Rufford and Jergens
[2014] FamCA 141
FAMILY COURT OF AUSTRALIA
| RUFFORD & JERGENS | [2014] FamCA 141 |
| FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – BEST INTERESTS OF CHILDREN – Where the parties have three children who are aged 13, 10, 8 – Where the children live with the mother and spend limited time with the father due to his incarceration –– Where the mother seeks to relocate with the children to the Netherlands – Where the father opposes the mother’s application for relocation – Where the father sought orders for shared parental responsibility, that the children live with the mother and spend certain time with him pre and post his incarceration – Where the presumption of equal shared parental responsibility is rebutted – Consideration of the best interests of the children pursuant to section 60CC of the Family Law Act 1975 (Cth) – Where there was unchallenged evidence that the mother and children live in very strained financial circumstances dependent entirely on government benefits and that two of the children have special needs – Where the mother is permitted to relocate to the Netherlands with the children. |
| Family Law Act 1975 (Cth) ss 60B; 60CC; 61DA; 65DAA |
| MRR v GR (2010) 263 ALR 368 Taylor v Barker (2007) 37 FamLR 461 |
| APPLICANT: | Mr Rufford |
| RESPONDENT: | Ms Jergens |
| INDEPENDENT CHILDREN’S LAWYER: | Mark Whelan |
| FILE NUMBER: | SYC | 6045 | of | 2007 |
| DATE DELIVERED: | 7 March 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 24 May 2013 12 December 2013 |
| WRITTEN SUBMISSIONS: | 5 November 2013 25 November 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Rebehy |
| SOLICITOR FOR THE APPLICANT: | Hansen Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Cook |
| SOLICITOR FOR THE RESPONDENT: | James Maspero Solicitor |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Leis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mark Whelan Lawyer |
Orders
All existing orders in relation to the children:
K born … 2000
R born … 2003
B born … 2005
(“the children”) are discharged.
2.1 The mother has sole parental responsibility for the children.
2.2The mother will advise the father at least 28 days in advance of any major long-term and non-urgent decision in relation to any of the children and take into account the views of the father in respect of that issue.
The children will live with the mother.
The mother is permitted to relocate the children’s permanent place of residence from Sydney in the Commonwealth of Australia to the Netherlands.
Both parties will do all things and execute all documents required to:
5.1 procure passports for each child
5.2 remove the name of each child from the Airport Watch List
5.3obtain such immigration status as may be necessary to enable each child to enter the Netherlands and live permanently in that country.
Until the children move to the Netherlands, they will spend time with the father at the gaol where he is an inmate from time to time on one occasion per month under the supervision of staff of “Welfare Organisation C” or the paternal aunt Ms Rufford, if staff of “Welfare Organisation C” are unable to facilitate any particular visit.
Before the children relocate to the Netherlands, they will spend one weekend with the paternal grandparents Mr Rufford Snr and Ms Rufford Snr at their home in Queensland or such other place as they may nominate to the mother in writing, on the following conditions:
7.1the father will bear all costs of the children’s travel for the purposes of implementation of this order, and
7.2this visit will take place within four weeks of the date of these orders or such longer period as may be agreed in writing by the mother and the paternal grandparents.
After the children relocate to The Netherlands, and commencing in 2015, the mother will cause the return of the children to Australia for a period of four weeks on the following conditions:
8.1the mother will provide to the father in writing a minimum of one calendar month’s notice of the dates when the children will be in Australia, and
8.2the mother will pay the whole of the costs of the children’s airfares in 2014 and, thereafter, each of the parties will pay one half of the cost of the children’s airfares.
During the children’s annual visits to Australia they will spend time with the father and the paternal grandparents as follows:
9.1 during the father’s incarceration, for the maximum time permitted by the governor for the time being of the prison where the father is an inmate and under the supervision of staff of “Welfare Organisation C” or the paternal aunt Ms Rufford, if staff of “Welfare Organisation C” are unavailable to facilitate any particular visit.
9.2 during the father’s incarceration, for a period of seven days with the paternal grandparents at a place and on dates to be nominated by them in writing at least one calendar month in advance of the commencement of each of the children’s visits to Australia and at the expense of the father
9.3 after the father’s release from prison, for the duration of each of their annual visits to Australia provided that the father first fulfils the following conditions:
9.3.1he will undertake a psychiatric assessment in relation to his capacity to care for the children on an unsupervised basis and provide a report to the mother
9.3.2he will provide evidence to the mother that he has engaged with a drug and alcohol counsellor
9.3.3he will provide to the mother clear results of six months of chain-of-custody drug tests
9.3.4in the event that the father fails to fulfil any one of these conditions, the children’s time with him will be supervised by any one of the paternal grandparents or the paternal aunt or any other person agreed in writing by the parties from time to time.
10.1 After the children’s relocation to the Netherlands, they will communicate with the father as follows:
10.1.1 by Skype at least once per week
10.1.2 by telephone at least once per week
10.1.3by email, letter or social media as frequently as they wish from time to time.
10.2The mother will permit the children to receive telephone calls, emails, letters and gifts from the father as frequently as he may wish to initiate such communication from time to time.
The mother will provide to the father the following:
11.1 the names and addresses of the children’s schools from time to time
11.2the names and addresses of the children’s treating health professionals from time to time
11.3 photographs of the children twice per year
11.4 copies of school reports together with a translation thereof
11.5 the address and telephone numbers of the children from time to time
11.6an authority to enable him to consult with, and obtain information from, the children’s teachers and treating health professionals from time to time.
Each of the parties will promptly notify the other of any major accident or illness suffered by any of the children while in the care of that party.
That pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all material produced on subpoena be returned.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rufford & Jergens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6045 of 2007
| Mr Rufford |
Applicant
And
| Ms Jergens |
Respondent
REASONS FOR JUDGMENT
the proceedings
Mr Rufford, (“the father”) and Ms Jergens, (“the mother”) are the parents of three children:
K born in 2000 (13)
R born in 2003 (10)
B born in 2005 (8)
(“the children” or “the boys”).
These proceedings concern parenting orders. The mother seeks to relocate with the children to the Netherlands. The father, who is currently serving a term of imprisonment, opposed the mother’s application to relocate with the children.
The father sought orders to the effect that the parties have equal shared parental responsibility and that the children live with the mother. They would spend time with him, until he is released from prison, for a minimum period of up to two hours per month as facilitated by an organisation known as “Welfare Organisation C”. If the father is granted weekend leave, the children would spend time with him once per month from 10:00am until 3:00pm on Saturday and Sunday. After the father’s release, the children would spend time with him each alternate weekend from Friday afternoon until Monday morning and for half of all school holidays. The father’s application also included proposals for a number of specific issues orders.
In the event that the mother’s application to relocate with the children is successful, the father sought orders that she return them to Australia for a period of not less than four weeks per year. All costs of the children’s travel would be borne solely by the mother in 2014 and, subsequently, the parties would bear this expense equally. The father sought orders to the effect that the mother lodge a sum of $8,000 in a trust account to be operated by the Independent Children’s Lawyer (“the ICL”) to ensure her compliance with such orders. The ICL proffered no consent to this proposal and the father made no suggestion as to how the costs so incurred would be met or by which party.
The mother’s primary proposal was that the children live with her in the Netherlands, which is the country of her birth. The maternal grandparents and other family members live in Town D in the Netherlands. The mother and children would stay with the maternal grandparents initially, until she is able to establish an independent home.
The mother proposed that she have sole parental responsibility, provided that she gives at least 28 days’ notice to the father of any “non-urgent, significant long term decision about the children or any of them”. Until the children move to the Netherlands, they would continue to spend time with the father at the prison as facilitated by “Welfare Organisation C” or under the supervision of a paternal aunt, Ms Rufford. They would also spend at least one weekend at the home of the paternal grandparents in Queensland, prior to their departure from Australia.
The mother proposed that, after the children’s relocation to the Netherlands, they spend time with the father on one occasion of three weeks per year in Australia. Initially this time would be supervised by the paternal grandparents or Ms Rufford. Supervision would cease when the father provides to the mother a “positive” psychological report and clear drug test results for a period of six months.
In the event that the mother is unsuccessful in her application to relocate with the children to the Netherlands, she proposed that they continue prison visits once per month under the supervision of staff of “Welfare Organisation C” or Ms Rufford. After the father’s release, the children would spend time with him on a graduated basis. This time would be subject to provision by the father of a “positive” psychological report, clear drug test results for six months and evidence that he has engaged successfully with a counsellor. Initially this time would take place at a contact centre and then progress to alternate weekends and block periods during school holidays.
The ICL supported the mother’s application to relocate with the children to the Netherlands. He proposed that the mother have sole parental responsibility and that the children spend time with the father in Australia for four weeks per year. This time would be supervised until the father provides to the mother a psychiatric assessment, clear drug test results for six months and evidence of engagement with a counsellor. The children would continue to visit the father in prison until their departure from Australia.
The trial took place on 16, 17 and 18 October 2013. When the evidence concluded, the parties agreed to make written submissions. By consent I directed that the ICL file and serve written submissions within 14 days; the applicant father in a further period of 21 days and the respondent mother within 14 days thereafter.
The ICL filed his written submissions on 5 November 2013. The father’s lawyers filed their submissions on 25 November 2013 but attached two documents which they sought to tender into evidence. The first document was an email dated 17 October 2013 from Mr E who is a welfare officer at the prison where the father is an inmate. The second document was a decision dated 31 October 2013 from the Department of Veterans Affairs. All parties consented to the tender of the email from Mr E. This document outlined various options for prison leave which may become available to the father during the remainder of his sentence. The decision of the Department of Veterans Affairs concerned the father’s eligibility for a disability pension arising from his service in the military. The mother objected to the tender of this document. It was thus necessary for the proceedings to be relisted for argument on this issue.
On 12 December 2013 the proceedings were duly relisted and I made the following orders:
1. The proceedings are relisted to enable the father to make an application to re-open his case for the purpose of tendering two documents annexed to his written submissions.
2. Over the objection of the mother, leave is granted to the father to re-open his case for that purpose only.
3. By consent, the email dated 17 October 2013 from Mr E to Patricia Hansen is admitted and marked exhibit 13.
4. Over the objection of the mother, the Decision of the Department of Veterans Affairs dated 31 October 2013 is admitted and marked exhibit 14.
5. The mother will now file and serve her written submissions as soon as she is reasonably able to do so.
Written submissions on behalf of the mother were filed on a date shortly prior to 13 January 2014.
Background
The father was born in 1968 in Australia and is currently aged 45 years. The mother was born in 1966 in the Netherlands and is presently 47 years of age. The parties met in 1999, while the mother was travelling in Australia, and married in the Netherlands in 2001. They separated in 2006 and were divorced by decree pronounced in 2008.
The children have lived continuously with the mother since their parents’ separation. Litigation in relation to parenting orders began with the mother’s application filed on 23 August 2007 in the (then) Federal Magistrates Court. On 20 December 2007 interim orders were made by consent, to the effect that the children spend time with the father each alternate Saturday and Sunday from 9:00am until 8:00pm and every Monday from 3:30pm until 7:30pm. On 16 June 2008 further interim orders were made by consent, which provided that the children stay overnight with the father on weekends for a period of three months.
