Wadhams and Sage
[2011] FMCAfam 590
•21 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WADHAMS & SAGE | [2011] FMCAfam 590 |
| FAMILY LAW – Children – parenting orders – best interests of the children – parental responsibility – equal shared parental responsibility – substantial and significant time – time spent with the father – whether children should travel to Belgium for father’s wedding. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65AA, 65DAA, 111B Family Law (Child Abduction Convention) Regulations 1986, Sch. 2 |
| Line & Line (1997) FLC 92-729 |
| Applicant: | MR WADHAMS |
| Respondent: | MS SAGE |
| File Number: | PAC 4790 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 22 & 23 February 2011 |
| Date of Last Submission: | 3 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Kennedy |
| Solicitors for the Applicant: | Barkus Doolan Kelly |
| Counsel for the Respondent: | Ms Sloane |
| Solicitors for the Respondent: | East West Lawyers |
ORDERS
The children [X] born [in] 2000, [Y] born [in] 2001 and [Z] born [in] 2001 are to spend time with the Applicant father during school term time each fortnight from after school on Thursday afternoon until the commencement of school on the following Tuesday morning.
The time that the children spend with the father in Order (1) above is not to coincide with the weekend that the children’s half brother [B] spends with the mother each fortnight.
IT IS NOTED that publication of this judgment under the pseudonym Wadhams & Sage is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 4790 of 2007
| MR WADHAMS |
Applicant
And
| MS SAGE |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father of three children, [X], aged 11, and [Z] and [Y], both aged 10 years. The three children live with their mother, the Respondent.
To their credit, the parties have agreed to a number of major issues concerning the children. There are only two issues outstanding.
Areas of Agreement
The parties entered into Consent Orders in this Court on 23rd February 2011. They have agreed on the following issues:
(1)That they should have equal shared parental responsibility for the three children;
(2)That each parent will have responsibility for making decisions about non major long term issues when the children are in the care of that parent;
(3)That the children should live with the father at these times:
(a) Half of the school holidays;
b)From 12 noon on Christmas Day until 6:00 pm on Boxing Day;
c)On Father’s Day;
d)On the father’s birthday; and
e)At other times as agreed.
(4)That the children will be with their mother on Mother’s Day and on her birthday;
(5)The father will collect the children from school and return them to school, where appropriate, and otherwise the mother will deliver the children to the father’s residence and he will return them to her residence.
(6)The parties will notify each other about matters concerning the children, including:
(a)illness or injury;
(b)change of address or telephone number;
(c)the address and telephone number of places where the children will stay during holidays;
(d)the names and addresses of all treating medical professionals; and
(e)any non-emergency medical appointments.
(7)The mother will authorise the children’s school to provide the father with school reports, newsletters and other documents pertaining to the children’s education;
(8)If one party is not able to care for the children the other party must be given first option to look after them; and
(9)The parties authorise the other to obtain information about the children’s medical treatment.
Matters in Issue
There are only two issues outstanding:
a)The amount of time that the children will spend with their father during each school term; and
b)Whether or not the children should travel to Belgium for their father’s wedding in October 2011.
Background
The father was born [in] 1972. He is now 39 years old.
The mother was born [in] 1976. She is now 35 years old.
The parties commenced living together in July of 1998.
The parties’ daughter [X] was born [in] 2000. She is now eleven years old. The two boys, [Z] and [Y], were born [in] 2001. They are now ten years old.
The family lived in the Netherlands from June 2002 to July 2004. During that time, the father and the mother were married, [in] 2003.
After the family returned to Australia in 2004, the mother and the children stayed in Australia and the father went back to the Netherlands from August to December of that year.
The parties separated in January 2005 and the father returned to the Netherlands.
The father commenced a relationship with a Belgian lady, Ms V, in May 2005. The father and Ms V travelled to Australia in January and December 2006 to visit the children. They relocated permanently to Australia in August 2007.
The mother commenced a relationship with a man named Mr M in April 2006. They purchased a house in [suburb omitted] and commenced living there together in October 2007.
The mother and father were divorced on 23rd November 2007.
The parties reached agreement about the children spending time with the father on a regular basis. They attended mediation and reached agreement about a two week cycle of time with the father, plus half of the school holidays. The parties further agreed that the children would also spend alternate Friday evenings with the father but the mother reversed that decision in August 2009.
The mother and Mr M have a child of their own, a little girl named [A] who was born [in] 2011.
The father commenced proceedings by filing an application for parenting orders on 16th March 2010.
