NEWTOBER & NEWTOBER

[2012] FamCA 939

FAMILY COURT OF AUSTRALIA

NEWTOBER & NEWTOBER [2012] FamCA 939

FAMILY LAW – CHILDREN – RELOCATION – where the mother’s application to relocate to Country E was refused – where the children live with the mother in Australia and spend substantial and significant time with the father - where the children have a meaningful relationship with both parents – where the father does not pose an unacceptable risk of harm to the children either through abuse or neglect – where it is unlikely children could retain meaningful relationships with the father if they relocated internationally

FAMILY LAW – CHILDREN – Parental Responsibility – where the parents have equal shared parental responsibility – where the presumption of equal shared parental responsibility applied – where the parents’ communication regarding the children was problematic but still effective  

FAMILY LAW – PRACTICE AND PROCEDURE – where the mother alleged an agreement between the parties to relocate permanently to Country E – where the principle of issue estoppel does not strictly apply but the Court was entitled to rely on the contrary findings previously made in Hague Convention proceedings in Country E

FAMILY LAW – EVIDENCE – where the parties were denied leave to rely on further affidavit evidence not contemplated by earlier procedural orders – where the mother was denied leave to rely on an affidavit filed by an adversarial expert which would be contrary to the objects of Pt 15.5 of the Family Law Rules 2004 (Cth)

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65D, 65AA, 65DAA, 65DAC, 65DAE and 69ZX
Family Law Rules 2004 (Cth) Pt 15.5
Hague Convention on the Civil Aspects of International Child Abduction , signed 25 October 1980, [1983] UNTS 1343

AMS v AIF (1999) 199 CLR 160
Goode & Goode (2006) FLC 93-286
Hepburn & Noble (2010) FLC 93-438
M v M (1988) 166 CLR 69
McCall v Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461.
Taylor v Barker (2007) FLC 93-345
Schorel v Schorel (1990) FLC 92-144
U v U (2002) 211 CLR 238

APPLICANT: Mr Newtober

RESPONDENT: Ms Newtober

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 4651 of 2011

DATE DELIVERED: 14 November 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Austin J

HEARING DATE: 29, 30, 31 October & 1 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P. Schroder

SOLICITOR FOR THE APPLICANT: Paltos Briggs Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms M. Kennedy

SOLICITOR FOR THE RESPONDENT: Andrew A Torok

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms K. Shae

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. All former parenting orders and injunctions relating to the children B, born … May 2006, and C, born … June 2008, (“the children”) are discharged.

2. The mother and father shall have equal shared parental responsibility for the children.

3. The children shall live with the mother.

4. Each of the parties shall take all reasonable steps to ensure the children spend time with the father as follows, unless otherwise agreed:

   (a)During NSW public school terms:

   (i)Each alternate weekend from the conclusion of school on Friday until 8.30 am on Sunday, commencing on the first Friday of each school term; and

   (ii)Each week, from the conclusion of school on Wednesday until the commencement of school the next day.

   (b)During the NSW public school holidays at the conclusion of Terms 1 and 3, commencing at the conclusion of school on the last day in those terms and concluding at 6.00 pm on the day one week later;

   (c)During the NSW public school holidays at the conclusion of Term 2, unless the mother and children travel to Country E for the whole of those holidays, commencing at the conclusion of school on the last day in that term and concluding at 6.00 pm on the day one week later;

   (d)During the NSW public school holidays at Christmas in 2012/2013:

   (i)From 3.00 pm on Christmas Day until 3.00 pm on 31 December 2012; and

   (ii)Unless the mother and children travel to Country E during either of such periods:

   (A)From 3.00 pm on 7 January 2013 until 3.00 pm on 12 January 2013; and

   (B)From 3.00 pm on 21 January 2013 until 3.00 pm on 26 January 2013.

   (e)During the NSW public school holidays at Christmas in 2013/2014 and thereafter:

   (i)For the second half of the holidays, commencing in 2013/2014 and each alternate year thereafter; and

   (ii)For the first half of the holidays, commencing in 2014/2015 and each alternate year thereafter.

   (f)From 6.00 pm Saturday until 6.00 pm Sunday on the Father’s Day weekend each year.

5. Order 4(a) hereof is suspended from 6.00 pm Saturday on the Mother’s Day weekend each year.

6. For the purposes of implementing Orders 4-5 hereof, the party with whom the children are to live or spend time shall collect the children:

   (a)From school or pre-school, whenever such time is to commence following the conclusion of school or pre-school during school term, or

   (b)From the residence of the other party whenever such time is to commence at a time other than the conclusion of school or pre-school during school term.

7. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by “Skype” internet communication program or telephone with:

   (a)The father each Monday and Thursday when the children are living with the mother:

   (i)between 6.00 pm and 6.30 pm Sydney time when the children are in Australia; and

   (ii)between 8.00 am and 8.30 am D City time when the children are in Country E;

   and for that purpose the father shall contact the children on the telephone number or internet connection provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number or connection at that time;

   (b)The mother each Saturday and Wednesday when the children are spending time with the father, between 6.00 pm and 6.30 pm, and for that purpose the mother shall contact the children on the telephone number or internet connection provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number or connection at that time; and

   (c)The parent with whom the child is not then staying, on the child’s birthdays:

   (i)between 6.00 pm and 6.30 pm Sydney time when the children are in Australia; and

   (ii)between 8.00 am and 8.30 am D City time when the children are in Country E;

   and for that purpose the parent with whom the children are not staying shall contact the children on the telephone number or internet connection provided by the other parent for that purpose, and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s calls on that number or connection at that time.

8. The mother shall retain possession of the children’s Country E passports and the father shall retain possession of the children’s Australian passports.

9. Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.

10. Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate.

11. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

12. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

13. The Independent Children’s Lawyer is discharged upon expiration of any applicable appeal period.

14. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4651 of 2011

Mr Newtober

Applicant

And

Ms Newtober

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The applicant father is an Australian citizen.

2. The respondent mother is a Country E citizen, but is entitled to reside permanently in Australia.

3. The mother wants to take the parties’ two young children with her and move permanently back to Country E, but the father wants them to remain living in Australia. These reasons resolve their dispute, explaining why the proposed relocation must be prevented.