On 14 October 2008 further interim orders were made by consent, which provided that the children spend time with the father each alternate weekend from 5:30pm on Friday until 5:30pm on Sunday. On 2 August 2011 orders were made which restrained each of the parties from removing the children from the Commonwealth of Australia and placed their names on the Airport Watch List. On the same date, the proceedings were transferred to the Family Court of Australia.
On 27 May 2011 the father filed an Initiating Application, which was returnable on 2 August 2011. By this time the father was an inmate of F Prison. He was arrested in December 2010 and charged with a number of offences, including supply of a commercial quantity of a prohibited drug.
In April 2013 the father was convicted of two counts of supply a prohibited drug. He was sentenced to a term of imprisonment for eight years, with a non-parole period of five years and six months. He is thus eligible for parole on in June 2016. At trial he gave evidence that he will be eligible for work release in May 2014 and weekend leave in June/July 2014
In the document tendered on 12 December 2013 (exhibit 14) Mr E wrote inter alia:
“Weekend Leave
An Unescorted External Leave Program that permits an inmate to be absent from a correctional centre/centre with an approved sponsor at location(s) approved by the General Manager/Manager (TC) from 4:00pm Friday to 8:00pm Sunday (Days and time may be varied by the General Manager/Manager to accommodate inmate needs, e.g. employed as a shift worker).
Inmates can apply for weekend leave 28 days after successfully completing 3 day leaves at any correctional centre. Weekend leave can be taken with an approved sponsor at 56 day intervals. Inmates on weekend leave may be required to wear an electronic monitoring device, supply a urine sample, undertake breath analysis and be subject to pat searches and bag searches on their return to the correctional centre (TC).”
It thus seems that the father’s proposal for the children to spend time with him for one weekend per month is unviable, until he completes his term of imprisonment. At best, the children could spend weekend leave with the father approximately once every two months.
The children have visited the father in prison with the assistance of Mr G of “Welfare Organisation C”.Mr G’s notes (exhibit 5) suggest that these visits commenced on 3 June 2012 and occur at approximately one-monthly intervals. Entries in the father’s Department of Corrective Services file, (exhibit 4) however, indicated that he has cancelled these visits on some occasions.
In the mid-year school holidays in 2013 K visited the paternal grandparents at their home in Queensland. He stayed with them at Town H from 30 June 2013 until 6 July 2013. The mother readily proffered that he “had a good time”.
Both R and B are children with special needs. R suffers from a condition known as encopresis, which causes him to soil on most days. In a report dated 18 November 2011 Dr J, a paediatric registrar, noted: “[R] continues to have encopresis, with significant psycho-social stressors contributing”.
B suffers from a condition known as dyspraxia, which is a neurological problem that affects his speech. He requires occupational and speech therapy, as well as additional support at school.
The mother qualified as a healthcare professional in the Netherlands but is not registered to practise in Australia. Her uncontradicted evidence was to the effect that she cannot afford the cost of registration in this country. A further difficulty is that she must undertake supervised practise on a full-time basis for one year or part-time for two years. Her uncontradicted evidence was that she has so little support in Australia that she is unable to make proper arrangements for the care of the children while she undertakes supervised practice.
The mother’s income consists solely of social security benefits. She receives free meals for herself and the children from a church approximately once per week. The father has provided no financial support for the children since his incarceration. The maternal grandparents assist the mother financially from time to time but she has received no such support from any member of the paternal family.
The Evidence and Witnesses
The applicant father relied on the following affidavits:
1.Affidavits of Mr Rufford (the father) sworn on 16 December 2011, 7 November 2012, 7 November 2012 and 25 August 2013
2.Ms Rufford Snr (the paternal grandmother) sworn on 24 May 2012
3.Mr Rufford Snr (the paternal grandfather) sworn on 24 May 2012
4.Ms Rufford (the paternal aunt) sworn on 22 May 2012.
The paternal grandparents each adopted on their oath the contents of statements annexed to the father’s affidavit sworn on 23 September 2013. All of these witnesses gave oral evidence.
The respondent mother relied on the following affidavits:
1.Ms Jergens (the mother) sworn on 4 August 2013
2.Mr Jergens Snr (the maternal grandfather) sworn on 20 September 2012
3.Ms L (the mother’s friend) sworn on 4 August 2013.
All of these witnesses gave oral evidence.
I had the benefit of a Children and Parents Issues Assessment dated 17 February 2012 prepared by Family Consultant Ms M. A single expert, Dr N, prepared a Family Report dated 30 January 2013. Unsurprisingly, Ms M was not required for cross-examination but I had the benefit of oral evidence from Dr N.
The written submissions on behalf of the father contained these contentions in relation to the report of the single expert.
Dr [N] who prepared the Family Report (the “Family Report”) found that the children’s relationship with their father is important to them. The recommendation that the children be permitted to relocate is provided with the caveat that the Court must be satisfied that the children’s contact with their father will continue. To the extent that the Report supports the relocation, the Report is based on assumptions, which cannot and have not been proven. This should be given little or no weight as it breaches the rules governing the provision of expert evidence.
The Report does not provide a balanced assessment. Dr [N] has breached the expert’s code of conduct by becoming an advocate for the mother rather an independent expert assisting the court. Little or no weight should be given to the Family Report to the extent that it supports the mother’s application and makes positive findings for the mother. Dr [N] said that she has become ‘further entrenched’ her position meaning her support of the mother’s application. An independent expert should not be ‘entrenched’ in any position.
