SAYLOR & SAYLOR

FAMILY COURT OF AUSTRALIA

SAYLOR & SAYLOR

[2015] FamCA 205

FAMILY – CHILDREN – INTERNATIONAL RELOCATION - Where the mother seeks to relocate to Country D with the parties’ two children – Where the father seeks orders to prevent the mother from moving to Country D with the children – Where the father does not have permanent residency in Australia – Where the father seeks alterative orders that he children be permitted to relocate with him to Country E – Where the children have spent most of their life living in Asia – Where neither party seeks sole parental responsibility – Where the mother has a new partner living in Country D – Where the father has no personal ties to Australia – Where it is in the children’s best interests that they remain with their mother as primary care giver – Where orders are made permitting the relocation of the children to Country D.

Family Law Act 1975 (Cth) s 60CC, s 61DA, s 65DAA

APPLICANT:

Mr Saylor

RESPONDENT:

Ms Saylor

FILE NUMBER:

SYC

5299

2013

DATE DELIVERED:

27 March 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

2-4 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Eardley

SOLICITOR FOR THE APPLICANT:

Swaab Attorneys

COUNSEL FOR THE RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE RESPONDENT:

Karras Partners Lawyers

Orders

That the parties have equal shared parental responsibility for the children of the marriage, B born … 2005 and C born … 2006 (“the children”) but for the choice of school which shall be solely the responsibility of the mother.
That the mother be permitted to relocate the children to Country D.
That the children shall live with the mother.
That upon the mother’s relocation with the children to Country D, and in the event that the father resides outside Country D but is available to spend time with the children in Country D, the children shall spend time with the father as follows;
4.1In the event that the father provides to the mother not less than 21 days’ notice by email or SMS text message:
4.1.1 From after school until 8:00 pm on a school day; and
4.1.2 From 9:00 am until 8:00 pm on a non-school day;
provided that such occasions are for no more than four consecutive days in the case of Order 4.1.1, and in the case of a weekend occasion pursuant to Order 4.1.2, for no more than two consecutive weekends, during which time the father shall facilitate the children’s pre-existing after-school and weekend sports, social and extra-curricular activities.

4.2During school holidays, in the event that the father provides to the mother not less than 21 days’ notice by email or SMS text message:
4.2.1On the occasion of the Country D mid-year Summer holiday, for four weeks of such holidays and failing agreement as to which part, for the first four weeks in 2015 and every other year ending with an odd number, and for the last four weeks of the mid-year Summer holiday of 2016 and every other year ending with an even number.

4.2.2 On the occasion of the Christmas school holidays, as follows:
a)From 9:00 am on the first full day after the last day of the children’s school term in 2015, until 30 December 2015, and thereafter in each alternate year.
b)From 27 December 2016 until 9:00 am on the day immediately preceding the day of commencement of the school year in January 2017, and thereafter in each alternate year.

4.2.3On the occasion of the other mid-term school holiday periods, for approximately 75 per cent of the available days as agreed between the parties.

4.3 On the occasion of special events as follows:
4.3.1On the children’s birthdays, and every second year commencing this year and each alternative year thereafter, and upon the father giving to the mother 21 days’ notice by email or SMS text message:
a)If the birthday falls upon a weekend day, then from 6:00 pm Friday to 6:00 pm Sunday on that weekend.
b)If the birthday falls upon a school day, then from after school to 8:00 pm provided the father facilitates the children’s attendance upon any pre-existing after school activities.

4.3.2On Father’s Day, from 6:00 pm on Friday to 8:00 pm on the Sunday of the weekend of Country D Father’s Day, provided the father gives to the mother not less than 21 days’ notice by email or SMS text message of his intention to exercise such time with the children.

The handover of the children in Country D for the purposes of Order 4.1 and 4.3 shall take place at the front entrance of the residential building occupied by the mother from time-to-time, unless otherwise agreed by the parties by email or SMS text message.
In the event that the father resides permanently in Country D, the children shall spend time with the father as follows:
6.1Tuesday and Friday from after school until 7.00 pm each alternate week (Week 1);
6.2From after school on Friday to 5.00 pm Sunday each alternate weekend (Week 2);
6.3On the occasion of the Country D mid-year Summer holiday, for four weeks of such holidays and failing agreement as to which part, for the first four weeks in 2015 and every other year ending with an odd number, and for the last four weeks of the mid-year Summer holiday of 2016 and every other year ending with an even number;
6.4      On the occasion of the Christmas school holidays, as follows:
a)From 9:00 am on the first full day after the last day of the children’s school term in 2015, until 30 December 2015, and thereafter in each other alternate year.
b)From 27 December 2016 until 9:00 am on the day immediately preceding the day of commencement of the school year in January 2017, and thereafter in each alternate year.
6.5On the occasion of the other mid-term school holiday periods, for approximately 50 per cent of the available days as agreed between the parties;
6.6On special days as per Order 4.3 save that the father is not required to give 21 days’ notice;
6.7 The father shall be entitled to have the children spend time with him in    Country E once per year in either the Christmas break or the mid-term break at his election;
6.8      As otherwise agreed by the parties.
That with regards to Orders 4.2 and 6.3 the following shall apply in the event the father wishes to travel to Country E with the children:
7.1the father shall purchase and pay for return air tickets for the children, the mother and F valid for the day on which they are scheduled to depart from and return to Country D and shall provide those tickets to the mother as soon as practicable after the purchase of those tickets and not less than 24 hours after the purchase of those tickets;
7.2the mother shall ensure that she and the children attend Country D airport and catch the flight on which she and the children are booked;
7.3the father shall attend Country E airport on the date and time on which the mother and the children are booked to arrive and the mother shall provide the children to the father at that time;
7.4that at the completion of his time with the children in compliance with order 7.3, or as otherwise agreed by the parties, the father shall return the children to the mother at Country E airport 3 hours prior to their departure time to allow them to catch their flight from Country E to Country D;
7.5or as agreed between the parties in writing.
That both parties are at liberty to communicate with the children by telephone, email, Skype (or similar service) and Facebook (or similar service) at any reasonable time when they are in the care of the other parent and each parent is to encourage the children to answer the telephone when the other parent calls.
That the parents are to keep each other advised at all times of their current residential address, home and mobile telephone numbers and email addresses and notify the other within 24 hours of any change to these contact details.
The parents are each solely responsible for day-to-day decisions regarding the welfare of the children while they are in their care.
The parties are each to consult with the other and come to a joint decision about any long term matters concerning the care of the children and each parent is restrained from discussing matters with the children until a joint decision has been reached between the parties as to the appropriate course of action.
That the parents shall provide to the other all information regarding sports events, schooling, parent teacher night appointments and extra-curricular activities involving the children so as to provide them with the opportunity to attend.
The father shall be permitted to liaise directly with the children’s school and sporting bodies and to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress.
That both parents shall ensure the children attend all sporting commitments each weekend while they are in their care and both parents are permitted to attend at the children’s sporting commitments.
That each parent is at liberty to attend at the said children’s school for the purpose of any function or activity normally attended by parents.
That the father shall not consume alcohol or take any illicit drug or substance 12 hours prior to spending time with the children or during the time the children live with or spend time with him.
That the mother shall be permitted to obtain and keep updated Australian Passports for the children and the father shall do all acts and things and sign all documents provided by the mother to renew and keep those passports updated.
That the father shall be permitted to obtain and keep updated the European Economic Union Passports for the children and the mother shall do all acts and things and sign all documents provided by the father to renew and keep those passports updated.
That within 7 days of the date of these Orders, the father and mother shall, if necessary, do all acts and things and sign all documents necessary to renew both the European Economic Union and Australian Passports for the children which shall be held by the parties in accordance with these Orders.
That prior to either party travelling overseas with the children:
20.1 The travelling party shall provide to the other notice of their intended travel and forward a copy of their itinerary for travel to the other’s last known address or email, 4 weeks prior to the intended travel;
20.2The travelling party shall notify the other party by telephone that the children have arrived safely as early as practicable after the conclusion of the air travel part of the journey;
20.3The travelling party shall accompany the children on all flights during the period of overseas travel;
20.4The travelling party shall, not less than 2 weeks prior to the intended departure, provide to the other an email address and/or telephone number on which the children and the travelling party can be contacted during the holiday and shall facilitate the children contacting the other party every second day during the holiday period.
That each of the parties, their servants and agents are hereby restrained by injunction from:
21.1Abusing, insulting, belittling, rebuking or denigrating the other party;
21.2 Discussing these proceedings or the content of any document filed or intended to be used in these proceedings with or in the presence of the children (or any of them) and from permitting any other person to do so; and
21.3 Providing or showing the children any correspondence and email unless directed, to the children.
That the Applicant’s Amended Initiating Application filed in these proceedings on 15 August 2014 be dismissed.
That all applications and cross applications be and are hereby otherwise dismissed.

