Rusek and Rusek

FAMILY COURT OF AUSTRALIA

RUSEK & RUSEK

[2016] FamCA 92

FAMILY LAW – International relocation – evidence does not support – refused.
Equal shared parenting agreed – s 65DAA requires consideration of equal time – best interests principles and practicability considered – equal time ordered.

Family Law Act 1975 (Cth)

Collu and Rinaldo [2010] FamCAFC 53
MRR v GR (2010) 240 CLR 461
U v U (2002) 211 CLR 238
Vriend and Gaines [2015] FamCA 227

APPLICANT:

Ms Rusek

RESPONDENT:

Mr Rusek

FILE NUMBER:

MLC

5713

2014

DATE DELIVERED:

19 February 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

11, 12 &15 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Connell With Mr Kanarev

SOLICITOR FOR THE APPLICANT:

Walters & Associates

COUNSEL FOR THE RESPONDENT:

Ms Carter

SOLICITOR FOR THE RESPONDENT:

Waterson Legal

Orders

That all extant parenting orders are discharged.
That the husband and the wife have equal shared parental responsibility for the children B born … 2004, C born … 2006, D born … 2009 and E born … 2011.
That the wife be restrained from taking the children out of Australia for the purposes of permanently living elsewhere.
That the children live with and spend time with each of their parents on an equal basis as follows:
(a)       With the husband for five days;
(b)       With the wife for five days;
(c)       With the husband for two days; and
(d)       With the wife for two days
and that thereafter, the fortnightly cycle continue in that pattern.
That the foregoing arrangement commence on a date to be agreed by the parties and failing agreement upon the conclusion of school on Friday 26 February 2016.
For the avoidance of doubt, unless the parties otherwise agree, the parent having possession of the child pursuant to these orders shall be responsible for the care of the child until the conclusion of the school day.
Notwithstanding the foregoing orders, during all school holiday periods, the parents shall have one half each by agreement and failing agreement, the husband the first half in even numbered years and the wife the first half in odd numbered years.
That all children’s passports shall be retained by the husband.
That all applications are otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rusek & Rusek 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 MELBOURNE

FILE NUMBER: MLC 5713 of 2014

Ms Rusek

Applicant

And

Mr Rusek

Respondent

REASONS FOR JUDGMENT

Ms Rusek (“the wife”) and Mr Rusek (“the husband”) have four children whose care they had been sharing on an eight day: six day per fortnight arrangement for the second half of 2015 (that is, eight days with the wife and six days with the husband).
As the school holidays concluded in January 2016, the wife directed the husband that the arrangement would return to nine days and five days which had been the consensual (but court ordered position) until it was changed by their agreement in mid-2015. The wife’s explanation for reverting to the earlier position was that everyone should await the outcome of these final parenting proceedings. The unilaterally imposed position was hard to justify.
The underlying issue is not about the sharing of the children but where they should live in the future. The wife wishes to move with them to Country F; the husband opposes that, seeking the sharing arrangement continue in Australia but on the basis of an equal time sharing.
The husband and wife were both born in Country F and the majority of their respective families still live there. As a married couple, they came to Australia in 2002. All of the children were born in Australia and all hold dual citizenship.

The children

The children are B aged 11 (known as “B”), C aged 9 (known as “C”), D aged 8 (known as “D”) and E aged 4 (known as “E”).
All children were interviewed by family consultant Mr G. If a synopsis could be obtained as to the views of these children as to how and where they were to be cared for by their parents in the foreseeable future, it would most likely be that they wished not to choose because they did not want to hurt either parent. According to the family consultant, having to choose would be a difficult emotional decision for all of them.
Each child is close to both parents. Save as to a discipline issue caused by the wife slapping particularly B (and which is addressed later in these reasons) there is no suggestion of any of the children not being properly cared for by either parent. The children all wished to be with their parents and, on the evidence of Mr G, would miss an absent parent if the gap of separation was of any length. The unchallenged view of Mr G was that the children would be deeply saddened by separation from either parent.
As far as a move to Country F is concerned, the expert view of Mr G is that none of the children would have an adults’ understanding of life in Country F. That said, they all know Country F because they have been there on holidays.

The issues

The distinct feature of this case is that the four children have loving and caring parents. However, there are dissimilarities between the parents as well. The three predominant distinguishing features are:
(a)The wife wants to return to and live in Country F where she sees extended family as a very important part of family life;
(b)The husband will not return to live in Country F citing his inability to cope with such a move (even if the children move there) on the basis of both his historical experience and his concerns about safety; and
(c)Whilst both husband and wife strongly identify with their culture, the wife sees significance and importance in religion and culture. The husband is an atheist but acknowledges the importance of tradition and culture.
The issues are effectively therefore whether there should be a shared care arrangement in Australia or whether the children should live with the wife in Country F on the assumption that the Court finds that the husband would not move to live there. The issues associated with the husband’s time with the children in Australia if they move to Country F was contentious because of its suggested impracticability to which I later turn in these reasons.
Whilst (c) above is a factor required to be considered in s 60CC of the Family Law Act 1975 (Cth) (“the Act”), the wife’s position is that she will be more comfortable both in respect of religion and her culture in Country F because there, everyone is of the same culture. The husband’s position is that the practices, traditions, culture and religion can all be adequately enjoyed and expressed within the Melbourne community. His view also is that the children are safer in Australia.
Such is the depth of feeling about their respective positions that sadly, although the parents have generally worked things out about their children (such as the 8-9 or 6-5 days issue), they do not communicate. That problem is manifested in them accepting what their children say (as to the criticisms of the other parent) without consulting each other to endeavour to reach a common approach to solving problems and achieving consensus about raising their children.

Equal shared parental responsibility

Despite the lack of communication, each parent seeks an order for equal shared parental responsibility. Neither parent saw that issue as a problem even if the children were to live in Country F. In urging the Court to adopt that joint position, the statutory framework (and particularly s 65DAA) requires the Court to consider an equal sharing of time and also whether that is practicable.
Part VII of the Act governs how the Court should approach the determination. Before examining that, some background is necessary to give context.

