SAMSA & DOBRA

[2020] FamCA 859

FAMILY COURT OF AUSTRALIA

SAMSA & DOBRA [2020] FamCA 859

FAMILY LAW – CHILDREN – Where the mother seeks to relocate the children’s primary residence to Country A – Where the father opposes the relocation – Where the mother is the primary carer – Where the mother is unable to remain in Australia – Where the only options are for the children to go to Europe with the mother or remain in Australia with the father – Order that children return to Europe with their mother.

Family Law Act 1975 (Cth) ss 60CC, 65DAA
Migration Act 1958 (Cth) s 501

AMS & AIF (1999) 199 CLR 160
Goode v Goode [2006] FamCA 1346
Morgan & Miles [2007] FamCA 1230, (2007) FLC 93-34, (2008) 38 Fam LR 275
U & U [2002] 191 ALR 289

APPLICANT: Ms Samsa

RESPONDENT: Mr Dobra

INDEPENDENT CHILDREN’S LAWYER: Brian Samuel & Associates

FILE NUMBER: SYC 3131 of 2020

DATE DELIVERED: 14 October 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Henderson J

HEARING DATE: 13, 27, 28 July, 27, 28 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harper

SOLICITOR FOR THE APPLICANT: Crawford Ryan Lawyers

COUNSEL FOR THE RESPONDENT: Mr Havenstein

SOLICITOR FOR THE RESPONDENT: Hal Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Stolier

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Brian Samuel & Associates

Orders

1. That the mother Ms Samsa have sole parental responsibility for the children, X born … 2012 and Y born … 2016 (collectively known as “the children”).

2. That the mother shall keep the father informed of the following at all times:

   (a)Of the name of the schools that the children attend from time to time and to inform the respective school of the father’s contact details and that he is authorized to obtain such information and updates in regard to his children as a parent would normally be provided with.

   (b)Of the names and address of any and all treating health and medical practitioners that the children may see from time to time and of any associated non-routine medical treatment that the children may receive and inform the medical practitioners of the father’s details nominating him as an authorized person for the purpose of obtaining information about the health and wellbeing of his children and details of any treatment that they may receive from time to time.

3. That the children shall live with the mother.

4. That the applicant mother be permitted to relocate the residence of the children from the Commonwealth of Australia to Country A forthwith.

5. That the mother and the father shall communicate with each other in relation to parenting matters and arrangements including, but not limited to, email telephone and text messages but always in a respectful manner.

6. That each parent shall keep the other informed at all times of her or his residential address and her or his telephone number and email address.

7. That each parent shall respond to any email or message from the other that relates to parenting as soon as is reasonably practical.

8. That the children have telephone, email or skype time with the father no less than four times per week with the mother facilitating such communication at an appropriate time noting time differences, children’s routines and schooling, and at any other time the children so request.

9. That in the event that the father travels to Country A he shall provide the mother with no less than two months’ notice in writing of his intention to do so and details of his intended place of residence while in Country A and contact details including telephone numbers for the period of his residence in Country A.

10. In the event that the father travels to Country A the children shall spend unsupervised liberal overnight time with the father by agreement but in the absence of such agreement as follows:

    (a)       If the time is during the Country A summer school holidays then:

    (i)In 2021, from the second day after the father’s arrival in Country A for a period of two weeks, with the children then returned to the mother for one week and then to the father for a further two weeks, or as agreed.

    (ii)In 2022 and thereafter, from the second day after the father’s arrival in Country A for a period of four weeks, or as agreed.

    (b)If the time is during the Christmas period, then between 23 December and 6 January but the father is not to exercise time in that period for two consecutive years without the consent of the mother.

    (c)That in the absence of agreement changeover shall take place at the home of the paternal grandmother near City B between the mother or her nominee and a member of the father’s family known to the mother but at which time the father shall not be present.

11. In the event that the mother travels to Australia with the children she is to provide the father with one month’s written notice of her intention to do so and details of her intended place of residence while in Australia and the period of such residence.

12. In the event that the mother travels to Australia with the children the children shall spend unsupervised liberal overnight time with the father by agreement but in the absence of such agreement as follows:

    (a)From the second day after the mother’s arrival in Australia for two consecutive weeks returning to the mother for one week and then to the father for two weeks and continuing each 3 weeks thereafter, or as agreed.

    (b)If Christmas Eve/Day, Easter Sunday or one of the children’s birthdays falls during the period that the mother is in Australia and the children are not otherwise spending time with the father pursuant to order 12(a) above, then they shall spend no less than 48 hours with their father including the birthday day.

13. That the mother and the father are restrained by injunction from speaking to the children or to any other person in the children’s hearing in derogatory terms about the other party.

14. That each party shall ensure that the other is notified as soon as practical if one or other of the children are admitted to hospital or involved in a medical emergency.

15. That the interim Orders made 28 July 2020 continue until the departure of the mother and children from Australia pursuant to Order 4 hereof and are discharged as and from that date.

16. That within 48 hours of the making of these Orders, the Respondent Father return the passport and/or travel document of X to the Applicant Mother.

17. In the event the Respondent Father fails to comply with the preceding Order, the Applicant Mother have sole parental responsibility for the purposes of making such application and executing such documents as are necessary so as to cause the issue of passport and/or travel document for X, born … 2012 by the Consulate General of Country A.

18. That for the purposes of the preceding the mother have leave to provide a copy of these Orders to the Consul General of Country A.

THE COURT NOTES THAT

1. The purposes of the definition of parental responsibility in s11(5) of the Australian Passport Act 2005 the father by virtue of Order 1 hereof has ceased to have parental responsibility for the children X, a male, born … 2012 and Y, a female, born … 2016.

2. For the purposes of s11(1)(b) of the Australian Passport Act 2005, Orders 1, 3 and 4 hereof permit the departure of the children from the Commonwealth of Australia to travel internationally and to live outside Australia with the mother without the consent of the father and the Court requests that the mother be provided with Australian travel documents to facilitate same.

3. That the intention of Order 2(b) is not that the mother would always provide the father of notice of every attendance at a health professional for routine childhood illness such a cold or minor injuries but that he should always know who the treating professionals are and be free to speak with them and be notified of significant, chronic or ongoing issues as to their health in a timely fashion.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Samsa & Dobra has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3131 of 2020

Ms Samsa

Applicant

And

Mr Dobra

Respondent

REASONS FOR JUDGMENT

1.This application concerns the parenting arrangements for the parties’ children X born … 2012 and Y born … 2016.

2.The mother seeks the children leave Australia with her to Country A where the parents lived prior to their relocation to Australia in 2014. Their father seeks the children remain living with him in Australia and each of the parents agree that whatever order is made the children should spend time with the other parent in Country A and/or Australia.

3.Mr Harper of Counsel acted for the mother, Mr Havenstein of Counsel acted for the father, Ms Stolier of Counsel acted for the children.

Material Read

4.For the mother:

a)Affidavit of the mother filed 3 July 2020 with annexures;

b)Affidavit of the mother filed 25 August 2020 with annexures;

c)Financial statement of the mother filed 3 July 2020;

d)Notice of Child Abuse, Family Violence or Risk filed by the mother on 20 May 2020;

e)Affidavit of Ms C filed 3 July 2020;

f)Affidavit of Ms D filed 3 July 2020;

g)Affidavit of Ms E filed 3 July 2020;

h)Affidavit of Ms G filed 3 July 2020;

i)Affidavit of Mr F filed 3 July 2020;

j)Affidavit of Ms H filed 3 July 2020;

k)Affidavit of Ms J filed 3 July 2020 with annexures; and

l)Affidavit of Ms K filed 3 July 2020.

5.The mother’s exhibits:

a)Mother’s exhibit 1: A letter from the mother’s solicitors to the father’s solicitors regarding enquiries made about immunisation;

b)Mother’s exhibit 2: A letter between the mother’s solicitors and the father’s solicitors dated 28 May 2020 and 6 June 2020;

c)Mother’s exhibit 3: Exhibits to the mother’s affidavit filed 3 July 2020

d)Mother’s exhibit 4: Mother’s subpoena material; and

e)Mother’s exhibit 5: Proposed Minute of Order filed on behalf of the Applicant Mother.

6.For the father:

a)Response filed 3 July 2020;

b)Affidavit of the father filed 3 July 2020 with annexures;

c)Affidavit of the father filed 25 July 2020;

d)Financial Statement of the father filed 3 July 2020;

e)Affidavit of Ms L filed 3 July 2020;

f)Affidavit of Mr M, filed 3 July 2020; and

g)Affidavit of Ms N filed 3 July 2020.

7.The father’s exhibits:

a)Father’s exhibit 1: The Father’s case outline.

8.For the Independent Children’s Lawyer:

a)ICL exhibit 1: Independent Children’s Lawyer’s Case Outline; and

b)ICL exhibit 2: Documents from Dr O.

9.There were 3 court exhibits:

a)Court exhibit 1: The Family Report of Ms P dated 22 June 2020;

b)Court exhibit 2: Information document about Immunisation services at Q Hospital, Suburb S; and

c)Court exhibit 3: Additional Family Report of Ms P dated 14 August 2020.

10.The following people were cross-examined:

a)In the mother’s case:

i)The mother;

ii)Ms J, the mother’s migration agent;

iii)Ms H, the maternal grandmother;

iv)Ms G;

v)Ms E;

b)In the father’s case:

i)The father;

ii)Mr M, the father’s migration agent;

iii)Ms L;

iv)Ms N;

c)Ms P, the Family Consultant.

