Renaldo & Decora
[2021] FedCFamC1F 23
•7 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Renaldo & Decora [2021] FedCFamC1F 23
File number(s): BRC 9004 of 2020 Judgment of: CAREW J Date of judgment: 7 September 2021 Catchwords: FAMILY LAW – CHILDREN – International Relocation – Where the parents are unable to agree about whether the children live in City D, Country E or in Region G, Australia – Where the parents agree that the best interests of the children will be served by the parents having equal shared parental responsibility about major long term issues and for the children to continue to live in a week about arrangement – Where the children have lacked stability and experienced significant changes in their lives to date – Where the current arrangements enable the children to have a meaningful relationship with both parents and a continuation of that arrangement in Australia would best meet their needs. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: AMS v AIF (1999) 199 CLR 160
Banks & Banks (2015) FLC 93-637
Babcock & Waddell [2019] FamCAFC 129
Baghti & Baghtiand Ors [2015] FamCAFC 71
Briginshaw v Briginshaw (1938) 60 CLR 336
CDJ v VAJ (1998) 197 CLR 172
Johnson & Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
Zahawi & Rayne [2016] FamCAFC 90
Division: Division 1 First Instance Number of paragraphs: 61 Date of hearing: 12–13 August 2021 Place: Brisbane Counsel for the Applicant: Mr Kennedy Solicitor for the Applicant: Clarity Family Law Solutions Counsel for the Respondent: Self-Represented Counsel for the Independent Children's Lawyer: Mr Cameron Solicitor for the Independent Children's Lawyer: Smithson Lawyers ORDERS
BRC 9004 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RENALDO
Applicant
AND: MR DECORA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
7 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
Parental Responsibility
2.Ms Renaldo (“the mother”) and Mr Decora (“the father”) have equal shared parental responsibility in relation to ‘major long term issues’ (as that term is defined by s 4(1) of the Family Law Act 1975 (Cth)) for the children X born … 2011 and Y born … 2012 (“the children”).
3.In the exercise of their parental responsibility in relation to major long term issues the parents shall:
(a)consult each other in relation to the decision to be made about the issue; and
(b)make a genuine effort to come to a joint decision about that issue.
Time with Parents
In the event the father is residing in Region G, Queensland, Australia
4.The children live with the mother when they are not living with the father.
5.The children live with the father at all such times as may be agreed and failing agreement as follows:
(a)during school term, each alternate week from after school on the Friday until before school the following Friday;
(b)half of all school holidays;
(c)the children’s birthdays as arranged between the parties;
(d)Father’s Day from the eve before until 6pm Sunday;
(e)Christmas Eve from 5pm until 5pm Christmas Day in even numbered years; and
(f)Easter from Good Friday 9am until Easter Monday 5pm in odd numbered years.
In the event the father is residing in City D, Country E
6.The children live with the mother.
7.The children spend time with the father at all such times as may be agreed and failing agreement as follows:
(a)for one half of all school holidays as agreed and failing agreement for the first half of the school holidays in even numbered years and the second half in odd numbered years;
(b)if the father is in Australia for Father’s Day, then for the Father’s Day weekend, with the father to provide no less than 30 days’ notice to the mother in writing if he will be in Australia;
(c)if the father is in Australia on the children’s birthday for such time as agreed and failing agreement for half a day each with the father to provide no less than 30 days’ notice to the mother in writing if he will be in Australia; and
(d)if the father is in Australia at other times for no less than 30 days, for 7 day intervals (week about) from the date of his arrival, with the father to provide no less than 30 days’ notice to the mother in writing if he will be in Australia.
Overseas travel
8.Unless agreed in writing to the contrary, until the child Y turns 14 years of age, the father’s time with the children shall be spent in Australia and the father shall provide to the mother (prior to the commencement of such time) the address at which the children will be living with the father during such times.
9.The father and the mother, their servants and/or agents are restrained from removing or attempting to remove the children, X born in 2011 and Y born in 2012, from the Commonwealth of Australia without the authenticated written consent from the other parent.
10.The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to this order, including all things necessary to include and retain the names of the children, X born in 2011 and Y born in 2012, on the family law watch list in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the children’s names on the family law watch list until the child Y turns 14.
11.From and including the day the child Y turns 14 the father shall be at liberty to spend the school holidays with the children in City D, Country E, and prior to departure from Australia the father shall provide to the mother copies of the return flight tickets for the children and the address and contact details for the place at which the children will be spending the school holidays with him.
12.The mother shall hold the children’s passports unless travelling with the father and upon their return to the mother the father shall return the passports to the mother.