That all issues be removed from the Active Pending Cases List.

That all material produced on subpoena shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same not before fifty-six (56) days from the date of these Orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5299 of 2013

Mr Saylor

Applicant

And

Ms Saylor

Respondent

REASONS FOR JUDGMENT

Introduction

The central issue in these proceedings is whether Ms Saylor (“the mother”) should be permitted to relocate to Country D with the parties’ two children B born in 2005 and C born in 2006 (“the children”).
Mr Saylor (“the father”) opposes that application, asserting that the children should remain in Australia but also asserting that in the event he is unable to obtain permanent residency status in Australia then he should be permitted to relocate the children to Country E to live with him.
The mother was born in Country G in 1972 and arrived in Australia with her family in 1980. When she was 13 the mother attended school in Country H for two and a half years before returning to Australia.
The father was born in Country I on 18 December 1972. He obtained a degree and worked for over 20 years in the financial management industry. At the age of 20 he accepted an internship with a business in Country D where he worked for the next 16 years. During that time he spent two short periods in Sydney and one in City J. He met the mother in Australia in 2000 and they commenced to cohabit later in that year. A year later the father was transferred to City J and the mother went with him. They stayed there for some seven months before the father was transferred to Australia where they stayed for six months. He was then transferred to Country K in 2003. The parties lived in Country K until early 2013.
Prior to meeting the father the mother had, in the course of a previous relationship, given birth to a son, F (“F”), on 16 February 2000. He was about three months old when the parties met. F remained part of the parties’ household until January 2013 when, by arrangement with his father and the mother, he left Country K to attend boarding school in Australia. During the period of the relationship between the parties F was treated by the father as part of the parties’ family and acted towards him as if he was his father.
In 2009 the father changed jobs and entered a three year contract with a new firm. It did not go well and in February 2012 the contract ended and was not renewed. It is apparent in the parties’ evidence that their relationship was not going well at that time and it further deteriorated when the father became unemployed.
The father has not been in employment since that time. As a consequence of his previous employment, however, he receives share options worth approximately AUD$200 000 per year (depending upon the exchange rate) and will continue to receive those options for another two years. The payment of the options to the father is conditional upon him not obtaining work in an industry in competition with his previous employer.
The father’s family is County E and his parents continue to live in Country E. The parties were married in Country E and in most years have holidayed with the children at least once a year in Country E and in Europe with members of the father’s family.
In June 2012 the parties and the children travelled to Country E. The father attended the L Rehabilitation Centre for some four weeks suffering from depression, anxiety and alcohol dependence.
The mother asserts that the parties separated shortly after the father’s return to Country K from Country E following an argument between the parties.
In late 2012 the mother commenced to see Mr M.
The father discovered this new relationship in February 2013 and he asserts that the parties then separated.
The parties discussed where they would live in the future. There was discussion between them about moving to Country E, to Australia and remaining in Country K. Country E and Country K were proposed by the father and Australia by the mother.
During this time the father indicated to the mother that he would have her dependants visa cancelled so that she would no longer be able to reside in Country K, but a few days later informed her that that was merely a threat and that he was not proposing to do so.
In April 2013, without any notice to the father, the mother moved to Sydney bringing with her B and C. The mother accepted that she had deceived the father in so doing but said that she had felt that she had hers and her children’s interests at heart.
In May 2013 the father arrived in Australia for one week and spent time with B and C. During that time the children were enrolled at Suburb N Public School. It was the mother’s evidence that the father assisted to enrol the children. He called no evidence to the contrary. In any event for much of the remainder of 2013 the father travelled between Country K and Australia spending time with the children when he was in Australia.
On 4 November 2013 by consent, final property and parenting orders were made by this court.
The orders provided for the parties to have joint responsibility (sic) for the children of the marriage but the choice of school was to be solely the responsibility of the mother. The orders provided that the children were to live with the mother in Australia and that Australia shall be the habitual place of residence of the children.
Orders were then made providing for the children to spend time with the father with different provision being made for that time in the event the father resided in Australia for 28 consecutive days or outside Australia for a period of 28 consecutive days or more.
It is apparent from those orders that the father was continuing to travel in and out of Australia. His evidence was however that he spent a large part of the latter part of 2013 in Australia. He moved to Australia on 3 March 2014.
The parties were divorced on 21 August 2014.
In late December 2013 the mother took the children and F to Country E so they could spend Christmas with the father and his relatives and in January holidayed with the children and Mr M in Thailand.
Throughout this period the relationship between the mother and Mr M continued with Mr M travelling frequently to Australia. In late 2014 a daughter, O, was born by the mother. The mother and Mr M were due to be married in late December 2014 but the marriage was postponed due to complications arising out of the birth of O.
The basis of the mother’s application is that she wishes to travel to Country D to live with Mr M and the children. Mr M expects to be working in Country D for at least another five years.

