Pressner & Lennart
[2024] FedCFamC1F 861
•16 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pressner & Lennart [2024] FedCFamC1F 861
File number(s): SYC 6080 of 2022 Judgment of: BOYLE J Date of judgment: 16 December 2024 Catchwords: FAMILY LAW – PARENTING – Where the mother seeks orders permitting her to relocate with the children to the United Kingdom – Where this is opposed by the father – Where the parties indicate that they will each live in the jurisdiction in which the children reside, whether that be Australia or the United Kingdom – Where the parties agree that children’s best interests will be served by an equal time arrangement – Where the parents agree that they should share parental responsibility and long term decision making for the children provided they live in the same country - Where the children are aged 12 and 6 years – Consideration of the children’s views - Where the court determines that the mother should be permitted to relocate to the United Kingdom with the children – Orders made providing a framework for time arrangements. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC. Cases cited: AMS v AIF (1999) 199 CLR 160
Gerard & Santino [2024] FedCFamC1F 386
Morgan v Miles (2007) FLC 93-343
Sayer v Radcliffe and Another (2012) 48 Fam LR 298
Division: Division 1 First Instance Number of paragraphs: 133 Date of hearing: 20-21 November 2024 Place: Sydney Counsel for the Applicant: Ms Lawson Solicitor for the Applicant: Barker Evans Counsel for the Respondent: Ms Cantrall Solicitor for the Respondent: Farrar Gesini Dunn ORDERS
SYC 6080 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PRESSNER
Applicant
AND: MS LENNART
Respondent
ORDER MADE BY:
BOYLE J
DATE OF ORDER:
16 DECEMBER 2024
THE COURT ORDERS THAT:
1.The mother is at liberty to change the primary place of residence of the children X born 2012 and Y born 2018 (“the children”) from Australia to the United Kingdom.
Decision making
2.The parents shall have joint decision making responsibility about all major long term issues in relation to the children.
Time arrangements while both parents are residing in the same country
Time during the school term
3.While both parents are residing in the same country, the children shall spend equal time with each parent on a week about basis as follows:
(a)The mother shall spend time with the children from after school (or 10.00 am on a non-school day), until before school (or 10.00 am on a non-school day) the following Friday.
(b)The father shall spend time with the children from after school (or 10.00 am on a non-school day), until before school (or 10.00 am on a non-school day) the following Friday.
Spend time during the school holidays
4.During the school holidays, the children shall spend time with the parents as follows:
(a)In even numbered years, the children shall spend the first half of each school holiday period with the mother and the second half of each school holiday period with the father.
(b)In odd numbered years, the children shall spend the first half of each school holiday period with the father and the second half of each school holiday period with the mother.
(c)For the purpose of these orders, the school holiday period shall commence on the last day of the school term and changeover shall occur at 5.00 pm on the day that is the midpoint of the school holiday period, unless otherwise agreed in writing between the parents.
Special occasions
5.For the purpose of the children spending time with each parent on Christmas Day, unless otherwise agreed in writing, the children will spend a minimum of six hours from 11.00 am to 5.00 pm with the parent with whom they are not already spending time with in accordance with these Orders.
6.For the purpose of the children spending time with each parent on Father’s Day and Mother’s Day respectively unless otherwise agreed in writing, if any of these days fall on a weekend when the children are not already spending time with that parent, then the children will spend time with the other parent from 5.00 pm on the Saturday before the day until 5.00 pm on that day.
7.Unless otherwise agreed in writing, on both of the children’s birthdays, the children shall spend time with the parent that they are not already spending time with from after school or 3.00 pm until 7.00 pm if the birthday falls on a school day and from 11.00 am until 5.00 pm if the birthday falls on a non-school day.
Changeover
8.Unless otherwise agreed between the parents in writing, changeover shall occur at school, and on non-school days changeover shall occur with the parent whose time is concluding, delivering the children to the home of the parent whose time is commencing.
Communication
9.Each parent shall facilitate the children communicating with the other parent by phone and/or video call, at times as agreed between the parents in writing, and failing agreement, each Monday and Wednesday between 5.00 pm and 6.00 pm.
Time arrangements while the mother is in the United Kingdom and the father is residing in Australia
10.The children shall live with the mother.
Time with the father
11.The children shall spend time with the father as agreed between the parents in writing and failing agreement as follows:
(a)For the United Kingdom Easter holiday school period, from the first Monday following the last week of the preceding school term and for a period of two weeks thereafter; and
(b)For the United Kingdom Summer school holiday period, from the first Monday following the last week of the preceding school term and for a period of up to four weeks thereafter.
12.The father is entitled to elect whether to travel to the United Kingdom to spend his allocated time with the children or for the children to travel to Australia.
13.The parents shall each pay 50% of the costs of the children’s flight tickets to and from Australia.
Communication
14.The mother shall facilitate communication between the father and the children each alternate day via WhatsApp video calls (or an alternative agreed video call communication app) with the father to initiate the call at 5.00 pm United Kingdom time on school days and 11.00 am United Kingdom time on non-school days, or at such other time as agreed.
Ancillary orders
15.The parents shall do all things necessary to register these Orders in the United Kingdom.
Passports
16.The parents shall do all things and sign all documents necessary to renew the children’s passports as required and the costs of doing so shall be shared equally between the parents.