Despite these complaints about the Family Report, the written submissions on behalf of the father drew on the evidence of Dr N when her opinions and assessments were favourable to his case.
I reject the submission that “little or no weight should be given to the Family Report to the extent that it supports the mother’s application and makes positive findings for the mother”. It is the task of the court, not a single expert, to “make findings”. I consider that Dr N was well able to make observations and assessments, for example, of the nature of the children’s relationships with their parents and each other. I am of the view that I may properly draw on such observations, assessments and opinions of Dr N in my consideration of section 60CC factors and the children’s best interests generally.
I am somewhat puzzled as to why it is appropriate to place weight on the evidence of Dr N when it favours the father but to take the contrary view in relation to the mother’s case. I do, however, treat certain of the evidence of Dr N with some caution. I place no weight, for example and with respect, on her evidence as to matters such as the prevalence of the English language in the Netherlands and the differences and similarities between the two cultures. I have taken into account the evidence of Dr N which is quoted directly or to which specific reference is made in these reasons.
Approach To These Proceedings
In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out two “primary” and fourteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests.
The Court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:
[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. …
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …
In Taylor v Barker (2007) 37 FamLR 461 the Full Court (Bryant CJ and Finn J) considered the proper approach to cases which involve a proposal by one party to make a significant change to the place of residence of a child. Their Honours said, inter alia:
(i)When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible:
U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36; Bolitho v Cohen(2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458, applied.
(ii)There was no substance in the argument that the magistrate had erred in dealing with the issue of relocation and the reasons for it as a separate and determinative issue. A relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s.60CC matters; however, such a proposal now also needs to be considered in the context of s.65DAA. Given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s.60CC(1) provides that in determining what is in the child’s best interests, the court must consider the matters set out in subs (2) (primary considerations) and subs (3) (additional considerations) of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
(v)The legislation gives no guidance as to the stage at which a court should commence a consideration of the relocation proposal, but if having found advantages in “substantial and significant time” (or for that matter in “equal time”), the magistrate had then turned to consider the “reasonable practicability” of such an arrangement, some assistance would have been gained from s.65DAA(5). A consideration of these matters would have required the magistrate to evaluate the differing proposals of the mother and father and to consider whether “substantial and significant time” would be “reasonably practicable” if the mother were to relocate to Queensland. This would seem to be a logical path to follow but as the legislation does not prescribe an order in which the relocation proposals are to be considered, it was not possible to conclude that the magistrate’s decision was incorrectly reached.
(vi)The options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.
The Presumption of Equal Shared Parental Responsibility
As noted, both the mother and the ICL sought orders that she have sole parental responsibility. The father proposed that the parties have equal shared parental responsibility. As these proceedings will result in the making of parenting orders, I am required to apply a presumption that it is in the best interests of the children for the parties to have equal shared parental responsibility.
The father will be in prison until at least June 2016, when he becomes eligible for parole. His sentence expires in December 2018, however, and there can be no guarantee that he will be granted parole at any earlier time. The father has been incarcerated since December 2010, thus the mother effectively has been making decisions about major issues concerning the children without significant input from the father for over three years. That situation must necessarily continue for a minimum of two and a half years and could extend beyond that time.
The mother alleged that the father engaged in family violence during the parties’ cohabitation. Inter alia, she maintained that he hit the children on their heads and threw them into their bedrooms. She alleged further that he called them offensive names such as “arsehole” and “dickhead” and that he referred to R as “shitkid”. Largely, the father denied these allegations.
The mother claimed that the father directed verbal abuse at her and, on one occasion, damaged kitchen cupboards and an oven door in a fit of anger. She made no allegation that he physically struck her but maintained that his conduct caused her to feel fear. She took out an apprehended violence order in November 2006. The father was convicted of a breach of this order on one occasion.
Again, the father largely denied these allegations but, tellingly, he said in oral evidence words to the effect: “At the time I was not aware about verbal abuse not being normal but now I know it is not due to counselling I have had in gaol.” The father said also in his oral evidence words to this effect: “Looking back I can see that I was verbally abusive to her and I regret that. The verbal abuse escalated but looking back, I can understand if she felt fear.”
There was little cross-examination of the mother as to her allegations of family violence on the part of the father, hence she was unshaken in her evidence on this issue. Effectively, the father admitted that he engaged in conduct which would fall within the definition of “family violence” prior to the 2011 amendments to the Family Law Act. I find that the father has engaged in family violence and, accordingly, the presumption of equal shared parental responsibility has no application in the present proceedings.
If I am erroneous in this conclusion, I am satisfied in any event that the presumption has been rebutted by evidence that it would not be in the children’s best interests for the parties to have equal shared parental responsibility. I now turn to the evidence which, in my view, grounds that finding.
The father annexed to his handwritten affidavit of 12 November 2012 a letter which he wrote to the mother on 25 June 2012. He wrote words to the effect that he had reflected on his “entire conduct” while in prison. Inter alia he stated:
During my time inside I have understood myself, taken responsibility for my actions and knowing what I want with my life from here. That is simply be a supportive ex-husband, father and strive for my goals. I have regular counselling and my previous abuse problems, medical issues and to prepare myself for release in a few years. There is also a relationship counsellor who I have spoken with on regular occasions and he advised me to write how I feel to you.
I have thought how difficult it must have been for you and the impact on our boys. I have washed all the ill thoughts of the past I carried toward you and I am sure you had your reasons then until now!
From hereon I am praying every day you can find some way to reconcile to a level with me for the sake of all our happiness, It is a way for us to heal as best as possible from this. In a view to build a relationship for the boys’ best interests, it is all I would like and I know it is their greatest wish once I am finished in here! Whatever direction forward for them to have both of us in their lives with love and happiness I am all for it.