At some stage in 2012 the mother and F’s father entered into discussions about F’s future. Ultimately it was agreed by them that he would attend boarding school in Sydney and in August 2012 he was enrolled to commence boarding school in Sydney at the commencement of the school year in 2013. He travelled to Australia for that purpose. Since the arrival of the mother in Australia he has been a weekly boarder, living with her at the weekends but also seeing his father regularly.
It has been agreed between the mother and F’s father that whatever the outcome of these proceedings may be F will remain at boarding school in Sydney and will either be a full time boarder or live with his father at the weekends. Provision has been made for him to spend time with his mother, wherever she may be, in school holidays.
On F’s birthday in 2013 the father sent F a text message. The mother said the father described her in that text message as “a whore”. The father said the content of the text message was:
I know why mummy is in [Country D] all the time. She is seeing another man up there. It’s ok we will be ok.
(Affidavit of Mr Saylor sworn 22 January 2015 at [26])

The father said of this message that he sent it when he was very angry and that he regretted sending it.
The father asserts that in response the mother then let F read all communications between the mother and the father. This is not likely. The immediate response of the mother upon learning of the texts to F on his birthday was immediately to suspend all communication between the father and F.
F’s father took the same steps. In an email to the father’s sister of 5 June 2013 he said:
I have seen text from [Mr Saylor] to [F] that are completely 100 per cent inappropriate to send/share views with a child/son… and therefore stand by a decision around restriction of communication until I can see sanity/maturity in place between [Mr Saylor] and [Ms Saylor]. I am sure you will do the same to protect your child from stress or unnecessary emotional distraction given the huge changes and challenges [F] is facing during important informative years.
(Exhibit AS1 of the affidavit of Ms P affirmed 15 January 2015, p 3)
Had the mother also disclosed private adult communications to F it is more likely than not there would have been a strong response against the mother by F’s father. There is no evidence of any.
The upshot of the father’s behaviour is that he has had no contact with F since.
The father in his case was critical of the mother for not facilitating him spending time with F. This is unfair. First, the decision was one of the mother and F’s father. Secondly, the decision of the two of them was in response to the father’s admittedly inappropriate behaviour.
F spends time with his father every week unless his father is away on business, usually on several occasions, and on the weekend. The mother described them as having a loving relationship. His father coaches his basketball team. Both the mother and F’s father attend parent teacher interviews. The mother said that it was her intention to continue to do so even if it required her to fly back from Country D.

The Mother

The mother has been and continues to be the primary care giver for the children. The mother has suffered from bouts of depression and has previously taken Xanax for a brief period of time. She has difficulty sleeping and has been prescribed Stilnox which she last took early 2014.
In late 2014 the mother was engaged in proceedings in the District Court. She said that at the time she had been suffering from a severe attack of depression and anxiety and that it was difficult to give her instructions to her lawyers. She tried Xanax but it made her too sleepy and she had previously not coped with Cymbalta. Her doctor suggested she might try Lexapro, another anti-depressant but she then discovered she was pregnant and did not take it. The mother said that she might commence Lexapro shortly, if her doctor agrees that it is appropriate.
For the purpose of these proceedings a family report was prepared by Dr Q. Dr Q thought that the mother’s clinical state was probably best described as an adjustment disorder with anxiety and depression although she may have had a major depression earlier in 2014. Notwithstanding, Dr Q was of the view that she had not suffered a major breakdown during which her parenting had been substantially impaired. He said:
This raises the question of whether if she remains in Australia, and relatively isolated from the major support available to her at the moment, who is [Mr M], she will have a higher level of anxiety and depression than if she moves to [Country D], and what would be the impact of this on the children. I would also note that it seems clear that she gets no practical support from her family from whom she has been more or less estranged for much of her life despite perhaps some slight improvement in the past nearly two years.
Overall I think it is likely that if it is the case that her parenting has been somewhat compromised already, this has adversely affected the boys, and that there would be an improvement in this were she to live in [Country D] with [Mr M].
(Report of Dr Q dated 22 January 2015, page 27)
Dr Q was not required for cross examination by either party and there were no challenges to any of his conclusions in his report.
Dr Q did note that since the move to Australia there has been a relative deterioration in the children’s emotional adjustment. He said:
This could be simply due to the breakup of the family and the unanticipated relocation, but it could also reflect in some degree that her parenting and her capacity to support the boys has been less proficient than previously. In addition there has clearly continued to be considerable acrimony between the parents, with each blaming the other.
(Report of Dr Q dated 22 January 2015, page 27)
I conclude from the above that any deterioration in the mother’s parenting ability and consequent impact upon the children could be ameliorated by her living in Country D with Mr M.
The mother has been the primary carer of the children. They were described by Dr Q as bright, delightful children with a broad range of indoor and outdoor activities. They were described as both quite sociable. Nonetheless Dr Q found that both children were emotionally vulnerable with an underlying anxiety. This was adversely affected by the unanticipated move to Australia and the possibility of a move to Country D. As far as the court is aware, the children are unaware of the father’s proposal to take them to Country E.
The father would prefer to see the children on an equal time basis. However that basis would see the children spending at least half their time with the mother. The consent orders of 4 November 2013 provided for her to be their primary carer. No doubt the father would not have done so had he thought there were significant issues with the mother’s day to day parenting ability.
Thus, even taking into account the mother’s regrettable decision to bring the children to Australia in a way that has exacerbated their anxiety, there are no major impediments to the mother’s parenting ability.

