SIKORA & SIKORA
[2012] FamCA 1013
•5 December 2012
FAMILY COURT OF AUSTRALIA
| SIKORA & SIKORA | [2012] FamCA 1013 |
| FAMILY LAW – CHILDREN – International relocation – where the mother seeks to relocate to Poland – where it was held the father has a genuine intention to remain in Australia – where the eldest child suffers from Asperger’s syndrome – where it was held to be in the best interests of the children to remain in Australia. |
| Family Law Act 1975 (Cth) |
| U & U (2002) 211 CLR 238 SCVG & KLD [2011] FamCAFC 100 |
| APPLICANT: | Ms Sikora |
| RESPONDENT: | Mr Sikora |
| INDEPENDENT CHILDREN’S LAWYER: | Mr C Christaki |
| FILE NUMBER: | SYC | 2437 | of | 2008 |
| DATE DELIVERED: | 5 December 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 27 - 31 August 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Johnston |
| SOLICITOR FOR THE APPLICANT: | Johnston Vaughan Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Goodchild |
| SOLICITOR FOR THE RESPONDENT: | Elena Pelbart, Solicitor |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Ladopoulos |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
All prior parenting orders in relation to the children K Sikora born … April 2000 and A Sikora born … August 2002 (“the children”) are discharged.
The mother and the father have equal shared parental responsibility for the children.
The children live with the mother unless they are with the father.
Unless otherwise agreed between the mother and the father in writing, the children shall spend time with the father as follows:
4.1.During school term in a two week cycle as follows:
4.1.1.in week one, from after school Friday until 7.00pm Sunday;
4.1.2.in week two, from after school until 7.00pm on Monday and Wednesday;
4.2.for one half of each school holiday period as agreed between the parties and failing agreement, for the first half in years ending in even numbers and the second half in years ending in odd numbers;
4.3.on Christmas Day from 10.00am to 7.00pm;
4.4.on Easter Sunday from 10.00am to 7.00pm;
4.5.on Father’s Day from 10.00am to 7.00pm;
4.6.on the father’s birthday from after school until 7.00pm if that day is a school day and from 10.00am to 7.00pm if it is not.
Unless otherwise agreed between the mother and father in writing, the child K shall spend time with the father in week one (as referred to in Order 4.1.1) on Wednesday from after school until 7pm upon the following conditions:
5.1.The father will develop some regular special activity in which K and himself will participate;
5.2.The father will inform the mother in writing as to the nature of that special activity;
5.3.The father is at liberty to change the special activity from time to time according to K’s views, again providing the mother with written information about the special activity;
5.4.The parties can agree to vary the day and length of time that K and the father involve themselves in a special activity.
In the event that:
6.1.Mother’s Day or Christmas Eve falls on a day or period during the Father’s time, his time is suspended and he is to return the children to the mother’s residence at 10.00am on those respective days.
6.2.The mother’s birthday falls on a day during a period the children are with the father, the father’s time with the children is suspended on the mother’s birthday from after school to 7.00pm if that day is a school day and from 10.00am to 7.00pm if it is not.
The parties are to spend time with the children on each of the children’s birthdays and the parent with whom the children are not ordinarily with on that day shall see the children between 4.00pm and 7.00pm.
For the purposes of facilitating the children spending time with the father pursuant to these orders, the father shall:
8.1.collect the children from:
8.1.1.the children’s school(s) at the commencement of each period of time they are to spend with him; or
8.1.2.from the mother’s residence if they are not attending school immediately before the commencement of such time; and
8.2.return them to the mother’s residence at the conclusion of such time.
The children communicate with the father by telephone between the hours of 5.30pm and 7.30pm on one occasion in week one (on a regular day nominated by the father) and on two occasions in week two (on regular days nominated by the father).
The mother shall:
10.1.provide the father with, and keep the father advised of, the names and addresses of the children’s treating doctors;
10.2.inform the father in writing as soon as practicable of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist (“specialist medical consultant”) in relation to either of the children;
10.3.ensure that the father is provided with a copy of any report by any such specialist medical consultant in relation to the children, within 14 days of the mother’s receipt of the report.
Both the father and the mother shall be entitled to:
11.1.attend any appointments with any specialist medical consultant relating to either of the children;
11.2.discuss the children’s condition with such specialist medical consultant,
however such attendance(s) shall be at the discretion of the specialist medical consultant.
The mother shall ensure that the father is notified as soon as practicable if:
12.1.either of the children are admitted to hospital;
12.2.either of the children are involved in a medical emergency;
12.3.either of the children will be required to take medication when they spend time with the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the period that the children are to spend with the father.
The father shall ensure that the mother is notified as soon as practicable if:
13.1.either of the children are admitted to hospital;
13.2.either of the children are involved in a medical emergency;
13.3.either of the children will be required to take medication when they return to the mother’s care, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the first 72 hours following children’s return to the mother’s care.
The mother authorise the school(s) which the children attend from time to time to provide the father with copies of the children’s school reports, school bulletins, school photographs and like material ordinarily provided to parents, including notices of teacher/parent meetings, sports events and other significant events.
Both the mother and the father be permitted to attend any of the children’s extra curricular activities.
The mother and father shall advise each other in writing, within seven (7) days of:
16.1.any change to their residential address;
16.2.any change to their telephone contact number(s).
The mother and father be restrained from:
17.1.discussing the proceedings in the hearing of or presence of the children;
17.2.denigrating or criticising the other parent or the other parent’s family in the hearing or the presence of the children;
17.3.smoking in front of the children or any place where the children may reside.
Commencing in December 2013, each of the parents be permitted to remove the children from the jurisdiction of Australia for the purposes of taking the children on holiday each year for a period of up to six weeks in the Christmas school holiday period as follows:
18.1.in years ending in odd numbers, the mother shall have first option to travel overseas with the children provided that:
18.1.1.she gives notice to the father of her intention to do so, such notice to be in writing and to be given no later than 30 September;
18.1.2.she provides the father with a full itinerary, travel details, copies of return airline tickets and contact details at the places where the children will be staying from time to time, at least eight weeks prior to the departure date from Australia.
18.2.In the event that the mother has not complied with subparagraph 18.1 above, the father shall be permitted to travel overseas with the children provided that he provides the mother with a full itinerary, travel details, copies of return airline tickets and contact details at the places where the children will be staying from time to time, at least eight weeks prior to the departure date from Australia.
18.3.In years ending in even numbers, the father shall have first option to travel overseas with the children provided that:
18.3.1.he gives notice to the mother of his intention to do so, such notice to be in writing and to be given no later than 30 September;
18.3.2.he provides the mother with a full itinerary, travel details, copies of return airline tickets and contact details at the places where the children will be staying from time to time, at least eight weeks prior to the departure date from Australia.
18.4.In the event that the father has not complied with subparagraph 18.3, above, the mother shall be permitted to travel overseas with the children provided that she provides the father with a full itinerary, travel details, copies of return airline tickets and contact details at the places where the children will be staying from time to time, at least eight weeks prior to the departure from Australia.
18.5.The children’s time with the father pursuant to order 4 and order 5 above shall be suspended during the times the children are overseas with the mother pursuant to this order.
18.6.The children’s time with the mother pursuant to order 3 above shall be suspended during the times the children are overseas with the father pursuant to this order.
18.7.Prior to the mother travelling overseas with the children, the mother will lodge with her lawyers for them to hold in trust, a cash bond of $20,000 or in the alternative, the registered proprietor of real estate in Australia shall execute a written charge over that real estate securing an amount of $20,000 (the form of that charge to be provided by the father to the mother); the mother will provide to the father or his lawyers an executed charge and the father is at liberty to lodge a caveat in respect of that real estate relying upon that charge.
18.8.The parents will do all things and sign all necessary documents to forthwith obtain and/or renew Australian passports for the children and the father shall hold those passports but provide them to the mother at least 14 days before any date when the mother is due to take the children on holidays overseas.
The court notes that, at the date of hearing, the mother and the father lived within five kilometres of each other, by road.
Unless the parties otherwise agree in writing or there is a further court order, neither parent is to change their residential address so that their new residential address is more than ten kilometres by road from the other parent’s residence and a distance from the children’s schools which allows the children to remain at and attend, those schools.
The Director of Child Dispute Services assist the parties with a referral to an appropriate professional for the provision to them of a post separation parenting program with the intent that both parties will see the same professional and that professional will bring the parties together in a joint session or sessions if that professional believes that that is appropriate. That professional should be given a copy of these Reasons for Judgment.
In the event that the father does not successfully apply to Legal Aid NSW for a waiver of his contribution for payment of the Independent Children's Lawyer’s costs within 60 days, then the father shall pay his contribution to the payment of the Independent Children's Lawyer costs within 12 months to Legal Aid NSW in the sum of $7,189.55.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sikora & Sikora 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 2437 of 2008
| Ms Sikora |
Applicant
And
| Mr Sikora |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Counsel for the mother suggested that this was a “simple” international relocation case. If such a cohort of cases exists, this is not one of them. The considerations in this case are reasonably finely balanced.
