Nally & Nally
[2024] FedCFamC2F 669
•29 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nally & Nally [2024] FedCFamC2F 669
File number(s): HBC 245 of 2023 Judgment of: JUDGE TAGLIERI Date of judgment: 29 May 2024 Catchwords: FAMILY LAW – parenting – discrete issue – all outstanding issues resolved by consent or on a final basis except watchlist and international travel orders – where the father holds concerns of the mother absconding with the children to Country B – travel to non-Hague Convention counties – where the mother is a Country B citizen and an Australian permanent resident – risk that children may be retained outside Australia outweighs benefits of travel Legislation: Family Law Act 1975 (Cth)
Hague Convention on the Civil Aspects of International Child Abduction (25 October 1980)
Cases cited: Carter & Wilson [2023] FedCFamC1A 9
Harshani & Darnith [2019] FamCAFC 213
Huda & Yasin [2023] FedCFamC2F 1344
Hyde & Minhas [2022] FedCFamC1F 758
Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Rice & Asplund (1979) FLC 90-725
Division: Division 2 Family Law Number of paragraphs: 80 Date of last submission/s: 26 April 2024 Date of hearing: 18 April 2024 Place: Hobart Solicitor for the Applicant: Ms Eddington, Ogilvie Jennings Counsel for the Respondent: Mrs Mooney SC Solicitor for the Respondent: McVeity Dean Lawyers The Independent Children's Lawyer: Ms Bassett, Walsh Day Mihal Bassett ORDERS
HBC 245 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NALLY
Applicant
AND: MS NALLY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
3 JUNE 2024
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged and extant applications dismissed.
Passports
2.That the children’s passports be retained by the Judicial Registrar of the Federal Circuit and Family Court of Australia and held at the City C Registry of that Court and are not to be released without an Order of the Court or express written agreement of both parties.
Watch List
3.The parties are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children from the Commonwealth of Australia unless otherwise agreed to between the parties in writing or further Court Order and it is hereby requested that the Australian Federal Police give effect to this Order by placing the names of the said children on the Family Law Watch List at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the Court Orders their removal.
BY CONSENT THE COURT ORDERS THAT:
4.Mr Nally (“the father”) and Ms Nally (“the mother”) (collectively “the parents”) retain equal shared parental responsibility for the children X, born in 2008 and Y born in 2016 (collectively, “the children”).
5.The parents will ensure that the children attend the D Medical Centre for medical treatment except in the case of an emergency.
6.The parents do all things necessary to follow the recommendations of the children’s treating medical practitioners and/or allied health professionals or school counsellor.
7.The parents do all things necessary for X to attend on a psychologist at E Psychology, Town F, or another psychology provider as agreed in writing between the parties, including obtain a mental health plan from X’s General Practitioner, at the parties joint expense.
Live with and spend time with
8.The children live with and spend time with their parents as follows:
(a)With the father from Monday after school (or 9:00am on a non-school day) until Wednesday before school (or 9:00am on a non-school day);
(b)With the mother from Wednesday after school (or 9:00am on a non-school day) until Friday before school (or 9:00am on a non-school day);
(c)With the father from Friday after school (or 9:00am on a non-school day) until Wednesday before school (or 9:00am on a non-school day);
(d)With the mother from Wednesday after school (or 9:00am on a non-school day) until Monday before school (or 9:00am on a non-school day);
(e)From 12:00 noon on 26 December 2023 to 12:00 noon 2 January 2024 with the mother; and
(f)At such further and other times as agreed in writing by the parents.
9.The children communicate with the parent they are not otherwise spending time with via FaceTime as follows:
(a)With the mother on the Sunday they are in the father's care between 6:30 and 7:00pm;
(b)With the father on the Friday they are in the mother's care between 6:30 and 7:00pm;
(c)During school holiday time with the parent they are not spending time with, every third day between 6:30 and 7:00pm;
(d)At such further or other times as requested by X or Y.
10.Notwithstanding Order 8 of these Orders, commencing in 2024 and each alternate year thereafter the children live with and spend time with their parents as follows:
(a)Commencing 2 January for fourteen (14) nights with the father;
(b)For the Term 1 school Holidays from the conclusion of school on the last day of Term to the commencement of school on the first day of Term 2 with the mother;
(c)For the Term 2 school Holidays from the conclusion of school on the last day of Term to the commencement of school on the first day of Term 3 with the father; and
(d)For the Term 3 school holidays from the conclusion of school on the last day of Term to the commencement of school on the first day of Term 4 with the mother.
11.Notwithstanding Order 8 of these Orders, commencing in 2025 and each alternate year thereafter the children live with and spend time with their parents as follows:
(a)Commencing 2 January for fourteen (14) nights with the mother;
(b)For the Term 1 school holidays from the conclusion of school on the last day of Term to the commencement of school on the first day of Term 2 with the father;
(c)For the Term 2 school holidays from the conclusion of school on the last day of Term to the commencement of school on the first day of Term 3 with the mother; and
(d)For the Term 3 school holidays from the conclusion of school on the last day of Term to the commencement of school on the first day of Term 4 with the father.
