Ready and Ready
[2020] FamCA 6
•13 January 2020
FAMILY COURT OF AUSTRALIA
| READY & READY | [2020] FamCA 6 |
| FAMILY LAW – CHILDREN – International Relocation – where the mother seeks the children, aged eight and five years relocate to live with her in Ireland – where the father opposes the relocation – where relocation of the children to Ireland is found to be in the children’s best interests |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 Banks & Banks (2015) FLC 93-637 CDJ v VAJ (1998) 197 CLR 172 Cox & Pedrana (2013) FLC 93-537 H & H [2005] FamCA 805 McCall v Clark (2009) FLC 93-405 Morden & Coad [2019] FamCAFC 233 U v U (2002) 211 CLR 238 Vigano v Desmond (2012) FLC 93-509 |
| APPLICANT: | Ms Ready |
| RESPONDENT: | Mr Ready |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | PAC | 2441 | of | 2017 |
| DATE DELIVERED: | 13 January 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 18 and 19 November 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Alexander |
| SOLICITOR FOR THE APPLICANT: | Simpson Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Selfridge |
| SOLICITOR FOR THE RESPONDENT: | Ramsden Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Thiele |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
IT IS ORDERED BY WAY OF FINAL ORDER THAT
All parenting plans and previous parenting orders are discharged.
The children, X, born … 2011 and Y, born … 2014 live with the mother.
The mother is at liberty to relocate the children to live with her in Ireland at any time after giving the father no less than fourteen (14) days’ notice in writing of her intention to do so.
The parents have equal shared parental responsibility for the major long term issues of the children, including but not limited to:
(a) the children’s future education; and
(b) the children’s religious and cultural upbringing; and
(c) the children’s health; and
(d)any changes to the living arrangements that make it significantly more difficult for the children to spend time with each party.
The parties shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility, as follows:
(a)each shall inform the other party about the decision proposed to be made; and
(b)each shall consult with the other with the view to reaching terms upon which they may agree; and
(c)each shall make a genuine effort to come to a joint decision with the other party.
Each parent has responsibility for decisions about the day to day care, welfare and development of the children when they are in that parent’s care.
Until the children depart Australia for Ireland, they will spend time with the father at all reasonable times as may be agreed between the parties and failing agreement as follows:
(a) in week 1: from 5.30 pm Thursday to 7.00 Sunday; and
(b) in week 2: from 5.30 pm Thursday to 5.30 pm Friday; and
(c) for half of all school holidays.
Upon the children living in Ireland and in the event the father resides in Ireland at a place reasonably proximate to where the children are living, the children shall spend time with him at all reasonable times as may be agreed between the parties and failing agreement as follows:
(a) in week 1: from 5.30 pm Thursday to 7.00 pm Sunday; and
(b) in week 2: from 5.30 pm Thursday to 5.30 pm Friday; and
(c) for the first half of the school holidays in odd numbered years; and
(d) for the second half of the school holidays in even numbered years.
For the purpose of Orders (7) and (8) above, unless otherwise agreed between the parties, changeovers shall be effected at the mother’s residence.
Upon the children living in Ireland and if the father resides in a country other than Ireland, the children shall spend time with him at all reasonable times as may be agreed between the parties and failing agreement as follows:
(a)for five (5) weeks during the Irish Summer school holidays each year, with the father or his nominee to travel to Ireland to collect the children at the start of this time and the mother or her nominee to travel to Brisbane to collect the children from the father at the conclusion of such time; and
(b)for all of the Irish end of year school holidays in each odd numbered year, with the father or his nominee to travel to Ireland to collect the children at the start of this time and the mother or her nominee to travel to Brisbane to collect the children from the father at the conclusion of such time; and
(c)from noon on Christmas Day to noon on Boxing Day each even numbered year if the father is then in Ireland.
In the event that the father informs the mother in writing, no less than 60 days prior to the start of the Irish summer school holidays, that he wishes the children to spend time with him in Australia for that holiday period, the parents shall each pay half of the cost of the children’s airfares for such time.
In the event that the father informs the mother in writing, no less than 60 days prior to the start of the Irish end of year school holidays in each odd numbered year, that he wishes the children to spend time with him in Australia for that holiday period, the parents shall each pay half of the cost of the children’s airfares for such time.
In addition to the time prescribed in Order (10) above, the children shall spend time with the father on any occasion he travels to Ireland and provided that he has first given the mother notice in writing, no less than thirty (30) days before his arrival in Ireland, of his intention to spend such time with the children in Ireland, as follows:
(a)if such time occurs during school term: for a period of no more than fourteen consecutive nights, provided that the father ensures that the children attend school during this time; and
(b)if such time occurs during a school holiday period other than the Irish Summer school holidays and the end of year school holidays: for all of that school holiday period; and
(c)if such time occurs during the Irish Summer school holidays: for half of that period, provided that the children have not already spent time with the father in Australia during that school holiday period; and
(d)if such time occurs during the end of year school holidays in even numbered years: for half of that school holiday period.
For the purpose of any international travel undertaken by the children:
(a)each parent shall ensure that either they, or another adult known to the children, accompany the children on the flights until the children are both 10 years of age, after which time arrangements may be made with the international airline carrier for the children to travel as unaccompanied minors; and
(b)the parties agree to only travel to countries that are signatories to the Hague Convention; and
(c)the mother shall retain possession of the children’s passports at all times other than on those occasions when they are required for the children’s travel to Australia, at which time she shall provide the same to the father; and
(d)the father shall cause the children’s passports to be returned to the mother at the conclusion of their time with him.
Each parent is at liberty to communicate with the children, when they are not in their care, by telephone, Skype, FaceTime or other similar facility (the communication) at all reasonable times and not less than each Wednesday and Sunday at such time as agreed by the parties in writing and on the children’s respective birthdays and on Christmas Day and, in order to facilitate this:
(a)the parent with whom the children are not spending time shall initiate the communication; and
(b)the parent in whose care the children are at that time shall make the children available to receive the communication; and
(c)the parent in whose care the children are at that time shall arrange for the children to contact the calling parent on the following night if, for any unforeseen circumstance, the children miss the communication from that parent; and
(d)each parent shall ensure that the children have privacy during the communication.
The children are at liberty to communicate by telephone, Skype, FaceTime or other similar facility at all reasonable times with the parent with whom they are not spending time.
