OSBERN & QUINTON
[2020] FamCA 930
•5 November 2020
FAMILY COURT OF AUSTRALIA
| OSBERN & QUINTON | [2020] FamCA 930 |
| FAMILY LAW – CHILDREN – International Relocation – Where the mother seeks to relocate with the children to Canada – Where the father opposes the application – Where the mother’s new partner and their young child are residing in Canada – Where the children are primarily aligned with their mother – Where an order requiring the children to live with the father is untenable – Where the children shall live with the mother and she be permitted to relocate their residence to Canada – Where the two boys will spend block holiday time in Australia with their father and have regular electronic communication with him – Where the daughter will spend time and communicate with the father in accordance with her wishes. FAMILY LAW – CHILDREN – Parental Responsibility – Where the father seeks equal shared parental responsibility – Where the evidence in this case demonstrates that the parents do not trust or respect each other and do not communicate well at all – Where the mother will have sole parental responsibility with an obligation to consult with the father about her decision. |
| Family Law Act 1975 (Cth) |
| Heath v Hemming (No 2) [2011] FamCA 749 U v U (2002) 211 CLR 238 |
| APPLICANT: | Ms Osbern |
| RESPONDENT: | Mr Quinton |
| INDEPENDENT CHILDREN’S LAWYER: | Elizabeth Rayment |
| FILE NUMBER: | BRC | 8489 | of | 2019 |
| DATE DELIVERED: | 5 November 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 12, 13, 14 & 15 May and 6 July 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Buckley |
| SOLICITOR FOR THE APPLICANT: | Aylward Game Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Frizelle |
| SOLICITOR FOR THE RESPONDENT: | A P Hodgson & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Dart |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Rayment ELR Law |
Orders
That all previous orders and parenting plans be discharged.
Parental Responsibility & Where the Children shall live
That the children, X born … 2007 and Z born … 2010 and Y born … 2012, (“the children”) shall live with the mother and she is permitted to relocate their residence to Canada any time after Monday, 30 November 2020.
That the mother shall have sole parental responsibility for the children.
That when the mother is considering making a decision in relation to a “major long-term issue” in respect of the children (as that term is defined in s 4 of the Family Law Act 1975 (Cth)) the mother shall inform the father in writing of that and seek his views as to the decision to be made and, although she has the sole right to make the decision herself, she shall give due consideration to any views expressed by the father and when she has made any such decision she shall notify the father in writing of that decision within three (3) days of such decision being made, giving her reasons for making that decision at the same time.
Time & Communication
That X shall spend time and communicate with the father at all times as may be agreed in accordance with her wishes and the mother shall ensure that any time or communication in accordance with those wishes is facilitated.
That the children, Z and Y, shall spend time and communicate with their father:
(a)commencing 2021 during the Canadian Summer school holiday period for:
(i)at least three whole weeks in 2021 and 2022; and then
(ii)commencing 2023, for four whole weeks each Canadian Summer school holiday period thereafter;
(b)with the mother to book and pay for the return flights for the children and to give the father at least twelve weeks’ written notice of the dates and time on which they will be arriving in Brisbane and leaving Brisbane and to provide the father with a copy of the tickets and itinerary as soon as they become available;
(c)commencing 2021 for up to two whole weeks, during the Canadian Christmas or Spring holiday period (one of those each year) provided that the time is only exercised during the Christmas school holidays in alternate years (with the first year in which it can be the Christmas school holidays to be 2021) and provided that the father gives the mother twelve weeks’ notice of his intention to exercise such time and with the father to book and pay for the return flights for the children and provide the mother with a copy of the tickets and itinerary as soon as they become available;
(d)by Skype (or such other digital platform as the parents may agree upon) each Saturday between 5.00 pm and 6.00 pm (Canadian time) and on the children’s birthdays, the father’s birthday, Australian Father’s Day, Easter Sunday and Christmas Eve at such time as is agreed between the parents but, in default of agreement, then between 5:00 pm and 6:00 pm (Canadian time) on those days, with the father to make these calls.
(e)that while the children are spending holiday time with their father in Australia, they shall communicate with their mother by Skype (or such other digital platform as the parents may agree upon) each Saturday between 5.00 pm and 6.00 pm (Canadian time) and on any of their birthdays, the mother’s birthday, Easter Sunday and Christmas Eve that fall during such holiday time, at such time as is agreed between the parents but, in default of agreement, then between 5:00 pm and 6:00 pm (Canadian time) on those days, with the mother to make these calls.
That changeover for the purposes of time referred to in Order 6 hereof shall take place at Brisbane International Airport or such other place as may be agreed between the parents.
That the father is at liberty to send the children presents for special occasions and the mother shall ensure that the children receive them, save for circumstances where the mother determines, reasonably, that the present is inappropriate and she shall ensure the children write to the father and thank him for them.
Communication between the parents
That the mother shall provide the father with:
(a)a written summary of information concerning the children once each fortnight and that summary shall include an update on the children’s schooling, health and any activities/sports the children are attending as well as photographs of the children; and
(b)a copy of the children’s school reports when received.
That each party shall inform the other, as soon as is practicably possible, in the event that the children experience any serious illness or require significant medical treatment whilst in their respective care.
That the mother and the father shall communicate through the “Our Children” website and are otherwise restrained from passing information or messages through the children to the other parent.
That each of the parents:
(a)shall not criticise or denigrate the other parent or the other parent’s partner or family to, or in the presence or hearing of, the children;
(b)shall encourage and not undermine the children’s relationships with the other parent;
(c)respect the privacy of the other parent and not question the children about the personal life of the other parent and shall speak of the other parent respectfully;
(d)shall refrain from discussing or permitting another person to discuss family law issues, any adult issues and/or any issues in dispute between them with the children; and
(e)shall not show to the children any documents connected with these proceedings.
That each of the parents shall keep the other informed of a postal address, contact telephone number and skype address (or the details at which they can be reached on an otherwise agreed digital video conferencing platform) and shall advise the other of any change to the same within seven (7) days of such change occurring.
That the children are at liberty to have with them during any time they spend with the father, a mobile telephone supplied and paid for by the mother and the father is not to prevent its reasonable use.
That the Independent Children’s Lawyer is discharged.
