I think it’s a long time for him to be out of the care of his mum if he hasn’t seen his dad for such a long period of time. It’s not going to be easy or safe for him to make that transition, and if he does and if it is secure and if he has a good time, it will likely be then difficult for him to return back to his mum and say goodbye to his dad….

8. Under this subparagraph, I find that the children may experience difficulties in being away from their mother for the periods proposed by her, and even if they cope with the transition to the father’s care for such a period, they may then experience problems when leaving him to return to their mother. There is therefore an element of risk in allowing the relocation that M in particular may have difficulty in adjusting to the separation from his mother and then from his father at the commencement and conclusion of the proposed periods. There is no reason to suppose that Y might not also experience similar problems with separating from each parent.

(e)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. If the mother and the children are living in The Netherlands, the expense of the children spending time with the father is an important factor.  In response to my suggestion for the provision of a security deposit for costs of travel, the mother proposed that she would deposit AUD$60,000 into a high interest bearing account as security for travel.  This sum would allow for ten years of return travel for one adult and two children from The Netherlands to Australia.  The mother further asserts that the father will not bear any financial costs associated with his travel to The Netherlands to visit the children as she is willing to credit his airfare against child support and provide him with accommodation. Even if expense is not a great problem, however, the father’s employment gives rise to a number of difficulties.

2. During his oral evidence, the father was adamant that he would not and could not travel to The Netherlands.  When pressed by Mr Dickson, he conceded that he could travel to The Netherlands in the event that his employer approved a period of extended leave in June or July. The father’s employer, Mr A, was asked if it was possible for the father to have two weeks leave mid-year (as well as over the Christmas period). Mr A said it was not impossible but that an extended period, greater than two weeks, would be difficult. When asked what his response would be to a request by the father to four weeks leave without pay (in addition to four weeks leave if he was a permanent employee), Mr A said that they employ someone to be there, it would be a disadvantage to them (the company) and unfavourable to the father. Mr A said that no employee had ever asked him for more than two weeks off at a time. Mr A said that the father had worked his required hours, had not let his personal circumstances interfere with his employment and had only ever asked for one week off and that was to attend this trial.

3. In the event that the mother is permitted to relocate, it is by no means clear that the father’s employment will enable him to spend the times proposed by the mother for him to spend time with the children during the school holiday periods. 

4. A practical difficulty arises in the context of the mother’s proposals for the children to communicate with their father if they are living in Holland. Here I refer to the ages of the children and their ability to communicate with the father using the electronic modes of communication set out in the mother’s proposal.  During his oral evidence, Mr P expressed concern about the children’s stage of development with respect to their use of Skype^TM, webcam, telephone and email. He said at p 11:

   …older children can sustain a very close relationship with the parent who lives overseas because psychologically they’re not as dependent upon either parent and they’re able to make their relationship with, if you like, the absent parent, still sustained through telephone contact, through Skype, through email … It’s going to be very difficult for the children of this age to do that.

   I find that these are practical difficulties of considerable substance that arise in consideration of the mother’s proposals, being the father’s limited availability of holiday time to spend with the children and the children’s limited capacity to enjoy effective communication with their father by the means proposed by the mother.

   (f)the capacity of:

   (i)     each of the child’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;

5. A matter that calls for consideration under this sub-paragraph, if the children are living in The Netherlands, is the mother’s ability to sustain and develop the children’s English language. This is a matter of fundamental importance.  Having regard to the children’s young age, there is a risk of associated English language problems, once they are immersed in the Dutch language, despite regular contact with the father through electronic means.  At paragraph 55 of the father’s affidavit sworn 6 December 2007 he states:

   I believe that both children if they lived in The Netherlands, would very quickly lose their ability to speak English. …..[Y] is nearly four years of age and her verbal language skills are only just developing and [M] is in prep year at primary school and his language skills are improving.  [M] and [Y] are accustomed to the Mother speaking Dutch to them at home, but English remains their first language.  I understand that the Mother had said that she would speak English to the children at home, but the reality of the situation is that Dutch would quickly become the children’s primary language in the circumstances where the children are so young.  I speak very little Dutch.