During the time the children spend time with or communicate with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent; and
(b) speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
The mother is to promptly inform the father in writing of all the children’s major scholastic events and matters relating to the children’s health issues and shall ensure that she emails the father updates on the children, including by sending him photographs or video recordings of their general activities and relevant issues in the children’s lives.
Each parent keep the other informed of the details of the children’s doctors, health care and other treatment providers and of the details of any school, educational facility or extra-curricular activity provider at which the children attend.
By this Order any treating medical practitioner is hereby authorised to release to both parents such medical information about any medical emergency, significant health issue or significant illness suffered by the children as they are lawfully able to provide about the children.
By this Order, any school, educational facility or extra-curricular activity provider at which the children attend is authorised to provide each parent with such information as they are lawfully able to provide about the children and their progress.
If there is a cost associated with the provision of any information or documents by the children’s doctors, health care and other treatment providers or school, educational facility or extra-curricular activity providers, that expense shall be borne by the parent requesting the information.
Within fourteen (14) days of her receipt of the same, the mother shall provide the father with a copy of each of the children’s school reports.
Each parent shall ensure that the other is nominated as a secondary emergency contact with any school at which or medical practitioner upon whom the children attend.
Each parent inform the other parent as soon as reasonably practicable of any medical emergency, significant health issue or significant illness suffered by the children.
Each parent shall keep the other parent informed at all times of their residential address, contact telephone number and an email address and shall:
(a)notify the other as to any change in those details as soon as practicable after such change and no later than after forty-eight (48) hours of the same; and
(b)notify the other parent at least sixty (60) days prior to relocating their residence beyond a fifty (50) kilometre radius from where they either currently reside, or will reside consequent on implementation of this Order.
Save for in therapeutic counselling, neither parent shall discuss these proceedings, nor the allegations made in them, with the children, nor involve the children in any discussions regarding any issue in dispute between them.
The mother and father do all such things as may be required to ensure X receives ongoing counselling and assistance from her current treating counsellor, or such other counsellor as may be agreed by the parents, for so long as and as frequently as recommended by that counsellor. The parents shall comply with all reasonable directions of the counsellor, including but not limited to completion of courses.
The mother and father are at liberty to provide a copy of the Family Reports of Ms C dated 14 May 2018 and 20 September 2019 to the children’s and/or parent’s treating counsellors and psychologists.
AND IT IS FURTHER ORDERED THAT
Save as is otherwise ordered herein, no party is permitted to use any documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.
The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
All outstanding Applications are dismissed.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 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 Ready & Ready 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: PAC 2441 of 2017
| Ms Ready |
Applicant
And
| Mr Ready |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
These proceedings require the determination of those parenting orders which are in the best interests of two children: eight year old X, who was born in 2011 in Ireland and five year old Y, who was born in 2014 in Australia. Both children are Irish citizens. Their mother wishes them to relocate to live in Ireland when she relocates to live there whilst their father wants them to remain living in Australia.
Background
X has recently completed Year 3. Y has attended a local kindergarten since January 2019: he attends on Monday, Tuesday and Wednesday in one week and on Monday and Tuesday in the second week of a fortnightly cycle.
The children’s mother was born in Ireland in 1978. Their father was born in Ireland in 1979. The parents began their relationship in 1999 and commenced cohabitation in City B in 2004. They lived there in a property they still jointly own and which is currently tenanted. They married in City B in 2009. They relocated to Australia in 2013 on a 457 Skilled Australian Visa after the father was employed by his current employer on a four year contract.
The children and their parents were granted permanent residency in Australia in August 2016 and granted an Employer Nomination Scheme (subclass 186) Visa; they are able to remain living in Australia indefinitely. On their current Visa they may leave and re-enter Australia until 18 August 2021: if they leave and re-enter after this date, they need to apply for and be granted either a Resident Return Visa or Australian citizenship.
On the mother’s account, she and the father separated in January 2017 and lived under the same roof until about April/May 2017; on the father’s account, separation occurred in May 2017. The determination of those parenting orders which are now in the children’s best interests does not seem to me to require resolution of this difference.
Both parents currently live in South-East Queensland, albeit that the father currently stays in Sydney during the majority of the working week.
The children have lived primarily with their mother since the parental separation. Since about October 2017, they have spent time with their father:
a)in week 1: from 5.30 pm Thursday until Friday morning; and
b)in week 2: from 5.30 pm Thursday until 7.00 pm Sunday.
At present, the mother works as a cleaner for three hours a fortnight; the father continues to work fulltime, albeit that he currently works in Sydney between Monday and Thursday each week.
The irony in this case, I think, is that both parents want both of them to be involved in parenting their children: the mother wants the father to be an involved parent – but in Ireland – whilst the father wants (at least until January 2023) the mother to be the children’s primary parent – but in Australia. The mother does not want to discharge her parenting responsibilities in Australia and wants to return home to Ireland, taking the children with her, whilst the father does not want to return to Ireland to live, but wants to remain living in Australia.
There is no suggestion that the mother’s desire to return to live in Ireland is something that only arose after these parents separated: I consider it clear on all of the evidence before me that she expressed that desire to the father on a frequent and consistent basis for a number of years prior to their separation. It is also clear that the parental incapacity to resolve the fundamental issue of the country in which they would continue to live and parent their children was the source of much discussion, argument and disagreement prior to the parental separation. Further, there is no suggestion by the father that the mother is being disingenuous in any way in maintaining her desire, following their separation, to return to live in Ireland – the country she clearly continues, unequivocally, to regard as her home. The father accepts that she is genuine in this wish, that it has been long-standing and that remaining living in Australia is something that has caused the mother genuine upset and distress; he also accepts that she has continued to miss her family and that the distress she feels at being separated from them and their support is genuinely felt.
Whilst he continues to regard the mother’s feelings as constituting “homesickness”, I accept that, from her perspective, her feelings of isolation are much greater than that word suggests.
When cross-examined, the maternal grandfather said that he had never had anything against the father until “this” happened – which I take to be a reference to the father’s unwillingness to agree to the mother returning to live in Ireland and taking the children with her. The maternal grandfather’s evidence in essence was that the evidence in his affidavit represented his expression of how he felt on each of the occasions he described. He said that whilst he did not have a bad impression of the father, there were things that he had done that he did not agree with. His view of the father included, I think, that the father was more self- focused than he thought appropriate and had failed to support the mother in parenting the children – particularly when they were babies.
