Milburn and Milburn

[2017] FamCA 490

FAMILY COURT OF AUSTRALIA

MILBURN & MILBURN [2017] FamCA 490

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – Where mother seeks to relocate from Australia to the United Kingdom with the children – Where father opposes relocation and seeks orders that children spend equal time with parents in Australia - Consideration of s60CC – Where it is reasonably practicable for mother to remain living in Australia – Where it was not reasonably practicable for father to relocate to or spend time in United Kingdom due to his employment – Where it was found that mother’s parenting capacity would not materially improve if mother permitted to relocate - Finding that relocation would impair meaningful relationship between children and father – Where benefits of a meaningful relationship between children and father outweigh the benefits of relocation – No relocation order made - Where presumption of equal shared parental responsibility applies – Finding that equal time is not in children’s best interests – Where orders are made for children to live with mother and spend significant and substantial time with father

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1

Malcolm & Munro (2011) FLC 93-460
Morgan & Miles (2007) FLC 93-343

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

APPLICANT: Ms Milburn

RESPONDENT: Mr Milburn

INDEPENDENT CHILDREN’S LAWYER: Ms Gray

FILE NUMBER: CSC 244 of 2015

DATE DELIVERED: 13 July 2017

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 10, 11 and 12 May 2017

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Slade-Jones

SOLICITORS FOR THE RESPONDENT: Bassano Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lawrence

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Susan Gray

Orders

Prior Orders:

1. All previous parenting orders be forthwith discharged.

Parental responsibility and related orders:

1. The parents have equal shared parental responsibility for the major long-term issues of the children A (born … 2008) and M (born … 2010).

2. In the exercise of their equal shared parental responsibility pursuant to paragraph 2 of these orders:

   (a)the parents will consult with each other in relation to any major long-term issues for the children that may arise.  The consultation is to occur in writing if a parent requests it;

   (b)the parents will act reasonably and will use their best endeavours to each agreement;

   (c)the parents will attend family dispute resolution in the event that they are unable to reach agreement.

3. These orders authorise the children’s schools to provide to each parent (at that parent’s expense) any and all information about the children’s educational progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the child and other school communications ordinarily provided by the school/s to parents.

4. These orders authorise each of the children’s medical practitioners (including allied health practitioners such as counsellors and psychologists) to provide to each parent (at that parent’s expense) information about the children’s medical condition, treatment and copies of medical records and reports.

5. Each parent will ensure that a certified copy of these orders is provided to:

   (a)any school/s attended by the children;

   (b)the children’s usual General Practitioner.

6. The parents are to keep each other informed of their respective contact addresses, telephone numbers, mobile telephone numbers or e-mail addresses and notify the other within forty-eight (48) hours to any changes to same.

Children’s living arrangements during school terms:

1. During school terms, the children live with the mother and spend time with the father each alternate week from after school on Wednesday until the commencement of school on Monday morning, save that if Monday is a public holiday or student free day, until the commencement of school on Tuesday.

End of term 1 , 2 and term 3 school holiday periods:

1. During the end of term 1 and end of term 3 school holiday periods:

   (a)in even numbered years, the children will spend the first half of the holiday period with the mother and the second half with the father;

   (b)in odd numbered years, the children will spend the first half of the holiday period with the father and the second half with the mother.

2. For the purposes of paragraph 9 of these orders:

   (a)the end of term 1, 2 and term 3 school holiday periods are deemed to commence at the conclusion of school on the last day of term 1, 2 or term 3 respectively, that the children are required to physically attend at school;

   (b)the mid-point of the end of term 1 , 2  and term 3 holidays is deemed to be 6pm on the middle Saturday of the holidays;

   (c)if the father is not available to spend one-half of the school holiday period with the children and would require alternative care for the children such as Outside School Hours Care, then:

   (i) the children will spend that time with their mother, except for every second weekend from 3.00pm Thursday until 8.00am Monday which the children will spend with their father.

Christmas school holiday periods:

1. If the mother intends travelling overseas with the children, she shall give the father written notice on or before 1 November each year, then the following shall apply:

   (a)in even numbered years, the children will spend time with the father for the first and last weeks of the school holiday period, excluding Christmas Day.  The children will otherwise spend time with the mother for the balance of the school holiday period;

   (b)in odd numbered years, the children will spend time with the father from after school on the last day of term until 9am on Boxing Day.  The children will otherwise spend time with the mother for the balance of the school holiday period.

2. If the mother does not give such notice on or before 1 November, then the following shall apply:

   (a)the children shall spend week about with each parent with the changeover to occur at 6:00pm each Saturday;

   (b)if the father is not available to spend one-half of the school holiday period with the children and would require alternative care for the children such as Outside School Hours Care, then:

   (i) the children will spend that time with their mother, except for every second weekend from 3.00pm Thursday until 8.00am Monday which the children will spend with their father.

   (c)notwithstanding above, the children shall spend from 11.00am Christmas Eve to 11.00am Christmas Day with the father and 11.00am Christmas Day to 11.00am Boxing Day with the mother in even numbered years and from 11.00am Christmas Eve to 11.00am Christmas Day with the mother and 11.00am Christmas Day to 11.00am Boxing Day with the father in odd numbered years.

Children’s living arrangements on special occasions:

1. If pursuant to these orders the mother would not have the children on the Mother’s Day weekend, then the children will spend Mother’s Day with the mother, from 9am on Mother’s Day until commencement of school Monday.

2. If pursuant to these orders the father would not have the children on the Father’s Day weekend, then the children will spend Father’s Day with the father, from 9am on Father’s Day until commencement of school Monday.

3. If pursuant to these orders the father would not spend time with the children on the father’s birthday, then the children will spend time with the father on his birthday:

   (a)if a school day, then from after school that day until commencement of school the following day (or 9am if the following day is weekend);

   (b)if a non-school day, then from 9am that day until 9am the following day (or commencement of school if the following day is a school day).

4. If pursuant to these orders the mother would not spend time with the children on the mother’s birthday, then the children will spend time with the mother on her birthday:

   (a)if a school day, then from after school that day until commencement of school the following day (or 9am if the following day is weekend);

   (b)if a non-school day, then from 9am that day until 9am the following day (or commencement of school if the following day is a school day).

5. If pursuant to these orders a parent would not spend time with the children on the children’s birthdays, then the children will spend time with that parent on the child’s birthday:

   (a)if a school day, then from after school until 7pm;

   (b)if a non-school day, then from 1pm until 7pm.

   (NOTING that the both children’s birthdays fall on the same date).

6. The children will communicate with the parents by telephone (or by other forms of electronic communication if available) as follows:

   (a)the parent who has the children in their care is to provide the children with the use of a telephone so that the children can speak with the other parent on up to two (2) occasions per week for no longer than fifteen (15) minutes duration each child.

Parents’ Communication:

1. The parents will communicate by email or SMS, except in the case of an emergency.

2. The mother and father shall:

   (a)do all necessary acts and things to attend with B Group or Ms C (with the mother choosing which service) to commence assistance in parenting communication and attend such sessions as and when directed by the chosen service provider (“Service Provider”); and

   (b)attend such other appropriate course or program as suggested or directed by the above chosen Service Provider.

