TODRICK & TODRICK

[2013] FamCA 452

FAMILY COURT OF AUSTRALIA

TODRICK & TODRICK [2013] FamCA 452

FAMILY LAW – CHILDREN – Parental responsibility – Family Violence – Where the mother was subjected to physical violence and abuse by the father – Where the child was witness to incidents of family violence – Where the father has a history of alcohol abuse – Where the mother suffered from post natal depression – Risk – Where the presumption of equal shared parental responsibility does not apply – With whom the children live.

FAMILY LAW – RELOCATION –Where the mother is granted leave to relocate to  Canada with the children – Benefit of a meaningful relationship with both parents – Where relocation will not prevent the children having the benefit of a meaningful relationship with both parents – Best interests of a child – Where the mother has no family support in Australia – Where relocation will provide the mother with support to enable her to fulfil her role as the primary care provider of the children – With whom the children spend time – Where the children will spend time with the father both in Australia and in Canada – With whom the children communicate – Where the children will communicate with the father by telephone and by Skype.

Family Law Act 1975 (Cth) ss 60B, 60CC, 60CA, 61DA, 61DA(2) & (4), 65AA, 65AA, 65B, 65D and 65DAB
Evidence Act 1995 (Cth) s 174

Family Law Act, SBC, 2011 s 45, 51, 59, 72(1), 73(d) and 75(1) & (2)

Cox & Pedrana [2013] FamCAFC 48
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Parkasho v Singh [1968] P 233
Vigano & Desmond [2012] FamCAFC 79
Neilson v Overseas Projects Corporation (2005) 223 CLR 331

APPLICANT: Ms Todrick

RESPONDENT: Mr Todrick

INDEPENDENT CHILDREN’S LAWYER: Couper Geysen Family and Animal Law

FILE NUMBER: BRC 6517 of 2012

DATE DELIVERED: 14 June 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 16 & 17 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Drysdale

SOLICITOR FOR THE APPLICANT: Ms Kingston
Legal aid Queensland

COUNSEL FOR THE RESPONDENT: Mr George

SOLICITOR FOR THE RESPONDENT: Mr George
Suthers Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Linklater-Steel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Geyson, Solicitor Couper Geysen Family and Animal Law

Orders

IT IS DECLARED that the presumption of equal shared parental responsibility prescribed by s 61DA of the Family Law Act 1975 (Cth) (“the Act”) does not apply in relation to the children M, born … December 2008 and N, born … October 2010.

IT IS ORDERED

Parental Responsibility

1. That the Mother have sole responsibility for the major long term issues for M, born … December 2008 and N, born … October 2010 (“the children”) with such issues to include but not be limited to:

   (a)the children’s education;

   (b)the children’s religious and cultural upbringing; and

   (c)the children’s health.

2. That, except in the event of an emergency involving the children, the Mother is to consult with the Father about decisions to be made in the exercise of her sole parental responsibility as follows:

   (a)the Mother shall inform the Father about the issue about which a decision which needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision, in writing;

   (b)the Mother shall give the Father 14 days to respond;

   (c)the Mother shall consider the Father’s views/response when coming to her decision;

   (d)the Mother will inform the Father of the final decision she has made with respect to that issue as soon as practicable thereafter.

3. That each party has responsibility for daily decisions about the day to day care, welfare and development of the children while in his or her care.

Residence of the children

1. That the children shall live with the Mother.

2. That, at any time after the expiration of 14 days from the making of this Order, the Mother is at liberty to relocate the children’s residence to Canada.

3. That Order 13(e) of the Orders of Federal Magistrate Coates made 27 August 2012 be discharged.

4. The Court requests that the Australian Federal Police remove the names of the children M, born … December 2008 and N, born … October from the Airport watch list at all points of international arrivals and departures in Australia.

Time with the Father

1. That until such time as the mother and the children leave Australia for Canada, the children will spend time with the Father as agreed between the parties and, failing agreement, every third weekend from 9.00am Thursday until 9.00am Monday.

If the father remains living in a place other than Canada after the children move to live in Canada

1. That upon the children relocating to Canada and upon the Father giving the mother no less than 8 weeks written notice of his intention to spend time with the children, the children are to spend time with him as agreed between the parties and, failing agreement, as follows:

   (a)for up to four (4) weeks during the Canadian summer school holidays with such time to be spent in either Australia or Canada at the father’s election;

   (b)for up to two (2) weeks during the Canadian Christmas school holidays in each year with such time to be spent:

   (i)     in Australia or Canada at the Father’s election in even numbered years;

   (ii)    in Canada in odd numbered years.

   (c)for up to two (2) weeks on any other occasion nominated by the Father with such time to occur in Canada.

2. That in the event that the children spend time with the father in Canada during the Canadian Christmas school holidays, the Father shall return them to the Mother, at the place for changeover arrived at by implementation of clause (13), at 6pm on Christmas Eve and shall collect the children from the Mother at the place for changeover arrived at by implementation of clause (13) at 1pm on Christmas Day.

3. That the Father provide to the Mother an itinerary about the time the children are spending time with him and also provide information about where the children will be staying and contact telephone numbers at which they can be contacted during such times and the father shall facilitate the children speaking with their mother via Skype or telephonic means on three (3) occasions per week as agreed between the parties and failing agreement each Tuesday, Thursday and Sunday between 6.30pm and 7.30pm (local time where the children are) during times that they are in his care.

4. That in the event that the children’s time with the Father is to occur in Canada, the changeover shall occur at the commencement and conclusion of such time at either Location A, Vancouver or Location B, Town C and:

   (a)The Father shall choose which of these venues is to be used for the collection and return of the children and shall notify the mother of this choice in writing no less than 14 days prior to the changeover;

   (b)The Mother will ensure that the children are present at the selected place for changeover at the commencement of time with the Father and the Father shall ensure the children are present at the selected place for changeover at the conclusion of such time.

5. That in the event that the children’s time with the Father is to occur in Australia:

   (a)the changeover at the commencement of such time shall occur at the Brisbane International Airport with the Mother to ensure that the children are present;

   (b)at the conclusion of such time, changeover shall occur at the Vancouver International Airport with the father to ensure that the children are present there;

   (c)the Father shall be responsible for the costs of the children’s return flights between Canada and Australia and shall provide to the mother, no less than eight (8) weeks prior to the date of departure, the booking reference details and all such information as is required to prove that he has booked and paid for their return flights.

6. That in the event that the children spend time with the Father in Australia on two (2) occasions in any calendar year, the Father shall be responsible for the costs of the Mother’s return flight between Canada and Australia on the second occasion of such time and shall provide to the mother, no less than eight (8) weeks prior to the date of departure, the booking reference details and all such information as is required to prove that he has booked and paid for her return flights.

7. That the children shall communicate with the Father as agreed between the parties and failing agreement by Skype, telephone or other electronic communication no less than three (3) times each week at such times as may be agreed between the parties and failing agreement, between 6.30pm and 7.30pm (Canadian time) each Tuesday, Thursday and Sunday with both parties to do all things necessary to ensure that each has in place the technology necessary to enable Skype communication to occur.

   If the father moves to live in Canada on a permanent basis after the children move to live in Canada

8. That in the event the Father movies to live in Canada on a permanent basis, the children shall spend time with and communicate with him as agreed between the parties and failing agreement:

   (a)each alternate weekend from after school or daycare Friday until the commencement of school or daycare on Monday;

   (b)on each of the children’s birthdays:

   (i)     From 3pm until 6pm if such day falls on a weekday;

   (ii)    From 1pm until 6pm if such day falls on a weekend.

   (c)on the weekend on which Father’s Day occurs from after school or daycare Friday until the commencement of school or daycare on Monday;

   (d)from October 2013 onwards: for the first half of the gazetted school holidays in odd numbered years and for the second half of gazetted school holidays in even numbered years.

   (e)by telephone each Wednesday at 6:30pm with the Father to telephone the children on the Mother’s mobile telephone and the Mother to make the children available to receive the call.

9. That the children shall remain with the Mother each year on the weekend on which Mother’s day occurs.

   The children’s communication with the Father irrespective of the place at which he lives

10. That the children are at liberty to communicate with the Father by post, e-mail, text message or via social networking sites at all reasonable times.

11. That when the children are communicating with the other parent each parent shall:

    (a)ensure that the children are available to receive the telephone call or the Skype communication;

    (b)arrange for the children to telephone or Skype the other parent on the following night if, for any unforeseen circumstance, the children miss the telephone call or the Skype communication from that parent;

    (c)ensure that the children have privacy during their communication with the other parent.

Specific Issues

1. That the Mother and Father shall:

   (a)keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within 24 hours of such change;

   (b)keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the children;

   (c)inform the other as soon as is reasonable practicable of any serious medical condition, significant health issue or illness suffered by the children;

   (d)keep the other informed of any school, educational facility or extra curricular activity provider attended by any of the children;

   (e)refrain from consuming alcohol to excess or being under the influence of alcohol at a level higher than that which would enable that parent lawfully to operate a motor vehicle.

2. That by this order, the Mother and Father authorise any day care, school, educational facility or extra curricular activity provider attended by the children to provide to each parent, at that parent’s request and cost, all information about the children’s educational progress and school related activities.

3. That by this order, the Mother and Father authorise any medical or other health professionals who treat the children to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about the children’s attendance and treatment;

4. That the Mother provide to the father, within 28 days of her receiving the same, a copy of any school report, official certificate or award obtained by either child.

5. That on no less than one occasion each year the Mother provide to the father a copy of any official school photograph in which either child appears.

6. That neither parent will denigrate the other, their partner or their family to, or in front of, or within the hearing of, the children and shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of, the children and failing their compliance with such a direction shall remove the children from that environment immediately.

7. That neither parent shall discuss these proceedings with the children nor involve the children in any discussions regarding any issue in dispute between the parties.

8. That subject to the conditions imposed by the children's schools or extra-curricular provider, these Orders authorise both parents to attend school functions and extra-curricular activities to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.

9. That the Father shall sign within 14 days of a request being made by the Mother, from time to time, in writing any Application for an Australian Passport or a British Passport for the children M, born … December 2008 and N, born … October 2010.

10. That should the Father refuse or neglect to sign an Application for an Australian Passport within 14 days of a written request being received by the Mother, the Registrar of the Family Court of Australia at Brisbane is appointed to sign that Application and to do all acts and things necessary to ensure that the Application is validly executed on behalf of the Father.

