Nemcova & McLeod
[2024] FedCFamC1F 752
•8 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nemcova & McLeod [2024] FedCFamC1F 752
File number(s): BRC 6392 of 2022 Judgment of: JARRETT J Date of judgment: 8 November 2024 Catchwords: FAMILY LAW – PARENTING – Applicant proposed relocating with children to the United Kingdom – Children aged six and three – Children have good relationship with respondent – Where relationship will still be one of positive significance following relocation – Where applicant’s parenting currently adequate despite poor mental health – Where applicant’s wellbeing will be improved if permitted to relocate – Whether best interests adversely affected to justify imposition on parent’s right to relocate – Order made permitting relocation Legislation: Family Law Act 1975 (Cth) s 60CA and s 60CC Cases cited: Adamson & Adamson (2014) 51 Fam LR 626
Fitzwater & Fitzwater (2019) 60 Fam LR 212
Godfrey & Sanders [2007] FamCA 102
Isles & Nelissen (2022) 65 Fam LR 288
Division: Division 1 First Instance Number of paragraphs: 91 Date of hearing: 2, 3 & 4 September 2024 Place: Brisbane Counsel for the Applicant: Mr Jordan Solicitor for the Applicant: O’Reilly Shaw Lawyers Counsel for the Respondent: Ms Downes Solicitor for the Respondent: BGM Family Lawyers Counsel for the Independent Children’s Lawyer: Ms Wardle Solicitor for the Independent Children’s Lawyer: Gary Rolfe Solicitor ORDERS
BRC 6392 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NEMCOVA
Applicant
AND: MR MCLEOD
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
8 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The applicant and respondent have joint decision making for all major long-term issues affecting the children X, born 2018, and Y, born 2021.
2.The children live with the applicant.
3.The applicant be at liberty to relocate the children’s permanent residence to the United Kingdom after 1 June 2025.
4.Orders 5 through 18 shall only apply prior to the children’s relocation to the United Kingdom.
5.The children shall spend time with the respondent each alternate weekend from 9.00am (or after school, if a school day) Friday until 9.00am (or before school, if a school day) on the immediately following Monday.
6.During the children’s school holiday periods and subject to the other provisions of these orders, the children shall spend time with the respondent as follows:
(a)for the December/January 2024 school holiday period, from the conclusion of school on 12 December 2024 until 4.00pm on 26 December 2024, and from 9.00am on 9 January 2025 until 9.00am on 23 January 2025;
(b)from conclusion of school on 4 April 2025 to before school on 22 April 2025, being the entirety of the April 2025 school holiday period; and
(c)for the purposes of these orders, following the commencement of the new school term, the children’s time with the respondent will continue to apply, as if the usual arrangement had continued ‘in the background’ throughout the relevant school holiday period (noting that the intention is to ensure the usual weeks are not ‘flipped’ as a consequence of the school holiday period.
7.Unless otherwise agreed between the applicant and respondent in writing:
(a)the children shall spend Christmas Day in 2024 with the respondent, in accordance with order 6(a) herein, and shall celebrate Christmas with the applicant when they return to her care in accordance with that order;
(b)the children shall spend Easter in 2025 with the respondent, in accordance with order 5(b) herein; and
(c)the applicant is at liberty to speak to the children for one further occasion at 7.00am on Christmas Day 2024 and on Easter Sunday in 2025 and for that purpose, the applicant will initiate video contact.
8.Unless otherwise agreed between the applicant and the respondent in writing, if a child’s birthday falls when they are in the applicant’s care:
(a)if not a school day, the children shall spend time with the respondent from 12.00pm until 5.00pm on that day; and
(b)if a school day, then the respondent is at liberty to speak to the children for one further occasion at 7.00am on the child’s birthday and for that purpose the respondent will initiate video contact.
9.Unless otherwise agreed between the applicant and the respondent in writing, if a child’s birthday falls when they are in the respondent’s care:
(a)if not a school day, the children shall spend time with the applicant from 12.00pm until 5.00pm on that day; and
(b)if a school day, then the applicant is at liberty to speak to the children for one further occasion at 7.00am on the child’s birthday and for that purpose the respondent will initiate video contact.
10.Unless otherwise agreed between the applicant and the respondent in writing, if the applicant’s birthday falls when the children are in the respondent’s care:
(a)if not a school day, the children shall spend time with the applicant from 12.00pm until 5.00pm on that day; and
(b)if a school day, then the applicant is at liberty to speak to the children for one further occasion at 7.00am on the child’s birthday and for that purpose the respondent will initiate video contact.
11.Unless otherwise agreed between the applicant and the respondent in writing, if the respondent’s birthday falls when the children are in the applicant’s care:
(a)if not a school day, the children shall spend time with the respondent from 12.00pm until 5.00pm on that day; and
(b)if a school day, then the respondent is at liberty to speak to the children for one further occasion at 7.00am on the child’s birthday and for that purpose the respondent will initiate video contact.
12.Unless otherwise agreed between the applicant and the respondent in writing, if Father’s Day is not a day in which the children are in the respondent’s care, the children shall spend time with the respondent from 9.00am on Father’s Day until 9.00 the immediately following Monday.
13.Unless otherwise agreed between the applicant and the respondent in writing, if Mother’s Day is not a day in which the children are in the applicant’s care, the children shall spend time with the applicant from 9.00am on Mother’s Day until 9.00 the immediately following Monday.
14.Unless otherwise agreed between the parties in writing, changeover shall occur as follows:
(a)where changeover is to occur on a school day:
(i)the respondent or his nominee shall collect the children from school at the commencement of their time with the respondent; and
(ii)the respondent or his nominee shall return the children to school at the conclusion of their time with the respondent; and
(b)where changeover is to occur on a non-school day:
(i)the respondent or his nominee shall collect the children from C Service Station at the commencement of their time with the respondent; and
(ii)the respondent or his nominee shall return the children to C Service Station at the conclusion of their time with the respondent.
15.The applicant shall facilitate the children communicating with the respondent between 4.20pm and 4.50pm each Tuesday, Thursday and Saturday that the children are in her care when the respondent is on night shift and between 6.00pm and 6.20pm each Tuesday, Thursday and Sunday that the children are in her care when the respondent is on day shift, with the respondent to initiate video contact.
16.The respondent shall facilitate the children communicating with the applicant between 4.20pm and 4.50pm each Sunday that the children are in his care, with the applicant to initiate the video contact.