The Father

The father also has a close and loving relationship with the children although of a different kind to the mother’s. Dr Q described it as being a much more animated and noisy relationship. They have a strong and positive attachment to him, as they do to their mother.
The father presently takes Zoloft which is an anti-depressant.
The father readily admitted that he had a problem with alcohol although he would not say he was an alcoholic. When pressed, he said that he had a problem with alcohol at times of stress and that he did have a problem with alcohol in the past, but not now. The father has attended Alcoholics Anonymous for the last three months regularly and attended irregularly before then.
As I have said the father attended at the L Rehabilitation Clinic in Country E in June 2012. He attended his first Alcoholics Anonymous meeting as part of that course. After the attendance at the L Rehabilitation Clinic, the father said that he did not drink for approximately two and a half months and then commenced drinking socially and then excessively. He told Dr Q that he drank on an almost daily basis and that his intake was the equivalent of three bottles of wine.
Although it was denied by the father, he consulted a doctor in Country K about his drinking problems. The father said he discussed his drinking in the course of an appointment for another purpose and that the doctor he saw did not prescribe or suggest any drugs in relation to alcohol and that he had never taken any. Indeed, he said he did not have a significant problem with alcohol in the year before separation.
I do not accept this. The mother tendered a small plastic envelope with a label bearing the doctor’s name and address with the father’s name on it. Next to the word “medicine” on the label appears the word “Naltrexone”. The date of the label is 1 November 2010. Inside is an empty pill container for Naltrexone which had contained ten pills. As the father said in evidence Naltrexone is a drug which, when taken, makes one very ill if alcohol is then consumed. It is more likely than not that the father did receive a prescription of Naltrexone and took at least some tablets. This suggests that he had been prescribed drugs in an attempt to control his drinking problem.
When it was suggested to the father that he was underplaying the duration of any impact of alcohol upon him he said that he was not underplaying the issue, that he had an issue for the last two or three years but had addressed it. He denied that alcohol had impacted his ability to be a parent.
Although the father accepted that he became angry and belligerent with the mother at times when he was drinking, he would not ascribe any of his behaviour in events to which I will shortly turn, to alcohol. He said that he had not taken alcohol for some three months.
The evidence establishes that the father’s problem with alcohol was more severe than he accepts. It is more likely than not that his problem with alcohol played a part in the unpleasant incidents described in this judgment. If not, there is no excuse for his behaviour.
Dr Q said:
In my view it is likely that [Mr Saylor] has an addictive pattern of heavy drinking broken of short periods of abstinence. On his account, there were times during the relationship when his abstinence lasted as long as ten weeks or so and they were quite regular events each year. The material available to me from my interviews and the documents I have perused lead me to the view that while he may have been in a period of abstinence at the moment, this is of only duration at the moment to other periods of abstinence that he has had in the past decade or so. For that reason I think that one cannot be confident that his drinking is under complete control at the moment, although that may turn out to be the case ultimately. However it also seems reasonable to assume that his previous pattern of alcohol abstinence and relapse may occur. If that is the case, in my view it is likely that his parenting would be of a poorer quality at that time in several ways. Firstly, his indignation about the mother would probably be heightened which could lead to an increase in conflict between them primarily instigated by him. Secondly, it is likely that is his mood would be more variable with the children. In his case with his particular character, one might expect on the one hand periods of somewhat disinhibited, possibly exuberant and somewhat ill judged but well intentioned behaviour and on the other hand, impatience with the children and exposing the children to gratuitous remarks about the mother. There may be some disruption of his usual household childcare activities.
(Report of Dr Q dated 22 January 2015, page 26)
In relation to the children Dr Q added:
It is also likely that the children will be aware that he is drinking. I have no doubt that they know this is an issue. They have probably seen him behaving in worrying or even frightening ways when he has been drinking in the past, so drinking whether or not accompanied by intoxication may cause them to worry and be fearful about their father and perhaps how their mother may react to it. This would probably be most evident in [B] in the form of clingy or obviously anxious behaviour, although in [C’s] case it may be manifested by soiling incidents or overeating.
It would assist if [Mr Saylor] were to demonstrate more insight into the degree of his addiction, adhere to more specific therapy for it, and to comply with established measures of abstinence.
(Report of Dr Q dated 22 January 2015, page 26)
I accept that opinion. Thus the father’s alcohol problems have adversely affected the children. It is concerning that the father continues then to down play this problem. It points strongly against him being placed in the position of primary carer for the children. This is because there is an unacceptable risk of there being another occurrence of excessive drinking.
In December 2013 the father formed a relationship with Ms R. Up until July 2013 they lived together. The father said they stopped doing so as:
197.… [Ms R’s] unit was too small when all the children stayed. [Ms R] was having some health problems and I wanted to move closer to the boys’ school. We had an argument on 12 July 2013 about our living situation. [Ms R] called the police to remove me from the house, even though I had agreed to move out the next day.”
(Affidavit of Mr Saylor sworn 22 January 2015)
Notwithstanding, the relationship continued and was of such nature that Ms R attended the interviews with Dr Q on 6 January 2015. She was then described as the father’s partner. The relationship between the father and Ms R ended on 10 January 2015. That being so it is unnecessary to refer in detail to the issues that would otherwise be raised by the boys spending significant time with Ms R. It is sufficient to say that Ms R also appeared to have difficulties with alcohol and also attended Alcoholics Anonymous. On one occasion, against Ms R’s wishes, the father took alcohol to her premises and drank it. This led to an incident to which the police were called. It highlights the father’s difficulty with alcohol and the poor choices he might make because of it.
Dr Q said of the above:
Although I think the children recognise some of their father’s frailties, I am also of the view that they are used to spending quite a bit of time with him and they like the time with him, and they would be rather unhappy about not seeing him. If they were more emotional robust children, I think they could probably live reasonably comfortably without seeing their father less but for more extended periods, however in their case though because of the degree of vulnerability by both of them, I do not have this confidence.
(Report of Dr Q dated 22 January 2015, page 26)
I accept that opinion. The children will benefit from spending time with their father.