APPLICATIONS
The mother is seeking sole parental responsibility. The father is seeking equal shared parental responsibility. The mother seeks the children live with her and relocate with her to Poland. The father opposes the mother relocating with the children to Poland. The mother has indicated that in the event the court does not allow the children to relocate to Poland, she will stay in Australia. It is common ground between the parties on all proposals, that the mother will remain the primary caregiver for the children.
The father says that if the children relocate to Poland, he proposes to visit once per year.
The child K was born in April 2000 and is currently aged 12. K has been diagnosed as having Asperger’s syndrome. The child A was born in August 2002 and is 10 years of age. She recently had a health scare, having suffered from two seizures. Her condition is currently undiagnosed.
The mother retained the children in Poland during 2010, having taken the children overseas by consent for a short period in the Christmas holidays. The father commenced proceedings under the Hague Convention. An order was made that the children be returned to Australia and after the mother unsuccessfully appealed that order, the children they were forcibly taken by Polish police from her and returned with their father to Australia. On her return to Australia, the mother commenced these proceedings.
The maternal grandparents, with whom the parents and the children lived in Australia for a significant part of their life up until the date of the separation of the parents, have permanently relocated to Poland.
APPLICATIONS
The orders that the mother seeks are set out in Schedule 1. The orders that the father seeks are set out in Schedule 2. The orders that the Independent Children's Lawyer seeks are set out in Schedule 3.
DOCUMENTS RELIED UPON
The documents relied upon by each party and the Independent Children's Lawyer is set out in Schedule 4.
The parties and the Independent Children's Lawyer tendered 27 exhibits in all.
SHORT HISTORY
The mother was born in 1971 and is currently aged 41.
The father was born in 1972 and is currently aged 40.
The parties met in 1993.
The parties married in July 1994.
The parties’ first child K was born in April 2000. He is currently aged 12.
The parties’ second child A was born in August 2002. She is currently aged 10.
The parties separated in late 2007.
The parties divorced in 2008.
CREDIT
Mother
Overall the mother was not a particularly impressive witness. At times she was evasive and reluctant or unwilling to make concessions.
When asked about whether or not the children’s competence in English was superior to their competence in Polish, the mother was not readily able to concede the obvious (that is, that the children’s competence in English is significantly superior to their competence in Polish, having been born in Australia and, for most of their lives, educated and socialised in Australia).
The evidence in the mother’s affidavit relating to her complaints that the father left her with nothing did not seem to be substantiated by the facts. She received a larger portion of the parties’ assets. Similarly, the mother’s assertion that the father had “from 2007 till 2012, paid only once for the children’s school fees” was not accurate. Since the children returned to Australia in November 2010, the father has paid for half or all of their school fees.
The mother gave inconsistent evidence about the timing of her decision to remain to Poland in 2010, rather than return home to Australia. I have evidence that she enrolled the children in Polish school in January 2010. She initially said that she decided to stay in Poland permanently in February 2010. She later said that decision was made in March 2010. She then said that she had decided only to “stay longer” but that “during the Hague convention proceedings [in June 2010] I wanted to stay permanently”. By the end of her evidence, the mother was saying that her resistance during the original Hague proceedings and her appeal of that decision was not because she had formed an intention to permanently stay in Poland, but at that time she still wanted to stay in Poland for a trial period to see how it worked out. At the end of the mother’s evidence I could only conclude that she was not being frank with me about what her intentions were in 2010. Her explanation as to putting the children into school in Poland in 2010 because they wanted to do the same thing as what one of their cousins was doing seemed to me to be disingenuous. Notwithstanding the mother had in fact prior to leaving Australia, bought return air tickets, I am comfortably satisfied that the mother at least by the time she had enrolled the children in school, had formed an intention to permanently stay with the children in Poland. The entire capital that she had in Australia had already been moved to Poland in 2009 and it is possible that she formed the intention earlier than January 2010. I am however completely unable to accept her varying versions to the effect that she had not formed any intention to permanently stay in Poland at particular points in time after January 2010.
The mother gave inconsistent evidence about what year the child K would start school upon any return to Poland.
Father
I found the father to be a credible witness. He answered questions in a straightforward manner and was willing to make concessions.
The only area where I had doubts about his evidence was in relation to the police arriving at his premises on 10 December 2010. In his affidavit, the father says that when police arrived on that day his “neighbour [Ms R] was in the process of brushing [A’s] hair”. However, the police report says “Police attended the [location] and requested the [witness Ms [R]] unlock the front door and raise [[K]] and [[A]]…Neither child was distressed and stated that they had just woken up. No other persons were inside the unit.”
In his oral evidence, the father said that Ms R had been “in and out like [he] asked her to, checking on the children.” The father concedes Ms R has not put on an affidavit in these proceedings. The father was of course not present when the police attended. It is in my view unlikely that the police would have assisted the mother in taking the children away from the father’s residence if the neighbour had been inside the unit brushing A’s hair at the time that they arrived. The statement made by the father in his affidavit to that effect is unreliable but that is a relatively small matter when his evidence is looked at overall.
Counsel for the mother raised the issue of the father’s credit in respect of allegations the father made that the maternal grandfather slapped the mother, and the maternal grandfather threw the father out of the house. In his affidavit of 7 May 2012, the father asserts “I saw [the maternal grandfather] disrespect the mother, by slapping her on the face…” This allegation is repeated at paragraph 224 of his affidavit sworn 24 April 2012. In cross examination, counsel for the mother put to the father “He [the maternal grandfather] never slapped his daughter…?” and the father replied “there was something [that] happened.”
The father also alleges the maternal grandfather “ordered [him] to leave the [Y] property.” He says that around 29 April 2007, the maternal grandfather said words to the effect of “this is my house. I want you to get out of my house. You can no longer live here. You have to leave now. Get out.”
Counsel for the mother pointed to the fact that the father did not cross examine the maternal grandfather on the allegation that he slapped the mother, or that he threw the father out of the Y home. The lack of questioning of the maternal grandfather about these matters is not such a significant matter that would lead me to make an adverse finding in respect of the father’s credit.
Conclusion in relation to the credit of the mother and the father
Counsel for the mother asked me not to make any overall finding in relation to credit but deal with matters on an issue by issue basis where the parties’ evidence are at odds. I find that it is inappropriate to make no overall findings as to credit.
Overall I prefer the father’s evidence to that of the mother’s.
Mother’s Witnesses
I found the maternal grandparents to be credible witnesses.
Father’s Witnesses
Ms D was a most impressive witness. I accept her evidence in its entirety. In fact, counsel for the mother conceded that I should do so. It was also conceded that it was highly unlikely, given Ms D’s evidence, that the evidence of the mother that A had said she had seen a picture on the father’s iPad depicting Ms D “on top of [the father’s] bed…in her underwear and a singlet only” is reliable.
One of two things can be said about that evidence by the mother. Either the mother has fabricated what A had said to her or, if it is an accurate report, A has fabricated what she saw. I am unable to say which of those two possibilities is more likely. Neither possibility reflects well upon the mother. The first means that the mother is prepared to fabricate evidence in order to attempt to assist her in her case. The second indicates that A is so aligned to her mother’s wishes that she will say things knowing that her mother will listen receptively.
DETAILED CHRONOLOGY
The mother was born in 1971 and is currently aged 41.
The father was born in 1972 and is currently aged 40.
The parties met in 1993 in Poland.
The parties married in July 1994.
In early 1995, the parties relocated to Australia.
In 1998, the parties purchased a property in E and lived there for approximately one to two years.
The parties’ first child K was born in April 2000. He is currently aged 12.
After K’s birth, the parties moved in with the maternal grandparents, so they could assist in raising K. The parties rented out the E property.
The parties’ second child A was born in August 2002. She is currently aged 10.
In 2006, the parties planned to relocate with the children to Poland. The mother and the children moved first and remained in Poland for four months. The father remained in Australia attempting to sell the E property. When the property was unable to be sold, the mother and children returned to Australia.
The parties separated in April 2007. The mother says the father left, but the father maintains, and I accept, the mother asked for a separation, and he was consequently asked to leave the maternal grandparents’ home where the family had been residing.
From April 2007 until June 2007, the father saw the children almost every day at the maternal grandparents’ home.
Between June 2007 and July 2008, the father says he did not see the children. He says that “for approximately twelve (12) months, every time I tried to make arrangements with the mother to see the children, she refused me permission to do so.” He said he “then instructed a firm of solicitors to instigate proceedings to enable the children to once again be permitted to see [him].” The mother denied that months went by without the children seeing their father. She said she occasionally said no when the father requested to see the children, but not always. I accept the father’s evidence about this period.
On 7 July 2008, consent orders were made that the parties have equal shared parental responsibility for the children; that the children live with the mother; and the children spend time with the father on alternate weekends and for three hours on Monday and Wednesday afternoons in the alternate week.
Between July 2008 and December 2009, the children spent time with their father according to the consent orders.
On 14 November 2008, K was diagnosed with Asperger’s syndrome.
In September 2009, the mother travelled to Poland to inspect the property her father was to purchase on her behalf.