17.The children are at liberty to communicate with the party with whom they are not in the care of at all reasonable times as requested by the children or either of them via video contact and the party with the care of the children shall facilitate that contact.
18.The caring party shall facilitate the children communicating with the non-caring party between 7.00am and 7.30am on special occasions, as provided herein and the non-caring party will initiate the video contact on those special occasions.
19.Order 20 apply only following the children’s relocation to the United Kingdom.
20.The children spend time with the respondent as agreed between the parties in writing, and failing agreement as follows:
(a)on up to four occasions each calendar year (to coincide with the children’s school holiday periods):
(i)until 1 January 2025, for up to seven (7) consecutive nights on each occasion;
(ii)from 1 July 2025, for up to ten (10) consecutive nights on each occasion;
(iii)from 1 January 2026, for up to two (2) consecutive weeks on each occasion; and
(iv)from 1 July 2026, for up to three (3) consecutive weeks on each occasion;
(b)for the purposes of facilitating the children’s time with the respondent:
(i)by no later than 1 December 2025 and each calendar year thereafter, the applicant shall provide the respondent with notice of the dates that she intends to travel to Australia with the children to facilitate the children spending time with the respondent in Australia on one occasion the following calendar year (with such occasion to include the period from Christmas Eve to Boxing Day in even-numbered years);
(ii)by no later than 31 December each calendar year, the respondent shall provide the applicant with notices of the dates that he intends to travel to the United Kingdom to see the children on up to three occasions in the following calendar year (with the period from Christmas Eve to Boxing Day excluded in odd-numbered years);
(iii)no later than sixty (60) days prior to the intended travel, the travelling party is to provide to the other party copies of purchased flight tickets and accommodation itineraries; and
(iv)the applicant and respondent shall each pay their own costs of and associated with the necessary travel and/or accommodation in order to comply with the immediately preceding Orders and the applicant shall pay and be responsible for the return flights for the children to spend time in Australia each calendar year.
21.Changeover shall be as agreed between the parties in writing, and failing agreement:
(a)changeover in Australia shall take place at Brisbane Airport; and
(b)changeover in the United Kingdom shall take place at the relevant nursery/school if the children are attending nursery/school, and if not then at a location specified by the applicant.
22.The applicant shall facilitate the children to have video contact with the respondent:
(a)on not less than two occasions per week at times as agreed between the applicant and the respondent, with the applicant to initiate the video contact; and
(b)at an agreed time on the respondent’s birthday, the children’s birthdays, Father’s Day and Christmas Day.
23.During the time the children spend with him, the respondent shall facilitate the children to have video contact with the applicant on not less than two (2) occasions per week at times as agreed between the applicant and respondent, with the respondent to initiate the video contact.
24.The children shall be at liberty to telephone the other party with whom they are not in the care of at all reasonable times as requested by the children or either of them and the party with the care of the children shall facilitate that contact.
25.The applicant and respondent shall ensure that within fourteen (14) days of any request to do so, each shall do all acts and things and sign all deeds, documents, instruments and writings as may be necessary so as to facilitate the children’s travel to and from Australia, including but not limited to, signing all Australian and British Passport Applications and/or renewal and/or extension applications and any other necessary visa/travel documentation for the children and the costs associated with obtaining said passports and/or documentation is to be borne equally between the applicant and respondent.
26.Each party must keep the other advised as to the educational institutions, religious organisations and extra-curricular activities the children might attend and participate in from time to time.
27.Each party must keep the other advised as to the names, addresses and telephone numbers of the children’s treating health professionals, and shall keep the other party informed of any such changes in those details.
28.Each party must keep the other informed of appointments made for the children with any health professional specialists, including by providing the details of and reasons for that appointment.
29.In the event of a medical emergency, the party who the children are with is to contact the other party by way of telephone as soon as reasonably practicable of the emergency occurring, and provide full details of the emergency.
30.This Order authorises and directs any educational institution or extra-curricular organisation upon which the children or either of them may attend to provide to each party, at the expense of the requesting party, any information and copies of documentation as may be requested by them from time to time.
31.This Order authorises and directs any medical or associated practitioner providing treatment to the children, or either of them, to provide to each party, at the expense of that requesting party, any information and copies of documentation as may be requested by them from time to time.
32.Each party shall keep the other informed in relation to the home address of the children, the party’s telephone contact number and email address and in the event that any of those contact details change, the party must notify the other within 48 hours of such a change including by providing the updated contact details.
33.The applicant and respondent shall at all times:
(a)respect the privacy of the other party;
(b)speak of the other party respectfully and refrain from vernal abuse of the other party and sending abusive or denigrating correspondence to the other party; and
(c)refrain from any form of denigrating or insulting the other party, or their extended family relatives, in the presence of or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other party or their extended family relatives in the hearing or presence of the children.
34.In the event the applicant and respondent are unable to reach agreement in relation to major long term issues affecting the children, the parties must attend upon an agreed, appropriately qualified Family Dispute Resolution Practitioner or counsellor in an attempt to resolve those issues without recourse to further litigation.
35.A request may be made by either party for the parties to attend such practitioner or counsellor in writing and set out:
(a)the request that the other party attend dispute resolution;
(b)the major long-term issue or issues to be discussed in the presence of the Family Dispute Resolution Practitioner or counsellor;
(c)the name of the proposed Family Dispute Resolution Practitioner or counsellor; and
(d)three available dates and times for attendance at the proposed Family Dispute Resolution.
36.The party in receipt of a request must respond to the other party’s written request within seven days of the date of that request.
37.The parties must attend at the Family Dispute Resolution at the earliest possible opportunity and, unless otherwise agreed, within no later than sixty (60) days of the request to attend.
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
JARRETT J:
This is an application for parenting orders. The applicant, Ms Nemcova and the respondent, Mr McLeod have two children, X (born in 2018 and now 6 years old) and Y (born 2021 and now 3 years of age). The children currently live with the applicant and spend three nights per fortnight with the respondent and up to two more nights per fortnight during school holidays. They have video calls twice daily with the respondent and twice daily with the applicant during weekends they spend with the respondent.
By the time the matter came before me for trial, the outcomes in dispute had narrowed somewhat. The parties had agreed that they should share joint parental responsibility for the children and that they should live primarily with the applicant. However, the applicant wishes for the children to live with her in the United Kingdom. The respondent argues that they should live with the applicant in Australia. His clear evidence is that he would not move his own residence to the United Kingdom in the event that the children resided there.
