TOKELY & TOKELY (No.2)

[2018] FCCA 2712

FEDERAL CIRCUIT COURT OF AUSTRALIA

TOKELY & TOKELY (No.2) [2018] FCCA 2712

Catchwords:
FAMILY LAW – Children aged 14 & 11 – overseas travel – both parents (nationality omitted) citizens – mother seeks order enabling travel to (country omitted) – parties have poor and mistrustful relationship – assessment of risk of children not being returned to Australia – assessment of risk of deviation to non-Hague Convention country – best interests – matters to be considered.

Legislation:

Family Law Act 1975 (Cth), ss.60B; 60B(1); 60B(2); 60B(2)(b); 60CA;60CC; 60CC(2A); 60CC(2)(a); 60CC(3); 60CC(3)(1); 60CC(3)(b); 64B; 64B(2)(h); 64B(2)(i)

Cases cited:

Gin & Hing [2010] FamCA 617

Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729

Applicant: MR TOKELY

Respondent: MS TOKELY

File Number: ADC 86 of 2017

Judgment of: Judge Brown

Hearing date: 7 September 2018

Date of Last Submission: 7 September 2018

Delivered at: Adelaide

Delivered on: 28 September 2018

REPRESENTATION

Counsel for the Applicant: Mr Anderson

Solicitors for the Applicant: Andrew Hill & Co

Counsel for the Respondent: Mr Coates

Solicitors for the Respondent: Parry Coates Family Law

ORDERS

1. The children [X] born 2004 and [Y] born 2006 be removed from the Family Law Watch List.

2. The children are permitted to travel to countries that are signatories to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“The Hague Convention”).

3. That each party sign all documents required to ensure that the children have a current Australian and (nationality omitted) passport at the request of the other party and that the cost be shared equally by the parties.

4. That the parties provide 30 days written notice to the other party of their intention to travel with the children and a copy of the itinerary. 

5. The passports be retained by the mother and released to the father at his request upon compliance with paragraph 4 of these orders.

IT IS NOTED that publication of this judgment under the pseudonym Tokely & Tokely (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 86 of 2017

MR TOKELY

Applicant

And

MS TOKELY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a case concerned with overseas travel.  Mr Tokely “the father” and Ms Tokely “the mother” are the parents of [X] born 2004 and [Y] born 2006.  Currently, both children live with their mother in Brisbane.  Mr Tokely lives in Adelaide. 

2. Both Mr Tokely and Ms Tokely were born in the (country omitted), as were [X] and [Y].  They migrated to this country as a family at some time in 2012, originally settling in Adelaide.  Mr Tokely and Ms Tokely retain (nationality omitted) citizenship.

3. The parties met in (country omitted) in the early years of this century and married in that country on 2006.  Mr Tokely is 44 years of age; Ms Tokely is 41.  There is no dispute that they finally separated, in difficult circumstances, in January of 2015.  Separation occurred in Adelaide, when the father left the former family home.  At the time, the children attended primary school in suburban Adelaide. 

4. The circumstances of how [X] and [Y] came to be living with their mother in Brisbane were controversial and remain so.  They were the catalyst for Mr Tokely commencing these proceedings, which he did on 11 January 2017.  They were later extended to include matrimonial property proceedings.

5. Given the parties’ non Australian citizenship and the controversial circumstances surrounding the mother’s relocation of the children to Brisbane, an order was made placing [X] and [Y]’s name on the Airport Watch List, which is maintained by the Australian Federal Police at each point of international departure from Australia.  It prevents the children leaving Australia.  The order expires in January 2019.

6. I ruled on the relocation issue on 2 March 2017,[1] in the context of a truncated interim hearing, which precluded cross-examination.  The father’s case, at that stage, was that the relocation was unilateral and unauthorised.  He remains bitter at the implications of the move for his relationship with [X] and [Y]. 

   [1]  See Tokely & Tokely [2017] FCCA 638

7. The mother’s case is that, prior to her move to Brisbane, the relationship between father and children were strained and had been since April of 2016, when an “incident” occurred between [X] and his father.  This had led to a protracted process of mediation between the parties, during which the father had not spent time with the children concerned. 

8. It remains Ms Tokely’s case that, during the course of this mediation, she raised directly with Mr Tokely the possibility of her moving to Brisbane, where she had been offered employment.  It is also her case that she and Mr Tokely had originally planned to live in Brisbane, following their migration to Australia.  In this context, she asserts Mr Tokely provided her with his tacit agreement to move the children to Brisbane. 