In October and November 2009, the maternal grandfather transferred AUD$100,000 and AUD$200,000 to Poland for the purchase of a property, known as “Z”. This money came from the mother’s property settlement with the father.
On 26 December 2009, the mother went with the children and the maternal grandmother to Poland. The father was under the understanding they were to holiday in Poland for two weeks.
On 12 January 2010, the day when the mother was due to return to Australia using the return airline tickets she had purchased for herself and the children, the mother says that bad weather prevented her from getting to the airport.
By the end of January 2010, the mother had enrolled the children in school in Poland. She says the children wanted to attend school because their cousin was going and she didn’t see any harm in them attending. She denies she intended to remain in Poland permanently. As I have said, I am unable to accept the mother’s evidence about this and have concluded that by this time the mother had formed an intention to permanently stay with the children in Poland.
In February 2010, the mother and the children moved into the Z property. Around this time the maternal grandfather relocated to Poland. The maternal grandparents also moved into the Z property.
In May 2010, the father initiated proceedings under the Hague Convention to repatriate the children to Australia. The father was successful in obtaining an order for the return of the children to Australia but the mother appealed that order. That appeal was heard in October 2010 and the original decision was upheld.
The father went to Poland in November 2010. The children were removed from Poland, with the assistance of the police. The mother told Dr M that the child K was “kicking and hitting and distressed at the time”. I have no doubt that the manner in which the children were returned to Australia was traumatic for the children.
The mother returned to Australia approximately one month after the children were forcibly removed from Poland.
Upon return to Australia, the mother made a demand that the father immediately return the children to her care. The father sought to speak to the mother about how they would handle that transition but the mother was not willing to meet with the father. The mother employed a private investigator to monitor the father’s care for the children and established that he was leaving the children in his unit with a neighbour in an adjourning unit watching over them between the time he went to work and the children went to school.
On 2 December 2010, the mother filed an Application in a Case seeking the children be returned to her at the Y residence (the property owned by the maternal grandparents).
On 20 December 2010, the mother removed the children from the father’s unit with the assistance of the police after the father had gone to work. The children had no contact with their father until 15 January 2011.
On 25 January 2011, Loughnan J ordered by consent the parents have equal shared parental responsibility, the children live the mother and spend time with the father one weekend per fortnight, and two afternoons per fortnight.
DISCUSSION
Proposals of the parties
The mother proposes the children live with her in Town X, Poland. She proposes the children travel to Australia to spend four weeks with their father each year. She proposes these four weeks be in August, when the children will be on Polish summer school holidays. She proposed that she pay for one trip every second year and the father pay for the other year. It is somewhat unclear as to how the mother will fund those trips. All her capital currently is tied up in the property “Z”. Her parents are reasonably well off. They hold considerable property and the maternal grandfather runs a business in Poland. I infer that the mother will rely upon the assistance of her father to fund the trips. The maternal grandfather gave evidence that he was prepared to provide funding to cover any of the children’s educational needs.
The mother’s proposal is she travels with the children to Australia each second year and the father comes to Poland to pick them up and redeliver them each other year. It was not clear to me whether or not the father would be able to get time off work to go over and pick them up and bring them back and to then travel back with them at the end of the holidays.
The mother said the father was “at liberty” to come to Poland to spend time with the children.
The mother said the children will also have skype contact and telephone contact with their father.
During cross examination, the father agreed that in the year the mother was paying for a trip to Australia, he would want to pay for a trip to Poland to see the children. It is unclear however as to when this would happen. If the children come out to Australia during the long break (July/August) in their school holiday then there is only a relatively short period over Christmas when the children are out of school in Poland. The father in his evidence did not say that he could not get time off work to make a trip to Poland each year to pick up and deliver the children.
The father in cross examination said that if the Court made orders in accordance with mother’s primary proposal, he thought that he would be able to continue to have a meaningful relationship with the children. Dr M however was far less confident and I accept his opinion that given the children’s current alignment with their mother and maternal family, the absence of the father from their lives on a day to day basis must impact upon the meaningfulness of their relationship with him.
If the children continue to reside in Australia, the mother has indicated that she will remain in Australia and remain the children’s primary care giver. This is the father’s proposal. The father fundamentally wishes to maintain the current arrangements.
The arrangements that each party proposes to cater for the special needs of the child K both in Australia and Poland
Counsel for the father criticised the evidence of the mother in relation to her proposals for educating the child K in Poland as lacking in specificity and detail.
Annexure 1O to the mother’s affidavit is a document signed by the “School Owner” of the X school, which says that the school offers “individual work with pupils requiring [a] specific approach from the teacher and more in depth explanation of topics taught.” Counsel for the father pointed to the absence of a school curriculum, or prospectus, to give any significant meaning to this statement.
The mother says that the X school works cooperatively with a psychologist who specialises in Asperger’s Syndrome. She also says that the children will be eligible to attend the learning centre attached to the school two or three times per week. She says that the centre can provide one on one lessons, and that K will have his own program at the school. However, the mother has not provided evidence as to what this program will be.
The father does not accept that the children will only attend the X school. Annexure 1R to the mother’s affidavit shows that the school is registered as a primary school. Annexure 1O says that the school offers a “continuation of study at a secondary junior school”. Counsel for the father pointed to the mother’s evidence that she did not know how many years the children would need to complete school in Poland.
Counsel for the mother submitted that the father had expressed no real interest in exploring what arrangements might be able to be made for the children should the Court agree that they could live with the mother in Poland and in those circumstances, it was submitted that I would find the father had ceded the responsibility of educational arrangements for the children in Poland to the mother. I do not place much weight on that submission. It is the mother’s primary proposal to permanently relocate to Poland. The onus is on her to lead evidence about the schooling arrangements which she proposes.
In his school in Australia, K has a teacher’s aide. He is also involved in a targeted group in year 7 called TLC. He also has a specific learning program designed for him so that teachers are able to take accommodate his Asperger’s Syndrome. I have in evidence K’s “individual adjustment plan” and his “special education individual student profile”. Both parties agreed that they are happy with the measures K’s current school has taken to cater for K’s needs.
The issue arises as to which schooling proposal is superior for K on the evidence provided. Dr M opined that the Australia proposal is superior.
Counsel for the mother criticised Dr M for not making any inquiries of the school in Town X (which both parties propose the children would attend in the event that the children were permitted to relocate) and emphasised that he did not see any material from the school until he read the short reports of the children’s progress in 2010. Counsel for the mother submitted that Dr M’s contention that K’s special needs are better served in Australia are flawed. Dr M’s reading of the two school reports accord with my own findings as to what they say. I have had the advantage of looking at the whole of the material produced by the mother in support of her contention that the Polish school offers equal facilities to those which K currently gets at home. I am unable to conclude that on the material presented by the mother, that K’s special needs will be met in the same manner as they are met in Australia. The support that K has in Australia is impressive. On the material that has been presented, I am unable to say whether the level of support available to K in Poland is comparative to the level of support available to him in Australia.
The more important issue is not necessarily the difference in the standard of educational facilities available, particularly to K, in the two countries but the difficulties that will confront K should he move from his current settled environment in a school in Australia into high school in Poland. A discussion about those difficulties is revisited later in these reasons.
The history of the schooling arrangements for both the children in Australia and Poland
The child K commenced high school in January 2012 at H College. The child A is enrolled in S Primary School. If A remains in Australia, the mother intends for A to also attend H College for high school, commencing in 2014.
The mother proposes the children will attend the private school in Town X. She says the private school has very small classes of only 16 to 18 children.
The children’s time in Poland in 2010 set the child A’s schooling back by one year. In 2009 when the children were in Australia, A was in year 2. In 2010, A was enrolled in year 2 in Poland. She moved up to year 3, at the beginning of the new school year in September 2010. When the children returned to Australia, A commenced year 3 in 2011.
In 2009, the child K was in year 4 in Australia. In January 2010, K was enrolled in year 3 in Poland. I infer that K was not started in year 4 in Poland partly because of the difficulties that flow from his Asperger’s Syndrome but also because of his lack of fluency in the Polish language. A school report from Poland dated 11 October 2010 indicated that K was to repeat Year 3 in the 2010-2011 school year because he was “unable to make enough progress to be promoted to year 4.” This meant from September 2010 in Poland he was in the same class as his sister. The mother also said that the school did not have enough space for K in the year 4 class.
Her evidence varied regarding what grade the children will commence should they return to Poland. Initially her evidence was that K would commence year 4 in Poland in September 2012. However, she later said that she intends for K to commence year 7 (the first year of high school) in Poland.
The accommodation arrangements for both children in Australia and Poland
If permitted to relocate to Poland, the children will be residing at the Z property. The maternal grandfather gave evidence that the maternal grandparents have the ability to move into a unit they own in Poland, if the mother does not want them to continue living in the Z property.
The mother is currently residing in Australia at her parent’s home in Y. That home is on the market to be sold. If the children remain in Australia, the mother proposes to purchase a three bedroom townhouse around the Y area so that the children can continue at their present school.