That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (Cth) (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Osbern & Quinton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 8489 of 2019
| Ms Osbern |
Applicant
And
| Mr Quinton |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
In May this year, over four days, I presided over a trial that had been listed for hearing on those days for several months. Because of the restrictions imposed to deal with the Coronavirus pandemic, the hearing took place using the Microsoft Teams internet video conferencing platform. The mother, the father and the Independent Children’s Lawyer (“the ICL”) were all represented in that trial by counsel. The trial did not finish in the allocated four days and, due to other listing commitments, had to be adjourned part-heard to be concluded on a day in early July. Even then, there was no time to hear oral submissions and counsel were all directed to file written submissions and they did.
In dispute between the parents are the parenting arrangements which regulate their co-parenting of their three children, X aged 13, Z aged 10 and Y aged 7. Central to the dispute is the mother’s proposal to move the three children to live with her in C City in Canada. The father does not want the children to move to Canada and proposes that the two boys move to live in his principal care or, if they are to continue to live with the mother, as they have done since the former couple separated in August 2015, that she be required to stay living here in Australia so they can continue to spend alternate weekends and half of their school holidays with him. The father does not ask for X to live with him. That is because she has not spent any time with him since early 2018 and expresses the view that she does not want to see him. Instead, he wants the Court to order that X attend “reunification therapy” with an “expert” with a view to restoration of the father-daughter relationship.
The dilemma that the Court is faced with, which would now be obvious to the reader, becomes even more stark after observing that the mother, her current partner and their three year old child, W, are already in C City and the three children about whom this decision is being made are in the care of their maternal grandparents on the north coast of New South Wales.
Factual Background
The mother and the father married in Melbourne in 2004 having met in North Queensland. At that time, the mother was studying at a D City University and working part-time and the father was going through his training as an Australian Defence Force recruit. The father was posted to K City upon completion of his initial training and they moved there to live. When she was pregnant with X, the mother moved back to D City to live with her parents as she was experiencing some health issues and the father was away a lot of the time with his work. X was born in 2007 and she and the mother continued to live in K City until August that year. They then moved with the father to Melbourne again for three more months whilst he underwent further training. The mother’s undisputed evidence was that of X’s first year of life, the father was away for about ten months.
Their second child, Z, was born in 2010 when the father was based in Sydney. The mother and X lived with the maternal grandparents in D City again for five to six months before Z’s birth. The mother, X and baby Z moved back to Sydney then and lived with the father there until he left the Defence Force in November 2010. The family then returned to D City to live. The mother’s evidence is that once living together full-time as a family with the father no longer in the Defence Force going away for long stints at a time, their relationship began to deteriorate.
Both parents went back to university in D City. The mother studied part-time and the father studied full-time. Their third child, Y, was born in 2012. The mother suffered some serious health problems arising from the birth of Y and she said that this exacerbated relationship tensions between her and the father.
A matter of factual dispute between them at the trial was the mother’s allegation that in 2014 when the father was spending a great deal of time at a weightlifting gymnasium, he told her he was using anabolic steroids. She said that his behaviour changed during that time with him becoming angry and aggressive towards her, and that they argued over small things, particularly about money and their finances. The father denied ever having used steroids. I reject his denial and accept the truth of the mother’s evidence about that. There are a couple of reasons why I take this position.
First, illegal steroid abuse is a notorious problem in some sections of the weightlifting/bodybuilding community. It is not something that abusers could be expected to readily admit to where there is no clear evidence against them proving their use. If the father did not tell the mother that he was using steroids during that time, I consider it most unlikely that the mother would now be making that story up, given it is historic and pre-dates separation. Finally, the father’s credibility on disputed matters of fact such as these was severely damaged by a position that he took in relation to another very serious factual matter that I will now lead into discussing.
The couple separated finally in August 2015, having previously separated for a period of about two months. There was one occasion when there was such a heated argument between them that the maternal grandmother, who learned the argument was underway through a phone call, called the police to attend at their home. The parents initially reached some sort of understanding that they would separate and move in and out of the family home on a week about basis, leaving the children to stay living in the home to be cared for by each parent on that week about basis. That arrangement did not last very long at all, perhaps only a week or two.
The arrangement fell apart, according to the mother, whose evidence about the circumstances I again accept over the father’s evidence where it contradicts the father’s, after the father persistently kept returning to the home during the week the mother was there with the children and was seeking reconciliation and intimacy with the mother. Finally, on Monday, 29 September 2015, the mother received a call from the father early in the afternoon during a week when the children were in his care. The mother said that the father said some very disturbing things to her during that phone call. He told her that he thought he needed to hand himself into police. He told her he had done something terrible and that he was at the top of a mountain in D City and was going to “throw [himself] off”. He told her that he had been accused of sexually assaulting a friend. The mother said that she talked him around and got him to agree to meet her at the D City Hospital where he agreed to admission because of his troubled emotional state.
The father was subsequently charged with digital rape of a young woman who was a friend of his. The circumstances of that, as I understand them, were that on the weekend prior to that Monday, the father had a male and female friend visit him at the former family home. The three children were in the father’s care with him in the home that night. In the night time, the father and his two friends consumed a significant amount of alcohol. The father, at least, drank both vodka and rum mixed drinks. In the early hours of the morning, the two other persons went back to their home which was four or five houses away in the same street. A little while later, the father received a call from the male friend requesting his assistance at their home as the female friend was very ill from the adverse effects of the alcohol she had consumed. The friend asked the father to come down to help him look after her whilst an ambulance came. The father left the three children, then aged 8, 5 and 2 years old, on their own in the former family home and went to the friends’ house. Whilst the male friend waited outside for an ambulance to arrive, the father, who had stayed inside with the female friend, inserted a finger into the female’s vagina without her consent.
Clearly, the woman who was the victim of this sexual assault, though intoxicated, was aware of the sexual assault. She must have complained to police soon after and a “pretext” phone call, made in the presence of police and recorded by them without the father’s knowledge, was made to the father. He apparently made some form of admission and apology to the woman in that call. He was subsequently charged with digitally raping the woman.
Very soon after these events, on Tuesday, 30 September, the mother unilaterally took the children from D City to L Town in northern New South Wales and put them into the care of her parents who, by then, had moved to live there. She unilaterally stopped the father seeing them due to her concerns about their well-being and safety in his care. According to the mother, the father was not discharged from D City Hospital until 2 October 2015. The mother herself moved down to L Town on 30 October, having secured the ability to undertake her employment from H City.