9. It was Ms Tokely’s position, at the interim hearing stage, that she would be financially and emotionally disadvantaged if compelled to return to Adelaide.  She did not have employment in Adelaide and asserted that she was suffering from depression, which would necessarily be exacerbated, if she was compelled to move away from Brisbane and give up her job there, particularly given her position that the relationship between the children and their father was currently in abeyance. 

10. Mr Tokely had a radically different position.  He characterised the children’s move to Brisbane as high handed and unilateral on Ms Tokely’s part and empathically denied that he had been consulted about it.  From his perspective the mother had simply done what she wanted to do, without any consideration of his relationship with the children and then presented both him and the court with a fait accompli.

11. In my judgment, I characterised the matter as a difficult and complex case.  This is invariably the position in cases involving relocation.  Whatever happens, in such cases, one party invariably feels aggrieved.  They do not usually present any obvious solution, certainly not one which is acceptable to both parents concerned. 

12. In the interim judgment, I wrote as follows:

    “…I accept that there are elements of unilaterality in Ms Tokely’s behaviour.  I must be careful not to easily condone that action which, in public policy terms, has implications for other parents who may be considering moving a child or children far away from another parent. …

    On the other hand, I must consider the risks to these children of compelling their mother's unwilling return to Adelaide against the background of her diagnosed depression, and the difficulties she will experience on her return, particularly in a context where it is common ground that there is, at present, no relationship between the two boys and their father and, significantly, no proposal, other than in amorphous terms, as to how that relationship should be repaired. …

    … I also have to be careful about the potential for these two children to lose a relationship with their father which, in the longer term, may be significantly to their detriment.  Bearing all these factors in mind, I have come to the conclusion that it is appropriate that I adopt a cautious approach. 

    I am going to adjourn the proceedings for approximately three months, and in that period, order that a family report be prepared in the Brisbane Registry of the Court.”

13. Mr Tokely travelled to Brisbane to take part in the family report process.  The report in question was prepared by family consultant Ms E and released to the parties in August of 2017.  Ms E has not given any further evidence, in these proceedings, and accordingly, her professional opinion and the methodology underpinning it have not been subject to any scrutiny. 

14. Much of Ms E’s report centred on the incident of April 2016 between [X] and his father.  The essential issue being whether it was being a piece of rough play or an incident of family violence.  Ms E was unable to categorise the nature of the incident from the evidence available to her, which included an interview with each of the parties, as well as the children concerned.  Ms E also observed the children interact with both their father and mother.  The children’s relationship with each of their parents was described in positive terms by Ms E. 

15. It is apparent from reading Ms E’s report, that the relationship between the parties was frequently an unhappy one.  She opined that, if Ms Tokely’s evidence was accepted, Mr Tokely had occasioned acts of minor coercive controlling violence towards her and the children.  On the other hand, if Mr Tokely’s evidence was accepted there had been no such family violence between the parties and an incident of rough play had, on one occasion, got out of hand. 

16. Again, I must point out that I am not in a position to rule in respect of this controversy.  The parties themselves, whilst in conference with Ms E, discussed proposals whereby Mr Tokely could interact regularly with the children during school holidays.  Ms Tokely described these proposals as “very reasonable, more reasonable than mine”. 

17. In this context, Ms E reported as follows:

    “From information provided by Mr Tokely and Ms Tokely combined with my observations of them, it appears that they are willing to move forward from the past and are in the process of establishing a workable co-parenting relationship. They appear to recognise the other's value as a parent, as illustrated by their ability to describe each other's parenting strengths. They also appear equally committed to ensuring that the children have the opportunity to enjoy meaningful and unfettered relationships with them both, as suggested by them reaching agreement about parenting orders. Given the history of the parenting dispute there is significant mutual mistrust between Mr Tokely and Ms Tokely.”[3]

    [3] See family report dated 23 August 2017 at [75]

18. Following the release of the report, the parties, through their respective solicitors, engaged in a protracted process of negotiations, which also encompassed settlement of property issues between them.  In this context, the parties attended a financial mediation conference, with the court’s registrar, on 20 July 2017. 

19. On this occasion, they were able to reach substantial agreement in respect of the division of their property, particularly a piece of real estate in the (country omitted), which was apparently subject to foreclosure action.  At this stage, the children’s aspect of the case remained unresolved. 