11. That all outstanding applications be dismissed.

12. That the Independent Children’s Lawyer be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Todrick & Todrick 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 BRISBANE

FILE NUMBER: BRC 6517 of 2012

Ms Todrick

Applicant

And

Mr Todrick

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern M, born in December 2008, nearly 5 ½ years of age and N, born in October 2010, approximately 2 ½ years of age (“the children”).

2. Their mother, aged 28 years, was born in Canada. She seeks an order which would allow her to relocate the residence of the children to that country. Her proposal is that she and the children live in Town C, British Columbia (“Town C”) where her parents and other members of her extended family reside. She has no family members in Australia.

3. The children’s father, aged 29 years, was born in Australia. He seeks an order which would see the children remain living in Australia and spending time, as prescribed, with each of their parents.

Relevant Background

1. In 2007, the mother was in Australia on a Visa.  The parties met and, in early 2008, the mother fell pregnant. The parties then moved to live with the paternal grandmother near Town D.

2. The mother returned to live with her parents in Town C in June 2008 as her Visa was expiring and she was short of funds. She obtained employment in a store. In September 2008, the father arrived in Town C on a 2 year working Visa. M was born in Canada in December 2008 and, in early 2009, her parents obtained a Canadian passport for her.

3. The parties and M lived in Town C until March 2009 when they travelled to Australia where they again lived with the paternal grandmother, this time for approximately three months. In early May 2009, M’s parents married in Australia. After this, the mother applied for permanent residency in Australia and M was registered as a dual citizen of both Australia and Canada.

4. During the three months in 2009 when the parties lived with her, the paternal grandmother says that when she returned home after work at about 3.30pm, the mother would have done ‘nothing’ around the home and would be sitting in the lounge room in her pyjamas. I accept her evidence in this regard.

5. The paternal grandmother says that the mother ‘seemed to be depressed’ following her return to Australia after M’s birth. She says that she ‘would not talk to people’, would not leave the house and did not seem to want to make any friends. She also says that the mother didn’t seem to have any ‘get up and go’ and had no routine. She could not recall a time where the mother took M out of the house on her own. Again, I accept her evidence in this respect.

6. In about June 2009, the paternal grandmother asked the parties to leave her home. She says that she couldn’t handle the mother in her house anymore ‘because she was lazy and she wouldn’t communicate with me.’ The paternal grandmother said she ‘got sick of trying to form a relationship with her’ (the mother). I accept her evidence.

7. In mid 2009, the parties moved to live at the Gold Coast. N was born there in October 2010. The mother says that the father was unsupportive of her during difficulties she experienced breast-feeding N and, on one occasion, he punched a hole in the door. She also says that the father told her that it was because of her that N wasn’t feeding and that she wasn’t ‘right’ in the head. I accept her evidence about this event.

8. It is not in dispute that, in about January 2011, the mother was diagnosed with post-natal depression. She was prescribed medication and saw a counsellor for approximately 6 weeks.

9. The mother attended a local Family Medical Practice in January 2011. The father says she was becoming withdrawn due to her depression. He accepted that she was feeling isolated at this time. The father says that the mother’s depression worsened and the parties were arguing ‘a lot’. I accept his evidence in this respect.

10. In about October 2011, the father worked away in Town E. He says that the mother frequently called him asking for his assistance, and told him that she needed help with the children and couldn’t be expected to do ‘all this’ by herself. He was not challenged about this evidence and I accept it.

11. The father worked in Town E for less than a month and, when he returned home, noticed that the mother ‘had become completely withdrawn.’ He says that she wouldn’t go out of the home and was completely unmotivated in looking after herself and the children. He had no doubt that she was depressed. I accept his evidence in this respect.

12. The family travelled to Town F in February 2012 for the wedding of the mother’s only friend in Australia. The father says that the mother told him at this time that she was unhappy and wanted to separate. After the trip to Town F, the father says the mother remained as she had been prior to travelling there: that is, she was unmotivated in caring for the children.  I accept his evidence in this respect.

13. On 27 April 2012, the father left the parties’ home at the Gold Coast, taking the children with him. He went to his mother’s home at Town F. He told the mother by text: ‘I will be taking the kids to my mums 4 a week so u can have a brake’. I accept the mother’s evidence that she thought he was returning as he took no furniture with him when he left.

14. The father says that, when he separated from the mother, he had ‘serious concerns’ for the welfare of the children whilst they were in her care in that she was not coping or looking after the children, did not change their clothes regularly and would leave them to their own devices. He said she did not clean the home and did not prepare the evening meal. I accept that at this time the mother was, more likely than not, struggling somewhat with the care of the children.

1. I accept the mother’s evidence that on 28 April 2012 the father sent her a text that said: ‘u r on your own u will not c the kids again’.

2. The mother says, and I accept, that the father told her, at the time of the separation, that he believed the breakdown of their relationship was due to her depression. I accept that he told her that one of the reasons he would not let her spend time with the children was that she was ‘mentally unstable’. The mother attended on health professionals as a result of this belief being conveyed to her. Such professionals provided reassurance that she was not depressed.

3. I consider that the father’s actions in telling the mother that she could not see the children because she was ‘mentally unstable’ more likely than not led to her understating her true symptoms to her general practitioner and that, as she said during cross-examination, the reason she avoided using the word ‘depressed’ was because ‘deep in her heart’ she was afraid that a Court might remove the children from her care because of this.

4. In early May 2012, the mother travelled to Town F. Once there, the father allowed her to see the children on:

   a)5 May 2012 – in the park and under his supervision;

   b)13 May 2012 (Mother’s Day) – in the park and under his supervision;

   c)25 May 2012 – for about 15 minutes;

   d)26 May 2012 – during shopping at a local shopping centre;

   e)27 May 2012 – at an indoor children’s playground in circumstances described by her in a Statement to Police dated 1 June 2012, the contents of which I accept.

5. On 11 May 2012, the mother filed an Application for a Domestic Violence Order and, on 23 May 2012, the father consented, on a ‘without admission’ basis, to a 2 year Protection Order. The father accepted, in cross-examination, that he knew, because he was the author of the text messages (which he admitted were disgraceful) sent to the mother and relied upon by her in applying for the Protection Order, that he would not be able to defend her Application. He accepted, in cross-examination, that the texts constituted domestic violence toward the mother and that he knew that his prospects of defending her application were ‘zero’. He said that he should not have written the texts because they were offensive. I consider that the contents of the text messages demonstrate contempt for the mother and a complete lack of recognition of the importance to the children of her role in their lives.

6. In June 2012, the parties participated in a Legal Aid Conference. They reached agreement on a temporary basis pending proceedings being commenced (“the Agreement”). The Agreement was to the effect that, inter alia, once the mother obtained appropriate accommodation and furniture and surrendered her passport to her solicitors and authorised the father to obtain information from medical practitioners upon whom she had attended, the children would spend time with her from 9.00am Sunday until 3.00pm Tuesday each week. A further term of the Agreement was that, until the mother obtained accommodation, the children would spend time with her each Sunday, Tuesday and Thursday from 8.00am until 3.00pm. Further, the parties agreed that the children would continue to attend at the daycare centre (“the daycare centre”) into which the father had enrolled them, without consultation with the mother, on his arrival in Town F. The father did not include the mother’s name or details on the enrolment form he completed at the time of enrolling the children. This had the consequence that the centre would not allow the mother to see the children if she attended there.

7. I accept the maternal grandfather’s evidence that he accompanied the mother to the nominated shopping centre at the time agreed under the terms of the Parenting Plan for the children to spend time with their mother and that the father did not bring the children. I accept his evidence that the mother telephoned the father asking him where the children were and that the mother told him that the father had refused and hung up.

8. I accept the mother’s evidence that, despite the terms of the Agreement, the father failed to present the children to spend time with her on 8 June 2012, 12 June 2012, 14 June 2012, 17 June 2012 and 19 June 2012. I accept the maternal grandfather’s evidence that the father did not provide the children to the mother on June 21, 24 and 26.

9. I also accept the mother’s evidence that, on some of the occasions when the father failed to bring the children to spend time with her, he sent a photograph of them to her phone saying ‘look you get to see the children’.

10. I consider that the father’s failure to comply with the agreed terms of the Agreement demonstrates that he had no regard for the children’s relationship with their mother and no appreciation of, or regard to, the impact on them of not being able to spend time with the person who had, until April 2012, been their primary carer.

11. I consider that, in sending the mother photographs of the children instead of presenting them for time with her, the father demonstrated an immature and dismissive attitude toward her. Such action clearly demonstrates his lack of respect for her as a parent. It also demonstrates a complete lack of recognition that time with the mother was for the children’s benefit.

12. On 13 June 2012, the maternal grandfather arrived in Australia from Canada to support and assist the mother.  I accept the maternal grandfather’s evidence that, when he arrived in Town F on 13 June 2012, the mother had little money and very few possessions and that he assisted her to outfit a residence by using items bought from thrift shops. I also accept that he assisted the mother in contacting Centacare for assistance with obtaining furniture and support for the mother. Such evidence shows clearly the difficult circumstances in which the mother found herself.

13. I accept the evidence that, on 15 June 2012, the mother and her father attended at the daycare centre and were told that the children had been removed from the centre and their enrolment cancelled. This was clearly contrary to the terms of the Agreement.

14. The father agreed, during cross-examination, that he had told the mother that she could not spend time with the children at the daycare centre. He said that the mother had told him that she wanted her children and was going to come and take them and live in a hostel. I do not recollect this being put to, or raised with, the mother in her cross-examination. In any event, I consider two telling things arise from the father’s evidence: first, that the mother had immediately told him on her arrival in Town F that she wanted her children (in contrast to what he told Mr G which was to the effect that ‘she didn’t even want her children’) and, secondly, that, even on the father’s account, the mother did not tell him that she was going to take the children to Canada or even away from Town F – rather, she told him she was going to take them to a hostel.

1. On 18 June 2012, the father applied for a Protection Order against the maternal grandfather. He asserts he sought this Order on the basis that he was fearful that the maternal grandfather would help the mother to remove the children from Australia. The maternal grandfather engaged legal representation in order to defend the Application. On 4 July 2012, the father failed to attend at the hearing of this Application and it was dismissed. There is no evidence to suggest that either the mother or the maternal grandfather ever evidenced an intention to attempt to remove the children from Australia without the father’s consent or an Order of the Court.