Restraints
17.Each of the parents is restrained by injunction from:
(a)Denigrating the other parent and/or their family members and friends of the children, to the other parent, or in the presence of the children, and shall do all things reasonably necessary to remove the children from any environment in which the other parent and/or their friends or family are being denigrated in the presence of the children.
(b)Passing information or messages through the children to the other parent.
(c)Discussing these proceedings and/or their family law dispute with the children.
Information
18.Each party shall keep the other informed as to their current home address and mobile telephone number. In the event that either parent changes their contact information they are to notify the other parent as soon as practicable and no later than seven days following any change.
19.Each parent shall inform and keep the other parent informed regarding aspects of the children’s care, welfare and education including the school the children attend and any of the children's treating medical practitioners.
20.Both parents shall authorise by these Orders any day care, preschool and/or school attended by the child/ren, to provide to either parent, upon request, any reports, information or photos relating to child/ren, at the requesting parent’s cost.
21.The parents shall authorise by these Orders any of the children’s General Practitioner’s or treating medical and/or allied health practitioner/s to provide to either parent with any information or medical reports relating to the children at that parent’s cost.
Medical
22.In the event either child falls ill, the parent with whom the children are living shall inform the other parent as soon as reasonably practicable of such illness but not later than two hours of such illness.
23.In the event that either of the children has an accident or sustains an injury which causes a bruise or mark, then each parent will notify the other of the following as soon as reasonably practical after the parent becomes aware of the accident/injury but not later than two hours after:
(a)nature of the injury;
(b)any treatment sought for the child; and
(c)any marks or bruising on the child as a result of the accident.
24.If either child has been given medicine, prescription or otherwise, prior to the other parent collecting the children, then the parent who has administered the medication will advise the other of the following:
(a)name and dosage of medicine given; and
(b)time last dosage was administered.
New partners
25.Each parent is to inform the other parent in writing before they introduce a new partner to the children, including an online contact.
26.Each parent shall not introduce a new partner to the children until the new relationship is considered serious and long term being at least of six months duration.
27.Each parent shall keep the other informed as to when any new partner is to stay overnight for the first time while the children are in their care.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BOYLE J:
These are parenting proceedings in relation to the two children of the parties X, aged 12 years and Y, aged 6 years.
The children currently live in an equal time arrangement by agreement between the parties. There is no dispute that this arrangement will continue, provided the parties reside in the same country.
The mother seeks orders that she be permitted to relocate with the children to the United Kingdom. This is opposed by the father. The father’s position is that should the children be permitted to relocate, he will move to the United Kingdom. The mother will not leave Australia without the children if she is not permitted to relocate with them.
BACKGROUND
The father was born in 1975 in Australia. He moved to the United Kingdom in 2005, at 29 years. He lived and worked there for 16 years.
The mother was born in 1979 in Country B. She moved to the United Kingdom with her family when she was three years old. She thereafter lived in the United Kingdom.
In 2008, the parties commenced a relationship. They commenced cohabitation in 2010 and were married in 2011 in the United Kingdom.
In 2012, X was born. In 2018, Y was born. The parties moved twice whilst residing together in the United Kingdom, which caused a change of school for X.
On 20 June 2020, the parties separated on a final basis. Shortly after, they commenced divorce proceedings in the United Kingdom and were granted a Decree Nisi in mid-2021. Later that month final property orders were in the United Kingdom, following a three day hearing.
In early 2021, the father started a relationship with Ms C. She resides in the United Kingdom with her two children.
On 1 October 2021, the parties agreed on a variety of matters including, significantly, a move to Australia with the children. They both contributed to the email that sets out the agreement. They referred to the signed email during the hearing variously as the heads of agreement, or the “October Agreement”. They negotiated the agreement following mediation.
In late 2021, the mother re-partnered with Mr D. Mr D resides in Town E in the United Kingdom.
In late 2021, the parties relocated to Australia with the children. They were required to quarantine due to the COVID-19 restrictions in place, and did so at the home of the father’s mother in Sydney.
The following day, an interim Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the father against the mother following an incident at the home of the paternal grandmother. Both parties spoke to the Police when the matter was subsequently before the court. The ADVO was withdrawn by the Police.
In early 2022, the mother moved to City F with the children. She was required to spend six months working in City F to fulfil government requirements. The October Agreement referred to the father living in City F and commuting to Sydney, although the number of days in Sydney was uncertain. The father continued to reside in Sydney. Between February 2022 and September 2022, the father spent time with the children in City F. The time varied initially but settled into a pattern of four nights per fortnight during school terms. The parties shared the school holiday periods.
In mid-2022, the mother raised her desire to return to the United Kingdom with the father, through her solicitors. The father opposed this. The parties and children had been in Australia for six months.
On 30 August 2022, the father commenced these proceedings. He sought orders restraining the mother from relocating the children to the United Kingdom, and an order that the children be placed on the Australian Federal Police Family Law Watchlist.
In late 2022, the mother moved to Sydney with the children, as the parties had anticipated. The children commenced school, and pre-school in late 2022.
On 29 September 2022, interim consent orders were made which provided for the parties to have equal shared parental responsibility for the children, and that the children live in an equal time arrangement between their parents. The parties varied the configuration of time by agreement, so that from October 2022 the children have lived in a week about arrangement. School holidays are shared equally.