Chronology

11.The father was born in 1968 in Country A and is an Country A national.

12.The mother was born in 1973 in Country R. The mother is also a citizen of Country A. She has both Country R and Country A citizenship.

13.The mother speaks three languages: Country R, Country A and English.

14.The parties met in 2011 and she became pregnant in 2011.

15.Their son X is a Country A citizen as he was born in Country A in 2012. He has a right to a Country R citizenship because of his maternal heritage. These are people of European heritage who have freedom to move between countries who are part of the EU.

16.Although the father deposed that the parties commenced to live together in 2012, it is clear they had a relationship prior to this time as X was conceived in 2011.

17.In mid-2013, the father secured a student visa to enable he and his family, which was then the mother and X, to live in Australia. The parties moved to Australia in July 2013.

18.In 2013 he secured employment as a tradesperson, with a company known as T Company.

19.The mother commenced a service industry role at the start of 2014.

20.In December 2014 the family commenced to live in a property owned by the father’s uncle Mr U at V Street, Suburb W, New South Wales, which was the former matrimonial home.

21.On 26 May 2015 the mother obtained an ‘Australian Childhood Immunisation Register Exemption’ for X as mother alleged X had had a severe reaction to a vaccination at 18 months of age. His speech and behaviour deteriorated. The mother believed it was Autism, although there is no such diagnosis.

22.The paternal grandfather, lived with the parties from 24 January 2016 to April 2016.

23.In 2016 Y was born. She is presently four years old.

24.The father secured a 457 visa for his family, in May 2016.

25.In June 2016 the maternal grandmother stayed with the family in Australia, and returned to Country R in or about September 2016 after the expiration of her 3 month visa.

26.In August 2016 the mother had X assessed by a neurologist specialist. He was diagnosed with a mild-moderate global development delay. Currently X is doing very well at school.

27.In 2016 the parties attended upon Dr O for counselling. The mother deposes the parties attended over a 3 month period either weekly or fortnightly.

28.I accept the mother’s position that the parties separated under the same roof in early 2017 and this is supported by the notes of Dr O.

29.On 15 February 2019, the mother and father had a disagreement about payment of the electricity bills. The mother texted a friend and asked her to call the police. The mother asserts the father threatened to kill her. The police attended the home and took out an ADVO on the mother’s behalf against the father.

30.Either 15 or 16 February 2019 was the date of final separation when the father physically left the home. The mother asserts that the father said to her, “when I hit you the last thing you will see is going to be my face.”

31.On 16 February 2019 the mother removed $16,500 from the parties’ joint bank account in placed those monies into her bank account.

32.In early 2019 the father turned up at a birthday party for X without the mother’s consent and, as the mother deposes, in breach of the then interim AVO.

33.In April 2019 the father commenced a relationship with Ms L.

34.The maternal grandmother arrives in Australia in April 2019 on a visitor visa.

35.In June 2019 the father is holding X’s passport and the mother is holding Y’s passport.

36.In July 2019 the interim charges against the father were dismissed by the Local Court due to a lack of evidence.

37.The parties attended mediation in September 2019.

38.The father returned to live in the property above the former matrimonial home at Suburb W, a property also owned by his uncle in December 2019.

39.The mother determined to remove herself and the children from this very difficult situation created by the father returning to live in the unit above the former matrimonial.

40.In order to secure appropriate accommodation the mother left the children with the father in late February 2020 for a week.

41.The father of asserts that the mother abandoned the children and left them and his front door.

42.The father engaged Ms N to care for the children whilst he worked.

43.On 26 February 2020 the mother deposes she moves into a women’s shelter. The mother asserts the father then withheld the children from the mother.

44.On 6 March 2020 the mother attended the father’s residence without notice to have the children returned to her care. The father did not let the mother take the children and an argument ensued between the parties in the presence of the children which was recorded by the mother. The police attended the home and took out an AVO naming the father as the protected person and the mother as the defendant.

45.On 11 March 2020 the AVO proceedings against the mother were listed in the Z Local Court. The mother presented the recording to the police, and the father was served with an AVO naming the mother as the protected person which matter is yet to be determined.

46.On 4 April 2020, the mother and a friend were at a shopping centre at Suburb AA when they came upon the children who were at that time in the care of Ms N as the father was at work.

47.An incident occurred between the parents on 4 April 2020 at Suburb AA Shopping Centre when the mother removed the children from Ms N’s care and the father did not see the children again until the final hearing commenced despite the mother offering him supervised time with the children.

48.Following the incident at the Suburb AA Shopping Centre, the police attended upon the mother at the refuge concerned the father knew the refuge address and she and the children changed residences.

49.The mother became concerned that the father knew where the refuge she was living in was located as he had tracked her in some way by a WhatsApp on her phone.

50.In April 2020 the father attended the police station and is placed under arrest for alleged breaches of the AVO in relation to the incident on 4 April 2020 at Suburb AA.

51.Y was hospitalised at BB Hospital in April 2020 and the mother did not let the father know, despite him being represented by lawyers.

52.The father entered into a new contract of employment with his employer on 21 May 2020 when he lodged his application for a 482 visa, and he included his children on that visa.

53.The mother filed an application to this Court on 20 May 2020 seeking expedition of the final hearing which was granted.

54.On 22 May 2020 the matter is expedited and listed for final hearing on 13, 14, 15, 16 and 17 July 2020. An Independent Children’s Lawyer is appointed and the parties and children were ordered to attend upon a family consultant for the purposes of the preparation of a family report.

55.On 25 May 2020 the parties’ 457 visa expired and their bridging visas took effect.

56.The Family Report by Ms P is released to the parties on 22 June 2020.

57.The proceedings commencing 13 July 2020 were part heard and stood over to 27 and 28 July 2020 and then to 27 and 28 August 2020.

Parents’ residential status in Australia

58.The mother is currently on a bridging visa awaiting the outcome of these proceedings. The father has reapplied for his skilled migration visa, now called a section 482 visa and has included the children on that application and they are also on a bridging visa awaiting the outcome of that application.

59.Each party obtained a report from migration agents and this was very important evidence for the Court. The father asserted in his trial affidavit of 3 July 2020 that the mother was able to be part of his 482 visa, previously known as a 475 skilled migrant worker visa. However, each of the parties’ migration agents were clear that as the parents had separated, and were no longer living together, that was not permissible. The father’s migration agent went so far as to say he would not have included the mother on the father’s 482 visa application even if the father had requested him to do so as this was not permissible.

60.It was put to the mother’s migration agent that as Y was born in Australia at age 10 she can become a citizen if she remains in Australia. It was agreed between the migration agents this was correct. The question was asked whether Y could then sponsor her mother to remain in Australia after becoming a citizen. It became clear from both migration agents’ evidence that Y cannot sponsor her mother to remain in Australia for a multitude of reasons:

a)To be a sponsor you must be working and able to support the person sponsored. This capacity is beyond a child of 10 years of age.

b)Additionally, Y would be required to pay the visa fee which is currently $50,000.

c)There is no bridging visa whilst one is waiting to be sponsored and it takes four years for such an application to be processed. Y is four and the expert evidence was clear the mother cannot not stay in Australia while such an application is being processed.

d)An insurance bond in relation to Medicare levy and the like of $10,000 must be deposited as well. Both migration agents agreed this was the process and this avenue is simply not available to this mother.

61.Therefore, this avenue which the father believed was available is not available to the mother.

62.The father maintained the mother could remain in Australia on a student visa. Such a visa if granted is for a period of 12 months only. Again, the consistent evidence from both migration agents was that this would ultimately be impractical for the mother for the following reasons.

63.The first was the visa cost is $20,000.

64.Secondly, the student must have $22,000 in funds to support yourself during the 12 months you are permitted to stay in Australia.

65.Thirdly, the course of study must be face-to-face.

66.Fourthly, the student must pay for the course of study which could be upwards to $30,000.

67.Fifthly, such a visa does not extend to online courses.

68.Sixthly, and there are significant limitations on the numbers of hours you can work each week.

69.Seventhly, the consistent evidence from both migration agents was that the mother must demonstrate a genuine intention to study and the granting of such a visa is entirely discretionary. The mother’s migration agent in her second affidavit opined the mother would have significant difficulty in convincing authorities that this was her genuine intention when the reality was both her children were living in Australia and she would be living in Country A if a student visa was not granted.

70.Not only would the mother have to overcome that hurdle the cost of the visa is prohibitive.

71.Both migration agents agreed the mother can only stay in Australia on a temporary visitor visa. That means she can come to Australia for between 55 and 60 days if the children remain in Australia and spend time with them, but she cannot permanently live in this county. A visitor visa does not allow you to work or access any benefits.

72.Evidence was given of a visa called a 600 visa that is issued at the discretion of the Department and at most would allow a person to remain in Australia for a period of six months and no more than 12 months. These visas are granted on a three-month basis. Both migration agents agreed that if her children were living in Australia she would be seen as a significant risk for the Australian Government in overstaying even a temporary visa for a holiday. Therefore, she may not be able to return to this country once each year for three months to spend time with her children because of these risk factors.

73.Importantly these visas are granted at the delegate’s discretion. The mother is a risk factor in the exercise of that discretion if her children were living permanently in Australia with their father.

74.On this evidence it is clear the student visa is not available to her, as I cannot make her undertake a course of study, and there is not $20,000 available for that visa, or up to $30,000 to pay for a course and she cannot survive on 20 hours work a week.