2. On 25 June 2012, the mother filed an application in the Magistrates Court at Town F seeking an order that the children live with her.

3. On 27 June 2012, Magistrate Callaghan ordered that the father return the children to their mother and that they live with her and spend time with their father from 9am until 5pm on two nominated days pending the further hearing of the matter.

4. On 6 July 2012, the maternal grandfather returned to Canada.

5. On 11 July 2012, Magistrate Batts ordered, by consent on an interim basis, that the children live with their mother and spend time with their father each alternate Friday and Saturday from 9.00am until 5.00pm with changeovers to occur at a nominated shopping centre in Town F.

6. On approximately 21 July 2012, the maternal grandmother arrived in Australia from Canada. She returned to Canada on 17 August 2012.

7. On 21 August 2012, the mother filed an Amended Initiating Application, seeking, by way of final order, that she be permitted to relocate the children to live in Canada.

8. On 27 August 2012, Federal Magistrate Coates (as His Honour then was) made a further interim Order by consent. This Order provided, inter alia, that the children live with their mother and spend time with their father each alternate weekend from 5.00pm Friday until 9.00am Monday (when the father was to deliver them to day-care) and on certain specified dates for nominated times. In addition, provision was made for the children to have telephone communication with their father each Monday, Wednesday and Friday if not already spending time with him. An Independent Children’s Lawyer was appointed and the proceedings were transferred to this Court.

9. The parties have implemented the terms of the Order made 27 August 2012 save that there have been a couple of occasions on which the father did not have the children spend time with him.

1. At present the mother lives with the children in rented accommodation in Town F. Her lease expires in November 2013. The father lives on site with his employment for two weeks out of every three weeks and, during the third week, lives near Town F with his mother (the paternal grandmother) and his half brother. He plans to rent his own accommodation in the future.

The proposals

1. The mother seeks to be able to move the children’s residence to Town C and that she have sole parental responsibility for them. She seeks, in the event that this occurs and the father remains living in Australia, that the children spend time with him each year in either Canada or Australia (at the father’s election) for up to four (4) weeks of the Canadian Summer holidays (with the father to pay for her travel and that of the children in order to facilitate this time) and in Canada for up to two (2) weeks at or around Christmas time.

2. Mr G said that if the children were to live in Canada, the mother’s proposal is a reasonable proposal save that he wondered whether Skype communication at a frequency of the three occasions per week proposed might be a little onerous for children of their ages. He suggested two occasions per week may be more suitable. Whilst I accept his evidence in this regard, I consider that, should the children live in Town C, the frequency of communication proposed by the mother is more likely to enable them to maintain and develop a meaningful relationship with their father.

3. In the event that the mother is not permitted to relocate the children to Canada, she will not return to live in Canada but seeks an order that they live with her and spend time with their father each alternate weekend and, from October 2013 (when N is 3 years of age), for half of the gazetted school holidays. She also seeks that the children be permitted to travel to Canada for up to four (4) weeks each year and that the father pay the costs of all of the flights (hers included) associated with this. She also seeks an order that the father provide her with a suitable motor vehicle for her sole use.

4. In the event that the mother is permitted to relocate the children to Canada and their father moves to live in Canada, the mother seeks that the children spend time with him in the same way as if she had not been permitted to move them to live in Canada.

5. As at November 2012, the father’s position was that the children live in Australia primarily with their mother and spend time with him each alternate weekend. However, the father now seeks that the children live with their mother in Australia and spend time with him every third weekend “(as consistent with the father’s employment)” from 9.00am Thursday until 9.00am Monday, for half of the gazetted school holidays and on the ‘special’ days as outlined in Exhibit 4. This proposal would see the children spend 4 nights in every 21 night period (about 14 weekend blocks per year) and up to 4 weeks holidays per year with their father.

6. The father also seeks an order that he and the mother have equal shared parental responsibility for the children and he proposes that, within 28 days of the making of the Order, he will complete all forms required for a car to be transferred into the mother’s name for her sole use.

7. The father also proposes that the mother and the children be at liberty to travel to Canada for up to eight (8) weeks each year and that, for the purposes of such travel, his time with the children be suspended. Thus, the approximately 14 weekend blocks will, should the mother take the children to visit Canada, reduce to about 12 weekend blocks per year. He proposes that the mother provide three months written notice of proposed dates and a travel itinerary and contact details and, if he has been employed full time for three consecutive months leading up to the notice received from the mother he will, within 28 days of receiving such notice, pay to the mother ‘a sum equivalent to the cost of the return airfares of the children or of reasonable equivalent flights as evidenced by the father’. The father proposes that he hold the children’s passports and provide them to the children’s mother to facilitate any overseas travel undertaken in accordance with this Order.

8. At the conclusion of the evidence the Independent Children’s Lawyer proposed that orders be made permitting the children to live with the mother in Canada, that she have sole parental responsibility for long term decisions and that the time the children spend with their father be in accordance with the terms outlined in the “ICL Proposal 17/5/2013” document handed to me.

Evidence given by the witnesses

1. I find that the mother gave her evidence in a credible manner. She did not depart from her account in any meaningful way.  She did not, I consider, act to embellish or exaggerate the matters about which she spoke. I consider her to be a genuine and truthful witness.

2. I find the father to be a witness of limited credit.  In considering any matter in which the evidence of the mother and that of the father need to be considered and a conclusion reached as to the account which is more likely, I prefer the evidence given by the mother.

3. I find that the paternal grandmother was a fairly credible witness. She spoke, at times, in a manner that displayed her dislike of and contempt for the mother and the mother’s parenting ability but she was, I find, fairly truthful in her accounts.

1. The maternal grandparents and Dr H were not required for cross-examination and, there being nothing in their affidavits which was inherently lacking in credibility, I accept their evidence.

2. Mr G, Psychologist, prepared a Family Report (“the Report”) dated 30 November 2012. He was cross-examined on behalf of all of the parties. I found Mr G to be a considered, thoughtful witness whose opinions I accept unless I otherwise indicate within these Reasons.

Principles[1]

[1] See MRR v GR (2010) 240 CLR 461 and Cox & Pedrana [2013] FamCAFC 48.

1. In these proceedings, being proceedings for a parenting order (section 64B of the Family Law Act 1975 (Cth) (“the Act”)) in relation to the children, I may, subject to s 61DA (presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VII of the Act, make such parenting order as I think proper: s 65D of the Act. I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects: s 60B of the Act.

2. In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration: s 60CA and s 65AA of the Act.

Parental responsibility

1. When making a parenting order I am bound to apply a presumption that it is the children’s best interests that their parents have equal shared parental responsibility (“the presumption”) for them: s 61DA of the Act.

2. The presumption is rendered inapplicable by the matters prescribed in s 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them: s 61DA(4).

3. Section 61DA(2) of the Act provides that, if the Court is satisfied that there are reasonable grounds to believe that either of the children’s parents have engaged in abuse of them or another child or family violence, the presumption does not apply.

4. The mother asserts that the presumption does not apply because there are reasonable grounds to believe that the father has engaged in family violence. She relies on her evidence that he has:

   a)assaulted her and caused her to be fearful for her safety;

   b)repeatedly taunted her in a derogatory manner;

   c)intentionally damaged or destroyed the children’s toys;

   d)unreasonably denied her financial autonomy that she would otherwise have had;

   e)unreasonably withheld financial support needed to meet her and the children’s reasonable living expenses at a time when they were predominantly dependent on him for such financial support;

   f)prevented her from making or keeping connections with her family, friends or homeland.           

5. The mother also asserts that the father has exposed the children to family violence in that :

   a)he threatened to slit her throat in the presence of the children;

   b)he smashed a toy whilst M was present;

   c)he abused her, grabbing her shirt and tore it and raising his fist and laughed at her whilst M was present;

   d)he smashed his telephone whilst M was present, causing her to be afraid and upset;

   e)he has been abusive to her at changeover when the children have been present.

6. The father denies these allegations or provides explanations in relation to them.

   The alleged threats to slit her throat

7. The mother says that, on 5 May 2012, she spent time with the children in a park in Town F under the father’s supervision. She says that when the parties went to a takeaway store to get food an argument occurred. She says that the father offered to drive her home and during the drive she told him that she had been to the women’s domestic violence unit and that she could have taken the children but didn’t want to do that. She says that the father became very angry and was yelling and that she then asked him to stop the car to let her get out as she said that she would walk the rest of the way. She says that the father said to her ‘if you come near my kids I will slit your throat’. She says that she got out of the car and, as the father drove away, he yelled again ‘if you come near my kids I will slit your throat.’

8. During cross-examination, the father said that the parties had argued out the front of the takeaway shop. He denied threatening the mother but accepted that he told her to get out of the car as she was making everyone unhappy.

9. I accept the mother’s account of this event and accept that the father said to her, in the manner alleged, that he would slit her throat if she came near his children.

10. I accept the mother’s evidence that later that day the father sent her a text saying ‘u made our bed lie in it. I am pulling the kids out of school on Tuesday. Thanks to you we are no longer together so move on with your life and do not contact us, goodbye and good luck’.

11. The father said, when asked during cross-examination, that in using the term ‘us’ he was referring to the mother and himself (rather than the children and himself) and that what he meant was that the mother should not contact ‘him’. I do not accept his evidence in this respect. I consider it clear from the contents of the text and the time at which it was sent that the “us” the father was telling the mother not to contact comprised himself and the children. I find that in this text he was clearly telling the mother not to contact the children.

1. During cross-examination, the Mother said that, in addition to the event referred to in paragraphs 63 above, there was another occasion when the father threatened to slit her throat.

2. She said that, on 9 May 2013, after she had facilitated the children speaking with their father by telephone, the father asked to speak with her and told her that:

   a)he was no longer funded by legal aid;

   b)he was going to lose the case because he didn’t have a lawyer;

   c)he wanted to see the children for a week before they left the country for good and he never saw them again.

3. She said that she told him that these matters should be discussed at the hearing, and he became angry and told her that if she did not agree ‘to this’ he was going to kick her door in and slit her throat.