The father intends to remain living in the same area and will attempt to buy a unit in that area. He said that should his relationship with Ms D become long term (as he hopes it will), he would envisage getting a larger property to live in.
The special needs of the child K and updated evidence as to any diagnosis, referrals, treatment and medications
The child K suffers from Asperger’s syndrome.
During submissions, counsel for the father chronicled K’s condition. In 2006, K attended upon a speech pathologist. In November 2007, he was diagnosed by Ms L as having a severe language disorder. (I note also an initial speech-language pathology report dated 12 December 2006 (Annexure E to the mother’s affidavit of 1 May 2012) says “[K] has seen [Ms W], Speech Pathologist in October 2004 and was diagnosed with a severe receptive and expressive language disorder.”) In October 2008, Ms C, a psychologist, opined that K met “the requirements for diagnosis of Aspergers Disorder”.
Annexure C to the mother’s affidavit of 1 December 2010 (exhibit 4) is a report dated October 2010 written by Ms P, a clinical psychologist in Poland. Ms P opined that “[K’s] development and rehabilitation in Poland have been very successful.” Ms P also wrote a report in November 2010, where she said “all information suggests that the stay in Poland and the stimulation have a really beneficial effect on the boy’s development and greatly contributes to the success of the therapy.” In a third report, titled “Individual Treatment Program”, Ms P opined “I am inclined to confirm that here in Poland the boy is offered extremely favourable conditions for further development (emphasis in original)”. Counsel for the father submitted little weight could be placed on these reports; the father was not involved, there is no accompanying letter of reference provided to the psychologist, and the interview probably occurred in Polish and it is unclear who translated for the children.
I accept the submissions from counsel for the father in relation to the weight to be placed upon the report of the clinical psychologist in Poland. The basis of the opinion expressed is not clear from the psychologist’s report. On the evidence that I have, I am unable to find that Poland offers extremely favourable conditions for K’s further development when compared with the evidence that has been adduced in relation to the level of facilities and support that K is offered in Australia. I refer to the arrangements that each party proposes to cater for K’s special needs in Australia and Poland (see paragraphs 70-78 above) and the difficulties that I find he will have in adapting to schooling in the Polish language at a secondary school level should he return to Poland (see paragraphs 170-171 below).
The parent’s financial circumstances in so far as they affect any parenting arrangements
The father said he earns approximately $50,000 per year. In oral evidence the father indicated that he hoped, with the establishment of his new business, that he would be able to generate more income than that. Slightly inconsistently, exhibit 26, which is a handwritten statement of the father’s financial circumstances that was handed up in the context of the application from the Independent Children's Lawyer for a costs order, indicates that the father’s monthly income is $3,120 and is totally expended on ordinary expenses, including child support and school fees. He estimates that travelling to Poland to spend time with the children will cost him approximately $10,000 each second year when he travels to Poland to bring them to Australia (he estimated the cost of return flights alone to be $2200 x 4 return flights). It will be one quarter that amount in the year when the mother pays for the children to come to Australia and the father travels to Poland to see them. It seems that if the father is not able to increase his income that he will have to use some of the capital that he currently has to fund overseas travel.
The mother is currently unemployed. She has previously been employed as a home carer, and is looking for work in that field in Australia. She agreed she is not paying rent to her parents while she lives in the Y property, but she asserted she pays the bills associated with the property.
In his affidavit, the maternal grandfather says that in the event that relocation to Poland is permitted the mother will take a position at his company in Poland. He says once the company has developed a hospitality business, the mother will “take full control and management of the business”. I find that there is no evidence that would indicate that the mother was better off economically if she was in Poland. Although her father says that the mother might be able to take over his position in the business, the mother agreed in cross examination that she has no training in bookkeeping (which seems to be the primary area of her father’s work). The mother also has no training in the hospitality industry and that may be a difficulty if she is to take over the hospitality business. It seems clear that if the mother returned to Poland she would rely financially to a large degree upon her parent’s generosity. Her parents can assist her wherever she might live (although I accept that they may be more likely to provide her more if she is in Poland and providing them with some personal exertion).
The mother’s reaction to the contents of Dr M’s report
In her written evidence, the mother heavily criticised how Dr M conducted the interviews for the preparation of his report. Counsel for the mother however did not raise with Dr M any issue that went to the complaints raised by the mother and no reference was made to these matters in submissions by counsel for the mother. Counsel for the mother in submissions did not attempt to suggest that Dr M’s opinions had been formed by a process that was in someway inappropriate, except to say that:
“It is difficult to understand why Dr [M] thought it appropriate to tell the children of his intention (to recommend that they not relocate)”
The difficulty with that submission is that counsel for the mother did not ask Dr M why he thought that it was appropriate for him to inform the mother and children as to what he was going to write in his report.
The ability of the father to relocate to Poland and the ability of the mother to remain in Australia
Both parents are dual citizens of Australia and Poland.
In Australia, the father is a … driver. He is also starting his outdoor maintenance business.
The father says that he is “aware he would not be able to obtain gainful employment in Poland” because of their economic climate. He says when he went to Poland for Hague proceedings in May 2010, he enquired about job opportunities. He said “there [were] very little [job opportunities]. No job security.”
The father says he does not want to relocate to Poland because he doesn’t “want to start [his] life again from scratch.” He said that in March 1995 the mother invited him to start a new life in Australia and that Australia gave him a better life, and better opportunity to create an easier life.
The mother sought to lead evidence to establish the father’s assertion that he would be unable to obtain gainful employment in Poland should not be accepted.
There were differing views in submissions as to what relevance the evidence led by the mother could have in circumstances where the father had made it clear that in the event the children were allowed to go back to Poland, he was not following them.
The Independent Children's Lawyer and counsel for the father submitted that if that was accepted as a genuine position by the father then no inquiry as to the reasonableness of that position was appropriate.
Counsel for the mother referred to U & U[2002] 211 CLR 238 and quoted the dissenting judgment of Gaudron J:
35. …it is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility, particularly given the father's origins, his professional qualifications and family contacts in India, seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father's choice as to where he lives is beyond challenge in a way that a mother's is not.
…
37. 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 risk 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…
Counsel for the mother also quoted Hayne J’s comments in U v U at paragraph [175]:
When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined.
It flows from these passages that it is appropriate for a court to make an inquiry as to the reasonableness of a stated position by a parent (usually a father) in relation to the reasonableness or otherwise of a firmly stated view that that parent did not intend to follow a primary parent to where that primary parent wished to relocate.
The mother initially sought through her counsel to tender evidence of the availability of employment as a driver in the document that became Exhibit 16. Counsel for the mother had done a search using a descriptor which included the word “Poland”. As I pointed out, after I examined the document, it was clear that the information in Exhibit 16 related to employment opportunities in Poland, Maine, United States of America. The cross examination of the husband on that document therefore will be substantially disregarded. It was clear from that line of questioning however, that the father had not done very much online searching of employment opportunities in locations close to where the mother wished to live.
The mother, not to be deterred, redid an internet search which, by consent, became exhibit 20. This search, I am satisfied, was a search of relevant positions for forklift operators in City WW. WW is about 80 kilometres from where the mother wishes to live with the children in Poland. As counsel for the father points out, the information in exhibit 20 is less than complete (including not having any significant details as to the remuneration that is being offered). I also do not have any details as to the cost of living in Poland to make an assessment as to the relative financial position the father would be in if he went back to Poland as compared to his financial position in Australia.
In Australia he has been in the same employment for about seven years. That employment is full time and I find it is stable employment.
I also note the evidence that was tendered by consent (exhibit 21 and exhibit 24) that the unemployment rate in the south-western Sydney area is in fact higher than the unemployment rate in the WW area.
In his oral evidence, the father said that “I have my brother there [in Poland] and two sisters. They [are] out of work. My brother is a truck driver, if he get[s]…work one week during one month, it’s lucky… Truck driving is out of the question at the moment… because of the economic circumstances.”
It is not possible from the evidence led by the mother for me to conclude that the father is wrong when the father concludes that, at least from a financial point of view, he would have a better life if he remains in Australia. What I can conclude is that the father has not in any enthusiastic way, explored the possibility of working back in Poland.
On 21 August 2012, (shortly before the commencement of the final phase of the hearing), the father was sent a document from the maternal grandfather and the maternal great-uncle, which became exhibit 14. This document says that the maternal grandfather and his brother own buildings that are for lease. Some of those buildings have cold storage, others are used in relation to car repairs.
An offer was made for them to sign a lease with the father so that he could occupy his own private premises to conduct whatever business he might like to operate at Town B. The offer was for rent free accommodation for a period of 12 months. The offer also included an offer to the father of residential accommodation in which he could live for a period of 12 months. The document asserts that there is a “big demand for truck drivers and owners of trucks that speak English and know [how to drive on the] left and right side of the road”. The father was not asked any questions about his skills as a truck driver. The offer goes on to say that if the father decided to buy his own truck in Poland then the offer extended to an offer that they would provide space to the father to garage his truck.
The maternal grandfather conceded that when making the offer, he knew that it was unlikely that the father would accept the offer.