6. The mother gave evidence that English is not taught at school in The Netherlands until Grade 5 – still some three years away for M. She stated that there is a possibility of the children attending an independent English school but no further detail was provided by the mother and it did not form part of her proposals. She stated that a number of English language TV channels are received in the area where the children would reside with her.

7. When this issue was put to Mr P during his oral evidence, he said:

   It's not going to be a problem if her mother chooses to speak with her in English at home. Many of us grew up in a bilingual family and I suspect that [the mother] speaks to the children in Dutch now. If I recall, I think she did when I saw them. So it would really be incumbent upon her to do the same in order to be able to create a link and provide an opportunity for the children to be able to speak to the father.  It might even in fact be quite difficult for [M] to sustain English. It's an interesting question actually. The safe answer is that if the children went to The Netherlands that their mother would have to speak to them in English in order for them to maintain their English skills so that they can continue to speak with their dad.

8. Mr P said that he expected the mother’s intentions about speaking English to the children were bona fide but he agreed that it was inevitable that the children would start speaking Dutch, where the mother speaks Dutch to her mother, sisters and friends and the children were in an environment where they were surrounded by Dutch speaking people. I consider that the children’s emotional and intellectual needs include having the ongoing capacity to speak English with their father. Whilst I consider that the mother, if living with the children in The Netherlands, would encourage the children to maintain their English by speaking to them in English, I consider that there is a risk that being immersed in a Dutch speaking environment might make them less ‘at home’ with English and therefore impose an additional level of difficulty when communicating with their father by electronic means.

9. Additionally, I should refer to the father’s ability to provide the children with necessary emotional support in light of his relatively recent bout of depression.  Since presenting with symptoms of depression in late 2003, the father undertook appropriate treatment, including anti-depressant medication following his diagnosis in November 2005.

1. In support of the father’s position that the mother does not view his relationship with the children as a priority, the father put forward a number of examples, all of which took place in 2006. These include:

   ·The mother terminating time spent between the children and the father on Wednesday evenings in February 2006;

   ·The mother declining the father’s proposal of overnight contact in March 2006;

   ·The mother failing to facilitate time spent between the children and the father in Easter 2006;

   ·The mother failing to facilitate time spent between the children and the father on the father’s birthday in 2006; and

   ·The mother failing to effectively communicate with the father with respect to an insect bite that Y suffered in November 2006.

2. It appears that shortly after the mother indicated to the father that reconciliation of their relationship was not possible, the time the father was spending with the children on Wednesday evenings ceased.  This time consisted of dinner at the mother’s residence which the father attended at her invitation.  During the mother’s oral evidence, she conceded that she decided that Wednesday evenings should cease.  At paragraph 66 of her affidavit sworn 6 December 2007, however, she claimed that, “the Wednesday evening stopped at [the father’s] request.”  The mother deposed during her evidence that Wednesday evenings became too difficult for her to cope with in light of their recent separation. Once it became clear that there was no prospect of reconciliation, I find that both parents may well have found the Wednesday evening arrangement uncomfortable, to say the least, and do not find that its cessation should lead to an adverse finding about either parent.

3. Shortly after March 2006, the father proposed that the children spend overnight contact with him.  The mother explains in paragraph 68 of her affidavit that she did not agree to this proposal and suggested that overnight time with the children be introduced gradually “because of [the father’s] health at the time, (he having suffered from depression) the ages of the children, the fact that they had not stayed away from me overnight before, the fact that [the father] had not obtained suitable bedding for the children at the time and because the children had not spent much time alone with [the father] until then”. I consider that the mother’s refusal of overnight time with the children in March 2006 was reasonable and in the children’s best interest at that time.

4. The mother agreed during cross examination that she did not arrange contact between the father and the children on the father’s birthday in 2006 because he did not ask her to but in hindsight she thought she had probably done the wrong thing by not initiating such contact herself. The father conceded that he had gone too far in his affidavit at paragraph 16 when he said that the mother had “refused” to allow him to see the children on his birthday. It was common ground that on his birthday the father had worked during the day; the mother had left presents from the children on the father’s doorstep; and the father returned the presents a few days later. The father conceded that this was inappropriate, and may have occurred in the presence of the children

5. The mother also said that she did not refuse the father time with the children over Easter 2006.  In evidence the mother said that she knew that the father was going away for Easter but she understood that he would see the children on Easter Monday, but he did not. In cross-examination the mother was asked why she did not take the children to the father on the Easter Monday. She repeated that although she was aware that the father should be seeing the children on that day she had heard him say to the children that he would see them in a fortnight (which was past Easter Monday) so she thought he would not be at the usual changeover place and he did not contact her. There was a dispute as to whether there was a special arrangement in place regarding change over, particularly drop off, which I am unable to decide on the parties’ evidence.