I think it much more likely than not that the animus expressed in some of the evidence before me really arises because of the way each of the parents and the maternal grandfather view the responses of each parent to the fundamentally different view about whether remaining living in Australia is in the children’s best interests: that is, it seemed to me that the mother and her father simply could not really accept that the father would not act to resolve her distress at being in Australia by agreeing to her proposal that – initially everyone – return to Ireland to live or, later, that the children accompany her when she returns home to Ireland to live; whereas, from his perspective, the father struggled to accept that the mother would choose to return to live in Ireland to be close to her family in preference to remaining living in Australia (albeit against her will) so that she (undoubtedly the children’s primary carer) could support their continued residence here and them having an ongoing meaningful relationship with him whilst he continued to engage in employment in Australia that he clearly finds personally fulfilling and which has been financially rewarding.
I accept completely that both parents are genuine in thinking that what each proposes is a regime that is in the children’s best interests; despite their fundamental difference about where the children shall live, I accept that each fundamentally values the role the other has in their children’s lives. I also consider that neither parent would really act to undermine the children’s relationship with the other parent – even though, on occasion, actions and/or words might have suggested this to be the case. I consider these words and actions to be symptoms of the circumstances created by their fundamental disagreement about where to continue to live and parent the children, rather than manifestations of underlying views about the issue of whether it is important for the children to have the opportunity to have meaningful relationships with both of their parents.
I am persuaded that both parents value the children’s relationships with the other; I also consider it clearly established that the children will benefit from the opportunity to have meaningful relationships with both of their parents: whilst the mother advanced that this is possible if the children are permitted to relocate to live with her in Ireland and that she will support them in maintaining their relationships with their father, the father is sceptical about this aspect of her evidence – not in the least because of the manner in which the mother took the children with her to Ireland in May 2017 and his subsequent difficulties in speaking with the children from then until about October 2017.
It is not, in my view, to the mother’s credit that she does not seem to appreciate the likely impact on the father of returning home after work on 15 May 2017 to find the house dark and the children gone. That the father’s view of her approach to the future support of the children’s relationships with him has been coloured by her actions in this respect is, I think, entirely understandable. However, the decision about where and in what circumstances it is now in the children’s best interests to live does not involve meting out some form of punishment or admonition for past wrongs or past errors of judgment or, conversely, rewarding a parent – the real relevance of the mother’s past actions is whether they indicate an underlying absence of support for, and appreciation of, the father’s important role in the children’s lives or whether they were simply the actions of a parent desperate to travel home to be enveloped in the support of family and hopeful that the father would be enticed, by the children’s departure from Australia, to return to Ireland. On balance, I favour the latter over the former.
Given that it is clear that the mother caused a parenting application to be filed in an Australian Court before she removed the children from Australia – and thereby demonstrated her submission to the jurisdiction – I think she simply decided to leave to visit family because she knew that the father would not agree to her taking the children from Australia to Ireland at that time. Such conclusion does not, of course, absolve the mother from responsibility for her decision or the impact of it on the way the father views her actions and his concerns about her likely future actions.
The proposals
The mother
In her Initiating Application filed 18 May 2017, the mother proposed that the parents have equal shared parental responsibility for the major long-term issues relating to the children and that the children live with her in Ireland and communicate and spend liberal time with their father, provided such time was spent in Ireland. She did not then particularise those orders she sought if the children remained living in Australia.
When interviewed by Ms C, a Family Consultant, on 19 April 2018, the mother proposed that: the children live with her in City B and spend half of the Irish summer school holidays in Australia with the father each year – she also said she hoped the father could visit the children in Ireland once a year.[1] She proposed that the children communicate with their father three times a week via Skype.[2] At that time, the mother proposed that, if the father moved to live in Ireland or the children were required to remain living here, the then-existing parenting regime continue.[3]
[1] Family Report 14 May 2018 at [13].
[2] Family Report 14 May 2018 at [13].
[3] Family Report 14 May 2018 at [14].
When interviewed by Ms C on 16 September 2019, the mother proposed that: the children live with her in City B and spend all of the Irish summer school holidays in Australia with their father. She also said she hoped he could visit the children in Ireland twice a year and, for those visits, he could stay with the children in the former matrimonial home and she would move to stay with her parents. She also proposed that the children communicate with their father three times a week via FaceTime and use X’s iPad to otherwise do so whenever they wanted.[4] During her evidence, the mother said, in essence, that if the Court decided it was in the children’s best interests for them to relocate to Ireland, they should spend five weeks during the Irish summer school holidays with their father in Australia but, during this time, return to her care for a short time so that they would know she was present.
[4] Family Report 20 September 2019 at [7].
The mother’s position at trial was that, if the Court determined it was in the children’s best interests to remain living in Australia, she intended to return to live in Ireland to obtain support and comfort from her family and then decide whether she would return to Australia.
There is a dispute about what the mother told Ms C in September 2019 that she would do if the children were not permitted to relocate to live with her in Ireland. According to Ms C, the mother told her that, if the children were required to remain living in Australia, she intended to return alone to Ireland for between six to twelve months, before returning to Australia, at which time she hoped to resume primary care of the children.[5] Whilst the mother accepted that she and Ms C had discussed what she would do if the children were not permitted to relocate to live in Ireland, her account during cross-examination was, in essence, that she told Ms C that, if the children were not permitted to relocate to live with her in Ireland, she intended to return to live there for one or two years or it might be longer than that; she denied saying that she intended to return to Ireland for six to 12 months; she maintained that she told Ms C she would return to Ireland to garner support from her family and did not know when she would return to Australia or if she would return to Australia. She said Ms C erred in reporting that she had told her that she would return to Ireland for six to 12 months before returning to Australia. The mother also maintained that, during her discussions with Ms C, she had explained that she considered her mental health to be so important to her functioning – so that she could be her best for the children – that she needed to return to Ireland; she said she had told Miss C she could live there for a couple of years and that she never said it was her intention to return to Australia thereafter.
[5] Family Report 20 September 2019 at [8].