In the event the children are to remain living in Australia, the parties disagree about whether there should be provision for them to spend additional time with the respondent if he were to live closer to their school (four nights vs three nights per fortnight). There are some other minor orders that also remain in dispute.
Broadly, the issues for determination by me can be stated as follows:
(1)What is the quality of the applicant’s parenting in Australia and to what extent will that quality improve if she is able to live with the children in the United Kingdom, paying particular regard to her emotional state and opportunities for stable employment?
(2)What is the nature of the children’s relationships with the respondent and how will those relationships be affected by living permanently in the United Kingdom?
(3)Consequently, if there is a benefit to the children of being parented by the applicant in the United Kingdom and a detriment to them in terms of their relationship with the respondent by living in that country, does that benefit outweigh that detriment?
These issues contain both findings of fact as to present circumstances and a prediction of change based on the proposed move to the United Kingdom. To that extent I have regard to what was said by Austin J in Fitzwater & Fitzwater (2019) 60 Fam LR 212 at [132]–[142] and adopted by the joint judgment of the Full Court in Isles & Nelissen (2022) 65 Fam LR 288 at [50]–[51] about the distinction between proof of historical facts and the prediction of future possibilities.
This is a finely balanced case. I was assisted greatly by the thoughtful and detailed submissions of counsel for both parties and for the independent children’s lawyer. I have come to the conclusion that the children should live with the applicant in the United Kingdom. These are my reasons for so concluding.
BACKGROUND
The applicant is 34 years of age. She was born and raised in the United Kingdom, but is a permanent resident of Australia. Her parents are separated but both remain in the United Kingdom. She came to Australia in 2015 on a working visa. She has a background in a specific industry. She lives in a rented home in Suburb D and is not presently employed.
The respondent is 53 years of age. He presently works on a seven-day on, seven-day off fly in, fly out roster, flying out either Tuesday or Wednesday and back home the following Wednesday. He lives in a rented home in Town E he shares with a relative.
The parties commenced living together in Town F in 2017. The applicant fell pregnant within three months of the relationship commencing. During the relationship, she worked part-time, while the respondent worked a roster of eight days on and six days off.
In 2017, the applicant obtained a partner visa to remain in Australia. X was born in 2018.
In mid-2020, the parties moved to Region G and in 2021, Y was born.
Throughout the relationship and prior to COVID-19 border restrictions, the applicant regularly travelled with the children to the United Kingdom. In mid-2018, the applicant travelled to the United Kingdom with X for four weeks. In late 2018, the applicant went with X for six weeks and the respondent joined for four of them. In late 2019, the applicant went with X again for six weeks.
In late 2021, after travel restrictions were lifted, the applicant and the children went to the United Kingdom with a view to staying for two months. The respondent joined them three weeks later and stayed for a month.
While in the United Kingdom, a dispute arose between the respondent and the maternal grandmother. It was clear that the maternal family wanted the parties and their children to live permanently in the United Kingdom, whilst the respondent was more tied to his employment in Australia. As a result, the parties signed a “Family Relocation Agreement” on 15 January 2022 which was exhibited to the applicant’s affidavit. Inter alia, the agreement outlined a number of steps for the parties to take with an aim to be settled in the United Kingdom in time for X to start primary school in 2023. Around this time, the parties also engaged in some discussions via text message about possible homes they could live in should they move to the United Kingdom.
The parties separated after the respondent returned to Australia. The respondent wanted the applicant and children to return to Australia, but the applicant had decided to remain in the United Kingdom and instead wanted the respondent to sell his belongings and move over with them. The respondent sent the applicant an irate text message and withdrew the entirety of their savings (some $9,000) from their joint bank account.
On 8 February 2022, solicitors engaged for the respondent wrote a letter to the applicant, stating that the respondent did not consent to the children remaining in the United Kingdom and requesting she return with them to Australia or he would initiate proceedings pursuant to the Hague Convention.
The applicant booked tickets to leave the United Kingdom and return to Australia in early 2022, but tested positive for COVID-19 a few days before the return date and was unable to take the flight. She and the children caught a rescheduled flight and arrived in Brisbane the following month.
In May 2022, the parties attended a Family Dispute Resolution Conference but were unable to reach an agreement. The applicant commenced these proceedings on 31 May 2022.
Since the applicant’s return to Australia, the children have spent time with the respondent as follows:
·From 22 April 2022 to 28 May 2022, each alternate weekend supervised at H Family Services;
·From 28 May 2022 to 4 August 2022, each alternate weekend during the day on Saturday and Sunday;
·From 4 August 2022 to 2 September 2022, each alternate weekend from 9.00am Friday until 4.00pm Saturday;
·From 2 September 2022 to 27 October 2022, each alternate weekend from 9.00am Thursday until 4.00pm Saturday; and
·From 27 October 2022 to date, each alternate weekend from 9.00am Friday until 9.00am Monday.
From 28 May 2022 until 23 December 2022, the children’s time with the respondent was supervised by the paternal grandmother.
POSITIONS OF THE PARTIES
At the conclusion of the trial, the applicant handed up a minute of orders sought by her. That minute primarily sought, inter alia, that the parties have joint parental responsibility for decisions for the children, the children live with her and that she be at liberty to live with the children in the United Kingdom from 1 January 2025. She proposed that the children would then spend time with the respondent on up to four occasions each calendar year. In the alternative, if the court ordered the children to remain in Australia, she proposed that they live with her and spend time with the respondent from Friday until Monday each alternate weekend and some time during school holidays.
The respondent, by his case outline filed 26 August 2024, sought that the parties have joint parental responsibility, the children live with the applicant in Australia and spend time with him from Friday until Monday each alternate weekend, or from Thursday until Monday each alternate weekend if he lived within 30 kilometres of the children’s school.
The independent children’s lawyer sought by case outline filed on 26 August 2024 that the parties have joint parental responsibility for decisions for the children, the children live with the applicant in Australia and spend time with the respondent each alternate weekend from after school Friday until before school Monday, plus school holiday time.
Neither party suggested the other posed an unacceptable risk of harm to the children. That conforms with my own view of the evidence. There are, however, two matters worthy of further discussion.