The mother commenced proceedings in the Federal Circuit Court (“FCC”) just before Christmas 2015. She did that after the father travelled down from D City unannounced and turned up at the grandparents’ L Town property, whilst the mother was at work in H City. On that occasion, he took the two boys from the grandmother, with some force, against the grandmother’s will and physical resistance. Police, who were called, recovered and returned the two boys within a couple of hours. The father was subsequently charged and convicted of what was an unlawful trespass charge and had a family violence order made against him in favour of the maternal grandmother.
The first return of the proceedings in the FCC saw a family report ordered. The mother said in her evidence that the father denied committing the sexual assault he had been charged with in the affidavit he filed in the FCC. The father did not dispute that. The social worker who did the family report wrote that the father told her that he had been accused of digital rape but that he denied that it had happened. However, later that year, in September, the father pleaded guilty to the charge in the District Court in D City. His sentencing was adjourned to January 2017 and his bail continued. None of that was disputed by the father. His initial denials in his evidence to the FCC and to the family report writer were plainly false.
In March 2016, the first interim parenting orders were made. The parents were each represented by counsel on that occasion and the orders were made with the consent of the parents. The children were to live with the mother at L Town (at her parents’ home) and spend one weekend in four with the father for daytime contact only and another weekend in four that included the Saturday night, overnight, provided his mother was present during those overnight periods. If she was not available then it was to be daytime contact only on those weekends as well. He was also to have the children in his care for four days, including all the overnights, during the July and September 2016 school holidays, again conditional upon his mother being present with him during those periods.
The children travelled to D City for the holiday time with the father. There were some difficulties between the father and the children, particularly X, during the September/October school holidays. There was disagreement between the father and X over whether she could keep her mobile telephone with her in her possession and whether she could go to sleep with the light on. There is evidence that there was quite a confrontation over this, with X having a tantrum as a consequence. I understand the mother to have subsequently stopped the children spending time with the father again, after they returned from that trip.
On 14 December 2016, the matter was back before the FCC Judge and further interim orders were made. They provided for the children to spend time with the father from Boxing Day to New Year’s Eve, including the nights, overnight, in that period. That was conditioned on the father having the time with the children in the Tweed/Byron area of northern New South Wales.
That holiday time did not happen. The father said that he could not afford it. He was still living in D City at the time. It was not arranged. At around this time, without discussing his decision in advance with the mother, the father informed the children that he was going to be going to prison because he had hurt someone.
In early 2017, the father was sentenced, on his plea of guilty to the charge of digital rape, in the District Court in D City, to two years imprisonment suspended after four months served. The children had no contact with the father at all whilst he was in prison.
On 22 February 2017, in the FCC, further interim orders were made. Both parents were represented at that hearing. The FCC Judge discharged the Orders made on 14 December 2016 and made an Order that the mother have sole parental responsibility for the three children subject to obligation to notify the father of decisions to be made and those made. The mother was also permitted to engage the children in counselling with a suitably qualified social worker or psychologist.
In or around March 2017, the mother moved in to live with her new partner in H City and moved the children from L Town to live in H City with them there.
The matter was back before the FCC in May 2017 and an updated family report was ordered to be prepared. The father was released from prison the following week. The family report was prepared in July and the matter was back in the FCC in early August 2017. By then, an ICL had been appointed. On 10 August 2017, further Orders were made with the consent of the parents and the ICL. There were to be four periods of supervised time between the children and the father for up to four hours at a time on two consecutive days at a private Brisbane-based provider of such supervision with the father to meet the costs of that. The children were to continue to attend upon the psychologist the mother had taken them to for counselling. The father was authorised to contact the counsellor and to discuss her treatment plan for the children.
After the four periods of supervised time had taken place, the Orders provided for a three hour period of unsupervised time on a Saturday in late October 2017, and for a six hour period of unsupervised time on the very next day, the Sunday. This was to be followed by an overnight unsupervised visit on a weekend in November 2017.
The matter was back in the FCC on 16 November 2017, with Orders being made that the children spend time with the father for two more visits of four hours each on consecutive days just before Christmas with the supervised visits to take place off-site at the private Brisbane contact centre. The matter was set down for a final hearing for two days in the FCC on 18 January 2018. The matter was then settled and on that date, final Orders were made by the Court with the consent of the parents and the ICL. The father agreed for the children to continue to live with the mother. They were to spend time with the father during daytime hours on weekends for a few weeks, gradually progressing to alternate weekends from after school on Fridays to Sunday afternoon and also for half of the school holidays. The children were also to continue attending counselling with the psychologist they had been seeing. The mother was given sole parental responsibility for the children also.
Soon after that, problems between the father and X again arose through further disputation about whether or not she could have a mobile telephone with her when she spent time with the father. An incident happened when the children went to spend time with the father and after that the mother stopped sending the children for unsupervised visits with the father again. From that time on, X has been reported as not wanting to spend any time with her father and, significantly, she has not spent any time with him since then.
The father commenced contravention proceedings in March 2017 and they came before the FCC for the first time in late April. In the period in between, Family Violence Protection Orders had been made in the Suburb J Magistrates Court for the protection of the mother and the children and made operative for a period of five years.
After a Child Inclusive Report was ordered and prepared in the contravention proceedings, orders were made in late August 2018, suspending the orders that required X to spend time with her father but reinstating the orders that required the two boys to spend time with the father. X was to spend more time with the psychologist undertaking counselling and the boys were to commence alternate weekend visits again.
Those Orders then provided for X to spend time with her father on the alternate weekend visits after she had missed a couple of weekends, for four hours on the Saturday with the hand-overs to take place at a commercial contact centre “subject to recommendations of [the psychologist].” The Orders also provided for the father to provide X with a working mobile phone whilst she was spending time with him. The mother was to also facilitate X’s attendance at the counsellor so that she could counsel X with a view to assisting her to resume her relationship with her father.
In May 2019, the mother’s partner (a Canadian man) travelled to C City, Canada looking for employment, having been out of employment here in Australia since mid-March 2019.
In June 2019, the father filed another contravention application in the FCC asserting the mother was refusing to engage X in any form of counselling, was allowing the children to be known by the family name “Osbern” instead of “Quinton” and was looking at photos of the father’s residence in the presence of the children.
A week after that, the mother told the father she wanted to relocate the children to Canada and asked for his agreement. The father responded and told her he did not agree. In July 2019, the mother commenced her application in this Court for parenting Orders allowing re-location of the children to Canada.