75.As to her capacity to be on the father’s 482 visa and the father’s migration agent was clear, “I would have declined to put her on his application, either a 482 or 457 visa, as the parties have not been in a genuine relationship… and the only way the mother can stay in Australia is to become a partner of an Australian citizen or obtain an Australian student visa or on a skilled migration visa.”

76.The Independent Children’s Lawyer obtained information from the father’s migration agent about whether there would be any impact for the children staying on their father’s 482 visa if the mother did not consent to this occurring. It is clear from their evidence that the mother will be asked by the Department if she agrees to the children being on their father’s visa and she can say yes or no.

77.Again, the delegate will make a decision based upon all the facts, including the mother’s position. Thus, the decision in relation to the order I make as to with which parent the children live is crucial in this determination. The father is on a bridging visa, as is the mother presently, and that bridging visa is dependent on his 482 visa being accepted and granted and he is still in the early stages of that process. The mother can currently work now, as she does, because she is on a bridging visa, but once she is on a visitor’s visa that capacity to work no longer exists.

78.Again, despite the father saying the mother had a capacity or an ability to stay in Australia she does not and thus this is not a practical or realistic scenario to consider.

79.I can understand the father wanting the mother to stay in Australia and the mother herself would remain in Australia if she could but our migration laws do not permit her so to do. The mother, unlike the father, is not being sponsored under the skilled migration visa scheme nor does she have a partner who could sponsor her and she will be deported if she does not leave the country voluntarily as she will be required to do shortly after delivery of this judgment.

80.The father’s evidence regarding his commitment to his work supported the mother’s case and complaints of the father whilst living together that his work was his focus and not she and the family. He is clearly a skilled and valuable employee and very much focused on his work. He made it clear in cross-examination that he would not return to Country A, his place of birth and where he is a citizen, because to do so would mean he would not have a job and he would not be able to support his family. I accept this is his position. The mother, however does not have this luxury.

81.The report writer did not even consider in her report that in circumstances where the children may be without one parent in their life dealing with that grief may be easier if they are in the primary care of their primary attachment figure, who is the mother. There was scant regard had by the report writer to the capacity of the father who has not been the children’s primary carer but to whom they are closely attached to deal with the children’s grief in remaining in Australia and being separated from their primary carer. Her focus was her clear opinion that as the father had a better capacity to promote the relationship of children with their father and that she was doubtful of the mother’s capacity so to do the children should remain living in Australia in the primary care of their mother to enable them to maintain their important relationship with their father. Yet this is not an option open to the Court to consider.

The Law

82.The starting point is the decision of Goode & Goode[1] as it is referred to in the seminal decision in relation to relocation matters of Justice Boland in Morgan & Miles.[2] At paragraph 68, her Honour says, “In a case involving relocation which raises issues of whether a child spending equal, or substantial or significant time, is “reasonably practicable”, 65AA(5) is likely to be of significance”.

[1]Goode v Goode [2006] FamCA 1346.

[2]Morgan & Miles [2007] FamCA 1230, (2007) FLC 93-34, (2008) 38 Fam LR 275.

83.At paragraph 72, her Honour began her exploration of the principles in relation to relocation matters as follows:

There can be no dispute that in determining a case where one party which research indicates is invariably the mother wishes to relocate a court is making a parenting order generally about who the child will live with or with whom the child will spend time. Relocation matters are not a special category of parenting orders.

It is also undisputed that in determining a parenting case where one party wishes to relocate the child’s best interests remain the paramount, but not sole consideration. The Act does not contain any presumption against a parenting order which involves relocation nor any presumption in favour of parent with whom a child lives predominantly at the time of the application to obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate orders to be made.

84.I have two stark positions here and only two stark positions; the children live in Australia with their father or they live in Country A with their mother. The father has made it clear that he does not want to return to live in Country A even though he can return to live in that country without any difficulty being an Country A citizen and having family. He does not want to return because of his job, the life in Australia and his new and satisfying relationship. The mother must return due to the operation of our harsh migrations laws. There is no capacity to generate any other options on these facts.

85.At paragraph 79, her Honour in Morgan & Miles.[3] notes that in considering whether the child should live with the parent who proposes to relocate, a Court:

[3] Above, note 2.

·    Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.

·    Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.

·    Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.

·    If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

·    In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

·    When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

·    Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:

-that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

-that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;

-that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;

-the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

·    Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.

86.The four principles distilled by her Honour are set out at paragraph 80:

The child’s best interests remain the paramount but is not the sole consideration

The parent wishing to move does not need to demonstrate “compelling” reasons.

The judicial officer must consider all proposals, and himself or herself be required to formulate proposals in the child’s best interests

The child’s best interest must be weighed in balance with the “right” of the proposed relocating parent’s freedom of movement.

87.Further, at paragraph 81, her Honour went on to say that the legislation requires a Judge to consider the parties competing proposals against the criteria set out in section 60CC (2) and (3) informed by section 60B of the Act. That generally speaking, findings in relation to the section 60CC factors must be applied to findings in relation to the consideration of equal time or significant and substantial time.

88.Her Honour continued that in determining what is in a child’s best interests, a Court must consider the matters set out in section 60CC(2) and (3) of the Act.

89.The primary considerations in section 60CC(2) of the Act are:

(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

90.The additional considerations in s 60CC(3) of the Act are:

(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

(b) the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child);

(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child;

(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(f) the capacity of:

(i) each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j) any family violence involving the child or a member of the child's family;

(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m) any other fact or circumstance that the court thinks is relevant.

91.Justice Boland’s decision in Morgan & Miles,[4] was informed by the seminal High Court decision of U & U,[5] and, in particular, the reasons for judgment of Gaudron and Hayne JJ. As their Honours say in U & U at paragraph 24:

…that as has been held in the decision of B & B: Family Law Reform Act 1995 that “the long-term unhappiness of a resident parent is likely to impinge in a negative way upon the happiness and, therefore, the best interests of the child”.

[4] Above, note 2.

[5]U & U [2002] 191 ALR 289 at [24].

92.Justice Gaudron goes on to say at paragraphs 36 and 37:[6]

Further, it must be accepted that, regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will, almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having the reasons for relocating treated with the seriousness they deserve.

It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risks that her interests will not be properly taken into account. To avoid that possibility, it is essential that in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in the decision of AMS & AIF.[7]

[6] Above note 5 at [36] – [37].

[7] AMS & AIF (1999) 199 CLR 160 at 191 [95] per Gaudron J, 226 [196] per Kirby J, 232 [218]-[219] per Hayne J.

93.I accept the father does not want to relocate because he is very happy in Australia – he has a job, a home, a partner, and he lives where he wants to live. I accept the mother cannot remain in Australia.

94.Justice Hayne made it abundantly clear in U v U how a judge is to look at these matters and said the following:[8]

It is now recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Part VII of the Act. If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in the place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.

[8] Above note 5 at [176].

Report writer’s evidence in the reports

95.The report writer had accepted the father’s position that the mother could remain in Australia and gave only superficial analysis to the consequences for the children of her not being able so to do and they being separated from the mother in her report.

96.Although the consequences of the mother not being able to remain in Australia are now absolute, they were a clear possibility even at the time of the report yet the report writer gave only superficial analysis of the consequences for the children of this stark and harsh reality and this was a significant deficit in her written report.

97.The report writer spent little time analysing and setting out the significant consequences for children being separated from their primary carer in her report and the analysis was cursory. This is particularly serious when it is agreed, albeit reluctantly by the father for it could not be otherwise that the mother is and has always been the children’s primary carer. This was most concerning for the report writer formed the view consistent with the father’s position that the mother could remain in Australia and was in some way choosing not to do so. This incorrect assumption also tainted her report.

98.The father’s own evidence that in the seven years the family have been in Australia he has taken two weeks and a couple of weekends of leave and works at least from 8am to 6pm each day and sometimes on the weekend was of itself testament to the fact that the mother has been the children’s primary carer.

99.The report writer accepted in its entirety the evidence of the father and not that of the mother in many aspects, including on this important aspect that she could remain in Australia when she could not as she told the report writer she could not. Both parents would prefer that they remain in Australia and care for their children. That is simply not an option for the mother.

100.At minimum the report writer should have gone into some depth in her analysis of the consequences for the children of being separated from their mother and their father and she did not. As this scenario was a possibility and was raised by the mother it should have been assessed by her.

101.The report writer formed the view that the mother would not foster the children’s relationship with the father in Australia if she returned with them to Country A and as such it was an order in their best interests they remain in Australia with both their parents. I accept at the time of the report and from the father’s perspective it was still an issue whether the mother could remain in Australia. The mother had been clear in her affidavit, oral evidence and to the report writer she could not remain in Australia.

102.So concerned was I as to the deficits in the initial report on these important aspects which I am to consider in determining what order is in these children’s best interest, by agreement, a separate set of questions were asked of the report writer. Even when these questions clearly set out that there was a real issue that the mother could not remain in Australia the report writer was not fulsome in her consideration of the consequences for the children of being separated from their primary carer or separated from their father and maintained her position that would be best for the children to continue to live in Australia with both parents which is now not a possibility given the father’s position he will not return to Country A and the mother’s inability to remain in this country.

103.The report writer had some very valid reasons for forming the view that the mother may not promote the children’s relationship with their father. The mother said to her in the interviews she did not think children would miss their father and would get over not seeing him if they returned to Country A with her and were unable to spend much time with him. This was cruel and entirely wrong.

104.However, unlike me the report writer did not have the benefit of hearing the mother and father’s evidence under cross-examination. Additionally, I spent more time hearing these parents give their view of their own relationship, their relationship with their children, the needs of the children and their positions about the importance of each of them to the children than did the report writer.