The first of those is alcohol abuse. The applicant admitted to having prior issues with alcohol. She led evidence from her psychologist, Ms J, that she admitted to higher levels of alcohol consumption throughout the COVID-19 pandemic lockdowns and acknowledged alcohol was a maladaptive coping mechanism that assisted with the management of stress and anxiety. She was administered a self-report Alcohol Use Disorder Identification Test on 16 September 2022, 9 December 2022, 31 May 2023, 23 January 2024 and 16 June 2024. Her results barely met the threshold for hazardous drinking on 16 September 2022 and were considered low-risk for the balance. The respondent requested, through correspondence between solicitors, that the applicant undertake alcohol testing on 14 April 2022, 4 May 2022 and 5 January 2023. She did not do so. However, the respondent, appropriately in my view, did not submit that alcohol use was a current issue for the applicant. There is simply insufficient evidence to support an allegation that the applicant’s alcohol use poses a risk to the children, especially in light of the applicant seeking treatment from her psychologist.
The respondent’s alcohol use was of somewhat more concern. In 2017, he was issued a restricted work licence due to driving over the legal blood alcohol limit. The applicant deposed to a number of incidents where the respondent’s behaviour was adversely affected after he consumed alcohol. It is not necessary to make findings about each of these incidents. However, I accept that, on occasions, the applicant was genuinely frightened of the respondent’s behaviour when he drank alcohol to excess.
On 11 July 2022, orders were made by consent for the respondent to undertake a hair follicle test for alcohol consumption every three months and a breathalyser test around the time the children were in his care. The respondent returned the results for the first hair follicle test in July 2022 which indicated MS levels well above the threshold for excessive alcohol consumption. Concerningly, the respondent did not comment on this result in his affidavit. He did, however, email the applicant the following on 27 July 2022:
[Ms Nemcova] here is my hair follicle test it is basically saying that my etg level is equivalent to consuming around a carton of heavy beer a week that’s not taking into account the other factors that also contribute to ingesting ethanol in your system such as certain foods, soaps like the harsh one we use at work […], deodorant and things like that all have ethanol in them and the etg hair follicle is recording that level over the three months , off course the lab call anything over 5-7 standard drinks a week excessive but anyway as per the court orders I was to send you this when I received it and I know my lawyers is on holidays so I wasn’t waiting to here back from her incase it took more than 24 hours to reply
(errors in the original)
This email simultaneously attempts to explain away the respondent’s hair follicle results that indicate excessive alcohol consumption and seemingly tries to justify 5-7 standard drinks per week as not excessive. Notably, the respondent did not lead any evidence, expert or otherwise, at trial to explain this result. The only conclusion available is that he was, as at 11 July 2022, drinking alcohol to excess. This result and accompanying email must have been concerning to the applicant and no doubt informed her persistent requests for the respondent to undergo alcohol testing.
The respondent undertook a further hair follicle test in October 2022, which returned results consistent with low to moderate alcohol consumption. The parties subsequently entered into consent orders on 16 December 2022 providing for the respondent to undertake Carbohydrate Deficiency Transferrin testing every six weeks, as well as breathalyser tests. Whilst there were some complaints from the applicant about the respondent not taking the tests strictly every six weeks, he was largely compliant with the time-frames. None of the results from these tests (conducted from December 2022 to July 2024) were consistent with alcohol abuse.
Whilst I am satisfied that the applicant’s concerns about the respondent’s alcohol consumption were bona fide, the duration of testing undergone by the respondent satisfies me that alcohol abuse is no longer a current issue for him. The children are not at risk of harm from his alcohol use.
The second matter worthy of discussion is violence. The respondent consented to a protection order without admissions in the Magistrates Court of Queensland in 2022, which is due to expire in 2027. It was accepted by counsel for the applicant in submissions that any findings I made about violence would not factor into the overall decision to be made. For that reason, I do not propose to make any findings of fact about specific incidents alleged by the applicant. Suffice to say, she outlined numerous incidents in detail when the respondent had behaved aggressively towards her, often under the influence of alcohol. The respondent provided some explanations for the incidents described by the applicant. Whatever the truth of those incidents, I accept from the applicant’s evidence-in-chief and from her demeanour in the witness box, that her fear of the respondent was genuine.
CONSIDERATION
During submissions, counsel for the respondent handed up a list of the following findings she sought to be made by the court:
1.That it is in the children’s best interests for them to continue to benefit from a meaningful relationship with the Father.
2.That the co-parenting relationship and the parental communication, is effective and functional.
3.That the Mother has the support of the Father and wider paternal family available to her to assist in her care of the children in Australia.
4.That the Mother has, either intentionally or by not taking appropriate action, allowed herself to feel isolated and unsupported living in Australia.
5.That the Mother’s mental health will not be so negatively impacted by a decision for the children to live in Australia that it will impair her ability to care for the children.
6.That the maternal family will continue to provide support to the Mother, in whatever ways they can, if the children live in Australia.
7.That the Mother has, either intentionally or by not using appropriate restraint, involved the child, [X] in the proceedings to assist the Mother’s case to live in [the United Kingdom].
8.In so doing, the Mother has caused emotional and/or psychological harm to the child.
9.That the Mother would not fully engage in facilitating the children’s meaningful relationship with the Father if they lived in [the United Kingdom].
10.That given the maternal grandmother’s views of the Father, she is unlikely to support the children’s relationship with the Father.
11.That it is not in the children’s best interests for the Mother to relocate the children’s home to [the United Kingdom].
I can comfortably make the first finding. Both parties agreed it was in the children’s best interests to continue to benefit from a meaningful relationship with the respondent. Although the term ‘meaningful relationship’ is no longer of statutory significance given the amendments to s 60CC of the Family Law Act 1975 (Cth), the Act still refers to the benefit to children of a relationship with their parents.
The question in this case is not whether the children will derive a benefit from a relationship with the respondent, but the effect upon the nature of that relationship (and accordingly the nature of the benefit derived by them from it) of the proposals of each of the parties and the independent children’s lawyer.
I have the benefit of a report prepared by Mr B, a consultant social worker. Mr B interviewed X as part of the preparation of his report. Y was too young to be interviewed. He observed both children handling the transitions between the parents securely, with seamless, familiar exchanges of warmth and affection. In cross-examination, he agreed that the children had a good relationship with the respondent, describing it as positive, warm and loving. There is no doubt that the children benefit from this relationship as it currently stands.
The nature of the children’s relationships with the respondent if they live in the United Kingdom depends on several factors: the nature of their present relationships, the extent to which the applicant and members of her family will foster and encourage those relationships, the ages and maturity of the children and the frequency and quality of time between the children and the respondent following a move to the United Kingdom.