Background

The husband is aged 43. By occupation, he is a business manager. He has tertiary qualifications in Economics and Communication.
The wife is aged 41. She has been engaged in the care of the children since B was born in 2004. She is a qualified professional in Country F (qualifying in 2000) but did not work there as such. In Australia, she worked as a in an associated profession.
The wife has undertaken all of the courses necessary to have her Country F degree recognised in Australia. Before coming to Melbourne to live, the parties lived in Sydney and there, the wife completed the necessary academic qualifications. She has taken the professional employment issue no further because of being (unsurprisingly) busy looking after four children. However, part of her proposal is that she will actively pursue the professional position in Country F and expects to be so employed.
The husband and wife began a relationship in 1993 in City H, married in Country F in 2000 and two years later immigrated to Australia.
Before coming to Australia, both husband and wife served in roles in the Country F military whilst they lived together and before their marriage. In the wife’s case, she was engaged there for two years as a soldier. In the husband’s case, he reached officer rank and then left the service but maintained reserve status. In his case, the contentious issue is whether he has been so affected by that service as to desire not to return. For reasons that follow, I accept his evidence.
Throughout the 13 years of residence in Australia, the husband has had a number of positions of employment. Of that and under the heading of “Instability of Father/Respondent”, the wife said:
Every time the Respondent lost his job, our family struggled financially. As a result, 13 years later we have no substantial assets or equity in Australia. I fail to see how insisting on staying in Australia is serving the best interest of the Children while I rely on Centrelink benefits and the Respondent is unable to provide our children and ensure a secure financial future.
Consistent with his instructions, counsel for the wife cross-examined the husband about his work history undoubtedly to suggest that he was not a consistent provider. I reject the suggestion of any lack of diligence on the husband’s part. In cross-examination, he explained he had been retrenched and/or voluntarily left a job to get another one. Whilst he conceded he had been unemployed for a period of some 10 months, there is no evidence from the wife to support the assertion set out in the paragraph that I have quoted. Indeed, the evidence supports a conclusion that the husband has provided well. Much of the wife’s complaint seems to revolve around the fact that after 13 years, the parties had no property to show for it. I fail to see how that is relevant or could be a criticism of the husband. The parties had four children over the years at various times and lived on one income. What the wife did not say (and I consider it should have been acknowledged in the context of her criticism of the husband) was that the parties saved over $60,000 but they lost all of it in the Global Financial Crisis.
Whilst the wife complained that the husband had not provided her with spousal maintenance, she also did not point to any application where she sought it. What seems uncontroversial is that the husband has paid child support as assessed. As to whether the quantum was impacted by the shared care arrangement, the evidence did not say. Having referred to the “instability” heading, the wife pointed to no other evidence thereafter to indicate any form of conduct on the part of the husband which could be described as unstable. The heading therefore was gratuitous and unnecessary in an otherwise positive pursuit for what was in the best interest of the children.
In November 2009, the husband, the wife and the three older children became Australian citizens. Despite that, it was the wife’s evidence that there was an agreement between she and the husband as far back as 2002 when they arrived in Australia that she (and/or they) could return home to Country F to permanently live at any time she wished. The husband denied the certainty of any such agreement and in my view, it is irrelevant to the issue I have to determine. Whatever was discussed, 13 years went by, four children were born and both parents actively sought Australian citizenship. They went on holidays to visit family in Country F but always returned to Australia. One might wonder why, if the wife’s view about the husband’s employment record was as bad as earlier portrayed, she did not refuse to return to Australia on one of her visits. No such suggestion was apparent from the evidence.
In May 2014, the parties permanently separated. In June 2013 the wife had been in Country F leaving the children in the husband’s care in Australia. Whatever happened there, caused an ending of the relationship. In discussions at that time, the wife said that she wanted to return to live in Country F. There was a period of weeks after the 2014 separation where the wife refused to allow the husband to have the children overnight. That was resolved by consent orders in the Federal Circuit Court on 21 July 2014. Those orders provided for a two week cycle in which the children lived with the wife from Friday to Monday in week one and then from Wednesday to Friday in week two and the school holidays were to be shared. That is the nine:five arrangement.

Intervention order

An incident occurred just prior to separation, the details of which were not canvassed by the parties in evidence. Suffice to say, a police officer applied for an order in favour of the wife against the husband. The wife’s application alleged family violence. The children were named as persons needing protection. When the Magistrate determined there was insufficient evidence to make an interim order, the wife withdrew her substantive application. That is the extent of the evidence indicating intervention by authority in the lives of the parents.

Family violence

Neither party alleged family violence against the other in their evidence at least in relation to each other. That must exclude the issue of the wife slapping the children but I shall return to that later.
The wife was asked by family consultant Mr G specifically about family violence. She mentioned the intervention order but then noted what was described by Mr G as “a further alleged incident of direct physical violence by (the husband) towards her in 2012”. Mr G then said:
Although she claimed (the husband) grabbed her by the hand during an argument, which resulted in her wrist being broken, she nevertheless explained, “He did not meant to do it.”. From her perspective, her injury was an unintended outcome.
In evidence, the husband indicated that he knew nothing about the wife breaking a wrist. Mr G did not pursue the issue as he considered there was no allegation of family violence. The parties did not pursue it in these proceedings.

Positions of the parties

It will be clear from what I have set out what each party seeks by way of their proposals.
The wife’s position is that she should live in Country F with the four children and that she would fund the Northern Hemisphere holiday period for the children to return to Australia for a period of eight weeks in July and August.
If the children were to remain in Australia, she would not return to Country F.
If the children remain in Australia, there should be a share regime although I am not convinced that her position was one of equality.
The husband’s position was that the children should remain in Australia and that there be an equal sharing of time broken up in to five days and two days at a time so that each parent ended up with a long weekend.
If the children were to live in Country F, his position was that he would spend time with them when he could.

Conclusion

For the reasons that follow, my view is that the children should remain in Australia as it will be in their best interest. They should have the arrangement proposed by the husband.
Before returning to some of the contentious issues litigated by the parties, and indeed examining their respective proposals, it is helpful to deal with the legal issues first.