105.In oral evidence the mother said she regretted saying this and that this was wrong. The mother readily conceded that the children would miss their father as they would miss her. Secondly, the orders she proposed for the children to spend time with their father in Australia if they returned to Country A with her were the orders of a parent who wants to promote relationship of children with an absent parent.

106.Similarly, I accept the orders proposed by the father when the mother returns to Country A and if the children remain living in Australia with him are orders from a parent who seeks to maintain a relationship for the children with the absent parent.

107.However, the mother has valid reasons for her view that the father may pose a risk to the children for as is the evidence unfolded I have formed the view that the father has perpetrated coercive, violent, controlling and threatening behaviour towards the mother during the relationship, including death threats which she justifiably took seriously. This view was reinforced by the father’s complete denial that he behaved in this fashion or if he did so it only happened once.

108.This disingenuous evidence was combined with his absolute lack of understanding of the impact of his behaviour on his wife and his children. The father is a strong, tall man with a strong voice and has a powerful physical presence. He demonstrated no understanding of the impact his physical presence and the power of his voice might have on smaller, weaker and more vulnerable people such as his wife and his children.

109.The family consultant’s report was of assistance to the Court in the observations and analysis of the parents’ poor relationship and the relationship the children had with each other and each of their parents, including Ms L.

110.It is clear from the report the children have a close, attached relationship with each of their parents. It is clear from the report and apparent on the facts that the mother has been the primary carer of the children and that the father is very much focused on his work and, in saying so, there is no criticism of the father.

111.When it was put to the father in cross-examination that, “If the children and the mother returned to Country A, would you also return to Country A, given you are a citizen?” his answer was clear, “That would be disastrous for us. The unemployment situation in Country A is very grave. I would not be able to have the job I have here. I could not do it.” Therefore, the father’s position is, I will be remaining in Australia, working as I do, continuing to support my family, even if the children and mother return to Country A is also clear from the evidence. The mother has no option to live in this country and she must return to Country A.

112.Therefore, the Court is unable to generate options that may have been able to be generated if the mother could remain in Australia and the father was prepared to return to Country A. The Court is left with two stark positions of the father not returning to Country A even if his children return and the mother unable to remain in Australia with the children and the consequences for the children of those only available options.

113.The report writer’s position was:

If [the mother] leaves Australia with the children, it is highly likely the children will not see Mr Dobra again.[9]

[9] Family Report paragraph 157.

114.Paragraph 157 of the Family Report:

[The mother] has no intention of maintaining the children’s relationship with Mr Dobra and said that she is fearful of him. She said that she believes he will try to kill her one day. If the Court finds Mr Dobra poses a risk to [the mother’s] safety, it would be in hers and the children’s best interests to be safe and that may mean leaving Australia.

115.The report writer went on to say at paragraph 158:

If the Court does not find that Mr Dobra poses a risk to [the mother] or the children, the children should be given the opportunity to maintain and further develop their relationships with [him].

116.The report writer acknowledged Ms Samsa is the children’s primary carer and they appear very comfortable in her care and the father confirmed that the mother is a very good mother. He has no concerns about the care of the children in her care.

117.What the report writer was unaware of was the nasty altercation between them on 6 March 2020 which paints a very different picture and shows a very different man to the man that was presented to the report writer and in the affidavit.

118.The maternal grandmother described the father as an at-home devil and an outside angel. There is significant support in the father’s own material and from his oral evidence to support the grandmother’s position.

119.The report writer said at paragraph 158 of the Report, “If the children remain in Australia they are likely to benefit from living with [their mother] and spending substantial and significant time with [their father].” That option is simply not available. As the case of MRR & GR (2010) 240 CLR 461 (“MRR”), tells us parenting orders are not matters of what should be or what could be best for children but what can be, what is practical, realistic and best for children.

120.In the stark circumstances I am faced with it is apparent to me the report writer believed it was best for the children to primarily reside with their mother. I accept this opinion and the father expressed no concerns of the children in their mother’s care to the report writer, in his affidavit or under cross-examination indeed his evidence was to the contrary.

121.The options in this matter are now clearly focused: the children return to Country A with their mother or the children remain in Australia with their father. Whatever option I determine, the children will not be living with one of their parents, a circumstance they have not yet experienced and which will cause them grief, loss and sadness, for both children love their parents and the parents deeply love the children which was not only apparent from the report but also from the oral evidence. The father could not even contemplate the children not living with him in Australia and he became extremely emotional in the witness box.

122.The mother gave her evidence via Microsoft teams and I accept she too was emotional but I could not as clearly see her emotions as I could the father’s.

123.The family consultant did not see an equal time arrangement would be appropriate for the children, but, if the children remain in Australia, that they live with their mother and spend time with the father every second weekend. It is clear that what the family consultant was saying, absent the country the children live in it is best for them that they are to live primarily with their mother. That is clear on the evidence. If they live with their father, they will be cared for by the father, perhaps babysitters and his partner, a woman the mother agreed was very nice and the children had a good relationship with. They will not be living with their primary carer.

124.The opinions proffered by the report writer were predicated upon the mother being able to remain in Australia and the children living primarily with her. The report writer gave scant regard to the consequences for the children in living in Australia without their mother. The family consultant discusses this at paragraph 151 of the Family Report:

[If] the children remain in Australia and Ms Samsa returns to Country A, there could be opportunities for the children to retain their relationship with [her] through telephone/Skype and potentially through face-to-face visits in the future.

The relationship will not be as strong as they would otherwise be and the children are likely to be distressed at being separated from their mother.

125.That is a significant understatement. Distressed hardly covers the range of impacts the children would experience in being separated from their mother. There would be a significant impact upon their emotional development into the future as well as presently. This was scant regard to have to the impact upon children of being separated from a primary carer for Y at age 4 and for X with his particular vulnerabilities. X, has had significant difficulties achieving his milestones and through the strong efforts of his mother, supported by the father, has achieved them. X is still a vulnerable child and although progressing well he suffers anxieties and the only word the report writer used was “distressed”.

126.It is clear the report writer did not believe the mother when she said she would do anything she could to stay in Australia but cannot stay in this country as she opined at paragraph 151:

There is also a possibility the children will reject [their mother] in the future if they feel she has abandoned them.

127.The mother has not abandoned them. The mother has no option but to leave this country and the father does not agree, understandably, to them then returning to Country A.

128.The report writer raised as an issue that the children do not speak Country A or Country R. These are young children who immersed in an education system in another country will clearly pick up the language and their mother speaks excellent Country A as do all their extended family in Country A. This was a short-term issue which really was not of great weight given the consequences for the children of the decision I am tasked to make.

129.Similarly, the report writer gave scant regard to the consequences of the children living in Country A and being separated from their father other than that she did not believe the mother would support an ongoing relationship between them saying at 147 of her Report:

The children are likely to be upset if they cannot see [the father] in the future.

130.Upset hardly describes the emotions the children will experience from this outcome. There was no analysis of what it really meant for them to not be living with their mother or not be living with their father and little assistance to their parents to understand for the children these inevitable consequences given what will now occur which is their mother returns to Country A and the father stays in Australia.

131.I find this lack of in-depth analysis in the report of one of the more crucial aspects of the consequences of the decision I am tasked to make, occurred because the family consultant did not accept, could not believe, could not comprehend that the mother would be forced to leave this country and yet that is clearly the impact of our immigration laws at present. Had the report writer accepted this was a possibility then she could have analysed the capacity of the father to return to Country A and how important that would be for his children given the mother has no option but to return to Country A. That was not even considered in any depth by the report writer. The report writer accepted the father’s clear position that he had no intention of returning to Country A and did not press him on his position if the children went to Country A with their mother.

132.However, even in this somewhat superficial report, it is clear the report writer was opining that it was best for the children to live primarily with their mother. The mother made it clear in the report that she thought Australia was one of the best countries to live in. The report writer commented at paragraph 45:

But the mother seemed to suggest the children’s opportunities were inextricably linked to hers.

133.The children’s opportunities are linked to hers as she is their primary carer and she must leave Australia. It was for the family consultant to tease out what it meant for the children living in Country A without their father and living in Australia without their mother and she failed to do that in any depth.

134.The father persisted that the mother was being difficult in not being on his 457 visa, that she was in some way obstructing this happening and that she was not being cooperative when the reality is she was correct she could not be in his Visa as his own migration agent testified. The reality is the mother’s position on this was correct and the father’s position was wrong.

Dr O’s evidence

135.The father’s abusive, coercive, controlling and threatening behaviour as alleged by the mother is consistent with the opinion of Dr O who saw the parents for 12 sessions from 12 April 2017 to 27 July 2017.

136.On the last session Dr O saw the parties, the mother had sent an email previously which Dr O reports as stating, “He verbally threatened to kill her. She reports to be scared and hopes he will calm down and come to the session and calm down. They both came to the session… and he had said to her, “If you keep talking like this, my hand is the last thing you will see”.

137.Dr O asked if there was similar situations in the past, and the mother said there had been when he lost his temper, but there has been no physical violence. Dr O says this:

I stated verbally that it is unacceptable and verbally abusive saying things like that, even when we feel angry or triggered.

[The father] says he takes ownership and says he never meant to touch her and he was very angry.

138.Dr O continues in her notes of 27 July 2017:

I said that if that continues and he struggles to manage his temper he would need to do some anger management course/therapy/counselling. I also explained what that means and the potential consequences for him and his family. I stated that if I believed that [the mother] and the kids are at serious risk of harm, I have the duty to report it. He apologises and seems to understand the serious consequences for his family.