In the same letter the father made frank admissions to the mother about his previous substance abuse. Inter alia he wrote: “I took to alcohol abuse to adjust to a non-English speaking country and being in a complete adverse life I came from then extending it to marijuana from the shops there as you already know.” He informed the mother in this letter that, while in prison, he has been diagnosed with post-traumatic stress disorder and depression.
This letter would suggest that the father genuinely regretted his past actions and harboured a real wish to establish a cooperative separated parenting relationship with the mother. Regrettably, his attitude toward her seems to have undergone a radical change by the time he swore another affidavit on 12 November 2012. Annexure B to that affidavit set out a litany of criticisms of the mother, some of which predated their first meeting.
I will not attempt to summarise all of these complaints and criticisms. I highlight, however, the father’s suggestions that the mother is “paranoid”; that she suffers from “malicious mother syndrome” and has engaged in “parental alienation”. As appears below, in my view there are compelling reasons to conclude that the mother has taken appropriate steps to support the children’s relationship with the father since his incarceration rather than engaging in “parental alienation”.
For two broad reasons, I am of the view that equal shared parental responsibility is not in the children’s best interests. Firstly, in practical terms the father will be unable to participate in major decisions concerning the children’s care, welfare and development for at least the next two and a half years and possibly a longer time. The children spend practically the whole of their time with the mother and, in my opinion, she must be in a position to make decisions in relation to their care, welfare and development as the need arises from time to time. The mother could well be required to make a decision in an emergency, when consultation with the father would be impractical or impossible due to his circumstances.
The second broad reason why I consider that the presumption has been rebutted stems from the fact that the father expressed highly negative views of the mother as recently as November 2012. As appears below, he and his family believe that she prevented the children from visiting him in prison for no good reason prior to mid-2012. As set out later in these reasons, I consider that the mother did act cautiously but, ultimately, it was she who instigated the prison visits. In these circumstances, I have concerns about the ability of the parties to co-operate in making significant decisions concerning the children’s care, welfare and development.
I appreciate that each of the parties commented positively about the other parent. The mother told Dr N that “the boys love their father and think he is great”. The father said of the mother in his oral evidence; “[The mother] is a very good mother. She looks after them 110 per cent and the boys love her”. Nonetheless, I have real concerns as to the parties’ ability to cooperate in the making of significant decisions concerning the children on a long-term basis. These considerations persuade me that the mother should have sole parental responsibility.
As there will be no order for equal shared parental responsibility, I am not required to consider whether it is in the best interests of the children, and reasonably practicable, for them to spend equal or substantial and significant time with each parent. I am at liberty to determine what parenting orders would be in their best interests having regard, inter alia, to the primary and additional considerations set out in section 60CC of the Family Law Act.
The Best Interests of the children: Section 60CC Considerations
Primary Considerations
In my view, for two reasons, there is no present need to protect the children from abuse, neglect or family violence. Firstly, the children spend time with the father only in a supervised setting. Secondly, I accept that the father has gained insight into the impact on the mother of his past behaviour. His insight into the effect of his past behaviour does not necessarily translate into a positive view overall of the mother at the present time.
The ICL, the mother and the single expert all expressed concerns about the children spending unsupervised time with the father, after his release from prison. They all proposed that unsupervised time commence only after the father fulfils certain conditions. I will consider these concerns and suggested conditions below in these reasons.
It is implicit in the proposals of the mother and the ICL that the children currently enjoy a meaningful relationship with the father. They both sought orders which would see the children spend time with him on a regular basis. The mother took steps to arrange for the children to visit him in prison, albeit after some delay. I consider that she thus acknowledged the importance to the children of the father’s presence in their lives.
There was no challenge to the mother as primary residence parent. She has been solely responsible for the children’s care since the father’s incarceration. There can be no doubt that the children have a meaningful relationship with the mother and will benefit from her ongoing role in their lives.
Additional Considerations
The mother said words to this effect, concerning the children’s views in relation to relocation and parenting arrangements:
The boys expressed wishes have varied. Only last week [R] said ‘I really want to go to Holland’. [K] is ambivalent, he is having a good time at school but he has said some positive things about Holland. [B] has not expressed a view.
The father said of the children’s views in relation to relocation and parenting arrangements, words to the following effect:
I recently spoke to [K] about relocation and also to [B] and [R]. I said I would support them if they want to go. [K] said he is in high school now and settled. [R] thought he was going for a holiday and was quite shocked.
There was no evidence as to the surrounding context of these alleged statements.
In November 2012 Dr N asked K about the proposed relocation and ongoing time with the father. She reported:
49. [K] was asked his idea of why he thought I was interviewing him. He replied that he was pretty sure it was about his mother and the boys moving to Holland. When [K] was asked to say more about this, his ambivalence was clear. On the one hand he wants to live in Holland. He perceives it as ‘very nice there’. He likes bike riding and there are bike paths everywhere. Everything is close. It gets cold sometimes. He likes his maternal grandparents who are ‘really nice to be around’. He understands conversations in Dutch but cannot speak the language.
50. On the other hand if he moves, he will not be able to see many of his family and friends. In particular he would not be able to see his father who he currently sees every month. He would like to continue to see his father ‘every month or so’ however if he moved to Holland he would be able to speak to him over the phone, or by Skype, like he does currently with his mother’s parents. [K] could clearly see both the pros and cons of relocating. He said, ‘It would be a benefit and not a benefit at the same time. I want to stay here, but I also want to go.’ He decided that he would prefer the judge makes the decision for him.