Background

1. The parties met and formed a relationship in Country E in 2000 while the father was travelling overseas.

2. The father returned to Australia in September 2000 and the mother followed him to Australia some months later in December 2000.[1] They engaged to marry in January 2001, after which the mother obtained a spouse visa entitling her to reside in Australia.[2]

   [1] Mother’s affidavit, paras 14-15

   [2] Father’s first affidavit, para 7

3. The parties married in February 2002 and thereafter lived in Australia.

4. Two children were born to the parties’ relationship. The eldest child was born in May 2006 and the youngest child was born in June 2008. They are now aged six and four years respectively.

5. The parties finally separated in September 2010 while they were in Country E, following which the father returned to Australia alone and the mother and children remained in Country E.

6. Upon his return to Australia the father caused the institution of proceedings under the Hague Convention on the Civil Aspects of International Child Abduction seeking orders compelling the return of the children to Australia. Orders to that effect were made in Country E in January 2011 and the mother’s appeal against those orders was dismissed in March 2011. The mother and children returned to Australia shortly thereafter.

7. Once the mother and children returned to Australia the children remained living with the mother, but spent time frequently with the father.

8. For some months the parties negotiated parenting arrangements for the children but failed to reach any satisfactory final agreement. The father therefore instituted these proceedings in August 2011.

9. Interim parenting orders were made on 15 December 2011 with the consent of the parties. Those orders essentially provided for the children to live with the mother and to spend time with the father for four nights per fortnight (being three nights in the first week and one night in the second) and for half of school holiday periods.

10. The parties subsequently negotiated a change to the nights spent by the children with the father, but the change did not materially affect the overall duration of time spent by the children with the father. The parties, however, have different perceptions as to why that change was made. The father alleged it was to ensure the children’s visits to him were more regular,[3] whereas the mother implied it was to suit the father rather than the children.[4] In any event, the parties adhered to those arrangements pending the trial.

    [3] Father’s second affidavit, para 4

    [4] Mother’s affidavit, paras 216-221

11. It is uncontroversial that the children will remain living with the mother, wherever that may be, despite the father having told the Family Consultant he would seek residence of the children.[5] The mother deposed that she would remain resident in Australia, caring for the children, even if orders were made precluding their relocation to Country E.[6] The father’s proposal demonstrated his expectation the children would remain living with the mother in either Country E or Australia, and further, he said in cross-examination he could not and would not relocate to Country E even if the mother and children did so.

    [5] Family Report, paras 13, 45

    [6] Family Report, paras 17, 23, 24, 45

Proposals and primary evidence of the father

1. The father tendered a minute of the orders he proposed before the trial commenced.[7] His proposal entailed two alternate regimes, depending upon whether or not the mother and children were prevented from relocating their residence to Country E.

   [7] Exhibit F1

2. In the event of the mother and children being restrained from relocation to Country E, which was his preference, the father proposed:

   a)The parties have equal shared parental responsibility for the children (Orders 1, 9);

   b)The children live with the mother (Order 2);

   c)The children spend time with him for five nights each fortnight during school terms, for half of all school holiday periods, and on other special occasions (Orders 3, 5), with changeovers to be effected at the school or the parties’ residences (Orders 4, 8); and

   d)The children communicate liberally with the parties by telephone, email, text message, Skype, and Facebook (Orders 12-13).

3. However, in the event of the mother and children not being restrained from relocation, the father proposed:

   a)The parties still having equal shared parental responsibility for the children (Order 15);

   b)The children still living with the mother (Order 16);

   c)The children spending time with him in Country E for two weeks each year (Order 17) and in Australia for two weeks each year, both visits to be partially funded by the mother (Orders 18-20);

   d)The children communicating with him by telephone or Skype twice per week (Orders 21, 23), and by telephone, email, text message, Skype (sic) and Facebook frequently (Orders 22-23)

4. In support of his proposal the father was permitted to rely upon his affidavits filed on 2 August 2011 and 12 October 2012, even though neither had been filed in accordance with the procedural orders previously made.[8]

   [8] Orders 6, 7 and 12 made on 14 May 2012

5. The father was refused permission to rely upon further affidavits sworn by him, the paternal grandmother and the paternal aunt, all of which were only filed days before the trial on 25 October 2012. Greater prejudice would have been caused to the mother by permitting the father’s reliance upon such belatedly filed evidence than to the father by refusing it. The father’s counsel did not require the publication of reasons for that interlocutory decision.

Proposals and primary evidence of the mother

1. The mother pressed for the orders set out within her Amended Response filed on 11 October 2012. Similarly, her proposal entailed two alternate regimes.

2. In the event they may live in Country E the mother proposed, essentially, that:

   a)The children live with her and she have sole parental responsibility for them (Orders 1-2);

   b)The children spend time with the father liberally in Country E (Orders 7(a), 13-14), which the mother would financially facilitate in some respects (Orders 8-10), and for no less than two weeks each year in Australia (Order 7(b)), which the mother would also partially financially facilitate (Orders 11-12); and

   c)The children communicate with the parties and grandparents liberally by telephone, Skype and internet (Orders 15-17).

3. Alternatively, in the event of their restraint from relocation to Country E, the mother essentially proposed that:

   a)The children still live with her and she still have sole parental responsibility for them (Orders 1-2), subject to some provisos regarding the children’s education, medical treatment and extra-curricula activities (Orders 31-34, 36, 40, 43); and

   b)The children spend time with the father each alternate weekend during school terms, half of all school holiday periods, and on other special occasions, subject to suspension so as to permit annual travel to Country E for up to eight weeks, a discrete stay in Country E of six months duration in years to come, visits to Australia by Country E relatives, or because of illness (Orders 25, 30, 37), with changeovers to occur at the school or at the parties’ respective residences (Orders 28-29)

4. Despite the father’s objection, which pertained to the lateness of the evidence, the mother was permitted to rely upon:

   a)Her own affidavit filed on 11 October 2012;

   b)The affidavit of the maternal grandfather filed on 18 October 2012; and

   c)The affidavit of her fiancé filed on 18 October 2012.