PROPOSALS OF THE PARTIES
The mother seeks orders that she be permitted to relocate the children’s residence to the United Kingdom. This is opposed by the father.
At the outset of the hearing, the parties made clear that regardless of the outcome, they would each ensure that they live in the jurisdiction in which the children reside, whether that be Australia or the United Kingdom. They agree to maintain an equal time arrangement provided that occurs.
The parties each sought orders that they have joint decision making authority for the children, provided that they reside in the same country. The mother sought orders that she have sole decision making authority should she reside in the United Kingdom, and the father in Australia.
The parties provided orders which covered each of the alternatives available to the court. I will consider those proposals and ancillary matters in these reasons.
DOCUMENTS RELIED UPON
The father filed a Case Outline Document identifying the documents relied upon:
(a)Further Amended Initiating Application filed on 19 July 2024.
(b)Affidavit of the father filed 27 September 2024.
(c)Affidavit of Ms G filed 27 September 2024.
(d)Notice of Child Abuse, Family Violence or Risk filed 30 August 2022.
The mother filed a Case Outline Document identifying the documents relied upon:
(a)Amended Response filed 2 August 2024.
(b)Affidavit of the mother filed 27 September 2024.
(c)Affidavit of Mr D filed 27 September 2024.
(d)Affidavit of Mr H filed 28 September 2024.
The parties both relied on a Family Report prepared by the Single Expert Ms J dated 18 December 2023, and a Specific Issues Report with respect to the children’s views prepared by Mr K dated 31 October 2024. Neither of the report writers were required for cross examination.
On the first day of the hearing the father sought to rely upon a Proof of Evidence dated 20 November 2024 which was admitted into evidence.
Each of the parties were cross-examined, along with the mother’s partner and the maternal grandfather. The father’s sister Ms G was not required for cross-examination.
A number of documents were tendered during the course of the proceedings. I have had regard to those documents as well as the material relied upon by the parties.
THE LAW
Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with the making of parenting orders. Section 60CA of the Act provides that the court must regard the best interests of the children as the paramount consideration in making a parenting order. Sections 60CC(2), (2A) and (3) of the Act set out a list of matters to be considered in determining what is in the children’s best interests. It is not an exhaustive list.
There is extensive, settled case law with respect to cases where a party seeks to relocate the children. The matter was conducted on the basis that the recent amendments to s 60CC of the Act have not affected the relevance of that case law. I agree with the position taken by both Counsel.
International relocations are not a special category of case, and fall to be determined in the same way as any other parenting dispute. The court is required to consider the competing proposals of both parents on the merits, with the overarching consideration being the best interests of the children: Morgan v Miles (2007) FLC 93-343 at [72]; Sayer v Radcliffe and Another (2012) 48 Fam LR 298. The mother is not required to justify why she seeks to relocate, nor provide compelling reasons in support of her proposed move: AMS v AIF (1999) 199 CLR 160. A parent has the right of freedom of movement to live wherever they choose, however that right must give way to the paramount consideration of the best interests of the children where those interests conflict: Gerard & Santino [2024] FedCfamC1F 386 at [52].
AGREED MATTERS
This matter is somewhat unusual in that despite these being contested parenting proceedings, and there being considerable evidence of both parties participating in heated exchanges from time to time, the parties agree on a number of fundamental matters. Those include:
·The children have close and loving relationships with each of their parents, and each other.
·The children’s best interests will be served by an equal time arrangement between their parents.
·Both parents should share parental responsibility and long term decision making for the children provided they live in the same country.
·Each parent proposes to live where their children live, even if that means residing in a country that is not their preference.
·The parties agreed to move to Australia after separation with the children and maintain shared care.
·The parties’ perspective about time arrangements and decision making is informed by their experience of making arrangements work for their children, even when the parental relationship is strained, or poor.
·The parties have engaged one nanny to assist with care arrangements, so that a consistent person assists both households.
The issues in dispute need to be considered against these agreed matters.
COMPETING PROPOSALS
The mother’s proposal
The mother seeks to return to the United Kingdom, to live with her partner in Town E. They have been in a relationship since late 2021, shortly prior to the mother leaving the United Kingdom. They have maintained their relationship despite the distance.
The father’s partner resides in Town L in the United Kingdom with her two children, which is between a 45 minute and 2 hour drive from Town E. Were the father to move to the United Kingdom he would likely live with his partner in Town L.
The mother has provided to the father options of schools that the children could attend in the Town E area. Her evidence is that she has been unable to advance the choice of school because the father has not engaged with her. She referred to there being a number of suitable schools between Town E and Town L.
The mother’s partner has some flexibility in his work arrangements, in that he spends time working from home, and keeps his own diary. I accept he is able to provide some assistance to the mother with care arrangements, although may not be able to do so without some notice.
The mother’s parents separated 10 years ago. She is one of three siblings. They live in and around London. She has a particularly close relationship with her father. Her brother has visited whilst she has been in Sydney.
The mother’s father is prepared to assist the mother as needed. He lives at a distance from Town E and would require notice to get there. He anticipates the train would take not more than an hour.