6. In his second report dated 19 November 2006 at p 4 Mr P describes the parents as having “a fragmented and dysfunctional relationship”. On p 3 he sets out in detail an incident which exemplifies this:

   The dynamic of their relationship, which is now well entrenched, was best exemplified by the appalling circumstances that they allowed to develop around a recent incident when [Y] required hospital treatment. [Y] had a significant allergic reaction to an insect bite. [The mother] took [Y] to the local medical clinic at [L]. The doctor there recommended that she attend the emergency department at the […] Hospital. According to [the mother], the reaction displayed by [Y] was quite severe and required immediate medical attention. She left a message on [the father’s] mobile telephone. [The father], who was at a meeting about [M’s] schooling next year, had left his telephone at home to be recharged and did not receive the message.

   [Y] was treated with antibiotics and the medical advice was that she should see her local doctor forty-eight hours later. According to Ms [the mother], because the children would be in the care of their father at that time, she enquired of the treating doctor at the hospital whether she could have an earlier medical review, but the doctor very strongly encouraged that there be a forty eight hour lapse of time to allow the antibiotics to work.

   What subsequently ensued between [the mother] and [the father] around this issue clearly brings into focus the extent to which their parental conflict and commitment to their children has been fractured by conflict. There was conflict about how [the mother] tried to contact [the father]. He felt she should have persevered, but [the mother] told me that she feels anxious and apprehensive about any telephone contact with him because of the reception that she receives. [The father] was critical of the decision by [the mother] to take the children to the medical clinic at [L] as compared to his local doctor at [H], whom he claims was the family’s treating practitioner. According to [the mother], because they live in [G], [L] is significantly closer and makes more sense. This subsequently became a source of conflict between them. Finally there was conflict about whether [the mother] should have made an appointment for [Y] on [the father’s] time or whether this responsibility should have fallen to him. This issue is an extension of similar conflict about whether [M] should be attending birthday parties when with his father, and had been the subject of conflict over [the father’s] request for makeup contact.

7. Following his summary of the incident surrounding Y’s treatment for an insect bite Mr P described (p 4 of his second report) the parent’s relationship as follows:

   The anecdotes suggest that there has been a significant shift away from the best interests of the children, to the parents and their conflict.  Whist [the mother] and [the father] continue to adopt this stance, they make a mockery of the best interests principles, and instead focus more upon themselves, their wishes, their feelings of hurt and abandonment.  Consequently, their relationship becomes both combative and competitive, and then inevitably more polarized. 

8. There is nothing in Mr P’s third report to suggest that the parties’ relationship had improved. His opinion was that the parties would have been in conflict if the relocation issue had not arisen and would be in high conflict in the future.

9. The father acknowledged that the mother is a good mother and that communications between them had improved on exchanging “day to day” information using the communication book but he said that he did not trust the transparency of the mother’s actions in terms of the bigger picture – he did not think she was as genuine as she would like the court to think.

(c) has fulfilled, or failed to fulfil, the parents’ obligation to maintain the child.

Father’s child support payments and other direct payments.

1. The father currently contributes to the children’s support and has been paying Child Support since the separation.  He deposes at paragraph 46 of his affidavit sworn 6 December 2007:

   It is important to me that I be able to contribute directly to the children’s needs.

2. Based on the father’s taxable income in 2004/2005 of $20,529.00, the Child Support Agency assessed his annual liability to be $1,908.00. 

3. The mother appealed the Child Support Agency’s assessment on 13 June 2006 on the basis that the previous assessment did not take into account the father’s increasing income.  The father anticipated that his taxable income for 2005/2006 would be $38,000.  The Child Support Agency released its decision on 15 August 2006.  Its decision, tendered as Exhibit F7 reads:

   DECISION

   There is a change to the rate of child support payable by [the father] for the eligible children [M] born […].07.01 and [Y] born […].01.04.