5. However, consonantly with the father’s objection, the mother was refused leave to rely upon affidavits of the maternal grandmother and her psychologist, both of which were filed on 18 October 2012.

6. Neither party required the publication of reasons for those interlocutory decisions either, but a short summary is useful. The late filing of the evidence was not of itself compelling. However, reliance upon the affidavits of the maternal grandmother and psychologist were not contemplated by earlier procedural orders.[9] If reliance upon that evidence was permitted it would have compromised the Court’s capacity to confine the trial to the time allotted, and in the case of the psychologist, would have been repugnant to the objects of Part 15.5 of the Family Law Rules 2004 (Cth), which ordinarily stipulate the use of single rather than adversarial experts.

   [9] Orders 6, 8, 12 made on 14 May 2012

Proposal of independent children’s lawyer

1. The Independent Children’s Lawyer did not begin the trial with any fixed view about the outcome. It was revealed in final submissions that she broadly supported the orders proposed by the father.

2. The proposals of the father and Independent Children’s Lawyer derived principally from the evidence given by the Family Consultant in her Family Report, dated 27 September 2012,[10] and the oral evidence she gave in cross-examination.

   [10] Exhibit C

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

1. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

2. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

3. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

4. Proceedings such as this, involving the prospective relocation of a child’s residence, sharply focus the conflict between the best interests of the child to know and have regular interaction with each parent and the interests of parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 at 196, 206, 207-208, 210).

5. In Taylor v Barker (2007) FLC 93-345 the Full Court confirmed (at [53]) that the proposed relocation of a child to a geographically distant place should be considered as just one of the proposals for the children’s future living arrangements, rather than as a discrete issue. The Full Court also held (at [60]) that a relocation proposal must be evaluated not only in the context of findings about what is in the children’s best interests under s.60CC of the Act, but also in the context of s.65DAA of the Act, which mandates consideration of the children spending equal, or alternatively substantial and significant, time with the other parent in the event of allocation of equal shared parental responsibility.

6. It is accepted wisdom that, apart from cases of abusive relationships, children benefit from the development of good relationships with both their parents (see U v U (2002) 211 CLR 238 at 285-286).

Best interests of children – primary considerations

Section 60CC(2)(a)

1. It was uncontroversial that the children are primarily attached to the mother, but still have secure relationships with the father, which are continuing to develop.[11]

   [11] Family Report, pars 38, 40

2. Despite the negativity persistently expressed by the mother in her affidavit about the quality of the relationships between the children and the father, she made several important concessions during her cross-examination. She admitted the children have both told her they enjoy spending time with the father, that the children had told their psychologist the same thing, and that she considered the children’s relationships with the father have “developed beautifully” since the interim parenting orders were made in December 2011. Significantly, the mother did not doubt that both children love the father.

3. The mother knows both children are well aware of the parental tension over the proposed relocation and acknowledged the children were exceedingly anxious about it. The children’s trepidation is most pronounced when they are in the presence of both parties, such as at changeovers.[12] Even at the interviews with the Family Consultant the children did not spontaneously display affection with the father when in the presence of the mother,[13] which the Family Consultant attributed to the children feeling as though they did not have the mother’s permission to openly display their love for the father. The mother admitted it was “highly likely” the children did not display affection to the father because of their awareness of the parental conflict.

   [12] Family Report, para 37; Mother’s affidavit, paras 372-374

   [13] Family Report, para 39

4. The mother’s awareness of the children’s anxiety led her to arrange for the eldest child to consult with the school counsellor and for both children to consult with a clinical psychologist.[14] The notes of the children’s psychologist were tendered over the mother’s objection.[15] Once admitted into evidence the mother contended little or no weight should be attributed to those notes because of some asserted errors contained within them. However, even allowing for the errors contended by the mother, the notes are worthy of significant weight and are persuasive. It was conceded the notes were made reasonably contemporaneously with the consultations conducted by the psychologist with the mother and both children on three particular appointment dates. There was no basis for imputing any bias against the mother on the part of the psychologist, who was selected by the mother or her medical general practitioner on her behalf, over the objection of the father.

   [14] Mother’s affidavit, paras 311-315, 380-381

   [15] Exhibit ICL1

5. The children both disclosed to the psychologist that they enjoy spending time with the father. Their vexation at prospective separation from him was apparent from their statements to the psychologist.

6. Inexorably, the evidence demands a finding that the children enjoy meaningful relationships with both parties from which they do, and will, derive benefit. It may be that the children’s attachment to the mother is stronger because of their young age and her role as their primary carer, but the undoubted strength of their bonds with the father is an important – indeed primary – consideration in the outcome of the litigation.

Section 60CC(2)(b)

1. Although barely addressed in either cross-examination or final submissions, the mother adduced evidence which could only rationally be directed to the alleged risk of the children being abused or neglected by the father. The evidence addressed to those contended risks of “abuse” and “neglect” was quite different and should therefore be evaluated separately.

   Abuse

2. The mother deposed to stumbling inadvertently upon computer records of the father, bearing the title “Integrity File”, the contents of which she found “devastating”.[16]

   [16] Mother’s affidavit, paras 109-111, 146, 375

3. The contents of the file, which the father conceded compiling, included admissions that he had betrayed the trust of his cousin and her daughter by “exploring [the] daughter’s sexual organs as well as having her touch my erect penis”.[17] The cousin’s daughter was apparently aged four years at the time.

   [17] Mother’s affidavit, Annexure P

4. Such a revelation would be understandably concerning to the mother, but there are cogent reasons why such facts do not materially influence the outcome of these proceedings.

5. The mother conceded she was seized of that knowledge from at least September 2010, but it clearly did not disturb her trust in the father. By her own admission, upon her return with the children to Australia only months later in April 2011, the mother wanted and encouraged the children to spend time alone with the father frequently.[18] The mother would hardly have acted in that way if she was genuinely fearful that the children were at risk of sexual abuse by the father.

   [18] Mother’s affidavit, paras 203, 211

6. The mother’s alleged present concern about the contents of the file is also inconsistent with her consent to the interim parenting orders made in December 2011, which achieved extensive, unsupervised interaction between the children and the father.[19] Although the mother initially said in cross-examination that she felt pressured to agree to those orders, she later said she was now quite satisfied the interim orders were “appropriate”.