139.Dr O reports in the penultimate paragraph:

I said that after 10 sessions, we did not make any significant progress and I believe now that it would be counterproductive to work on the relationship under this circumstance. I recommend an individual counselling for him focusing on anger management. I emphasised the resistance and ambivalence [he demonstrated] and how difficult … therapeutic work [is] where there is no internal ownership and everything is projected externally.

140.The mother reporting she was scared in 2017 is consistent with her reaction to the nasty altercation on 6 March 2020 and the threats made to her by the father at that time. The argument in 2017 concerned the mother wanting to travel to America for a holiday and to see a friend.

141.The father said to Dr O he takes ownership and he never meant to touch her and that he was very angry. The father denied when cross-examined by Mr Harper, that he was angry on 6 March 2020.

142.Dr O explained what it would mean for his family if he continued in this vein and that if she believed that the mother and the children were at risk of harm, she had a duty to report it. He apologised and seemed to understand the serious consequences for his family.

143.It was at this session that the mother said to the father she did not want to remain in the marriage although the father wanted the marriage to continue. Thus, I accept what the mother said, that from her point of view, in mid-2017 her marriage to the father was over.

144.I accept the mother remained living with the father as she was in a very difficult position. The father had the right to remain in Australia on his then 457 visa yet she had no independent right to remain as a resident of this country. The mother and children were not citizens or permanent residents of this country and totally dependent financially on the father. The mother had nowhere else to go, little financial resources to take her children with her and the father said he wanted the marriage to continue. I accept that the mother wanted to see if she and the father could work something out on an amicable basis and they have been amicable in the past on many occasions concerning the children.

Incident on 6 March 2020

145.The most telling evidence to support my opinion that the father has perpetrated family violence upon the mother and in the presence of the children is a recording by the mother of the nasty, vengeful, angry, destructive verbal fight the parents had in front of the children on 6 March 2020.

146.This verbal altercation between the parents on 6 March 2020 was transcribed from Country A into English and is distressing to read. As the mother asserted in her material, she returned to the former matrimonial home to have her children return to her care. There had been poor behaviour and arguments between the parents in the past and the AVO proceedings in which she asserted the father said “when I hit you the last thing you will see is my face” had been dismissed for want of evidence in July 2019. I accept her evidence that she recorded the encounter on 6 March 2020 as she was fearful of the altercation that might ensue.

147.Further, it is clear to me she did not want to be in the same position she had been in July 2019 when the AVO against the father was dismissed for a lack of evidence to support her allegations of the father’s unacceptable conduct and behaviour towards her.

148.Although this taping was an illegal act by the mother and I accept carried out to gather evidence, the mother was clearly protecting her rights and had already been scarred by the outcome of the previous AVO proceedings.

149.There was much criticism of the mother recording this conversation and properly the father’s case was that the evidence be excluded from the trial. However, I formed the view it was in imperative I read this evidence. I found that the taping although illegal fell within an exception under the Evidence Act 1995 (Cth) as being necessary for protection of a parties interest, namely the mother’s interest as it tended to prove the mother’s allegations that the father had made death threats to her and was verbally demeaning, abusive and coercive of her.

150.The behaviour of parents is germane to my determination as to whether I rebut the presumption of equal shared parental responsibility or whether that responsibility is shared, acceptance or otherwise of the mother’s allegations that the father had perpetrated domestic violence and made death threats against her in his verbal and oral abuse of her and ultimately informs my findings and forms an important part of my decision as to what order I should make in the children’s best interests.

151.I find that the father made threats to kill the mother on 6 March 2020. His explanation in his affidavit filed 25 July 2020 of what I regard as poor behaviour by both of them but from the father’s point of view, threats to physically harm, and kill the mother, made directly to her by him is not accepted by me.

152.The transcript attached to the mother’s affidavit commences at page 20 of the exhibit to her affidavit of 3 July 2020 and ends at page 53. The father’s affidavit answering these allegations was filed on 25 July 2020 as directed by me. He says the following at paragraph 2:

I’ve now had the opportunity to read Ms Samsa’s trial affidavit

3. I have read in particular paragraphs 396 to 406…which relates to an argument that occurred between us… 6 March 2020.

153.The father has also read the original Country A transcript attached to the English translation. He had previously addressed at paragraphs 30 to 36 in his original trial affidavit of 3 July 2020, some of the allegations raised on about his behaviour on that occasion but he did not have the transcript.

154.At paragraph 6 of his affidavit of 25 July 2020 the father says:

I accept that there was an argument which became heated. This was mutual and Ms Samsa’s temper increased as we argued to the point where she became physical, physically pushing me so as to cause me to lose my balance and injure my right arm. I accept that I became frustrated and my voice was raised; however, I did not threaten or intimidate Ms Samsa during the argument. It was an argument that I felt as though Ms Samsa had arrived at my home to provoke me into the argument.

155.This was thematic through the father’s material. When pressed on the issue of, “What was your responsibility for the argument? What’s your part to play in this?” the father would say, “It was not good; however, the mother provoked me. I should not have done that, but the mother pushed me to it.” Why this evidence is so important because the father’s propensity to blame others for his poor behaviour, was picked up by Dr O, the counsellor they attended at the end of their marriage.

156.The father says he agreed to the mother taking the children but needed to know her address. However, the mother was staying at a refuge and told him she could not provide the address and the father simply would not accept that. When the mother arrives at the property she sees the children and observes that the father has moved to the apartment downstairs, the former matrimonial home.

157.X says at page 2 of the transcript, “Mamma, we’re going in the car.” The mother says, “Mr Dobra, they’re coming with me.” “No, no, no,” says the father, “You have to give me the address and I will bring them. Give it to me, give it to me.” With these words spoken by him I reject the father’s evidence he agreed for the mother to take the children.

158.I find as part of his control and needing to know what his wife is doing at all times, he would not let her take the children. He did not accept the mother’s words to him that because she was living a refuge and by law she could not tell him her the address and he kept pressing her. This is an example of what the mother says is the father’s control of her wanting things to be his way.

159.It was put to the father he was furious and became angry and agitated. He would not accept he was angry and only agreed he was upset. It is clear to me from reading the material that he was furious with the mother. The mother was accusing him of not supporting the children, telling him she had not abandoned the children, would not tell him where she was living and was criticising him as a man, father and provider.

160.These were all deeply offensive matters to the father as is clear from his reactions, words, threats and abuse. He behaved appallingly, and the mother’s behaviour was far from acceptable as well.

161.The father maintained the mother provoked him. At no time did I see any indication from him to cease the argument, that he would walk away and leave the argument. The father maintained the argument as did the mother yet she did not abuse threaten or coerce the father in her conversations and appeared to have more emotional control than the father who was at times uncontained.

162.The father said certain words transcribed at paragraphs 397 and 398 of the mother’s affidavit of 3 July 2020 do not have the same meaning in Country A as in English such as prostitute and I accept this is more likely to be correct give the vagaries of translation and the difficulty in translating idioms.

163.He conceded at paragraph 6(c) of his affidavit filed 25 July 2020 to calling her “not a mother. Gypsy”. He agreed calling her a gypsy was not a positive comment and said:

I said this because of the accusation made to me by [the mother] that I did not contribute to the maintenance and upkeep of the children, yet she [bought a new car for herself].

164.Again, this is the father saying, “The mother provoked me saying something unfair and I reacted.” That is no justification. The father is a very tall man, well over six foot. The mother is very small. He is a strong, big man with a powerful big voice. The father did say he regretted saying these words.

165.At paragraph 398 of the mother’s affidavit filed 3 July 2020 the father said the words:

Kick your ass...Break this head.

166.The father at paragraph 6.c.i of his affidavit of 25 July 2020 says there was context to him saying this, “because Ms Samsa provoked me” and had said to him:

Lucky there is still someone healthy in your family who is telling the truth, for what happened in your family and what your father did. Mamma Mia! I can’t wait for this to come out.

167.Again, this is the father saying, “The mother provoked me saying something unfair and I reacted.” That is no justification. The transcript at page 30 of the exhibits to the mother’s affidavit of 3 July 2020 records the father saying:

They’re behind with what? You’re behind, not me. You are retarded within your head. Your lack of culture, with everything, you’re not a mother, ok, you’re not a mother, you’re a bastard, you’re a gypsy, you are, that’s what you are, a gypsy, Ok.

I don’t pay for the children? You took $30,000, a disgrace, you bought a new car. You spent all the money, you have no money. You came to ask for $4,000 three, four days ago.

168.The children are in this conversation:

Daddy said it’s going to rain.

169.Questions:

You been at school today?

170.The Father asks the children at page 28 of the mother’s exhibits:

You want to come, do you want to go? with your mum? You want to go?

171.The children reply, “I don’t know.” The mother tells the children to drink water, go inside.

172.At page 27 of the transcript the father calls the police, and says “I need a car here.” The father says “There is the mother wants to take your kids.” The mother says “He’s violent. He pushed me. He did that,”. X is crying, “Mummy, I don’t want you to go to jail.” The father says “Okay. Let’s drive her. Let’s see where you live with my car. Let’s see where you live. And I will follow you. The children will stay with me.” The mother: “No, no, the children will be in the car with me. I can’t do this, I can’t. Don’t move from here. Leave the children. Leave the children.” The father replies: “No, you come and collect the children when you have a roof over your head, a house like this one.”

173.That is the father’s version of agreeing for the mother to take the children. He clearly did not.