12.Notwithstanding Orders 8, 10 and 11, the children will spend special occasions with their parents as follows:
(a)At Christmas:
(i)From 12:00 noon Christmas Eve until 12:00 noon Christmas Day with the mother; and
(ii)From 12:00 noon on Christmas Day until 12:00 noon on Boxing Day with the father;
(b)On Mother’s Day, with the mother from 5:00pm on the Saturday to before school Monday or 9:00am on a non-school day;
(c)On Father’s Day, with the father from 5:00pm on the Saturday to before school Monday or 9:00am on a non-school day;
(d)On the children’s birthdays, with the parent with whom the child did not wake with after school or 3:00pm on a non-school day to 6:30pm, unless the children are travelling at the time of their birthday in which case the parent not otherwise spending time with the children will communicate with the children at 6:30pm via facetime;
(e)On the father’s birthday, the children spend time with the father from after school (or 3:00pm if a non-school day) until the commencement of school the following day (or 9:00am if a non-school day) unless the children are travelling at the time of the birthday in which case the father will communicate with the children at 6:30pm via facetime; and
(f)On the mother’s birthday, the children spend time with the mother from after school (or 3:00pm if a non-school day) until the commencement of school the following day (or 9:00am if a non-school day) unless the children are travelling at the time of the birthday in which case the father will communicate with the children at 6:30pm via facetime.
Changeover
13.Changeover will occur:
(a)At the children’s school on a school day;
(b)On non-school days:
(i)At the G Venue carpark at the commencement of the father’s time; and
(ii)At the H Supermarket carpark at the commencement of the mother’s time or out the front of the father's home; and
(c)At such further or other places/times as agreed by the parents in writing.
Communication
14.The parties communicate through Our Family Wizard or similar parenting application and only by text message or telephone call in an emergency and only in relation to the children, with such communication to be respectful and reasonable at all times.
15.Pursuant to s 68B of the Family Law Act 1975 (Cth) for the personal protection of the parties and the children, the parties are each hereby restrained from:
(a)Abusing, insulting, belittling, rebuking, or otherwise speaking rudely or critically about the other party to the children, in the presence of the children or within the children's hearing and nor will they permit any other person to do so; and
(b)Discussing the allegations raised in these proceedings or any future dispute between them in the presence or hearing of the children or permitting any other person doing so.
16.The parents will use their best endeavours to positively promote the other parent to the children and not undermine their parenting capacity and encourage others in their household to do the same.
17.In the event that X or Y suffers serious ill health or an emergency, the parent who has the care of the children will notify the other parent as soon as practicable of that serious ill health or medical emergency.
18.X’s sports equipment and bag will travel between the Mother and Fathers home with X, and for this purpose the sports equipment and bag will be delivered to the home of the paternal grandmother (Ms J, K Street, Town L) by the parent whose time with X is concluding and they will advise the other parent the bag is available for collection using the Our Family Wizard application.
Independent Children’s Lawyer
19.The Independent Children’s Lawyer appointment expire at 11:59pm on 28 June 2024 at which time the Order appointing the Independent Children’s Lawyer will be discharged.
Interstate travel
20.Each parent may travel interstate with the children during any period of time that the children or either of them is in their care.
21.The parent taking the children interstate provide to the other parent no later than fourteen (14) days prior to travel an itinerary with the departure and return dates and where the children will be travelling to.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
These parenting proceedings were commenced on 20 March 2023 by the father, Mr Nally, and concern two children, X and Y, aged 16 and 7 years old respectively.
The mother, Y, separated from the father in May 2021 when, unbeknown to the father, she left the matrimonial home and moved into a shelter with the children.
The father commenced earlier parenting proceedings almost immediately post separation and these concluded when Final Orders were made by consent on 4 October 2021. The Orders provided for the parents to have equal shared parental responsibility and for the children to spend equal time with each parent.[1]
[1] Orders dated 4 October 2021, p 7, Orders 1 & 2.
The previous Final Orders also included specific Orders concerning the children’s passports and a restraint preventing the removal of the children from the Commonwealth of Australia unless otherwise agreed in writing, together with a watchlist order.[2]
[2] Orders dated 4 October 2021, p 8, Orders 12 & 13.
The current proceedings are said by the father to have been filed due to the elder child stating that he wanted to live with the father rather than in an equal time basis with the parties, which was the arrangement they had agreed after the Final Orders had been made in 2021.
Curiously, although relatively little time had elapsed, no Rice & Asplund[3] contentions were made as the mother also sought different parenting orders. Regardless, it is relevant to consider whether the circumstances of the parties and children have materially changed so to warrant discharging the Final Orders and making alternative parenting orders.
[3] (1979) FLC 90-725. Noting the hearing in these proceedings was conducted prior to the amendments that came into effect on 6 May 2024 pursuant to the Family Law Amendment Act 2023 (Cth), which included codification of the rule established in Rice & Asplund (1979) FLC 90-725 in s 65DAAA.
THE ISSUES IN CONTENTION
Although the parties’ respective positions were to seek sole parental responsibility and competing orders about the living arrangements for the children, at the commencement of the defended hearing on 18 April 2024 the parties were agreed that the Court should not disturb the previous orders for equal shared parental responsibility and invited the Court to make orders by consent that the children live in an equal time arrangement with each parent. Other issues and parenting orders that had been in dispute were the subject of Final Consent Orders made on 3 November 2023.