20. In this context, on 6 November 2017, an order was made fixing the parties’ remaining applications for final hearing on 7 September 2018, although both their lawyers were sanguine about the prospects of the matter being resolved.

21. To their credit, on 26 July 2018, the parties were able to agree on the vast majority of issues in dispute between them.  It was agreed as follows:

    ·The parties were to be conferred with equal shared parental responsibility for [X] and [Y];

    ·The children were to continue to live with their mother in Brisbane;

    ·The children were to spend time, with their father, for half of each school holiday period, including at Christmas time;

    ·The parties were to share the costs involved in the children travelling, by air, between Adelaide and Brisbane;

    ·The children were to have regular Skype and Facetime communication with their father.

22. Around about this time, the amount of money to be provided to the mother, from the sale of the (country omitted) property was clarified and the property aspect of the case resolved.  It is apparent to me that the parties are not to be considered wealthy individuals.  As such, the burden of a final hearing, involving lawyers, was likely to have been beyond their means.

23. Given the resolution of the vast majority of matters in issue, it was not necessary for me to make any finding about the circumstances surrounding the mother’s departure from Adelaide – essentially deciding whether I believed the mother or the father, after seeing them being cross examined under oath. 

24. It is also not beyond the bounds of possibility that, even after such an exercise I would not have been able to determine the issue definitively as I may have ultimately decided that the relocation occurred as a consequence of deficits in the parties’ communication skills at the time.  It is, however, undoubtedly the case, that what happened has left a nasty taste in Mr Tokely’s mouth.

25. In these unhappy circumstances, one issue remains in dispute between the parties.  Ms Tokely wishes to be able to visit her family, in the (country omitted) with [X] and [Y] regularly, quite possibly as soon as the Christmas period of 2018/2019.  Mr Tokely does not agree.

26. Quite simply, he does not trust his former partner to return the children to Australia, given what occurred in December of 2016, when, on his case, the children were unilaterally relocated from Adelaide to Brisbane without any consultation with him and certainly without his permission.  He fears that the mother may, once again, act unilaterally in respect of the children’s living arrangements and decide to live with the children in the (country omitted), where she has significant ties.

27. In these circumstances, he seeks that the Airport Watch Order be extended for a further period of two years, during which period his relationship with the children, through the mechanism of the recently agreed consent orders, can be consolidated and strengthened.  In addition the children will be older and more autonomous and so more able to influence their own destinies.

28. In the alternative, he would want the court to impose a sizeable surety on the mother, which would provide her with a powerful incentive to return the children to Australia or alternatively fund him to institute proceedings overseas to secure the children’s repatriation to this country, which he consider his and their place of habitual residence.  He proposes a sum in the vicinity of $12,000.00.

29. Ms Tokely has recently lost her job in Brisbane.  She does not own real estate either in that city or anywhere else.  As such, she cannot be described as a wealthy person with easy access to significant funds.  It is also the submission of her lawyer, Mr Coates that she is fully aware of the consequence of disobeying court orders and is now much wiser, about many things, relating to legal proceedings concerning children than she was in 2016.

30. Most significantly, she points to the fact that the (country omitted) is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).  It is also a country which has a legal system analogous to the legal system in Australia – how could it be otherwise given the historical connection between the two – and is a modern and wealth democracy governed by the rule of law.  As such, its courts are capable of ensuring the (country omitted) adherence to its international treaty obligations.

31. These proceedings are directed towards resolving this dispute between the parties.  In order to save costs, it was agreed between the parties’ respective lawyers, that the case would be determined on the papers –   that is each party has filed an affidavit of their evidence on the issue but otherwise there would be no cross examination.  In addition, each lawyer concerned has prepared some written submissions, which each has spoken to.

Legal principles applicable

1. In my assessment, as with many matters involving children, which arise in myriad and idiosyncratic circumstances, it is a case of the court balancing potential risk, for the children concerned against the benefits which they may derive from a particular outcome. 

2. In this case, the benefits of the children travelling to a unique and historical country – the (country omitted) – with which they have strong personal connections – they were each born there – to spend time and holiday with relatives.  With the risk being that the mother’s promise to return them to Australia will be dishonoured with resulting chaos for all concerned and the possible disruption of the children’s relationship with their father.