It was levelled against both the applicant and the maternal grandmother that they would not support and facilitate a meaningful relationship between the children and the respondent if they live permanently in the United Kingdom (see findings 8 and 9 sought by the respondent recorded earlier in these reasons). I am comfortably satisfied that the maternal grandmother will not be supportive of the children’s relationship with the respondent, whether they live in the United Kingdom or Australia. Her distaste of him was palpable in the witness box and she did not regret making posts of a derogatory nature about him on social media. The extent to which this attitude will affect the children’s relationships with the respondent, in large part, depends on whether the applicant allows it to, or appropriately shields them from it.
It was conceded by counsel for the applicant that the applicant had involved X to a greater extent than she should have in her proposal to move to the United Kingdom. That sits comfortably with Mr B’s report that X presented with an agenda and with the evidence of the applicant’s psychologist, Ms J, that she talked to the applicant about X picking up on what she wants and that impacting upon X’s views. X expressed a very clear desire to move to the United Kingdom, but that desire has been influenced by the applicant exposing X to her own clearly expressed desire to return to the United Kingdom. In terms of the seventh finding sought by the respondent, I do not find that the applicant has done this intentionally, rather, I find she has been unable to insulate X from her own wishes. That is a matter that speaks to her parenting capacity, her ability to promote a relationship between the children and the respondent if they live in the United Kingdom and her ability to shield the children from the maternal grandmother’s attitude towards the respondent.
I am not satisfied that the applicant’s engagement of X in her desire to move to the United Kingdom has yet caused emotional and/or psychological harm to X. While emotional and psychological harm are not defined in the Family Law Act 1975 (Cth), it is difficult to conclude that X has been harmed in circumstances where she merely expresses a desire to move to the United Kingdom. Rather, the applicant’s conduct in exposing X to her wishes has the potential to lead to psychological or emotional harm to X if I order that she remain living in Australia. On the evidence, X will clearly be very disappointed and given that she knows the respondent wants her to remain in Australia, she may blame him for the ultimate decision. In that way, through the applicant’s conduct, she has placed X’s emotional wellbeing and relationship with the respondent at risk and prioritised her own desires.
Because X’s views have been influenced by the applicant and because of her young age, I place no weight on X’s views for the purposes of s 60CC(2)(b) of the Act. However, I do have some regard to the disappointment X may have and the emotional harm that may result in the event she cannot live in the United Kingdom as she presently desires, as a factor relevant to her safety from harm under s 60CC(2)(a)(i). Such harm may be ameliorated to an extent by having the independent children’s lawyer, or Mr B, explain any orders I make to X and Y. This is not, however, a weighty consideration.
In relation to the eighth finding sought by the respondent, notwithstanding the deficiencies in the applicant’s parenting capacity exposed by her engagement of X in her desire to live in the United Kingdom, I am not satisfied that the applicant would not fully engage in facilitating the children’s relationship with the respondent if they lived in the United Kingdom. It was submitted by counsel for the respondent that whilst there might be strict compliance by the applicant with any orders I make, there would be no “spirit of engagement with the nature and intent of the orders”. There is some force in this submission. Counsel referred me to the applicant’s return of jewellery gifted to X by the paternal family. The applicant’s explanation for that conduct was disingenuous and in my view is only explained on the basis of the applicant’s bitterness towards the respondent taking priority over the children’s relationship with him. That episode does the applicant no credit.
Moreover, there have certainly been hiccups in communication between the parties, as is oft seen in cases of these kind. But that the children have such positive and strong relationships with the respondent is also a testament to the applicant promoting those relationships. This is not just through strict compliance with orders; even immediately post-separation there was agreement that the children would FaceTime the respondent twice per day.
It is difficult to predict with certainty how moving the children’s residence to the United Kingdom will affect the applicant’s promotion of the children’s relationships with the respondent. On balance, however, I consider that she will continue to promote those relationships as she has done since separation. In reaching this conclusion I have taken into account the submission that counsel for the respondent made to the effect that any parenting orders I might make for time between the children and the respondent will not be enforceable in the United Kingdom (not being a prescribed overseas jurisdiction for the purpose of transmitting parenting orders). However, given her past compliance, I do not consider the applicant will skirt her obligations under any orders I might make. I also take into account that the applicant will receive no encouragement from her own family and in particular the maternal grandmother, to foster and promote the children’s relationships with the respondent. I formed the view that the applicant genuinely sees benefit for the children in having strong and secure relationships with the respondent and so the lack of support from her own family for those relationships will be of no moment.
The respondent sought that I find the co-parenting relationship and the parental communication, is effective and functioning. I so find. The applicant conceded in cross‑examination that her evidence-in-chief presented a one-sided and negative view of the relationship and that she cherry-picked some of the worst examples of parental communication. However, the overall relationship is effective and the parties have been able to agree on a range of things, to X and Y’s benefit. That both parties agreed there should be an order for joint parental responsibility must imply that they both agree that the co-parenting relationship is at least sufficiently effective to make major long-term decisions. The effectiveness of the co‑parenting relationship is also consistent with the applicant’s promotion of positive relationships between the children and the respondent.
Having regard to the evidence I have set out, I consider it likely that if the children live with the applicant in the United Kingdom, she will promote the children’s relationships with the respondent at least to the same extent that she does now. In doing so, I also consider that she will likely insulate the children from the maternal grandmother’s negative views of the respondent.
I am satisfied that the nature of the children’s relationships with the respondent will change if they live in the United Kingdom and he remains living in Australia. I am satisfied that those relationships will change to the children’s detriment. To understand the nature and significance of that detriment, it is necessary to consider the nature of the relationships the children will have with him if they move to the United Kingdom in the context of the nature of the relationships they have and will have with him if they remain in Australia.
The respondent highlighted the young age of these children and their lack of experiences with the respondent such that their relationships with him will suffer if they live permanently in the United Kingdom. It is indeed true that these children are still very young. X is presently six and Y three. Mr B accepted that Y would probably not be able to retain a bank of memories from his current experiences with the respondent. X, being slightly older, will likely be able to retain more of those memories. Mr B explained that if the children are to live in the United Kingdom:
Their idea of him as a regular daily caregiver, somebody who meets their needs, is likely to shift and change. It’s going to be that – their transactions with him are going to be more around holidays and special occasions and those sorts of things, unless the father is spending time in [the United Kingdom] during the school term for some period of time to look after them while he’s taking leave from work in Australia.