In July 2019, the mother travelled to Canada to spend time with her partner and took her youngest child, W, with her to spend time with his father. That child fell sick before their planned departure from Canada back to Australia and the mother decided to leave him in his father’s care in Canada and return to Australia to care for the three children the subject of these proceedings.
In August 2019, the mother moved back to L Town to live with her parents again, moving the three children with her. A further family report was ordered to be prepared by the same Social Worker who did the first two and it was published in November 2019.
The matter was first listed before me for directions in late November 2019 and on that date was listed for final hearing in May. In early December the matter was before me again and on that date I made Orders by consent for the mother and the three children to travel to Canada for some of the school holidays. Later in December, the father’s contravention proceedings in the FCC were transferred to this Court. At the start of the trial before me in May, the father, after discussion between his counsel and me, agreed to withdraw his contravention application that had been originally filed in the FCC in May 2019 and transferred to this Court.
In the Christmas school holidays over 2019 and 2020, though the mother travelled to Canada to spend time with her partner and their son, the three children the subject of these proceedings did not end up travelling despite the mother having obtained the father’s consent to that earlier in December. The mother told the Court that was because she and her partner decided they simply could not afford to pay for their fares in the end.
Earlier this year, in March, just as the COVID-19 pandemic was taking hold around the world with restrictions on travel being introduced, the mother decided to bring forward another trip to Canada that she had planned for later in the year, after the trial was expected to be finished. She was able to get a ticket to Canada from Sydney and received special permission to enter Canada as her partner and their son are Canadian citizens. She left Sydney on 16 March. She was expecting to be able to purchase her return ticket with the refund of the original ticket she had bought with a different airline. At the time of the commencement of the trial before me on 12 May, the mother was still in Canada and had not received that refund. The mother attended the trial via the Microsoft Teams internet video conferencing platform from C City, notwithstanding the significant time difference between Brisbane and C City. Her partner, Mr F, also gave his evidence from C City via that platform.
The mother was not expecting to be able to return to Australia very quickly and was hoping the Court might make its decision quickly as well. She told the Court during her evidence that if the children were allowed to be relocated to Canada with her, she would fly them over to join her, Mr F and their child, but that if they were not permitted to be relocated that she would return to live with them in Australia.
What the Court is required to do
I have said in previous judgments that I have written that the Court’s task is to “make such parenting order as it thinks proper” subject to the provisions of Part VII of the Family Law Act.[1] I consider it appropriate to repeat some of what I have previously said in this respect.
[1]Family Law Act 1975 (Cth), s 65D.
In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.[2] Section 60CC(1) provides that in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3) of the same section.
[2]Ibid, s 60CA.
Subsection (2) sets out two primary considerations which are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection (2A) provides that the Court must give greater weight to the second of those two primary considerations when applying them. Subsection (3) sets out a relatively long list of “additional considerations”, the last of which – “any other fact or circumstance that the court thinks is relevant” – demonstrates how broad the discretionary inquiry can be.
Also, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[3] Parental responsibility, in relation to a child, means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.[4] Section 61DA(2) provides factual circumstances which, if they exist, cause the presumption just referred to not to apply. Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
[3]Ibid, s 61DA.
[4]Ibid, s 61B.
If, and only if, the Court decides to make a parenting order that provides for a child’s parents to have equal shared parental responsibility for the child, the Court must then consider whether the child spending equal time with each of the parents would be in the best interests of the child and also whether the child spending equal time with each of the parents is reasonably practicable.[5] “Reasonable practicality” is determined, pursuant to s 65DAA(5), having regard to how far apart the parents live from each other, their current and future capacity to implement an arrangement for the child spending equal time with the other parent, their current and future capacity to communicate with each other and to resolve difficulties that might arise in implementing an equal time arrangement, the impact that an equal time arrangement would have on the child and such other matters as the Court considers relevant.
[5]Ibid, s 65DAA(1).
Is equal shared parental responsibility in the children’s best interests in this case?
In the final Orders that were made in the FCC in January 2018, the Judge made an order that the mother have sole parental responsibility for all decisions regarding the health and education of the children, but still ordered her to consult with the father in a particular manner in the process of making any such decisions.
Now the father seeks an Order that he and the mother have equal shared parental responsibility for decisions to be made in respect of the major long-term issues in relation to the children (as the term “major long-term issues” is defined in s 4 of the Act). The mother seeks the maintenance of sole parental responsibility for the children and for that not to just be limited to decisions about health and education but also to go to other areas of decision making included under the umbrella of “major long-term issues”. They include decisions about religious and cultural upbringing, the child’s name and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the other parent – in this case, the father. The ICL also submits that the mother should have sole parental responsibility for the three children, with a continuing obligation to inform the father of any decision she has made in the exercise of that responsibility within three days of such decision being made.
There was a lot of evidence in this case that demonstrated to me that the parents in this case do not trust each other, do not respect each other, and do not communicate well at all. Equal shared parental responsibility orders impose obligations upon parents through the operation of s 65DAC of the Act to do a number of things when making a decision about a major long-term issue in relation to the child or children for whom they share parental responsibility. Each parent is required to consult the other parent in relation to the decision. They are required to make a genuine effort to come to a joint decision about that issue, and they are required to make the decision jointly. It follows that if they cannot make the decision jointly that it cannot be made unilaterally by one of them. It would require a Court having jurisdiction to make the decision if it is to be made at all where they cannot make it jointly.
I have said many times in judgments I have written over the years that where I am satisfied that parents cannot communicate with each other in a respectful and appropriate manner that I do not consider it in their child or children’s best interests to confer parental responsibility upon them equally. I consider that to be a recipe for disaster in so far as the child is concerned. Important decisions about major long-term issues need to be carefully and sensibly made for the child’s sake. They do not need to be made by parents in high conflict and who act without respect for the other parent’s point of view. In such circumstances, I consider the risk of an important decision not being able to be made at all, thus forcing the parties back to Court to litigate about it if it must be made, is too high. That is not in their child’s best interests.
I will not make an order in this case for the parents to have equal shared parental responsibility for any decisions about any major long-term issue in relation to their three children. Sometimes when I give one parent sole parental responsibility for their children I am not convinced that they should have sole parental responsibility in respect of the children’s names. That would permit them to unilaterally determine the children’s names and change their names if they wanted to without reference to the other parent. In this case, I have a different view about this particular issue. I will return to that later in these reasons though.
I am satisfied in the circumstances of this particular case that the parent with whom I determine the children should principally live shall have sole parental responsibility for the children. Accordingly, as I will not be making an equal shared parental responsibility order in this case, I am not statutorily required to consider the matters set out in s 65DAA of the Act any further.