Changeovers:

1. That changeovers for the children are to occur at:

   (a)the children’s schools whenever changeovers are at the commencement or conclusion of school; or

   (b)in any other case, at some other public place in thTown E D area as agreed in writing.

Restraints:

1. Whilst in the presence or hearing of the children, the parents are restrained from speaking, or allowing the children to remain in the presence of someone else who is speaking, in a negative, offensive, or disrespectful manner towards:

   (a)the other parent or a member of his/her family; or

   (b)the other parent’s partner or a member of his/her family.

2. At changeovers, the parents are restrained from behaving in an aggressive, confrontational or argumentative way towards:

   (a)the other parent; or

   (b)any other person who is in the company of the other parent.

3. The parents are restrained from removing the children, or attempting to remove the children, from the Commonwealth of Australia otherwise than in accordance with paragraphs 26 and 27 of these orders.

Overseas travel with the children:

1. Each parent may travel overseas with the children during times that that parent has the children pursuant to these orders, or during such other times that the parties may agree to in writing.

2. For the purposes of overseas travel with the children:

   (a)the travelling parent will meet the costs of and incidental to such travel personally;

   (b)the travelling parent is to provide the other party with a copy of the children’s itinerary including departure dates and return dates prior to the children’s departure;

   (c)the travelling parent will keep the other party advised as to all contact details including telephone numbers, addresses and e-mail addresses during such travel;

   (d)during any absence from Australia that the travelling parent will be responsible for ensuring the children have telephone/Skype contact with the other party no less than twice per week at the cost of the travelling parent.

Passports for the children:

1. That the parents ensure that the children have valid passports at all times, with both parents to complete all necessary application forms and the costs of same to be shared equally.

2. That the children’s passports be held at the Family Law Registry in Cairns, or at some other institution as agreed in writing, with such passports to be:

   (a)released to the travelling parent no earlier than seven (7) days before the commencement of travel;

   (b)returned by the travelling parent to the Family Law Registry in Cairns, or at the other institution as agreed in writing, no later than seven (7) days after the children’s return to Town D.

Extra-curricular activities for the children:

1. The parties shall share equally the cost of extra-curricular activities.  

Other orders

1. The Independent Children’s Lawyer is forthwith discharged upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

2. Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.

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

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

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC244/2015

Ms Milburn

Applicant

And

Mr Milburn

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. The primary issue raised by this litigation is whether Ms Milburn (“the mother”) should be permitted to relocate from Australia to the United Kingdom with the parties’ two children.  Those children are A (born in 2008 and therefore presently 8 years of age) and M (born in 2010 and therefore presently 6 years of age) (“the children”).[1]  Mr Milburn (“the father”) opposes the mother being permitted to so relocate with the children, and is supported in that position by the Independent Children's Lawyer.

   [1]Remarkably both children share the same birthday.

2. The parties are also not in agreement as to the appropriate parenting orders which should prevail irrespective of whether the mother is permitted to relocate or not.  I shall detail that dispute in more precise terms later in these reasons, but in substance, in the event that relocation were not permitted, the father wanted the children to spend time with each parent equally, whereas the mother proposed that the children spend a block of four nights (covering alternate weekends) each fortnight.  For his part, if relocation was permitted, then the father proposed that the children spend a total of eight weeks of holiday time with him in Australia each year; the mother proposed that the children spend at least five weeks of holiday time with the father in both Australia and the United Kingdom.

BACKGROUND FACTS

The father

1. The father was born in Australia in 1970, and hence is presently 46 years of age.  After completing high school in Tasmania he went on to complete an apprenticeship, and has remained engaged as a tradesman.  He moved from Tasmania to Town D in 1995 and has resided there ever since.  He was 32 years of age when he met the mother in January 2003 at a Town D night club, and thereafter formed a relationship with her.

The mother

1. The mother was born in the United Kingdom in 1972, and hence is presently 45 years of age.  For most of her early life, she resided in Town E.  She concluded her schooling and then went to training at F College.  The evidence is that F College is a particularly prestigious training college, and enjoys an outstanding and international reputation, as do its graduates.

2. After completing her training the mother has been regularly employed in both the United Kingdom and elsewhere.

3. Aged 30, the mother holidayed to Australia and whilst visiting Town D, met the father.

The relationship

1. After the mother left Town D, the parties remained in contact by telephone.  The mother then obtained employment in Asian Country J, and from there spent periods of time in Australia with the father, with him also spending time with her overseas.  The father told the Family Report writer, Ms G, that they decided to marry to enable the mother to obtain a visa and reside in Australia.  They married in 2006.  It does not appear as though the mother thereafter obtained employment in Australia, but rather conducted a business.

2. From early in the relationship the father perceived that the mother either did not want to, or found it not possible to, fit in with his friends and lifestyle.  He identified that lifestyle as “having BBQs with friends, enjoying a beer after finishing work, camping, being outdoors.”  For her part, the mother accepted that she had some considerable difficulty in acculturating to the father’s lifestyle.

3. In 2008 the child A was born.  When A was still young, the mother travelled with her to the United Kingdom for a holiday.  She stayed with her parents, who at that time were still married and living together.  Also living in the home was her younger brother Mr H.  He was about 16 years of age.

4. The maternal grandparents argued.  Mr H intervened in that argument and in the course of doing so, pulled out a large knife and threatened his father with it.  The mother passed A to the maternal grandmother to keep her safe whilst she attempted to calm Mr H.  She was ultimately able to separate him from his father and took him to a bedroom.  At some stage in the aftermath, Mr H started to set fire to some of A’s clothing.  The whole episode was of course greatly distressing for everyone involved.  However it precipitated the final separation of the maternal grandparents, who since then have lived apart, with Mr H living with the maternal grandmother. 

5. Unsurprisingly, the events of that afternoon have led to some tension between the mother and Mr H, and it appears as though the mother prefers not to stay with the maternal grandmother when visiting the United Kingdom because of Mr H’s presence in her home.  Now is an appropriate time to note that even though the maternal grandparents are separated, they maintain a strong friendship nonetheless, and it appears they regularly holiday together and spend considerable time in each other’s company.  As but an illustration of their continuing friendship, when both of them were cross-examined in the trial before me – at about 1:30am United Kingdom time – they were in the maternal grandfather’s home.

6. After A’s birth, the mother continued to operate a business from her home.  This enabled her to structure her work around her commitments as a mother.  However she continued to experience feelings of isolation, and was troubled that the father had not adapted his lifestyle after the birth of A.  Her affidavit says that even during her second pregnancy, the father would still regularly come home drunk and did not appear to want to engage in what might be considered as ordinary family life.