4. While this evidence was not included in the affidavit filed by the mother by leave on 18 May 2013, such affidavit was sworn by her on 8 May 2013, the day before she says this event occurred. Further, it is clearly established[2] that the mother almost immediately told her solicitor about the event and it was raised in correspondence (dated 10 May 2013) directed to the father’s solicitors. There was no response to this correspondence by the father via his solicitor.

   [2] Exhibit 1.

5. The father said that he spoke with the mother by telephone on 9 May 2013. He said that he told her that he was not getting legal aid.  He said that whilst he would have been upset, he did not recall being nasty or angry. He said that he had asked to see the children whilst he was home from work.  He denied telling the mother that he was going to ‘slit her throat’ and said that he had told her that, if he couldn’t see the children, he would ‘come around’ to her house and knock on the door until he did.  He said that he would have had a couple of beers because it was a special day but was not impaired by alcohol because he had only just returned home from work.

6. I accept the mother’s evidence about this event. I find that, as described by her, the father threatened her in the manner that she describes. I do not accept that the father was not angry during the course of the telephone communication especially since he had been told that he was no longer funded by legal aid.

7. I accept the Mother’s evidence that, on the two occasions discussed above,  the father threatened to ‘slit her throat’. I believed her when she spoke of these events during cross-examination. I accept her denial of the assertion that she had made this up in order to assist her own case.

8. I am satisfied, therefore, that there are reasonable grounds to believe that the father engaged in family violence in that I am satisfied that his threats to slit the mother’s  throat amounted to conduct toward her that caused her reasonably to fear for or reasonably be apprehensive about her personal safety. I find that a reasonable person who was the recipient of such threats would fear for or be apprehensive about her personal wellbeing or safety.

9. Consequently, the presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them does not apply and “the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the best interests of [the children] being the paramount consideration – see s 60CA; s 65AA).”[3]

   [3] Cox & Pedrana [2013] FamCAFC 48 at [19].

10. I must determine that which is in the children’s best interests having regard to the considerations set out in s 60CC of the Act.

Benefit to the children of having a meaningful relationship with both of their parents

1. The Act does not define the term ‘meaningful relationship’ nor does it prescribe any criteria on which the Court should rely in order to assess how the children’s  parents have or should have a meaningful involvement in their lives.

2. In McCall & Clark[4] the Full Court concluded[5] that the ‘preferred interpretation’ of ‘benefit to a child of a meaningful relationship’ in s 60CC(2)(a) of the Act is the ‘prospective approach’ – that is, the Court should consider and weigh the evidence at trial and determine how, if it is in the children’s best interests, orders can be framed to ensure that they have a meaningful relationship with both of their parents.

   [4] (2009) FLC 93-405.

   [5] Ibid at [119].

3. In Vigano & Desmond[6]  the Full Court  said, at paragraph 128 & 129:

   The court must always consider the benefit of a meaningful relationship when considering the best interest of the children. However, if the court finds there are benefits to the children in having a meaningful relationship then the court would need to consider whether that would give way to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. However, a finding that there is a benefit to the child of having a meaningful relationship with one of the parents is not dependent simply on lack of danger of physical or psychological harm.

   Sub-section (a) of s 60CC(2) stands on its own. If the court is not satisfied that there is a benefit to the children of having a meaningful relationship then whether or not there is a need to protect the children from physical or psychological harm would not necessarily need to be considered. Certainly the fact alone of an absence of physical or psychological harm does not of itself lead to a conclusion that there is a benefit to the child in having a meaningful relationship.

   [6] [2012] FamCAFC 79 per Bryant CJ, Strickland & Murphy JJ.

4. The mother accepted, during cross-examination, that the children need to see their father. However, she did not identify any negatives for them if they only spend time with him for three to four weeks once per year. She accepted that for children of their age one week is a long time but said that the children have a good relationship with her mother (their maternal grandmother) despite the distance between them.  She said that the children needed support around them.

5. I accept the evidence of Mr G that:

   a)the children enjoy a positive relationship with each parent; and that

   b)the children would benefit from having meaningful relationships with each parent.

6. Mr G opines, at paragraph 10.24 of the Report:

   … if the children relocate to Canada, the likelihood is that they will only see their father once per year for a matter of weeks, if that. That will allow them to have a relationship with him, but it will not be an optimal relationship.

7. And further, at paragraph 10.15 of the Report:

   If the mother relocates to Canada, the father is only going to see the children for a period of some weeks each year. That will be even less time than he sees them now and there is no doubt that this would negatively affect the quality of the relationships that they have with their father.

   …..

   Again, if the children were to spend time with their father for a period of some weeks each year, say, at Christmas, they would still maintain a relationship with him but it would not be an optimal relationship.

8. During cross-examination, Mr G said, and I accept, that if the children live in Canada and spend time with their father there or in Australia, they can have a meaningful relationship with him. It may not be ‘optimal’ but it can be meaningful. Further, I accept his evidence that, if the children were able to spend additional time during the year with their father or communicate with him via Skype, as is proposed by the mother, this would enhance the likelihood that their relationship with their father will be more meaningful. I consider this prospect further enhanced by the fact that the children have used Skype to communicate with their maternal grandparents since about August 2012 and, on the unchallenged evidence of the maternal grandparents, they have been able to maintain good interaction and communication.

9. Mr G commented that if the children spent 4 nights with their father every three weeks this was not ‘optimal’ but would allow the time for the development of a meaningful relationship. I conclude from this evidence that, even if the children remained living in Australia and spent time with their father in the manner he seeks, their relationship with him would only be ‘meaningful’ in the same way that Mr G opines their relationship with him can be ‘meaningful’ if they live in Canada.

10. Mr G considered that the fact that the mother had taken positive or proactive steps to involve the father in accessing assistance to deal with N’s speech difficulties, as I find that she has, augured well for the future in terms of her ability to promote and support the children’s relationship with their father if they live in Town C. I agree and accept this evidence. I consider that, despite the significant difficulties under which she has parented since separation, the mother has acted to ensure that the father has been kept informed about relevant matters involving the children and I consider, given her past behaviour in this way, that it is more likely than not that she will continue to keep him informed about matters relevant to the children. I also consider, having regard to the matters discussed below, that the children are at risk, because of the emotional unavailability of their mother in Australia as a consequence of her depression and lack of support, of having a less than meaningful relationship with her if she is required to continue to parent them in Town F.  I find that the children’s prospects of a meaningful relationship with their mother are more likely to be fulfilled if she is able to function optimally as a parent in order to discharge her primary parenting obligations.

11. In any event, it is clear, as Mr G noted, that the benefit to the children of a meaningful relationship with both parents must be balanced against other matters identified in the material and the Report.

Need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. It is clear that the father accepts, by the terms of the Order he seeks, that the mother is the parent to whom the primary caring responsibilities for the children are to be entrusted. Therefore, a significant issue in this case is the likely impact, if any, on the mother’s parenting capacity should the children remain living in Australia and whether any such impact is likely to expose the children to ‘neglect’.

2. It is clear, I consider, from the evidence before me (as discussed in more detail below) that the mother has struggled significantly in her parenting of the children in Australia where she has not had the benefit of support from her family of origin nor significant support, on the findings I make, as outlined below, from the father or his extended family.  I accept the submission of Counsel for the Independent Children’s Lawyer that this is not a case of “possible” future compromise of the mother’s parenting capacity but one in which such compromise has occurred.

3. Whilst the mother herself has been careful to refrain from saying that she has felt “depressed” during her parenting of the children so far, and there is no medical diagnosis, other than that of post-natal depression following N’s birth, of the same, both the father and the paternal grandmother have given quite extensive evidence about the effects of her ‘depression’ on her ability and capacity to care for the children.  Such evidence negates any possibility of any recent invention by the mother of the difficulties she has experienced.

4. During cross-examination, the mother said that after N’s birth she was upset and ‘down’ because the father was abusive toward her, attempted to strangle her and that this happened on more than one occasion. She denied the assertion that she was making this evidence up. I accept her evidence that, at least from her perspective, after N’s birth the father was ‘abusive’ toward her.

5. The father accepted, during cross-examination, that the mother was never happy living in Australia. He said that she was so unhappy that he thought she was suffering from a medical condition or depression. He accepted that she had only one friend in Australia who has recently moved to live away from Town F.

6. In mid November 2012, the father told Mr G that he believed the mother still suffered from depression. He said, during cross-examination, that towards the end of relationship, the mother’s depression was such that it was affecting her ability to parent the children and that he was worried about her as he could see her ‘going down hill’. I understood his evidence to be to the effect that he observed the mother to change from being a ‘great and caring mum’ to a person who had just lost all ‘get up and go’. I accept his evidence in this regard. Relying on it, I find that the mother has the capacity to be a ‘great and caring mum’ and that such capacity has been compromised to a significant degree by “depression” or the circumstances in which the mother has found herself.

7. The father said that:

   a)when he saw ‘deficiencies’ in the mother’s parenting of the children it was when she was suffering ‘depression’;

   b)the impact on her of this ‘depression’ was so significant that it compromised her parenting capacity;

   c)after the children returned to their mother’s primary care in mid 2012, he remained concerned that they were neglected as a result of her ‘depression’;

   d)he had reached this conclusion by observing the mother’s mental and physical state and his knowledge that she would have a lot more ‘things’ to deal with;

   e)he formed a view, from his direct observation of the mother, that she was continuing to be ‘depressed’.

8. I accept his evidence in this regard and find that the circumstances in which the mother has parented, both during and certainly after separation, have resulted in a significant impairment to her parenting capacity.

9. The father said, during cross-examination, that he had no doubt that:

   a)the mother had suffered depression for ‘years’; and

   b)the ‘depression’ she suffered somewhat affected her capacity to parent the children; and

   c)he did not think that the mother was ‘deliberately’ neglecting the children in order to improve her case for their relocation to Canada.

10. I accept his evidence in this respect. I am not in any way persuaded that the mother has in any way exaggerated the impact of parenting the children in Australia, without the support of her family, on her ability to be the ‘great and caring mum’  the father described.

11. The paternal grandmother said, during her cross-examination, that when the mother returned to Australia after M’s birth she appeared depressed and did not talk to ‘people’. She told Mr G, that prior to the separation, the mother was depressed and would not get off the lounge, was home by herself with the children for much of the time, would not interact with people or make friends and at social events would sit by herself and not talk to people. I accept her evidence.