International Relocation Applications
Contested parenting cases in this Court are generally not easy to decide. If they were, they would not be in this Court. Cases that centre principally around one party’s proposal to move children across the world to live, away from their other parent do require careful consideration. That said though, parenting orders proceedings in which a parent is seeking an order that permits them to relocate a child or children to another country are to be decided in the same manner as other parenting orders cases. The parenting order that the Court considers proper having regard to the best interests of the children as the paramount consideration is the order to make. The parent seeking to relocate is not required to demonstrate “compelling reasons” for the proposed relocation to justify and support an order permitting them to do so.
I remind myself, as Kent J said in Heath v Hemming (No 2) [2011] FamCA 749 at [101], parenting cases in which a parent proposes a relocation:
…bring into sharp focus the central issue of balancing statutory imperatives concerning children’s best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both “best interests” considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
It is also not as simple as determining that as the principal carer the mother is entitled to take the children to live wherever she wants to live. As their Honours, Gummow and Callinan JJ said in the High Court’s judgment in U v U (2002) 211 CLR 238 at [92]:
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
And as his Honour Hayne J said in the same case at [170]:
It follows that the needs and the wishes of each parent and the needs of the child (and, if of sufficient age, the child’s wishes) all bear upon the question to be considered by the Family Court.
In my judgment, another important guiding principle that clearly emerged from that High Court decision was the confirmation that the Court is not confined to a choice between the particular proposals that each of the parents make, or, indeed, that the ICL makes, for the residence of, and contact with the children. In other words, I am not limited to choosing between the mother’s proposal of moving the three children to live with her in C City or the father’s proposal that the two boys move to live with him in Brisbane, leaving their sister with their mother. Other alternatives, such as restraining the mother from taking all three children to Canada to live, in which circumstances, as she told the Court, she would stay here with them, allowing orders to be made that they continue to live with her here in Australia can be considered. As I have already said though, the proper orders having regard to the best interests of the children as the paramount consideration have to ultimately be made.
The Various Alternatives
As I have already mentioned, when the trial concluded in early July, the mother was still in C City with her partner, Mr F, and their child, W, who was born in 2017 and is nearly three years of age. Mr F has been living and working back in C City, his home country, since May last year. W has been living with him in Canada since he went over there with the mother later in 2019 and remained there when he became too ill to travel back to Australia. The mother went to Canada again at Christmas for a short stay and then has been back there since she went over again earlier this year and the COVID-19 pandemic effectively interfered with her plans to return to Australia.
If she is permitted to relocate the three children to Canada, she proposes that the three of them live with her, Mr F and W in a suitable home that they intend to find in B City. She proposes putting the children into suitable local schools and she proposes finding work from which she can generate income to assist in financially supporting the family. Mr F has employment already in the construction industry for which he is qualified and he is earning a reasonable income that he uses to support himself, the mother, W and also the three children who are the subject of these proceedings.
The mother did not have a visa that would let her stay in Canada longer than the end of next year. She told the Court that the children did not yet either, but she and Mr F intend to apply for the appropriate visas for her and the children and, because of their de facto spousal relationship, expect to get those. I do not have any reason not to accept that.
The mother proposes that their daughter, X, should spend time with and communicate with the father as she, X, determines and when she expresses a wish to do so, the mother will facilitate it. She proposes that the two boys spend time and communicate with the father for one period of at least three consecutive weeks each year here in Australia during the Canadian summer school holidays. The mother says she would pay for their travel. She proposes that once the boys are able to travel unaccompanied, that they travel twice a year to Australia, with the father to pay for their travel on the second occasion. She proposes that time be in the Canadian spring break or Christmas break, but so that it only occurs in the Christmas break each second year. She proposes that there be internet video conferencing between the boys and the father once per week on Sundays between 4.00 pm and 5.00 pm Canadian time and on all special days. That would be between 9.00 am and 10.00 am on Monday mornings in Brisbane.
The father proposes that the two boys live with him in Brisbane and that the mother also be restrained from moving their daughter to Canada, although he does not seek an order that she lives with him. He proposes that the boys spend time with the mother on each alternate weekend from after school on Fridays to before school on Mondays, as well as half of the boys’ school holidays. He proposes the boys attend a state school in the area in which they live with him. He proposes that X attend “a psychologist with expertise in alienation and family court issues to assist in [her] resuming time with her father at a frequency and duration recommended by the psychologist”, but also proposes that she spend time with him, subject to recommendations by the psychologist, on Saturday when the boys are in his care from 10.00 am to 2.00 pm for two occasions before increasing it over a couple of weekends up to the whole alternate weekend from Friday after school until Monday morning before school.
The father proposes an alternative set of orders in the event that the Court determines that the three children should live with the mother. He still proposes that the mother be restrained from relocating all three children to Canada, but that the boys spend each second weekend with him and half of their school holidays. The orders he proposes in respect of X are the same as those he proposes with the boys living with him. He did not formally propose any particular orders for time or contact with the children should their mother be permitted to relocate them to C City. What he did make clear, is the fact that he would not be permitted to visit the boys in Canada or the nearby USA because of his conviction for the digital rape offence in this country. He told the Court that neither country would give him a visa to visit those countries because of that.
When the father was in the witness box being cross-examined during the trial, he was asked some questions about the time he might like with the children if they were permitted to be relocated to Canada. He said that he would like to have them for five weeks during what he asserted was their ten week summer holidays. He would also like to have them for seventeen days over their spring break and for every second lot of winter holidays over Christmas (also seventeen days in length). That proposal provides for two holidays in Australia in one year and three in the next. He told the Court that he considered the mother should be solely responsible for the airfares for the children for all of those trips as she is the parent who wants to take them to Canada to live.
At the end of the trial, counsel for the ICL submitted to the Court that all three of the children should live with the mother and that she should be permitted to relocate all three of them to live with her in Canada. She submitted that X should spend time and communicate with the father in accordance with her wishes and that the boys should spend time and communicate with their father for at least three weeks in the Canadian summer school holidays in 2021 and 2022 and then for four weeks each year from 2023. She submitted that the mother should arrange and pay for the flights. She also proposed that the boys come out to Australia to spend time with their father for up to two weeks in the spring or Christmas school holiday period, but only each second year at Christmas time. She submitted that the father should arrange and pay for that holiday. She supported the mother’s proposal of video conferencing once per week and on special days.