Communication with children
13.The father and mother shall be at liberty to FaceTime/phone the children each day from 5.30pm (Eastern Standard Time) for reasonable durations while the children are in the care of the other parent.
Changeovers
14.When changeovers cannot occur at the children’s school, changeover is to be effected by the parents (or such other person/s as agreed) at an agreed venue.
IT IS FURTHER ORDERED BY CONSENT:
15.The mother and the father shall:
(a)keep the other parent informed at all times of their residential address, email address and mobile telephone number, and provide the other parent with confirmation of any change to those details within forty-eight (48) hours of the said change occurring;
(b)keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat either of the children and by virtue of this Order any such practitioner is authorised to provide either parent with information that they are lawfully able to provide about either of the children; and
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by either of the children.
16.This Order authorises the schools attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children, at the requesting parent’s cost.
Specific Issues
17.Each parent shall:
(a)respect the privacy of the other parent and not question either of the children about the personal life of the other parent;
(b)speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of either 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 either of the children.
18.The parents are to communicate by telephone, email, text or a parenting app about all children’s matters.
IT IS FURTHER ORDERED:
19.Any outstanding application is otherwise dismissed.
20.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
NOTATION:
A. The parents agree that the children will not be left unsupervised by either parent with persons who are under the influence of illicit drugs or alcohol.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Renaldo & Decora has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
Ms Renaldo (“the mother”) and Mr Decora (“the father”) are the parents of two boys, X aged 10 and Y aged 9. The parents are unable to agree about whether the children live in City D, Country E or in Region G in Australia.
The parents nevertheless agree that despite competing allegations about past conduct, the best interests of the children will be served by the parents having equal shared parental responsibility about major long term issues and for the children to continue to live in a week about arrangement, if the parents live in close proximity.
The dispute between the parents has arisen as a result of the COVID-19 pandemic which prevented the mother from returning to City D with the children in March 2020, after she had travelled to Australia for what was intended to be a two week holiday.
For the reasons which follow, the children will continue to live with the mother in Region G, Australia and if the father elects to remain in Australia the children will live in a week about arrangement as they have been doing since at least February 2021. If the father returns to live in City D, the children will spend time with the father during school holidays, initially in Australia but, from the time Y turns 14, in City D.
PROPOSALS BY EACH PARTY
The mother’s primary position is for the children to remain in Australia and continue to live in a week about arrangement. If the father returns to live in City D, the mother proposes that the children live with her in Australia and spend half school holidays with the father in Australia until the youngest child turns 14. The mother did not press certain restrictions in her proposed orders relating to the father’s accommodation or remaining within 100 kilometres of the mother’s residence while spending time with the children.
The father’s primary position is for the children and the mother to return to City D and for the children to continue to live in a week about arrangement. The father says he will not leave Australia until the mother secures a visa that will permit her to live permanently in City D but pending that occurring he proposes that he and the children and mother live in Town B, New South Wales. The father says he will not remain in Australia if the children cannot return with him to City D and in those circumstances proposes that the children spend half school holidays with him in City D.
The Independent Children’s Lawyer (“ICL”) recommends that the children remain in Australia with the mother and, if the father remains, that they live in a week about arrangement, but if he returns to City D then half holidays in Australia until Y turns 14 and thereafter in City D if the father so elects.
ISSUES
At the time this matter was listed for trial, the parties did not raise any particular factual issues in dispute. It seems it was accepted that each parent was a capable and caring parent with whom the children had a close attachment. The issues identified by the parties as requiring determination were limited to the following:
(1)Should the children live with the mother in Australia or the father in City D?
(2)What time should the children spend with each parent?
As already noted, this is a case where each parent is seeking an equal time order, if the parents continue to live in close proximity, and each parent agrees that the other parent should be involved in making decisions about major long terms issues for the children.
Unfortunately, the affidavit material relied upon by each parent raises a number of historical allegations, about which neither parent seeks a finding, but which no doubt has antagonised the other parent, unnecessarily. It seems the mother’s main reason for raising past conduct of the father is to demonstrate the difficulty she contends she will experience in spending equal time with the children, if the children return to City D, particularly in the absence of evidence that the Australian orders can be registered and enforced in City D.
The mother says she will return to live in City D if the father is granted liberty to take the children there. However, it remains uncertain whether the mother will be able to return to and live permanently in City D during the COVID-19 pandemic. This is because, currently, all Australian citizens require the permission of the Australian government to leave the country and permission will only be granted in specified circumstances e.g. where there are compelling reasons. Further, while the mother lived in City D between 2017 and 2020 she did so under a visa which required her to leave City D every two months. It remains uncertain whether the mother would be able to do that in the current circumstances.