174.He says to the mother at page 11 of the transcript:

You managed to get into this condition yourself with this sick head of yours.

175.The father contends that his wife aggressively demanded $15,000 from him, pointing her middle finger to his face and saying, “Shove this up your arse,” and his reply was, “15,000 kicks in your arse. That is what I will give you. The day will come when you break your head. Maybe not today, tomorrow but it will come.”

176.That is a threat to kill someone and physically injure them as clear as can be. The father’s attempt to say that she will break her head because of the crazy lies she tells and pushing him is not accepted by me and I find is the father justifying the unjustifiable. At page 13 of the transcript the father says:

You are crazy, your mother is crazy. Yes, I will tell him when he’s grown up and he will realise for himself, facts will talk, what you did, why I brought here, with me, to make a family, create a new life, you destroyed everything and you’re in the process of destroying their life too, do you understand, you destroyed everything.

177.Page 15:

Ok, and you, you, you, instead of staying here looking after your children, no. you always need someone else, you can do a fuck all for yourself, not even being a mother, you can’t even do that.

178.The father says he was “getting up at 5 in the morning and returning at 10.” The mother says, “To go where? To go where?” and the father replies, “Where? To work.” This is a complaint of the mother. The father worked very hard and she was left on many occasions with full-time care of the children for long hours at a time as the father’s focus is clearly, as it was at the trial, on earning money and his job.

179.At the bottom of page 15 of the transcript, the father says:

What are you throwing back in my face? You should be ashamed, sick in the head, chronically sick in the head, OK, you are sick, sick, sick, you must get treatment.

180.At page 16, the father to the mother:

I have someone who loves me. I have someone who loves me. You have fuck all and you never have anyone.

181.The mother replies, “Because she doesn’t know you yet.” Further down on page 16, the father says:

Ah, yes, yes, you imbecile who understands nothing, who is stuck, who has no qualities, who isn’t capable of anything, you always need someone to help you, but don’t say anything, I want independence, I want to be independent.

182.The father in his most recent affidavit at paragraph 6(c)(vii) describes the last paragraph as an incorrect translation. He says, “…who is stuck. Who has no qualities…” should in fact state that the father said to the mother, “You are an imbecile that doesn’t understand anything, you haven’t got any qualifications, you always need someone else to help you, and you want to be independent”. These words confirm the mother’s case that he demeaned her during the marriage.

183.Page 25:

You instead, do understand fuck all, you a poor crazy woman, sick, ignorant, stupid, OK and you continue to beat your head against a wall. I always said it, no, the one person here…the only person here…was me, you screwed me, you screwed me more and more.

184.The parties, at page 27 of the transcript, fight about the father working so hard. The mother says:

You were working 5 to 10 at night rather than being a father.

185.The father says:

You should have kissed the hands of a man who worked.

186.The mother in response:

A man, you call yourself a man?

187.The father:

But I am a man. You are a bitch. I am a man as well as what you’re reading...

188.At page 29 the father says:

You still haven’t understood that you are a villain, you are not a mother, you are a villain, you are a selfish, number one really, you are thinking only of yourself.

189.The father called the mother moron, crazy, stupid, bitch, said she did not take responsibility. He called the maternal grandmother a moron, a woman who had come out from Country R consistently to assist the parties to care for the children, as well as financially assist them.

190.The father says at page 14 of the transcript that, “[he’s] not ashamed at all, because a mother, a real mother would have told you, what the hell are you doing?” The father is speaking of a grandmother was looking after the children to enable the parties to work and save money, which they did.

191.He called the mother a bastard, a gypsy. The mother says:

Let me take the children. I’m their mother. Why wouldn’t I be looking after them when you’ve got a babysitter?

192.The father replies:

When you have a roof over your head…decent…not a shelter, not a shelter… I won’t let the children live there, I won’t let the children live there. I won’t let them live in a shelter.

193.The mother says:

It’s a house, a normal house

194.The father:

I won’t leave the children with you. I must talk to someone who is giving you this apartment, this roof.

195.The father does not accept what the mother says. He wants to know.

196.At page 12 of the transcript the father says:

I will kick your ass 15,000 times because the day will come where I will break this head, you understand. The day will come. Not today, not tomorrow, not a year, but the day will come.

197.The mother says:

What for, What for?

198.The father says:

It will come that I will detach your head from your neck, do you understand?

199.The mother then says:

Did you see your father, did you see what he did? He said he’s going to kill me, he’s going to cut my head one day and I’m going to pay for this.

200.This was a poor decision by the mother to directly involve the children in this nasty altercation.

201.The Father’s translation of this most concerning comment at paragraph 6(c) of his affidavit of 25 July 2020 is:

It will come that I will detach your head from your neck, you do understand? For all that you’re making the children go through.

202.When pressed on whether he said those words the father said:

Yes, I said those words, but you have to see this in context.

203.In his attempt to explain what he meant by this threat of physical if not lethal harm to the mother and context, he said at paragraph 6(c)(iii) of his affidavit filed 25 July 2020 he meant that if the mother continued to lie like she did and twist the truth as he asserts she does her head would detach from the neck because she would not be able to cope with lies anymore all.

204.I reject that evidence. The father was clearly threatening the mother with violence and was threatening to cut her head off, and the mother was justified to view this as a serious threat to harm her mortally whatever the father may believe. This evidence supports the view I have reached that the father’s behaviour has been and was at this time uncontained.

205.The context the father very often spoke of as a means of explaining his unacceptable behaviour was that he was provoked and, “I did not intend these things to be said. I did not intend someone to feel fearful. I did not intend someone to think I was going to rip their head off”. The context of the father’s threat on this occasion was that the wife had been talking about his just deceased father, saying bad things about him, but that he did not lose his temper. I reject that evidence. He knew exactly what he saying and the intention. He was threatening her with physical violence to get his way and stop her from taking the children from his care.

206.The father does not understand his intention is not the issue rather it is how the person he is speaking to receives his message.

207.The father made what I regard as a totally unbelievable comment. He asserted he had only ever once, on the one occasion the mother recorded, used these disgraceful and threatening words to her. I reject that evidence in its entirety. The conversation in this transcript, at page 27, is clearly a conversation that has been had again and again:

If the mother has the last word, I would not be very happy.

379.I agree. He would not be very happy, because that is not how their relationship has been. The father did not understand that because the mother had been the children’s primary carer, they would be more comfortable with her and able to express their real feelings more easily with her than him. He would not accept that position.

Father’s proposals

380.I am confident that if the children were in their father’s care he and Ms L would remain in the Suburb W area and that he and she would form a team to assist in caring for the children whilst Ms L also attended to her own children who, although not young, still require their mother’s assistance. They both described how well X was doing at the Suburb W school and that they would be most concerned to remove him from that school. I was also confident that they had discussed moving to Country A and the difficulties that would present for Ms L in that she does not speak the language, will be leaving her own children and had no job to go to. I accept they had discussed the prospects of the father obtaining employment in Country A and agreed that there were very dim prospects of that happening.

381.I accept that the father’s work would be supportive of him and let him have the odd day or two off for the children if they were in his care when it is needed and that he has accumulated 40 days at least of leave. Although he has two uncles and two and their wives in Australia his closest relationship is with his uncle Mr U who owns a property he resides in.

382.I found the father’s partner, Ms L, to be a kind, considerate woman who showed understanding of the children’s needs and would assist the father to understand the need to attend counselling and the benefit he can obtain from counselling and she was quite switched on in that regard.

383.The children remaining in Australia would continue X’s school, friends and usual school routines.

Oral evidence of report writer Ms P

384.Ms P had formed the view that the father was the parent best able to promote the children’s relationship with their mother as the mother said to her, at paragraph 45 of the Family Report:

In relation to the children’s relationship with their father, Ms Samsa said the children would miss Mr Dobra but would “get used to it”. She said that after the observation, both children being upset. Ms Samsa said that Y wanted to stay with the father and X had told her that he wanted to cry because it had been so long since he had seen his father. Ms Samsa said that she thinks that Australia is one of the best countries to live in but seemed to suggest the children’s opportunities were inextricably linked to hers.

385.On this evidence alone Ms P’s position was justified, however this is not the complete evidence. I have formed the view that the mother was, at that time, in a difficult position and perhaps reacted badly to Ms P’s questioning and said things that now she does regret. I do not find she has prevented the father spending time with the children historically for one of the arguments they had in February 2020 was that she wanted the father to take Y as well as X it being his birthday and the father was initially reluctant so to do. This was at the time she was assessing alternative accommodation for she and the children finding it intolerable to live the former matrimonial home with the husband living in the unit above the property.

386.Secondly, children do not live in a vacuum and the mother knew she had to leave Australia, that the father did not accept this as a reality and having no capacity to stay in Australia she wanted to take the children with her to Country A. Although the children had not spent time with their father from 6 March 2020, she had offered time if it was supervised, a position the father could not tolerate.

387.Importantly, he had threatened to kill her on 6 March 2020 and she was justified in being fearful of him, but I agree she was dismissive of the importance of the father in the children’s life to the report writer.

388.The mother was still putting forward orders for the father to spend time with the children on a supervised basis even after he clearly threatened to kill on 6 March 2020 and this was a mother being protective of the children but acknowledging the importance of the father in their lives. It was the father who could not accept this offer.

389.Thus, despite her unfortunate comment to the report writer, the mother’s actions have not been those of a parent wishing the children to have no relationship with the other parent and this would fly in the face of her clear criticisms and complaints over the years of their relationship that he spent all his time working and little time with them.