   [19] Mother’s affidavit, paras 7, 215

7. Any alleged lingering concern about the contents of the file is also surely inconsistent with the mother’s current parenting application, which proposes extensive, unsupervised interaction between the children and the father.

8. Although the “Integrity File” was created by the father in 2006,[20] there is no evidence about how old he was when the events he described actually took place. It is plausible the admission was historical, relating to an incident when he was adolescent or perhaps even pre-pubescent. The father was not asked about that detail in cross-examination and so the Court is left without an explanation. Had the mother really desired an adverse finding that the father posed an unacceptable risk of sexual abuse to the children it was incumbent upon her to comprehensively confront the father with the relevant facts and circumstances for either his approbation or rebuttal.

   [20] Mother’s affidavit, para 110

9. The mother also deposed to her conversation with one of the children, who is not identified, at some indistinct point in time when she was told:[21]

   I’m scared of Daddy. Daddy hits me in the head.

   [21] Mother’s affidavit, para 178

10. The mother may well have heard one of the children say words to that effect, but that does not mean the statement was both truthful and accurate. I am inclined to the view the representation made to the mother was probably untrue or misinterpreted for a number of reasons.

11. The children are acutely aware of, and worried by, the conflict between the parties about their living arrangements. In such circumstances it is unsurprising they may wish to demonstrate their allegiance to the parties by making comments they perceive the parties may wish to hear. There was no dispute that both children are known to fabricate stories.  

12. The eldest child told the Family Consultant that the father “hits [her] on the back” and makes the children sleep together on a mattress on the floor rather than in beds.[22] Her report about sleeping on the floor was false because the father confirmed, without challenge or contradiction, that the children always slept over at his home in beds, a photograph of which he produced and tendered.[23] The mother corroborated that the sheets on the beds in the photograph were sheets owned by the family before separation and the father said the beds were ones acquired before separation which he had retained.

    [22] Family Report, para 34

    [23] Exhibit F2

13. The mother also conceded in cross-examination that the youngest child “likes to make things up” and that she “may have made some things up” that she reported to the psychologist.

14. In circumstances where both children’s statements are known to be potentially unreliable, considerable caution must be exercised before attributing any weight to comments made by them.

15. Apart from the isolated statements made by the children to the mother and Family Consultant, extracted above, no other aspect of the voluminous evidence suggested the father was inclined to physically abuse the children.

16. In final submissions the mother accepted that the presumption of equal shared parental responsibility was not displaced under s 61DA(2) of the Act, in which case she necessarily abandoned any contention that the father abused either of the children.

17. I am not satisfied the father presents any risk of harm, let alone one which is unacceptably high (see M v M (1988) 166 CLR 69), to the children by means of sexual or physical abuse.

    Neglect

18. The mother also adduced evidence about the father’s neglectful treatment of the children, through his asserted failure to provide them with sufficient food and clothing,[24] and additionally stated her concerns for the children’s safety with him because of his alleged lack of insight into their needs.[25]

    [24] Mother’s affidavit, paras 190, 230-255

    [25] Mother’s affidavit, paras 200, 202, 228, 230-281, 354-364

19. Despite the mother’s asserted concerns, the children’s psychologist found no evidence of their “emotional or physical neglect” and no evidence the father “is a problem or neglectful”.[26]

    [26] Exhibit ICL1

20. The cross-examination of the mother revealed her to be a doting parent who employs high standards in her care of the children. She has a clear perception that the father’s standards of care for the children are inferior to her own. Of course, an honestly held perception does not necessarily correlate with objective facts, but even if the mother’s perception is factually correct, that does not of itself mean the father’s parenting capacity is so impaired that the children’s essential needs are ignored; much less that they are at risk of physical or emotional harm as a consequence.

21. I am satisfied the mother realises the father’s care of the children is adequate and that the filing of her affidavit in these proceedings simply provided her with the medium through which to vent her dissatisfaction about the disparity between their respective standards of care. She conceded in cross-examination that the father now appears not to be the “neglectful father” he was during the marriage. Sensibly and for good reasons, no submission was ultimately made that the father posed a risk of harm to the children through his neglect of them.

Best interests of children – additional considerations

Section 60CC(3)(a)

1. The mother adduced evidence of the children intermittently expressing to both her and the father their wish to live in Country E.[27]

   [27] Mother’s affidavit, paras 72, 142, 178, 241, 370, 371, 393

2. The tenor of the children’s remarks to their psychologist was that they were aware of the mother’s desire to move back to Country E and wished her to be happy, but did not wish to leave the father behind.[28]

   [28] Exhibit ICL1

3. The eldest child told the Family Consultant that she wants to live with the mother and her sister in Country E, but the youngest child did not express any view to the Family Consultant.[29]

   [29] Family Report, paras 35-36

4. There are several reasons why the views expressed by the children, variously to the parties, their psychologist, and the Family Consultant, should not be regarded as influential.

5. Firstly, the children are aged only six and four years respectively. As would be apparent from their chronological ages, they do not have sufficient maturity to understand the long-term consequences of their expressed views. Were that not obvious, the Family Consultant emphatically confirmed the fact.

6. Secondly, according to the versions reported by the mother, the psychologist and the Family Consultant, there have been perceptible variations in the views expressed by the children. The actuality of their views is therefore somewhat uncertain.

7. Thirdly, the children’s awareness of the intractable conflict between the parties over the proposed relocation is liable to distort the nature of their representations on the issue, depending upon their audience, because they are probably aware of what each particular audience wishes to hear from them.

Section 60CC(3)(b)

1. The relationships of the children with the parties has already been discussed and nothing more need be said.

2. It was common ground that the children enjoy warm relationships with members of both the extended maternal and paternal families.

Sections 60CC(3)(c), (4)

1. The evidence about the willingness and ability of the mother to facilitate and encourage close and continuing relationships between the children and the father was inconsistent and confounding.

2. The mother has undoubtedly supported the children’s relationships with the father since returning with them to live in Australia in April 2011.[30] The positive nature of the children’s current relationships with the father is testament to that.