3. It is impossible for anyone, including me, to predict the future.  Anyone who claim to be able to predict human nature, particularly in the volatile and labile area of family relationships is either naïve or misguided or quite possibly both.  However, it is possible for the court to make an educated guess, about such matters, after balancing the likelihood of particular outcomes in the context of the evidence available.

4. Life for any child cannot be made entirely risk free.  Even if it could, this might of itself have adverse consequences for the child concerned.  A completely anodyne life, without any challenges or new experiences, possibly formidable in nature, is likely to provide no life at all for that child. 

5. Accordingly, the risk from which the court is asked to protect the child must be appreciable in nature.  It cannot be trivial but rather must be of such moment that it would be irresponsible or generally unacceptable for the court to ignore the risk raised.  Accordingly, the court must undertake an assessment of the nature of the risk arising in the case concerned and put in place a response, which is commensurate to the risk so assessed. 

6. Risk is multi-faceted in nature.  There may also be risks arising of depriving the relevant child of some form of activity or engagement, including with a parent or relative, because of a heavy handed assessment of risk.  However, this exercise cannot be regarded as scientific in its nature.  It must depend on an idiosyncratic analysis of all the relevant circumstances, within the overall context of what is the best outcome for the child concerned.  Within this matrix, the court should not countenance any risk for the court which is unacceptable.   

7. As a consequence of its nature, humanity is capable of throwing up endless surprises and unanticipated aberrations from the norm of ordinary human behaviour.   As such, I cannot rule it as being impossible that Ms Tokely is not a person of her word and will dishonour any promise to return to Australia and, if she is able to leave this country will go to some country beyond the reach of the Hague Convention and so rob the children of a relationship with the father.

8. As Cronin J said in Gin & Hing:[4]

   “Decisions about international travel are difficult to make because no-one can foretell the future and the decision I have to make here amounts to a leap of faith. The Court determines discretionary matters within the framework of the evidence that it is presented.”

   [4]  Gin & Hing [2010] FamCA 617

9. Part VII is the part of the Family Law Act 1975, which deals with the law relating to arrangements for the care of children.  The chief means by which the court deals with such arrangements is through the making of a parenting order [Family Law Act section 64B].

10. Amongst other things, a parenting order may deal with any aspect of a child’s care, welfare and development or any aspect which relates to the exercise of parental responsibility for that child. 

11. Accordingly, the issue of whether the child concerned in this case should or should not travel to the (country omitted) (or indeed any other location outside of Australia) is capable of being the subject of a parenting order, particularly as the parents concerned in this case are unable to resolve the issue themselves [see section 64B(2)(h) & (i)].

12. The best interests of any child concerned are the paramount or most important consideration [section 60CA] in making any parenting order.  Fundamentally, the court must decide whether it is in [X] and [Y]’s best interest to travel outside of Australia.  Necessarily, given the structure of the Act, this is a multi-faceted inquiry.

1. At the commencement of Part VII is a list of aims and principles, which the court is directed to apply, to ensure that a child’s best interests are met through any orders it makes. The list of objects or aims of the legislation is set out in section 60B(1). They are as follows:

   “(a)   ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”

2. The principles, which underpin these objects, are set out in section 60B(2) and are as follows:

   “(a)   children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

3. In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.

4. There are two primary considerations – firstly the need to ensure that the children concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence. 

5. Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another.  They have been referred to, in a number of decisions of the Family Court, as twin pillars, the importance of which depends on the circumstance of the case concerned. 

6. However, as a result of the insertion of section 60CC(2A) into the Act the court is now directed, “in applying the primary considerations… to give greater weight to section 60CC(2)(b).”  This, of course, is the consideration dealing with abuse, neglect and family violence.  These considerations are now to be given priority.

7. The additional considerations are more numerous [section 60CC(3)].  Again, their application must depend on the particular circumstances of the case concerned. 

8. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore. 

9. The legal principles to do with a child travelling outside Australia, in the company of one of his or her parents, in circumstances where the other parent concerned opposes that travel, are complex.

10. Fundamentally, the court must determine whether the travel proposed is likely, on balance, to be in the child’s best interests according to the criteria specified in section 60CC, within the overall matrix of objects and principles set out in section 60B.

11. Necessarily this exercise must invoke the weighing and assessing of competing considerations and the balancing of the applicable section 60CC factors, both primary and additional.

12. In considering the overseas travel proposed, the court must obviously turn its mind to the potential impact the travel may have on the ability of the child concerned to have a meaningful relationship with the other of his or her parents [section 60CC(2)(a) & (3)(b)]. 