When cross-examined about that aspect of her most recent report in which she noted that the mother had told her that she would return to Ireland for “six months to a year”, Ms C was unable to locate any note of that specific timeframe; she said, in essence, that she recalled that the mother intended to return to Ireland for a period of time to get family support and nurture. Whilst Ms C was emphatic in saying that she would not have written what she said in her report if the mother had not said that to her, she later accepted that it could have been the case that the mother did not say “six to 12 months” but, as part of a discussion with her, had said it could be six to 12 months or could be longer or could be indefinitely. Given this evidence, the difference seems to me to fall away to a large degree.
In any event, the difference does not seem to me to matter much because the mother’s final position at trial was that, irrespective of where the children live in the future, she intends to return to live in Ireland so that she can be close to and gain support from her family. She said she had most recently decided that she would live there permanently and had misread that paragraph of her October 2019 affidavit which seemed to suggest that, if the Court ordered the children to remain living in Australia, she would remain living in Australia also.
The mother proposed that, if the children remained living in Australia – albeit in the primary care of their father for the very first time in their lives – they spend in-person time with her for half of each school holiday period.
The father
In his Response filed 20 June 2017, the father proposed that the parents have equal shared parental responsibility for the major long-term issues relating to the children, that the children live with him in Australia and spend time with and communicate with the mother at all times as could be agreed and failing agreement, as ordered by the Court. He did not then particularise those orders he sought if the mother was permitted to relocate the children to Ireland.[6]
[6] Response filed 20 June 2017.
When interviewed by Ms C on 19 April 2018, the father proposed that the children remain living in Australia and, from January 2019, live in a ‘week about’ shared parenting arrangement.[7] Until then, he proposed that the children spend time with him as they had been doing. He also told Ms C that, if the children relocated to live in Ireland, they should spend all of the Irish summer school holidays with him in Australia, spend time with him when he travelled to Ireland and communicate with him by Skype every second day. He sought, in that eventuality, that the mother facilitate the exchange of photographs, gifts, school reports and medical reports.[8]
[7] Family Report 14 May 2018 at [15].
[8] Family Report 14 May 2018 at [16].
As at April 2018, the parents agreed that, if the children live in Ireland, the costs of their travel to Australia to spend time with their father should be shared.
When interviewed by Ms C on 16 September 2019, the father proposed that the current parenting arrangements be adopted on a final basis; whilst he also said that he intended that the children move to live with each parent on a week-about shared care basis in the future, he did not then elaborate further about this intention.[9] Obviously, the father’s proposal in this respect assumed that the mother would remain living in Australia and was clearly formulated by him prior to him learning that, irrespective of where the children are permitted to live, she intends to return to live in Ireland. He proposed that, in the event that the children move to live in Ireland, they spend time with him in Australia for half of the Irish summer school holidays and every second Christmas; that they be available to spend time with him should he travel to Ireland and that the paternal grandparents (who live in Ireland) have the opportunity to spend time with them.[10]
[9] Family Report 20 September 2019 at [9].
[10] Family Report 20 September 2019 at [10].
In his Amended Response filed 29 October 2019,[11] the father proposed that the parents have equal shared parental responsibility for the major long-term issues relating to the children. He primarily sought that the children live with the mother in Australia and, until 31 December 2022, spend time with him as they currently do and that, from 1 January 2023, the children live with each parent on a week-about basis, with changeover to occur on Friday after school (or 3.30 pm on non-school days).
[11] Amended Response filed 29 October 2019.
Having learned of the mother’s position vis-à-vis her returning to live in Ireland, the father advanced that the children should move to live primarily with him in Australia. During his evidence he outlined that the paternal grandmother would travel to Australia to care for the children whilst he transitioned from his current employment to something that did not require him to work in Sydney; he anticipated that the children may attend before and after school care and be cared for by family friends on occasion. He also proposed that the children spend time with their mother in Ireland for Christmas in 2020 and for every second Christmas thereafter for a period of no less than five weeks, for up to five weeks during the school holidays and, if the mother travelled to Australia, she spend time with the children as agreed, provided that she give him no less than two weeks’ notice of her visit here.
The father also proposed that, if the children are permitted to relocate to live in Ireland with their mother, they should spend time with him, in Australia, for Christmas in 2020 and every second Christmas thereafter and for a period of no less than five weeks during each July school holiday period. He also proposed that, provided he gave the mother no less than two weeks’ notice of his intention to travel to Ireland, the children spend time with him for a period of no less than two weeks on him travelling to Ireland.
The father also proposed that, if the children relocate to Ireland with the mother and he elects also to relocate permanently to Ireland, the children live with their parents on a ‘week about’ basis, with changeover to occur on Friday, either after school or at 3.30 pm on a non-school day.
Uncontentious matters
I consider that the following are some of the clearly established matters in this case:
a)the children are primarily attached to their mother; and
b)each child has a very good and close relationship with their father; and
c)both parents love their children dearly and both children love each of their parents dearly; and
d)both parents genuinely think that their respective proposals are in the children’s best interests; and
e)neither parent has been able to compromise their view about the country in which each regards it to be in the children’s best interests to live in the future; and
f)the parental disagreement about where it is in the children’s best interests to live predated their separation and was one of the significant matters about which they could not agree during their relationship; and
g)the mother continues to regard Ireland as her “home” and is genuine in this, whilst the father appears to now regard Australia more as his “home” and is genuine in this; and
h)the mother has very close and supportive relationships with her family in Ireland and has felt keenly the distance and separation from them consequent upon the move to live in Australia; and
i)the children have good relationships with members of both their maternal and paternal extended families in Ireland: they love all of their grandparents and communicate with them regularly via FaceTime; and
j)the parents have no family (other than themselves) in Australia and the entirety of the family support network – on both maternal and paternal sides – is in Ireland.
What happened in 2017 and thereafter?
I accept that, during the first part of 2017, the mother had been very upset every morning around the children before school; I accept she felt that she did not have control of her own situation as the father would not agree to them returning with the children to Ireland.
It is clear that, in March 2017, the mother sought the father’s agreement for a return to Ireland. It is also clear she knew in April 2017 that he did not agree.
I accept that, on 15 May 2017, the mother travelled with the children to Ireland without the father’s knowledge or consent.[12] I accept that, before she removed the children from Australia on 15 May 2017 to travel to Ireland, the mother had not told the father of this intention; I accept he had no idea that she was about to remove the children from Australia to travel to Ireland.