I was told that the only controversy requiring judicial determination was whether the watchlist order and order restricting international travel by the children should be discharged, so that the children could travel with the mother to Country B for holidays and visit the maternal family.
Both parties were legally represented at the defended hearing and the Independent Children’s Lawyer (“the ICL”) also participated in the hearing.
THE MOTHER’S CASE AND CONTENTIONS
Part of the mother’s affidavit of 4 April 2024 was marked as read,[4] and the following documents that were taken into evidence:
[4] Being [1]-[19] and [37]-[39] only.
·Exhibit R1: Child Impact Report by Court Child Expert (“CCE”) Ms M dated 4 July 2023;
·Exhibit R2: Section 67ZA Notification from Department of Children, Youth and Families filed 31 May 2023;
·Exhibit R3: Section 69ZW Report of Tasmania Police dated 5 July 2023;
·Exhibit R4: Specific Issues Report of CCE Ms M dated 2 April 2024;
·Exhibit R5: Contract for sale of N Street, Suburb O with purchase price of $515,000;
·Exhibit R6: Resident Return (subclass 155) visa document for the mother;
·Exhibit R7: Student card of the mother with an expiry date of mid-2024;
·Exhibit R8: Title Search for P Street, City Q;
·Exhibit R9: Bundle of 5 pages relating to counselling for X; and
·Exhibit R10: Letter from R Conveyancing dated 18 April 2024 regarding the purchase of property by the mother.
Senior counsel for the mother also relied on the Case Outline filed 16 April 2024, to the extent it was relevant to the limited issue in contention.
The mother contends that she ought to be permitted to travel with the children to Country B, so they may experience their right to enjoy the culture and language, spending time with their extended family in Country B and preserve their maternal family relations. She gave oral evidence under cross-examination relevant to this issue.
THE FATHER’S CASE AND CONTENTIONS
The following material was tendered in evidence and relied upon in the father’s case:
·Exhibit A1: Summary document relating to the mother’s financial position (accounts and balances) as at the date of the hearing;
·Exhibit A2: An email from the mother to the father of late 2021;
·Exhibit A3: Texts messages from the mother to the father sent late 2022; and
·Exhibit A4: Three pictures of diary notes made by the father from pages dated late 2022.
Ultimately, the father’s case was that although there were benefits to the children in being able to travel to Country B as outlined above at [12] of these reasons, the Court should not interfere with Orders 12 and 13 made on 4 October 2021 and the children should only be able to visit Country B upon him providing written consent.
In the alternative, it was his case that if the Court was minded to make orders permitting the children to travel to Country B and internationally, there should be a number of conditions attaching to the same.[5]
[5] See the father’s written closing submissions dated 19 April 2024 at [35].
RELEVANT LEGAL PRINCIPLES
It appeared to me from the written closing submissions that there was no controversy of substance about the law that applied to the issue to be determined.[6] Rather, the parties’ respective contentions varied based on the findings they urged should be made about the risk of the children not being returned to Australia by the mother.
[6] See the mother’s written closing submissions dated 21 April 2024 at [16]-[20]; the father’s written closing submissions at [21]-[25]; and the ICL’s written closing submissions dated 26 April 2024 at [11]-[16].
In the mother’s case it was in effect contended that the father held an unreasonable belief about the risk of the children not being returned to Tasmania.
In the father’s case, emphasis was placed on the serious nature of the risk to the children being too high if international travel was permitted because Country B is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), meaning the parenting orders made in this Court for the children to live and spend time with him equally could not be enforced.
There was agreement that the Court was required to have regard to the following considerations when evaluating what orders should be made about international travel:[7]
(a)The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, existence of business interests and existence of residence or the residence of close family and friends in Australia);
(b)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child-related issues);
(c)The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there);
(d)Whether the country of travel is a signatory to the Hague Convention; and
(e)The financial circumstances of each party.
[7] Line & Line (1997) FLC 92-729 (“Line & Line”).
The Court in Line & Line noted the considerations previously highlighted in Kuebler & Kuebler (1978) FLC 90-434, an authority referred to by both the father and ICL in their closing submissions. These considerations include the length of proposed stay, bona fides of the application, the effect on the child of any deprivation of access, any threats to the welfare of the child in the circumstances of the proposed environment, and the degree of satisfaction the Court may have that a promise of a return to Australia would be honoured.
The father submitted the Court must be cautious where there is a long history of distrust between the parties,[8] or where there is no specific plan for travel proposed or open-ended orders sought.[9]
[8] Harshani & Darnith [2019] FamCAFC 213 at [78].
[9] Hyde & Minhas [2022] FedCFamC1F 758 at [56] & [62]; and Huda & Yasin [2023] FedCFamC2F 1344 at [27]-[29].
The mother’s submissions emphasised the ties she had to Tasmania and that in view of those, the risk of non-return was effectively nil or exceptionally low, such that the children should not be deprived of the benefits of international travel.