390.It was surprising to the Court that the report writer still maintained her position that the father had a better capacity to promote the children’s relationship with their mother after she had read the disgraceful words, conduct and behaviour of the father towards the mother on 6 March 2020 including clear threats of death.

391.The mother is direct and very truthful, to her detriment at times, and Ms P agreed with this and this is contra the father’s presentation and behaviour.

392.Ms P was clear, the father needed to engage in counselling for his own benefit, particularly about ownership and the consequences to others of what he has done and how he has treated the mother. Ms P was clear that it is was most important that if the father did engage with the therapist he took on board what they were saying. This is a concern I have for despite the clear evidence, agreed to by his lawyer, that the mother has no capacity to remain in Australia, he still persisted that was in some way she could by obtaining a student visa. The father heard the facts told me he accepted the reality but did not take it on board.

393.As the mother cannot stay in Australia I put to Ms P that the thrust of her report had been that the children should remain in their mother’s primary care and that she had been their primary care. Ms P agreed. I then asked now that we know the mother cannot reside in Australia, the issue for the Court is whether they reside with her in Country A, she being their primary carer, or they remain here in Australia with their father and she agreed this was a difficult choice now.

394.Ms P said that her concern had been the stability and known consequences for the children of living in Australia and the unknowns in Country A. I said to Ms P there is a significant difference between separation from a primary carer parent and a parent, and she agreed that was true.

395.Although Ms P was not fulsome in her second report, when being questioned on that report of the consequences for the children living separated from their parents she had said at paragraph 1:

…they will grieve this can affect [their] emotions, thoughts an behaviour, beliefs, physical health, sense of self and identity and relationships with others. Grief can promote feelings of sadness, anger, and anxiety. [They could] become overwhelmed, feel isolated and irritable.

396.Only in cross-examination did Ms P agree such children can also:

Suffer depression. They can feel a sense of self loss. They can take risky behaviours as adults.

397.This issue and others were fleshed out in cross-examination by Mr Harper when she said:

It was unknown how the children will react to the loss of their mother, unknown how they will react to the loss of their father, but I knew about them living here and that weighed heavily in the balance for me.

398.Ms P agreed she could not give a definitive answer that the father would engage with a clinical psychologist, but that is what he needed. She agreed that Y was more attached to her mother than the father, but X was attached to both parents. It could be a serious threat for Y to be separated from her mother, and she agreed that the argument and the words the father used to the mother would have instilled fear in her, and she was justified in saying that the father had threatened her life.

399.Contrary to Ms P, I formed the view it would be almost impossible for him to promote a relationship with this mother when he thinks she is an: “Imbecile, sick in the head, stupid, worth nothing, can’t do anything for herself, has to be helped”.

400.X encapsulated for me a finding I will make when he said at paragraph 99 of the first family report:

X said he would be happy to live in Country A but would be sad if his father remained in Australia. [He] said that he would miss his school friends and teachers if he lived in Country A.

401.I agree with Ms P that in a matter such as this you cannot rely on the wishes of an eight-year-old, given he really does not understand the implications of such a move. However, I would hardly call what X said a “wish”. I would regard what he said as him having thought about and analysed a move to Country A from his position and told the report writer how he saw the situation.

402.Although he did not know all the implications he knew quite a few. He knew he would miss his friends, his school and his teachers and he knew he would miss his dad but he would be happy to live in Country A and I add the words, “with his mother”. That is what X was telling Ms P was his take on the situation and X is correct.

403.I formed the view that for these children to be separated from their mother and not live with her primarily would be a disaster for them at every level. Emotionally, psychologically, educationally, socially in the short and long-term.

404.I find that their mother does have a greater capacity to deal with the children’s grief in being separated from their father than the father would have if they were separated from their mother. The mother’s capacity to support the children to deal with their grief is at a far higher and more sophisticated level than the father’s capacity which is very limited and quite naïve.

405.Further, I find the mother has the better capacity to promote for the children a beneficial relationship with each parent for although she like the father does not have much respect for the father she does not behave in the fashion the father behaves and has not spoken of him in front of the children in the manner he has spoken of her.

406.The father failed to provide any time for the children and the mother from February to April 2020 when he retained the children and yet criticised the mother when she put forward a supervised regime of time given he had made clear death threats to her in the fight on 6 March 2020.

407.The father demonstrates no insight into his behaviour its impact upon the mother of the children and still to this day believes he is blameless and that the mother provoking him is in some way justification for his poor behaviour and treatment of her.

408.Ms P agreed the mother was very honest and direct in her answers to her in the family report, that access to the children’s paternal family in City B would help with the loss of their father, that the detrimental consequences of separation from a parent rears its head in adolescence when children are trying to find sense of self, that the better supported the children are in thinking positively of and spending as much time with the absent parent, the better they will react.

409.Supporting a relationship with the absent parent is a win-win as Ms P opined because it is good for the child and it is good for the parent who is solely parenting the child. Otherwise, I said to her, using my words, “They will arc up”, and she agreed that is a possibility. Ms P thought them not knowing Country A language was only a short term issue and they would quickly pick up language, as children do, and I agree.

410.Ms P agreed with Mr Harper that the loss of the mother in the children’s lives would be catastrophic, and I accept that this is a proper description of what it would mean for the children. To her credit, Ms P deferred to Dr O, who had seen the family about 12 times over a period of three months relation to the father’s behaviour attitude and conduct.

411.Ms P said that Dr O would know the parents better than she and that Dr O’s notes confirm and corroborate the mother’s story of the father’s treatment and behaviour of her during the relationship which they do.

412.The mother’s story has been consistent. The father has not told the truth. Ms P agreed that although the father had not been physically violent, that the swearing, denigration, the hurtful words is abuse of her emotionally, and not being physical just means she has not been physically hurt.

413.Ms P agreed that the father did have a lack of empathy. He could not understand the impact of his words, “If you keep talking like this, my hand is the last thing you will see” was a threat to the mother. “I will detach your head from your neck” was a threat to the mother. “I will be behind you. I will be behind you to the end” was a threat to the mother, and that he did not understand much from the mother’s position.

414.Ms P agreed this could be a difficulty with him being able to put himself in his children’s position and look at matters from their perspective, and reiterated he should have anger management and counselling now.

415.Ms P agreed the transcript was showing angry and uncontained arguing, that the children were exposed to this damaging argument and Ms P agreed that although they could not speak Country A, they would have known their parents were arguing. The father would not agree to that proposition and said as they did not speak Country A they would not know.

416.Ms P agreed that if the father does not get the support he needs, his reaction in times of stress being anger denigration, calling of names, raising his voice could undermine his capacity to be an empathic parent to the children, and Ms P agreed that this is possibility if he does not get that support.

417.Ms P said if the children are to leave Country A with their mother, it would be very important for the father to have support before they leave so that he can react appropriately with the children, and it may even be that his time with the children should include his support person. This is so he does not catastrophize and maybe accentuate for the children the grief and loss they are going to feel knowing they are not going to see their father for some considerable time. I put it another way. I said to Ms P:

So the father needs to make it easy as possible for the children to leave him?

418.She said:

That is correct.

419.She confirmed he would need assistance to do this, as maybe all parents would.

The parties’ positions

420.The Independent Children’s Lawyer posited that, on balance, the best or least worst outcome was that the children relocate to Country A with their mother. The father was not as available to them emotionally as was their mother. He did not have the insight and understanding the mother clearly demonstrated. He was not as amenable to psychological assistance for himself and the children. Y is very young and for both children, is a catastrophic thing for them to be separated from their primary carer.

421.The mother has a plan and she can live in City EE or City B. An offer of a job with an old employer, the children will attend school as they would in Australia. The mother speaks Country A fluently and lived in Country A for many years. She has her mother close by in Country R, and the mother will maintain contact for the children with their father.

422.Mr Harper’s short submissions are this: The mother has been the children’s primary carer, which continues. She cannot stay in Australia. They must live with her. She has the best capacity to parent these children in this very sad situation, not having their father in their life for some time, and if he chooses, he can live in Country A, although I understand his choice is not to do so.

423.Mr Harper said the father has many positives: He is hardworking, he has an engaging personality, and is personable. However, he has perpetrated domestic violence on the mother, and he does not understand the impact of this upon the children or the impact of this upon the mother in their relationship, and he has no empathy with the mother at all. To say that he only treated and spoke to the mother in this fashion on one occasion was a lie, and I accept that submission. Him saying, “I didn’t mean it” as an excuse was most concerning and is indicative of him not accepting responsibility for his behaviour.

424.He has exhibited controlling, coercive behaviour towards the mother, and it has been very difficult for the mother to live with him, and perhaps for him to live with her. He would not accept he needed an anger management course and blames the mother for his responses. Dr O raised this in her notes and this attitude continues today.

425.The children need the best able parent to parent them, and that is the mother. I can be confident the mother will provide the children with time with their father by Skype, telephone and the like, and when he can travel and come to Country A I am confident she will provide the children to the father in accordance with the orders she proposes and be flexible about them seeing their paternal family.

426.Mr Havenstein, whose submissions were heroic given his case had flipped 180 degrees since it began with the agreed evidence of each of the migration agents that the mother had no option to remain in Australia and had to return to Country A. He submitted that the mother’s return to Country A is not well thought out, practical or well researched. He complained that the mother had put forward to the Court three proposals. I reject that submission. Normally, in a matter like this, there would have been some interim hearings, affidavits and applications filed. This matter came on very quickly. It was only filed in May, and we had a final hearing in July and then, finalised in August and this is most unusual.