[12] Affidavit of the father filed 20 June 2017 at [9].
I accept that the mother and children travelled to Ireland on tickets bought by the maternal grandfather on 10 May 2017 and that such tickets provided for a return to Australia on 10 June 2017. I also accept that travel insurance was arranged for the mother and children for the period from 14 May 2017 to 10 June 2017 and that this appears to have been purchased on 8 May 2017.[13] I accept that these documents establish that the mother had planned to remove the children from Australia to travel to Ireland for at least a little time before they left on 15 May 2017 That tickets for a 10 June 2017 return to Australia were bought corroborates in part the mother’s assertion that, when she left Australia, she intended to return here with the children in June 2017 – although she clearly did not implement that intention and she and the children only returned after the father started “Hague Convention” proceedings.
[13] Exhibit 5.
During her cross-examination, the mother accepted that, when she signed the Initiating Application on 11 May 2017, she knew then that she was removing the children from Australia to travel with her to Ireland. She said, in essence, that it would take a couple of years to have her Application finalised, that she needed to get it started and that, at that time, she intended to bring the children back to Australia. The state of her evidence was such that I am unclear whether she meant that, having started proceedings seeking orders to relocate the children to live in Ireland before she removed them from Australia to travel there, she always intended to return them to Australia in about a month or whether she intended to have them live with her in Ireland and only return to Australia closer to a final hearing date.
Whilst aspects of the evidence – for example, the mother’s evidence of 11 May 2017 (in support of the non-filing of a certificate in relation to attendance on a family dispute resolution practitioner) that she resides in Ireland and the father resides in Australian – certainly suggests to me that the mother had hoped, in effect, to create a situation where she and the children moved to live in Ireland whilst the Courts here dealt with her Application for interim and final orders to relocate the children to live in Ireland, the reality is that, if that was her plan, it was thwarted by the father’s invocation of proceedings under the Hague Convention.
I accept that, having travelled with the children to Ireland, the mother was happy and wanted the father to return to Ireland to see how happy she and the children were there. I accept the mother wanted the father to follow her and the children back to Ireland; and that she thought he would do so to be there with them and that if he did, they could sit down there and try to work things out.
However, the father declined the invitation to travel to Ireland and instead took steps to have Hague proceedings started. The Hague Application, originally listed on 10 October 2017, was adjourned to 13 October 2017 to enable the mother to prepare material – she caused material to be filed on 10 October 2017 and, by 11 October 2017, she and the father had agreed that she and the children would return to Australia. The mother accepted that she negotiated this settlement because she knew, by then, that she would be unsuccessful in opposing the application for an order that the children return to Australia.
The 11 October 2017 Terms of Settlement
The mother accepted that, as agreed between them, the father paid her $1500 into an account; she accepted that he had possibly paid $11,915.00 in rent in total for she and the children and that, at the time of her return with the children to Australia he paid her $1,600.00 per month by way of child support. She accepted that the current assessment was for him to pay $912.00 per month.
The father accepted that, despite the terms of the agreement requiring him to procure a three bed rental and pay rent on the property pending any contrary order made by a court in Australia, he did not comply with that term. He said that he had paid the mother more than the required child support amount and she had obtained the rental bond.
However, he also accepted the proposition that the Hague matter had been resolved on the basis that the mother would be provided with adequate financial support and housing in Australia and that he had not complied fully with those terms. He emphasised, though, that he paid more child-support than he had been assessed to pay and said that he was compassionate about the mother’s financial circumstances.
The father said that, whilst he had agreed to pay the mother’s rent, when she applied for child support he was told that the assessment raised against him was intended to cover rent and that the mother was in essence “double dipping” (albeit that these assertions are not contained in his affidavit): he said that he was not saying that the child support agency told him to stop paying the mother’s rent and agreed that it was something he had agreed to in the Hague proceedings.
The result for the mother, then, was that the father failed to pay the rent he had agreed to pay in compromising the Hague proceedings.
The father said that he paid for the house until there was a Child Support Assessment and thereafter paid additional child support but did not pay the mother’s rent in the manner agreed in the settlement which compromised the Hague Application; he also accepted that, despite the agreement requiring him to find rental accommodation for the mother and the children, he did not do that. He accepted that he did not pay the bond on the mother’s accommodation but said that she had retained the bond from their previous home; he said that, from November 2017, he paid child support as assessed, rather than the rent he had previously agreed to pay and that, whilst he was required by the terms of settlement to pay the rent, he did not pay this because he thought it had been covered by child-support.
When it was suggested to the father that he knew his actions had placed the mother in financial difficulty, he said that, in hindsight, he appreciated that; however he then accepted that, when he stopped paying the rent, he had known that the mother was unable to pay the same.
Whilst the father said that he had not paid the mother’s rent following her return with the children to Australia in October 2017 because he did not have the money to pay it, such situation would, it seems to me, have been known to him when he agreed the terms he did.
The father’s actions in this respect understandably caused the mother to question the degree of financial support she could expect to receive from the father.
Principles
The statutory framework does not deal differently or specifically with cases involving a proposed relocation of children. Therefore, the well-known statutory provisions provide that, having had regard to the Objects of Part VII of the Family Law Act1975 (Cth)(“the Act”), the principles which underpin those Objects[14] and, subject to s 61DA, s 65DAB[15] and Division 6 of Part VII of the Act, such parenting order as thought proper may be made.[16]
[14] S 60B of the Act.
[15] Parenting plans.
[16] S 65D of the Act.
In deciding whether to make a parenting order, I must regard X and Y’s best interests as the paramount consideration.[17] Such interests should not be viewed in the abstract or separate from the circumstances of X and Y’s parents.[18] Further, the statutory exhortation to regard X and Y’s best interests as the paramount consideration does not mean that the legitimate desires and interests of their parents are to be completely ignored – rather, where legitimate parental interests conflict with X and Y’s best interests, the former must give way.[19] That is, the determination of those orders which are in X and Y’s best interests may well mean that one parent’s “choice” is effectively outweighed in the balance; from a parent’s perspective, the outcome may not be optimal. Whilst any parent enjoys the right of freedom of mobility to live wherever the parent chooses to live, that right must defer to the expressed paramount consideration – the welfare of the children – if that were to be adversely affected by a movement of a parent.[20]
[17] S 60CA and s 65AA of the Act.