12. It is clear, I consider, from the evidence of both the father and the paternal grandmother, that whatever the diagnosis, the mother’s current parenting of the children has been deleteriously affected by her current state of affairs. I find that if she remains living in Australia it is more likely than not, given the past events and the lack of support from the father and his mother, as discussed below, that she will continue to suffer from ‘depression’ which will continue to impact negatively upon her ability effectively to parent the children. It is, I consider, more likely that she will not be in a position to be the ‘great and caring mum’ that she clearly has the capacity to be. Given that the father’s proposal, if the children continue to live in Australia, will see the mother shouldering more rather than less of that burden (because he will only see the children for 4 nights in every three week block rather than for 4 nights in every fortnight block as he currently does for the majority of the time), I find that it is more, rather than less, likely that the mother’s functioning, as described by him, will be in the future, as it has been in the past, if she is required to parent the children in Australia. I accept the submission of Counsel for the Independent Children’s Lawyer that the mother needs to be at her optimal functioning in order properly to discharge her primary care obligation and that she is not likely to achieve this without support.

13. Mr G reported and I accept, that, when he interviewed the mother in November 2012:

    a)her affect was reduced and she was very quietly spoken;

    b)she was quite vague on details and generally tearful throughout the presentation although she denied that this was her normal presentation;

    c)she denied a preponderance of negative, anxious or depressive thoughts;

    d)she said that if her application to relocate the children to Canada was refused ‘it will be really hard….but I will just have to get through it’;

    e)she was not hyper-vigilant, hyperactive or hyper-aroused  and displayed no aggressive behaviour at all;

    f)she appeared to be a somewhat timid person;

    g)she did not make any comments which were denigrating toward the father; and

    h)although her insight into how the father might maintain his relationship with the children if they were in Canada was ‘somewhat limited,’ there was no suggestion from her manner that she didn’t think that their relationship with him was important.

14. Mr G opines, at paragraph 10.17 of the Report:

    I am not confident enough to say that the mother is depressed at this stage and indeed, I have conducted no clinical assessment in that regard. However, I would not be surprised if she is. Still, I did not see anything to indicate that if she is, it affects her ability at present to care well for her two very young children.

15. Whilst I accept Mr G’s evidence that he did not observe, during the course of his interview with and observations of the mother ‘anything’ to indicate an impact on the mother’s ability to care for the children, I note that, during that observation he also recorded that:

    a)whilst the mother ensured that the children were safe, she was not ‘terribly enthusiastic’ in the manner in which she engaged with them;

    b)N pushed another child away from some play equipment the mother did not correct or admonish him, a lack of action on her part which Mr G found ‘quite strange’;

    c)he considered that she was ‘not terribly engaged with the children’ and thought that her affect was ‘somewhat restricted;’

    d)this behaviour by the mother was ‘quite inconsistent’ with the manner in which he observed her to engage with the children in other ways such that he expressed the ‘larger concern’ that the mother appeared ‘somewhat disengaged’ at that time;

    e)he wondered whether what he had seen was ‘symptomatic of some ongoing depression’.

16. Mr G expressed the opinion that he was not ‘totally convinced’ when the mother told him that she was not depressed and considered that she may be under-representing any depressive symptoms she may be experiencing ‘for fear that it may harm her case.’ I accept his evidence in this regard.

17. Mr G noted that ‘depression’ was one of the reasons the father provided for his decision to remove the children from the mother’s care. As noted above, the father had, certainly after his removal of the children from the mother’s care in late April 2012, made it clear to her that, because of her ‘depression’,  she ‘can’t have the children.’ Against this background, I accept Mr G’s opinion that the mother ‘may be fearful that any admission on the issue of depression may be used against her by the father’.

18. Mr G said, during cross-examination, that the mother continued to experience problems living in Town F. This is, he identified the problem. He did not accept, and neither do I, the assertion that the issues and difficulties encountered by the mother in her functioning could be addressed by medication and treatment. He said that he thought it was ‘more than that’ in that the mother was having to cope not just with psychological issues but also with the lack of social and family support, difficulties in being able to access training and employment and the burdens of establishing herself as a single mother in country not of her origin where she has ‘no roots’. He contrasted this with the position she would face were she to live in a community where she had been raised and where she had a great deal support and opportunity for employment and retraining.

1. Mr G considered that the mother was ‘certainly in need of support’ at the time of his Report. He said in effect, and I accept, that there is a dual nature to a consideration of the mother’s level of support in Australia: first, whether there is a lack of physical support for her and, secondly, whether there is a lack of emotional support available to her such as contributes to her perception of isolation.

2. It is, I think, necessary therefore to consider whether, if she remains the primary carer for the children in Town F, the mother will be likely to obtain the support necessary to assist her in implementing her capacity to be a ‘great and caring mum’ or whether the likelihood is that she will continue to suffer the negative impacts of a lack of support such that there is a real risk that the children may be neglected as a consequence.

The father as a support

1. The father told Mr G that when the mother moved to Town F ‘she did not even want her kids back’. When Mr G challenged the father about this comment, the father acknowledged that the mother wasn’t able to have the children live with her because she didn’t have accommodation for them. I consider this comment to Mr G to be a deliberate misstatement of the position in which the mother found herself as a result of the father’s actions in taking the children to Town F. I also find that this comment to Mr G to be a deliberate attempt on the part of the father to denigrate the mother to the author of the Report prepared for this proceeding. I find that it demonstrates a complete lack of empathy and insight about the situation in which the mother found herself as a result of the father’s decision to remove the children to Town F.

2. Mr G considers, and I agree wholeheartedly and without reservation,  that the father’s actions in failing to provide the children to spend time with their mother after separation for a  period :

   a)were ‘extremely unsupportive’;

   b)demonstrate a lack of respect for the mother;

   c)demonstrate an unwillingness to support her at a time of ‘immense difficulty’; and

   d)demonstrate a lack of insight ‘around the children’s attachments to their mother’.

   Father’s retention of the Family Tax Benefit and Parenting Payment

3. I accept the mother’s evidence that, when the father retained the children in his care after separation on 27 April 2012, she acted so as to ensure that he would receive the Family Tax Benefit and Parenting Payments from Centrelink as she knew that he would need these funds to support the children.

4. I accept her evidence that, after the children returned to her primary care pursuant to the Order made on 27 June 2012, she approached the father to sign the appropriate Centrelink documents confirming that she was the parent with the primary care of the children in order to obtain the appropriate benefits for use in their support. I accept her evidence that the father refused to sign the documents immediately, telling her that he didn’t have to tell Centrelink of the change for approximately 14 days.

5. I accept her evidence that, because of his actions in refusing to sign the necessary documentation to confirm her primary care of the children, she didn’t start to receive Centrelink payments until the children had been in her care for 14 days and that, during this period, she was reliant upon her father and food vouchers from the Salvation Army to meet the children’s needs.

6. I find that the action of the father in this respect demonstrates:

   a)a complete lack of focus on the importance of acting to meet the children’s needs;

   b)a willingness to put the children at risk of being neglected in order to spite their mother;

   c)a deliberate willingness to attempt to put the mother under significant pressure in terms of her capacity to meet the children’s needs;

   d)a complete self-focus and a willingness to act to the detriment of the children;

   e)a determination to ensure that his own needs were met at the children’s expense;

   f)an inability to separate “issues” between adults from the importance of ensuring that the children’s day to day needs were met; and

   g)a complete abrogation of the responsibilities of parenthood.

7. I  accept the mother’s evidence that, in the period from 28 April 2012 until 1 May 2012, the father sent her the following text messages:

   a)‘u r on your own. U will not see the kids again. U r unfit go fuck someone and live off them’;

   b)‘When are you flying home. You will need a plane ticket see yah. Will be good just the 3 of us without you’;

   c)‘R u staying in Australia. Do you want to say good bye to your kids’;

   d)‘Don’t you write back. You crying. Poor you and laughter’; and

   e)‘Why r u fat. Because you are lazy’.

8. I accept the mother’s evidence that she found these communications very upsetting and that she believed that she may never see her children again.

9. I accept the mother’s evidence that she received the following texts from the father:

   a)On 7 May 2012, after the father’s attempt to have he speak with him under the guise of telling her that M wanted to speak with her: ‘ring tomorrow and talk to your fucking kids you unfit mother’;

   b)On 8 May 2012: ‘do you want a fuck today’; and

   c)On 10 May 2012: ‘I have just paid another 50 on phone bill is that worth a blow job’.

10. The father said, during cross examination, that he did not recall sending the last text message but might have been drinking when he sent it. He said that he was angry and not thinking and regretted sending the texts. Whilst this may be the case, I consider that the sentiments reflected therein speak to a fundamental attitude toward the children’s mother – one that is derogatory, demeaning and belittling. One that certainly demonstrates an inability, which is likely to continue in the future, to communicate with her in a respectful and courteous manner.

11. I accept Mr G’s evidence that if there were no ‘inappropriate’ texts sent by the mother to the father (which may have placed such responses in some sort of context), the texts sent by the father are all the more apparent in their reflection of his attitude and inability to support the mother. No texts were tendered on behalf of the father to suggest that there was any particular context within which I should consider the father’s texts. I find that the texts succinctly demonstrate the derogatory and demeaning manner in which the father regards the mother. I find that they clearly reflect an inability to support the mother in her parenting of the children.

12. I accept the mother’s evidence that, at changeover on 27 July 2012, the father yelled at her about the way she had dressed the children and called her a ‘mole’ in front of them.

13. The father acknowledged to Mr G, in mid November 2012, that ‘the mother’s desire to relocate to Canada is based on her lack of family support in Australia.’

14. Given this, it cannot be concluded other than that he was fully aware of the basis upon which the mother sought to relocate the children. Further, it can only be concluded that he has been fully aware of the mother’s asserted lack of support at least since then and that he has had the opportunity to address this in order to improve his case (that the children remain living in Australia).

15. How easy, then, would it have been for the father and his mother to ensure, even if only in his self interest, that the mother received the support she was seeking? However, his actions as set out below clearly demonstrate an unwillingness or inability to act so as to support the mother in her parenting of the children. Such past actions are, I consider, a significant predictor of his likely future approach should the children remain living with their mother in Town F. Relying on the matters set out above and the matters considered below, I consider it much more likely than not that, in the future, he will continue to fail to support the mother in her primary parenting of the children.