13. Clearly if a parent absconds with a child overseas, such an action must have the most serious implications for the nature of the relationship the child has with the parent left behind.  Such considerations raise the following practical issues and criteria:

    ·the length of the proposed stay out of the jurisdiction;

    ·the bona fides of the application;

    ·the effects on the child concerned of any deprivation of time spent with the parent who remains in Australia;

    ·any threats to the welfare of the child concerned by the circumstances of the proposed environment overseas;

    ·the degree of satisfaction which the court has that a promise made by a party to return to Australia will in fact be honoured.[5]

    [5]  See Kuebler & Kuebler (1978) FLC 90-434 at page 72,205

14. Fundamentally, the court must also make some assessment of whether there is any risk that the child concerned will not be returned to Australia, in spite of undertakings to the contrary.  Obviously, such a possibility has potentially very serious ramifications for the child concerned.  It may result in the severance of his or her relationship with one aspect of his or her family. 

15. In Line & Line the Full Court of the Family Court indicated that there are a range of circumstances which the court should take into account in assessing the degree of risk that a travelling parent will not return any child concerned to Australia.  These factors include the following:

    ·the existence (or otherwise) of continuing ties between the departing parent and Australia, such as the ownership of real property; the existence of business interest; or the residence of family or close friends in the country;

    ·the existence and strength of possible motives not to return, which included the level of conflict between the parties concerned, particularly over child related issues;

    ·the existence and strength of possible motives to remain in the country of proposed travel, again including such things as possession of property; business interests; and the existence of familial and personal ties.

16. In such circumstances, the court is required to consider whether it is appropriate to impose conditions or impose securities to ensure the return of the child concerned to Australia.  In determining whether some form of security should be imposed, the court is directed to consider the following factors:

    ·in fixing the sum of money as security, whether the sum is such as to realistically entice the person removing the child to return to Australia and also to adequately provision the party remaining in Australia to take action for the return of the child, if necessary.  

    ·the degree of risk that the departing parent will not return to Australia.

    ·whether the country of travel is a signatory to the Hague Convention and the likelihood of deviation to a non-convention country.

    ·the financial circumstances of both parties and any hardship to either party if the level of security is increased or decreased.[6]

    [6]  See Line & Line (1997) FLC 92-729 at 83,846

A summary of each party’s evidence and conclusions

1. It is Ms Tokely’s case that she is particularly close to her extended family, who live in the (country omitted).  This family includes her parents; her sisters; her aunts; and uncle; and cousins.  As a consequence of these relationships, [X] and [Y] have numerous cousins who live in (country omitted). 

2. In addition, the children have a number of paternal relatives who also live in (country omitted).  They include their paternal grandmother and uncles and aunts and again numerous cousins.  It appears to be uncontroversial that, apart from their parents, the children have no relatives living in Australia.  This is a significant plank of Mr Tokely’s case.  He contends that Ms Tokely has no close ties in Australia and every incentive to return to the (country omitted).

3. Ms Tokely has deposed that she is particularly close to her mother and remains on cordial terms with the children’s paternal grandmother.  It is her further evidence that she talks to her mother, over the telephone, almost daily and the children remain in contact with her through regular video connections.  She deposes that she and the children also contact the paternal grandmother via telephone every four to six weeks. 

4. Accordingly, it is Ms Tokely’s evidence, which I accept, that she has warm relationships with her family based in the (country omitted), which the children share.  In addition, these relationships extend to members of their paternal family, particularly their paternal grandmother.  In this context, it is Ms Tokely’s evidence that her parents have visited Australia regularly between mid-2016 and mid-2018. 

5. It is the mother’s case that Christmas is a significant event for her and her family, which has not celebrated Christmas together for the past seven years.  In these circumstances, she would wish for [X] and [Y] to spend Christmas with their family in (country omitted).  It is her case that the children would like to spend Christmas in the (country omitted), which would be very special for them. 

6. The father’s case does not focus on any benefits potentially arising for the children from spending time in the (country omitted).  Rather, his evidence is centred on the largely negative view which he has formed of the mother’s character. 

7. He characterises her as a dishonest person, who has actively deceived him and been intent of depriving him of being “an active paternal role model in the children’s lives.”  In all these circumstances, he characterises the level of communication between him and the mother as being extremely poor.  He asserts that Ms Tokely is not child focussed.