Dr N reported as follows in relation to R’s stated views:
60. [R] would like to go to live in Holland, because his mother’s parents ‘have a lake in their back yard’ and ‘they are really nice to us’. Using projective techniques [R] nominated his maternal parents as the people in the family to whom he feels closest, followed by his mother and then [K]. When asked if he had grandparents in Australia, [R] said that he did not. When prompted about his father’s parents, he said they were in Queensland and that he has seen them only once in Queensland and twice in Sydney. …
62. When asked the most important message he wants to give the judge, [R] replied, ‘that I really, really want to go to Holland, but I want to see my friends and Dad.
Dr N did not attempt to interview B, noting that he communicates by the use of single words, rudimentary sentences and gestures. There was thus no independent evidence as to B’s views in relation to the proposed relocation and parenting arrangements.
Dr N was asked to comment on the father’s report of his conversation with the children about their views of the proposed relocation. She said words to the following effect:
It doesn’t surprise me that the boys would say something like this. [K’s] school reports suggest that he is passionate and empathic. When I saw the boys they did not have a strong view either way. They have a nuanced position. The boys could see the pros and cons. [K] has changed to high school. He might add that to the cons. He is now getting established in high school. It is what we know about how a child speaks to a parent.
There was no issue that the children have a close and loving relationship with each of their parents. Dr N noted that they are primarily attached to the mother, although she opined that K “may have an equally strong bond with both parents”. She was of the view that the boys “worry about [their] father [being in prison]”.
Dr N offered these opinions as to the nature of the children’s attachment to the father.
81. By his father’s reports, he had a large part in [K’s] early care and so developed strong paternal feelings towards him. The bond is reciprocal and [K] being the oldest, relates to his father in a pseudo-mature way. [R] gave the impression of having an attachment to his father. [B] impressed as anxiously attached to his father, and very worried about him.
The paternal grandparents and Ms Rufford all indicated that they wish for a greater involvement in the children’s lives and to establish closer relationships with them. They and the father all appeared to blame the mother for their limited contact with the boys. In a letter dated 23 April 2012 to the ICL the paternal grandfather stated (annexure to his affidavit of 24 May 2012): “As grandparents we feel we have been denied our rights by not being allowed to have reasonable contact with our grandchildren.” In his affidavit the paternal grandfather expressed these sentiments: “It is frustrating and beyond belief that [the father] has not been able to see his children for eighteen months, and regardless of any misdemeanours he may have committed I have only observed him as a loving caring father. If this situation continues I fear [the father] will suffer a mental breakdown.” The paternal grandmother said: We do feel that she wants to limit our contact with the children”. In effect, the father and paternal family suggested that the mother deliberately impeded the children’s ongoing relationship with the father and frustrated time with their grandparents.
In my view, these complaints about the mother sit uncomfortably with certain steps which she has taken since mid-2012. She arranged with Mr G of “Welfare Organisation C” for the boys to visit their father in prison once per month. She cooperated in arrangements for K’s six day visit with the paternal grandparents at their home in Queensland in June/July 2013. She offered to take the children to visit the paternal grandparents in January 2013, when they were staying with a friend at Town A, NSW. She also offered for K to visit the paternal grandparents in April 2013. They declined to accept these offers, apparently due to prior arrangements or commitments.
The father, the paternal grandparents and aunt all were critical of the mother for the fact that there was a delay in the boys beginning to visit the father in gaol. The mother explained the reasons for her initial resistance to prison visits to Dr N, who reported as follows:
21. [The mother] explained that initially she resisted allowing the boys visits to see the father in prison, as she was given to understand that he would only be in prison for a short time, and she thought that the boys would find the experience disturbing. She reconsidered this position when she discovered that the father would be in prison for longer than at first anticipated. She also organised a visit through ‘[Welfare Organisation C]’, when [the father] apparently informed her by letter that he would allow the boys to relocate, and she considered it important for them to say goodbye to him before they left Australia. He subsequently reneged.
I consider that the mother gave a proper and child-focussed explanation for the delay in commencement of these visits.
In his oral evidence the paternal grandfather seemed to adopt a more conciliatory attitude to the mother to that which he expressed in his affidavit. He said inter alia: “I don’t know that she wants to limit contact but it is hard to communicate.”
The paternal grandmother and the mother have had a strained relationship since an unfortunate exchange between them when B was approximately two years old. The paternal grandmother gave this account of the incident in a statement dated 22 September 2013, which she adopted on her oath:
4.When [B] was two years there was an incident when we were with [the mother] and [B]. I noticed that [B] was not quite right and I said to [the mother] shortly thereafter words to the effect of:
[The paternal grandmother]: you should have [B] checked
[The mother]: no he’s just a normal 2 year old
[The paternal grandmother]: I don’t think you would be a very good mother if you don’t have him checked.
5.[The mother] reacted negatively to my comment and she insisted that I apologise. I have not apologised. I acknowledge that I was clumsy in what I said but that should not mean that we are denied contact with the children.
In her oral evidence the paternal grandmother said of this incident words to the effect:
I acknowledge that what I said was pretty clumsy but I was concerned. I said ‘if you do not have him checked out, you would not be a very good mother’. She has asked for an apology but perhaps she owes me one.
She said also:
I don’t particularly want an apology. I want her to accept that I was right, there was something wrong with [B]. I am sorry that it happened.
The mother’s version of this incident as detailed in her affidavit of 6 August 2013 was as follows:
25. …The relationship between the paternal grandmother and me broke down in January 2008, when she phoned me; You are a bad mother. You are responsible for [B’s] speech delay. A week with [the father’s] sister in Wollongong would fix [B]. You have no authority over the boys whatsoever.