[18] See, for example: AMS v AIF (1999) 199 CLR 160 at 207-208.
[19] Ibid.
[20] See, for example: U v U (2002) 211 CLR 238 at [89] per Gummow and Callinan JJ with whom Gleeson CJ, McHugh and Hayne JJ agreed.
The matters to be considered in determining those parenting orders which are in X and Y’s best interests are those prescribed by s 60CC of the Act. However, it is unnecessary for each consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion.[21] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in X and Y’s best interests. I have considered all of the relevant considerations in arising at my conclusion about those orders which are in X and Y’s best interests.
X and Y: the benefit to them of having a meaningful relationship with both of their parents; the need to protect them from harm from being exposed or subjected to abuse, neglect or family violence; their views; their relationship with each parent and others; their maturity, sex, lifestyle and background[22]
[21] See: Banks & Banks (2015) FLC 93-637 (whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings).
[22] Ss 60CC (2)(a), (2)(b), (3)(a), (3)(b), and 3(g) of the Act.
The Act does not define the term “meaningful relationship”, nor does it prescribe criteria on which the Court should rely to assess how a child’s parents have, or should have, a meaningful involvement in that child’s life.
In McCall v Clark,[23] the Full Court concluded that the preferred interpretation of ‘benefit to a child of a meaningful relationship’ is the prospective approach. That is, the Court should consider and weigh the evidence at trial and determine how, if it is in a child’s best interests, orders can be framed to ensure that he or she has a meaningful relationship with both parents. Thus, the Court must consider and determine whether there is a benefit to each of the children in having a meaningful relationship with each of their parents, such finding not being dependent simply on a lack or absence of danger of physical or psychological harm arising from time and/or communication with each parent. As noted, I think it clear that the children will benefit from having a meaningful relationship with both parents – despite the unedifying events of 22 October 2017, I am not persuaded that there is any basis on which this benefit needs to give way to the requirement to protect the children from physical or psychological harm.[24]
[23] (2009) FLC 93-405
[24]Vigano v Desmond (2012) FLC 93-509, [128]-[129] per Bryant CJ, Strickland & Murphy JJ.
The child X
When Ms C interviewed seven year old X in April 2018, the child told her that she thought her parents were not really friends because they had had a couple of fights; she also said that they had argued about her mother going to Ireland. She said she had enjoyed her school in Ireland and spending time with members of her extended family and that she had spoken to her father when she was in Ireland; she said that, whilst her mother and maternal grandparents were in the room at the time, they were not looking at the phone. X also said that she had been a bit sad when her mother told her they were leaving Ireland to go back to Australia – however, she also said that, when her father asked her if she wanted to go back to Australia with him, “we all said yes”. She said she had wanted to return to Australia because she had been missing “all my friends.” When asked she also said that she had missed her father.
However, X also told Ms C that she missed Ireland the most because that was where the most of her family is. She said that her mother really missed her mother and sisters and wanted to go back to Ireland and that whilst she (her mother) liked Australia, she liked Ireland better. X told Ms C that she “kind of pretty much liked” spending weekends with her father and that she would be “fine” to spend more time with him.
The mother told Ms C in September 2019 that X had experienced increased anxiety when separating from her to transition to the father’s care since the previous Family Report interviews in May 2018. She described that X had “meltdowns” during which she cried and screamed and had to be forcibly removed from her car; she said the child’s behaviour became “out-of-control” and there was nothing that either she or the father could do to calm her down. She said that, in the day preceding her time with her father, X became more affectionate with her and repeatedly told her that she would miss her; she said X told her that she wanted to see her father, but did not want to have sleepovers with him. The mother told Ms C that she had spoken to X about missing her mother in an attempt to normalise X’s feelings about missing her.[25] She also told Ms C that she thought X would need ongoing support to prepare her for the lengthy absences from her, whether she was going to live with her father or spend extended holiday time with him.
[25] Family Report 20 September 2019 at [22].
During her cross-examination the mother accepted that she would have told the children that she wanted to move home to Ireland. She said she definitely would have told them that she missed her mother and family in Ireland. She said that X had asked her if she had wanted to go to Ireland after she was first interviewed by Ms C and that she definitely told her that she missed her mother: she said that she had not realised, until Ms C raised it with her, that it was perhaps inappropriate to tell X that; she said that she knew, after the most recent Family Report, that such comments were likely to have contributed to X’s anxiety, but did not appreciate that this was the case at the time she made the comments. I accept this aspect of her evidence.
When he spoke with Ms C in September 2019, the father denied that X had displayed significant anxiety when separating from her mother; he thought the mother attempted to engineer or manipulate X’s behaviour for her own benefit, explaining that the mother forcibly removed the child from her car, failed to help calm X down and video recorded changeovers. He said X was typically teary at changeovers but mostly calmed down quickly: however, he also corroborated the mother’s account that X often told him things like she did not want to go to him and hated him and just wanted to stay with mum.[26]
[26] Family Report 20 September 2019 at [32].
When cross-examined, the mother said that she had videoed changeovers on occasion because, as there was so much lying going on, her previous lawyers had asked her to video when X had separation anxiety; she said that she probably videoed two changeovers in total and that these occurred prior to June 2019. I accept her evidence in this respect.
The mother said that, at present, there have been no issues in X’s transition between her parents’ care. She agreed with the proposition that, from June 2019 onwards, there have been no major issues in X transitioning between them.
When Ms C spoke with eight year old X in September 2019, the child told her that she thought the purpose of speaking with her was to talk about “how my mum and dad split up” and maybe also to talk about her going to her father’s because she found that a bit hard. X told Ms C that she wanted to see her father, but did not want to stay overnight with him – even though she did not know the reason why she did not like sleeping there. She said she sometimes missed her mother, but did not have any worries about her when she was visiting her father and did not know if her mother had any worries about her visiting her father. She also explained that her mother had reassured her about the time she was to spend with her father by saying things like “it’s only for four days…. It’s not that long”.
X also told Ms C that she did not know what her parents could do differently to help her feel more comfortable staying overnight with her father. Ms C reported that X had told her that she found it “quite hard” when her father collected her at the start of their visits and that she sometimes cried because she missed her mother very much; she said that she could not remember times when she had done anything other than cry at the changeovers.[27] However she also said that, things had improved recently, that she did not really cry and it was fine if she went to spend time with her father.