What did the Family Report Writer say?
Ms N has reported on this family three times in three years. I did not discern any significant change in the nature of the relationship between the mother and the father observed by Ms N in that time. It is clear from her report and from all of the evidence that they have very little respect for each other and do not communicate with each other, except in writing. The parents have barely had any face to face contact in the years before the mother travelled to Canada.
Significantly, in her most recent report, written late in 2019, Ms N confirmed that X does not visit her father. X told Ms N she did not want to because her father “was lying to her and trying to bribe her”. Ms N also reported that X told her that her father had tried to search her to take away her mobile phone. She also reported X telling her that her father had communicated with her through an online video game that she played with her brothers, by pretending to be a friend of one of her brothers. Ms N said that X told her she was mad when she learned of this and felt betrayed by her brothers.
Ms N reported that X wants to go and live in Canada, though she acknowledges that she will confront some difficulties in changing schools and with the culture. She told Ms N that she would miss her maternal grandparents and her school teacher here. She told Ms N that she does not think that she will visit her father if she lives in Canada, but this was because she would have to travel with her brothers and she does not like that idea. X is reported to have quite specifically said that she does not want to live with her father. Ms N said nothing to suggest that she did not consider that X was telling her the truth in respect of the matters reported.
Ms N also interviewed Z. She reported him telling her that his father thinks his mother is a liar and his mother thinks his father is a liar. She also reported Z telling her that he wants to move to Canada and would be sad if he cannot move there. He is reported to have conceded that he would miss his father “a bit” if he moves to Canada but that if he is required to live with his father he would be “unhappy and miss mum a lot”. He is reported to have been very positive about his step-father, Mr F, saying there was nothing about him that he did not like.
Ms N interviewed Y as well. She reported him as being a little shy and as engaging in the interview “in a limited way”. He is reported as saying that he likes playing games with his father but not liking going shopping when they are with him. He is also reported as having said that there is nothing that he likes about his father’s partner, considering her to be “very bossy” and “always” taking their father’s side. He is reported as complaining that his father’s house is very small. In contrast, he is reported as saying that there is nothing about his step-father that he does not like. He is also reported to have told Ms N that he thought it would be good to live in Canada, because he liked the idea of being in the “cold and snow” but also because his step-father and little brother, W, are there. He is reported to have told Ms N that he does not know what his mother thinks of his father but that his father thinks that his mother is a bad person. Ms N reported that Y protested that his mother is a good person.
Ms N observed the children interacting with their mother and reported positively upon those observations. She observed the two boys interacting with their father and said they were “somewhat subdued” in their interactions with him but engaged readily in play with him. She observed that they “seemed to avoid being overtly affectionate with their father” but noted that they were aware that their maternal grandfather was waiting for them in an adjacent room.
In her evaluation in the latest report, Ms N reported her opinion that the children’s presentation during the interviews for the latest report was “markedly improved from how they were during the previous interviews”. Ms N opined that this was likely to be attributable to their mother having “adapted her attitude toward exposing them to her feelings about their father”. If that is true, that is a positive development.
Ms N offered the view that X appears to be doing well in all aspects of her life except in her relationship with her father. Ms N discussed X’s ambivalence to spending time with her father and offered the opinion that her feeling this way, combined with the inability of her parents to help her with these feelings, hinders any chance of X having a connection with her father. Ms N discussed a number of other matters that also are likely to be contributing to X’s feelings, including the father’s “inability to appreciate, and be sensitive to X’s experience, or to proceed at a pace she feels comfortable with”.
Ms N offered the opinion that the father has done well in engaging the boys during his time with them but that he does not present as having much insight into how he exposes the children to his conflict with, and attitude toward, the mother. She points out that it is improbable the boys are telling him that they want to live with him, as he asserts they are. If they are, she offers the view that they have likely been manipulated or pressured to do so. Ms N opined that the children all present as aligned with their mother. She points out that she has been their primary carer as long as they can remember and that being exposed by their father to his negative attitudes towards their mother probably also contributes to their alignment with her. She opines that this may eventually cause the boys to reject their father, too. Ms N offers the view that the mother seems to have better protected the boys from her feelings about the father, evidenced by the fact that the boys have been spending time with him since that resumed.
Ms N reported that the mother might possibly move to Canada anyway, without the children, if a decision is not made permitting her to relocate them. Ms N said the mother suggested as much during the interview. I do not discount that possibility, though the mother did tell the Court during the trial that she would stay in Australia in those circumstances. The evidence she gave about that included evidence that her partner, Mr F, might stay in Canada anyway, even if she does not stay there. Mr F also gave evidence that suggested he had seriously thought about that prospect.
Ms N assessed all three children as positive about the possibility of moving to Canada. She said whilst it would be a significant adjustment for them, the consistency of their care arrangements with their mother would assist them to cope. Ms N offered the view that they have “a relatively superficial relationship” with the father and that they have “minimal experience” of his partner. She considered that the children would likely be distressed by a change to living with their father and that the father did not present as having the sensitivity to be able to support them appropriately through this. Ms N went as far as expressing the opinion that if the boys were moved to live with the father, it is “highly likely this will fail and lead to the children refusing to return to their father’s care when they next see their mother”. I have no reason not to accept that opinion or any of the other opinions expressed by Ms N.
Ms N expressed concern that restraining the mother from relocating the children to Canada would continue an arrangement the children are familiar with and allow them a relationship with their father. She was concerned that this would not benefit the children though if their mother left for Canada (or stayed there) anyway, or if their parents continued to engage in litigation in this Court or continued to expose them to the adult conflict. Ms N offered the final observation that although living with their mother in Australia was “probably best for the children for now”, living with their father is “untenable” and, therefore, she considered “it seems there is no other option than allowing the children to move to live in Canada with their mother knowing this will mean they will have a limited relationship with their father”.
My Determination
Considering all of the evidence, particularly those observations and assessments of Ms N, I am firstly not persuaded that moving the two boys to live with the father and leaving X to live with the mother is in the best interests of the three children. I accept Ms N’s opinion that having the children live with the father is untenable. I will not make that order and I will not make an order that splits the three children. That would not be in the best interests of these three children. They should stay living together.
The real decision, I consider, is between restraining the mother from moving the children to Canada as she wants and ordering that they live with her in Australia so that the boys, at least, can continue to spend alternative weekends and half holidays with their father and his partner or permitting her to relocate all three to Canada and putting orders in place to ensure that the relationship the boys have with the father is maintained, as best it can be, through holiday visits back to Australia and regular digital communication.