   [30] Family Report, para 42

3. However, there must be considerable concern about her willingness to continue supporting those relationships if permitted to return to Country E with the children. The Family Consultant expressed circumspection about the permanence of the mother’s willingness and ability to promote the children’s relationships with the father from Country E[31] and the father was concerned the children would lose their relationships with him if they relocated with the mother to Country E.[32] Their worry was not misplaced.

   [31] Family Report, para 42

   [32] Family Report, para 13

4. The mother’s affidavit was replete with highly critical complaints about the standard of the father’s parenting. So were her comments about the father to the children’s psychologist. The psychologist found the mother “highly demeaning” of the father and intent on “destroy[ing] [the youngest child’s] faith in her father”. The psychologist also noted that the mother stated her fiancé would be “the children’s new father and they would not need their father or miss out on a father”.[33]

   [33] Exhibit ICL1

5. The Family Consultant expressed surprise at the mother’s comments and conduct, as reported by the psychologist, presumably because it was quite different to the impression the Family Consultant formed about her.

6. The mother’s fiancé seems to hold the same views as those expressed by the mother to the psychologist. He deposed the children feel part of a “real family” with him,[34] and that he “could not detect any mutual affection” between the children and the father.[35] During his visits to Australia the mother occasionally turned to him instead of the father to mind the children. Although the mother expressed regret about that during cross-examination, she admitted the incongruity of excluding the father in preference for her fiancé did not occur to her at the time.

   [34] Affidavit of Mr F, para 27

   [35] Affidavit of Mr F, para 41

7. The mother’s stated concerns about the father were moderated to some extent, but that moderation was only belatedly expressed in cross-examination at the trial. It cannot be ignored that her affidavit was filed only weeks ago and that her comments to the psychologist were made over only the last few months. The psychologist found the mother “emotionally manipulative” towards her,[36] so one can imagine how the mother’s concessions in cross-examination could have been made for tactical advantage.

   [36] Exhibit ICL1

8. The mother admitted in cross-examination she still struggled to identify anything positive about the father’s parenting capacity. The most she could say was that she accepted the father was “doing his best”. By comparison, the mother perceived no flaws at all in the parenting capacity of her fiancé, with whom she planned to cohabit and share the parenting load in Country E.[37]

   [37] Family Report, para 18; Mother’s affidavit, para 414

9. The mother disavowed the possibility of the father being supplanted by her fiancé in the children’s lives, but it was a risk to which the Family Consultant was alive. She said it was a “significant risk”, so much so that she considered the mother’s fiancé would “very likely” become the psychological father figure for the children. She considered the process of elimination, or at least marginalisation, of the father as an important figure in the children’s lives would occur irrespective of the mother’s intention. I accept her evidence.

10. The maternal grandfather said the children “hardly asked after” the father in Country E, and even when they did, it was “without any inner longing for him”.[38] The mother deposed in her affidavit that she feared the father’s interest in the children was insincere[39] and that it was difficult for her to motivate the children to spend time with him.[40] If that evidence was truthful, and I assume it was, then it will be even more difficult to motivate the children to spend time with an insincere father when they live on opposite sides of the world. If her comments to the psychologist were reliable then the excision of the father as a meaningful influence in the children’s lives would surely swiftly occur.

    [38] Affidavit of maternal grandfather, para 24

    [39] Mother’s affidavit, para 222

    [40] Mother’s affidavit, para 255

11. I have grave misgivings about the mother’s willingness and ability to sustain the children’s relationships with the father if she and the children live in Country E.

Section 60CC(3)(d)

1. If the children remain living with the mother in or around Sydney, the parties envisage there will be little change to existing arrangements, which they find mutually satisfactory.[41] There is a residual dispute, though, about the precise number of nights each fortnight the children would spend with the father in such circumstances.

   [41] Family Report, paras 8, 23

1. As would be obvious, the relocation of the children to Country E would bring enormous change in their lives. Whilst they would no doubt be embraced within the wider maternal family, the members of which all live in that country, their relationships with the father and other members of the paternal family would certainly suffer. The Family Consultant was adamant the children’s relationships with the father would fracture without frequent personal interaction,[42] which would be the inevitable consequence of relocation to Country E.

   [42] Family Report, para 43

2. The children would undoubtedly immediately miss the father, but the truly adverse effects of that change would only be realised by the children in the medium or longer term.[43]

   [43] Family Report, para 42

3. The formation and retention of filial relationships is an inherently tactile experience. The use of technology such as Skype to enhance international communication between the children and the father would not be a satisfactory salve for the absence of physical proximity,[44] particularly given the mother’s dissatisfaction with the use of Skype in early 2011 before her return to Australia from Country E.[45]

   [44] Family Report, para 43

   [45] Mother’s affidavit, paras 157-162

Section 60CC(3)(e)

1. The practical difficulty and expense of the children retaining their relationships with the father if living in Country E is readily apparent.

2. I accept there is no reasonable prospect of the father relocating to Country E. Despite the mother’s apparent doubts,[46] I am satisfied that he is not entitled to a European Union passport, speaks only rudimentary Country E, and his professional qualifications are not easily recognised in Country E.[47] There is no evidence to safely infer that he could permissibly live in Country E, even though the mother and her family may support his application to do so.[48] He has no visa and is no longer married to the mother. The visa application he made in 2000 failed[49] and his application for another visa in 2010 was abandoned.[50]

   [46] Mother’s affidavit, para 461

   [47] Family Report, para 13

   [48] Mother’s affidavit, para 460; Affidavit of maternal grandmother, paras 33-34

   [49] Mother’s affidavit, para 15

   [50] Mother’s affidavit, paras 84-87

3. The father’s travel to Country E would be constrained by his ability to take leave from work[51] and also the cost of the transport and accommodation.

   [51] Family Report, para 44

4. The father is self-employed. Although his working hours are consequently flexible, he is restricted in the amount of time he can leave his business unattended. The business would likely fail, or at least falter, if he is absent from it for too long because its viability depends upon his availability to afford personal service to his professional patrons.