The welfare check

1. I accept the mother’s evidence that, on 26 October 2012, the father asked to come to her house to drop N’s bike off. I accept her evidence that M had been unwell and that she hadn’t been able to ‘tidy’ their home as a consequence of caring for M. I accept her evidence that, when the father contacted her asking to drop N’s bike off and then to see M, she agreed and allowed him to attend at their home.

2. I accept that she asked him to get some lemonade for M who had been unwell and that, when he returned with it, he said to her : ‘you can’t even look after the kids and you get all the money,’ and that as he was leaving he said: ‘I can’t wait to nail you to the cross’ and  ‘your world is about to turn upside down.’ Such comments, particularly the last, are completely consistent with the father’s actions and attitude toward the mother.

3. I accept the mother’s evidence that, within a few hours of the father’s attendance that day, the Police called at her home to perform a ‘welfare check’ at the father’s request.

4. The father accepted, during cross examination, that he involved the Police in circumstances where M had conjunctivitis and a urinary tract infection, the mother had told him about both and had taken the child to the doctor and also told him that day that she was going to take the child back to the doctor. He justified his decision by saying, in essence, that he had the Police ‘go around’ because it was ‘like what she [the mother] does to me.’ He said that he had asked the Police to attend on the mother despite knowing she would not ‘like it’ but thought it was the most appropriate way to deal with his concerns about the children’s welfare. He made this decision in circumstances where he didn’t ask the children any questions about how they were, didn’t ask them whether they’d been fed but knew that there were dirty dishes in the house. There is no dispute that the Police were satisfied with their inspection of the home.

5. I consider that the father’s actions on this occasion were mean spirited and more likely than not intended to cause distress and upset to the mother and to undermine her sense of wellbeing and security. He threatened to ‘turn [her] world upside down’ and he implemented this threat. This was certainly not the action of a parent looking to provide support to the other parent at a time when one of their children was suffering ill-health.

   The difficulties with and at changeover

6. Whilst the Order made 27 August 2012 provided for changeovers to occur at the shopping centre close to the mother’s home, I accept her evidence that some changeovers occurred at her home in order to facilitate N taking his bike between households.

7. I accept the mother’s evidence that, on 8 November 2012, the parties engaged in a series of text messages and phone calls about the venue for changeover. I accept that the father said that he wanted changeovers to return to the shopping centre and that the mother suggested her home so that N’s bike could easily be transitioned between the households. I accept the mother’s evidence that during one of the telephone calls that day the father told her that she didn’t understand how much he hated her and that he wasn’t going to pay out thousands of dollars so she could ‘sit on her arse’.

8. I find it much more likely than not that the father made such comment given his attitude to the payment of child support for the children to the mother (as discussed elsewhere in these Reasons), his text to her as outlined in paragraph 115(a) and his proposal to restrict his financial contribution to the cost of the children visiting Canada (if they remain living in Australia) to paying for their flights only in circumstances where it is clear that, because of their ages, the mother must accompany them for a significant period of time into the future.

9. I accept the mother’s evidence that at a changeover on 26 November 2012 the father yelled at her in front of N. That changeovers have continued in such a manner is another factor which, I consider, demonstrates the antipathy between the parents and the reality that, should the mother remain in Town F to parent the children, she is likely to receive little practical support from the father.

Father’s actions during the January 2013 floods

1. Town F suffered the impact of severe weather conditions on 26 January 2013. I accept the mother’s evidence that the father contacted her that day and asked if he could come to her home as he was unable to get a taxi back to his mother’s place at Town J.

2. The parties agree that the father was in possession of alcohol when he arrived but are in dispute as to whether he consumed this whilst he was there. The father says he did not and the mother says that he did. Whilst it perhaps does not matter much, I accept the mother’s evidence in this regard.

3. The mother says that, as she and the children were alone during the severe weather conditions, she asked the father to stay to support her. However, after receiving a telephone call from the paternal grandmother, the father left her home and travelled to the paternal grandmother’s home, where the paternal grandmother and the father’s 16 year old half brother were, at Town J. Whilst criticism is made of the father about this decision – namely to leave the children (and their mother) alone in the midst of this frightening event, I accept his evidence that he was also concerned that  if he did not travel to Town J, he might become ‘trapped’ in Town F without accommodation.

4. The next morning the mother was told that she and the children would have to leave the home because storm water levels were rising. As she had no transport, a neighbour drove the mother and children to the home of a friends’ husband’s parents (“the good Samaritans”). She arrived at their home without notice and was extremely upset by all that had happened.

5. The mother says, and I accept, that she was concerned about taking the children to the evacuation centres that had been established because of her fears for their personal safety and media information about criminal offences occurring there.

6. I accept that the mother telephoned the father on 27 January 2013 to tell him where she and the children would be staying. I accept her evidence that, at that time, he told her that she and the children could stay at his mother’s home at Town J. I accept that, whilst the mother did not want to do this because of the difficulty in her relationship with the paternal grandmother, she discussed with the father the necessity of putting such matters aside and told him that she was prepared to accept his offer of accommodation for her and the children.

7. I accept the mother’s evidence that the father called her the next day, 28 January 2013, and told her that he had changed his mind and that, while the children could stay at the paternal grandmother’s home, she would have to look after herself and go to an evacuation shelter. I accept her evidence that the father told her that he could rent her a house at Town J but that he would ‘have’ the children and that he would have to apply for a recovery order as she no longer had accommodation for the children.

8. During his cross examination the father, somewhat reluctantly, accepted that this information would ‘possibly’ have made the mother upset and would not have given her any further confidence in him as a source of support. He accepted that his actions were consistent with an earlier text message to the mother to the effect that she was ‘on her own’.

9. I accept the mother’s evidence that the father threatened to take the children off her because she did not have a ‘home’ and ‘screamed’ at her, on 31 January 2013 during the return of the children to her, that he was going to apply for a recovery order because she was without a place to live – remembering the prerequisite of obtaining suitable accommodation imposed in mid 2012.

10. The father said that he changed his position after receiving legal advice from his solicitor who suggested that if the mother had alternative accommodation it would be preferable that she stay there rather than at his and the paternal grandmother’s home. However I note that when called for, no file note corroborating the father’s evidence in this regard was produced.

11. The father also suggested that he changed his mind about extending the offer of accommodation to the mother and children because he was concerned that the mother might, in some way, take advantage of the situation to cause trouble for him in respect of the Protection Order. I am not persuaded by this. I consider that there was nothing in the mother’s behaviour toward the father prior to the extraordinary event of the January 2013 flood that would lead a reasonable person to think that she would take advantage of this situation. Further, it is highly improbable that any Court would be persuaded to find adversely to the father if he had extended the hand of support to the mother at this time.

12. Despite the mother hoping that the stay at the home of the good Samaritans would be relatively short, she and the children in fact lived with them from 27 January 2103 until 27 February 2013 at which time they were allowed to return to their rental premises.

The car

1. I accept that, on a number of occasions, the mother asked the father to provide her with the car used by the parties during their marriage. Whilst I accept the father’s evidence that he used this same motor vehicle to travel to places as distant as Sydney in order to obtain work, I consider that, had he been willing really to support the mother, an arrangement could have been made whereby, at the very least, the car was made available to the mother for some time to allow her more easily to shop, take the children to the doctor and otherwise provide care for them.

2. I accept the mother’s evidence that there has been no occasion since separation in April 2012 on which the father has even offered that she have use of the car on a weekend or during a time when he is not working so as to be able to transport the children to the doctor or activities or so that she could more easily obtain shopping supplies for them. This failure on his part is yet another clear demonstration of the lack of support provided by him to the mother since the separation in April 2012.

3. I find that the fact that the father has done nothing to assist with the transportation of the children whilst they are in their mother’s care demonstrates an inability or unwillingness to focus on achieving the best for the children in all the circumstances. Rather than being able to put aside some of the differences between himself and the mother in order to assist with their transportation, I find that he has remained resolute in his determination to make the mother’s parenting task as difficult and as onerous as possible. I reach this conclusion because, even after receiving significant money in April/May 2013, he made no effort whatsoever to assist with transport.

The father’s drinking and its impact on his capacity to support the mother

1. The father told Mr G that had had previously attended counselling and ‘Addiction Program K’ when he was about 23 years of age. He said that this course was for about 2 weeks and that his problems were ‘mainly drinking’.

2. The father says that whilst there were times during the relationship that the parties were under financial pressure this was not due to him spending excessive amounts of money on alcohol but rather because he was out of work at various times. I accept the mother’s evidence as to the level of the father’s consumption of alcohol in 2010. It is clear that he has a long-standing issue with alcohol use and has often abused the same. I accept the mother’s evidence that M often saw her father under the influence of alcohol and being ill as a result.

3. I accept the maternal grandfather’s evidence that when he answered the mother’s telephone at 10.50pm on 24 June 2012 the father sounded very intoxicated because he was ‘slurring his words badly.’ I accept his evidence that when he told the father that he couldn’t speak with the mother the father swore at him numerous times and called him “nasty” names before hanging up.

The maturity, sex, lifestyle and background of the children and of either parent, and any other characteristics of the children thought relevant

1. I accept that the mother is part of a large, close extended family of four generations, many of whom live in close proximity to Town C. I find that if she lived there with the children it is more likely than not that she will obtain significant emotional and practical support from them.  I accept the mother’s evidence that, should the children live with her in Town C, they will form part of a large extended family from which they could obtain support.

2. I find that the father has a close relationship with his mother and that if the children remain living in Town F they will have an opportunity to spend time with their father and paternal grandmother. However, given my findings about the behaviour of the same and their attitude to the mother, I express some concern about the potential impact on the children as they grow older of exposure to such attitudes.

The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents

1. I accept Mr G’s evidence that, despite the problems she alleged, the father’s use of alcohol, the father’s alleged violence and a difficult separation from the father, the mother has been able to foster the children developing a relationship with their father.

2. The father told Mr G in mid November 2012 that the industry in which he is employed is very changeable in terms of roster requirements and that he would like flexibility in his time with the children in order to accommodate this. He told Mr G that he thought it would be fair to say that over the longer term he would be in a position to have the children spend three nights per fortnight with him.

3. As became clear at the hearing of this matter, however, the father’s roster arrangement at present means that he could have the children with him for four nights in every 21 night block. It is also clear that, consistent with the view expressed by him to Mr G, his expectation is that the children’s time with him will fit around his working schedule and take a secondary priority to this.

