NEWTOBER & NEWTOBER

The Family Court of Australia heard an application by the mother, Ms Newtober, seeking to relocate with the parties' two young children to Country E. The father, Mr Newtober, opposed this relocation, seeking for the children to remain living in Australia. The children, born in 2006 and 2008, lived with the mother and spent substantial and significant time with the father, maintaining meaningful relationships with both parents. The father did not pose an unacceptable risk of harm to the children.

The court was required to determine whether to grant the mother's application for relocation to Country E. This involved considering the presumption of equal shared parental responsibility, the children's best interests under the Family Law Act 1975 (Cth), and the likelihood of the children retaining meaningful relationships with the father if they relocated internationally. The court also had to address the mother's allegation of a prior agreement to relocate and the admissibility of further affidavit evidence.

The court found that the presumption of equal shared parental responsibility applied, despite problematic but effective communication between the parents. While issue estoppel did not strictly apply, the court was entitled to rely on contrary findings made in previous Hague Convention proceedings in Country E. Crucially, the court determined that it was unlikely the children could retain meaningful relationships with their father if they relocated to Country E. The court also denied the mother leave to rely on further affidavit evidence that was not contemplated by earlier procedural orders and was contrary to the objects of Pt 15.5 of the Family Law Rules 2004 (Cth).

Consequently, the mother's application to relocate the children to Country E was refused. The court ordered that the children live with the mother and have equal shared parental responsibility. Detailed orders were made regarding the children's time with the father, including specific arrangements for school terms, school holidays, and communication between the parents and children. The court also made orders restraining the denigration of either parent in the presence of the children and requiring parties to keep each other informed of the children's activities and their own contact details.