Legal issues

Part VII of the Act guides the process in relation to the making of parenting orders.
Section 60B of the Act sets out the objects of Part VII. They are to ensure that the best interests of children are met and hence, the objects act as a guide. The objects are:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA requires that in deciding whether to make a particular parenting order in relation to a child, the court must consider the best interests of the child as the paramount consideration.
To determine what is in the best interests of a child, the court is obliged to examine the factors set out in s 60CC.
The power to make a parenting order is found in s 65D and that provides:
In proceedings for a parenting order, the court may, subject to ss 61DA (presumption of equal shared parental responsibility when making parenting orders)…and this Division, make such parenting order as it thinks proper. (my emphasis)
As can be seen, s 61DA has a role to play. Section 61DA requires the court to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. The presumption does not apply in circumstances of abuse or family violence and it may be rebutted by evidence that satisfies the court that it would not be in the best interests of a child for the parents to have that responsibility.
In this case, as I have already indicated, neither parent has satisfied the court that the presumption does not apply because of family violence. Whatever may have gone on and may have been referred to in affidavit material filed by the wife in 2015, when the subject of what evidence she was relying upon was raised, her counsel indicated that they were only relying on her trial affidavit. Indeed, notwithstanding the fact that family consultant Mr G had read earlier affidavit material, he was still not sufficiently concerned about family violence to raise it as an issue of concern to him as an expert. Accordingly, I am satisfied that there is no family violence issue that would mean that the presumption does not apply.
As indicated, the presumption may be rebutted if the court is satisfied that it would not be in the best interests of the children to have equal shared parental responsibility. I have already indicated my concern about the lack of communication between the parents. When I raised that issue with the wife in evidence, she said that over time, that situation would improve. I raised further whether that answer depended upon whether she was constrained to live in Australia and she indicated that it was not and she would never prejudice the interests of the children as they were her life. All of the issues associated with the culture, health, religion and education of the children seemed to be able to be worked out between the parents quite successfully. As I earlier observed, the husband indicated that he was an atheist yet he said that if the children wanted to practise a tradition or participate in some aspect of religion, he would assist. Two areas of evidence focussed on this issue and give some context.

The wife gave evidence that when B was as young as five, she raised the question of the existence of God only to have the husband say that the theory of evolution applied. How either parent’s position could be relevant to a five year old escapes me. It was rather unfortunate I think that the evidence was put that way because there was no indication thereafter that either parent had tried to inculcate the children with their respective views contrary to the views of the other.
The second issue related to the wife’s assertion that the husband wanted to prevent B from participating in her religious initiation ceremony. The husband’s version was that he asked B about it because it was going to cost $1000 to be involved in a program of preparation which clashed with what is undoubtedly B’s passion, dancing. The husband indicated to the wife that he was not prepared to pay but it now seems the child attended anyway. I am satisfied that the evidence does not support a conclusion that the husband endeavoured to thwart the religious program but rather reacted on the basis of the child’s response. It is obvious therefore that neither parent is thwarting the teachings and parenting resolve of the other particularly where they philosophically differ.
Section 61DA does not provide any presumption about the amount of time that a child should spend with a parent. That issue is dealt with in s 65DAA. That provision provides:
(1)Subject to subsection (6), 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.
It will be obvious therefore that if the Court makes an order for equal shared parental responsibility, it must consider the children spending equal time with each parent insofar as it can be found that it is in the best interest of the children for that to occur but it must also consider whether the children spending that equal time is reasonably practicable. If the answer to those two questions is in the positive, then an order for equal time should be made.
If a court decides that equal time is not required then the question of substantial and significant time arises. That is defined in s 65DAA(3).
In my view, for the reasons that follow, it is not necessary for me to determine the question of substantial and significant time because a consideration of equal time is satisfied in this particular case.
The determination of what is reasonably practicable however depends upon the considerations set out in the Act. This was considered in MRR v GR (2010) 240 CLR 461. There the High Court said:
9.Each of sub-ss (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. Sub-section (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 subsections (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".
Importantly, at [13] the High Court said that s 65DAA(1) was expressed in imperative terms. It obliged the court to consider both the question of whether it was in the best interests of a child to spend equal time with the parents and the question of whether it was reasonably practical for the child to spend equal time with each of them. The High Court went on to say [13]:
…It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (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, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (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.
It will also be self-evident that if the husband is in Australia and the wife is in Country F, there is a serious problem about the practicality of sharing equal time. The High Court considered that position at [15] and said:
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. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
As their Honours observed, a practical assessment needs to be made whether equal time parenting is feasible. That can obviously only be done if the parents remain in Australia. In my view, it is practicable here because the wife will not go overseas if the court decides that it is in the best interests of the children that they remain in Australia. How that is determined depends on a number of factors to which I have already referred as found in s 60CC.
International relocation cases are extremely difficult. In Collu and Rinaldo [2010] FamCAFC 53 the Full Court gave guidance as to how this question should be worked out. The court said that as to the best interest requirement in s 65DAA (see above) at some point, those considerations must be considered in the context of or by reference to, the requirements of s 65DAA(1)(a) and (2)(c) of the Act.
The Full Court said [375] that the trial judge was required to consider s 65DAA.
Various authorities (AMS v AIF (1999) 199 CLR 160; U v U (2002) 211 CLR 238; Collu and Rinaldo (supra); and MRR v GR (supra) all provide an approach which should be followed. Those steps are:
(a)Identify the proposals of the parties;
(b)Consider the best interests consideration in s 60CC (with an eye upon and guided by s 60B);
(c)Give relevant weight to the evidentiary matters upon which findings have been made relating to the factors that determine best interests;
(d)On the assumption that the presumption applies, consider whether an order for equal time is in the children’s best interests and is reasonably practicable (and if not, contemplate substantial and significant time on the same basis);
(e)Determine the best interests question within the context of s 65DAA; and
(f)Decide whether it is reasonably practicable having regard to the factors in s 65DAA(5) of the Act (to which I shall now turn).
Section 65DAA(5) provides:
(5) In determining for the purposes of subsections (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, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
It is therefore not a question of whether equal time is desirable but rather with the reality of the situation of the parents and the children (MRR v GR (supra)).
In this case therefore, the feasibility of equal time (or any other time similar) could only apply if both parties were in Australia on a finding that the husband cannot go to Country F.
As Kent J said (and I respectfully adopt) in Vriend and Gaines [2015] FamCA 227:
47.Whilst the statutory framework does not deal differently or specifically with cases involving a proposed relocation from other parenting cases, such cases attract the description of “relocation cases” because they bring into sharp focus the central issue of balancing statutory imperatives concerning children’s best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, orders which are legitimate by reference to both “best interests” considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by orders which do not give one parent “optimal” arrangements or outcomes.