Ms Rufford shared the view of the paternal grandmother that the mother has deliberately prevented the children from spending time with the father and his family. She said: “my partner, parents and I feel that [the mother] is being obstructionist”. She said also “I am happy to accept that she was to blame for gaol visits not happening”.
Ms Rufford was then taken to an entry dated 16 April 2012 in the father’s prison file which read as follows:
A phone call from ‘[Mr G]’ [Welfare Organisation C] re the reason for the cancellation of inmate’s pre-arranged visit that was to take place [F Prison] Thursday 19 April.
Author did explain to [Mr G] that inmate chose to arrange to have dialogue with solicitor prior to his court hearing, thus he would miss the children’s visit. This meeting with children had been arranged for some time in itself a long process; in inmate’s own words and to the effect of ‘his current legal issue is a priority, and his children can be seen at a later date’. [Mr G] stated to the effect of ‘…inmate has a history of cancelling a previously arranged visit with his children; again inmate presenting not to have awareness of the long process and work that goes into arranging his children’s visits’.
When asked for her comment on this file note, Ms Rufford said: “yes, this information disappoints me’.”
To her credit, however, Ms Rufford said that she “would like the breach between the families to be healed” and indicated that she is willing to participate in a mediation with the mother. She added “I think I am a person in the middle who could bring everyone together”.
The mother expressed a positive view of Ms Rufford to Dr N, who reported:
29. [The mother] perceives that she has an amicable relationship with [the father’s] sister, [Ms Rufford]. Their aunt always calls on the boys’ birthdays and they plan to attend a Christmas party this year at her house.
Ms Rufford said that she and her partner see the mother and the children approximately four times per year. It is to be hoped that the mother and Ms Rufford will succeed in bringing about a reconciliation between the two families, in the interests of the children.
Dr N did not interview the paternal grandparents but she spoke about them with the children. She reported:
85. However the paternal grandparents apparently visited their son, daughter-in-law and [K] in Holland when [K] was a baby. In interview, the boys spoke positively about the paternal grandparents and apparently have no issues with them.
86. The boys used to have Skype calls with their paternal grandparents. Apparently the Skype calls stopped quite some time ago. [The mother] does not feel comfortable enough to resume them.
The mother and the paternal grandfather both indicated, however, that they recently reinstated or have agreed to resume Skype communication.
Dr N observed the children’s interaction with the maternal grandparents by Skype. She reported:
87. The boys were observed with the maternal grandparents in Holland, on Skype. It appeared that they had a warm and loving relationship with them and the grandparents were up to date on the boys’ activities and interests. Both Dutch grandparents were able to fully engage with the children in conversation in English. The maternal grandmother was the more outgoing of the two grandparents. In interview [K] made the observation that one of the reasons he likes his maternal grandparents is that ‘they get on really well with each other’. The children perceive that they have spent more time with their maternal grandparents than with the paternal ones. [R] nominated his maternal grandparents as his favourites of all family members and the family members to whom he feels closest…
89. [B] was observed to engage very enthusiastically with his maternal grandparents on Skype and had a strong need to tell them things and make them understand. They reciprocated and were patient with [B] and upbeat with him.
The father’s imprisonment has largely prevented him from participating in major long-term decisions in relation to the children and severely curtailed his opportunity to spend time and communicate with them. As noted, however, his prison file contained an entry to the effect that he has elected not to avail himself of all opportunities for the children to visit him.
The father last made a contribution to the financial support of the children in 2010. He gave evidence that he would like to pay child support of approximately $600 per month. In the context of questions about the cost of travel between Australia and the Netherlands, however, he said: “I will come out of gaol with basically nothing and it will be a long time before I can pay for travel”.
The father gave oral evidence that he has applied for a pension arising from his service in the military. On 12 December 2013 I admitted into evidence, over the objection of the mother, a decision of the Department of Veterans Affairs dated 31 October 2013 (exhibit 13). This document read that the father was granted a disability pension of “40% of general [pay level]” on account of post-traumatic stress disorder and depression arising from his service in the military between August 1986 and March 1994. There was no evidence as to the amount which the father will receive from this pension.
The father has a superannuation benefit which accrued during his service in the military. He said that he could access these funds “on the basis of hardship and special needs” and indicated that he would use this money for the benefit of the children. As noted by the ICL, however, the father could have taken these steps to assist the mother and the children at a much earlier time if he is genuine and realistic in this proposal.
The mother gave unchallenged evidence that she and the children live in very strained financial circumstances. She has two children with special needs and is entirely dependent on government benefits of $650 per week. She pays rent of $205 per week for a house at Suburb I, which she described as “dingy”, and receives charity from a church by way of free meals once per week. For a time, the mother was unable to obtain speech therapy for B because she was required to save money for K’s braces. Her unchallenged evidence was that there is no further cost-free speech therapy available for B and she cannot afford to pay the fees. She said that her practice has been that she attends speech therapy with B and works with him at home, using information which she gleans from these sessions. The father said in his oral evidence “I am fully aware that [B] has severe speech difficulties and that his therapy recently ended due to a lack of government funding”.
The father effectively suggested that the mother could alleviate her financial difficulties if she accepted assistance from his family. Further he inferred to Dr N that she could improve her situation by obtaining paid employment. Dr N reported:
34. [The father] expressed surprise that [the mother] is not working yet. He explained that this had been an issue during the marriage. He claimed that [the mother] ‘never bothered’ to get a job when it was needed because of her belief that the boys needed to be under her supervision. When I suggested that [the mother] would have more work opportunities in Holland than in Australia, [the father] replied that this is not about her, it is about the boys.