[27] Family Report 20 September 2019 at [46].
Ms C recorded that X told her she had spoken with her mother, but not her father, about how she felt about living in Ireland or Australia. She also told Ms C that her mother started this conversation and that she had told her that she wanted to live in Ireland because her family was there. X said she missed seeing her family in Ireland and remembered them from when she saw them. She said she spoke with her paternal grandmother every Friday when she was with her father, but did not often talk to her other family in Ireland. She also said, though, that she would miss her father “really much” if she lived in Ireland and that she would “like it really much” if they all lived in Ireland: she thought this might happen because her father’s family live in Ireland. She said she would miss her father if she went back to Ireland and thought it would be “fine” if they stayed in Australia. The position, though, appears to me to have implicitly accepted that the “they” spoken of included her mother.
The child Y
When Ms C spoke with five-year-old Y in September 2019, he told her that he had “no ideas” about living in Ireland. He then volunteered “I really don’t want to go back to Ireland. I like Australia.” He said that his mother really wanted to go to Ireland to see their grandfather; he also said that his father really wanted to live in Ireland.[28]
[28] Family Report 20 September 2019 at [60].
During cross-examination, the mother acknowledged that the children love their father dearly and that he loves them dearly; she said they have a good relationship and hoped that, if she returned to live in Ireland and the children relocated to live there, he might possibly return to live there also.
The mother told Ms C in September 2019 that she believed that if the children relocated to live in Ireland, their father would almost certainly return to Ireland because of his close relationship with them and her view that he would easily find employment in his current field. She said she had shared her belief about this with X and that she had also told the children that she wanted to move home because she was not happy in Australia and had been missing her mother and her family. Ms C reported that the mother did not realise that such a comment may have contributed to X’s anxiety and that she had told her that this was never her intention.[29]
The father: the children’s relationship with him; his involvement in the children’s lives; his capacity to meet the children’s emotional, intellectual and other needs; his attitude to the children and to the responsibilities of parenthood[30]
[29] Family Report 20 September 2019 at [18].
[30] Ss 60CC(3)(b), (c), (ca), (f), (i) and (m) of the Family Law Act 1975 (Cth).
The father accepted during cross-examination that, in essence, what he was hoping to achieve with these proceedings was to retain the children in Australia and have the mother live here so that he was able to keep his employment.
In the event the children are not allowed to relocate to live in Ireland but remain in Australia after their mother returns there, I think it a definite possibility the children might be required to be cared for by friends of the father – at least initially; further, he would be assisted, at least initially, by the paternal grandmother who would travel from Ireland to care for the children until he could make other work arrangements.
The father accepted, when cross-examined, that his first alternative – that the children live with the mother until January 2023 – had been advanced because he understood and appreciated the children’s primary attachment to her and the disadvantages for them associated with disrupting that primary attachment.
The father told Ms C in September 2019 that he did not intend to travel with work over the long-term and estimated that he would not be required to travel to Sydney after March 2020. He said that, if the children lived primarily with him he would either arrange with his employer to work exclusively in South-East Queensland or drive an Uber. He said he was not in a financial position to return to Ireland and that there was no suitable employment for him there.[31] I am not necessarily persuaded that this is the case; during his cross-examination the father, in essence, accepted that he had not really made any effort to seek out employment opportunities in Ireland or even Europe; he conceded that it was possible there might be an avenue for him to work with his current employer in Europe, although he did not seem to me to think this was a significant possibility; he accepted that he had not made any inquiries or taken any steps really to inquire of his previous Irish employer or anyone in his industry to determine his employment possibilities in Ireland. He said – and I accept – that he had made no attempts to look into opportunities abroad, because his life was in Australia and he considered he had built a life here.
[31] Family Report 20 September 2019 at [28].
The father accepted that it was a possibility that he could investigate a job in Europe with the company he is currently employed by as it has offices all through Europe (albeit not in Ireland) – he said this was a possibility, but whether he got the same sort of job was another issue and, from his perspective, it would not make sense.
When cross-examined by Counsel for the Independent Children’s Lawyer about what he would do if the children were permitted to relocate to live in Ireland, the father said that he thought he would find it quite hard to find a job in Ireland; he said he wanted to be in the children’s lives and that it was very important for him to be in their lives but was not sure vis-à-vis a timeline about what would happen. He accepted the suggestion that he could return to Ireland immediately if he chose to do so.
On balance, I think it likely that the father would be able to obtain some sort of employment in Ireland if he chose to return to live there – even if it was simply driving an Uber as he said he would be prepared to do in South-East Queensland if the children lived with him and he was unable to find other employment compatible with meeting their care requirements. I also gained the very real impression that if the children relocated to live in Ireland, it is possible the father may very well return to live there also in order to be able to spend frequent time with them.
Overall capacity to meet the children’s needs
When cross-examined, the mother acknowledged that, if the children were not permitted to relocate to live with her in Ireland and moved to live primarily with their father he would be appropriate with them and would not try to undermine their relationships with her.
The mother: the children’s relationship with her; her involvement in the children’s lives; her capacity to meet the children’s emotional, intellectual and other needs; her attitude to the children and to the responsibilities of parenthood[32]
In the exercise of the discretion associated with determining those orders which are in the children’s best interests, I have had regard to the children’s respective levels or stages of cognitive development given their respective ages; the nature of their respective relationships with their parents and whether or not these relationship can be sustained and developed (given that the same is clearly of benefit to both of them) if they were now permitted to move to live with their mother in Ireland.
I consider that such are their respective ages and their relationships with their father that they will be able to continue to maintain and develop their relationships with him if they move with their mother to live in Ireland and he determines to remain living in Australia; whilst their relationships may well not develop in the same way as they are likely to if they were to continue to spend time with him as they have to date, I consider that they will still be able to have meaningful relationships with him (albeit of a different nature and expressed via different fora) in such a scenario.
I am not as confident that the children will be able to maintain their primary relationships with their mother if they remain living in Australia and she actions her intention to return to live in Ireland. I consider that the impacts on the children of such an event would, more likely than not, be particularly negative and detrimental to their long-term development; I consider it much more likely than not that being separated from their mother for significant periods of time will likely impact deleteriously upon them.