Counsel for the father intimated that the provision of the offer on the eve of the hearing was no more than a forensic tactic given that it was made in circumstances where the makers of the offer knew that it was highly unlikely that it would be accepted. I infer from a number of parts of the evidence that there is a reasonable level of animosity between the father and the maternal grandfather. Counsel for the mother submitted that I should accept the offer as a genuine one. Counsel for the father did not suggest to the maternal grandfather that it was not a genuine offer. I accept the maternal grandfather would have fulfilled his side of the bargain should the father have accepted the offer. I also however find that it was not unreasonable for the father to reject the offer that had been made.
The father’s reasons for not wishing to relocate to Poland also include the father’s conviction that there are significant advantages to both children for them to be able to stay where they currently are and complete another three or four years education at least before they are given the choice to relocate.
I am unable on the evidence available, to find that the father has recklessly ignored the possibility of relocating to Poland. I accept that he has formed a genuinely held conviction that he will not relocate if the children are to go back to Poland and that conviction is reasonably held. Consequently, a proposal that would see the mother, the children, and the father living in close proximity to one another in Poland is not a proposal that I am able to consider in this case.
The perception of each parent as to the advantages and disadvantages of the children residing in Australia or Poland
The mother gave evidence that Poland would be better for the children because they will be surrounded by family. She said that the children will be able to go on excursions to other European countries. She said that in Poland the child K became more independent, “his sleeping pattern was better”, and “he was able to make friends with the neighbour.” The mother was unable to identify the elements of the Polish environment that led to these improvements in K. Dr M opined that there was a strong chance that these improvements which the mother observed in K were simply a function of his maturation. That opinion is bolstered by the mother’s concession that these improvements in K’s behaviour were maintained upon his return to Australia.
When questioned on the advantages of Poland, the father said he couldn’t think of any advantages “besides the families.” However, he did not concede that it would advantageous for the children to be close to the maternal grandparents.
The father agreed that relocating to Poland would fulfil the children’s wishes and the mother’s wishes. He also agreed that the children growing up as Poles immersed them in their family’s heritage.
The father was able to identify some disadvantages of moving from Australia. The father agreed the children would see much less of him, and would lose the opportunity of growing up in the Australian culture.
The father said remaining in Australia would give the children “more opportunities, more stability, [and] better schooling… than in Poland.” He said he wants the children to finish school in Australia.
THE APPROACH IN CHILDREN’S CASES
The objects of Part VII Family Law Act 1975 (Cth) (“FLA”) are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA FLA provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests.
In Starr & Duggan [2009] FamCAFC 115, the Full Court suggested an approach to parenting cases where a party proposes to relocate. They said:
36.The Full Court also pointed out [in McCall & Clark [2009] FLC 93-405] that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
…
38. However, it is important to emphasise (as was made clear in Taylor & Barker [(2007) FLC 93-345] and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
· first make findings concerning the relevant s 60CC factors;
· then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
· then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
39. Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
Justice Murphy considered the legislative pathway in parenting cases in Cowley & Mendoza (2010) 43 Fam LR 436. His Honour quoted the paragraphs of Starr & Duggan as above, and considered that MRR v GR (2010) 240 CLR 461 had given “cause to respectfully review” that approach. His Honour went on to suggest a different approach at paragraph 41 of his Reasons.
In MRR v GR, the High Court considered the provisions of s 65DAA FLA. Their Honours said:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. [footnote and citation omitted]
…
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
In Heath & Hemming (No 2) [2011] FamCA 749, Kent J set out a “somewhat different approach” than the approach suggested by Murphy J in Cowley & Mendoza. At paragraph 87, his Honour said:
87. Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation: -
(a) Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(b) Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
(c)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(d) In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
(e) Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(f)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(g) If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
(a) Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
(b)Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(h) The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(i) To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR vGR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.
In SCVG & KLD [2011] FamCAFC 100, the Full Court considered whether MRR v GR had imposed a specific pathway. They said:
117.The written and oral submissions of Senior Counsel for the father essentially assert that the learned Federal Magistrate erred by making the s 60CC findings he did in isolation from s 65DAA. For our part, we struggle to see how, without having made findings of fact with respect to the matters made relevant to the welfare of the children by s 60CC of the Act, his Honour could meaningly engage with s 65DAA. Even if, as the submissions of Senior Counsel for the father seem to suggest, his Honour should have commenced his considerations with s 65DAA, the wording of the section makes clear that he would shortly thereafter have needed to refer to s 60CC before being able to properly determine the matters made relevant to s 65DAA with respect to equal time and/or substantial and significant time.
118.We are not persuaded that anything in the High Court’s decision in MRR (supra) rendered erroneous the learned Federal Magistrate’s approach to the determination of the proceedings before him. Nor are we persuaded that it was other than reasonably open to his Honour to make the findings of fact he did by reference to the various provisions of s 60CC before directing his attention to the provisions of s 65DAA. As will be seen, the issue is whether so doing impermissibly precluded a proper consideration of s 65DAA.
119.At least inferentially, Senior Counsel for the father asserted that, by approaching the matter in the way he did, the learned Federal Magistrate concluded, in the context of s 60CC, matters which he should properly have considered within the context of s 65DAA, or impermissibly pre-empted such consideration. To evaluate those complaints, it is necessary to have regard to what his Honour actually said. As is not in doubt, the learned Federal Magistrate considered “the best interests of the child” before considering s 65DAA. The issue is whether, in so doing, his Honour prejudged matters which ought to have been determined within the context of s 65DAA.
…
138.Nothing to which we have been referred, either by way of authority, or by reference to the manner in which the learned Federal Magistrate determined the proceedings before him demonstrates appealable error. His Honour carefully considered all of the matters which he was obliged to, both with respect to s 65DAA and s 60CC. We are not persuaded that the sequence in which his Honour considered those matters was erroneous. Indeed, we struggle to see how else he could have satisfied the requirements of s 60CC and s 65DAA.
Having already discussed the competing proposals of the parents, the sequence in which I intend to consider matters in this case is as follows:
132.1.First make findings concerning the relevant s 60CC factors;
132.2.Consider whether or not an order for equal shared parental responsibility is to be made;
132.3.If so, given that neither party proposes equal time, consider whether the children spending substantial and significant time with their father is in their best interests and reasonably practicable;
132.4.Reach a conclusion about what arrangements are in the children’s best interests and make orders accordingly.
Primary considerations
The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a) FLA)
It was not a matter of controversy in this case that both children would benefit from having the continuation of a meaningful relationship with both their parents.
The need to protect children from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s 60CC(2)(b) FLA)
Whilst it was asserted by counsel for the father that the children need to be protected from psychological harm from being exposed to either intentional or inadvertent alignment against their father by their mother and in particular the maternal grandfather, that was not a relevant matter under this consideration given that it did not arise from abuse, neglect or family violence.
The father denied, and I accept, that he has ever been violent, or neglectful.
The additional considerations
Children’s views (s60CC(3)(a))
The children have both expressed a desire to live in Poland.
The child A told Dr M that she wanted “to live in Poland with [her] family. [She has] more friends there and [she doesn’t] cough as much.”
The child K told Dr M that “in Poland [he] thinks school is better. There are less people in the school.” He also told the expert that he didn’t get sick so much in Poland, and the school was smaller. The expert noted that K’s only wish was to go to Poland.
The father says that the mother has “brainwashed” the children. He deposes that the children stopped telling him they wished to return to Poland in about May 2011. However, in oral evidence the father conceded that the children still from time to time say that they want to go and live in Poland. Looking at all the evidence overall, it is clear that the mother continues to have a strong desire to relocate to Poland with the children and to live with or in close proximity to her parents. She explained that this would assist her in relieving the burden of managing K’s condition as his primary carer. I find the mother’s wish to live with her extended family in Poland with the children to be a genuine one. There is no doubt that the children are significantly aligned with their mother and are aware of and sensitive to her views. The evidence about A’s report to her mother of the photographs of Ms D is demonstrative of that dynamic. In large part I find that the expression by the children of the view that they would like to live in Poland is a function of their knowledge of and alignment with their mother’s view.
Dr M opined that he did “not regard [the children’s wish] to be a mature view”. I agree with Dr M that the children do not have a mature view. I do not place significant weight on their views.
Relationships of the children with the parents and other persons (s60CC(3)(b))
The children are primarily attached to their mother and the father does not suggest that that change.
The father was questioned about the strength of his relationship with the children. The mother had suggested that K had recently said to her, “Dad is a liar”. The father agreed that if true, that was a concerning comment for K to make. The father also agreed that A, after a recent fight with one of her friends, was reluctant to talk to him about her problems with her friend. Those problems now seem to be cured. The father said that A was usually comfortable talking to him about her problems. I have no doubt that the children say negative things about their father from time to time, particularly in their mother’s household. This is a function of the children’s alignment with their mother. What is very instructive however is the observations that Dr M made of the relationship between the children and their father during the interviews for the preparation of his report.