5. The mother asserted her family would establish a fund to defray the cost of both the father’s travel to Country E and the children’s travel to Australia, but the details of such arrangements were quite uncertain.[52] It is very easy to make such promises, but almost impossible to embed them in prescriptive orders and thereafter enforce them. In any event, the money the maternal family could admittedly contribute towards the father’s cost of travel to Country E could just as easily be directed to covering the cost of the mother’s visits with the children to Country E. The mother’s expressed worry about affording travel with the children to Country E[53] is not therefore particularly influential.

   [52] Family Report, para 22; Mother’s affidavit, para 415

   [53] Mother’s affidavit, para 417

6. The mother perceived difficulty taking time off work around Christmas to travel with the children to Country E,[54] but she is not bound to that employment. She said in evidence that she loathes it, so her resignation is foreseeable. In the current economic climate few employees voluntarily resign their employment, but the mother is intelligent, articulate and engaging. She would likely create a favourable impression with prospective employers. Irrespective of the employment the mother holds, her annual leave is likely to be limited both as to duration and the time at which it is taken.

   [54] Mother’s affidavit, para 418

Section 60CC(3)(f)

1. The principal argument advanced for the mother was that her despair at being prevented from relocating to Country E would result in such emotional degradation that her parenting capacity would be impaired to the point that the children’s interests would be compromised. I am not satisfied the mother made good on that contention.

2. It should initially be acknowledged that the mother genuinely desires the relocation and will be bitterly disappointed by it being denied. That is beyond doubt because the father admitted it. But that of itself does not prove the mother’s argument. When weighing the advantages and disadvantages of the competing parenting outcomes, it is the advantages and disadvantages to the children, rather than the parties, which are decisive (see McCall v Clark (2009) FLC 93-405 at [88]). That is not to say the parties’ individual interests are irrelevant; only that the children’s interests are paramount.

3. The Family Consultant was not prepared to concede the probability of the mother’s emotional collapse, and understandably so. The mother expressly told the Family Consultant she was uncertain of the “emotional impact” upon her of preclusion from relocation,[55] from which it is clear the mother countenanced the prospect she would cope regardless. On the basis that past conduct is a reasonably reliable foundation for predictions about future conduct, the mother’s parenting performance since April 2011, after having been compelled to return to Australia and live here against her will, has been excellent. The mother impressed the Family Consultant with her resilience and inner strength. There is consequently good reason to infer the mother will manage her disappointment successfully.

   [55] Family Report, para 24

4. The evidence adduced by the mother about the probable curtailment of her parenting capacity and its impingement upon the children was not, therefore, of the quality or probative value envisaged by the Full Court as necessary in such circumstances (see McCall v Clark at [84], [131]-[135]; Hepburn & Noble (2010) FLC 93-438 at [43], [49]-[64]).

5. The mother’s attempt to adduce evidence on the issue from an adversarial psychologist was rejected. She declined the opportunity to seek an adjournment in order to procure an opinion from a single expert witness on the issue, so she cannot be reasonably heard to complain about the absence of expert evidence.

6. The grief the mother will no doubt experience in the knowledge that the children must remain in Australia, which will cause her to also remain, will be assuaged by her continuing contact with members of her extended family. She communicates with them daily by either Skype or telephone and the maternal grandparents have promised to try and visit from Country E on a regular basis.[56] They have already visited Australia several times in the past.

   [56] Family Report, para 27

7. I accept that the mother’s fiancé is probably unable to relocate to Australia to live with her,[57] but he too has travelled here on two occasions since April 2011 to visit her and the children. He also speaks to the mother and children by Skype on a daily basis.

   [57] Affidavit of Mr F, para 4

8. It is of course always open to the mother to expand her circle of friends in Australia. Her intelligence and personality make it feasible for her to forge friendships with mothers of other children from the children’s school and pre-school, her workmates, and members of her church congregation.

9. So far, the children’s anxiety about the parental conflict has not contaminated their sense of security. They are both doing well at school and pre-school and they both socialise well with their peers.

10. The mother admitted the children’s psychologist told her that the children’s anxiety was caused by their awareness of her anxiety, so it is a phenomenon of which she is now aware and about which she may be vigilant. She conceded the importance of shielding the children from her own feelings. The mother said in cross-examination she would be prepared to seek out appropriate counselling to assist her adjust to the idea of indefinite residence in Australia. That will reduce the prospect of her disappointment affecting the children.

11. It was later contended that the mother may be financially constrained from seeking and receiving such counselling, but that is not a compelling consideration. She holds full-time employment, she has the prospect of financial assistance from both her family and her fiancé, and the parties settled their dispute over property adjustment orders, as a result of which she will shortly receive a lump sum of $17,000.[58]

    [58] Order 1.1 made on 29 October 2012

Section 60CC(3)(g)

1. The mother is a committed Christian and has introduced the children to her faith, practiced in the New Apostolic Church.

2. The father is not religious, but consents to the children being raised with the mother’s faith.

3. The parties acknowledged their consensus over the issue when they agreed to interim orders in December 2011.[59] The mother now takes the children to her church every Sunday.[60] She would be unhappy about the children missing church on a regular basis, but the father understandably does not wish to be permanently restricted about the children’s activities when spending time with him on Sundays.

   [59] Notation A made on 15 December 2011

   [60] Mother’s affidavit, para 221

4. The Family Consultant said, without contradiction, that the children are still too young to appreciate their Country E cultural heritage.

Sections 60CC(3)(h), (6)

1. Neither party identified themselves or the children as Indigenous Australians.

Sections 60CC(3)(i), (4)

1. The father’s payment of child support was, at least initially, unreliable and caused financial stress to the mother.

2. The father did not voluntarily pay child support upon the mother’s return to Australia in April 2011.[61] The mother was compelled to seek a child support assessment and the father’s payments did not begin until June 2011.[62] The father then fell into arrears with his payments which were not rectified until around December 2011.[63]

   [61] Mother’s affidavit, paras 333, 400

   [62] Mother’s affidavit, paras 404-408

   [63] Mother’s affidavit, paras 409-412

3. Otherwise, neither party was open to criticism about their attitude to the children or to the responsibilities of parenthood.