I arrive at my conclusions about the likely impact on the children of being separated from their mother given Ms C’s comments, in the September 2019 Family Report, that transitioning into their father’s care would result in the children’s lives being significantly disrupted; and that she thought they would most likely experience distress as a result of being separated from their mother for up to 12 months; and that she thought they would likely grieve the loss of their mother and probably feel responsible for her absence. I also note that Ms C also thought their sense of self and emotional stability likely to be compromised in such a scenario. I also accept Ms C’s assessment that X in particular may find her mother’s relocation without her especially difficult, given what she described as her “vulnerabilities” and the nature of her relationship with the mother.[51]
[51] Family Report 20 September 2019 at [71].
I accept that moving to live in Ireland with their mother will be a substantial change for the children: I accept it obviously will require them to adapt to living in a new environment, attend a new school, participate in a new education system and, unless he relocates to live in Ireland again, see their father less frequently than they have to date. However, I am also well satisfied that the mother – the children’s accepted historical primary care provider – will be able to support them in adjusting to the changes that a move to live with her in Ireland will necessitate the children managing; I also consider that it is much more likely than not that she will support the children in maintaining a meaningful relationship with their father irrespective of whether he determines to continue to live in Australia or to return to live in Ireland and, because of the importance to the children of their relationships with their father, do all that she can to preserve, facilitate and promote the same. The relationship between the children and the father will inevitably alter, but not to the extent that the relationship will no longer be meaningful or beneficial to them.
I have also taken into account Ms C’s evidence in the September 2019 Family Report that she thought it likely that the parents’ improved co-parenting relationship and what she described as their “transparent support” for the children’s relationship with each of them had helped X to become more confident about transitioning into her father’s care.[52] Given this, I think it more likely than not that, with the mother’s “transparent support” for the children’s ongoing relationships with their father, they will be able to maintain the same even if they move to live in Ireland and he remains living in Australia.
[52] Family Report 20 September 2019 at [72].
I am persuaded – despite the father’s reservations – that the mother will do all she can to preserve, facilitate and promote the children’s relationships with their father and that she will continue to recognise them as important as they are for the children.
I consider that there are advantages associated with the mother’s proposal: the children will be much more likely than not to have the benefit of their primary parent parenting them in a happier manner because she will be living much closer to family support; they will have the opportunity to interact with members of their extended maternal and paternal families much more frequently and regularly if they move to live with their mother in Ireland than if they remain living in Australia but move to live with their father.
I accept – as does the father – that the mother has wanted to return to live in Ireland since approximately 18 months after they moved to live in Australia; this is not a case where the mother has presented herself as being settled and happy only to assert unhappiness following the break-down of their marriage: rather, the father accepts that the issue of returning to live in Ireland with the children a family was an issue about which they argued frequently. Given this and the evidence of Ms D (which I have accepted), I have no hesitation at all in accepting that the mother sees only a more positive future for herself and the children if they are able to relocate to live with her in Ireland when she returns to her home there.
Counsel for the father submitted that, as Ms C continued to emphasize during her cross-examination, this is not a case where the mother asserts that that her unhappiness at remaining in Australia is so great that it has negatively impacted on her parenting capacity to the detriment of the children; however, as the father did, I accept that the mother is genuine in her desire to return home to Ireland, that she spoke of that desire well before the parental separation and that she has maintained it steadfastly since then; given that she has been resolute in her wish to return home for such a time, I accept Ms D’ assessment that, in essence, the mother has finally reached the point where she simply considers that she can no longer remain living in Australia, separated from her family and the support she feels that she will receive from them. I accept that the mother is an emotional and emotionally vulnerable person who has struggled to settle in Australia – I also consider that the father was honest when he accepted that this was the case. Whilst I accept that there is no evidence before me to the effect that the mother’s unhappiness will negatively impair her future parenting capacity, it is clear that the mother is not required to establish the existence of such a negative impact on her parenting capacity before a relocation can be ordered.[53]
[53] See, for example: H & H [2005] FamCA 805 at [41].
For the reasons outlined above, I consider that the children’s best interests will be met by permitting their relocation to Ireland so that they can accompany their primary carer when she returns home to Ireland.
Given that both parents accepted Ms C’s suggestion that the current time between the children and their father be extended to conclude on Friday after school, orders for the children’s time with their father prior to their relocation will be made to reflect this position.
Given that the evidence suggests that, save for the long summer school holidays (which appear to encompass all of July and August in each year), school children in Ireland have a one week break at the end of October, a two week break over the Christmas period and a further one week break in late February, the period during which the father and children can practically spend together in person has to occur at Christmas and in July/August. The orders to be made will ensure the children have the opportunity to spend time with their father in Australia during the longer period each year and during the Christmas break every second year.
Given the mother’s evidence was to the effect that she might take a few weeks or months before she could leave Australia with the children if they were permitted to relocate, the orders will require her to give the father no less than 14 days’ notice of her intended date of departure.
Final comments about the terms of the orders to be made
The orders to be made are intended to provide the children with the maximum time with their father that can practicably be achieved given the reality of cost and distance if he remains living in Australia after they relocate to live in Ireland. They are also intended to provide for a continuation of the existing parenting regime if the father returns to live in Ireland after the children relocate to live there. I have not been persuaded that it is now in the children’s best interests for them to live in an equal-time arrangement with their parents if the father returns to live in Ireland because I do not have any evidence about the practical arrangements that will exist in such a scenario and the father’s own proposal (if the children and mother remained living in Australia) was that the children continue to spend time with him as they currently are until January 2023.
To the extent that any other aspects of the parenting orders to be made are not the subject of particular discussion in these Reasons, I have concluded that the same are in the children’s best interests because such orders will, for example: enable both parents to be kept informed about them and their progress; afford the children the opportunity to maintain communication with each parent in the time between face to face interactions; and ensure, as far as possible, that the children are protected from the harm which may be caused to them as a consequence of exposure to derogatory comments about each of their parents.
To the extent that the orders made do not include orders sought by either parent or the Independent Children’s Lawyer, that is because I have not been persuaded that the same are in the children’s best interests.
For the reasons outlined above, I consider that the orders set out at the commencement of these Reasons are the orders which are in the children’s best interests and proper.
I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 13 January 2020.
Associate:
Date: 13 January 2020
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