If I could be satisfied that Mr F would return to Australia and bring three year old W with him and that he would find a suitable job here, allowing him to take up residence with the mother and the other three children and to assist financially in their support, I would consider that restraining the mother from relocating the three children to Canada might be the “best interests” option. If I could also be satisfied that the mother would not simply leave Australia, or just not return to Australia if she has not already, leaving the three children here, I would also consider that restraining the mother from relocating the three children to Canada might be the “best interests” option. If I was satisfied that X’s relationship with the father could be reconciled if I restrained the mother from relocating her and her brothers to Canada, I would also consider that might be the “best interests” option.
However, I am not convinced that Mr F would necessarily return to live in Australia and bring W with him if I do not permit the three children to be relocated to Canada. I consider that a potential permanent separation of these three children from their younger sibling is not in their best interests, nor in his best interests. These three children very much like Mr F and clearly benefit from living in a family situation with their mother and him. They speak highly of him, having nothing negative to say about him at all. He has secured good employment in C City and is keen to have the whole blended family back together over there. He apparently managed to live with W over there for many months without the mother being with them. He could easily decide to do that again. It is impossible to say that he would definitely come back or that he would necessarily get suitable employment here in Australia if he did.
In the same vein, I am not convinced that the mother would come back to live in Australia, or that she would stay here if she has come back since the conclusion of the hearing, if I restrain her from taking these three children to live with her, Mr F and W in C City, Canada. Though that suggests that the mother might make the heart-wrenching decision to leave these three children in Australia with the father who she does not have much respect at all for, Ms N would not rule it out and, frankly, having seen the mother and heard her give evidence and considered the history of this matter, I do not rule it out either. That potential outcome would most definitely not be in the best interests of the children in my considered opinion, even if it was the mother who took that decision herself.
It might be said that if the mother decided to do that then that would be her decision and that she would be the one determining that the three children live with their father, in the face of all of her own evidence that it would not be in their interests. It might also be said that she ought not be rewarded because the Court is not convinced that her parental devotion to keeping these three children in her care is as fundamentally strong as one might normally expect. I acknowledge those points, but I nevertheless am most mindful of making a determination that meets the best interests of the children. A decision of this Court that saw their mother leave for Canada to be with her partner and their child over there, with these three children kept here by restraining order with no alternative but to live with their father, would not meet their best interests at all.
Even if the mother did return and stayed here with them, and even if Mr F returned with W to again work here and live with the mother and all of the children, they would both be very unhappy about that outcome. I do not consider that outcome would promote the best interests of the children either. As Ms N pointed out, and I accept, there would be a very real risk that in those circumstances the conflict that already exists between these two parents would simply become even worse. All of the evidence satisfies me that the mother, herself, is very problematic in the way that she deals with the conflict between her and the father. Though Ms N commented positively on an apparent improvement in the manner in which the mother has exposed the children to the nature of her feelings towards the father, the evidence of the history of this matter does not make me optimistic that would necessarily continue to be the case if the mother was put in a position where she felt she was forced to stay in Australia against her will. I would expect the conflict between the mother and the father not to abate at all, more likely to increase, and I would expect that to have unfortunate consequences for the children. I would not expect there to be any improvement in X’s willingness to see or communicate with her father. I would expect X’s feelings about that to harden. I would expect that the boys’ feelings might also change and harden and lead to the serious potential for them to completely reject their father, if they became convinced that he was the reason that they were not able to move to Canada. I have little doubt that the mother would not be able to keep her feelings from them in that respect.
There is little doubt that the father loves these three children and very much wants to have meaningful relationships with them and a contributing role in their upbringing. Nevertheless, I am not satisfied that he recognises the very significant part he has played in the generation of the conflict that exists between him and their mother and in its ongoing maintenance. He might very well be regretful and remorseful for his actions that resulted in him being convicted of a sexual crime and serving a period of imprisonment. He is clearly aware of the significance of that in terms of its impact upon his own work and social life, yet, I am satisfied, that he has not entirely come to terms with its impact on his relationship with the mother and his relationships with X and the two boys. I am of the view that a course of counselling with a social worker or psychologist with a view to assisting him develop further insight in that respect would be of benefit to the father and, ultimately, his relationships with the three children. That, however, is a matter for him.
Ultimately, I am of the considered opinion that the proper parenting order to make in this case is very much in line with that proposed at the conclusion of the trial by the ICL. I consider that the best interests of these three children will be met by permitting their mother to relocate them to live with her, her partner, Mr F, and their little brother, W, in C City on the east coast of Canada.
As I have I already said, I consider it in their best interests to confer sole parental responsibility for decisions about major long-term issues in relation to the children on their mother. I will even include in that sole parental responsibility for determining the children’s names. I observed earlier in my reasons that I would not generally include that as a matter of sole parental responsibility, but in this case I was confronted with what I considered to be some rather extraordinary evidence about this issue.
The father was most adamant that he did not want the children to be known by a family name other than the name “Quinton”, his own family name. He was apparently troubled and affronted by the fact that he had observed that the mother let the children, or at least X, take possessions to school marked with the family name “Osbern”, which is the mother’s family name. Yet, it was the mother who told the Court in cross-examination that she could not understand the father’s concern about this as he personally eschews the use of the family name “Quinton” himself, instead preferring to use another family name “Taylor”.
The father conceded this in his oral evidence when he was in the witness box under cross-examination. He explained that he now uses the family name “Taylor” instead of “Quinton” in all aspects of his life, but most particularly for his employment. He told the Court that he has made this decision because of the fact that a simple internet search of his name with the family name “Quinton” turns up numerous references to his conviction for the sexual offence in D City and circumstances surrounding that, including serious issues with his employer at the time. He suggested, quite frankly, that the Court only has to consider how a potential employer, considering an application for employment from him using his family name, and undertaking an internet search of that name, as is so common in employment situations these days, might react to the discovery that he was convicted of digital rape and served a term of imprisonment as a consequence, to comprehend why he has decided to use a different family name.
Yet, with all the insight he had into that, he was affronted by the mother’s approval of the use of her family name by the children in lieu of “Quinton”. Though he was not asked about this, one can only presume the difficulties that might be confronted if the boys were to be placed in the father’s principal care when it came to them being enrolled in school. By what name would they be enrolled? How would that issue be dealt with? That issue would remain clearly problematic for the father and the children. I will not make any orders that mandate that the mother continues to refer to the children by the family name “Quinton” in the circumstances where the father himself does not use that family name.