The mother proposes that if the father remains in Australia his relationship with the children would be sustained through facetime and audio-visual communication, and time during school holidays. The mother proposes paying half of the children’s air fares to Australia. The time difference means that calls would generally take place for the children before school.
The mother’s evidence is that she does not know where in Sydney she would be living if she remains in Australia. If required to stay, she would like to purchase a home. She does not envisage being able to afford to do so in the area she currently lives. She is also concerned about the ongoing affordability of M School as the fees are $45,000 per annum.
The father’s proposal
The father’s proposal is that he will remain living in Sydney where he is currently renting. X will attend M School, starting in 2025. Her enrolment had not been finalised at the time of the hearing. She has cousins attending the school, although none would be in her year. Y would continue attending his current local primary school.
The father anticipates his partner and her children will move to Australia in the next 12 months. She was not on affidavit, and there is no evidence of any steps they have taken to advance this.
The father has support from his family in Sydney. His parents separated many years ago. They both live in the Sydney area. He has five siblings, most of whom reside in the Sydney area.
ISSUES
The issues in this matter are:
·The children’s views with respect to their living arrangements, including any views about whether they reside in Australia or the United Kingdom.
·What support is available to each of the parties in Australia and the United Kingdom.
·The respective capacity of the parents to meet the emotional and psychological needs of the children.
·The practical implications of each parent’s proposal.
The children’s views with respect to their living arrangements, including any views about whether they reside in Australia of the United Kingdom
Mr K observed that Y had a positive view of any arrangement where he, his parents, and sister are in proximity and have time with each other. It suggests he is not troubled about the proceedings, and is confident that his parents can make decisions about him. At six years that is as it should be for Y.
In terms of his relationships Y reported to Mr K missing his mother when he is with his father, but that X helps him with that. This is consistent with him reporting to Ms J in November 2023, that if he is scared at night he goes to his mother’s bed. If he is scared at his father’s, and his father’s bedroom door is closed or he is asleep, Y goes to his sister’s bedroom. It is also consistent with his father’s description of him as a “mummy’s boy” to the report writer.[1]
[1] Report of Ms J, paragraph 75.
It is to the credit of both parents that Y has remained untroubled about the current proceedings. He spoke to Mr K about the cost of living in Australia. Mr K regarded this as a being a reflection of Y’s exposure to adult conversations, or his mother’s direct comments.
The mother was clear in her evidence that she has not raised matters related to her proposals directly with Y. She conceded he may have overheard conversations on the subject, as this was not an opinion Y would otherwise have reached. I accept that the mother has not deliberately engaged Y in conversation about living in Australia or the United Kingdom, but has not been as diligent as she should have been to buffer him from adult conversation. This has the potential to draw him into his parents’ dispute.
Mr K opined that Y was not of an age where he could articulate any clear and reasonable preference towards living in the United Kingdom or Australia. He expressed that it was “neurologically impossible” for Y to grasp the issues before the court, and the long-term implications of his wishes.[2] I accept that opinion.
[2] Report of Mr K, page 11, paragraph 2.
At the time of interview with Ms J, X referred to having moved around a lot. She has changed schools and friends, moving from the United Kingdom, to City F, to Sydney. Ms J noted X expressed some disinclination towards the idea of moving again. If her parents decided to return to the United Kingdom “I’d be happy, but sad to leave Australia”; if they decided to remain in Australia “I’d be happy staying in Australia, so long as we get to take lots of holidays to [the United Kingdom]”.[3] Like Y, she did not want her parents to live in different states or countries. Her preference at that time was to live in another country. I accept the submission of Counsel for the mother that children’s views are not static, particularly at X’s age.
[3] Report of Ms J, paragraph 139.
When X saw Mr K, she reported feeling connected to a good group of friends at her current school which she had not experienced at other schools. Her previous experience was a couple of good friends, with whom she has maintained contact. She was keen to attend M School which she regarded as having “the right vibe” for her.[4]
[4] Repot of Mr K, paragraph 38.
X is accepted by her parents as being a resilient child. Her 2021 school report supports that she was a happy and capable student before leaving the United Kingdom, and continues to be so.[5]
[5] Exhibit M11.
At the time of the assessment on 24 October 2024 X denied feeling any pressure from either of her parents about her views. She was aware that her mother wanted to return to live in the United Kingdom, and her father wanted to remain in Australia. This is unsurprising given her age, and that she has participated in the Family Report, and then the report with Mr K.
The father relied on a Proof of Evidence, as part of his evidence in these proceedings. He sets out a conversation with X on 19 November 2024, the night before the start of the hearing. X was sobbing during the conversation.It is the father’s evidence:
3. [X] said to me “Mum has been hassling me a lot about the report and what I said. Mum wasn’t happy with some of what I said. She told me that she was not over protective and that I was being influenced by you. I asked Mum to buy me something and she said “I might buy it on the 2 weeks that I see you every 3 months like you said in the report”. Mum has been having a go at me nearly every day for the last 2 weeks. She tells me that I’m a smart girl and I should see how unhappy she is and want her to be happy. She told me that we are now stuck in Australia because of what I said in the report. She always tells me that you’ve taken all of her money and if she can’t afford anything it’s because of you.”