UNCONTROVERSIAL EVIDENCE AND FACTS
The mother was born in Country B and is a citizen of that country but a permanent resident of Australia. The father and the children were born in Australia and are Australian citizens. The children have lived their entire lives in Australia but previously visited Country B with the parents, most recently in 2019.
Each party acknowledges the benefits to the children of being parented by both parents, but they have had difficulties in approaching some issues and decisions about the children cooperatively and effectively. For example, the parties have been at odds about the precise nature of counselling or psychological treatment for the children, particularly the elder child, vaccinations for the younger child and the spend time and live with arrangements for both children. These differences have caused conflict and the children are aware of the disputes.[10]
[10] Exhibit R1, Child Impact Report at [25]-[26] & [33]. See also Exhibit A4, diary notes made by the father.
Both parties agreed to the watchlist order and restraint on the children’s international travel unless there was written consent of both parties when Final Orders were made in October 2021.
Both parents acknowledged the importance and benefits of the children having the opportunity to engage in their Country B culture, language and extended family and heritage.
There is no evidence of physical family violence between the parties,[11] but the mother alleged controlling and coercive behaviour by the father during the relationship and post separation. There is no evidence or allegation of drug or alcohol abuse affecting either party’s parenting.
[11] The mother’s written closing submissions dated 21 April 2024 at [26](a).
The children are settled and progressing satisfactorily at their respective schools.
The mother owns real estate in Tasmania and has a one quarter interest in real estate in Country B.
The mother does not have other family members in Tasmania but has a sister in Brisbane with whom she does not communicate or spend time. The rest of her large extended family, including two brothers and many cousins, are in Country B and she maintains frequent contact with them by electronic means. The children are also involved in these communications.
The children do not have Country B passports. They have Australian passports that are currently held in the City C Registry of the Court pursuant to the Final Orders made by consent in October 2021.
DISCUSSION OF OTHER EVIDENCE AND RELEVANT FINDINGS
The mother gave oral evidence before the Court that can be summarised as follows:
(a)Although she has thought about obtaining Australian citizenship, she has not pursued this because it would require her to abandon her Country B citizenship and that would deprive her of holding assets there.[12] Oddly, she later stated that she intended to become an Australian citizen as soon as possible.
(b)The mother recently inherited a one quarter share of property in Country B following her parents passing away. She had previously held the title documents relating to this property but “a couple months ago” sent them to her brother in Country B. The purpose of holding the documents in the first place and being required to send them back more recently was the subject of confusing and vague evidence, leading me to conclude that there was no plausible explanation and the mother was not being completely forthcoming.
(c)The mother owns real property in Australia, including P Street, City Q that she and the children live in, and another property that she will shortly complete the purchase of: N Street, Suburb O. She intends to rent the latter property as a holiday rental.
(d)The mother has formal qualifications that she obtained in Country B but said she would need to do further training to practice in her profession in Country B.
(e)The mother’s qualifications are not recognised in Australia and she would need to undertake further study in Australia to work as a professional.
(f)The mother is presently studying a certificate course online, which should be completed by mid-2024.
(g)The children do not speak Country B language but the younger child is interested in learning it and the mother is teaching her. The elder child’s connection to Country B culture is currently through blessings and prayers. Otherwise, she said there are limited opportunities in Tasmania to experience Country B culture and language.
(h)She has never made enquiries about Country B citizenship for the children. She agreed that she looked into getting Country B passports for the children in 2019 when they had to pay a fee for overstaying their visas while on holiday in Country B. She said she has not made further enquiries since then and can only obtain Country B passports for them if the father provides his signature.
(i)The mother intends to travel to Country B in early 2025 for a wedding and also in mid‑2025, and these are currently her only plans to travel.
(j)That if she obtained her Australian citizenship, she and the children could travel to Country B and stay for a month on a holiday before needing to pay and apply for a further visa.
[12] Consistent with her affidavit filed 4 April 2024 at [9] & [11].
The father’s oral evidence was, in summary, as follows:
(a)He would not be troubled by the children travelling to Country B if it were a Hague Convention Country.
(b)Even if he were given 60 days’ notice of the mother’s travel with the children and he held the younger child’s passport when she is not travelling, he is concerned the children would not be returned to Australia.
(c)He cannot trust the mother.
(d)He agrees that many, but not all, of the communications between the parents are courteous and added “we get by”. He also noted that communication had improved since using Our Family Wizard.
(e)The dispute about who the elder child should see for counselling arose because he wanted him to see a psychologist not a counsellor. He agreed he did not appreciate that the person at S Centre, who the mother wanted the elder child to see, was in fact a psychologist.
(f)He denied that his reaction to differences between the parents about counselling and vaccination was a case of “his way or the highway”, but agreed the only reason he considered the mother had a poor attitude to parenting related to her disagreeing with vaccinating the younger child at five years old.
(g)He denied being controlling over finances or limiting the mother’s access to money during the relationship. Rather he stated that their income was paid into their mortgage account and then drawn down if needed, and that this way of managing their finances applied to both of them. He said he always ensured the mother had $100 per week, half in cash and half in an account, and that she had access to a credit card with a $20,000 limit. He agreed he would check bank statements but he denied he did so to control the mother.