The factual issues in dispute

The children’s environment

In her evidence, the wife said:
The children and I currently live in a subsidized housing unit which is provided to us by “[I Care]” which is a community service provider who supports [Religion I] people residing in Melbourne.
However, our eviction is eminent (sic), (the children) have deduced that something is not right and they are aware we cannot stay in current accommodation.
Once our current accommodation with [I Care] is no longer available the children and I will literally be on the streets. I am concerned this situation will push me into a corner where the children will have to live with the father and I will have no choice but to relocate myself back to [Country F] as I have family and support there.
That evidence is problematic. First, the wife’s statement to the family consultant which was provided less than a month after the evidence above was filed, was that any 60 day eviction notice had not been given. No evidence indicated how the wife would cope with such an event until her proposed move which is not anticipated until later in 2016. As at the commencement of the trial, the anticipated eviction notice had not been served.
The wife’s evidence was also:
In [Country F] my mother owns a property and she has offered to rent that property to the children and myself rent-free until such time as I am gainfully employed.
Alternatively, my parents could rent out the property on their street and I could use the rent money and lease a place…
It was not suggested that the maternal grandmother would solve the current housing crisis in Australia. A combination of the two statements above would indicate that the maternal grandmother has resources to assist the wife but the wife conceded that she had not asked for that assistance. However, she has asked, and obtained, money from her mother to cover all of her current legal fees.
Thus, to the extent the wife was pointing to her accommodation “crisis” as a basis to return to Country F, those matters do not advance her claim. In reality, her position is difficult but she has made no attempt to ameliorate it here in circumstances where she could. That is perplexing having regard to her espoused “and accepted” primary consideration for the children.

The husband’s support

Part of the wife’s concern about her own ability to support the children is a basis of her claim to move to Country F. That is underpinned by an assertion that the husband has not been a good financial provider. I have already mentioned the wife’s view about the husband earlier. Indeed, counsel for the wife cross-examined the husband suggesting that he did not have a good employment record. Yet, of his $7000 per month take home currently received, he now pays $1322 child support, plus, on average, about $2000 per month over the year for extras for the children (which the wife conceded) and rent of just over $3000 per month for himself. That leaves very little in circumstances where he had six nights per fortnight and more recently five, with the children. I find there is nothing in the evidence that supports a conclusion that the husband is acting irresponsibly about the support of the family.

The wife’s financial position

If the wife went to Country F, her financial support would be her own income from employment. In her affidavit, the wife referred to three “job” offers. They were not offers.
Each of the “offers” was detailed from letters attached to the affidavit. No evidence was called from these potential employers. The husband did not accept the probative value of this “evidence” and the wife knew that prior to the trial commencing. No such evidence was therefore before the Court.
In evidence, the wife conceded that one of the offers had been withdrawn. In another case, the author of the letter wrote:
There is always a need for ([professionals]) of high qualities, such as you, I believe.
It was hard to know what the author of that last quote knew. The “high qualities” must be viewed cautiously. The letter was referring to a certain role. The wife has never worked in this role. She has no professional service employment in Country F although she worked in an associated profession up until 2002. She has had no similar experience in Australia for the last 13 years. That is not a criticism because, as she maintained and I accept, her primary role was focussing on caring for the children.
There was nothing certain about the wife’s employment prospects in Country F. In respect of Australia, she acknowledged having made no inquiries about employment as a lawyer.

The husband’s financial position if he went to Country F

It was suggested in very strong terms that the husband could go to Country F and obtain employment in the IT industry. However, the husband rejected that. There is no evidence to enable me to find he could obtain the sort of employment he currently has. Indeed, as he was at pains to point out, he is not an IT specialist but rather a business operations manager.

The husband’s “capacity” to return to Country F

The wife’s case was that the husband’s evidence that he would not return to Country F to live was untrue. Two premises seemed to underpin her view. First, there was her rejection of the husband’s evidence about the depth of his feeling arising from his military service in Country F over a decade ago and, secondly, the view expounded by C. Dealing with those in reverse order, C told the family consultant:
When asked about his thoughts in relation to remaining in Australia, [C] stated that such a prospect would “not be so good because I wouldn’t see family. Mum wants to go to [Country F] and she would be upset. She would stay in Australia because she wants to be with us. It would be good because Dad thinks it is safer in Australia”.
The family consultant then reported:
[C] believes that if he and his siblings were to relocate to [Country F], his father “might go to [Country F]. He probably would. He would want to stay with us with us and not be alone”. [67]
C’s view has to be considered with caution. The family consultant said the children would be “deeply saddened” by being separated from either parent but he also opined that they could not be expected to have an adult understanding of life in Country F. Counsel for the wife did not press the family consultant as to how C’s view should be interpreted or indeed where the concept came from. In other words, was it a hope that his father would never leave him? Or, was it some confidence as a result of what had taken place between the husband and C? I consider it unwise to read anything into what C said to the family consultant.
The other issue concerns the husband’s basis for his stance. His trial affidavit evidence was expanded upon. He told the Court that although he had not been in combat, as a result of deemed physical incapacity in the military in Country F, he was still confronted on at least one occasion with children throwing rocks whilst he paced along a roof. This was in what was described in the hearing as the “occupied territories” or otherwise “the Region J”. He said that when that occurred, he “promised” never to return to that position. He gave evidence which arose from cross-examination by counsel for the wife which the wife seemed to know about. He had clearly endeavoured to avoid the combat zone. One such example was at the appointed time he was to go to the Region J, he flew out of the country to Country K. On another occasion, he feigned having been injured in a snowboarding accident and lied to a doctor to get out of the proposed detail. He also described feigning a motor cycle accident for the same purpose.
Along with his resolve to avoid the conflict, the husband described the dangers of attack and the fact that there were bomb shelters in houses. He observed that there were troubles facing Country F still today. He talked of nightmares from what he had witnessed in those years. Counsel for the wife cross-examined the husband about this observing that none of this was in his trial affidavit but then again, he was being tested as to how he justified his position. It was put to him that he was making up the evidence about the nightmares but his plausible response was that the wife and he had slept together for 20 years so she would know. She had made no such observation but after that evidence, it was not proposed that she be recalled to rebut what he said.
The husband’s ability to cope with returning to Country F was a subject of significant discussion at the interview with the family consultant. At its highest, the family consultant said that the husband saw the return to Country F as a “dilemma” on the question of how he would cope.
Counsel for the wife returned to this subject of the husband’s incapacity on a number of occasions. On one, the husband was cross-examined about his view and it was put to him that there was an inconsistency in his evidence because on at least one occasion, he had agreed with the wife to return. When fleshed out, I am satisfied that that was comprehensively explained. Around the period of the time that the marriage relationship was breaking down, the wife had returned to Country F for a holiday period when the children were with the husband. She there had a relationship with a man by the name of Mr L. A long and detailed message that the husband wrote to the wife indicated that his sentiment at that time was that he wished to fix the marriage problem. He said that before any decision was made about the future of the marriage, he and the wife had to work on the issue of trust. In November 2013, a message he wrote indicated that the relocation to Country F option might have existed. He was specifically asked whether the only time he had an aversion to return to Country F was after the wife met Mr L. He denied that saying that he would contemplate returning to Country F when there was peace.