The paternal grandfather said “I did not know her financial situation. Once I asked if she was managing okay and she said yes. If we had known exactly what was going on, sure we could have worked something out…I would like to talk to her to work out a budget for example”. The paternal grandfather said that he would not be prepared to assist with the cost of travel if the children move to the Netherlands.
The paternal grandmother said that she could travel to Sydney approximately six times per year but added “[The mother] does not make me particularly welcome”. She said that she and her husband could afford a contribution of $600 per month to the financial support of the children. She did not say that any such payment would in fact be forthcoming for the mother’s assistance.
In my view, there is no realistic prospect that the mother will obtain any financial assistance from the father while he remains in prison. His own evidence was that he would be unable to contribute to the cost of airfares “for a long time” after his release. I am doubtful that financial support would be forthcoming from the paternal family, if the mother and the boys are required to stay in Australia. No such assistance has been provided, or in fact offered, in the three years since the father’s imprisonment.
The paternal family are constrained by distance and their own responsibilities from participating in the day-to-day care of the children. I accept the evidence of Dr N that the mother struggles to meet the children’s needs and the paternal family are simply not in a position to alleviate her difficulties. I see no realistic prospect of any change in that situation.
The father acknowledged that a relocation to the Netherlands is the best option for the children at the present time. His main concern was that his relationship with them would not survive such a move because “he would never see them again”. For reasons to which I have referred, I am satisfied that both the mother and the maternal grandfather recognise that the children need an ongoing relationship with the father and the paternal family. I am of the view that the mother will comply with orders for the children to spend time and communicate with the father and the paternal family. The mother’s friend, Ms L, gave evidence that she will provide accommodation for the mother and children on return trips to Australia.
I take into account the view of Dr N that the children’s relationship with the father would survive a relocation to the Netherlands. It seems likely to me that the children, particularly K, would initiate communication with the father independently of any court orders. I doubt that the mother would obstruct any such initiatives on the part of the boys.
I have regard to the father’s evidence that he may be able to obtain employment in Sweden or Western Europe upon his release from prison. Of course, there will be no certainty that he will be able to enter any particular country in light of his criminal convictions. Nonetheless, it is open to the father to pursue that option in the future. Similarly, it may be possible for the parents and children to meet in a country between Australia and the Netherlands.
I do not underestimate the magnitude of the adjustment required of the children by a relocation. I consider, however, that they will adapt to life in the Netherlands with the support of their mother and maternal grandparents. They already enjoy a loving, positive relationship with the maternal grandparents, who are well able to converse with them in English. I have no reason to suspect that they will fail to become integrated into the Dutch education system.
I am acutely conscious of the ambivalence of the children as to a relocation to the Netherlands. Their stated views, however, are not determinative of the outcome of these proceedings. Notably, they did not express strong opposition to a relocation to the independent expert. I take into account the opinion of Dr N as to the father’s evidence of views which the children allegedly expressed to him about the proposed relocation. In my view, it is highly likely that they are aware of his strong opposition to that proposal. It could thus well be that they expressed to him views which they believed would accord with his wishes.
Overall, it seems to me that the orders in the scheme proposed by the ICL will meet the children’s best interests. I will not accede to the father’s proposal that the mother lodge a sum of $8,000 in a trust account, to be operated by the ICL, so as to ensure compliance with court orders. In my view that role goes well beyond the usual scope of the responsibilities of an Independent Children’s Lawyer and, in the present case, there was no consent to that proposal.
It is my view that particular orders must be made in relation to the children’s time with the father in 2014. The mother and the children will be unable to leave Australia before April 2014 and the Dutch summer school vacation takes place for four weeks in July/August 2014. It may be that the mother elects to return the children to Australia in July/August 2014. On the other hand, she may consider that the children need a longer period to settle into life in the Netherlands. I will allow her the option to select dates for the first return trip to Australia.
I am not persuaded that it is necessary for the relocation to be conditional on the mother’s obtaining “advance recognition” of the orders of this court. It is my view that she recognises and respects the children’s need for an ongoing relationship with the father, thus she will comply with court orders. In any event, I would anticipate that the boys will be anxious to travel to Australia to see their father and paternal family. The Netherlands is a signatory to the Hague Convention, which provides a mechanism for enforcement of orders for the children to spend time and communicate with the father and paternal family.
I reject the submission on behalf of the father that “it is not appropriate for final orders to be made”, in circumstances where “there is great uncertainty” and there is a “risk” of “enforcement or contravention issues” or a “re-opening of the proceedings”. On the contrary, I consider that both parents and the children need to be relieved of the current uncertainty as to their future.
The father proposed that the mother meet all costs of the children’s air travel in 2014 and that, thereafter, the parties share these expenses equally. I will make such an order, on the basis that I consider that the maternal grandparents are likely to assist the mother to meet these costs.
I will make orders as proposed by the ICL that the father satisfy certain conditions before the children begin to spend unsupervised time with him. As noted he offered no real opposition to this proposal, although the written submissions of his lawyers resisted such orders which they described as “manifestly unfair to the father”. I do not agree with that proposition and, in any event, I am obliged to make orders which will ensure the children’s physical and emotional safety and well-being. As noted, the father admitted to past substance abuse and currently suffers from depression and post-traumatic stress disorder.
I see benefit to the children in their spending time with the paternal grandparents prior to their departure for the Netherlands. I will make orders as proposed by the ICL, to the effect that they spend at least one weekend with the paternal grandparents before that time. I will, however, impose a time limit so as to facilitate the timely departure of the mother and the children to the Netherlands.
I certify that the preceding one hundred and twenty nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 7 March 2014.
Associate:
Date: 7 March 2014
Key Legal Topics
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Family Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Procedural Fairness
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