(h)He denied that his attitude to the children’s travel to Country B was reflective of his desire to control the mother.
(i)He agreed he had spoken to the elder child about his worries of the children not returning to Australia if they travel to Country B. When asked to concede this was not optimal, he stated that he had been asked questions about travel to Country B and he didn’t want to answer but felt like he had to. He agreed the elder child was aware about the conflict around travel to Country B.
(j)When asked by the ICL when the discussion with the elder child referred to in the preceding subparagraph occurred, he stated he thought it was mid 2023 when the child asked him about international travel because his mother had told him about this issue. As the father’s answer referred to a diary note he had made at the time of the discussion, I made an Order for it to be produced. It was subsequently produced,[13] and was the subject of closing submissions.
(k)The elder child has not asked about international travel since the occasion referred to in subparagraphs [33](i) and (j) above.
(l)He denied that he had spoken about the breakdown of the relationship with the children and said, “he’d always tried to shield them”, although he agreed he would answer questions when they asked.
(m)He maintained that he initiated these proceedings because the elder child wanted, and had asked, to live with him.
(n)He agreed that the elder child would probably be able to contact him from Country B if he needed to.
(o)He agreed that, when it related to his children, any degree of risk was unacceptable. However, in response to a question from the Court he replied that he would be comfortable with the elder child travelling internationally now but would want the younger child to be 14 years old and for them both to be of an age where they were not reliant on each other.
[13] Exhibit A4.
A Specific Issues Report was ordered for the purpose of informing the Court about the advantages and disadvantages of allowing the children to travel to Country B.[14] Having regard to the contents of the Specific Issues Report, it appears to largely report the parties’ competing claims about the advantage of allowing travel to Country B versus the risks or concerns of non-return.
[14] The Specific Issues Report dated 2 April 2024 was received by the Court and marked Exhibit R4.
CCE Ms M gave oral evidence at the hearing and her additional views in summary were:
(a)She agreed that there were multiple ways to maintain a connection with culture other than travel to that country, including religion, education and learning about culture or language, and engagement in festivals or with cultural groups. She later said that these things may be more richly experienced in the context of their own family involvement.
(b)She agreed that the children and mother could maintain family connections through phone or video calls but said this was dependent on the strength of the connection and having initial in-person connections would support continuing online connections.
(c)A possibility will always exist, small or otherwise, that the mother may not return from Country B if permitted to travel there with the children.
(d)When evidence of the mother’s financial position and property interests were put to her, the CCE stated that her views on the benefits of travel for the children had not been premised on either party’s financial position. Rather, they were premised on the information they gave about their connections and motivations or considerations about supporting the children to remain living in Australia.
(e)That a high level of conflict continues to exist between the parties.
CCE Ms M stated in the Specific Issues Report that “there will always be a small possibility” of the children not being returned and appears to arrive at this conclusion on the basis of the mother’s period of residence in Australia and visa difficulties. However, this seems to ignore the fact that the mother remains a citizen of Country B and did not put any evidence before the Court about the children being refused visas to remain in Country B. Her evidence related to her understanding that the father would need to consent to the children obtaining Country B passports, but that is a very different issue to whether the children could remain in Country B with their mother, a citizen of Country B.
The attitudes of the children about travel to Country B are before the Court through the ICL and set out in her case outline:[15]
In respect of international travel, specifically to [Country B], [Y] has been more animated and interested than [X] about travelling and neither want to travel without the other. [X] is also aware of his fathers worry that they may not return to Australia. [X] did not express any view as to if/when he would like to travel.
The parents did not object to the views of the children being conveyed to the Court in this manner.
[15] ICL’s Case Outline filed 16 April 2024, pp 5-6.
ASSESSMENT OF EVIDENCE
Central to the father’s case is the contention that permitting the children to travel internationally unacceptably jeopardises his capacity to have a meaningful relationship with the children and for them to live with him in a shared care arrangement, because the risk of the children not being returned if permitted to travel to Country B with the mother is too high.
The mother’s case adopts the uncontroversial evidence and concession by the father that there is benefit to the children being able to experience their mother’s culture, language, and spend time with their extended maternal family. It then sets out to demonstrate that the risk of the children not being returned is non-existent or negligible. That is, that the father’s perceived risk that the children would not be returned is not real or so negligible that it can be properly addressed by the mother being required to pay a bond.
What is the nature and extent of the risk that the children would not be returned?
The facts not in dispute or findings that I make that weigh against the mother having ties to Australia which inform the risk of the children not being returned to Australia are:
·That the parents have been involved in ongoing parenting disputes and it is foreseeable that these disputes will continue to a degree based on the past informing the future and there being equal shared parental responsibility.
·The mother has no family whatsoever in Tasmania and no evidence was put to the Court about her having friendship or personal bonds here. She only has one sibling in Australia, with whom she does not spend time or communicate.
·She does not hold employment in Tasmania and I infer that she has never worked as a professional in Australia, noting her evidence referred to above at [32](e).
·She is not an Australian citizen and remains a citizen of Country B despite having lived in Australia for at least 17 years.
·She has an interest in property in Country B and has been reluctant to relinquish that interest in order to become an Australian citizen.