Relationship Between the Mother and the Father

There have been a series of difficulties in communication between the parties.
In June 2013 the parties were unable to agree on the terms under which the father would take the children to spend their usual summer holiday in Country E. The children did not go.
In July 2013 the father was staying at the S Hotel. There was an incident in the foyer during the changeover. The mother accused the father of behaving in a threatening manner towards her which led to an Apprehended Violence Order being taken out against the father. Whether the father did in fact make threatening gestures or not, a clearly unpleasant incident took place in front of the children.
On 26 August 2013 the mother sent the father an email which said in part:
The kids have been greatly hurt by the assault incident. It has taken a lot of time and effort to get them to heal from it. I firmly believe that you have a role to play in their lives but you must gain some understanding of how scarring these incidents really are and how your volatile behaviour causes them a great deal of anxiety. You cannot say one thing to the kids and expect that they are not resentful and angry when they realise that it is not true. You told those kids that you would send their furniture and put money in their account for their phone. You told [B] that you just argued with mum. You came and caused a scene at their school. Do you really expect them to not be angry at the lies and games? You also spend all your time with them interrogating them. It really upsets and confuses them.
(Exhibit KS7 of the affidavit of Mr Saylor sworn 22 January 2015)
In response the father said in his affidavit that he did not agree that he caused the children anxiety, was untruthful to them or that he caused a scene at the school. He said “I consider that any confusion the children had at that time was as a result of them not being permitted to speak to me or see me and what [Ms Saylor] was telling them” (Affidavit of Mr Saylor sworn 22 January 2015 at [49]). He did not challenge, however, the assertions of fact in the email. There was clearly an incident of some kind at the school.
It was agreed that the mother and the children would travel to Country E in December 2013. There is an issue as to the validity of the children’s passports. Each party gives a different version as to who was responsible for failing to renew the passports to enable them to travel or to facilitate the other parent doing it. The upshot was that passports were issued and the mother and the children travelled to Country E albeit one day late.
On 14 January 2014, when in Country K, B fell on a trampoline and broke his elbow. He was taken to hospital. The fracture required surgical intervention. Again there is considerable dispute between the parties as to when and how the mother advised the father of the accident and the treatment and provided the details of the treating doctors.
It is not necessary for me to determine which of the parents’ version of the above incidents is correct. They amply demonstrate that there is a marked lack of co-operation and agreement between the parties relating to the day to day care and management of the children. Identification as to who, if anyone, was to blame for the above incidences would not assist further in the determination of these proceedings.
There are, however, a number of incidences to which specific attention must be given and a finding made.
The mother asserts that in June 2012 she was driving the car with the father in the passenger seat. According to her he violently punched the car dashboard and yelled “If I was fucking drunk I would fucking punch you in the fucking face” (Affidavit of Ms Saylor sworn 22 January 2015 at [36]).
In cross examination the father said that he never punched the dashboard, that he was being screamed at and merely slapped the dashboard. He admitted that he did use the words asserted by the mother save that he only used one expletive.
On 1 July 2012 the father sent to the mother a text promising to cease alcohol consumption for a full year. He said (Exhibit 1):
… never again do I want to be in position where I am banging my fists in a screaming rage how did it get to this.
In describing this incident to Dr Q the father said that he smashed his fist onto the dashboard.
Based on these two obvious admissions by the father I have no difficulty in accepting the mother’s version of the event.
The father accepted that there was at least one other incident where he punched a wall near the mother’s head in a rage.
On 28 March 2014 the father and Ms R arrived at Suburb N Primary School to collect the children. The mother was there. There was an argument between the three of them and the mother alleges that in the course of the argument, in front of other parents, the father referred to the mother as a “money grabbing whore”. The father denied that.
The comment was heard by an acquaintance of the mother’s, Ms T. Her evidence was that she approached the three of them to say hello to the mother but saw an argument was occurring and moved away. Voices were raised at times, she did not hear all that was said and only recalled hearing the words “money-grubbing whore” because she said she was so shocked by them (Affidavit of Ms T sworn 20 January 2015 at [6]). This version of events was consistent to that provided by her to the police on 3 April 2014. She is an impartial witness and her evidence seems probable. There is absolutely no reason for not accepting it and I find that on that date the father publicly and loudly referred to the mother as a “money-grubbing whore”.
The mother alleged that:
59.On Sunday evening 17 August 2014 I was putting [C] to bed and he said to me “Mummy I am really scared. Daddy said one day that fucking bitch will die and then made a fist and punch the wall of the lift.” [B] said to me “yes, we were leaving Dad’s apartment to come to McDonalds”. [C] added “Daddy shows me the text messages you sent him telling him not to say rude words to me and he gets very angry and sometimes smacks me for telling you”. I subsequently forwarded an sms text message to [Mr Saylor] to “stop this behaviour” and he texted me “everybody has to die sometime”.
(Affidavit of [Ms Saylor] sworn 22 January 2015)

When cross examined about that evidence the father said that he remembered being angry and that those words could have come out of his mouth but he denied showing the children the text messages. He accepted that it was absolutely not nice for the children.
On 26 October 2014 the mother and Mr M took the children to McDonalds at Suburb U to effect a handover of the children to the father. The father and Ms R then arrived. The mother said the incident then proceeded as follows:
123.[Ms R] then walked up to our car and started speaking to [Mr M] in a raised voice. I heard her say “[Mr M], the kids hate you and don’t’ like you. They don’t like spending time with you”. I heard [Mr M] say, in a hushed tone, “I don’t know what you are talking about” and [Ms R] then started calling him a “soft cock”. I then noticed that [Mr Saylor] had got out of the Mini and was standing on the side of the car. He yelled across to me “you are a fucking whore” and similar remarks. I looked at the children and saw that [B] had his fingers in his ears and there were tears streaming down his cheeks. [C] was hitting his iPad frantically.
(Affidavit of [Ms Saylor] sworn 22 January 2015)
The father said that he did not hear Ms R speak but accepted that she later told him that she had called Mr M a “soft cock”. He said that he did say that the mother was a “fucking whore” but regretted it. He said that he was not affected by alcohol but was reacting to being goaded.
The goading to which the father refers was what he described as Mr M putting his arms around the boys’ shoulders. Mr M and the mother described this as Mr M widening his arms in a gesture towards the boys. Either way it would hardly justify the conduct of the father, let alone in front of the children. The unfortunate effect on the children is obvious from the mother’s evidence.
The father agreed that since the separation, whenever it was, he has frequently and regularly said vile things and texted to the mother degrading and disgusting messages frequently describing her as a “whore”.
In response to all this he told the court and Dr Q that he had moved on from the separation. Dr Q said:
There is clearly an ongoing and high level of animosity between the parents. At the assessment, this was articulated most forcefully by [Mr Saylor], whose indignation and bitterness was quite undisguised despite him basically saying that he had put the separation behind him and was moving on.
(Report of Dr Q dated 22 January 2015, page 24)
He clearly has not.
The real significance of the above conduct is the behaviour towards the mother in which he is prepared to engage in front of the children which has clearly caused them upset and difficulty and not assisted their anxiety and emotional vulnerability at all. This is so even though both parents have been aware of those difficulties. He continues to do so despite being aware of how much it upsets the children. During the hearing the father constantly apologised to the court for his behaviour. It is concerning that he did not see any need to apologise to those affected by his behaviour.
Further, the father’s family have engaged in the same behaviour. There was undoubtedly a close relationship between the mother and members of the father’s family until the separation which seems to have ended.
On 4 February 2013 the father’s mother sent a text to the maid at the Country K apartment saying “If there are any signs of wine bottles or cigarettes please get rid of evidence [Ms Saylor] bac today” (Exhibit 4).
This clearly indicates that she was aware of the father’s drinking problem and was taking steps to assist him to hide it from the children’s mother.
In other emails to the maid she referred to the mother as “that bitch will get what she deserves” and as a “cheat” (Exhibit 4).
By a text of 13 July 2013, mistakenly sent by the father’s mother to the mother thinking she was sending it to her son, she suggested that the father do certain things to frighten the mother. Included in the text were the phrases: “do that to frighten her now” and “she will rue the day she got on the wrong side of us”.
The father and the paternal grandmother took steps to try to obtain personal information about the mother from her doctors in Country K.
All of this casts significant doubt upon the ability of the father and the father’s family to facilitate a meaningful relationship between the children and their mother if it were left up to them.