4. [X] was sobbing whilst she said all of this. She then said to me “Please Dad you have to win the court case. I would prefer to live with you full-time. This is too hard living with Mum she’s always angry and it’s much better living with you”.[6]
[6] Exhibit F1.
This is very different from her comments three weeks before, to an independent reporter. The mother denies discussing these proceedings with X, or putting her under pressure.
There are a number of different explanations for X’s upset. Accepting that X said to the father what he reports, the lead up to a hearing can cause parents to become anxious and worried. That can be obvious to their children, particularly when they share a close relationship. There is no evidence that X has been upset at school, or otherwise.
The evidence is clear that X has a very close relationship with both her parents. She would no doubt feel torn about disappointing either of them.
X is completing year six at school. She will be changing schools next year to high school regardless of where she lives. It is not clear how many of her friends would continue on to high school with her.
I accept that X has enjoyed living in Sydney and attending school here. She has been required to adapt to four different primary schools, two in the United Kingdom due to her parents moving, and two in Australia due to the move to Sydney from City F. The father has moved twice in Sydney. She has experienced her parents’ separation, and some acrimony between them. Both her parents have new partners. She lived through the hard lockdowns as a result of the COVID-19 pandemic in the United Kingdom, which affected her schooling. These can all be unsettling experiences for a child of X’s age on the brink of adolescence.
She has expressed dread at having to re-do her bedroom if she moves again. Unfortunately for her, further moves of house are inevitable given both her parents are renting, and propose obtaining permanent accommodation.
The parents will each provide X with support around further moves, whether as an outcome of these proceedings or due to housing needs. I accept that they will each be engaged in selecting and supporting her schooling once an outcome is known, as they have done in the past.
Although X’s views carry some weight, as Mr K opined, they are not determinative of the matter. I accept that overwhelmingly her preference as expressed to the two report writers is to have both her parents available to her. Mr K noted her preference to remain living in Australia. I accept that she does not want to change country and schools and house again. I accept that at least two of those changes are inevitable.
Her parents have previously moved home to promote what they regarded as the best interests of the family. Were the family intact they would no doubt do the same in the future, and the children’s views would not be determinative of the matter.
What support is available to each of the parties in Australia and the United Kingdom
The mother’s family reside in the United Kingdom. She has no family in Australia.
The mother’s partner Mr D is 30 years old, and works fulltime in sales. He was promoted shortly prior to the hearing. He now oversees a team in sales across a region of the United Kingdom. The new role requires more management, with less time on the road than in his previous role. His schedule varies so that he is sometimes required to stay overnight when visiting clients. He books his own appointments, and controls his diary.
The head office is in City N, which he rarely attends. He has been there twice this year. He works from home, or on site. Mr D’s employer has an office in Australia, outside of Sydney. The work undertaken in Australia is not the same as the area he works in currently.
Mr D is purchasing a four bedroom home in Town E, which has not yet completed. His evidence is that he has purchased the property to accommodate the mother and children. He is living with his parents whilst the sale finalises. He and the mother have not lived together previously.
Mr D spent time with the children for two weeks in early 2022, when staying with the mother in City F. He was with the mother when the children spent time with their father. He was with the mother and children for four weeks over early 2023 and 2024. He has not lived in Australia, and does not intend to do so. It was his evidence that he has not closed the door completely on the idea, and would consider it further if the mother is unsuccessful in her application.
I accept that Mr D is a support available to the mother in the United Kingdom. On his evidence he has reasonably flexible working arrangements that would allow him to assist with the children, assuming schools are located within a reasonable proximity of Town E.
The relationship between the mother and Mr D is clearly a committed one, having survived long distance for the past three years. I note that he attended in person to give evidence during this hearing. I accept that he provides emotional support to the mother, in addition to practical support.
I accept that the reality of living with the two children may prove different to the more relaxed and finite holiday time they have spent together to date. However I accept that the mother and Mr D have contemplated those matters and are committed to residing together.
The father has argued that the basis for the mother’s desire to move to the United Kingdom is Mr D. I do not accept that submission. She has wanted to return to Australia since the dispute about the father failing to move to City F left her feeling unsupported and alone. That did not involve Mr D. He has become more prominent in the mother’s thinking as their relationship has developed over time. This is hardly surprising.
The mother is particularly close to her father, as are the children. He assisted the parties when they lived in the United Kingdom, including staying with them for a year when X was about two years old. Prior to them leaving the United Kingdom he saw them regularly despite living in a different area. He has electronic communication with the mother and children on a weekly basis. The mother and children visited him at his home on a return trip from Australia, albeit briefly.
The maternal grandfather was cross-examined. He gave evidence through an audio-visual link from his home in the United Kingdom. The time difference meant it was around midnight for him. He became a little agitated during cross examination. I accept that his evidence was affected by the lateness of the hour, as he suggested.
The maternal grandfather was cross examined about travel to Town E. He does not have a motor vehicle, although he still has a license to operate one. His evidence is that public transport is free to people over 60 years, and he prefers to use it.
He has not travelled to Town E before but was confident he could navigate the public transport required. He gave evidence about recently travelling to visit his son. He did so on public transport, and would do so to the mother’s home. Although he was not aware of the precise detail of what would be required, he was not daunted by the prospect. He is experienced in using public transport around a metropolitan area. Most trips take no more than an hour.