And speaking specifically about X, Mr B said:
[A move to live in [the United Kingdom]] means she doesn’t get that same message of her father being involved in those daily aspects of her life and her upbringing and she loses those opportunities for those small exchanges of affection and praise and warmth in the moment. It can be offset to a degree with regular and frequent communication, with – both directly and indirectly and by indirectly I mean with photographs being taken for the express purpose of being sent to dad. But that is still a poorer substitute to the real experience of having the parent there especially while children are young.
As the evidence fell, the applicant would be able to travel with the children to Australia once per year and the respondent would be able to travel to the United Kingdom for the children to see him once, possibly twice, per year. The applicant proposed the duration of this time would commence at up to seven nights and graduate as the children got older to up to three weeks per occasion. This time would most likely take place during the children’s school holidays. Consequently, the respondent would not likely be present for the daily aspects of the children’s lives during school term time. They will otherwise miss his physical presence in their lives.
However, notwithstanding the lack of daily experiences between the children and the respondent and despite the fact that most of their communication will be over a long distance, there are two matters of significance. First, Mr B was still of the ultimate opinion that if the children lived in the United Kingdom, their relationships with the respondent would be of positive significance to them. Those relationships will not lose meaning and importance for the children. Second, if the children remain living in Australia, they will nonetheless spend only three or four nights per fortnight with the respondent. Whilst they will have the opportunity for the respondent to be present at important events, that the applicant should remain principally responsible for the children’s day-to-day care is not in contest.
The change in these relationships must be balanced against the benefit the children will receive if they live in the primary care of the applicant in the United Kingdom. This primarily relates to the applicant’s wellbeing and how the children benefit from that.
Ms J is a psychologist whom the applicant has been consulting since separation. I have a written report from Ms J, who was also cross-examined. Despite the evidence from Ms J that the applicant returned persistently high scores for stress, anxiety and depression and low life satisfaction, there is no suggestion that her parental capacity is presently impaired by reason of any psychological impediments. It must be the case that she is parenting appropriately given the respondent does not seek to disturb the children’s primary residence with her.
However, Ms J opined that if the applicant remains in Australia and the parties cannot resolve their ongoing differences and manage parenting matters more effectively, her life satisfaction and mental health were likely to decline further, potentially affecting the children’s development and wellbeing. Comparatively, she opined that if the applicant returned to the United Kingdom permanently with the children, her life satisfaction and mental health were likely to improve significantly. Her life satisfaction and mental health – her overall “happiness” – is a significant matter and is likely to have a direct impact upon the quality of the parenting that she delivers to the children. As the Full Court of the Family Court of Australia observed in the context of a case like the present (Holmes v Holmes (1988) FLC 91-918 at 76,663):
In this context the genuine wishes of an unchallenged custodian is an important consideration. That is so partly because the unhappiness of the custodian is likely to impinge upon the happiness and welfare of members of that person’s household, and partly for reasons that are expressed in a number of cases including the well known passage in the judgment of Sachs L.J. in P v. P (1970) 3 All E.R. 659 at p.662: ...”
This passage was referred to without criticism by a subsequent Full Court in B and B; Family Law Reform Act 1995 (1997) FLC 92-755; 21 FamLR 676 which went on to observe:
9.66The interests of the children may be affected by proposed relocation in two broad ways. Firstly, the relocation may be of benefit not only to the parent but also to the children in a direct way. That is, the lifestyle of that family unit and those children may be enhanced by the move. Secondly, in some cases the inability of the residence parent to relocate will impose significant pressures upon that parent and diminish his or her capacity to cope and so diminish the quality of the lifestyle in that home. A very important aspect of a child’s bests interests is to live in a happy family environment. That may be significantly impacted upon where the residence parent is required to live in circumstances which diminish his or her future life either in an economic or a social sense, perhaps in a long-term way. If that had an adverse impact upon the children’s best interests, that may be an important matter to consider. Similarly, the prospect that the lifestyle of members of that family will be enhanced by the move is a positive factor to be considered as part of an assessment of the children’s best interests.
9.67Ordinary common experience indicates that long-term unhappiness by a residence parent is likely to impinge in a negative way upon the happiness and therefore the best interests of children who are part of that household.
Despite the different legislative framework that existed when that case was decided, these observations remain apposite and applicable.
The applicant is presently unemployed and receives income from Centrelink and from the respondent by way of child support payments. She says she has been unable to find any employment related to her qualification that suits her current availability, bearing in mind that she cannot work unless Y is at daycare or with the respondent.
The applicant submits that in the United Kingdom she will have financial support from her family. Her parents have indicated to her that she and the children could live with them until she “gets on her feet”. They can offer her a job in the family business, with a flexible start date. They can assist her with the costs of travelling to Australia with the children. Her mother and step-father are healthy and able to assist in providing regular care for the children, as well as emotional support for the applicant.
The respondent submits that if the children and consequently the applicant live in Australia, the maternal family will continue to provide her support, in whatever ways they can. I accept that submission and I so find. The maternal grandparents are clearly very interested in the applicant’s and the children’s lives and welfare. Their support for their daughter was evident by the fact they travelled from the United Kingdom to Australia for the purposes of the final hearing. But the extent to which they can provide support, particularly day-to-day assistance, is clearly greater if the applicant lives in the United Kingdom. They can provide some financial support if she lives in Australia and perhaps travel to Australia occasionally, but will not be able to provide her with accommodation, employment, or practical support.
Such practical support is important in the context of this case. The applicant deposes that she has been unable to meaningfully rely on the respondent for practical support with the children due to his employment arrangements and him living approximately an hour away. She has no other family in Australia that she can rely on for emotional or practical support.
The respondent seeks a finding that the applicant has the support of both him and the wider paternal family available to her to assist with her care of the children in Australia. Similarly, he asks that I find that the applicant either intentionally, or by omission, has allowed herself to feel isolated and unsupported living in Australia.
The applicant deposed that she did not feel she could rely on the respondent’s family for practical or emotional support because of the significant deterioration in their relationship since separation. She did not feel supported by the respondent’s family and felt they were critical of her. That is consistent with the evidence-in-chief provided by the respondent’s parents and his partner, which had very little, if anything, positive to say about the applicant. It may be that the paternal family are willing to provide practical support to the applicant, but they have not extended an olive branch such that their offers of support are perceived by her as bona fide.