the principles to be applied

The paramount task of a court is to act in the best interests of the children.
Neither party seeks to disturb the existing order for “joint responsibility” for the children which I take to be an order for equal shared parental responsibility. Neither party sought to displace the presumption of equal shared parental responsibility raised by s 61DA(1) of the Family Law Act 1975 (Cth) (“the Act”). In that circumstance the court is required to consider the matters raised by s 65DAA of the Act.
In determining what is in the best interests of the children the court must have regard to the matters raised by s 60CC of the Act.
The position is this. The children are presently living in Australia. The mother wishes to have the children live with her in Country D. The father wishes them to remain in Australia. However, his position is also that in the event that he is unable to obtain permanent residency in Australia he seeks an order that he be permitted to travel to Country E taking the children to live with him. This last possibility was only raised shortly before the hearing. The possibility was not therefore canvassed by Dr Q. The evidence dealing with the possible life in Country E for the children consisted of a few short paragraphs.
It is thus necessary to consider the implications of each of those possibilities.
The mother has had a child with Mr M and proposes to marry him. He lives in Country D and his work commitments require him to live there. I was not persuaded by his cross examination that he would be able to move to Sydney to work. Thus whatever the outcome of these proceedings he will live in Country D. The mother wishes to be with the children. Presently that is in Sydney and it is her intention to stay if the orders she seeks are refused.
Whilst the mother has family in Sydney they are effectively estranged and do not present either a tie to Australia or any realistic family support for the mother.
The mother’s son F will remain in a boarding school in Sydney whatever the outcome of these proceedings.
The father would appear to have no ties to Australia other than for the lease on his rental accommodation and for a car that he has purchased. His relationship with Ms R has ended. He has not sought work here. Although one can understand why given the likely financial disadvantage to him, of him not seeking work in an industry in competition with his previous employer, he has not sought work of any kind. He has made only the most cursory enquiries about permanent residency or citizenship. He is presently on a tourist visa which does not permit him to work and requires him to regularly leave Australia. He has no family in Australia and no significant social network. He told the boys that the only reason that he is in Australia is because they are here. That is an appropriate summary of the position.
On the other hand, the father’s parents live in Country E and his siblings live in either Country E or Country I. They are clearly a close knit loving family with whom the boys are well acquainted and get on well. They have spent at least one holiday per year in Country E with their relatives.
One can see why the father would be tempted to live in Country E, notwithstanding that he has not done so since he was 20 years of age. How realistic that would be, however, was not adequately explored due to the late notice of his proposal for the children to live with him in Country E.
Although the father said it was his intention to stay in Australia and would only consider moving to Country E if he were unable to obtain permanent residency the fact that he has taken no steps to get a job of any kind or to commence the process of obtaining citizenship (he was planning to do so, he said, relying on his de facto relationship with Ms R but had not done so and now cannot do so) suggests very strongly that his heart is not in it and it is more likely than not that, if the orders were made as he seeks, he would move to Country E with the children very much sooner than later. He would not be deterred from doing so even though such a move would seriously damage the relationship the children presently have with their mother. She would not move to Country E and the father would not facilitate their relationship with their mother if he could avoid it having regard to his, and his family’s, present view of her.
The orders proposed by the father would leave it entirely up to him when and if the boys would be removed to Country E. This a significant flaw in the orders proposed by him.
In determining the best interests of the children there are two primary considerations to take into account pursuant to s 60CC of the Act.
The first is the benefit to the child of having a meaningful relationship with both of the child’s parents. In the present case it is not disputed by either side that the children have a close and loving relationship with each of their parents which is of benefit to them. Dr Q formed the view that the boys have a strong attachment to their mother as well as the father. He said:
… I formed the view that the boys’ relationship with their father is an important one for them and that it should be preserved as much as that is possible under the circumstances.
(Report of Dr Q dated 22 January 2015, page 23)
If the boys move to Country D or stay in Australia the mother will remain their primary care giver and their close relationship with her will be maintained. If, however, the children are moved to Country E there will be a significant disruption of the relationship between the children and their mother. She would then move to Country D to be with Mr M. As I have said the attitude of the father towards the mother and the attitude of his family towards the mother make it unlikely that they will easily and willingly facilitate the relationship between the children and their mother. Even if they were to do so, the distance involved between Country D and Country E and the requirements of children attending school would mean that, at best, they would see their mother at school holidays. The move from the mother being primary care giver of the children to them spending time with her only on school holidays would not be in the best interests of the children having regard to their close and strong bond with their mother.
The best interests of the children would see them being able to see a lot of both their mother and their father. This can be best achieved by the children being in Australia or Country D.
As I have found the father has no significant ties to Australia. Whilst he said he does not favour Country D as a place in which to live he could move to Country D. There are no impediments. He has the income to do so. There are no relationships that would prevent or make it difficult.
I find it is more likely than not that the father would move to Country D to be with the children if a relocation order is made. This is because he followed the children to Australia, a place which he repeatedly told the mother he did not like, simply to be with his children. He has lived predominately in Asia since he was 20.
The most desirable outcome, taking into account this consideration, is the mother and father living in the one city so that there is little difficulty in the children spending significant and substantial time with each parent. That can be accommodated in Country D or Sydney although if it is the former it would require the father also to move there. It does not favour Country E.
The second primary consideration is the need to protect the children from physical or psychological harm, from being subject to abuse, neglect or family violence. The children are well looked after by both parents. The difficulty arises in the interaction between the parents as detailed earlier in these reasons. There was, however, no suggestion by either party that this was a significant issue.