The mother will have sole parental responsibility for the children in all respects, including in respect of making decisions about their names. The children, like anyone else, can make their own decisions about that when they are old enough to do so. The mother will be required, by order, to seek the father’s views in respect of proposed decisions about major long-term issues and to notify the father in writing within three days of making any such decision as well as giving him her reasons for the decision, but the decisions may be made by her alone.
What Orders will I make for the children’s time with the father?
I accept the ICL’s submission that X should spend time with her father at such times as the parents agree in accordance with X’s wishes with the mother to facilitate any such time that is agreed. I appreciate, as was suggested by Ms N, that with X living in Canada that her desire to spend time with her father in Australia may not ever be any different from what it is now. However, she has reached an age and a stage of her life where the views she expresses must be respected and where they carry a great deal of weight. The father must understand that and set about rebuilding her trust and respect for him as best he can. That is the only way that there is, in my considered judgment, any prospect of his relationship with X ever getting back to the type of relationship he might hope for.
I also accept the appropriateness of the ICL’s proposal for the boys’ time with their father. Expecting that the children will travel to Canada as soon as they are able to pursuant to these orders, the proposal that the boys be returned to Australia for three weeks with their father in the 2021 Canadian Summer school holiday period (Brisbane’s winter) is appropriate. It is genuinely hoped that international travel between Canada and Australia will have returned to normal by then. That will be the same for 2022 and increase to four weeks every year in 2023. The mother will be responsible for booking and paying for the boys’ return airfares from C City to Brisbane to C City each Canadian Summer holidays. It is not unreasonable to require the mother to pay for that or to consider that she will be able to. If she wants the boys to spend some time during that trip with their maternal grandparents, that is to fall outside the time they are to spend with the father.
The Orders I will make will also provide for the boys to travel to Australia for up to a maximum of an additional two weeks each year, during the Canadian Christmas or Spring school holiday periods at the father’s election and expense, with him to book and pay for the boys’ return airfares from C City to Brisbane to C City but so that it may only be during the Christmas holidays each second year with the first year it can be at Christmas to be next year, 2021. The father is to provide the mother with twelve weeks’ notice of his intention to fly the boys over in either of those holidays each year, not eight as the ICL submitted. Twelve weeks’ notice is more reasonable in the circumstances, in my view. I will also require the mother to give the father twelve weeks’ notice of the dates during which the boys will be in his care in the Canadian Summer school holidays.
The children are to be collected by their father at Brisbane Airport and delivered back there for their flights home to Canada by him. Of course, that can be changed by agreement between the parents also, so that if the children are to spend any time with their maternal grandparents whilst in Australia that can be arranged.
I will order that the boys communicate with the father by Skype (or such other digital platform as the parents may agree upon) each Saturday between 5:00 pm and 6:00 pm Canadian time as that will be 11 – 12 am on Sunday here in Brisbane and will not interfere with the father’s employment as it would if it is Sunday as proposed. The parents are, of course, permitted to change that to a time that better suits them all by agreement. The time I set is the time to apply if they cannot agree on any other. There is also to be video call communication on the children’s birthdays, the father’s birthday, Australian Father’s Day, Easter Sunday and Christmas Eve at times to be agreed. They are to have the same sort of video communication with their mother when they are in the care of their father.
The orders will, as the ICL proposed, include provision for the father to send presents to the children with a requirement on the mother to ensure that the are passed on to the children and that they write to the father and thank him. There has been a history of presents given to the children by the father being returned to the father by the mother. That is to stop, save for circumstances where the mother determines, reasonably, that the present is inappropriate.
I will also make orders proposed by the ICL requiring the mother to send information to the father about the children each fortnight as well as copies of their school reports when they are received. There will be orders requiring sharing of information about the children’s health, communication through the “Our Children’s” website, restraints on each parent in respect of things they talk about with the children or in their presence, and sharing details of addresses and phone numbers.
In particular, there will be an order that the children are permitted to have a mobile phone in their possession when in the father’s care if the mother provides them with one.
The Question of Enforcement in Canada
No evidence was adduced by any of the parties about the issue of recognition of this Court’s Orders in Canada or, more particularly, G Province, the Canadian Province that I have determined to permit the mother to relocate the three children to. Nevertheless, I am aware that a statute of the legislature of G Province makes provision for application to be made to the Supreme Court of G Province, the Province’s superior trial court, by a parent such as the father in this case for the recognition and enforcement of an “extraprovincial order” made by an “extraprovincial tribunal”. Those terms are defined in s 72 of that statute and I am satisfied that a parenting Order of this Court, such as the one I will be making, falls within the meaning of the term “extraprovincial order” in that statute. Section 75 of that statute provides that the G Province Court must recognise the Order if all of the following apply:
(a)the extraprovincial tribunal would have had jurisdiction to make the order under the rules that are applicable in G Province;
(b)each party to a proceeding in which the extraprovincial order was made had
(i)reasonable notice that the order would be made, and
(ii)a reasonable opportunity to be heard respecting the order;
(c)the extraprovincial tribunal was required by law to consider the best interests of the child;
(d)it would not be contrary to public policy in G Province to recognize the order.
Section 75(2) of that statute further provides as follows:
On recognition by a court,
(a)an extraprovincial order has the same effect, and may be enforced, as if it were an order made under section 45 [orders respecting parenting arrangements], 51 [orders respecting guardianship] or 59 [orders respecting contact], as applicable, and
(b)the court may, if necessary to give effect to the extraprovincial order, make any order that the court may make under this Act.
Accordingly, I am satisfied that if the mother does not send the children back to Australia pursuant to the Orders that I will make, the father has the right to apply to the Court in G Province for recognition of my Orders and enforcement of the provisions that require the mother to send the boys out. That Court may, of course, vary the order that I have made, in accordance with the other provisions of that statute, but as it, too, is a “best interests” court, the father could expect a fair hearing and a just outcome. That he would not be able to go to G Province and appear in person should not, in my view, prevent him from being able to obtain representation and apply to that Court if necessary to ensure that this Court’s Orders are complied with.
I will make the Orders that are set out at the commencement of these written reasons, including one that discharges the ICL.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 5 November 2020.
Associate:
Date: 5 November 2020
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