The children refused to engage with the father when observed by the expert. Dr M notes that they “sat in silence”. However, the children were left in the father’s care while the expert interviewed the mother. Upon return, Dr M observed “the father…engaged in more positive interactions with the children. They were drawing and playing [with] Lego together. The children, however, looked up and moved away from the father as soon as the assessor returned”. Dr M considered this observation to be a significant one. He thought that the children knew quite clearly why they were being assessed by him and given their alignment with their mother’s position, wanted to provide Dr M with a message that was supportive of their mother’s position. He thought that a real measure of the children’s relationship with their father could be gained by his accidental observation of them with their father when the children themselves did not think that they were being observed by the report writer.
The relationship between the father and Ms D is at a very embryonic stage. She has one child of a previous marriage. She told me that that marriage had been arranged for her. She has been divorced for five years and the father is the first man she has ever dated in her life. I hope her experience of being cross examined in this litigation does not have a negative effect on any attitude that she has to the father.
The mother’s relationship with Mr U was explored in questioning during the hearing. Mr U is the ex-husband of Mrs U; a woman who the mother thought was having an affair with the father. Counsel for the mother criticised the part of the cross examination which asked the mother whether or not she was having an intimate sexual relationship with Mr U in circumstances where the father in his evidence conceded that there was no basis upon which to suggest that the mother was involved in that way with Mr U. Whether or not that criticism is justified is not of any moment. Mr U was not called as a witness in the mother’s case. He clearly is a person that the mother can obtain support from if she continues to live in Australia and I accept the mother’s description of their relationship as being like “brother and sister”.
The mother asserts that the children regularly talk to their family in Poland.
I find the mother’s wish to live with her extended family in Poland with the children to be a genuine one.
The maternal grandparents relocated to Poland in 2010. They are residing in X, in the house purchased by the maternal grandfather for the mother.
I accept that the children have a strong bond with the maternal grandparents. Counsel for the mother suggested I should draw conclusions from drawings of the family that the children made while they were with Dr M. Dr M in his report does not indicate that he places weight on the children’s drawings and he was not asked any questions about the drawings in cross examination. I do not draw any inference from the children’s drawings.
The father acknowledges the children have an important relationship with their maternal grandparents. In particular, the father conceded the maternal grandfather has played a significant role in caring for K. The strong relationship between the children and the maternal grandparents is understandable given that the maternal grandparents were members of the children’s household for most of the children’s lives.
The maternal grandparents gave evidence that it may be difficult for them to travel to Australia. The maternal grandfather said he had a heart operation approximately four years ago. He also said he would have difficulty sitting on such a long flight.
In his oral evidence, the maternal grandfather agreed that he would return to Australia to visit the children “if [he] can.” He explained “because my health…I can’t fly, it’s 24 hours non stop only flying, I don’t know.” The maternal grandfather said that the maternal grandmother might need to take “20 tablets of painkillers” in order to make the journey.
The maternal grandparents are both in their early 60s and I note the maternal grandfather involves himself in work that requires physical exertion and that he still works full time.
I accept that health problems with the maternal grandparents create some difficulties for them in getting to Australia to see their grandchildren, but I have insufficient evidence to make a finding that their health would preclude them from doing so. The assumption that the maternal grandparents would have to sit on a plane for 24 hours to get to Australia is not one that I necessarily accept given that there is no requirement for the grandparents to travel on a continuous flight and stopovers could be planned. I find that it is likely that if the children remain in Australia the maternal grandparents will come to Australia to spend time with them and with their daughter. There is no financial barrier to stop them. Consequently I conclude that if the children remain in Australia they will not be deprived of face to face time with their maternal grandparents in Australia. In addition there could be an order to facilitate overseas travel.
The paternal family also reside in Poland, however they are located approximately 700 kilometres away from X and I have little information to assess what relationship the children have with the father’s extended family. In the event the father also relocated to Poland, he would not be able to live in the same area as his family and still have significant and substantial time with the children.
Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent (s60CC(3)(c), noting (s60CC(4))
In an interview with the parents together, Dr M notes that the mother threatened the father with a raised voice:
I want the father to be part of the children’s life [sic]. But I’m telling you. If I have to stay in Australia; I’m telling you that you’re going to lose your children forever; I will tell you… the children went through trauma. They were taken by force against their will. In the worst possible way. They were not given a chance to say goodbye. They were not given a chance to say what they want, what they need. Because [K] says to me: ‘I hate my father. He is stupid. Why doesn’t he love me? Why doesn’t he spend more time for [sic] me?’ They were taken by force. They said ‘we didn’t get to say’. [K] will deteriorate. I will never let that happen. They knew that the only reason they don’t go to Poland is because of [the father].”
Dr M noted that the mother calmed down and “retracted the threat” (that the children would be lost to the father forever, if the children were required to remain in Australia) and “emphasised that she would never allow this to happen.”
In her affidavit, the mother asserts she has “always supported the [father’s] relationship with his children”. She says she has always accommodated changes in time the father spent with the children.
The mother says she unknowingly organised A’s birthday party on Father’s Day. The father insisted he have the children on Father’s Day pursuant to the orders and the mother had to cancel the party because “there was no reasoning with [the father]”.
The mother agrees communication between the parties is minimal. She places blame on the father for this, saying that he never picks up his phone when she rings.
In June 2011 the parties attended upon the Family Consultant who recommended they complete the Parenting After Separation course. The mother has completed this course. In his affidavit, the father said he has not completed the course because it occurred over six weeks, and he would prefer to undertake the course over one day. In his oral evidence he said that the course was scheduled during his work hours, or on the afternoon he spent time with the children.
The father conceded that it was unacceptable that he had not done anything to put in place that recommendation in order for him to improve his skills in being able to communicate with the mother as one of the children’s parents with the children’s other parent.
There has been no significant incident at face to face handovers of the children since the orders were made by Loughnan J in January 2011.
The parties have been engaged in litigation with one another since about the middle of 2010, both in Poland and here.
After this litigation has concluded, I am hopeful that there may be some improvement in the ability of the parties to communicate with one another.
The other bulwark that can be put in place to lessen the risk that the mother will retain the children in Poland is to attempt to provide the parents with some skills to enable them to work with one another as the children’s two parents. A recommendation was made originally by the family consultant that both parties do a parenting after separation course. The mother did; the father did not. The father’s excuse for not doing so in the period of time that he had was very unsatisfactory. The father indicated that he would be prepared to participate in a post separation parenting course. It would be beneficial for the children for both parties to attend the same professional so that that one professional can work individually with each of the parties (and jointly if that professional believes it is appropriate) to improve the working relationship between the two parents. That professional should be given a copy of these Reasons for Judgment.
APPLICATION BY INDEPENDENT CHILDREN'S LAWYER AGAINST THE FATHER FOR COSTS
The Independent Children's Lawyer sought an order in the following terms (Exhibit 25):
That in the event that the father does not successfully apply to Legal Aid NSW for a waiver of his contribution for payment of the Independent Children's Lawyer’s costs within 60 days, then the father shall pay his contribution to the payment of the Independent Children's Lawyer costs within 12 months to Legal Aid NSW in the sum of $7,189.55.
That application is opposed by the father. The father tendered a summary of his financial position (Exhibit 26). That summary indicated that the father’s monthly income and expenses were about equal. The father however does have monies from the property settlement. He has $72,000 in savings in the Commonwealth Bank and he has lent to a friend (one of the godparents of the children) an amount of $80,000 which is repayable immediately should the father request it of him. In all, the father has $152,000 available to him. Exhibit 26 indicates that $35,000 of that is committed to the payment of legal fees. There is a balance of $117,000. The father gave evidence that he wanted to apply that money to purchase a unit in which to live. As I have said earlier, if the children were to relocate Poland, the father may have to use some of his capital to fund regular trips to Poland to see the children.
The father did not challenge the assessment of quantum of the amount sought by the Independent Children's Lawyer. The father argued that the mother had obtained a waiver from Legal Aid NSW of the payment of the Independent Children's Lawyer’s costs (I am unaware as to whether or not Legal Aid NSW knew the mother contributed $300,000 to the purchase of real estate (which is in her father’s name) in Poland) Counsel for the father argued that as a matter of parity, the father should not be ordered to pay costs when Legal Aid NSW had waived the mother’s costs. What Legal Aid NSW does in relation to the mother is a matter for them.
Applying normal principles to the application, there is no reason why the public purse should pay for the work done on behalf of the children by Legal Aid NSW in circumstances where the father has the ability to fund what is a reasonably modest request for payment of fees in respect of the Independent Children's Lawyer. According, I find that it is just to make the order sought
I certify that the preceding two hundred and twenty-three (223) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 5 December 2012
Associate:
Date: 5.12.2012
SCHEDULE 1
Orders sought by mother in final submissions
That the orders of the Court made on 7 July 2008 (dated 4 July 2008) and further Orders made on 25 January 2011 be discharged.
That the mother have the sole parental responsibility for the children [K Sikora], born … April 2000, and [A Sikora], born … August 2002 ("the children").
That the children live with the mother.
That the mother be permitted to relocate the residence of the children to [Town X], Poland.