On 24th May 2010 the parties were ordered to attend a Child Dispute Conference with a Family Consultant under s.11F of the Family Law Act 1975. They attended a Child Dispute Conference in 27th May 2010, where the Family Consultant noted that the children were described as having learning difficulties and the boy [Z] was seeing a paediatrician for anxiety problems.[1]
[1] Family Consultant Memorandum to Court 27.5.2010
The parties attended a Child Inclusive Child Dispute Conference on 28th June 2010. The Family Consultant noted that the father was seeking more or less equal time with the children and the mother sought that the current four nights a fortnight arrangement should remain. The Family Consultant also noted that the twins had ADHD (Attention Deficit Hyperactivity Disorder) and that the parties had differing views about the efficacy of managing their condition with medication.
A Family Report was prepared for the purposes of the final hearing. The Family Consultant who prepared the Report, Mr L, was the same Family Consultant who had seen the parties at the Child Dispute Conferences in 2010.
The Family Report
For the purposes of preparing the Family Report, the Family Consultant interviewed:
a)the father;
b)the mother;
c)the child [X];
d)the child [Z];
e)the child [Y];
f)Ms V; and
g)Mr M.
The Family Consultant noted that neither parent was particularly critical of the other’s parenting. They have a civil relationship with each other and their respective partners have cordial relationships with each other and with the other parent. Further:
It is also noted that, during the report interviews, the parents were able to resolve some issues, misunderstandings and misperceptions with comparative ease.[2]
[2] Family Report at page 4 [11]
The mother told the Family Consultant she felt increasingly “redundant” as a mother because of the extra amount of time that the children spent with their father.[3] She told the Family Consultant that she has a son by an earlier relationship, who lives with his father. The Family Report mistakenly gives his name as “[omitted]” (which is the father’s name) but the Court was told that his name is actually “[B]”. [B] is now 14 years of age. He is referred to in the mother’s affidavit sworn on 27th April 2010.
[3] Ibid at 4[13]
The mother told the Family Consultant that [B] lives with his father and spends time with her on alternate weekends and most of the school holidays. She said that the other children have a close and affectionate relationship with him but they do not spend as much time with him as they would like to, because the weekend they spend with their father coincides with the weekend that [B] spends with her. This means that they only see him on Friday nights once a fortnight.[4]
[4] Family Report at 4 [14]
The father told the Family Consultant that, whilst he does not have significant concerns about the mother’s parenting, he has a different style in that:
a)he places a greater emphasis on predictability and structure in terms of daily household routines;
b)he has clearer expectations in terms of manners; and
c)he has a more definite approach to the children’s homework.
In particular, the Family Consultant noted that the father is concerned that the children are not reaching their educational potential:
He feels that he could have a more effective input into their educational needs if he were to spend more time with them each week.[5]
[5] Ibid at 6 [21]
The Family Consultant interviewed Ms V, who said that she had an affectionate and enjoyable relationship with the children.
There is no mention in the Family Report of the interview with the mother’s partner, Mr M.
The Family Consultant interviewed the parties’ daughter [X]. She told him that whether or not she spent an extra night each week with her father did not “really bother her” but coming to Court did. She feels more comfortable with her father and Ms V than she used to and liked her father being involved with her homework.
The twin boys, [Y] and [Z], were interviewed together and separately. They were ill at ease, self conscious and monosyllabic. The Family Consultant stated that:
The only consistent themes to emerge from their interviews was that they both find the prospect of any change to their daily routines anxiety inducing and both would like to spend more time with ([B]).[6]
[6] Family Report at 9 [32]
The Family consultant noted that both the boys had learning difficulties, problems with anxiety and compromised self esteem. He said:
For the most part, children with these types of special needs usually benefit from parenting arrangements that they experience as stable and predictable. Self evidently these criteria would be more likely to be satisfied if [Z] and [Y] were to live primarily in one home so that the patterns and routines of their daily lives remain much the same from one day to the next.[7]
[7] Ibid at 9 [33]
For this reason, the Family Consultant did not support an approximately equal time arrangement with each parent, especially one that involved four changes of residence each fortnight, as it would be inconsistent with the boys’ emotional and developmental needs.
The Family Consultant did not consider it to be suitable for [X] to move between her parents’ homes twice each week.
The Family Report suggest that the children’s immediate and longer term needs would be met by parenting arrangements that:
·are predictable
·minimise the number of transfers between homes
·are likely to endure over time
·allow for both parents to be substantially involved in the children’s lives
·give the children a sense of having a primary residence.
The suggested arrangement would be one where the children live with their mother and spend substantial and significant time with their father in block periods each fortnight, such as one where the children lived primarily with the mother and spent time with the father from after school Thursday until before school Monday each fortnight, on the weekend that their half brother was not spending time with his mother.
Evidence
The father and the mother both gave oral evidence. Although their respective partners, Ms V and Mr M had provided affidavits, neither was required for cross examination.