8. Mr Tokely concedes his former partner gets on very well with both her own mother and also his.  He believes that they and other family members would encourage the mother to remain in the (country omitted), which is where Ms Tokely would also prefer to be, if she was honest with both him and the court. 

9. He also asserts that she would extremely easy for the mother to disappear in the (country omitted).  However, in my view, he has provided no evidentiary basis for this blunt assertion.  I accept, however, his evidence that the mother is likely to be able to access many forms of cheap accommodation through her large family, who are likely to be supportive of the possibility of her remaining permanently in the (country omitted).  As such I accept that there are many powerful pull factors at work on Ms Tokely in respect of the (country omitted).

10. In the event Ms Tokely did dishonour an undertaking to return to Australia, she would still have to support herself and no doubt operate a bank account and make herself known to relevant authorities within the (country omitted).  [X] and [Y] would have to go to school.  As such she is likely to leave a large documentary footprint of any activities undertaken by her in the (country omitted), which are likely to reveal her address.  The (country omitted) is an advanced democracy and economy, which utilises all the digital wizardry available in the modern world.  To access services, both government and private, it is frequently necessary for an individual to prove who he or she is.

11. In this context, I must make some sort of assessment of the likely aptitude of Ms Tokely to adopt a clandestine lifestyle, which would allow her to fly under the radar.  She would have to assume a false identity, quite possibly, to do so.   In order to open a bank account or sign a lease she would have to produce false documents.  I accept others may be inclined to help her but it seems improbable that she would be able to receive total financial support from some supportive relative ad infinitum.

12. Ms Tokely is a (occupation omitted) by profession.  There is no indication that she has ever been involved in any dishonest activities.  In my estimation, she does not have either the aptitude or the resources to simply disappear without trace within a large market economy such as the (country omitted).  Her life is one of convention rather than of deception.  In my assessment, the risk of Ms Tokely disappearing in the (country omitted) is slight.

13. Mr Tokely may consider it otherwise.  However, when Ms Tokely moved to Brisbane, she was easily located and served with the father’s application.  Thereafter she took part in proceedings.  In these circumstances, there is some thrust to Mr Coates’ submission that she is aware that she is not in a position to cavalierly disobey court orders in future and, if she did, nemesis would follow.

14. It is trite but still true that the most useful predictor of what will happen in the future is what has happened in the past.  In this case, the mother and children travelled to the (country omitted) in July 2016 for a four week holiday.  They returned to Australia without incident.  This is a significant factor and buttresses the mother’s evidence that she sees her and the children’s future lives in Australia rather than the (country omitted).

15. I must also assess the risk of Ms Tokely divert to a non-Hague country to evade detection and possible return to Australia.  Mr Tokely does not suggest Ms Tokely has connections in such a country.  His case is based on the powerful emotional incentives likely to be at work on Ms Tokely, which draw her to the (country omitted).  In these circumstances, it would defeat the object of moving overseas, if she could not be in the country of her preference.  Again, I think the risk of this occurring is not of an unacceptable level of magnitude.

16. Ms Tokely has deposed that she enjoys a superior standard of life in Brisbane than she would in (country omitted).  She is now an Australian citizen.  She has obtained (occupation omitted) registration in this country and is about to start a (qualifications omitted).  It is her position that the children are well settled in Brisbane and she personally has formed friends in that city, including a romantic one.  I appreciate none of this evidence has been subject to formal scrutiny but also note that Mr Tokely is not in a position to rebut it. 

17. In these circumstances, it seems axiomatic that [X] and [Y] are likely to be well settled into their life in Brisbane.  Indeed, to some extent Mr Tokely has indicated his acceptance of this situation by his willingness to ratify the consent orders which formalise this outcome.  The question arising for the court is whether Ms Tokely is the sort of parent who would willingly disrupt the children’s lives by uprooting them from these stable arrangements in order to satisfy her own emotional needs.

18. The father would assert in the affirmative, given how he has categorised Ms Tokely’s relocation of the children to Brisbane.  The mother would say that she is not.  On balance, I consider that the mother has reasonably significant ties to Australia, which would militate against her unilateral relocation of the children to the (country omitted). 

19. I also do not find her to be the sort of emotionally needy parent who would place her own desires above those of the children.  There is no evidence that she has actively prevented the father from spending regular time with the children, notwithstanding the mistrust between them and the logistical problems arising from the distance between Brisbane and Adelaide.