7. M was born in 2010.  His birth did not improve the family dynamic.  In her trial affidavit filed 11 April 2017, the mother said about the father’s habits:

   He would come in – throw the children in the air, crack open a beer, and go outside, light a cigarette and disappear to the shed for the night.  His normal pattern was five or six heavy beers per night.  Plus in excess of a third of a bottle of Bourbon on the weekends.  It was very rare that we ate a meal as a family.  He would not give up his tennis on Tuesday nights, going out on the boat skiing and fishing with his friends.  Drinks with friends and colleagues after work and to any party he was invited.  It was not unusual for the respondent to come home with bright red eyes.  Which I would question, as this used to happen when he was stoned.  It was impossible for me to be sure whether this was the case, as he would say, he had got something in them at work.  Which had the same effect on him.  More often than not we were sleeping in separate rooms – I started drinking more wine to numb the pain and going to bed early to try and forget the nightmare I found myself living in.  I became terribly homesick. 

1. Added to this was the mother’s perception that the father was money focussed, and always anxious to earn extra money rather than spend time with the family.  For instance at some stage the father commenced a business which presumably took up any free time outside of work.

2. There is no agreement between the parties as to when they finally separated: the mother says it was on 13 March 2013 when she travelled to the United Kingdom with the children; the father says it was a month or so later after she returned from that holiday.  Nothing turns upon which version is correct; plainly by around that time things had reached a state where neither party was committed to maintaining the relationship.

Post-separation

1. After separation the mother moved out of the matrimonial home into rented accommodation in Town D.  With the assistance of a mediator, the parties were able to resolve parenting disputes on the basis that the father would have the children for alternate weekends.  He continued to take them camping on occasions, which concerned the mother because she believed that the father was prioritising his activities with his friends over his children, and she was also troubled about the excessive use of alcohol at such events.

2. Although the mother did at the time want to return to the United Kingdom, she says that after separation she “decided to make a life for myself independently in Town D, so that the children could easily see both parents.”  She obtained a place at J University to study towards degree, although she was unable to continue in that because she found the care of children in conjunction with the requirements of the course too much.

3. In 2014 the mother and children travelled to spend time in the United Kingdom.  She told Ms G that “she did not want to return to Australia as she found that both she and the children’s wellbeing were improved by spending time with her extended family in the United Kingdom, her stay was extended to approximately three months on this occasion.”  It appears as though at least A was in school in the United Kingdom for some or all of this time, and M was attending a kindergarten at that school.

4. In 2015 the mother and children again travelled to the United Kingdom to spend time there.  She told the father she was going for six weeks.  The father again agreed that the children should be enrolled in school there, so as to not fall back academically.  Although the primary purpose of the trip was to support the maternal grandmother through some surgery, shortly after the mother and children arrived the maternal great-grandmother was taken ill.  Unsurprisingly the mother wanted to stay in the United Kingdom to assist in the care of her grandmother, with whom she is close.  She telephoned the father and told him that she was going to extend her stay in the United Kingdom.  It appears as though this coincided with the final payment to her by the father of a property settlement.  The father refused her permission to extend her stay in the United Kingdom, and the mother told him that “he was more than welcome to come to the UK and collect the children.” 

5. The father indeed did so and arrived at the maternal grandfather’s home (where the mother and children had been residing) on 4 July 2015.  The mother and maternal grandfather had packed up the children’s belongings and advised them that they were returning to Australia.  Upon the father’s arrival, M went with the father into the car, but A resisted and wrapped herself around the mother.  The mother told Ms G that the father attempted to “yank” A from her, and that A then began screaming and causing a scene.  Apparently this caused neighbours to become aware of the distressing situation and the police were called.  At some point A ran into the house and hid upstairs.  The mother refused to provide the father with M’s (or indeed A’s) passport stating that she would not agree to the children being separated.  Ultimately the father spent overnight time with M and then left to return to Australia without either child.

6. The father then commenced the process to have Hague Convention proceedings commenced in the United Kingdom High Court, with the application issuing on 25 August 2015.  The matter was listed for final hearing in the High Court on 14 October 2015, but the mother then consented to orders which would see her voluntarily return to Australia with the children.  Ultimately the children returned on 28 October 2015, having been away from the country for something in the order of seven months.

7. The father says that initially the mother made it “very difficult” for him to see the children after their return, but nonetheless it seems clear that after a few days he was able to spend time with them.  Indeed the parties set about transitioning them into his full-time care, as it was the mother’s intention to return to the United Kingdom without the children.  Remarkably she indeed did so on 23 November 2015.  She was quite open in her evidence before me that at least a substantial part of the reason why she left the children with the father was to educate him as to how much work caring for them was (perhaps with a view to him having a better understanding of her role) and further, because she thought it might snap him out of what she believed to be his poor lifestyle, involving excessive alcohol and partying.

8. Notwithstanding her absence from the country, on 9 December 2015 the mother commenced these proceedings and simultaneously filed a Notice of Risk.  In that she specified seven risks posed by the father, essentially of two species.  The first was psychological harm (comprising being denied access to the mother and her parents, or restricting the opportunity for the children to spend time with them, and degrading the mother in front of the children) and the second was physical harm (comprising the father’s heavy drinking, failure to properly supervise the children and engaging in high risk activities for instance quad bike riding and camping where adults were drunk).

9. At trial much was made of the fact that that Notice of Risk was filed at a time when the mother had deliberately chosen to leave the children in the father’s sole care, rather than seeking to mitigate that risk, either by engaging in some species of shared care, or indeed even being in the same country as the children.  For her part, the mother conceded her actions in leaving the children in the father’s sole care in Australia were ill advised.

10. On 20 January 2016 the mother returned to Australia, intending to spend time with the children until 11 February.  However prior to then, she changed her mind, and has thereafter continued to reside in Australia.  On 2 February 2016 interim consent orders were made which established equal shared parental responsibility and an equal time arrangement, which sees the children spending week blocks with each parent.  Those were the orders which prevailed as at the time of the trial before me.

11. In about March 2016 the mother began to take in and care for foster children.  At times she has had as many as four such children in her care.  These children come from distressing backgrounds.

12. In about April 2016 the mother began to notice that M was suffering from hair loss.  It appears as though he was physically pulling the hair out from his temples.  Whilst he has always been a child that played with his hair in an effort to self-sooth, the mother says that this was the only occasion that he had actually suffered hair loss.  She gave evidence that when she enquired of him why he was doing it, he thought that there were knots in it, when plainly there were not.  Also at about the same time M began to decline to undertake any work at school.

13. In consequence of his troubling behaviour M was referred to a psychologist, who administered some therapy to him.  By 6 June 2016 it appears as though M’s hair had grown back.

14. On 20 June 2016 these proceedings were transferred to this court.  On 29 August, for reasons which I published that day (Milburn & Milburn [2016] FamCA 724), I dismissed the mother’s then extant Application in a Case seeking to reduce the father’s time with the children. She had asserted that it was in the children’s best interests for the time to be reduced because it was the time in the father’s household that was causing stress to the children and particularly M. However I concluded on the evidence then before me M’s hair loss was not able to be attributed to spending time with the father, but was the likely result of a combination of stressors, including “the marked hostility and conflict between his parents” (at [37]).

15. At a time which the evidence does not enable me to determine, the mother ceased caring for foster children and focussed her time and energies upon the preparation of this case.