That the father spend time with the children as follows:
5.1.each Polish school holiday in August for a period of four weeks and in odd numbered years the mother shall deliver the children to the father in Sydney at the commencement of the four week period and collect them from the father at the conclusion of such four week period; and
5.2.in years ending in even numbers and in such August school holidays the father shall collect the children from the mother in Poland at the commencement of each such period and return them to her at the conclusion of each such four week period;
5.3.at any time when the father is visiting in Poland he shall spend time with the children each weekend from after school on Friday until 7.00 p.m. Sunday and at other times as agreed.
5.4.in the event that the father wishes to have a holiday at Christmas time in Poland with the children, he may do so for a period for up to 21 days.
In the Alternative if the Father Resides in Poland
In the event that the father relocates to Poland then the father shall spend time with the children as follows:
6.1.in a two week cycle each alternate weekend from after school Friday until 7.00 p.m. Sunday;
6.2.in the alternate week from 3.00 p.m. to 7.00 p.m. each Monday and Wednesday;
6.3.for one-half of each school holiday period as agreed between the parties and, failing agreement, for the first half in years ending in even numbers and the second half in years ending in odd numbers;
6.4.on Christmas Day from 10.00 a.m. to 7.00 p.m.;
6.5.on Easter Sunday from 10.00 a.m. to 7.00 p.m.;
6.6.on Fathers Day from 10.00 a.m. to 7.00 p.m.;
6.7.in the event that Mothers Day or Christmas Eve falls on a day or period during the father’s time, his time is suspended and he is to return the children to the mother’s residence at 10.00 a.m. on those respective days;
6.8.the parties are to spend equal time with the children on each of the children’s birthdays;
That the father shall collect the children from the mother’s residence at the commencement of each period of time he is to spend with them and return them to her at the conclusion of each such time.
That the father have telephone contact with the children between the hours of 5.30 p.m. and 7.30 p.m. on every third day.
That the mother authorise the children’s schools at which they attend from time to time to provide the father with copies of their school reports, school bulletins, school photographs and like material ordinarily provided to parents, including notices of teacher/parent meetings, sports events and other significant events;
That the mother provide the father and keep the father advised of the names and addresses of the children’s treating doctors, chemists and other like professionals the children may consult from time to time;
That each of the parents be at liberty to attend any of the children’s extracurricular activities.
That the parties be restrained from:
12.1.discussing the proceedings in the hearing of or presence of the children;
12.2.denigrating or criticising the other parent or the other parent’s family in the hearing or the presence of the children;
12.3.smoking in front of the children or any place where the children may reside.
That each parent shall inform the other of any change in their telephone numbers or residential addresses within 7 days of any such change.
In the Event that the Mother is not Permitted to Relocate the Residence of the Children to Poland
In the alternative:
That the mother have the sole parental responsibility for the children [K Sikora], born … April 2000, and [A Sikora], born … August 2002 ("the children").
That the children live with the mother.
That the father shall spend time with the children as follows:
17.1.in a two week cycle each alternate weekend from after school Friday until 7.00 p.m. Sunday;
17.2.in the alternate week from 3.00 p.m. to 7.00 p.m. each Monday and Wednesday;
17.3.for one-half of each school holiday period as agreed between the parties and, failing agreement, for the first half in years ending in even numbers and the second half in years ending in odd numbers;
17.4.on Christmas Day from 10.00 a.m. to 7.00 p.m.;
17.5.on Easter Sunday from 10.00 a.m. to 7.00 p.m.;
17.6.on Fathers Day from 10.00 a.m. to 7.00 p.m.;
17.7.in the event that Mothers Day or Christmas Eve falls on a day or period during the father’s time, his time is suspended and he is to return the children to the mother’s residence at 10.00 a.m. on those respective days;
17.8.the parties are to spend equal time with the children on each of the children’s birthdays;
That the father shall collect the children from the mother’s residence at the commencement of each period of time he is to spend with them and return them to her at the conclusion of each such time;
That the father have telephone contact with the children between the hours of 5.30 p.m. and 7.30 p.m. on every third day;
That the mother authorise the children’s schools at which they attend from time to time to provide the father with copies of their school reports, school bulletins, school photographs and like material ordinarily provided to parents, including notices of teacher/parent meetings, sports events and other significant events;
That the mother provide the father and keep the father advised of the names and addresses of the children’s treating doctors, chemists and other like professionals the children may consult from time to time;
That each of the parents be at liberty to attend any of the children’s extracurricular activities.
Further orders in the event that the mother's relocation application is dismissed
That the mother be permitted to remove the children from the jurisdiction of Australia for the purposes of taking the children on holiday each year for a period of up to six weeks in the Christmas school holiday period at which times the father’s time with the children shall be suspended and the mother shall provide the father, at least two months in advance, with a full itinerary, travel details, copies of return airline tickets and contact details at the places where the children will be staying from time to time.
Generally
That the father deliver to the mother forthwith the Australian Passports for each of the children.
That the father and the mother attend upon the Polish Consulate in Sydney at such time and place as the mother shall notify the father in writing for the purpose of doing all acts and things and executing all documents necessary for the children to obtain Polish Passports.
That in the event that Polish Passports are issued in the names of each of the children and in the event that the mother is no longer residing in Australia when such Passports issue that the father attend upon the Polish Consulate and collect such Passports and forward them to the mother in Poland forthwith upon receipt by him of them.
SCHEDULE 2
Orders sought by father in final submissions
That the mother and father have joint parental responsibility for the children [K Sikora] born .. April 2000 and [A Sikora] born … August 2002 (“the children”).
That the children live with the mother.
That the father shall spend time with the children as follows:
3.1.in a two week cycle each alternate weekend from after school Friday until 7.00pm Sunday;
3.2.in the alternate week from 3.00pm to 7.00pm each Monday and Wednesday;
3.3.for one half of each school holiday period as agreed between the parties and failing agreement, for the first half in years ending in even numbers and the second half in years ending in odd numbers;
3.4.on Christmas Day from 10.00am to 7.00pm;
3.5.on Easter Sunday from 10.00am to 7.00pm;
3.6.on Father’s Day from 10.00am to 7.00pm;
3.7.in the event that Mother’s Day or Christmas Eve falls on a day or period during the father’s time, his time is suspended and he is to return the children to the mother’s residence at 10.00am on those respective days;
3.8.the parties are to spend equal time with the children on each of the children’s birthdays.
That the father shall collect the children from the children’s school at the commencement of the spend time period when the children are attending school, otherwise the father shall collect the children from the residence of the mother. The father shall return the children to the mother’s residence at the conclusion of each such time.
That the father have telephone contact with the children between the hours of 5.300pm and 7.30pm on every third day.
That on any occasion when the mother is unable to care for the children or to pick the children up or drop the children at school, the mother is to make contact with the father to request his assistance with regard to either the care of the children or the transport of the children, whichever is applicable.
That the mother provide the father and keep the father advised of the names and addresses of the children’s treating doctors, chemists and other like professionals the children may consult from time to time.
That each of the parents be at liberty to attend any of the children’s extracurricular activities.
That the parties be restrained from:
9.1.discussing the proceedings in the hearing of or presence of the children;
9.2.denigrating or criticising the other parent or the other parent’s family in the hearing or the presence of the children;
9.3.smoking in front of the children or any place where the children may reside.
That each parent shall inform the other of any change in their telephone numbers or residential addresses within 7 days of any such change.
That either party be permitted to remove the children from the jurisdiction of Australia for the purposes of taking the children on holiday on one occasion in each year for a period of up to six weeks in the Christmas school holiday period at which times the spend time period of the parent not travelling with the children shall be suspended. The parent travelling with the children shall provide to the other parent, at least two months in advance, with a full itinerary, travel details, copies of return airline tickets and contact details at the places where the children will be staying from time to time.
In the event that the mother is permitted to relocate the residence of the children to Poland
That the mother have the sole parental responsibility for the children [K Sikora], born … April 2000, and [S Sikora], born … August 2002 ("the children").
That the children live with the mother.
That the father spend time with the children as follows:
14.1.each Polish school holiday in August for a period of four weeks. The mother shall deliver the children to the father in Sydney at the commencement of the four week period and collect them from the father at the conclusion of such four week period; and
14.2.at any time when the father is visiting in Poland he shall spend time with the children each weekend from after school on Friday until 7.00pm Sunday and at other times as agreed.
That the father is at liberty to contact the children by telephone and by Skype contact at any point.
That the Independent Children's Lawyer will, within 7 days of the making of the orders, meet with the children and explain to the children the nature and effect of the orders.
Nothing in these orders prevents either child from attending contact with their father separately from their sibling in the event that the other sibling is not attend that contact.
Nothing in these orders prevents either child from having additional contact with their father provided that such contact is in accordance with their expressed wishes.
SCHEDULE 3
Orders sought by Independent Children's Lawyer in final submissions
Children to continue to live in Australia
That the mother and the father have the equal shared parental responsibility for the children [K Sikora] born … April 2000 and [A Sikora] born … August 2002 (“the children”).