In any event, I consider the findings sought, as formulated by the respondent, to be somewhat unhelpful. It does not matter whether the applicant has the support of the paternal family, but whether that support would actually be given and accepted, if the children remained in Australia. Similarly, it does not matter whether the applicant has allowed herself to feel isolated (which in any event, does not accord with my view of the evidence), but that she does in fact feel isolated. I am not tasked with deciding this case according to a best-case scenario, but rather deciding according to findings of fact and predictions about likely future facts.
In that light, what is relevant is that the applicant does feel isolated in Australia and does not feel she is assisted by the paternal family. I consider this likely to continue into the future if the children and the applicant remaining living in Australia.
If the applicant lives in the United Kingdom, she will have the support of her family. She will not feel isolated. Ms J’s evidence was that the applicant’s persistent low life satisfaction scores were a consequence of:
numerous situational factors including ongoing conflict between the couple, social isolation, lack of family and social support, parenting responsibilities and parental burnout, economic hardship, the ongoing legal proceedings and lack of uncertainty [sic] about the future
The resolution of these proceedings may alleviate some of those factors, but many will only be alleviated by a move to the United Kingdom for the applicant. I consider that the applicant’s mental health and wellbeing will be greatly improved if she lives in the United Kingdom. That will benefit these children. In cross-examination, Mr B formulated it thus:
… children are likely to have better longer term outcomes when they can draw on the resources offered by each parent. The more stable, the more secure parents are in themselves to provide resources to the children, the more likely children are going to be able to draw on resources from that parent – are less likely to be compromised. So for the mother, I formed the view that she is likely to have more stable access to employment with the support of her family to assist her with the care of the children and balance her work and parenting responsibilities. She’s more likely to be able to draw on the emotional support available to her from her family, around the day-to-day struggles of single parenting.
That is to say, even though it cannot be said that the applicant’s parenting is inadequate, these children will still benefit from living with her in the United Kingdom because they will be better able to draw on her emotional resources. That benefit is not immediately manifest, but will reveal itself in longer-term stability and security for the children.
If the applicant remains in Australia, whether her parenting will remain adequate is in doubt. When asked in cross-examination whether the applicant would cope with a decision for her and the children to live in Australia, her psychologist answered “I would hope so, yes”. That answer was unhelpful in the sense that it does not assist in formulating a prediction about the applicant’s future parenting capacity. At best, as put by both counsel for the respondent and applicant, it indicates there is at least some uncertainty as to whether or not the applicant will cope.
If she does remain in Australia, her wellbeing will benefit from the resolution of these proceedings and the certainty that results from that resolution, one way or another (both identified by Ms J as factors contributing to her low life satisfactions scores). She will not have the benefit of the other factors being resolved in her favour.
In her evidence-in-chief, the applicant said:
281Whilst our co-parenting has been difficult in recent times, I am hopeful that this will improve once we have some certainty in relation to the children's living arrangements and where I hope to be in a better place practically, financially and mentally. As set out above, for the initial period after our separation, we were able to co-parent relatively positively.
(emphasis added)
It is clear from this paragraph, paragraphs to similar effect and the way the applicant has conducted her case that she is still hopeful of being permitted to move to the United Kingdom. That hope will not continue if I order her to remain in Australia.
It is difficult to say whether the sum total of the certainty brought by the resolution of proceedings on the one hand and the dissipation of the applicant’s hopes to live in the United Kingdom on the other hand, will have a beneficial or deleterious effect. Ms J only put it so high that her mental health and life satisfaction were likely to decline further if the applicant “remains in Australia and the couple cannot resolve their ongoing differences and manage parenting matters more effectively”. The fact that the co-parenting relationship is functional and the parties were able to limit many of the issues for my determination in this case, goes some way to resolving ongoing differences and managing parenting matters more effectively.
Overall, I do consider that if the applicant remains in Australia, her mental health and wellbeing will decline as a result of no longer being hopeful of permanently living in the United Kingdom. However, I am satisfied and I find that the applicant’s mental health will not be so negatively impacted by a decision for the children to live in Australia that it will impair significantly her ability to care for them. Despite presenting to Ms J with clinically significant levels of stress, anxiety and depression, the applicant has insulated the children from that and parented them appropriately. I consider she will continue to do so.
I also have regard to two cases referred to me by counsel for the applicant. The first of those was Godfrey & Sanders [2007] FamCA 102. That case was a single judge appeal of the then‑Family Court of Australia against orders of a Federal Magistrate preventing the mother from relocating with the children from country Victoria to Brisbane. The children spent time with the father every third weekend and for periods of holiday time and the father was not seeking an increase in that time. Relevantly, Kay J said:
35.… the children [would be able] to visit their father on say four occasions each year and for the father to visit them on two occasions each year if he so desired. There was no evidence to suggest that a meaningful relationship could not be maintained between the children and their father in such circumstances. Of course, such visits could well be supplemented by telephone and internet communication.
36.It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
…
38.The Federal Magistrate ought to have weighed very heavily into the equation the desire of the primary caregiver of these children (and indeed their siblings) to move on to a better life than she and Mr Godfrey and the children were presently enjoying…
…
43.The approach of Kirby J in AMS and AIF was emphasised by the Full Court in D & SV at para 63 where they said:
In a case like the present one, where there is no or no credible alternative proposal with respect to residence advanced by the non-residential parent the correct approach to adopt is the one identified by Kirby J in AMS v AIF that the focus of
... the attention of the decision maker should ordinarily be at a possibility of formulating different arrangements for access and contact which would meet the child’s welfare.
I have earlier in these reasons referred to the notion of a meaningful relationship. The facts of that case and this one are, of course, very different. That case involved a relocation from country Victoria to Brisbane, where the children could spend time with the father on up to six occasions per year. Here, it is proposed that the children live in the United Kingdom and spend time with the father twice or three times per year.
I have regard to the comments of Kirby J extracted above. The evidence in this case suggests that, no matter what arrangements are made, if the children are living in the United Kingdom they will only be able to see the respondent twice and sometimes thrice, per year. The central question is whether that change is in their best interests, having regard to the other advantages and disadvantages of living permanently in the United Kingdom.
The second case counsel for the applicant referred me to was Adamson & Adamson (2014) 51 Fam LR 626. In that case the children had been living with the mother in a town in New South Wales about 200 kilometres north of Sydney. Prior to separation the parties had been living in Sydney. The mother proposed she and the children remain living in the town 200 kilometres north of Sydney, whereas the father proposed an order requiring the mother and children to relocate to an area more proximate to his then chosen place of residence on the New South Wales Central Coast.