There are also facts not in dispute weighing for the mother having ties to Australia and they are:
·She has been a permanent resident of Australia since 2019 and lived here for about 17 years; and
·She has interests in two properties in Tasmania, owning one and having entered into a contract to purchase a second that is due to complete shortly.
A fact that, in my view, weighs neutrally in the assessment of the mother’s ties to Tasmania and Australia more broadly is that she is studying in Tasmania. The study is an online course and in a field connected to her professional qualification,[16] and I infer, relevant to enabling her to work in her field or similar either in Tasmania or Country B.
Strength of motives not to return?
[16] Online certificate course in Tasmania.
History and degree of conflict between the parties
Although it was emphasised by counsel for the mother that the conflict and disputes between the parents was historical, I do not accept that to be wholly the case. It was not until the eleventh hour that the parties agreed to abandon their opposing positions about each seeking sole parental responsibility and reach agreement about the living arrangements for the children, which had fallen into dispute again after the making of Final Orders in October 2021.
To the extent that the parties have largely arrived at agreements about many of the parenting arrangements,[17] this occurred in the spotlight of Court proceedings and assisted by the views of the CCE, the ICL and lawyers. This assistance will not be present once the Court makes the required determination. Further, despite the mother consenting to restraints on international travel and a watchlist order in 2021,[18] she now seeks that those orders be discharged.
[17] Orders dated 3 November 2023.
[18] Orders dated 4 October 2021, Order 12 & 13.
The evidence before the Court and the current proceedings demonstrates a level of dispute that remains problematic for the parties and to which the children have been exposed, particularly X. I accept the views of the CCE about this and the evidence of the father, which displayed that both the mother and father speak with X about the parenting disputes.[19] Although counsel for the mother sought to diminish the probative weight of the diary notes produced by the father,[20] the notes are in effect consistent with the view formed by the CCE and having had the benefit of hearing the father’s evidence, I accept that he recorded an accurate account at the time of the discussion with the child.
[19] Exhibit R1, Child Impact Report at [25]-[26], and Exhibit A4.
[20] The mother’s written closing submissions dated 21 April 2024 at [24], referring to Exhibit A4.
The exposure to conflict is likely to continue to some extent about a range issues and parenting arrangements,[21] particularly because the parties now do not seek to disturb the Order previously made for equal shared parental responsibility, which necessarily means they will need to endeavour to make joint decisions. In this regard, the purpose of [24] of the mother’s closing submissions is unclear and I agree that both parties have involved the children in the dispute, and it is this precisely that highlights the likelihood of the harm identified by the CCE.
[21] For example, about the high school the younger child will attend.
The conclusion at [46] is informed by the parties’ history of dispute and disagreements referred to above at [24]. Consequently, it is likely the children will to be subjected to a degree of emotional distress and I so find, accepting the evidence of the CCE.[22]
[22] Exhibit R1, Child Impact Report, at [27] & [33].
As to [25] of the mother’s closing submissions, I agree that there is incongruity in the father’s evidence regarding the mother’s attitude to her parental responsibilities and his acceptance of equal shared parental responsibility, and this does not auger well for the reduction or limitation of future disputes.
The agreement about equal shared parental responsibility is tenuous for the reasons stated above. It is unsurprising that there are no threats to take or retain the children overseas because of the existence of the Final Orders made by the Court in 2021, and I do not accept that the parties’ differences are purely historical and unlikely to recur.
For all the reasons given at [43] onwards, I am satisfied that the nature and level of conflict and dispute about parenting arrangements is moderate and likely to continue. I find this to be a factor weighing as a motivator not to return the children.
Ties between the mother and Australia
I am not persuaded that the mother’s ownership of real estate in Tasmania is a particular motivator to remain or return here. There is no evidence to suggest that she cannot hold interests in real estate as a resident of Australia when living overseas and it is likely she can. The real estate is capable of being sold at any time or can be retained and used to generate income. If the mother had no interest in property in Country B, her ownership of property in Australia would be a motivator to remain and materially weigh as a factor reducing the risk of non-return. However, the mother does have property in Country B and I infer, given her financial position evidenced by the bundle of financial information received by the Court,[23] that she is able to live comfortably in Country B. Because the mother owns real estate in both Australia and Country B, I consider this to be a neutral factor in the evaluation of her motives not to return, especially because she has autonomy and control of such property ownership.
[23] Exhibit A1.
The absence of personal, social and familial ties for the mother in Australia is a likely motivator for her not to return, as I infer she has an isolated existence here.
The children’s ties to Tasmania, friends, school, recreational activities will serve as a motivator for the mother to return as I find she would face a considerable resistance from X in particular if she failed to return him to Tasmania.
Other considerations
It is an agreed fact that Country B and Country T[24] are not Hague Convention countries. This increases the risk of the children not being returned if international travel is permitted.
[24] Where the mother has also expressed interest in visiting with the children, per [19] of the mother’s affidavit filed 4 April 2024.
Based on the evidence before the Court, the parties both have comparable financial circumstances on an assets basis. However, the father’s income is clearly stable and higher than the mother’s. The uncontroversial evidence is, and I find, that the mother could afford to pay a significant sum as a bond or security as a condition of any order permitting international travel.