Current situation

1. As at the time of trial before me, the father remained as a sub-contractor in what is, effectively, a full time position (accepting that he is not an employee per se).  He has not re-partnered.  Likewise the mother has not re-partnered, and remains living in rented accommodation in Town D.

2. According to Ms G who interviewed her on 20 April 2016 for the purposes of a second Family Report, A is a friendly child currently attending at L School.  She has lots of friends and seems to be doing well at school.  According to the mother, A has an interest in children and has a caring nature.

3. Ms G has spoken with M on two occasions, most recently 20 April 2016.  M then appeared not to be as anxious as he was when she first met him, and was able to identify that he has two friends whom he played with at school (he being in grade 2) and reported that the biggest change for him since the last Family Report interviews was that the foster children were no longer living in his home.  He appears to be now engaging fully with his schooling, and is performing at a satisfactory standard.

THE ISSUES

1. At the Trial Management Hearing in this matter on 2 February 2016, with the assistance of the parties I identified the following are the issues likely to substantially impact upon the determination of these proceedings:

   1.What is the nature of the relationship between each parent and child.

   2.What risk, if any, do the parents pose to the children, and what, if any means are available to mitigate such risks.

   3.Would the children benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated.

   4.Is it reasonably practical for the mother to remain living in Town D, and if so, what effects would doing so have upon:

   (a)Her emotional and financial circumstances;

   (b)Her parenting capacity.

   5.What benefit would relocating with the children to the United Kingdom have for the mother, particularly in relation to:

   (a)Her financial support;

   (b)Her emotional support;

   (c)Her parenting capacity. 

   6.Is it reasonably practicable for the father to move to the United Kingdom, and if so, what effect would doing so have upon:

   (a) His emotional and financial circumstances;

   (b) His parenting capacity.

   7.If the mother and children were to relocate to the United Kingdom, but the father did not:

   (a)Would the mother facilitate a meaningful relationship between the children and the father;

   (b)What would be the likely effect on the father’s psychological and emotional health.

   8.What is the likely effect on the children if mother and children were to relocate to the United Kingdom but the father remains in Australia.

   9.Is it reasonably practicable for the father to regularly spend time with the children in the United Kingdom.

   10.It the children were not permitted to relocate to the United Kingdom, but the mother did so:

   (a)Would the father facilitate a meaningful relationship between the children and the mother;

   (b)What would be the likely effect on the mother’s psychological and emotional health.

   11.Can the parties’ communication support equal shared parental responsibility.

2. Once I have discussed the relevant statutory provisions and legal principles, I shall address those issues in advance of a traverse of any residual relevant s 60CC factors, and then consider the appropriate parenting orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (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.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (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).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to section 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. In the event that equal shared parental responsibility is ordered, then if it is both in the child’s best interests and reasonably practicable, the court is obliged pursuant to s 65DAA(1) to then consider whether the child should spend equal time with each of the parents. If it does not so order, then it is obliged pursuant to s 65DAA(2) to then consider, if it is both in the child’s best interests and reasonably practicable, whether the child should spend substantial and significant time with each of the parents. In either case, the matters which the court must have regard to in assessing reasonable practicability are enumerated in s 65DAA(5).

6. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must consider in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].

7. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Relocation

1. The application of these provisions I have just canvassed in the context of relocation cases has been discussed by many authorities.  In the decision of Malcolm & Munro (2011) FLC 93-460 the Full Court approved the earlier decision of Boland J in Morgan & Miles (2007) FLC 93-343, and particularly at paras.79 to 81, where her Honour said as follows:

   79.      In considering whether the child should live with the parent who proposes to relocate a court:

   ·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.

   ·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.

   ·Be guided in its determination by the objects and principles underpinning the legislation.  This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.

   ·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

   ·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

   ·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

   ·Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals.   Depending on factors such as  the age of the child, the wishes of the child, the relationship between the child and a parent,  the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:

   -    that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

   -    that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;

   -    that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;

   -    the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

   ·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance. 

   80. It follows from my exposition of the legislation, that earlier core principles:

   -    that the child’s best interests remain the paramount but not sole consideration;

   -    that a parent wishing to move does not need to demonstrate “compelling” reasons;

   -    that a judicial officer must consider all proposals, and may himself or herself  be required to formulate proposals in the child’s best interests; and

   -    the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,

   remain valid.

   81. What the legislation now requires is:

   - consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;

   -     if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility  applies the consequences of an order for equal shared parental responsibility.

   but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.”

NATURE OF RELATIONSHIP BETWEEN PARENTS AND CHILDREN

1. Ms G’s uncontradicted evidence was that when she last conducted her Family Report interviews, her opinion was that both children had strong and loving relationships with both of their parents.  That said, she said that A was more able to identify difficulties in her relationship with the father, most notably her concern about the father’s reaction to her articulated wishes that she would prefer to live in the United Kingdom.

2. Ms G opined that A’s principal attachment was with her mother, with whom she had a strong connection.

3. As to M, her evidence was that he was a quite different child to A and had a different relationship with his father than she did, because he and the father have shared interests and gender.  That said, she reported that M could not identify that he was able to seek comfort from the father, for instance he was not allowed to co-sleep with his father if he was scared after a nightmare.  She was of the view that the father may not be aware of the need to provide comfort to a child in those circumstances.  On the other hand M was able to identify that he could seek such comfort from his mother, and regularly had recourse to it.

4. On the basis of that evidence I am satisfied that the children have good relationships with both parents, which are strong and loving ones.  That said the children’s primary experience of nurture and comfort is derived from the mother.

RISKS POSED BY PARENTS AND MEANS OF MITIGATION

1. Again Ms G’s evidence in this respect was not challenged.  She identified that the greatest risk to the children related to their exposure to ongoing parental conflict.  In substance, her evidence was that both children are very well aware that their parents are in conflict over where the children should live, and that exposure to that conflict was effecting emotional harm to them, in that they felt that they had an obligation to be responsible for each parent’s happiness.  She thought that M’s anxiety, the causes of which were likely multi-factorial, had a strong basis in the exposure to the conflict, which she identified as being on two levels.  The first was overt behaviour, and the second was covert.  She gave illustrations of covert conflict as including the father’s desire to have nothing further to do with the mother, to the point where he won’t even speak about her in their home.  Similar comments can be made about the mother in relation to her not mentioning the father.

2. In the course of her cross-examination the mother became somewhat emotional when discussing the children’s exposure to parental conflict.  She recognised that it was inflicting harm upon the children, which harm was preventable if the parents modified their behaviour.  She expressed enthusiasm for the parties undertaking what Ms G identified as potential courses of counselling for them if they were both remain living in Town D, designed to improve their capacity for respectful communication, and hence reduce the level of conflict between them.

3. The only other means of potentially mitigating the risk of harm to the children ensuing from their exposure to parental conflict, might be to permit the mother to relocate.  Ms G opined that it would provide a degree of respite from the conflict, because the children would not be exposed to it on a day-to-day basis.