There are a number of additional considerations to be taken into account.
At the family interviews although B is the elder child, he was somewhat nervous and anxious. Indeed he refused to speak to Dr Q alone. Thus he and C were seen together. C, therefore, effectively spoke for both of them. The boys are worried about what the arrangement will be if they go to Country D. They are concerned about having to change friends yet again. C in particular would like to spend more time with his father. Dr Q said:
[C], who is 15 months younger but a very bright boy, also seems to have several concerns but he also seems to have several concerns but he was able to articulate these reasonably well and it was quite clear that one of them was that he did not want to go through another change of school and friends, and possibly even a second in a few years time if [Mr M] relocates elsewhere for work.
These matters clearly reflect aspects of the children’s wishes and in my view they should be given some weight although not necessarily overwhelming weight due to their age and relative immaturity, but I also formed the view that these are things about which the children have thought quite deeply and reflect at least a partial understanding of events which may impact on their lives and what they would prefer to be the outcome.
(Report of Dr Q dated 22 January 2015, page 24)
Insofar as there is a reference to a second move in a few years time if Mr M needs to relocate from Country D for work, it is more likely than not, that for the foreseeable future, he will not. His contract is open ended and he intends to stay for at least another five years. His intention is to obtain permanent residency which will require a further five years residency.
It is somewhat unfortunate that the father’s proposal for an alternative relocation to Country E was not made until the commencement of the hearing. It was not raised with Dr Q. Indeed the position at the time of the interviews with Dr Q was that the father was in a committed relationship with Ms R. Thus the idea of a subsequent move to Country E was not canvassed. Thus the children’s views as to that are unknown. Whilst they no doubt had many happy holidays there and are close to their Country E relatives, a move to Country E would be another change of school and friends and although they may feel more comfortable about a move to Country E, similar concerns would arise. I will therefore infer that the views of the children would favour them remaining in Sydney but without the possibility of a permanent move to Country E.
I have already referred to the nature of the relationship with each of the child’s parents and the close relationship between the children and their paternal relatives. The children have no relationship of any kind with the mother’s relatives. The children have a close and valuable relationship with F. There are proposals, as between F’s father and the mother, in place for F to spend time with his mother and the children during school holidays should she be able to relocate to Country D. There are no such agreements in place in relation to any move to Country E. That agreement ensures that the children will continue to see F although not as frequently as they would in Sydney.
The mother’s proposed orders provide for the children to visit their Country E relatives during school holidays in a not dissimilar way that has occurred for a number of years. Those orders accordingly maintain that relationship in a similar way.
The father’s orders propose in the event that he move to Country E the mother would have regular block time with the children. As I have already said that would fundamentally affect the relationship between the children and their mother.
The parents spend time with the children when they can and are involved in their activities. There is a difficulty in the parents communicating, as has been seen but neither seeks an order for sole parental responsibility.
There was also some dispute about the amount of support provided by the father for the children. In the circumstances of this case it is not a consideration that carries a great deal of relevance. Mr M has the financial capacity to support the mother and the children even if they are living in Australia or in Country D.
The court is to consider the likely effect of any changes in the children’s circumstances including the likely effect of separation from each of his parents and any other child or person with whom he or she has been living. I have already dealt with this aspect and come to the view that it would not be desirable for the children to be separated for any length of time from their mother in that she should remain their primary care giver. While both parents have frailties the mother was open and honest about hers and had some insight into her difficulties and seeks help for them. Other than for the move from Country K her parenting has been appropriate.
On the other hand the father seems to have difficulties dealing with and accepting his problems, particularly his issues with alcohol. He maintained that almost all of the incidents referred to in this judgment were not as a result of him being affected by alcohol. He would not accept that he received treatment for alcoholism in the past and says that he is beyond that. I accept the opinion of Dr Q that it is more likely than not that he will suffer a relapse. His drinking has a negative impact upon the children who see that he drinks and particularly his behaviour towards their mother in their presence.
It would, however, still be desirable for the children to see their father often and regularly. A change of circumstances that diminished this would not be desirable. I have also dealt with the effect of separation from F. This is a matter that needs to be taken into account but is in my view not determinative.
Each of the parties are relatively wealthy and there is no practical difficulty and expense of the children spending time with and communicating with their parents. They do so regularly by electronic means. If the mother and the father are in different cities it will be more difficult for one of the parents to spend time with the children. They will do so less often and more likely for block periods and it will be more expensive but all of those things are quite manageable having regard to the income and attitude (albeit difficult and acrimonious) of the parents.
Dr Q came to the view that each of the children’s parents had some impacted capacity to provide for the children’s emotional and intellectual needs. I accept that the mother’s parenting ability has been somewhat compromised by the stress and difficulties of trying to maintain a relationship with Mr M who is living in Country D and by the constant unpleasant behaviour of the father towards her including that behaviour in front of the children. On the other hand the father seems incapable of accepting the impact upon the children of his behaviour and towards his mother. The first can be ameliorated by a move to Country D. The second is really a matter for the father to deal with and hopefully he will.
I have, as I have said, concerns as to how the father’s relatives will facilitate a relationship between the boys and their mother but, subject to that, they would seem to have the interests of the children at heart and would provide well for their intellectual and emotional needs when they are with them.
Each of the parents take their responsibilities of parenthood well when the children are with them. They support their children and are well involved in their lives. I have already referred to the caveats that need to be placed on their conduct towards each other.