Section 60CC(3)(j)

1. The subject of family violence was not raised at all in cross-examination or during submissions, but there was some brief evidence directed to the issue, albeit obliquely.

2. The mother asserted simply in her affidavit:[64]

   I continue to fear [the father’s] anger.

   [64] Mother’s affidavit, para 433

3. Having regard to the enormity of the mother’s affidavit, it is difficult to attribute any real weight to such an isolated statement, particularly when devoid of any elaboration and lost in the morass of other evidence. In any event, the paucity of the evidence renders it impossible to determine whether the mother’s fear of the father’s anger is reasonably held, in which case the relevant historical definition of “family violence” is not fulfilled.

Section 60CC(3)(k)

1. There is no evidence of the existence of any family violence order, past or present.

Section 60CC(3)(l)

1. There is a reasonably high probability further litigation will ensue following the making of these orders. During cross-examination the mother adverted to her intention to consider an appeal in the event of her dissatisfaction with the outcome of the proceedings. The mother also previously told the Family Consultant she would file another application for relocation at some point in the future if she fails with her application in the current proceedings.[65] When asked about that in cross-examination the mother said “depending on the circumstances, I would definitely look at that option”.

   [65] Family Report, paras 25, 41

Section 60CC(3)(m)

1. Large tranches of the mother’s affidavit were devoted to proof of an alleged agreement between the parties for them to relocate permanently to Country E in 2010,[66] about which there was considerable dispute. The father conceded reaching agreement in 2010 to relocate permanently to Country E, but asserted he resiled from the agreement when he learned of the mother’s continuing relationship with her current fiancé. The father alleged the family trip to Country E in September 2010 was for the purpose of a brief visit to the mother’s ailing grandmother, about which he was tricked.[67]

   [66] Mother’s affidavit, paras 6, 16-18, 23, 30, 43, 82-108, 113, 119

   [67] Father’s first affidavit, paras 31-35

2. Although the mother seemed to believe the evidence was important, it was not, and the debate over it was futile for several reasons.

3. Firstly, the issue was already resolved by the Country E courts during determination of the Hague Convention proceedings. In those proceedings the father deposed that the family’s trip to Country E in September 2010 was intended to be temporary and that the mother had unlawfully detained the children in Country E without his consent.[68] That proposition was accepted, for otherwise the application made on his behalf would not have been successful. The mother appealed against the decision, expressly contesting the finding at first instance that she was “wrongfully retaining the children in Country E”.[69] In the course of dismissing the mother’s appeal, the Country E appeal court held that the children’s “habitual place of residence was still in Australia” and that the mother had failed to establish the family’s arrival in Country E was intended to be a final relocation.[70]

   [68] Father’s first affidavit, Annexure A

   [69] Father’s first affidavit, Annexure C

   [70] Father’s first affidavit, Annexure D

4. Although the principle of “issue estoppel” does not necessarily apply in proceedings under Part VII of the Act (see Schorel v Schorel (1990) FLC 92-144 at 78,000-78,005), such principles need not be completely ignored. In any event, the Act expressly permits the Court to adopt the finding, decision or judgment of the Country E appeal court (s 69ZX(3)(b)). It would be absurd to permit re-litigation in these proceedings of the issue concerning the circumstances of the trip to Country E in September 2010 when the very same issue was central to the determination of the prior Country E proceedings concerning the same children.

5. Secondly, the genuineness of the mother’s desire to permanently relocate with the children to Country E was beyond dispute. Given that her desire was uncontroversial it did not matter whether her desire was long-held or recently acquired. Nor did it matter whether the father had previously agreed to the relocation, either under the same or different circumstances. It is an unremarkable fact of life that people are prone to change their mind about their relationships and living arrangements.

6. Thirdly, the resolution of the current proceedings is not materially influenced by any agreement about relocation previously reached between the parties. The Court does not enforce any such proven agreement by some remedy akin to those employed at common law or in equity for breach of contract. Rather, the Court exercises its discretion under the Act to make parenting orders in respect of the children, with the paramount consideration being the children’s best interests, and does not adjudicate any rights of the parties.

Parenting orders

1. The father and Independent Children’s Lawyer both proposed the allocation of equal shared parental responsibility for the children to the parties, which proposal enjoyed the support of the Family Consultant.[71]

   [71] Family Report, para 50

2. The mother, however, proposed that she have sole parental responsibility for the children, regardless of where she lived with them.

3. The mother eschewed reliance upon s 61DA(2) of the Act and so the presumption of equal shared parental responsibility applies unless findings about the children’s best interests rebut the presumption (s 61DA(4)).

4. The mother’s proposal for the allocation to her of sole parental responsibility was premised upon an assertion that the parties’ communication was too troubled to realistically permit their rational discussion and resolution of major long-term issues in the children’s lives. But that contention was difficult to reconcile with her professed willingness to consult with the father in future over issues of significance to the children and to only exert her authority in the event of impasse. The mother’s willingness to consult with the father and make a genuine effort to compromise is all that the law requires of her in the exercise of equal shared parental responsibility (s 65DAC), leaving the Court as the ultimate arbiter of any insoluble dispute.

5. The Family Consultant recognised that the parties’ communication was problematic,[72] as did the father, but problematic communication is conceptually different from an inability to communicate. The father told the Family Consultant their communication was “minimal”,[73] but said during cross-examination it was “adequate, with room for improvement”.

   [72] Family Report, para 48

   [73] Family Report, para 14

6. The mother said in cross-examination that since the parties’ interim agreement over equal shared parental responsibility was reached in December 2011 she has attempted to consult the father concerning issues of relevance to the children. It therefore follows that the mother acknowledges consultation with the father is possible for her.