4. The mother also opined that the father posed a risk of physical harm to the children, arising from his involving them in outdoor activities, and particularly quad biking.  Her concerns are not baseless.  M was involved in a quad bike accident in December 2016 when he fell off a quad bike and struck his chin, causing his teeth to cut his tongue.  The father contends that it was a genuine accident, and to that extent Ms G seemed to agree, at least on her understanding of the facts.  There is nothing in the material which would enable me to conclude that the father had in some way negligently caused the child to suffer an injury.  It seems as though the mother may entertain some doubt that the child in fact was wearing a safety helmet at the time, but the photographs of his injury which were in evidence would suggest that the damage was solely to his chin, and consistent with him at the time wearing a helmet.

5. Allied to this concern of the mother’s was her allegation that the father regularly abuses alcohol.  There can be no doubt that at the time when the father first undertook his CDT test on 10 March 2017 (which was ordered by me on 8 March 2017) he had a history of serious binge drinking and alcohol abuse.  However the father says that in consequence of the results of that test, he recognised the fact that he was abusing alcohol and needed to change.  He subsequently presented the results of a later CDT test undertaken on 13 April 2017, which did not have figures causing any concern in relation to his alcohol abuse.  However the mother, in my view quite legitimately, points out the fact that the father’s changed behaviour was in the context of litigation, and he had a lifelong history of engaging in such behaviours, which is unlikely to change.  As to this Ms G also noted that the first step for the father would be to undertake some counselling to address the underlying behaviours and problems which caused the alcohol abuse in the first place.  Absent that, she predicted that the risk of relapse would be very high.  I accept that evidence.

6. However it is difficult to directly translate the father’s alcohol abuse, or more precisely his risk of relapse into abuse, into a positive risk of harm to the children.  Of course one can readily foresee circumstances in which he may be sufficiently incapacitated to not care for the children or supervise them in an appropriate manner, which may present some risk of physical harm to them.  However the quantification of that risk is difficult.  Certainly it does not seem that the risk has materialised into actual harm to the children to date, and moreover I am satisfied that the father is less inclined to abuse alcohol during the times the children are in his care.

Evaluation

1. I am satisfied that the predominant risk which these parties pose to the children is, as Ms G identified, one of emotional harm from exposure to parental conflict.  However that risk is not of a kind that disentitles either of the parent to have the children in their unsupervised care, and indeed, subject to the suite of protective orders which she sought to have included in the event that she were not permitted to relocate, the mother did not so contend either.

2. Although the risk that the father may relapse into alcohol abuse is real, the prospect and magnitude of harm to the children is not possible to be accurately assessed.

3. I will consider whether or not any specific restraints directed towards the children’s safety when in the father’s care are required, when discussing particular orders in due course.

BENEFIT OF MEANINGFUL RELATIONSHIP WITH EACH PARENT

1. Neither party contended that the children would not benefit from a meaningful relationship with each parent, and that it would likely best be facilitated by the children spending regular face to face time with each parent, and them being involved in all areas of the children’s lives.  Rather the battleground between them was as to whether such a relationship could be maintained between the father and children if the mother were to relocate to the United Kingdom.

2. That said the mother did emphasise that, during the course of the relationship, the father did not appear to be involved in any great way in the children’s lives; for instance he would not attend parent teacher interviews, nor was he involved in their medical care.  However even noting that was historically accepted by the father, and accepting that it might therefore predict some less than perfect engagement in those areas in the future, it falls a long way short of persuading me that the children would not benefit from a meaningful relationship with the father.

REASONABLE PRACTIBILITY FOR MOTHER TO REMAIN LIVING IN TOWN D AND EFFECT OF DOING SO

1. This was one of the central issues in the case.  That said the mother did not contend that it was not reasonably practicable for her to remain living in Town D, but rather noted that she could have a far better quality of life if she were to relocate to the United Kingdom.

2. The mother has now lived in Town D since August 2006 ie, nearly 11 years.  During that time she has been able to obtain employment, albeit mostly it appears by conducting a business.  Moreover, in cross-examination she was able to identify that she has seven sets of “good” friends with whom she socialises, and from whom she obtains the usual benefits of friendship.

3. As to the future, the mother remains registered with a foster care agency and indicated that in the event that she were not permitted to relocate, she would likely explore further options in that respect.  In this regard it is interesting to note that substantial financial benefits flowed to the mother from her being a foster carer of the four children.  Accepting that this is not income in the usual sense, in that it is intended to be a, no doubt generous, reimbursement of the likely costs of raising a foster child, the mother correctly identified that it therefore is not available to be considered by a bank in approving finance for a home or a new car.  However plainly the mother is, by fostering children, able to have funds available to her which are sufficient to adequately meet her needs from time to time.  Moreover there remains the prospect that the mother may be able to utilise her qualifications in some other way, although I do not give that much weight.

4. The mother identified that in the event that she were required to remain in Town D, she would be extremely disappointed and angry, and would need time to recover from that blow.  Her perception of her life in Town D is that it is “palm tree lined jail.”  She regards it as an unpleasant and relatively uncouth environment, where sexism is rampant and misogyny rife, that compares unfavourably with her experience of European cultures, which she feels do not have those features.  However she did not say that being forced to continue to live in such an environment would affect her emotional health in anything other than the short term.  She was supported in this by the evidence of her mother and father as well, both of whom identified that she was a resilient, strong woman, who was a fighter and would not give in.  To this is coupled the mother’s evidence that she has, in anticipation of the prospect of being required to remain living in Town D, retained a psychologist with a view to obtaining psychological support and help from her, and to give her the ability to cope with any adverse finding, if one is made.

5. Given that the mother can earn an adequate income in Town D, from which she can meet her costs of living, including housing to a reasonable standard, it is impossible but to conclude that it is reasonably practicable for her to remain living there.  In that event, although I am satisfied that she would be greatly disappointed with the outcome, nonetheless she would be sufficiently resilient to cope with such an outcome, particularly with appropriate psychological support, and would continue satisfactory functioning.  I am not satisfied that any such disappointment would substantially or materially diminish her parenting capacity, and indeed that is her own evidence.  She made it clear that she would continue to function because she needs to provide for her children.  Even without the mother’s concession to that effect, I would comfortably reach that conclusion anyway.

6. I am satisfied that it is reasonably practicable for the mother to remain living in Town D, and that such adverse effects as that may visit upon her emotional and financial circumstances would not be of a kind to substantially, or for any length of time, erode her parenting capacity. 

BENEFITS TO MOTHER IN RELOCATION

1. This really was the nub of the mother’s case.  It was not so much that she could not cope in Town D that was the fulcrum of her argument, but rather that things would be so much better for her in the United Kingdom.  That said, leaving aside the seven month period she spent there in 2015, when she was not engaged in full time employment, she has not lived there now for nearly 11 years.  Moreover, it appears as though some of her employment has been in countries other than the United Kingdom.

2. The mother particularly relied upon her increased emotional support from having access to her parents and other family members if she were to relocate to the United Kingdom, and her likely improved financial circumstances in that event also.  She argued that a combination of those two matters would improve her parenting capacity to some extent.  That said, it must be acknowledged that she starts from a very high threshold, in that she is an exemplary parent, save for her role in the exposure of the children to the parental conflict.