4. I accept the mother’s evidence that, in April 2013, the father told her that he no longer wanted to conduct the changeovers for the children at her residence but wanted to return to using the shopping centre nominated in the Interim Order.

5. I accept that the mother asked the father to reconsider his position as his insistence on using the shopping centre meant that she would continue to have to walk the children there as she had no motor vehicle and the closure of the venue meant that she was already having to walk further to get to shops.  I find that the father’s insistence on a return to using the shopping centre for changeover failed properly to prioritise the benefits to the children of continuing to use the mother’s home for changeover.

6. The father accepted, that since separation, his relationship with the children has not declined. He accepted that the mother has not ‘poisoned’ the children against him.  He accepted that if the mother was ‘doing all she can’ to get to Canada, he had supplied her with information or ‘ammunition’ that she could have used if she had chosen to so. Despite these matters being accepted by him, the father maintained his view that the mother would not support the children’s relationship with him if they lived in Canada.

7. Mr G opined that the mother was clearly not adverse to the children spending more time with their father (than they were at the time of his interview in November 2012). He considered that this attitude was a ‘clear indication’ that the mother was not adverse to the children having a meaningful relationship with their father. I accept his evidence and agree with his opinion in this regard.

8. I consider that the mother is supportive of the children having an ongoing and meaningful relationship with their father. I consider that, if the children live in Canada with her, it is more likely than not that she will facilitate their time and communication with him.

9. There is no challenge to the maternal grandmother’s evidence that:

   a)on the first occasion M visited her father during the time she was staying with the mother and children, M returned saying that she (the maternal grandmother) should go home and she was an old goat;

   b)M later told her maternal grandmother and mother that the father had told her to say that; and

   c)she heard M talk every night about how she saw her father throw his phone and it smashed and broke and that he was mad because her mother had made him mad.

10. I find that the actions of the father in exposing M to derogatory comments about her maternal grandmother are indicative of his incapacity to restrain himself. I further find such behaviour to be completely consistent with his dismissive attitude toward the maternal extended family.

11. I accept the mother’s evidence that, on 18 December 2012, the father telephoned M and told her that he was picking her up. This information occurred despite the mother having told him that she did not agree to M spending time with him that day. I accept the mother’s evidence that, when she told M that she was not spending time with her father, M was upset and blaming of her. I find that such behaviour by the father is indicative of a limited insight into the desirability of ensuring that children are not drawn into disputes between their parents. I also find this behaviour to be a further example of the unsupportive and undermining style of co-parenting to which the mother is more likely than not to be exposed if the children remain living in Town F.

Any family violence involving the children or a member of their family

1. I accept the mother’s evidence that the parties argued loudly during the relationship and that the children would have heard this. The father accepted, during cross examination, that he had a temper issue during the marriage and had not seen anyone about this. The father admitted to Mr G that there had been ‘some verbal stuff’.

2. I also accept the mother’s evidence that the father intimidated her by yelling at her and putting her down, told her that she did not belong ‘here’ and had no rights here as she is not Australian, hit or punched the walls of their accommodation (on an occasion where he was dissatisfied or irritated at the manner in which she was attempting to continue to breastfeed N), and ripped her shirt.

3. The father denies ever physically assaulting the mother and asserts that he was never physically abusive toward her. I do not believe him and I do not accept his evidence in this regard.

4. I accept that a month or two after N’s birth the father yelled at her, told her that everything she was doing was wrong and that she was not coping, put his hands around her throat and pushed her up against the wall.

5. I accept her evidence that the father on occasions damaged property belonging to her and the children and that M saw her father under the influence of alcohol on occasions. I accept the mother’s evidence that, in late 2010, before N was born, the father returned home intoxicated, demanded sexual intimacy and when rebuffed by the mother, grabbed her around the throat.

6. I accept her evidence that the father controlled ‘all the money’. I also accept her evidence that there were occasions when the father left her at home with the children taking the only key to the residence such that she couldn’t leave because she would not be able to re-enter the gated complex in which they lived.

7. I accept the mother’s evidence that prior to separation the father:

   a)often came home drunk in the middle of the night;

   b)lost his temper and smashed the children’s toys because he said the house was messy; and

   c)on an occasion in mid October 2011, kicked the door of an internal room, threw furniture including a dolls house around and, after she had pushed a bed against the door to prevent him from re-entering the room, started kicking the door and demanding to be let in as well as yelling and screaming at her.

8. I accept the mother’s evidence that in late 2011 after an argument between the parties about the extent of the father’s consumption of alcohol the father sent her a number of text messages which included messages like “I hate u get a life”, “u are a slut” and “u r ugly and I don’t love u” and “ha ha u r a joke just like your dad”.

9. I accept the mother’s evidence that, on 15 January 2012 after he had been drinking, the father struck her. I further accept her evidence that, in February 2012, after she had informed the father that she was thinking of visiting a friend of hers in Town F, the father sent her a text message at 1.55am: “u must love the smell of piss u pig go to [Town F] yourself and find a fuck I can raise my kids myself have fun I think the train gose from [Town M] by”.

10. I accept the mother’s evidence that the father stayed out all night on 24 April 2012 and arrived home after the dawn service on 25 April 2012. I accept her evidence that he began abusing her in front of M about a broken phone charger and that he had been drinking as he ‘was stumbling and stunk of alcohol’. I accept her evidence that, when she told him not to argue in front of M, he grabbed her shirt and tore it. I accept that she cried and told him that the relationship was over. I also accept that the father stood over her with his fist raised and that she thought he was going to hit her.

11. I accept the mother’s evidence that she told the paternal grandmother that the father had hit her. I do not accept the paternal grandmother’s denial of this. I accept the mother’s evidence that the paternal grandmother responded by saying that she would hit her (the mother) too. I find this response to be completely consistent with the paternal grandmother’s view of the mother as a ‘whinger’.

12. I accept the mother’s evidence that the father telephoned her after he had been served with her application for a Protection Order and told her that:

    a)she would not see the children again because she’d applied for a domestic violence order;

    b)she had better go to Canada; and

    c)he would be taking steps to have her Visa revoked and have her removed from Australia.

13. I accept the Mother’s evidence that the father telephoned her on 26 April 2013 and appeared to have been drinking because he was slurring his words and was aggressive toward her. I also accept the mother’s evidence that when M returned home the next day she told her mother that she was scared and that the father had been yelling at mummy and drinking.

14. I accept the mother’s evidence that the father called her on Sunday 28 April 2013, the 12 month anniversary of their separation, and wished her a ‘happy separation’ and that he sounded heavily intoxicated and was slurring his words.

15. I consider it more likely than not that if the children remain living in Town F, the father will continue to communicate with the mother in the manner outlined above and that such interaction will continue to negatively impact upon the mother’s parenting capacity and emotional availability for the children.

The family violence order and any inferences which can be drawn from it taking into account the nature of the order, the circumstances in which it was made, any evidence admitted in proceedings for the order, any findings made by the court in or in proceedings for the order and any other relevant matter

1. The mother applied for a Protection Order on 11 May 2012. Such Order was made by consent on 23 May 2012 and requires the father to be of good behaviour toward the mother and not commit any domestic violence.

2. The Order was made by the Magistrates’ Court after the father consented to it on a ‘without admission’ basis so there are no findings made previously which I need to take into account in determining those relevant inferences that can be drawn from the Order. I rely on the findings I have made above about the nature of the father’s consent to this Order.

3. The father sought a Protection Order against the maternal grandfather. This Application was made on the basis that the father asserted that the mother and her father had attended at the daycare centre and tried to kidnap the children. The mother was not challenged in cross-examination about this evidence nor was it suggested that she was somehow confused about her understanding of the basis on which the father had applied for this Protection Order. As noted above, the father failed to attend at Court in Town F to prosecute the Application and it was dismissed. Given his failure to prosecute the Application, I conclude that it is more likely than not that the father filed it either in retaliation or to cause disruption and difficulty to the maternal grandfather and, indirectly, the mother.

Whether it is preferable to make the order which would be least likely to lead to the institution of further proceedings in relation to the children

1. The mother submits that her proposal for the relocation of the children to live in Canada is that which is least likely to lead to further proceedings in that:

   a)it is unlikely that the father will pay for her and the children to visit Canada if they remain living in Australia such that it is likely that she will have to return the matter to Court;

   b)there is no ‘guarantee’ that the parenting arrangements proposed by the father in the event that the children remain living in Australia will eventuate because of the father’s work commitments.

2. As discussed above, the father clearly has the financial capacity to pay for the mother to accompany the children to Canada for a holiday if they remain living in Australia. However, as noted elsewhere in these Reasons, he does not propose to meet such cost.

3. Given the father’s demonstrated attitude to providing the mother with any money, as discussed elsewhere in these Reasons, I accept the submission made on behalf of the mother that it is more likely that the father would pay for the children to travel from Canada to spend time with him than he will pay for them to travel to Canada to spend time with their extended maternal family.

Any other fact or circumstance that the court thinks is relevant

1. I am not persuaded by the submission made by Counsel for the father that I should conclude, from the mother’s relative inability to identify positive attributes in the father’s parenting of the children or in him as a ‘person’, that, if the children were to live with her in Town C, she is unlikely to support them having a continuing relationship with their father. Given her evidence of his actions toward her during the relationship, his threats to harm her after the conclusion of the relationship, his actions in removing the children from the daycare centre contrary to the Agreement and failing to provide them to spend time with her and his failure to provide anything but the most limited financial support for the children (all matters to which I have already referred), it would be perverse if she gave glowing evidence about his parental capacity and insight. I find her evidence about the father’s capacity and attributes as a person to be completely consistent with her evidence, which I have accepted, about his behaviours as recounted in these Reasons.

2. I consider that the mother’s prospects of returning to further education are likely to be greater in Canada than Town F, in that if she returns to live in Town C she will have the support of her parents and members of her extended family. I consider that this is in contrast to the likely position in Town F given the father’s work commitments – which would see her have the responsibility for the care of the children for all but 4 nights in every three week block and some school holiday time – and the likely lack of support provided by the father and the paternal grandmother as discussed above.