The father argues that the maternal grandfather is not in a position to provide support by way of practical care of the children. He is 71 years old. He does not live close to where the mother proposes residing. His capacity to provide care is limited, much as the paternal grandmother’s capacity is limited.
I accept that the maternal grandfather may be too far away to support the mother if such assistance was required on a last minute basis. I do accept he would be able to assist with care of the children for planned times, such as being available for the children before or after school, for example. I accept that the maternal grandfather’s age may make caring for very young children difficult. These children are not toddlers. Y will be in year one next year.
The children are of Country B and Anglo Australian heritage. An important connection to their Country B culture is through their maternal grandfather. There is an advantage to the children in maintaining a close connection to him, as it maintains those ties of culture for the children.
Support available from family is not restricted to physical assistance. It includes emotional support. I accept that the mother and her father are in regular communication, and that she derives support from him. It was acknowledged by the father that the children share a close and loving relationship with their maternal grandfather. Although not as close to her mother and siblings, the mother would also have easier access to them. The children have relationships with all the maternal family. X described her aunt as “cool”.[7]
[7] Report of Mr K, paragraph 42.
The father lived in the United Kingdom for 18 years. His partner lives there. I accept he has not previously lived in the area his partner resides. There is no evidence of where any of his friends live, nor what support they may offer. I accept that he derives support from his partner.
The father has extensive family support available in Australia. He has been able to utilise that support since residing here. X has close relationships with cousins.
The mother has no family support available in Australia. She has lived in Sydney for a little over two years. I accept that she has not formed friendships where she has either practical or emotional support available in Sydney. There is no evidence that the father’s family have assisted her in practical care arrangements since she has resided in Sydney. The evidence suggests those relationships are not close.
The parents provide each other with practical support with care of the children. That will be the case so long as they both live in the same country. They have made a shared care arrangement work both in the United Kingdom and in Australia, and despite difficulties in their relationship.
There has been an ongoing issue with respect to child support. During a school holiday period the mother had a longer absence from the children than agreed. The father threatened not to care for the children if she did not agree to his holiday proposal. I accept that he did not intend to, nor did follow through with the threat. I take this as being at piece with the mother in March 2022 threatening to deliver the children to the father, and for him to care for them thereafter. Both parents spoke in anger, and neither intended following through on the threat.
The father used the mother’s outburst to advise the Child Support Agency that he now had the children for 365 days and the mother had none in terms of percentage care. The proceedings concerned the sum of $1,170. His assessed income for the purpose of the assessment at the time was $320,000 and hers was $54,000.
The father advised the Child Support Agency that he did not know if the mother would be returning to Australia in late 2022, at the time of the disputed holiday. I do not accept he believed that statement was true at the time he made it. Correspondence from the mother’s solicitors provided the dates she was away in advance of the trip, and in advance of the application to the Child Support Agency. The father pursued a review of the decision of the agency in the Administrative Appeals Tribunal.
The father has relied on the mother for care assistance when the children have been sick. I accept the mother also does the bulk of taking the children to extra curriculars and the like. The father’s conduct over child support has made difficult for the mother to place reliance on him with respect to assisting her with childcare arrangements. I accept that she would be concerned that additional time with the father may be reported by him to the Child Support Agency to further his case for review. I accept that for the mother this has underscored her sense of isolation from support in Australia.
The respective capacity of the parents to meet the emotional and psychological needs of the children
The parents agree they have the capacity to jointly make long term decisions that meet the children’s needs, as they have done previously. The evidence supports that each of the parents share a close and loving relationship with the children. Both parents have the capacity to care for the children, although neither proposes that one would do it absent the other. The evidence supports that Y is particularly reliant on his mother at his age and stage of development. This has been observed by the Family Report writer, and the father, as referred to above.
There is no issue that the children are at risk from either of their parents, or any other person. Y’s developmental, psychological and emotional needs require that he live with his mother. The evidence supports that he derives comfort from her differently than he does from the father at this stage of his development. That is not to say he does not need regular time with his father. I accept that the needs of both children will be met by having regular time with each of their parents.
The practical implications of each parent’s proposal
The father maintains that it was the mother’s desire to move to Australia, to which he acceded. The mother maintains it was a mutual decision. She has raised that so far as she was concerned it was a trial.
The father relies on the following as supporting that the move contemplated was permanent:
·The mother shipped furniture to Australia, which took five months and cost $20,000.
·The mother made enquiries about transferring her pension fund to Australia.
·The parties exchanged extensive emails about the move, and nowhere is there a statement that indicates the move was temporary, or a trial.
·The October Agreement prepared by the parties was a detailed heads of agreement and it did not state or contemplate that the move to Australia was temporary.
The parties attended mediation in mid-2021. Following that the parties negotiated the October Agreement referred to, which set out the basis of the agreement to move to Australia. I accept that regardless of who initiated the discussion, moving to Australia was a plan put in place by both parties. They committed to writing the basis of their agreement to move to Australia. I accept that they both intended the move to be long term.
The first point in the October Agreement is:
1. Child care split 50/50 across what days during the week. Weekend childcare set up. [City F] – split the week 50/50 or 3.5 days or so each where possible. When we get to Sydney, consider alternative arrangements. Either one week on and one week off each. OR split the week as [City F].[8]
(Emphasis in original)
[8] Affidavit of the mother filed 27 September 2024, Annexure A.