3. Turning firstly to financial issues, the mother annexed to her affidavit advertisements for a number of positions in the United Kingdom.  However, correctly in my view, counsel for the father highlighted that many of those positions would require her to spend blocks of time away from the children, in that, because she proposed to at least initially live with her father in Town E, and because most of the well paid positions are in the south of England, it would not be practicable for her to commute to work on a daily basis.  Rather she would likely be required to travel and stay away from the children, only returning for her days off.  Even accepting that she may have a generous regime where she is working seven days on and seven days off, nonetheless it is plain that she would be substantially absent.

4. That said, it appears as though the mother’s line of work is far more valued in the United Kingdom than in Australia, and that is reflected in their remuneration packages.  It would seem reasonably clear that the mother could earn something in the order of £60,000 per annum in full time employment in the United Kingdom, and it is likely that she would be able to obtain concessional accommodation as well.

5. The father pointed out component of the job is overseas travel from time to time; the mother countered that such arrangements may extend to the ability to bring her own children as well.

6. Ultimately I am satisfied that the mother is likely to have greater prospects of obtaining better remunerated employment in the United Kingdom than she does in Australia.  However I am satisfied that much of the employment for which she would be well suited lies outside of a comfortable commuting range, and would require her to be substantially absent from the children.

7. As to emotional support, I have little doubt that in the United Kingdom the mother would benefit emotionally from two things.  The first is the actual affording to her of the emotional support from both of her parents and other family members.  I am well satisfied that she is close of her parents and loves them greatly, and that they love her too.  I am also well satisfied that her parents miss her and long for her to be again a regular day-to-day feature of their lives.  The second matter however, which may be even greater, is that the mother would perceive that she has escaped from what she believes to be a hostile environment, into one which affords her great emotional support.   At the moment she really does believe that the father is acting vindictively to block her from relocating to the United Kingdom, and that leads her to a great feeling of resentment towards him.  It is likely that which substantially fuels the current state of parental conflict, and in the event that were to dissipate, or at least the mother believed that she had “won,” it may be considerably emotionally liberating for her.  I am therefore simply satisfied that she would not only have, but also perceive that she has, greater emotional support if living in the United Kingdom rather than Australia.

8. However it is difficult to conclude that emotional support and the prospect of better financial support would translate into an improved parenting capacity.  Not only is there the prospect that she may need to be substantially absent from the children, and the care of them devolved to her father for that time, but in any event she presently is, as I have already indicated, an exemplary mother, save for the exposure of the children to parental conflict.  I am therefore not satisfied that relocation to the United Kingdom would affect any material improvement in her parenting capacity, even accepting that her financial circumstances and emotional support would substantially increase.

REASONABLY PRACTICABLE FOR FATHER TO RELOCATE

1. The mother contended that the father’s qualifications would suit him to employment in the United Kingdom.  However the father said that he did not have a right to a visa that would enable him to work in his occupation in the United Kingdom, and ultimately the evidence does not persuade me that he does indeed have an entitlement to so work.  Plainly if he could not obtain employment, it would not be reasonably practicable for him to relocate.  Moreover, as is a central plank of the mother’s own case, the father’s principal relaxation occupations in Australia involve him being outdoors at all times of the year doing such things as camping, fishing, quad bike riding and boating.  He apparently has a group of friends with whom he undertakes those activities in tropical North Queensland.  There was no evidence as to whether the father would be able to as readily access those sorts of recreational pursuits in the United Kingdom, or any additional cost which would be imposed upon him were he to do so.  Obviously there would be climatic restrictions imposed upon him undertaking those events with the regularity which he does in all seasons in North Queensland.

2. The evidence does not persuade me that it is reasonably practicable for the father to relocate to the United Kingdom.  Moreover, it does not permit me to really make any prediction as to how that would impact upon emotionally or financially, much less as to how it might erode his parenting capacity.

3. The father steadfastly refused to even countenance a move to the United Kingdom.  He had not explored it in any way when he went to the Family Report interviews, nor had he further explored it in any detail by the time of the trial before me.  The father is comfortably resident in Town D, and says that even if the mother were permitted to relocate, he would not seek to do so himself.  The alternative orders which he sought in the event that the mother were permitted to relocate, did not envisage him doing so.  Therefore even if I am wrong as to whether it is reasonably practicable for the father to move to the United Kingdom, the reality is that he simply will not do so.

EFFECT IF MOTHER WERE TO RELOCATE TO UNITED KINGDOM

1. There are two distinct enquiries in relation to this heading.  The first is as to whether the mother would facilitate a meaningful relationship between the father and the children if she were permitted to relocate.  The second is what would be the likely effect on the father’s psychological and emotional health if the mother and children were to relocate.

2. Turning firstly to the consideration of whether the mother would likely facilitate a meaningful relationship between the father and the children from the United Kingdom, counsel for the father points to the fact that in 2013 and 2015 the mother has been content to not facilitate the return of the children to Australia from the United Kingdom, although that is not something I give great weight in this context given that in this eventuality, the question of whether the mother is permitted to relocate would be settled.  Any advantages which might have accrued to her from overstaying in the United Kingdom would no longer be forensically useful.

1. On the other hand, it is clear that the mother has a strongly adverse view of the father in relation to his alleged lack of enthusiasm for parenting, his apparent satisfaction with what she perceives to be his sexist lifestyle, and his preoccupation with his recreational pursuits, which she believes take priority over his role as a father.  However, even taking those adverse views at their highest, they do not suggest to me that the mother would not in fact perceive benefit to the children in maintaining a relationship with the father of substance, such that she would not be prepared to facilitate it long distance. 

2. Of course there would inevitably be difficulties, given the time difference between the two countries, and particularly the difficulty with the children engaging in activities on weekends which would clash with any opportunity for Skyping with the father, but I am satisfied that the mother would work so as to maintain a meaningful relationship between the children and the father from the United Kingdom.

3. As to the effect on the father’s psychological and emotional health, Ms G said that the father had expressed strong frustration in relation to the need to bring Hague proceedings, which predicted that he would experience a strong sense of grief and loss in the event that the children were to move overseas.  She contemplated that it may cause clinical symptoms in him, for example depression and anxiety, but that, if he were able to continue in his recreational activities, that might help him cope.  She also speculated that in fact that outcome might reduce his stress, as he presently works long hours and has to juggle that with spending time with and caring for the children.

4. I am well satisfied that the father deeply loves these children and would be quite devastated if they were to move overseas.  I am satisfied that there are likely to be a number of adverse outcomes potentially suffered by him, especially if it be the case that there is some underlying psychological reason for his historical alcohol abuse.

EFFECT ON CHILDREN IF RELOCATE BUT FATHER DOES NOT

1. Ms G opined that the effect of relocation on the children would be directly related to the extent to which the father remained engaged in their lives.  For instance she said that the effect would be lessened in the event that the mother were to encourage the children to contact the father to discuss the significant events or occurrences in their lives, as and when they arise.  However the reality is that the father would be reduced from presently spending 26 weeks a year with the children, to spending at most eight weeks with the children on holidays, together with whatever electronic communication could be fashioned. 