That the children live with the mother.
That, unless otherwise agreed between the mother and the father in writing, the children shall spend time with the father as follows:
(i)During school term in a two week cycle as follows:
a. in week one, from after school Friday until 7.00pm Sunday;
b. in week two, from after school until 7.00pm on Monday and Wednesday;
(ii)for one half of each school holiday period as agreed between the parties and failing agreement, for the first half in years ending in even numbers and the second half in years ending in odd numbers;
(iii)on Christmas Day from 10.00am to 7.00pm;
(iv)on Easter Sunday from 10.00am to 7.00pm;
(v)on Father’s Day from 10.00am to 7.00pm.
That in the event that Mother’s Day or Christmas Eve falls on a day or period during the Father’s time, his time is suspended and he is to return the children to the mother’s residence at 10.00am on those respective days.
That the parties are to spend equal time with the children on each of the children’s birthdays.
That, for the purposes of facilitating the children spending time with the father pursuant to these orders, the father shall:
(i)collect the children from:
a. the children’s school(s) at the commencement of each period of time they are to spend with him; or
b. from the mother’s residence if they are not attending school immediately before the commencement of such time; and
(ii)return them to the mother’s residence at the conclusion of such time.
That the children communicate with the father by telephone between the hours of 5.30pm and 7.30pm on every third day.
That the mother shall:
(i)provide the father with and keep the father advised of the names and addresses of the children’s treating doctors;
(ii)inform the father in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist (“specialist medical consultant”) in relation to either of the children;
(iii)ensure that the father is provided with a copy of any report by any such specialist medical consultant in relation to the children, within 14 days of the mother’s receipt of the report.
That both the father and mother shall be entitled to:
(i)attend any appointments with any specialist medical consultant relating to either of the children;
(ii)discuss the children’s condition with such specialist medical consultant,
however such attendance(s) shall be at the discretion of the specialist medical consultant
The mother shall ensure that the father is notified as soon as practicable if:
(i)either of the children is admitted to hospital;
(ii)either of the children is involved in a medical emergency;
(iii)either of the children will be required to take medication when they spend time with the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the period that the children are to spend with the father.
The father shall ensure that the mother is notified as soon as practicable if:
(i)either of the children is admitted to hospital;
(ii)either of the children is involved in a medical emergency;
(iii)either of the children will be required to take medication when they return to the mother’s care, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the first 72 hours following children’s return to the mother’s care.
That the mother authorise the school(s) which the children attend from time to time to provide the father with copies of the children’s school reports, school bulletins, school photographs and like material ordinarily provided to parents, including notices of teacher/parent meetings, sports events and other significant events.
That both the mother and the father be permitted to attend any of the children’s extra curricular activities.
That the mother and father shall advise each other in writing, within seven (7) days of:
(i)any change to their residential address;
(ii)any change to their telephone contact number(s).
That the mother and father be restrained from:
(i)discussing the proceedings in the hearing of or presence of the children;
(ii)denigrating or criticising the other parent or the other parent’s family in the hearing or the presence of the children;
(iii)smoking in front of the children or any place where the children may reside.
That, commencing in December 2013, each of the parents be permitted to remove the children from the jurisdiction of Australia for the purposes of taking the children on holiday each year for a period of up to six weeks in the Christmas school holiday period as follows:
(i)in years ending in odd numbers, the mother shall have first option to travel overseas with the children provided that:
a. she gives notice to the father of her intention to do so, such notice to be in writing and to be given no later than 30 September;
b. she provides the father with a full itinerary, travel details, copies of return airline tickets and contact details at the places where the children will be staying from time to time, at least eight weeks prior to the departure date from Australia.
(ii)In the event that the mother has not complied with subparagraph 16.1 above, the father shall be permitted to travel overseas with the children provided that he provides the mother with a full itinerary, travel details, copies of return airline tickets and contact details at the places where the children will be staying from time to time, at least eight weeks prior to the departure date from Australia.
(iii)In years ending in even numbers, the father shall have first option to travel overseas with the children provided that:
a. he gives notice to the mother of his intention to do so, such notice to be in writing and to be given no later than 30 September;
b. he provides the mother with a full itinerary, travel details, copies of return airline tickets and contact details at the places where the children will be staying from time to time, at least eight weeks prior to the departure date from Australia.
(iv)In the event that the father has not complied with subparagraph 16.3, above, the mother shall be permitted to travel overseas with the children provided that she provides the father with a full itinerary, travel details, copies of return airline tickets and contact details at the places where the children will be staying from time to time, at least eight weeks prior to the departure from Australia.
(v)The children’s time with the father pursuant to order 3 above shall be suspended during the times the children are overseas with the mother pursuant to this order.
(vi)The children’s time with the mother pursuant to order 4 above shall be suspended during the times the children are overseas with the father pursuant to this order.
Notation
A.The court notes that, at the date of hearing, the mother and father lived within five kilometres of each other, by road.
In the event that the mother is permitted to relocate the residence of the children to Poland
That the other have sole parental responsibility for the children [K Sikora] born … April 2000 and [A Sikora] born … August 2002 (“the children”).
That the children live with the mother.
That, unless otherwise agreed between the mother and the father in writing, the children spend time with the father as follows:
(i)each Polish school holiday in August, for a period of four weeks as follows:
a. in years ending in odd numbers, the mother shall deliver the children to the father in Sydney at the commencement of the four week period and collect them from the father at the conclusion of such four week period; and
b. in years ending in even numbers, the father shall collect the children from the mother in Poland at the commencement of each such period and return them to her at the conclusion of each such four week period;
(ii)at any other time when the father is visiting in Poland, the children shall spend time with the father each weekend from after school on Friday until 7.00pm on Sunday and at other times as agreed.
That the father be permitted to contact the children by telephone and by “skype” or similar means at any reasonable time.
That the mother shall:
(i) ensure that the father is provided with a copy of any report by any doctor, dentist, optometrist, psychologist, psychiatrist, counsellor or therapist (“medical consultant”) in relation to either of the children, within 14 days of the mother’s receipt of the report; and
(ii) authorise such medical consultant(s) to discuss the children’s condition and treatment with the father.
That both the father and mother shall be entitled to:
(i)attend any appointments with any medical consultant relating to either of the children; and
(ii)discuss the children’s condition with such medical consultant,
however such attendance(s) shall be at the discretion of the medical consultant.
The mother shall ensure that the father is notified as soon as practicable if:
(i)either of the children is admitted to hospital;
(ii)either of the children is involved in a medical emergency; and
(iii)either of the children will be required to take medication when they spend time with the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the period that the children are to spend with the father.
The father shall ensure that the mother is notified as practicable if:
(i)either of the children is admitted to hospital;
(ii)either of the children is involved in a medical emergency; and
(iii)either of the children will be required to take medication when they return to the mother’s care, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the first 72 hours following children’s return to the mother’s care.
That the mother shall provide the father with:
(i)a copy of each of the children’s school reports within 21 days of receiving such reports; and
(ii)a current photo of each of the children at least once a year.
That both the mother and the father be permitted to attend any of the children’s extracurricular activities.
That the mother and the father shall advise ach other in writing, within seven days of:
(i)any change to their residential address; and
(ii)any change to their telephone contact number(s).
That the mother and the father be restrained from:
(i)discussing the proceedings in the hearing of or presence of the children;
(ii)denigrating or criticising the other parent or the other’s parent’s family in the hearing or the presence of the children;
(iii)smoking in front of the children or any place where the children may reside.
That the father deliver to the mother forthwith the Australian Passports for each of the children.
That the father and the mother attend upon the Polish Consulate in Sydney at such time and place as the mother shall notify the father in writing for the purpose of doing all acts and things and executing all documents necessary for the children to obtain Polish passports.
That in the event that Polish passports are issued in the names of each of the children and in the event that the mother is no longer residing in Australia when such passports issue that the father attend upon the Polish Consulate and collect such passports and forward them to the mother in Poland forthwith upon receipt by him of them.
SCHEDULE 4
Documents relied upon
The applicant mother relies on the following:
Initiating Application filed 20 January 2011
Mother’s affidavit sworn 1 December 2010 (exhibit 4)
Mother’s affidavit sworn 17 February 2011 (exhibit 5)
Mother’s affidavit sworn 1 May 2012
Mother’s affidavit sworn 24 August 2012
Affidavit of Ms I sworn 12 April 2012
Affidavit of Mr I sworn 17 April 2012
The respondent father relies on the following:
Response to an Initiating Application filed 2 May 2011
Father’s affidavit sworn 22 December 2010
Father’s affidavit sworn 13 April 2011
Father’s affidavit filed 24 April 2012
Father’s affidavit sworn 6 May 2012
Father’s affidavit sworn 24 July 2012 (exhibit 7)
Ms D sworn 26 August 2012 (exhibit 10)
Father’s affidavit sworn 26 August 2012 (also exhibit 10)
The Independent Children’s Lawyer relies on the following:
Expert report by Dr M dated 30 November 2011
Supplementary report by Dr M dated 17 May 2012
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