In August 2013, the wife wrote a message purporting to be a record of a conversation with the husband in which she confirmed that he had said that he would be willing to return to Country F. When this message was put to the husband, he confirmed that he had said it but he had done so for the purposes of “putting her to the test”. What he meant by that was that he wanted to find out his wife’s real motivation for wanting to return to Country F. He pointed out that five minutes after he had made the statement, the wife had telephoned Mr L from which he concluded that the return to Country F was not for the purposes of reconstructing the family. When challenged as to how he knew about the wife’s telephone call, he confirmed that he had looked at her telephone. No evidence was called to rebut that suggestion.
I accept that the husband had not indicated a desire to return to Country F as it was put by the wife. All of that however only goes to the question of whether the Court accepts the husband’s fear of returning to Country F was genuine.

The husband has a concern about the children and military service

Both parties put documents before the Court in relation to the obligations of Country F citizens to undertake military service. The wife saw that obligation as a normal part of responsibilities whereas the husband indicated that he did not want his children to be exposed to what he had undergone.
I am satisfied on what I have read that moves are made by the Country F government for young people around the age of 17 to become involved in military service. There are significant penalties for leaving the country to avoid that service. None of that affects my determination here. There are clearly philosophical differences between the parents about the responsibilities of Country F citizens and I do not propose to take any of that into account.

Future military service by the husband

The same documentation to which I have just referred also relates to adult Country F citizens. In the husband’s case, it is conceivable that even though he is now in his 40s, a number of days per year in a reserve position may be required of him if he returned to Country F. He would find that objectionable. That too confirms my view that he would have difficulty coping with a return to Country F.

The relationship between the husband and the wife now

The husband produced text messages or Facebook messages which he said were written by the wife or her sister. The wife was challenged about whether she wrote them and she seemed to equivocate and deflect the meaning of them. When she was re-examined by her own counsel, she said that some of this was written around the time that she was in a bad physical condition. There is evidence of the wife having psychological problems. I return to that in a moment. The wife did not adequately explain why she wrote what she did but the inference I have drawn is that if the entire family returned to Country F, the husband would certainly not be welcome in the wife’s family. Whilst that is not a significant issue because it does not indicate the impact it might have on the relationship between the husband and the children, it is nevertheless another reason why the husband’s return to Country F is problematic.

The children and their relationship to Australia

B’s dancing

Both parties agree that B has a love of dancing. The husband said that if B went to Country F, she would not have an opportunity similar to her desire to audition at the Victorian College of The Arts. The husband was cross-examined about a pamphlet produced by the wife apparently indicating that there is a world-recognised dance school in Country F.
In my view, all of this is irrelevant. B is 11 years of age. No-one knows what interests she will have in her teenage years. The “high standards” attributed by the husband to the Victorian College of The Arts may be his perception and a compliment that flatters that organisation but it does not assist here in respect of the parenting dispute. The s 60B objects under the Family Law Act 1975 (Cth) (“the Act”), do not prioritise one particular object over the others. The objects do however indicate that parents are urged to provide whatever they can to help their children’s development. Dancing may therefore be an important part of life for an 11 year old but so are many other aspects. It would be a distraction to begin examining which dance organisation can better challenge the talents of an 11 year old who currently loves participating. The evidence therefore does not support a conclusion that the dance issue is critical to the welfare and development of B.

B is made school captain

Rather than jointly and excitedly rejoice that B had been made school captain for 2016, the wife said nothing about it and the husband observed that he attended his daughter’s speech that gave rise to her being bestowed the honour of being made school captain. The inference I suspect the husband wanted drawn was that the wife was ambivalent about it. I reject that; the wife was at a directions hearing event at this Court on that day.
What each party seemed to miss (and in my view, this shows how well connected B is to Australia), is that the child was voted by her peers as worthy of the honour of school captain. Each of the other children in this family (at least those who are attending school) also shows good progress in their studies. The evidence was silent upon how much impact there would be on removing the children from their current environment.
I have no hesitation in saying that Country F provides education of the highest standard but the question I am struggling with is why the parents would want to remove the children who are settled. As I have observed, the fundamental principle that the wife began the proceedings upon was that her housing accommodation was in crisis. That seems to me to be a passing issue which could easily be resolved. The children attend the school near where they live both with their mother and their father. Removing them from their current environment therefore needs consideration.

The wife’s proposal to move to Country F

The wife deposed to what she described as “multiple” reasons for wishing to relocate. They were:
(a)Her tenuous housing;
(b)She felt “isolated” because her family and close friends were in Country F; and
(c)Without a capacity to work in her “chosen profession” she was “financially restricted”.
It is the law that the wife does not have to show compelling reasons to explain her desire to relocate the children. The three observations which the wife described as multiple are not supported by the evidence.
If the wife went with the children to Country F, she would have:
(a)Accommodation provided by the maternal grandmother on a temporary basis until she could obtain employment;
(b)Extended family (although the evidence related to the importance of their presence as family rather than anything more);
(c)Her best friends would be nearby; and
(d)She had “great job prospects”.

Job prospects

For the reasons I have earlier set out, those prospects are illusory. There is no job offer and no clear evidence that, after 13 years absence from Country F, her capacity to walk into a professional job was likely. When pressed, the wife said she would use her “network” to find a job. No further explanation was given and no evidence corroborated any of her assertions. To compound that problem, the wife was not able to say what she would earn. That gave rise to questions of how the wife would maintain the relationship between the husband and the children.