427.In parenting matters, there is refinement of parties’ positions taking into account the needs of the child as the matter progresses in the normal course through the court’s pathway. This time and experience assists parties to formulate orders they perceive are best for their children’s interests. In parenting matters it is hard to criticise a parent for amending orders as the child develops and grows and factual matters change and given the lack of the usual up to 2 years pathway that these parents experienced the fact the mother amended orders on three occasions is of no consequence to my decision. Her application was always that the children primarily reside with her and that is the gravamen of the case I was to ultimately determine.

428.He submitted that I could not rely upon the letter she received from her employer as a letter of employment. However, this is someone she has worked for before and she explained this in her oral evidence. I accept the mother knows this industry has some skills in this area and importantly she has worked for this company previously.

429.This is a capable mother who has always put her children’s best interest to the forefront, and I will accept what she tells me. The mother is a witness of truth, to her detriment at times. The mother has two housing options: a semi-rural property in City B and a unit in City EE. It was up to the father’s lawyers to question her, cross-examine her or her friend Ms G and whether the mother and children could share their apartment, given COVID-19 restrictions in Country A and they did not. I am satisfied that apartment and that room is available to the mother for a period of time until she gets on her feet. I am satisfied that the semi-rural property near City B is available to the mother.

430.I accept the semi-rural property in City B may not be the best option, given the mother wants to work in City EE. I was satisfied that in a very much shortened timeframe than would usually be available the mother had done an admirable job in getting together arrangements for both work and accommodation in Country A.

431.Mr Havenstein submitted that I could find that the father only behaved as he did on 6 March 2020 once because the parties were under extreme pressure with the 482 visa application coming up, court proceedings coming up, and uncertainty about where the children were to live. I reject that submission. The father always intended to include the children on his application for a 482 visa and wanted them to live with him and from his point of view there was no uncertainty.

432.The evidence does not allow me to accept this was one-off behaviour rather that this was the pattern of their behaviour during their relationship. This is how the father treated the mother during the relationship.

433.Mr Havenstein submitted that I could not be confident that when the mother went to Country A, she would not just instantly go to Country R to live with her mother, and I could not prevent this. The mother was clear in her evidence, “I don’t want to go to Country R. It holds nothing for me. I want to live in Country A. That’s where I lived. That’s where I met the father. That’s where we lived before we came to Australia”, and I accept the mother’s evidence as I have found she is a witness of truth.

434.I accept that the father does not know precisely what life will look like for his children and the mother in Country A. Neither does the mother. No one can when you are embarking upon a new life. The parents did not really know what life was going to be like for them in Australia, yet they came, and it worked out very well for the father and, for a period of time, the mother and the children. That can no longer continue as it was.

The Law

435.Reiterating the four principles distilled by her Honour in Morgan & Miles and are set out at paragraph 80:

The child’s best interests remain the paramount but is not the sole consideration

The parent wishing to move does not need to demonstrate compelling reasons.

The judicial officer must consider all proposals and make himself or herself be required to formulate proposals in the child’s best interests

The child’s best interest must be weighed in balance with the right of the proposed relocating parent’s freedom of movement.

436.Going down to the relevant factors that I must consider under section 60CC(2) and (3) of the Act and equal shared parental responsibility under section 65DAA of the Act.

437.I will rebut the presumption of equal shared parental responsibility given what I consider significant violence, abuse and death threats issued by the father towards mother during relationship. Additionally, given that the children will be living either in Australia or Country A it is not practicable or realistic that this important responsibility for shared. I find it is an order in the children’s best interest that the parent they primarily reside with will have sole parental responsibility. The parent will be required to inform the other parent of decisions they have made relation to long-term issues children for the children.

438.Having rebutted the presumption I need not consider an order for equal time or significant and substantial time and cannot make either order given the vast distance that the children will be separated from either parent.

439.It is clear the children benefit from a meaningful relationship with each of their parents.

440.The children have been subjected to abuse family violence and poor behaviour by the manner in which the father deals with the mother when they have an argument his denigration of her and his death threats towards her which have been made in the presence of children. Both parents have behaved poorly at times in front of the children.

441.The children are too young to express a wish in relation to this important issue of whether they live in Australia with their father or in Country A with their mother. However, X was aware of the consequences of living in Country A which was, would miss school, school teachers, and his friends and most importantly his father but that he would be happy living in Country A. I add to that happy living with his mother in Country A. Y is far too young at age four-and-a-half to have any idea of the consequences of the decision I am tasked to make.

442.The children’s primary attachment is to the mother she has been the primary carer as was clear on the evidence. The father works hard and works long hours and had only taken two weeks and a couple of days leave in the 7 years he has worked for his employer in Australia. That fact of itself tells the Court that the mother has been the children’s primary carer and that their mother is their closest emotional attachment.

443.There will be an upheaval in the children’s lives no matter what order is made. This is a significant factor impacting upon the ultimate decision I am to make for it is clear that these children will suffer grief and loss whatever order is made and it is an imperative that they are in the care of the parent best able to provide for their short-term and long-term emotional needs to minimise the grief and loss they will experience in being separated from one of their parents.

444.I have found, consistent with the report writer’s oral opinion that the mother is the parent best able to provide for the children’s needs in this regard given she has done so herself in the past by engaging a psychologist and was cognisant of the loss for the children of their father not living with them in Country A.

445.Further, I find consistent with the report writer’s oral opinion that the father has been resistant to any form of therapeutic intervention for himself when he is sorely in need of this intervention. The father also demonstrated minimal if any understanding of the impact of his poor behaviour and treatment of the mother upon the children. I found he had little capacity to accept responsibility for his poor behaviour and sought always to blame the mother whereas the mother was the parent most able to accept responsibility for poor outcome for her children and having witnessed their parents’ behaviour when fighting.

446.Both parents can provide for the for the educational needs of their children but the mother has a far higher and more sophisticated capacity to provide for their emotional needs as she is more switched on to the importance of therapeutic and other intervention if required.

447.Although I accept both parents have taken opportunity to spend time with their children the father was resistant to spending supervised time in April 2020 and I find that was due to his pride and that his needs overwhelmed the children’s needs at that time to spend whatever time they could with him.

448.It was appropriate in the absence of court orders for the mother to insist upon the father spending supervised time with the children given the threats of violence made against the mother and that he had already withheld the children from her in February 2020 for a period of some six weeks.

449.The children will suffer grief and sadness at separation from either of the parents but this is the sad reality of the two clear positions before me which is they live with their mother in Country A or their father in Australia.

450.There is a significant practical difficulty and significant expense in facilitating the children spending time with their absent parent. This difficulty will occur whether the mother comes to Australia to see the children in their father’s care or brings the children to Australia to spend time with their father; or the father goes to Country A with the children to spend time with their mother, or father goes to Country A to spend time with the children. The difficulty is not just the COVID-19 restrictions in both countries and obtaining and paying for flights in and out of countries, the necessary quarantine requirements in both countries, but there is also a significant problem for the father’s progress of his 482 skilled migration visa if he leaves Australia and the mother’s capacity to obtain a visitor visa.

451.It was clear from the evidence of the mother’s migration agent that if he leaves Australia whilst on a bridging visa he may not be able to return to the country and the processing of his 482 visa will be suspended. Similarly, the mother’s capacity to obtain a visitor visa is not assured either if he children are living in Australia with their father. I accept that at this time there is not only significant expense but significant practical difficulty for the children to be able to spend face-to-face time with the absent parent no matter in which country they primarily reside.

452.The children are young. Y is only four-and-a-half and to be separated from her primary carer would be, as the report writer ultimately agreed with, catastrophic for her emotional and psychological development.

453.In relation to X I accept and as mother agreed he and his father have a very close relationship and he may be more significant affected than his sister from physical separation from his father for a significant period of time. This is a matter that has caused the Court concern, however, I have found the mother is the parent best able to assist her children to deal with this loss and grief and X has the best chance of being able to manage the consequences of separation from his father in the short and long-term if he is in his mother’s care. I would be most concerned at the consequences for both children in managing the consequences of physical separation from the mother in the father’s care both in the short and long-term.

454.I have found the father has perpetrated family violence upon the mother and in the presence of the children during the relationship.

455.I will make effectively the orders each of the parents seek as they are very similar and provide for the children to have ongoing Skype and other telecommunication and electronic communication with the absent parent, for them to spend time with the absent parent when they come to the country in which the children are living and for the children to be able to spend time in the absent parent’s home when international travel restrictions so permit. These are the only practical orders the Court can make. I saw very little difference ultimately in the orders put forward by the parents and ultimately the Independent Children’s Lawyer.

456.Having regard to the only two options available to me and:

a)Given my findings of significant family violence perpetrated by the father upon the mother for which he shows little understanding of, or responsibility for and demonstrates no acceptance of blame; and

b)My finding the mother is the parent best placed to parent these children in very difficult circumstances of being without their father in their lives as they have been used to; and

c)That the father intends to remain in Australia yet can live in Country A and the mother must leave and return to Country A I find the order in the children’s best interests is that they live with their mother in Country A.

457.These children cannot be separated from their mother, their primary carer. To do so would be to perpetrate a distinct possibility of significant harm in the short term and into the future upon them.

458.The alternative of not having the mother in the children’s lives is catastrophic for them and thus, of these two sad and far from ideal options, the mother’s option namely the children living with her in Country A which is supported by the Independent Children’s Lawyer, is the order I will make.

I certify that the preceding four hundred and fifty-eight (458) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 14 October 2020.

Associate:

Date: 14 October 2020