3. I consider this relevant to the children’s best interests because it is obvious that they are more likely to benefit if their parents are able to afford to provide additional opportunities for them. I consider that it is more likely than not that, if the mother was able to return to work or study, she will be a happier person within herself and that the children are more likely than not to benefit from this both directly and indirectly.

4. I accept the mother’s evidence that, since separation, she has met the following jointly incurred debts:

   a)$200/month toward the payment of mobile telephone account in her name rather than $110/month if the father’s phone costs were removed;

   b)payment of an outstanding phone account (the husband’s) of $200 and an outstanding Austar account;

   c)$50.00/fortnight toward the costs of the purchase of a computer which was retained for a time by the father.

5. I find that the father’s failure to contribute toward the payment of these costs is yet another example of his unwillingness to support the mother. I accept the mother’s evidence that the father’s attitude toward the payment of the accounts referred to above (Austar) was that she shouldn’t pay the same as he wasn’t going to. Such an attitude toward the legal obligation to pay a debt causes me significant concern about the father’s likely willingness to meet the costs associated with the children travelling to Canada if they are to remain living in Australia.

6. I am satisfied, because of her actions in supporting the children’s relationship with their father after separation, that the mother will, in the future, act to support the children’s relationship with their father by abiding the terms of an Order which would see them return to Australia to spend time with him.

7. Mr G expresses the opinion that, given the father’s behaviour, as discussed by him at paragraph 10.8 of the Report, the mother is likely to ‘continue to experience difficulties in co-parenting’ with the father. I accept this evidence entirely and find that such opinion can only be accorded further weight when regard is had to the actions of the father post the receipt of the Report as discussed elsewhere in these Reasons.

8. Mr G says, at paragraph 10.9 of the Report:

   If those allegations [about the father’s behaviour during the course of the marriage being violence, excessive drinking, failure to support her, absence from the home and leaving her in isolation without a key to the unit complex] hold substance, then the question around the issue of the father’s ability to show respect for the mother raises even further concerns about his ability to engage in an effective co-parenting relationship with her.

9. And further, at paragraph 10.14 of his Report:

   … If it were found that there is substance in those allegations [being the father’s alleged violence and alleged lack of engagement with his family during the course of the marriage] then the concerns I have raised about the father’s ability to support the mother in co-parenting become all the more heightened. If that were the case, then my inclination would be to support the mother’s application for relocation to Canada.

10. I have accepted the mother’s evidence about the father’s violence and excessive drinking during the relationship. I have found that the father has failed to support her in her parenting of the children both during the relationship and after separation. I have found that the father was absent from the home and left her in isolation without a key to the unit complex. I have made findings about the significant lack of support that I consider the father is like to proffer to the mother should her parenting of the children occur in Town F.

11. I accept, therefore, Mr G’s evidence that his ‘inclination’ would be to support the mother’s application for a relocation of the children’s residence to Town C, Canada.

12. No party made submission to me about the issue of the enforceability of any order I might make for the children to spend time with the father should the mother be permitted to move their residence to Town C. Whilst submissions were made on behalf of the father that I should be concerned that the mother will not support the children’s relationship with their father if they live with her at Town C, no submission was made that I should have any concern at all that the mother will not abide the orders I make.

1. In Australia, foreign law is treated as a question of fact, not law.[9] There is no expert, or any, evidence before me about the prospect of ‘mirror orders’ being made in British Columbia or whether an order made by this Court can be registered there.

   [9] Neilson v Overseas Projects Corporation (2005) 223 CLR 331; Parkasho v Singh [1968] P 233 at page 250 per Cairns J; and s 174 Evidence Act 1995 (Cth).

2. However, I note that, as at 18 March 2011, s 73(d) of the Family Law Act, SBC 2011 (“that Act”) provides that the purpose of the applicable Division (being Division 7, headed: ‘Extra provincial Matters respecting Parenting Arrangements’) of that Act is to provide for the effective enforcement of orders respecting guardianship, parenting arrangements or contact with a child and for the recognition and enforcement of extraprovincial orders.

3. The term ‘extraprovincial order’ is defined in s 72(1) of that Act as meaning ‘an order of an extraprovincial tribunal that is similar in nature to an order respecting guardianship, parenting arrangements or contact with a child’. The term ‘extraprovincial tribunal’ is defined in s 72(1) to mean ‘a court or tribunal, outside British Columbia, having authority to make an extraprovincial order.’

4. I find that this Court is an ‘extraprovincial tribunal’ within the meaning of that Act. I find that the order I make in these proceedings is an ‘extraprovincial order’ for the purpose of that Act.

5. Section 75(1) of that Act prescribes that a court (in British Columbia) must recognise an extraprovincial order if all of the following apply:

   a)the extraprovincial tribunal would have had jurisdiction to make the order under the rules applicable in British Columbia;

   b)each party to a proceeding in which an extraprovincial order was made had reasonable notice that an order would be made and a reasonable opportunity to be heard respecting the order;

   c)the extraprovincial tribunal was required by law to consider the best interests of the children;

   d)it would not be contrary to public policy in British Columbia to recognize the order.

6. It is clear that the terms of subparagraphs (b) and (c) above have been met. Thus, subject to being satisfied as to compliance with the terms of (a) and (d) above, a court in British Columbia must recognise the Order I make in this proceeding. Once an Order is so recognised, s 75(2) of that Act provides that it has the same effect and may be enforced as if it were an order made under section 45 [orders respecting parenting arrangements], 51[orders respecting guardianship] or 59 [orders respecting contact] of that Act and, if necessary to give effect to the extraprovincial order, the court may make any order that it may make under that Act.

7. I therefore find that Orders made by this Court with respect to the children, are, subject to satisfaction of the prerequisites set out in paragraph 337 above,  capable of enforcement in British Columbia, Canada where the mother wishes the children to reside.

Conclusions

1. If the Court makes an order that the children’s parents are to share parental responsibility for them and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to them, such order requires the decision to be made jointly by their parents: s 65DAC(2) of the Act.

2. The father confirmed with Mr G in mid November 2012 that he and the mother ‘do not communicate’. He also said that he was ‘very reluctant’ to communicate with the mother because he alleged that she made ‘false accusations’ about him. He confirmed that, on occasions, he had not attended at her home to collect the children because he was afraid she would make allegations against him. The father also told Mr G that he would not provide the mother with his telephone number because she ‘twists everything he says to her’. I accept that these comments reflect his attitude about communicating with the mother.

3. I accept the mother’s evidence that, until the end of December 2012, she only had the paternal grandmother’s mobile number for use in contacting the father. Thus, she had to contact the paternal grandmother when she wanted to get a message to the father. This does not bode well for future communication at all.

4. The mother was clear in her evidence that the father had not told her that he had opened a bank account in the children’s name nor that he was home from work on the birthday weekend and that he had never spoken about a bank account holding money for the children’s travel. She did not have access to this account. I accept this evidence.

5. I consider that the father’s attitude to the mother and to communicating with the mother as outlined above means that it is unlikely that there will be any real dialogue between the children’s parents about matters pertaining to the children.

6. I am satisfied, on the evidence before me, that the children’s parents could not now make decisions about major long term issues in relation to them ‘jointly’. They could not, I consider, carry out the obligation imposed on them by statute. The level of communication between them is almost nonexistent. The level of mistrust is high. The attitude of the father toward the mother is demeaning and undermining.

7. Having regard to these and the matters discussed during my consideration of the relevant s 60CC considerations, I am satisfied that it is not in the children’s best interests that their parents have equal shared parental responsibility for them.

8. I am satisfied that it is in the children’s best interests that their mother have sole parental responsibility for them. I reach this conclusion because:

   a)she is the parent who has historically borne the responsibility for the majority of the care of and decision making for the children;

   b)the mother has historically acted so as to inform the father about matters requiring input from both parents;

   c)she has demonstrated, by her actions discussed above, a dedicated commitment to ensuring that the children are well cared for, supported and able to maintain an ongoing relationship with their father;

   d)I am confident that she will comply with an order to inform the father about a prospective decision about a major long term issue for the children, invite his response, consider the same and, having made the decision, inform him of it.

9. If the children continue to live in Town F with their mother, I find that she  is unlikely to obtain any real support (be it practical or emotional) from the father and the paternal grandmother given their previous actions as considered above and the underlying attitudes that such actions demonstrate. Further, she is more likely than not to continue to be required to carry out her primary parenting obligations in circumstances where she is exposed to demeaning and undermining behaviour which will serve only to undermine further her ability to exercise her capacity to be the ‘great and caring mum’ that she can be.

10. I consider that if the children are primarily parented by their mother in such circumstances, they will be parented by an emotionally unavailable parent and will continue to be at significant risk of suffering the neglect that their father has already described.

11. I consider that the children can maintain a meaningful relationship with their father if they live in Town C. Whilst such relationship will occur in the context of less time with him and have the impost of additional travel, I consider, such is the significant and real risk to the children of being neglected and suffering the associated consequences if they remain to be parented primarily by their unsupported and undermined mother in Town F, that the benefit to them of the opportunity to spend four nights in every three weeks and up to four weeks holiday time with their father each year must give way to the need to protect them from its actualisation.

12. I find that it is imperative for the children’s benefit that they be parented by an optimally functioning primary care provider – they need their mother to be the “great and caring mum” she can be. 

13. I conclude, after balancing the various relevant considerations, that the children will obtain the benefit of a fully emotionally available primary care provider if they live with their mother in Town C. In contrast to the absence of support provided by their father and paternal grandmother, they will likely have available to them the significant support of their extended maternal family.

14. Having considered the evidence and weighed the considerations as set out above, I find that it is in the children’s best interest that they live with their mother in Town C, Canada.

15. I consider, also, that it is in the children’s best interest that they have the opportunity to spend face to face time with their father in the manner prescribed in paragraph 9 of the Orders set out at the beginning of these Reasons. I reach this conclusion because I consider that such an Order allows the children the opportunity to spent time with their father in both Australia and Canada each year but also affords to them, each alternate year, the opportunity to enjoy a Christmas in the northern hemisphere. I also consider that it is in the children’s best interests, if they are spending time with their father in Canada during the Canadian Christmas school holidays, that they have an opportunity to spend time with their mother on Christmas Eve and Christmas Day morning at least every alternate year.

16. I order accordingly.

I certify that the preceding three hundred and fifty-five (355) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 14 June 2013.

Associate:  

Date:  14 June 2013