The bold part of the agreement was the father’s addition. The father knew that he would be working for his brother and was unsure of the number of days he would be required to be in the office in Sydney. Both parties rely on having time free of childcare responsibilities to pursue their respective careers.
I accept that from the mother’s perspective they had always shared care of the children. She understood the father would be living in City F, and commuting to Sydney. He referred to commuting to Sydney in their text communication. The October Agreement referred to the time the father would have the children as being either “50/50” or “3.5 days” where possible. Counsel for the father stressed that “where possible” signalled that he may not move to City F.
I accept that he did not know the detail of his work arrangements, particularly in regard to working remotely from City F. The father’s additions to the October Agreement suggest there may be weeks he could be longer in Sydney, such that it may not permit the time contemplated. It does not suggest there would be no time weekly. The October Agreement does not reflect a proposal that he would live in Sydney and spend time on alternate weekends in City F.
The mother was moving to City F, where she knew no one, to satisfy requirements so she could continue work in her profession in Australia. She may have read the October Agreement as providing a greater amount of care by the father than he did. In my view her belief that the care arrangement would continue to be shared, although perhaps less than 50/50, was reasonable. That was what the parties were doing at the time of the October Agreement. That was what they regarded as being in the best interests of their children. In those circumstances, I accept that the mother was upset and angry when she found herself and the children moving to City F without the support envisaged.
It is unfortunate that this caused a major deterioration in the parties’ relationship. The father advised her five days before the move to City F that he would not be living there. It is shortly after this in February 2022, that the mother raised going home to the United Kingdom. She has maintained that position since.
That father proposed that the children stay with him in Sydney shortly before the move to City F. I accept the mother rejected that option as it was not feasible, particularly for Y.
These children are safe in the care of each of their parents. The arrangements proposed by each parent, for week about time, promotes their safety. Whether that is in Australia or the United Kingdom does not impact on their safety.
To the extent that each parent makes complaint of the other dealing with them, and referring to their partner, in derogatory terms I accept that there is no evidence this is shared with the children.
On a practical basis if the parties remain in Australia as the father seeks the mother will remain unsupported from a practical and emotional perspective. The mother will likely continue to feel unhappy with that. The proceedings initiated by the father for review of the decision of the Child Support Agency do not assist that, in that the mother may not feel that she is able to go to the father for additional support in the care of the children.
The mother will move from her current rental accommodation further from the children’s schools, on her evidence. The father is also in rental accommodation, and may move again. There is no evidence about the impact on Y’s primary school if his parents move out of the catchment area. Should the father’s partner and two children come to live in Australia there will likely be further change. The father’s evidence about that was scant, and there is no evidence from his partner about her intentions.
The father argued that the parties have demonstrated their ability to make the week about time arrangement work in Australia, but their ability to manage that in new living arrangements in the United Kingdom is untested. They will face practical challenges going from living 10 minutes apart to around an hour apart. The need for changing accommodation in Sydney will also likely see that change, if the parties remain.
If the mother is permitted to relocate the children to the United Kingdom there will be change. The children will be returning to a country where they have lived before. They will be living with their parents, their respective partners, and in the father’s case, his partner’s children. So far as the father’s household is concerned that is what he intends to occur in Australia.
The father has lived and worked in the United Kingdom for 18 years. The mother was raised there. It is a place that both have called home for many years.
The mother does not raise any concerns with respect to her ability to obtain employment in the United Kingdom. It is her evidence that she would have a higher income earning capacity in the United Kingdom. The father maintains that it would be difficult for him to obtain employment as he had before, because he has not worked in that particular area since the move to Australia. Nonetheless it is clear that the father has always maintained well paid employment and has contacts and familiarity from his previous years in the United Kingdom to draw on.
The parents each propose that they would not live in a country different to their children. They both take seriously their role as parents. This supports the finding that they are competent, capable parents.
Y will be required to move school. He is in first class. There is no evidence suggesting he will not manage that.
X will have another change of school. Moving from primary to high school requires that in any event. She will not be starting school in the United Kingdom at the start of the year, but in the first half. That can be a daunting prospect, and I accept on the evidence she regards it as that. She is aware of the dispute between her parents, and has voiced her preference that they stay in Australia. I accept the father’s evidence that she was particularly upset the night before the start of the hearing.
The father refers to X thriving in Australia. There is no dispute that she is progressing well developmentally, socially and in her education. The school report from O School supports that X was also a happy and capable student with friends in the United Kingdom.
Whilst X’s views are a matter to be considered, the evidence does not support that she would not be able to adjust to the move. On the evidence I accept that she is a resilient child. Both her parents have referred to her as such. Both parents are competent and will support her through any move.
Relocation
The children’s best interests are the paramount, but not the sole determinant in relocation cases. I find that their best interests will be served by their mother being able to relocate with them back to the United Kingdom. The father intends to move back to the United Kingdom to remain living in the same country as his children, where he will have the support of his partner and a network in the country he made his home for years.
The mother will have emotional and practical support from her family and partner in the United Kingdom. The children will benefit from that directly through their relationships with the maternal family, and from their mother’s improved situation.