Maintaining the father and child relationship

The wife said she would make “a real effort” to see that “their relationship with their father continued”. When tested, the wife did not exude that encouragement. That can be seen in the wife’s unilateral action about reducing the husband’s time immediately after the school holidays. The wife was questioned as to why she had unilaterally taken that course and was unable to give a logical explanation. She simply said that the parties should wait until the proceedings had concluded. The timing of that decision with the proceedings imminent, did not reflect well upon the wife having regard to the fact that there was no evidence that there had been problems during the pre-holiday period or during the holiday period.
As to how the father and child relationship would be fostered in Country F, the wife said that the husband could have the long holidays of July and August which is a period of approximately eight weeks.
There would be logistical problems with the husband only having one block period per year and it was apparent that the wife had not contemplated any of those issues. For example, there is the husband’s capacity to get leave from work for that period of time. There is the absence of the children’s Australian friends who presumably would still be in school for much of that time. There is no suggestion of how the children would cope for such a long period of time with the absence of their mother. That is important here because of the evidence of the family consultant who said that all children were distressed by separation from their parents.
Consistent with the absence of evidence about jobs and income, I find there is little evidence about what it would cost to fulfil the wife’s proposal or how it could be accommodated. The wife thought the travel costs would be about $10,000 but she acknowledged that she would have to travel as well because of the ages of the children. She acknowledged it would be “extremely expensive”. As to where this money would come from, she said:
It would be nice if he helped.
I find it again unlikely that this expense could be met from the wife’s resources based on the existing evidence.
I am satisfied that it is unlikely that the wife’s proposal for the children to be able to return to Australia could be fulfilled. I find also that it is unlikely that the wife will encourage the children to continue the relationship as she described in her affidavit.

Physical chastisement

There was some concern expressed particularly by the family consultant about the wife slapping B. Her explanation about why those incidents occurred are perplexing because they related to her reaction to a challenging child. That would occur in Australia or Country F but it remains unresolved. It was suggested by the husband’s counsel that the wife should undertake a parenting course. I saw no indication of interest from the wife and as everyone was expressing concern, her response was not encouraging. An indication of the problem was that the husband said that subsequent to the issue being raised by the family consultant in early January, it had happened again. Although the wife seemed to deny that, her evidence was equivocal. Whatever the problem was and is, the husband accepted that it was not of sufficient concern to seek to have the children removed from the wife.
The wife no doubt has problems caring for four children. A complaint was made by the husband that the wife had left the younger children when she went to collect B from dancing. The wife said that the next door neighbour was nearby but having regard to the ages of the children, that explanation was concerning. A more serious concern was the fact that the husband gave evidence, which was not denied by the wife, that C had telephoned him to indicate that he did not know where his mother was and the husband spoke to the child for some time to give him security. The husband then rang the wife on her mobile telephone and asked her to ring C. The finer detail of this evidence is not significant. What it does highlight however is that the children have a very close relationship with their father as they do with their mother. They need both of them. C was content to ring his father when he was uncomfortable about the absence of his mother. It highlights the need to cautiously alter that type of relationship.

Other witnesses

A psychologist Dr M provided an affidavit and was not required for cross-examination. Dr M is a psychologist who has been treating the wife. She said that her “diagnosis” of the wife was “symptoms of depression and anxiety associated with domestic violence”. (My emphasis).
There is no evidence that would enable me to find there was any domestic violence. The absence of that evidence means the opinion and diagnosis of Dr M are of little value. Despite that, Dr M said that in the second half of 2015, there had been an “overall improvement” in the wife’s depression and anxiety but in October and November 2015, the wife had presented with significant anxiety again. There is a conflict in those statements and I am not entirely sure what they mean.
This evidence heightened my concern about the wife’s ability to encourage the relationship between the children and the husband. It was not suggested that the evidence was being called to indicate that the wife would not cope with parenting responsibilities if the children were to remain in Australia. It was not suggested that the problem of anxiety and depression would evaporate if the wife obtained employment. The inference I drew was that the evidence was called for no real reason.

The maternal grandmother

The maternal grandmother provided an affidavit from Country F. She is supportive of her daughter and stressed the importance of family. She described being very much involved in all of her grandchildren’s lives and the significance to her of the various cultural and religious activities. She went on to talk about the property to which I have earlier referred and her desire to get to know her Australian grandchildren better than she currently does. That evidence was unsurprising and genuinely stated. However, for all of the activities that are offered in Country F for the children, the same can be found in Australia. The evidence does not assist me.