It was suggested that if the mother did not return the children, X would likely find a way to return given his age, maturity and capacity to arrange this through contact with the father. My initial impression was that this was probably correct, but on full evaluation of the evidence, I do not accept the submission. I accept that he would be able to contact and communicate with the father, but lack of knowledge of Country B language, laws and systems will create large practical barriers to him, as a child, successfully arranging his return to Australia. I also infer that it would place a huge stress on him and likely a degree of emotional harm.
As the younger child has expressed a view that she would only wish to travel with her brother,[25] this may suggest that she would want to accompany him if he attempted to return, but this imposes an even greater burden on X and one of more serious concern and risk of harm.
[25] ICL’s Case Outline filed 16 April 2024 at p 5 and referred to above in these reasons at [37].
Having heard the father give evidence under cross-examination and accepting his evidence as truthful, I am not persuaded that the mother has established coercive and controlling behaviours on his part. I accept that within the family unit prior to separation, the parties were both conscious of finances and the structure of their financial affairs was for the benefit of the family unit and to their mutual satisfaction. While a limited cash allowance or being asked about items of expenditure on bank statements in some circumstances may amount to coercive conduct, noting that context is highly relevant,[26] in the circumstances of these parties I am not persuaded that it was. I accept the father’s evidence that the mother had access to the credit card for her use, had a modest weekly cash allowance and if any further expenditure was required, they would access their bank account. The mother’s evidence lacked detail, for example not particularising instances where she was deprived of the ability to purchase things.
[26] Carter & Wilson [2023] FedCFamC1A 9.
I accept the father’s evidence that he asked the mother about her spending in the context of managing and promoting the family’s finances. Although there was implicit criticism of the father for providing regular, limited sums to the mother, it is not disputed that she had access to the credit card, meaning she was able to spend at her discretion. The mother also appears to be financially conscious about not spending unnecessarily,[27] and I do not accept that there was coercive control by the father.
[27] Exhibit A2, email from the mother to the father in late 2021 at 1:23PM, being an example of the mother’s attitude to avoiding expenditure if possible.
As to other allegations of controlling conduct by the father, such as monitoring or limiting phone calls, family relations and friendships, I found the mother’s evidence unpersuasive, particularly because her primary evidence as to the strength of her and the children’s relationship with family in Country B belies the allegations.
For the reasons at [58] to [60], I am not persuaded that the father’s opposition to international travel is a means of control. Instead, I find that his opposition lies in, and originates from, the circumstances in which the mother left the family home: without any notice and taking the children and their passports with her. In factual circumstances where the mother agrees that there was no physical violence or drug, alcohol or mental health issues on the father’s part,[28] it is reasonable and unsurprising that the father would hold valid concerns about the risk of the children being permanently removed from Australia, despite the mother’s evidence about her perception of control which I have not been satisfied amounts to family violence by the father.
[28] Mother’s closing submissions dated 21 April 2024 at [26].
Although the mother has purported to give an explanation for taking the children’s passports with her at separation,[29] the explanation does not detract from the fact that it has caused significant mistrust between the parents that has laid a foundation for parenting disputes and conflict to which the children have been exposed. This appears not to have been acknowledged in the mother’s case, which has focused on the conflict being primarily caused by the father.
[29] The mother’s affidavit dated 4 April 2024 at [5].
The mother’s evidence was lacking about the ability for her brothers and extended family in Country B to travel to Tasmania for the purpose of maintaining and promoting Country B culture, language, relations with extended family and heritage. I am satisfied that the benefits to the children of Country B culture, language, relations with extended family and heritage can be achieved by other means. In particular, the mother’s financial position permits her to pay for her family to visit in Tasmania and, as the CCE stated, there are other means of providing the benefits to the children.[30]
[30] See above at [35](b) and (d) of these reasons.
EVALUATION AND DETERMINATION
The findings and reasons at [38] to [63] demonstrate that there are factors that weigh for and against the existence of a material risk of the mother not returning the children to Australia. On balance, collectively weighing all the factors, I consider that the risk of the mother not returning the children is significant and real. Such risk has exceptionally serious consequences in severing the children’s relationship with the father and depriving them of the right to an in person and meaningful relationship with him. Therefore, applying the relevant principles discussed at [19] to [21] above my discretionary assessment is that the weight of relevant factors is against making the order sought by the mother.
I consider that the father’s concerns are not ill-founded and his opposition to the discharge of the previous Final Orders is not due to his seeking to coerce or control the mother but for valid reasons. This is particularly because he does not oppose international travel to Hague Convention countries. I consider that the significant risk of non-return from a non-Hague Convention country and the degree of harm to which the children would be exposed in such eventuality is not acceptable.
The closing submissions of the ICL were that a cautious view should be taken if the Court was minded to make orders allowing the children to travel internationally.[31] I agree entirely and the findings I have made resonate the tenor of the ICL’s submissions, particularly that the parents conflict continues to be high and that the mother could have done more to mitigate the risk referred to at [64] above.
[31] ICL’s written closing submissions dated 26 April 2024 at [35].