   For the period 15.08.06 until 31.12.07, the rate payable is now set at $60.00 per week.

   I consider it fair to set the weekly rate of child support at $60.00 providing [the father] continues to pay for medical and ambulance cover that includes [the children], kindergarten, swimming and music lesions, whilst the children are living near him.

   This decision will have the effect of increasing the rate a little but setting it at a level which is much lower that the rate which results from [the father’s] actual income.

4. A further assessment was carried out for the period from 1 January 2008 until 31 March 2009, as evidenced in Exhibit F1.  This assessment was based on the father’s taxable income in 2006/2007 of $32,210.00.  The Child Support Agency assessed his annual liability to be $4,545.00. 

5. According to the father’s Financial Statement sworn 25 February 2008, his average weekly income before tax is $1,050.  Additionally, a week and half before the commencement of the trial, the father’s employer reviewed his performance and awarded him a salary increase.  During his oral evidence, the father conceded that his current income is far greater than his taxable income in 2006/2007.  He remarked that that he was merely “a product of the system,” as the latest assessment was for a fixed period. 

6. Once pressed by Mr Dickson, the father also conceded that he was wrong in his affidavit sworn 6 December 2007 at paragraph 46 where he states:

   A ruling was ultimately made by the Child Support Agency that the mother not be able to make a further application for variation of child support until 31 December 2007.

7. The Child Support Agency’s notice of decision, marked Exhibit F7, merely adjusts the rate of payment for a fixed period.  It does not prevent the mother from making further applications. 

8. Paragraphs 46 and 47 of the father’s affidavit sworn 6 December 2007 set out the father’s evidence about his child support payments and other payments he makes for the support of the children. At the time of swearing the affidavit the father was paying $60 per week by way of child support pursuant to a ruling of the Child Support Agency made 15 August 2006. The ruling set the rate for child support payable by the father for the period 15 August 2006 to 31 December 2007 at $60 per week provided he continued to pay for medical and ambulance cover that included the children, kindergarten, swimming and music lessons while the children are living near him: see Exhibit F7. At the time of the trial the father was paying $87.50 per week by way of child support: see Exhibit F1 from the Child Support Agency dated 4 December 2007 which shows the father’s child support assessment for the period from 1 January 2008 to 31 March 2009 to be $378.75 per month [$87.50 per week].

9. The father said that he also paid the children’s private health insurance, ambulance membership, M’s kindergarten/primary school fees. In evidence the mother said that M was exempt from school fees and that they shared the payment of the kindergarten fees equally, also M’s swimming lessons and Y’s music lessons. I accept her evidence on these matters in preference to the father’s. The making of child support assessments and calculating payments made is not before me as an issue for determination. The evidence establishes that the father has made contributions for the support of the children. It has been left to the mother to take steps to have the rate of child support adjusted to take into account changes to the father’s income. I do not find, however, that there is a basis for finding that the father has failed to fulfil his obligations to maintain the children to an extent that impacts upon the determination of the issues presently before me. The mother has, at all times, contributed to their support to the best of her ability, and with some assistance from her mother.

CONCLUSION

Best interests – living arrangements –30 day annual overseas holidays

1. I am satisfied that the children’s best interests will be served by their continued residence in the care of their mother, in Australia. In reaching this decision I have had particular regard to the children’s ages and stages of development. Mr P’s evidence points unmistakably to the conclusion that the children would have difficulty in continuing to develop their currently strong and meaningful relationships with their father if they were living at such a distance as the mother proposes and their principal form of communication with him would be by electronic means.

2. To this concern must be added the potential for them to become immersed in Dutch language to the point where the ongoing development of their English language skills is impeded. I accept that the mother would speak to them in English, but the probability is that their school friends, other family members and neighbourhood adults and children would be speaking Dutch to them. This has the potential to limit their capacity to communicate meaningfully with their father if the development of their English does not keep pace with their advances in age and maturity. Whilst I can not find that this will happen, or is even a probable outcome, the fact that it might occur is sufficient to identify it as a factor that, taken together with others, weighs in favour of a cautious approach to the mother’s application to take the children to another country where English is not the (or an) official language.