2. I am satisfied that would substantially disrupt the benefits which the children obtain from the father, particularly M.  As has been seen, the father and M share a love of the outdoors and engage in joint activities such as quad bike riding, fishing and boating.  Those are not matters which would be an ingrained part of their day-to-day lives, but would become, at best, holiday experiences to be enjoyed only during the times that the children may be in Australia with the father.  As to that, there are practical difficulties in the father obtaining the amount of time off work that would be required to spend even five – much less eight – weeks with the children.  It appears as though he has never in the past had such extensive periods of time off work, and would need to negotiate some sort of special arrangement with his employer (accepting that his is a contractor) to enable it to occur.

3. Moreover Ms G made the pertinent point that on the proposed holidays which the children would spend with the father in Australia, there would not be vacation care available, as their time here would not coincide with the Australian school holidays.  Even accepting that the children dislike vacation care, their experience of any time in Australia when the father was at work would likely be even worse than their present experience of vacation care.

4. Whilst I am not satisfied that the children would suffer any psychological ill effect from living in the United Kingdom and away from the father, I am satisfied that it would substantially impair their experience of the relationship with him that they presently enjoy.

5. Of course there are other potential benefits to the children in living in the United Kingdom.  For instance the mother points to the fact that M had a much better experience of school in the United Kingdom, where he had many more friends than he appears to have in Australia.  Likewise she says that the nature of British society sees greater opportunities for the children to engage with others in their local community than occurs in Australia, where she pointed out that people tend not to walk around and hence interact with people, but rather drive from one air conditioned venue to another.  Further, the children plainly love both of their grandparents in the United Kingdom, and there would be benefits to them in having an enhanced relationship with them.

6. Ultimately I assess the likely effect on the children of moving to the United Kingdom without the father as a relatively neutral one.  On the one hand there are the benefits which I have identified; but the cost is that they would lose their presently close relationship with the father.

REASONABLY PRACTICABLE FOR FATHER TO SPEND TIME WITH CHILDREN IN UNITED KINGDOM

1. The essential difficulty in this respect is that the father only has a limited amount of time that he can take as leave per year.  In fact it appears as though it is not paid leave, but rather it is an opportunity to not perform services under the contract which he has with the principal that he works for.  The mother’s proposal was that the children would travel twice a year to Australia to spend time with the father in a total of at least five weeks and if that were to occur, then the prospect of the father being able to travel to the United Kingdom on other occasions is unlikely.  Moreover, even if the father were able to fund the costs of such travel, on his income it would not be able to be undertaken with any regularity.  At most it would be once or twice a year.

2. I am not satisfied that it is reasonably practicable for the father to regularly spend time with the children in the United Kingdom.

MOTHER RELOCATE WITHOUT CHILDREN

1. Ultimately this issue fell away, as the mother expressly and strongly disavowed any intention of relocating without the children.  Given that she did leave the children behind in December 2015, at one stage it appeared as though this may be an issue requiring further investigation, but as I say, it evaporated.

CAN PARTIES COMMUNICATION SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY

1. The evidence in relation to this issue does not point in one direction.  Certainly the parties are, it seems, incapable of having a face-to-face conversation with each other, without it descending into chaos.  On the other hand, the parties are able to, on occasion, reach decisions in relation to the children by a combination of text or email.  Of course, sometimes those communications are acrimonious, or not otherwise non-responsive, but the fact is that they have, over the years, been able to by and large discharge the burden of equal shared parental responsibility.

2. That is not to say that when the mother has overstayed in the United Kingdom she has not, in effect, exercised sole parental responsibility, without any attempt to engage with the father in relation to decision making, but that is a different issue.

3. Both the mother and father recognise that they need to be able to communicate.  Both propose that they should undertake courses which would assist them in trying to resolve the residual conflict and improve their communication.

4. I am particularly mindful that once the issue of relocation has been resolved on a final basis (even accepting that if not permitted, the mother may wish to revisit it in due course) the parties should have less forensic reason to fail to engage in a meaningful way with each other.  True it is that in the short term one of the parties are likely to have an increased resentment, because the other will have “won,” but that is not, as I assess it, likely to be a persistent feature of their relationship.  Rather the initial – perhaps overwhelming – pain will reduce, and the parties will indeed accept that they need to get on and co-parent these children.

5. Ultimately, although with considerable hesitation, I conclude that once the fall out of this litigation has reduced, the parties will be able to effect sufficient communication able to discharge the obligations of equal shared parental responsibility.

SECTION 60CC CONSIDERATIONS

1. It will be appreciated that I have discussed both the primary considerations and a number of additional considerations in traversing the issues.  However by reference to the remaining additional considerations I make comment as follows.

2. The children have expressed a desire to live in the United Kingdom and to spend greater time with their mother.  I give the former view some, but not great, weight, for two reasons.  Firstly the children are both very young.  That said, both have actually experienced living in the United Kingdom as recently as 2015 for seven months, and hence their wishes are based upon a lived experience, not just a holiday.  Secondly, the children are plainly aware that the mother wishes to relocate to the United Kingdom, and they perceive that would make her happy.  I am therefore not persuaded that the children’s wishes in relation to relocation should be given much weight.

3. On the other hand I do give some greater weight to their views in relation to spending greater time with the mother than the father.  That is because no doubt they dislike the father’s use of before and after work care, as well as his use of vacation care on occasions.  In my view, again their wishes are based upon actual experience of the reality on the ground, and are deserving of some, but not determinative, weight.

4. The father has met his obligations in relation to child support.

5. Ms G opined that the father has a lack of emotional attunement in relation to the children, such that he does not recognise their needs for comfort on occasions, such as allowing M to sleep in his bed if he is frightened by a nightmare.  There is likely some truth in that, and I am satisfied that the mother does provide greater nurture to the children than the father does.  On the other hand I am satisfied that the father is more likely to engage the children in vigorous, outdoor activity.

6. Refreshingly this is not a case which involves allegations of family violence.

7. The mother is entitled to live wherever she may lawfully choose to do so in the world.  She has untrammelled rights of freedom of movement.

PARENTAL RESPONSIBILITY

1. The father and the Independent Children's Lawyer contend for orders for equal shared parental responsibility, save that they also both seek orders which would require the parties to engage in counselling with a view to improving their communication and reducing their hostility.  For her part, the mother proposes sole parental responsibility, albeit with an obligation to consult.

2. This is a case in which the presumption applies.  The question then whether the presumption is rebutted by evidence that satisfies me that it would not be in the best interests of the child for there to be equal shared parental responsibility.

3. I am not so satisfied, although I have some hesitation in concluding that anything more than diffidently.  The main issue in considering this matter is whether the parties’ communication can support equal shared parental responsibility.  As has been seen, with some reluctance I have so concluded.  However assuming that the parties can so communicate, then I am well satisfied that both of these parents have much to offer these children in relation to their various life experiences in making decisions in relation to their futures.  Even accepting that the father has “black and white” or “concrete” thinking and presents as relatively inflexible in his attitudes generally, it is not said that the father does not genuinely love these children and wish for them to lead meaningful, fulfilling and happy lives.