The family consultant Mr G

As a result of an order made in October 2015, family consultant Mr G undertook the task of providing a family report to the Court. Mr G has qualifications in social work and over ten years’ experience in the Family Court of Australia as a family consultant. No-one challenged his expertise. He was required for cross-examination in respect of his report which was dated 27 January 2016.
Each of the parties had a purpose for requiring the family consultant’s attendance. That was evident from their respective cross-examinations.
The father’s concern was about the mother’s parenting skills notably about the discipline question otherwise dealt with earlier. He did not however challenge the opinion of the family consultant.
The mother’s concerns were more extensive. Questions were asked about the sequence of the interviews and whether there were noticeable changes over the period of them. This appeared to be an exercise to question the thoroughness of the examination and if it was, I find the family consultant was indeed thorough and very careful.
Questions were asked about the depth of the various relationships but the family consultant did not waiver. As already mentioned, he thought the children did not have an understanding of a proposed permanent change to life in Country F but also that they would be deeply saddened if separated from either parent. Scrutiny (by the Court) focussed on the family consultant pressing the children for their views about the impact on them of an international relocation. It is fair to say, these children were found by the family consultant to be very loyal to both parents and reluctant to take on their shoulders, the parenting responsibility of decision-making.
In that context, and not otherwise mentioned in these reasons, the family consultant covered a number of issues, those included discussing with the parties the details that were in the wife’s affidavit but upon which, at trial, she did not rely. He made the following observations that underpinned his conclusions [15]:
vi.Neither parent alleged any family violence subsequent to the parental separation, nor did they express feeling concerned for their well-being as a result of the other parent’s behaviour towards them.
vii.There have been periods during which the parental relationship appears to have been very civil and constructive (particularly during most of 2015). Both parents reported that they are able to effectively communicate with each other about the children, despite tensions emerging because of the current Court dispute.
viii.The parents remain in dispute about [the wife]’s proposal to relocate with the children to [Country F], as well as the primary living arrangements for the children, irrespective of whether [the wife] chooses to reside in Australia or [Country F].
…
x.Observations of the children with each parent during assessment, coupled with comments made by the children about their respective relationships with their mother and father, clearly suggest that each child has a fundamentally sound relationship with each parent.
…
xiii.All of the children interviewed are aware of their parent’s respective proposals and are cognisant of the adverse impact that either relocating to [Country F] or remaining in Australia would have on each parent.
The family consultant understood the wife’s proposal for the husband’s time with the children if she went to Country F. He reported:
[20]…For example, she suggested that the children could visit Australia at least once a year (and more often for the older children), and that time spent with their father could occur if he chose to visit [Country F]. Ongoing contact between the children and their father could also be facilitated via electronic means (e.g. Skype, telephone calls).
…
[23]Whilst the details of the alleged incidents of physical violence are primarily outlined in her December 2014 affidavit, [the wife] confirmed them during interview, and also noted a further alleged incident of direct physical violence by [the husband] towards her in 2012. Although she claimed [the husband] grabbed her by the hand during an argument, which resulted in her wrist being broken, she nevertheless explained, “He did not mean to do it.” From her perspective, her injury was an unintended outcome.
…
[24][The wife] explained that the parental relationship had been predominantly positive during the majority of 2015, and was characterised by them being able to share birthday activities for the children and to effectively communicate with each other.
The family consultant understood the husband’s proposals and his concerns about the children going to Country F are as I have already set out. He said:
[33]When interviewed, [the husband] confirmed many of these issues and stressed that from his perspective, the children would be significantly and adversely affected if they lived in [Country F] on a full-time basis. According to him, the differences between living in Australia and [Country F] in terms of social behaviour, personal safety, and overall development are significant. Whereas he believes that people are free to pursue their interests and live in a fundamentally non-violent society in Australia, the social fabric of [Country F] is significantly different. He perceives [Country F] society to be verbally and physically aggressive, subject to terrorist acts, and one where there is the encouragement of hatred towards [other religious groups]. On that basis, he believes the children “will become different (in a very negative sense) people”.
…
[35]When interviewed, [the father] expressed feeling highly conflicted if presented with a scenario where his children were allowed to relocate to [Country F]... Whilst unsure about whether he would choose to relocate to [Country F] in the event children do so, he was nevertheless clear that he would visit them.
…
[42]Both in his January 2016 affidavit and during interview, [Mr Rusek] spoke comprehensively about the children, their needs and their functioning. It was apparent from his comments that he has been actively involved in their care, displays a keen interest in his children, and perceives them to have a very close relationship with him. He also asserted in his affidavit that he has provided significant financial contributions to their educational and extra-curricular activities.

The family consultant interviewed the children. He made the following observations:
[54][B] was invited to articulate any views she might have about her living arrangements and what she would like to do in relation to relocating to [Country F] or remaining in Australia. [B] responded by stating, “I want to go to [Country F] because it is where family is and it is important (i.e. her sense of family).” She is aware however, that her father believes that “Melbourne is a better place because of the war in [Country F].” From her perspective, she would like the opportunity to “visit [Country F] and stay for one to two months to see how it goes.” She is aware that [Country F] also has a “dance school”, which means she would not miss out on the opportunity of exploring her interest in dancing.
…
[56]…, [B] was somewhat reluctant to live in [Country F] without her father…
[57]…, [B] insisted that she would like the opportunity to live in [Country F] for a trial period of a “few months”. Her preference would also be for both parents to live in [Country F]. In the event her father chose to remain in Australia, [B] explained that she would be “okay” about still going to [Country F] for a trial period…
The family consultant interviewed C and made the following observations:
[64]…From his perspective, it would be “good” to live in [Country F] “because I would get to see family”, and that there was nothing “hard” about doing so.
[65]…He indicated that his preference would be to have “even time with mum and dad…
[66]…His comments clearly indicated that he feels emotionally conflicted about the issue and is keenly aware of his parent’s views and how they would be impacted…
The family consultant interviewed D. These were his observations:
[73]…[D] explained that she has visited [Country F] and that such an experience was “really fun”, as she was able to see members of the maternal and paternal family. If allowed to live in [Country F], [D] stated that she would have a “happy” face because “I really like my cousins and grandparents.” If her father was not living in [Country F] however, she explained that she would feel “sad because I would really miss dad.”
The family consultant did not interview E because of his age.
In his evaluation, the family consultant said:
[82]From the children’s perspectives, there appears to be a fundamentally sound and close emotional connection to each parent, despite some of the children outlining certain criticisms of each parent’s parenting style (e.g. the use of physical discipline, aggressiveness)… In addition, it was clear that each of the children would be deeply saddened if either their mother or father was not able, or was unwilling to live in the same country as them. The thought of being separated from their mother or their father was a source of deep distress for them.
[83]The writer appreciates that all of the children (and particularly [D] and [E]) are still very young and have not as yet developed the emotional and cognitive maturity to fully comprehend the implications of relocating to another country on a full-time basis…
…
[86]As previously noted, the implications for the children would be significant if they were to relocate to [Country F]. Whilst important social and peer networks would be disrupted, the issue of their relationship with their father is of prime significance.
[87]Given that the children already have a close emotional connection with their father, and have had a history of spending regular time with him, the writer believes such important relational foundations may enable them to retain important positive memories of him and thus maintain the father/child relationship in the face of their physical absence from him. The writer would suggest however, that [D] and [E] would experience greater challenges in emotionally maintaining a connection with their father in such circumstances given their emotional and developmental immaturity, and the relatively fewer (compared to their older siblings) memories they have of him because of their age…
…
[89]The benefits for the children of remaining in Australia are clearly obvious; namely, the maintenance of a relationship with their father and the continuance of their peer, social, and sporting networks…
If there was to be no relocation, he said:
[96]…Research and the writer’s extensive experience in working with separated families would suggest that shared care arrangements are generally more viable in circumstances where; there is geographical proximity between where the parents reside, parents share a positive and constructive relationship that enables them to effectively co-parent a child, the child is developmentally able to manage such an arrangement, and the parents are mutually committed to its implementation.
[97]In the current case, the writer would suggest that most of these factors are present…
None of the observations was seriously challenged and I accept the evidence of Mr G.