I have considered whether the conclusion at [64] above can be adequately ameliorated by an order for the mother to enter a bond with security noting her closing submissions.[32] However, her submissions about what sum would serve the purpose of ensuring the children’s return were in my view quite unsatisfactory.
[32] The mother’s written closing submissions dated 21 April 2024 at [37].
The mother submitted that a security bond of $20,000 was affordable. However, the mother’s evidence about her financial circumstances contains a number of unexplained anomalies that leads me to find the evidence about her capacity and willingness to pay a security bond unreliable. In particular:
·When cross-examined about her financial circumstances and Exhibit A1,[33] she initially stated she would have $100,000 available after completion of her purchase of the Suburb O property, furnishing it and paying stamp duty;
·When then pressed about the figure stated in Exhibit A1 of $200,000, she agreed that would be the sum at her disposal before paying stamp duty and furnishing the Suburb O property; but
·No evidence or explanation was given about the reference to the use of her remaining funds for “a deposit for a unit in Melbourne” in Exhibit A1.
[33] Documents relating to the mother’s financial position, including a summary as at 17 April 2024.
The state of the evidence causes me to accept that the mother’s attitude to ownership of property is changeable and she has not been fully transparent.[34] Further, I cannot be satisfied of making a just and fair assessment of the sum of a security bond, should one be ordered. Particularly noting that the mother now works and I have no evidence about her regular and necessary living expenses for herself and the children.
[34] Consistent with the effect of [27] of the father’s written closing submissions dated 19 April 2024.
I also consider the sum of $20,000 falls short of what is likely to be required to fund legal proceedings for the father in a non-Hague convention country, which is a relevant consideration.
I accept the submission made on behalf of the father that the mother over-portrayed her connections to Australia and under-played her connections to Country B.[35]
[35] The father’s written closing submissions dated 19 April 2024 at [28]-[30].
I also agree that there is vagueness and a degree of inconsistency and uncertainty about the mother’s plans to travel internationally.[36] In particular, her affidavit evidence referred to travel to Country B and Country T,[37] both non-Hague Convention countries, while her case focused on travel to Country B and no detail whatsoever was provided about Country T. Concerning proposed travel to Country B, no specific dates or details were provided for the wedding said to take place in early 2025 and where in Country B it would occur. The specifics of the travel are highly relevant in light of the children’s attendance at school for continuity of education and participation in extracurricular activities important to them.
[36] The father’s written closing submissions dated 19 April 2024 at [32].
[37] The mother’s affidavit dated 4 April 2024 at [19].
I have considered whether the unsatisfactory aspects of the mother’s evidence are explicable by the fact that English is the mother’s second language, but I do not accept that to be so. At times the mother’s evidence was quite guarded and gave the impression that she was not being fully open and frank. An example of this was her evidence about the title documents for the property in Country B, why she initially had possession of them and that she had recently sent them to Country B for a purpose that was vague and unclear. I consider that it attempted to portray that she would abandon her interests in property in Country B and become an Australian citizen. But that is inconsistent with her oral evidence and she has had years to obtain citizenship in Australia.
Although the CCE categorised the chance of the mother not returning the children to Australia from Country B as a “small” possibility, she has not had the benefit of hearing the parties’ evidence, it being tested or made an assessment through the prism of applicable legal principles, referred to above at [19] to [21]. In addition, it is apparent from her oral evidence that she simply accepted the mother’s claims at face value.[38]
[38] Referred to above at [35](d).
Finally, no attempt was made to explain why the mother consented to the Final Orders restricting international travel in 2021 and what has changed since then to warrant revisiting them.In my view this is troubling, particularly because the mother left the family home with the children’s passports, an indicator that she had intentions of international travel because the father had, and has, no reason to live anywhere with the children other than Australia.
I infer that the Final Orders were considered to be in the best interests of the children by both parents at the time they were made and I have not been persuaded to discharge them.
I have not been persuaded to discharge the existing Final Orders but am prepared to vary them to permit international travel to Hague Convention countries and limit the duration of the watchlist order.
In the circumstances, where Final Parenting Orders were made on 3 November 2023 by consent, I could simply make no further parenting orders save for correcting what is obviously an unintended error in Order 1, where it refers to the discharge of Order 12 of the Final Orders made on 4 October 2021. However, that would mean that the parenting orders for the children would be found across part of the Final Orders made on 4 October 2021, those made on 3 November 2023, the Orders made in this judgment pursuant to the slip rule,[39] and any other agreed orders permitting international travel with the children to Hague Convention countries.
[39] To correct the discharge of Order 12 of the Final Orders made October 2021.
I consider this to be confusing to the parties and, noting the findings about the level of conflict between the parties, undesirable to have the state of affairs described at [78]. Accordingly, I will publish Final Orders according to the consolidated Final Orders as set out in the draft document distributed to the parties and any additional agreed final orders concerning the variation of what were Orders 12 and 13 of the Final Orders made 4 October 2021, providing such consent orders are consistent with the reasoning within this judgment.
If additional orders are to be made beyond the draft orders distributed, a consent minute is to be submitted to the Chambers of Judge Taglieri by 4:00pm on Friday 31 May 2024. Final Orders will then be published.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 29 May 2024
0
4
2