4. Whilst I acknowledge that there is some risk, that if the parties cannot learn to communicate better, there may regularly be stalemates in decision making, or worse, that the matter may descend into conflictual mayhem, nonetheless upon balance I am not satisfied that it is in the children’s best interests that one parent have exclusive responsibility, even with a right of obligation of consultation.  There will therefore be an order for equal shared parental responsibility.

WITH WHOM AND WHERE SHOULD CHILDREN LIVE

1. By virtue of the order that I have just indicated I will make, I am obliged under s 65DAA(1) to consider whether the children spending equal time with each of their parents would be in their best interests, and whether it is reasonably practicable, and if so, to consider making an order for equal time. If I am not satisfied as to either of those things, then it is incumbent upon me to go on to consider whether it is reasonably practicable and in the children’s best interests to make an order for substantial and significant time. However on either scenario, the mother’s application to relocate looms large, because it could not be contended that if she were permitted to relocate, but the father did not, that either of those two alternatives could possibly prevail. The children would most likely only be spending holiday time with the father in Australia, and even accepting that their birthdays may be spent with the father, would be unlikely to be spending Father’s Day or Easter with him unless the father were fortuitously able to travel to the United Kingdom.

2. The following are the factors in favour of the mother’s relocation with the children to the United Kingdom:

   ·The mother is likely to be happier in the United Kingdom and have better financial prospects, however as has been seen, I am not persuaded that these translate into increased parenting capacity;

   ·The mother would have far better family support if in the United Kingdom, including regular access to her parents to assist in caring for the children if she is unable to;

   ·The move might reduce parental conflict, and hence the children’s exposure to it, conversely it may increase the conflict if the father is unable to process his grief at what he would perceive to be the removal of the children from his life;

   ·The children have expressed a wish to live in the United Kingdom (although as discussed, I do not give that great weight);

   ·I am satisfied that the mother would likely facilitate the children’s continuing relationship with the father.

3. On the other hand the following points weigh against the mother’s relocation with the children:

   ·The father’s presently good relationship with both children would be substantially affected and diminished;

   ·The mother’s presently excellent parenting of the children in Australia is unlikely to materially improve in the United Kingdom;

   ·There is some – albeit I assess slight – risk that the mother would not facilitate a relationship between the father and the children from the United Kingdom;

   ·Relocation may impact adversely upon the father’s psychological and emotional health.

4. Balancing those factors weighs against permitting the mother to relocate.  Particularly I am not satisfied that the benefits to the children of relocation outweigh the disadvantages, nor am I satisfied that the mother’s perceived improvements for her in the United Kingdom outweigh what would otherwise be in the children’s best interests.  I decline to make an order for relocation.

5. That then means I am obliged to consider whether or not equal time, is reasonably practicable and in the best interests of the children. As to reasonable practicality, s 65DAA(5) sets out the matters which the court is obliged to consider. As to those, so long as relocation is not permitted, the parents will live sufficiently close to each other to enable equal time. They have implemented equal time arrangements now since the consent orders of February 2016. There is no reason to think that they do not have the capacity to continue to do so.

6. As to their capacity to communicate, I have discussed that at length already.  There is some reason to think that in the future they may have the capacity to resolve difficulties that might arise in implementing equal time, but there is significant doubt attending that.

7. The final matter that the court must have regard to is the impact which equal time would have on the children in question.  As to this, Ms G said that at present the children are only merely coping with the equal time arrangement, and that they are not doing their best.  She said that the children would be much better off, in the event that they remained in Australia, spending greater time with the mother than they do with the father.  Indeed as Ms G noted in her reports, this was the wish of both of the children in any event.

8. Save for that reservation, and my concern in relation to the prospect that the parents may not be able to communicate in a way that would optimise the implementation of equal time, I am satisfied that it is reasonably practicable.

9. I then turn to consider whether or not it is in the children’s best interests. As to that, of course a number of the matters raised by s 60CC overlap with the matters I have considered in relation to reasonable practicability. However key to my thinking in relation to best interests are two of the additional considerations. The first is the evidence of Ms G that the children would do better if they were living primarily with the mother, rather than the father. She was not seriously challenged in relation to that evidence and I accept it. The second is that the children have indeed expressed wishes to spend more time with the mother. Ordinarily with children of this age, one may give their wishes little weight, but as I have discussed, in this instance I do give them some weight, because it seems likely that the expression of those wishes genuinely reflect their lived experience of the fact that they are only just coping with the stress of equal time.

10. I am not satisfied that it is in the children’s best interests for there to be orders for equal time.

11. That then obliges me to consider whether or not there should be orders for substantial and significant time.  In a sense that is unnecessary to consider in any detail, because the mother does not contend for arrangements other than substantial and significant time, in the event that she is not permitted to relocate.  However I am nonetheless independently satisfied that it is reasonably practicable for there to be orders for substantial and significant time, and I am satisfied that such orders would be in the children’s best interests.

12. The only remaining matter of debate is to the amount of time that the children spend with the father in a fortnight.  Both the Independent Children's Lawyer and the mother pressed for four nights; the father seeks seven, which although I have rejected, inferentially embraces as much time as possible.  Notwithstanding her primary contention for four nights per fortnight, in submissions, the Independent Children's Lawyer expressed the view that she did not oppose an order for five nights per fortnight.  I am satisfied that such an order is indeed appropriate as it will permit the father to maximise his engagement in the children’s lives without the adverse consequences of there being an order for equal time.  His time with the children should commence on Wednesday, after school, and conclude on Monday morning, each alternate week. 

OTHER ORDERS

1. The only other matter of significant debate between the parties was whether there should be orders restraining the activities which the father can undertake with the children, or at least the circumstances in which those activities could be enjoyed by them.  Particularly the mother sought restrictions on where the father could engage in “dangerous activities” such as quad bike riding with the children, that restriction being to “an authorised facility.”  There is no evidence as to whether there are indeed any such premises in the Town E district, and if so, what the availability of time there is.  Moreover there is no evidence as to any cost that would be involved.

2. The reality is that the father, in the exercise of parental responsibility, is obliged to ensure that the children are kept safe, and there is nothing in the material which persuades me that he cannot be so trusted.  Whilst it is the case that it appears as though in the past the father has drunk to excess on camping trips with his friends, there is no suggestion that he has thereby imperilled the safety of this children, or that he poses a risk of that in the future.  In my view there is insufficient mandate to impose the conditions upon his activities with the children as the mother seeks.

3. Otherwise I am satisfied that the additional orders sought by the Independent Children's Lawyer are in the children’s best interests, and will make them.

CONCLUSION

1. For these reasons there will be orders pronounced as set out at the commencement of this judgment.   

I certify that the preceding one hundred and twenty two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 13 July 2017.

Associate: 

Date: 13 July 2017