3. There is, in my view, a real risk that the object of “ensuring that children have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with [their best interests]” – s 60B(1)(a) would not be achieved if the children are living in the Netherlands. The underlying principle set out in s 60B(2)(b), that “children have a right to spend time on a regular basis with ….both their parents” reinforces this point.

4. These considerations, fundamental as they are to the legislation, are themselves subject to the “best interests” test and must give way if it would be contrary to the child’s best interests to give effect to them.

5. The mother has been the primary carer for these children all their lives, and will continue in that role for the foreseeable future. Refusing her application will significantly impede her freedom to choose where she lives, and that is a freedom that is and should be highly valued in any society that values human rights. That freedom should only be limited where the best interests of the child require it to be. In this case, I am satisfied that it is in the children’s best interests to have an ongoing relationship with their father in its present form, because the alternative proposed by the mother poses a real danger that their relationship with their father may not survive in its present significant manifestation, or anything close to it, if the children are so distant, and seeing him on a face to face basis only twice per year.

6. I find, on the evidence of the parties about the introduction of overnight periods with the father, and Mr P’s evidence, that there may be real difficulties for these children in being away from their mother for up to four weeks at a time, and possibly in separating from their father to return to her at the end of that time.

7. I therefore find that the primary consideration identified in s 60CC(2)(a) “ the benefit to the child of having a meaningful relationship with both of the child’s parents” operates in this case to require the refusal of the mother’s primary application in the children’s best interests.

8. As to her secondary, or alternative application, to spend one month (30 days) each year in The Netherlands (or elsewhere overseas) with the children, I consider that this has the potential to give effect to many of the secondary considerations that are relevant in this case. Granting that application will ensure that the children maintain their relationships with the mother’s family (who are also family members of these children) in The Netherlands. They will have ongoing exposure to (but not immersion in) her native culture. The mother’s personal sadness and distress at not being able to exercise her fundamental freedom to chose where she resides will be ameliorated by such visits. I also consider it appropriate, as she seeks, that she should be able to take the children to The Netherlands for Christmas each three years, both for the children to be with her and her family at that time of year, and also to give the children the benefit of seeing Christmas celebrated by their mother and extended family in their home setting, wintry and unfamiliar (at Christmas) as that may be for the children.

9. I make it clear that in reaching my decision not to grant the mother’s primary application I have not found or been influenced by any concern that the mother might be less than genuine in her expressions of willingness to foster and support the children’s relationships with their father. The decision that I am making has come about in substantial part because of her willingness and demonstrated capacity to foster that relationship in the period since separation, in circumstances where she would have known that it was contrary to her personal objectives (to relocate) to do so.

10. The father has been reluctant to acknowledge the mother’s good faith in these matters, and continued, to the end of the trial, to demand that security for the children’s return be lodged on each occasion that she travels to The Netherlands with them (if I granted her application, which he opposed). In requiring the mother to provide security for the first two such visits only, I am not lending any credibility to his concerns. The father has, in my view, been difficult (conceding Sunday night returns for the children very late in the piece) and uncooperative, (returning birthday presents provided by the mother for the children to give him) and unfairly critical of the mother (the insect bite occasion where the real problem was that the father did not have his telephone with him and did not check his messages promptly) and in a number of other instances, including the complaint that she did not ask him to look after the children while she attended a kindergarten meeting.

11. My concern is that if he does not get things his way, at least in part, on the security issue, he may cause the mother delay and expense in getting the children out of the country. I will therefore require security in the sum of $20,000 for the first two trips, and when the father sees that the children are returned on those first two occasions, he may accept that the mother’s intentions are as she has stated. I certainly accept that her intentions are as stated by her.

12. I make it clear that I have not attempted to provide make up time for the father with the children for periods when the children are overseas with their mother: There is no easy formula for such an order, and I consider that the father’s unreasonable attitude to issues capable of consensual resolution with the mother would make it extremely difficult to avoid conflict, and possible further litigation, over the interpretation and implementation of any general statement about making up any lost time. Given the father’s limited capacity to take more that four weeks’ holiday per year, he may not lose any holiday time that he could have spent with the children in any event.

I certify that the preceding one hundred and seventy two (172) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt.

Associate: 

Date:  17 November 2008