The father initially said he would remain in Australia if the children remain here but then said he would return to City D without the children. The father broke down during his submissions. He clearly loves his boys and it would no doubt be a very difficult decision for him to leave them behind. If the children are able to live in City D with him, the father contends that he would not leave Australia until the mother is able to leave Australia and obtain a visa which would enable her to remain permanently in City D. The father seemed uncertain about when he would leave Australia, contending during his oral evidence that he would not leave with the children until it was “safe” to do so. The reference to safety related to the COVID-19 pandemic and how it was being managed in City D.
Contrary to suggestions made by or on behalf of the parties, this Court is required to determine disputes upon the evidence. If there is an absence of evidence, it is not an option to rely on media reports, google searches or to take “judicial notice” of facts that are contentious.
Each party raised matters concerning child support but did not press those matters.
Before turning to a consideration of the issues, it will be helpful to set out some background and the applicable legal principles.
BACKGROUND
The parents commenced a relationship in City D, Country E in 2009 and married in 2011. They relocated to Australia in 2011 where their two children were born. X was born in 2011 and Y was born in 2012.
The parties disagree about when they separated. The mother says it was in 2012 and the father says it was in 2015. In any event, the parents and the children remained living predominantly in Australia until March 2017 when the parties and the children relocated to City D. By agreement, at least initially, the children lived with the father for five days and with the mother for two days each week. The mother contends that her efforts to have the children live with her for longer periods were thwarted by the father.
The mother returned to Australia with the children in March 2020 for a two week holiday. When the COVID-19 pandemic was declared, the mother was unable to return to City D with the children. Accordingly, she and the children have remained in Australia. The father travelled to Australia in May 2020 and has also remained here since that time. The parents and children now live in Region G (where the mother moved in June 2020 and the father in about February 2021) and the children live in a week about arrangement moving between their parent’s respective households.
The mother was born in Australia in 1989 and is an Australian citizen. The mother’s mother is from Country E. The mother has two sisters, Ms W and Ms Z. The mother’s father lives in Town B, New South Wales and her mother lives in Region G as does her sister, Ms W (although the mother is currently estranged from Ms W). The mother moved to City D in her late teens. Her sister, Ms Z, continues to live in City D. The mother operates an online business with her main clientele in Australia.
The mother lives with her partner, Mr P. She met Mr P in City D and they lived together for a short time in City D in 2019. Mr P moved to Country V in early 2020 but, as an Australian citizen, returned to Australia on the advice of the Australian government in or about March 2020. He and the mother recommenced their relationship in about June 2020 and moved in together shortly thereafter. Mr P is a part-time educator and is employed in another business four days per week.
The father was born in City D in 1984. The father is a Country W citizen but has had an Australian permanent residency visa since 2013 which enables him to live and work in Australia and he has done so for extended periods. The father’s extended family live in City D.
The father commenced a relationship with Ms Q in June 2017 and she and the father lived together until February 2020 when Ms Q returned to Country T for what was intended to be a temporary visit. Ms Q currently lives in Country T but intends to return to City D if the father returns to live there. The father has a financial interest in a business in City D and also in a food outlet in adjoining premises. He is in the process of building in City D on land gifted to him by his father and with financial assistance from the mother’s father. The father’s businesses are operated by his business partner in his absence but the father does not receive any income therefrom. The father currently works on a casual basis in Region G and earns $58 per hour.
The children attend R School in Region G where X is performing well and Y is performing satisfactorily. Both boys excel at sport.
APPLICABLE LEGAL PRINCIPLES
A parenting case involving relocation is just another parenting case.[1] There are no special tests that apply. Neither parent has to establish a compelling reason for wishing to live where they want to live.[2] Nor is the enquiry one that is directed to whether or not a parent should be ‘permitted’ to relocate.[3] The best interests of the children remain the paramount though not the sole consideration.[4] Where the legitimate interests of an adult conflict with the best interests of children, the former must give way.[5]
[1] Zahawi & Rayne [2016] FamCAFC 90 at [48].
[2] AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”).
[3] Babcock & Waddell [2019] FamCAFC 129 at [141]–[142] (Aldridge J), quoting AMS v AIF (1999) 199 CLR 160 at 223, [188] (Kirby J) and at 231–232, [217]–[218] (Hayne J).
[4] AMS v AIF (n 2) at 225, [193].