The Full Court said:
65.It follows from the decisions of the High Court in AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238 that in parenting proceedings there is no requirement for a parent to demonstrate “compelling reasons” to live where the parent proposes to live, be that a proposed new location or, axiomatically, in their current place of residence. Here, the mother was no more required to demonstrate “compelling reasons” for her choice to remain living in Town S than was the father to so do with respect to his choice to live in Town C or for either to not live anywhere else. The same may be said of their respective choices of employment, the mother’s in Town S and the father’s in Sydney. The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire. (U v U at [82] citing AMS v AIF)
66.These rights and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
67.Consequently, whilst the Court is not bound by the proposals advanced by parents and can, subject to natural justice considerations, adopt modified proposals, the justification for that is the same and the extent of modification legitimately can only be as far as is necessary to avoid adverse effects upon best interests. As Callinan J observed in AMS v AIF (cited with approval by Gummow and Callinan JJ in U v U (with whom Gleeson CJ, McHugh and Hayne JJ agreed)):
It will generally not be possible for a trial judge to construct a framework and environment for the upbringing of a child. What happens in practice is that those competing for the care and custody of a child will present proposals to the Court to advance the welfare of the child. Judges frequently will be able to mould or adopt such proposals in making orders but rarely will they be able to invent or construct substantially different arrangements for children from those proposed by the parties.
(Footnote omitted)
68.It can thus be seen that it was not the task of the trial judge to mould or create, by the exercise of discretionary powers, the most desirable solution or desirable circumstances, blind or indifferent to each parent’s fundamental right to exercise their respective rights to choose where they lived and worked consistent with the child’s best interests. Rather, those rights were to be respected. Only if the exercise of such parental rights could be seen as so adversely affecting the child’s best interests could interference with their exercise be legitimate; and then only to the extent necessary to avoid such adverse effects, having considered available alternatives.
69.Moreover, if ultimately it was determined that interference with parental rights was called for, all alternatives, including the father’s exercise of his right to choose where he lived and where he worked, would need to be considered. As Hayne J observed in U v U (in the context of a case involving proposed international relocation of a child from Australia to India) at [176]:
It is now recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Pt VII of the Act (s 60B(2)(a) and (b)). If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.
(Original emphasis)
It is self-evident that the best interests of the child are paramount, not the interests or needs of the parents: s 60CA. However, it is also apparent from the Full Court’s reasons that a parent’s right to relocate should only be limited to the extent necessary to avoid adverse effects on the children’s best interests. Of course, each case has to be determined on its own facts and one of the questions in this case is whether a move to the United Kingdom for the children will have such an adverse effect on them that applicant’s right to live wherever she chooses should be curtailed.
CONCLUSIONS
Again, this is a finely balanced case. The applicant seeks that she be permitted to live permanently with the children in the United Kingdom. They will see the respondent two or three times per year, once in Australia and once or twice in the United Kingdom. The respondent and the independent children’s lawyer seek that the children remain in Australia. They will live with the applicant and spend three or four nights per fortnight with the respondent. Both proposals have the advantages and disadvantages I have identified earlier in these reasons.
If I order the children to remain in Australia, they will benefit from the current strength of their relationships with the respondent. He will be physically present in their lives both for significant events and also the mundanity of daily life. They will have stronger relationships with him and form longer-lasting memories, especially Y who is only three. However, their primary carer, the applicant, will I find continue to have poor mental health and wellbeing. She will not have the same level of employment opportunity. She will not be supported to the same degree by her immediate family. Whilst I consider her parenting will still be adequate, the children will lose out on their opportunity to be parented by her best self.
If I permit the applicant to live with the children in the United Kingdom, they will benefit from the applicant’s enhanced wellbeing. She will have access to opportunities which improve her quality of life and be supported personally and in her capacity as a parent by her immediate family. The children will no doubt benefit from her being her best self. However, they will lose regular and frequent physical presence of the respondent in their lives. Whilst their relationships with him are still likely to be of positive significance, they will not have the same character as they presently do.
I consider that on balance the applicant’s proposal will bring more benefit to these children than will the proposals of either the respondent or the independent children’s lawyer. I reach that conclusion for two principal reasons.
First, I consider it is in the children’s best interests that they live in the United Kingdom with the applicant. On any of the proposals before the court, the children will spend the majority of their time with the applicant. Because they are most frequently in the applicant’s care, I consider the benefit they will attain from her improved wellbeing and the increased ability they will have to draw upon her resources, as described by Mr B, outweighs the detriment to them from a change in the nature of their relationships with the respondent. I consider that the applicant will encourage and facilitate those relationships.
Second, on any construction of the evidence, the best interests of the children will not be significantly adversely affected by living with the applicant in the United Kingdom. The children will continue to benefit from relationships with both parents and have a primary carer who is capable of tending to their physical, emotional and developmental needs without the burden of the matters described by Ms J. The applicant’s right to live wherever she chooses should only be limited so as to avoid adverse effects on the children’s best interests: (Adamson & Adamson). I am satisfied that there will be no such adverse effects here, as the children will retain relationships of positive significance with the respondent. The children should therefore be permitted to live with the applicant in the United Kingdom.
ORDERS
There will be orders made mostly in line with the primary orders sought by the applicant, with a few exceptions.
One matter, upon which there were no focussed submissions, was whether the applicant ought to be permitted to move the children’s residence to the United Kingdom from 1 January 2025 or 1 July 2025. The school year in the United Kingdom commences in August. X will commence school next year. A move to the United Kingdom from 1 June 2025 (not July as the respondent proposes) is appropriate and will permit her to settle into the United Kingdom before school starts. A delay in the move until then will maximise the children’s ability to spend time with the respondent in Australia before the commencement of X’s scholastic life.
I have determined there is no current risk to the children as a result of the respondent’s alcohol use. I will not make the orders sought by the applicant for breathalyser testing.
The applicant sought an order that changeovers in Australia should take place at C Service Station. That order makes no sense where the children will be arriving by aircraft from overseas. Changeover in Australia will take place at Brisbane Airport as sought by the respondent.
The parties sought the inclusion of an order permitting overseas travel, but in the context of this case, that seems to be a meaningless exercise. I have not made that order.
Finally, the applicant made no provision for what time the children should spend with the respondent prior to any move to the United Kingdom. In the absence of submissions that the orders proposed by him are inappropriate, orders will be made as sought by the respondent for time prior to them departing Australia.
I make the orders set out at the commencement of these reasons.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 8 November 2024
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