20. More significantly, the (country omitted) is a signatory to the Hague Convention with an efficient and unimpeachable legal system.  The evidence indicates that Australia has been the children’s habitual place of residence since 2011 and there are orders in place, from an Australian court, regulating arrangements for their care, particularly in respect of the time which they spend with their father.

21. This state of affairs is both likely to be a strong disincentive to the mother to engage unilaterally in an international relocation of the children and, if she did, secure the children’s return to Australia.  I consider the risk of the mother deviating to a Non Hague Convention country to be slight.  In addition, although it may be no consolation to the father, I accept that the mother has no form of surety to put up to mollify the father’s concerns.

22. Having made my assessment of the risks arising from the travel proposed by the mother, I must now consider the possible benefits, for the children, of such travel, according to the relevant criteria outlined in section 60CC of the Act.

23. It is clear to me that [X] and [Y] have a close relationship with each of their parents.  It is also apparent that, notwithstanding the distance between Australia and the (country omitted), they have been able to maintain relations with members of their wider family, on both its paternal and maternal aspects in the (country omitted), particularly both of their grandmothers. 

24. This is important. The significance of grandparents, for children, is recognised in the principles underlying the Act [see section 60B(2)(b)] and falls within an additional consideration [see section 60CC(3)(b)]. Grandparents are able to provide children with intergenerational information about their family and give them an idea of where they fit in within the wider family. [7]  They are also a source of love for children, provided from a different perspective to that of their parents.

    [7]   See Bright v Bright (1995) FLC 92-570

25. Accordingly, in my view, there are likely to be significant benefits accruing to [X] and [Y] if they are able to inter-act directly with family members based in the (country omitted).  In addition, although the (country omitted) and Australia share many aspects of a common culture, particularly in terms of the language spoken and societal norms, they remain significantly different countries.

26. In these circumstances, in my view it will be of benefit to the children to experience life in (country omitted), particularly as it is the country in which they both originated.  [X], in particular, is likely to have independent memories of his life there before his migration to Australia.  It will be interesting for him to contrast his memories with his more contemporary experiences.  In addition, (country omitted) is a country with a long history, where many things are done differently to how they are done in Australia.

27. The historical and cultural content implicit in the experience of travelling overseas, even to a country very similar to Australia, has the potential to widen a child’s cultural and societal horizons.  It will enable [X] and [Y] to be exposed to a very different social setting to that in which they normally lives, in suburban Brisbane and can be summed up by the aphorism “travel broadens the mind”. 

28. In assessing a child’s best interest, I am directed to consider the particular background of the child concerned, which is taken to include the lifestyle, culture and traditions and any relevant characteristic of both the child and his/her parents [section 60CC(3)(g)].

29. Cultural background is important to children.  It provides them with a sense of identity.  Identity very often comes from a child knowing relatives, on both the paternal and maternal aspects of his or her family and placing those relatives within a cultural context.  In addition, overseas travel, particularly to meet family, can be a rich experience for a child, the memory of which can last a life time. 

30. Accordingly, I have reached the conclusion that the children are likely to derive significant benefits from being able to travel overseas, to the (country omitted) with their mother.

Conclusions

1. Ms Tokely seeks to travel to the (country omitted) in the forthcoming Christmas school holidays for a period of three weeks.  The proposed trip will disrupt neither the children’s schooling nor their regular time with their father.

1. In these circumstances, she seeks the removal of the children’s names from the Airport Watch List and a generic order that [X] and [Y] be permitted to travel to Hague Convention countries only.  She also seeks procedural orders that would mandate the parties ensuring the children have both Australian and (nationality omitted) current passports by completing the necessary forms for same.

2. These orders seem to me to be sensible ones.  I do not consider it would be in the interests of the children for each future incident of their travel overseas to be subject to judicial oversight and potentially further parental conflict involving the incurring of more legal costs.  This will only intensify the conflict between the parties, to the children’s emotional detriment. 

3. As one of its obligations, arising under section 60CC(3)(l), the court is required to consider making orders which would be least likely to lead to the institution of further proceedings.  In my assessment, determining the issue of overseas travel, at this stage, and confining it to only Hague Convention countries will achieve such an objective. 

4. I will also make an order that, in the event of any overseas travel by either party, such a party provide the other with a detailed itinerary, which is to include flight numbers and times of departure and arrival, together with addresses and contact details, for the children, whilst they are overseas.

5. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     28 September 2018

[2] Ibid at [68]-[71]