[5] Ibid.
Every parenting decision requires the application of the relevant parts of Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[6]
[6] Family Law Act 1975 (Cth), s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in ss 60B(1) and (2) and those sections make it clear that the court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child and any other fact or circumstance considered relevant (s 60CC).
In considering the primary considerations, the court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
‘Family violence’ is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
The court is not required to make findings of fact on every factual dispute raised by the parties.[7] The paramount issue for the court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the court “cannot be diverted by the supposed need to arrive at a definitive conclusion” [8] on each and every factual dispute.[9]
[7] Baghti & Baghtiand Ors [2015] FamCAFC 71.
[8] M v M (n 8) at 76.
[9] Ibid.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the court (s 61C).
Section 61DA provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long term issues to be made jointly after consultation. Major long term issues mean issues about the care, welfare and development of the child of a long term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
All “[parenting applications] necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order”.[10]
[10] CDJ v VAJ (1998) 197 CLR 172 at 218.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.[11]
[11] Banks & Banks (2015) FLC 93-637.
I turn now to consider the issues identified as requiring determination.
SHOULD THE CHILDREN LIVE WITH THE MOTHER IN AUSTRALIA OR THE FATHER IN CITY D?
History of significant change for the children
The children have experienced significant change in their lives to date. They were both born in Australia (in 2011 and 2012 respectively) and lived predominantly in Australia until the parents relocated with the children to City D in 2017.
While living in Australia prior to 2017, they experienced considerable instability in both where they lived and the time spent with each parent, on occasion going for months at a time not seeing the father who initially worked as a fly in/fly out worker and then relocated to Western Australia for three months. There were periods when the children were separated from each other when the parents were not living together and also periods when the mother travelled overseas without one or both children. After relocating to City D in 2017, the children lived in a number of places and spent most of their time living with the father although spending frequent time with the mother.
Upon arriving in Australia in March 2020, the mother and children initially lived at the maternal grandfather’s home in Town B, New South Wales, until the mother had a falling out with him. The children did not see the father from March until May 2020. They then saw the father for some weeks before the mother unilaterally removed them to Region G and enrolled them at R School. The very criticisms the mother makes about the father e.g. making decisions about the children without consultation or against her wishes, the mother herself has engaged in. The mother and children initially lived with the maternal grandmother in Region G but shortly thereafter commenced living with Mr P in a rented unit. The children’s time with the father was limited to alternate weekends as he travelled from Sydney. After the father moved to Region G in about February 2021, the children commenced spending week about with the parents and that arrangement continues.
In their lifetime, the children have attended schools in New South Wales, including Town B and Town L, and three different schools in City D. Since June 2020, they have attended R School in Region G.
The children have also experienced living with numerous people both in Australia and in City D. The mother lived with Mr P for a short period in 2019 before he relocated to Country V. As already noted the mother has resumed her relationship with Mr P and she and the children have lived with him since about June 2020. The father lived with Ms Q on and off from about late 2017 until she moved from Country T to City D in September 2018. Ms Q returned to Country T for what was supposed to be a short visit in February 2020. The children have not seen her since. If the father is able to relocate with the children to City D, Ms Q intends returning to City D also, when she is able.
Uncertainties surrounding relocation to City D
There are many unknowns if an order is made enabling the father to return to City D with them. Most significantly is when they would leave (given the father says he will not leave until the mother can also leave and remain permanently in City D). The evidence, such as it is, would not enable me to find that the mother would be granted permission to leave Australia within any particular time. The evidence, such as it is, would not enable me to find that the mother would be able to obtain a visa that would permit her to live permanently in City D given that when she last lived in City D, she had to leave every two months to renew her visa. International borders currently remain closed.
Once in City D, the father says the children would return to the C School which they attended prior to the departure in March 2020 and that he would pay the fees. However, when the children last attended that school, the school fees were paid by the mother because the father could not afford to pay them. The mother contends that she would have trouble paying the school fees given that her income in City D would be uncertain. The mother operates an online business, and although it might be thought such a business would be easily transported, she makes a legitimate point that the cost of freight between City D and Australia (where most of her clientele reside) would likely detrimentally impact the viability of her business. The mother already experienced this when she relocated to City D in 2017. In order to obtain other employment in City D, the mother contends that she would have to be sponsored by an employer.
The mother and Mr P resumed their relationship in June 2020 and he is now a significant person in the children’s lives. According to Ms S, the family report writer, the children have a comfortable relationship with Mr P. Mr P would be prepared to return to City D with the mother if he were able to, but that is also an uncertain. If the mother is unable to earn sufficient income to support herself and the boys, Mr P contends that he would have to remain in Australia to work and send money to the mother.