The children have cemented their relationships with their paternal family, particularly their cousins, through their time in Australia. The parties and their families are experienced travellers, and those relationships will be fostered by time together around the world and at home, and by electronic communication.
It may be that the father is delayed longer than the mother and children in relocating to the United Kingdom. I will make orders that both parties sought for the children’s time with their father whilst he remains in Australia.
Other orders sought
There is no issue that if they are in the same country the parents should have equal shared parental responsibility, and decision making. The mother seeks sole decision making if they do not live in the same country. There was no evidence about this, and limited submissions. For any period where the parties reside in separate countries prior to the father’s move I accept they are able to share parental responsibility and decision making authority. The children do not have chronic health issues where frequent decisions may be required. They will both be able to research schools, even if the father’s research is limited to online and electronic enquiries. It is important for them both to have input on school selection. The mother has been asking for that from the father.
The orders sought by the parties vary slightly in the details of time for matters such as changeovers on non-school days, special occasion time, communication and how school holidays are shared. Where the orders vary there is no issue about that variation that impinges on the children’s best interests. I am satisfied, however, that the children’s best interests will be served by providing a framework for the parties with respect to time arrangements.
Whether changeover during term time on non-school days in the United Kingdom occurs at 10.00 am as proposed by the mother or 12.00 pm as proposed by the father, on the evidence available, has no material impact on the children. I propose making orders that changeover occur at 10.00 am, noting this can be varied by agreement between the parties.
Both parties seek orders to share time with the children on Christmas, Mother’s and Father’s Day and the children’s birthdays. The times proposed varied. I propose making orders in line with the father’s proposal, including for overnight time on Mother and Father’s Day, so that the visit is not brief for the children. That enables the children to celebrate with each of their parents.
The father sought in addition, time during the Easter weekend and on the father’s birthday. I do not propose making those orders as I have no evidence about this, including whether there are public holidays around the Easter weekend in the United Kingdom. Neither party made submissions about either matter.
The parties each sought that the children spend one half of the school holidays with each of them. That is clearly in the children’s interests. The configuration of time was not agreed between the first and second half. Whether one parent has the first or second half does not impact the children’s best interests. I propose making the orders that the parties have the first half and second half of the holidays in alternate years. It was not clear on the evidence what arrangements are currently in place. The parties can vary this by agreement.
Whilst the father remains in Australia and the children in the United Kingdom, there is agreement with respect to time occurring during the United Kingdom Easter and Summer school holiday periods. I will make orders accordingly. There is a dispute about the costs of the children’s travel if the father elects that time occur in Australia, prior to his return to the United Kingdom. The father seeks the mother meet the whole of those costs. The mother seeks that they share the costs. Neither party made submissions about this. It is not on the father’s case a situation that will continue on any long term basis. I accept the parties should meet one half of the costs of travel.
There is no evidence about the father travelling to the United Kingdom, whilst he lives in Australia, to see the children. He has sought orders for the whole of the United Kingdom Christmas school holiday in Australia in odd numbered years, prior to his return. I have no evidence of the date of the proposed move by the mother. I anticipate the parties will adhere to the orders in place for shared Christmas period this year, prior to the mother and children returning to the United Kingdom. His case is to move to be in the same country as his children. Accordingly, I do not propose making these orders, absent submissions. One would expect that would occur prior to Christmas in 2025.
The mother proposes electronic communication on two occasions each week when the parents and children are in the United Kingdom. The orders sought by the father are silent with respect to communication where both parties reside in the United Kingdom. Y is not yet of an age where he can independently be in communication with his parents. X will shortly be in a position to initiate contact as she wishes. I propose making the order sought by the mother, noting that it provides for the parties to agree on a different arrangement should they choose to do so. Y’s age and close relationship with his mother make this order in his best interests.
Whilst the father is in Australia and the children in the United Kingdom, there is agreement that the mother shall facilitate communication between the father and children each alternate day. I will make that order. In addition, the father seeks an order for communication on the Christmas Day and birthdays. There was no submissions made about that order, and I assume it is not pressed.
The mother seeks additional orders about the sharing of medical information concerning the children, including about any injury, illness and prescriptions the children may have from time to time. I propose making those orders as it is in the children’s interests for all information to be available for each parent.
The parties sought orders in similar terms with respect to renewal of the children’s passports, restraints, information sharing, the introduction of partners to the children and authorities to be provided to the children’s school and medical treaters. I will make orders in relation to those matters.
The orders provide a framework for the parties shared care arrangement. I accept that having a framework for these arrangements promotes the children’s best interests by providing certainty. The parties have the ability to vary the orders by agreement.
It is anticipated that once the parties settle into the arrangement in the United Kingdom, they will make arrangements that work for the children, as they have done previously.
Other orders differed more significantly between them, such as what restraint is appropriate on further movement of the children in the United Kingdom, how the children’s passports are held, travel to countries not signatory to the Hague Convention, notice required for overseas travel, travel to Australia for the whole of the Winter school holidays in alternate years, whether the parties should have first option on overnight care if the other parent is available and other ancillary orders. None of these matters were argued in submissions, nor the subject of cross examination. These are matters the parties have previously navigated. They share decision making responsibility. I do not propose making those orders as proposed by either party as neither pressed for the making of those orders.
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Boyle. Associate:
Dated: 16 December 2024
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