7. The parties have objectively demonstrated their respective capacity to discuss and resolve disputes between them over issues affecting the children. They reached agreement about interim parenting orders for the children in December 2011, which included the allocation of equal shared parental responsibility, and they subsequently agreed on further variations to those arrangements.[74] The parties also agreed upon the school the eldest child would attend, the year the youngest child would begin school, and the children being inculcated in the mother’s religious faith.[75]

   [74] Mother’s affidavit, paras 215-219

   [75] Mother’s affidavit, para 342; Family Report, para 48

8. The Family Consultant explained why children generally benefit from knowing their parents share parental responsibility for them. It places the parties on an equal footing in determining issues of significance in the children’s lives. Allocating sole parental responsibility to one parent tends to skew the balance in the family dynamics because the children become aware of the inequality and may perceive some deficit in the parent whose responsibility is ousted. As would be apparent, if children perceive a deficit in one of their biological parents there is a real risk they may project the deficit upon themselves, impairing their confidence and self-esteem.

9. I am not satisfied the evidence rebuts the presumption of equal shared parental responsibility (s 61DA(4)), and the presumption therefore applies.

10. The Act consequently mandates the Court’s consideration of orders providing for the children to live with the parties for “equal time”, or alternatively, to live primarily with one party and to spend “substantial and significant time” with the other (s 65DAA).

11. As mentioned already, it is common ground the children will continue to live with the mother.

12. The father conceded in final submissions that it was not in the children’s best interests to live with the parties for equal time, but instead contended it was both in the children’s best interests and reasonably practicable for them to spend substantial and significant time with him.

13. Of course, if the parties continue to live in or around Sydney, it is both in the children’s best interests and reasonably practicable for them to spend substantial and significant time with the father. There was no disagreement about that proposition.

1. The argument therefore distilled to whether the children’s interests were best served by them living with the mother in Country E or in Australia.

2. The prospective loss by the children of their meaningful relationships with the father and the consequent detriment they would experience is a compelling feature of the case which militates in favour of the children continuing to live in Australia in reasonable proximity to the father.

3. As the Family Consultant said, that loss would likely occur simply by virtue of the infrequency of personal interaction between them if the children lived in Country E, regardless of the mother’s intention. But the probability would become a certainty if the mother deliberately engineered the replacement of the father in the children’s lives with her fiancé, as she suggested to the psychologist would happen. The difficulty faced by the father in being able to travel to Country E to sustain the children’s relationships with him would only serve to compound the problem.

4. While the mother will be disappointed if the children are constrained to residence with her in Australia, she is not likely to suffer emotional collapse and lose the capacity to satisfactorily parent the children. It is likely the mother and the children will maintain daily communication by both Skype and telephone with members of the maternal family and they will likely enjoy reciprocal journeys between Australia and Country E to visit one another.

5. The mother will probably find it more costly to live in Australia than Country E, but neither she nor the children will be impoverished.

6. Relocation disputes do not admit of perfect solutions. Findings about the short, mid, and long term interests of children permissibly fall within a wide range of discretion (see U v U at 262-263). In this case, evaluation of the countervailing considerations leads to the conclusion that the children should live with the mother in Australia. Leaving to one side the subjective wishes of the parties, that conclusion is consistent with the opinion of the Family Consultant[76] and the submission of the Independent Children’s Lawyer.

   [76] Family Report, para 53

7. Attention must then turn to the time spent by the children with the father. Currently, the children spend four nights each fortnight with the father, being each Wednesday evening and each alternate weekend from Friday afternoon until Sunday morning. The father proposed expansion of that regime to five nights[77] and the mother proposed restriction of it to two or three nights,[78] even though she told the Family Consultant she would abide by the existing arrangement.

   [77] Exhibit F1, Order 3

   [78] Amended Response, Order 25(a)

8. The existing arrangement of four nights each fortnight constitutes “substantial and significant time” (s 65DAA(3)) for the children with the father. The current arrangement meets with the parties’ past consent, it has worked well, and no evidence was adduced suggesting it needs to be changed. I therefore adopt it. The orders permit the parties to agree upon alteration if they desire.

9. Apart from Mothers and Fathers Days, no particular provision is made for exchange of the children between the parties on a host of other days considered special by the parties, including birthdays and Christian celebrations. The parties can agree otherwise if they choose.

10. Although the parties generally agreed the children should share school holiday periods with them, the orders are structured to enable the mother to take the children to Country E in both the Australian winter and summer school holidays each year if she desires. The father agreed to forego the opportunity for the children to spend time with him in the winter holidays if they travel with the mother to visit relatives in Country E. He also agreed to divide the Christmas holidays in half to enable their travel to Country E for several weeks at that time of year. The children will share the autumn and spring holidays equitably with the parties.

11. The Family Consultant recommended that the children spend no more than a week at a time away from each parent, but I reject that advice as it would effectively preclude the mother and children from taking holidays to Country E. It is improbable the children do not have the resilience to experience more time than one week away from the father, especially as they age and mature.

12. The discharge of all former parenting orders and injunctions relating to the children will permit removal of the children’s names from the Airport Watch List and enable their periodic travel to Country E.

13. The father expressed some concern about the enforceability of the orders if the children are taken to Country E for holidays and not returned. The orders made by this Court serve to establish Australia as the State of the children’s habitual residence, which would be the foundation for any future application under the Hague Convention for return of the children to Australia if detained in Country E.

14. The children have Country E and Australian passports.[79] The issue was not addressed by the parties, but it is logical for the mother to retain the children’s Country E passports and for the father to retain their Australian passports.

    [79] Mother’s affidavit, para 83

15. I agree with the Family Consultant that, wherever possible, changeovers should occur at the children’s school and pre-school.[80] The parties also agreed.

    [80] Family Report, para 40

16. Communication between the children and the parties has been needlessly difficult. The mother has impinged upon the time spent by the children with the father by telephoning the children daily, and sometimes even more than once daily, when they have been in his care. The maternal grandparents have also requested the father to permit their Skype communication with the children while they have been in his care. From the mother’s perspective, she has been dissatisfied with the father’s reliability communicating with the children whilst they have been in her care. The Independent Children’s Lawyer suggested the imposition of both restriction and clarity concerning the children’s communication with the parties, with which both parties agreed. The orders therefore make such provision, but permit variation with the parties’ consent.

17. The remainder of the orders are either generally consistent with the parties’ proposals or could not be the subject of reasonable objection.

18. I am satisfied that the orders set out at the commencement of these orders are reflective of the children’s best interests.

I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 14 November 2012.

Associate:

Date: 14 November 2012