Legal issues

At paragraph 46 above, I indicated the significant role of s 61DA.
The presumption of equal shared parental responsibility set out in the section is either not applicable or rebutted depending upon findings of the Court. As there is no finding of family violence in this case, s 61DA(2) is not applicable. In respect of s 61DA(4), one might well question how the parties are able to communicate and fulfil the requirements of s 65DAC but despite their problems, both parties still communicate at a peripheral level and each still seeks an order for equal shared parental responsibility. In those circumstances, there is no reason for the Court to find that the presumption is rebutted.
At paragraph [39], I indicated that it was necessary to consider the provisions of s 60CC. I do so here.
·The evidence of the family consultant supports the conclusion that all four children have a meaningful relationship with both parents. Critically, having found the husband will not return to Country F, there is a probability that on the proposal of the wife, there would not be a meaningful relationship between the husband and the children in the future. If the husband’s proposal was implemented, the benefits to the children of the relationship with the wife would also be continued. If the wife went to Country F, the time proposed by the wife (eight weeks during the European summer holidays) would not (on the basis of the evidence of the family consultant) enable anywhere near the relationship that currently exists to continue. The proposed electronic communication could never be seen as a satisfactory alternative;
·There are no protective issues here nor should the Court be concerned about family violence. I make that finding specifically having regard to the fact that questions were canvassed about allegations in previous affidavits and also the reference to the wife’s broken arm. I also make that finding having regard to the evidence of the psychologist Dr M which is unsupported by any facts;
·Whilst the children have views as outlined by the family consultant, his opinion (which I have accepted) is that:
a.In many respects, none of the children felt emotionally or cognitively comfortable with the idea of not being able to regularly spend time or to live with either parent; and
b.All of the children (and particularly D and E) are still very young and have not as yet developed the emotional and cognitive maturity to fully comprehend the implications of relocating to another country on a full-time basis; and
c.Despite clear indications from their comments and their presentation during interview, which would suggest they felt uncomfortable about expressing a preference, B and C nevertheless indicated a desire to trial a period of time living in Country F.
Thus the weight of the various statements of the children about relocation must be seen as limited. The weight to their statements about shared care, has importance. In respect of the latter, it is a view I propose to follow;
·    Each of the parents has a sound relationship with the children and each has taken every opportunity to participate in decision-making roles as well as caring roles. To the extent that the wife has not been as proactive as she should have been since the conclusion of the summer holidays, I have made reference to my concerns. Having regard to the position adopted by the husband of equal sharing of time, any criticism of the wife has little impact on this determination;
·    Although the wife was critical of the husband about financial support for the children, I am satisfied he has acted responsibly and there is no suggestion of recalcitrance;
·    There are no practical difficulties in the children having time and the ability to communicate with, the husband if they are in Australia. I find that there would be significant difficulties giving effect to the children’s contact with the husband if the wife was in Country F;
·    Both parents have not only the capacity to care for these children but also have acted responsibly in that care. That is manifested in the children’s happiness with both parents, their school development and their ability to express their love for both parents;
·    The children have strong cultural heritage. Despite the wife’s concern about her ability to practice her culture and faith in Australia, I am satisfied there is capacity for the wife to have her needs fulfilled here. She also has had the support of the community as indicated by her housing;
·    The children have been in a suspended state because of their housing dilemma. The wife has done nothing about that because of her hope of leaving Australia but she has also done nothing about employment prospects here either. Those are matters which have led to the crisis as she saw it, in the potential termination of her emergency housing;
·    Family is very important to the wife and the absence of the majority of her extended family has been difficult but I could not find that solace and support could not also be provided from afar. That support is not just financial. The wife was keen to say that the husband could have electronic communication with Country F. It must follow that she (and the children) could have that communication and relationship with extended family if she remained in Australia by the same means;
·    There was brief discussion about a “trial period” but nothing in the evidence supports that. It would simply be “testing the waters” and potentially could be destabilising for the children. It would certainly give the children an opportunity to experience life in a different country but they have already had that experience during holiday periods. On the evidence of the family consultant, absent the husband’s presence in Country F, these children would be unhappy being away from him.
The balancing of those considerations overwhelmingly points to a conclusion that the best interests of the children is met by them staying in Australia and the parents participating in a significant sharing of the relationship and time.
At paragraph 46, I also set out the provisions of s 65DAA. The particular inquiry here requires the consideration of whether it is in the best interests of the children to spend equal time with the parents (s 65DAA(1)(a)). For the purposes of that section, I find all of the evidence points to equal time with both parents being in the best interests of these children. It is supported by the family consultant; it is indicated by what the parties had been doing until the commencement of the long summer holidays. Whilst the eight:six days arrangement was obviously not equal, nothing in that arrangement indicated a problem for the children. Indeed it was suggested by C that he would like an equal sharing of time. I am satisfied that equal time (in the proposal suggested by the husband) would meet the children’s needs.
I am satisfied that a proposal of nine:five (days) in the wife’s favour would not be in the best interests of the children and certainly would not satisfy their future needs. Having found it is in the best interests of the children to have an equal arrangement, it must also be practicable. That can occur here because both parties seem to have remained in the one area even though the wife’s evidence indicates that she has made no attempt to obtain alternative housing. What seems to be the glue that holds the parties together is the fact that the children attend a school close by to where they are currently living in both houses and there is no reason for me to doubt that the wife could make some attempts to find alternative housing in that area.
The wife could also pursue her career here. There is no need to suggest that the move to Country F is critical for the purposes of financial support. Thus, based on the best interests principles and reasonable practicability, equal time could and should be implemented. To do anything less than that would be artificial. The wife was not able to indicate any reason why nine:five was better than eight:six and the very fact that the wife was proposing significant time indicates that she had confidence that the husband had the capacity to care for these children. In those circumstances, an equal time order should be made.
Having regard to all of those matters, I make the orders in the best interest of these children as set out at the commencement of these reasons.
It will be evident from what orders I have made, I do not propose to make any in relation to issues that are otherwise not controversial.

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 Cronin delivered on 19 February 2016.

Associate:

Date: 19 February 2016

[2016] FamCA 92

19 February 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Jurisdiction

Remedies

Procedural Fairness