The father spoke positively about his business interests and business opportunities in City D but did not produce any evidence as to the viability of the businesses, in circumstances where he contends that he has not received any income from them since he came to Australia in May 2020.
The mother contends that when she and the children last lived in City D, the father made it difficult for her to increase her time with the children. It was only in the last year that the parents were able to agree to increase the mother’s time with the children from two days per week to three days. In the absence of evidence that the Australian orders could be registered and enforced in Country E, the mother contends that there is a real risk the father would not comply with the week about arrangement upon their return to City D.
Children’s wishes
The boys have said they want to return to City D and they described an idyllic lifestyle to the family report writer, Ms S. The boys are still very young and at the time they were interviewed by Ms S, had just been in the care of the father. Ms S did not consider the boys were of sufficient maturity to understand the consequences of their wishes. I accept her opinion.
Conclusion
I can certainly understand the father’s frustration, in that, what was intended and agreed to be a two week holiday in March 2020 has resulted in upheaval for all concerned. However, the COVID-19 pandemic intervened and the mother was unable to return to City D as international borders closed. The situation was a matter beyond anyone’s control.
Fortunately, the children have a close and loving relationship with both parents and although each parent has been critical of the other in relation to their past conduct, they both agree that the best outcome for the children would be for them to continue to live in a week about arrangement. Obviously, that would not be practicable if the parents do not live in close proximity.
The parents also agree that it would be in the children’s best interests for them to equally share parental responsibility. Again, despite each parent’s criticisms of the other, they have demonstrated a commitment to making joint parenting decisions for the children in the future and, in my view, that will be beneficial for the children.
If an order is made for the children’s relocation to City D, the mother will return to City D but, such an order at this time, would result in considerable uncertainty for the children. It is impossible to predict when the children would be able to leave Australia. The father submits that he will not leave Australia with the children until the mother is able to return to City D and remain there. The mother first needs to apply for permission to leave Australia and then she will need to obtain a visa that would permit her to live permanently in City D. While the mother was able to do so in 2017, the COVID-19 pandemic creates considerable uncertainty about the availability of such a visa.
In the meantime, while awaiting permission to leave Australia, and for a visa to issue to the mother, the father proposes that the children live in Town B where he proposes he and the children would live with the maternal grandfather. That would involve another change of school for the children. It is unclear whether the mother would also move to Town B pending relocation to City D. The mother and her father are estranged so if she did move to Town B, the mother would have to obtain other accommodation. An interim move to Town B is not something I consider would be beneficial to the children.
Ms S considers that stability is most important at this time for the children, particularly given the history of significant changes in their lives to date. I accept that stability is a significant factor. The ICL recommends against relocation to City D.
The current arrangements enable the children to have a meaningful relationship with both parents and a continuation of that arrangement in Australia would best meet their needs in my view. In circumstances where the father can live and work in Australia (as he has done previously and is currently doing), this may be one of those cases where a parent’s legitimate desires need to give way to what is best for the children. While I do not propose to restrain the father from leaving Australia, it is in his hands to stay for the sake of his boys. It would be tragic for the boys if the father leaves, but the uncertainty for them in making an order as sought by the father is not in their best interests.
WHAT TIME SHOULD THE CHILDREN SPEND WITH EACH PARENT?
If both parties live in proximity to each other, it is agreed that the children should continue to live in an equal time arrangement. If the father returns to City D without the children, the parties agree that the children should spend half school holidays with him. Given that Country E is not a signatory to the Convention on the Aspects of International Child Abduction[12] I consider the father’s time with the children should be spent in Australia until the youngest child turns 14, as proposed by the mother and the ICL. While the mother did not explain the reason for the lifting of the restriction on overseas travel at that time, it seems reasonable to ensure that the children have a guarantee of stability for at least the next five years.
[12] Opened for signature 25 October 1980, 1343 UNTS 89 (entered into force 1 December 1983).
MISCELLANEOUS
The parties agree that changeovers should occur at school if possible but if not, then it is to be at a place agreed to by them. In those circumstances, each parent proposes that there be some limitation on who can effect changeover. The father did not want the maternal grandmother or the mother’s sister to attend. The mother did not want her father to attend. Accordingly, I propose to require the parents to agree on a person to effect changeover before a parent is excused from personally undertaking changeover.
Finally, the parents agree on a number of matters which will be incorporated in the order or as a notation.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 7 September 2021
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