The suggestion of the father that there be a relocation to Country E was made late as I have said. There was extremely limited evidence about such a move and none on the impact of such a move on the children. The proposal seems more focussed on the needs of the father. To propose and to pursue it in those circumstances indicates that his attitude to his responsibilities towards parenthood is subject to his circumstances and his intense dislike of the mother and is not focussed on the needs of the children. This supports the mother remaining the primary care giver to the children.
I now need to consider whether the children spending equal time with each of the parents will be in their best interests. I find that it is not. The mother has been the primary care giver of the children and remains their primary care giver. As Dr Q said the mother seems to be deeply involved in the usual responsibilities of parenthood. The father’s parenting revolves more around a recreational and other fun and play type activities. The parents communicate very badly and acrimoniously. The father has difficulty controlling himself within the presence of the mother, even if the children are present. I am concerned about his alcohol consumption which he sought to down play and minimise and the effects it has on him with the children. The parents do not have the capacity to manage the children spending equal time with each of them consequently such an order is not in their best interests. This is so regardless of where the children might be living.
Although given that finding I do not need to consider s 65DAA(1)(b), it would only be reasonably practicable for the children to be spending equal time with their parents if they were both in the same city.
I must next consider whether the children spending substantial and significant time with each of the parents is in the best interests of the children. Substantial and significant time involves the children spending time with the parent that includes both weekdays and holidays and days that are regular weekdays. That enables the parent and the children to be involved in the daily routine and events that are of particular significance to the child and the parent. The evidence clearly establishes that it would be in the interests of the children for them to spend significant and substantial time with their father. Indeed the orders proposed by both parties provide for the children to spend significant and substantial time with the father if the parents are both in the same city.
Such time would be reasonable and practicable if they were both in the same city but not otherwise.
A move to Country D is likely to improve the parenting ability of the mother as already noted. She would be in her new relationship with Mr M and her daughter and not suffering the stress of trying to maintain a long distance relationship. If the father were to move to Country D as well this would be, as was submitted by the mother’s counsel, the most desirable outcome for the children. The mother would maintain her relationship with Mr M as would O. The children would maintain their relationship with their mother and they would be able to maintain the same relationship they have with their father.
The only factor against such a move is the boys’ reluctance to move as they would have to make friends all over again. There is weight in that but it is clearly outweighed by the other factors. They would live with their mother and they would spend substantial and significant time with their father which would be of great benefit to them.
As I have found there is no impediment to the father moving to Country D. He can afford to do so and he has no ties which would prevent him from doing so. He has lived outside Country E since he was 20 and for most of that time has lived in Asia. As I have found it is more likely than not that he would move to Country D to follow the children if they were sent there. The children themselves have only been in Australia for two years. They grew up in an expatriate community in Country K and I am in little doubt that they would have no difficulty to adapting to life in an expatriate community in Country D. As a result of growing up in Country K they speak Country D at a good level for their age. The children get on well with Mr M and there is no reason to think that they are not developing a beneficial relationship with him. Applying the considerations discussed above the children’s interests would be best served by the children, their mother and their father living in Country D. That is more likely to happen than not if the orders sought by the mother are made.
In that event the children would spend significant and substantial time with each parent.
There are a number of concerns about refusing a relocation order requiring the mother and the children to stay in Australia. The mother would also stay. This would of course enable the children to live with their mother and spend significant and substantial time with their father.
This however is subject to a number of disadvantages.
The parenting ability of their mother will be adversely affected by the separation from Mr M and the stress of maintaining that relationship.
If the father were not able to obtain permanent residency status in Australia he will not be able to work here. His source of income will cease in two years. In those circumstances he would be forced to leave Australia. This would preclude him spending significant and substantial time with the children because of the time and distance involved in traveling to Australia and the need to take time off from work to do so. The mother would be in Australia with the children and Mr M in Country D. It would be the least desirable outcome. I consider that it is more likely than not that there is a real risk that this would occur. The father has taken no steps to seek a job or to obtain permanent employment and gave no evidence to the likelihood of both occurring in the future. This risk is a significant factor which must be taken into account.
If the father cannot obtain permanent residency he wishes to move the children to Country E. The orders are silent as to when and how he may do this. It would be under his control. If this order was made I think that it is more likely than not that the father would attempt to take the children to Country E sooner rather than later. I think that the move to Country E would not be in the best interests of the children. It would remove them from their primary care giver and place their close relationship with their mother in jeopardy. It would also require the children to change schools and friends. It is not a desirable outcome and would not be in their best interests.
Importantly, the primary basis on which the father opposes any move to Country D is that the children need stability and will not benefit from having to settle into yet another country and school and make new friends. Yet that is entirely the course he proposes, although his proposal is replete with uncertainty as to if and when any such move might occur. As the children are anxious about the present proposed move it is more than likely that they would be more anxious about the uncertainty involved with the father’s proposed orders.
Finally, there is the possibility that the children are permitted to live in Country D and the father does not move to Country D. He would not be able to spend significant and substantial time with the children because of the difficulty and expense. He would however see the children in blocks of time. This is less desirable than him seeing the children more regularly. The other advantages and disadvantages of the move would remain.

conclusion

Taking all these things into account it is in the best interests of the children for them to move to Country D with their mother. It will achieve the outcome of them maintaining their close relationship with their primary care giver whose parenting will be improved by the facilitation of her relationship with Mr M and the reuniting of their family unit. It is more likely than not that the father will follow the children to Country D and thus spend significant and substantial time with them which will be of great benefit to them. However, even if he does not, I consider that the move to Country D is in their best interests.
Neither the father nor the mother have any ties to Australia save for the mother’s ties with F which have been addressed by agreement with F’s father. Other than for the last two years the children have not lived in Australia. Whilst no doubt they have settled down their life in Country D will not be entirely foreign to them. They will cope well with the move, even if upsetting for a while. This will be especially so if the father follows them.
It is not, as I have found, appropriate for the father to be the primary care giver of the children and a move to Country E which would have that effect is not in their best interest. Even if I were to refuse the mother’s application I would not permit the father to move the children. I certainly would not let him move them at a time entirely of his choosing.
There is an unacceptable risk that if the children were to remain in Australia the father would not obtain permanent residency and be required to work somewhere other than Australia. That would mean he would not be spending significant and substantial time with the children and they would suffer the difficulties associated with the mother being apart from Mr M.
Accordingly it is appropriate to make the orders sought by the mother and to permit her to move the children to Country D. The orders permit the children to travel to spend time with their father in Country E. They provide for the children to spend time with the father. He is obliged to give 21 days’ notice of when he wishes to do so. Given the difficulties between the parties and the possible need for international travel this is not unreasonable.
Orders will be made that in the event the father moves permanently to Country D, the children shall spend time with him generally along the lines of the consent orders of 4 November 2013. The children will be able to spend time with him in Country E provided he pays for their and their mother’s airfare which is the current practice. In those circumstances, such orders would be in the children’s best interests.

I certify that the preceding one hundred and fifty one (151) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 27 March 2015.

Associate:

Date: 27 March 2015

[2015] FamCA 205

27 March 2015

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