The father said that he had read the Family Report and did not agree with the Family Consultant’s recommendation. His proposal is to phase in a second Tuesday in each fortnight to commence in Term 3.
The father said that the children would only need to carry their schoolbooks. He and their mother could deliver their clothes to each other’s residence. He also said that he wanted the children to go to Little Athletics on a Saturday morning from 8:30 until about midday.
In cross-examination, the father said that he would like to take the children overseas. He did not speak to the Family Consultant about his proposed wedding in Belgium later in the year. He proposes to take the children to Belgium in October for about three or four weeks, which would include their attending the wedding.
The father said that whilst the children were with him he would arrange for them to have private tutoring, at his expense. He admitted that he had not made inquiries about the cost.
The father said that he had not spoken to the mother about high school for the children, although he was aware that [X] would be commencing high school in 2012. He proposed that the two boys would attend the same school as their sister. He had not made any inquiries about what high schools [X]’s primary school friends would be attending in 2010. He said that the mother had not made any proposal about high schools to him.
The mother gave evidence that she had not enrolled [X] in a high school at that stage. The mother said that [X] had a learning disability. She had told the Family consultant that the boy [Z] was more prone to anxiety and low self esteem because of his learning disabilities.
The mother said that she was opposed to the children spending a second Tuesday each fortnight with their father, but not because of any concerns about Child Support. In answer to a question from the Bench, she said that she opposed it because it was an extra day, and she was still getting feedback as a mother that the children did not want to go to their father for an extra day.
The mother also said that the children were enjoying spending time with their new sister, [A]. She said that they had a good relationship with their brother [B]. He spends alternate weekends with her, from Friday evenings until Monday mornings.
The mother was asked about the children attending their father’s wedding. She said that whilst she was happy in principle for the children to attend their father’s wedding, she did not wish the children to travel overseas until they were attending high school. The mother said she was not happy about the children going to the wedding in Belgium in October, because she was concerned that the father may not bring them back. The mother’s answers appeared to be somewhat contradictory.
The Family Consultant, Mr L, was required for cross-examination. When asked about the father’s proposal to pay for private tutoring for the children, to which the mother had agreed, he said that commonsense would suggest that this should be done in consultation with the children’s treating physician.
Mr L emphasised that the children would benefit from as predictable a routine as possible, and one that endures for as long as possible.
In answer to questions from the mother’s counsel about the suggestion for a block period of time with the father, Mr L said that whether the block period was four days or five days was a marginal consideration. The children would still have a sense of their primary residence. A 6:8 split between the parents was heading towards equal time and would involve more school days. Mr L said that a 7:5 split between the parents each fortnight was more consistent with promoting the children’s development needs.
Submissions and Orders Sought
Counsel for the mother noted that the children were currently spending four nights per fortnight with the father, from 9:00 am on Saturday until 9:00 am on Tuesday in one week and from after school on Monday in the second week until 9:00 am on the Tuesday.
It was submitted that the mother seeks orders that the children should spend five nights per fortnight with the father, either:
a)From Saturday morning until Tuesday morning in one week and from Monday afternoon to Wednesday morning the following week; or
b)A five night block with the father each fortnight.
As to the other issue, whether the children should travel overseas for the father’s wedding, the mother submits that she has concerns that the father has ties overseas, and, as the mother said in her evidence, she has fears that the children may not be returned to her.
The parties had agreed, on the day of the interviews for the Family Report, that each child would be permitted to travel overseas with the father once he or she commenced high school. The mother felt that, once the children reached high school age, they would not only be older but more able to cope with being overseas and more able to contact her in case of any difficulties.
It was further submitted that, in terms of the primary considerations under s.60CC(2) of the Family Law Act 1975, the mother acknowledged the benefit to the children of having a meaningful relationship with both of their parents and conceded that there were no allegations of harm to the children by either party.
The mother’s submissions as to the additional considerations under subsection 60CC(3) of the Act were that:
a)[X] advised the Family Consultant that it did not bother her whether or not she spent an extra night with her father, but the only themes to emerge from the interviews with [Z] and [Y] were that:
i)They found the prospect of change to their daily routine anxiety inducing; and
ii)They would like to spend more time with their half brother [B];
b)The children have a good relationship with each of their parents, and with their half siblings, [B] and [A] (who was born in January 2011);
c)The mother has a willingness and ability to facilitate and encourage a close and continuing relationship between children and the father;
d)Whilst it was conceded that the likely effect of any change by way of extra time with the father would be unlikely to bother [X], the effect would be greater on the two boys, who have special needs as a result of their ADHD and their anxiety;
e)Children with special needs usually benefit from parenting arrangements that they experience as stable and predictable;
f)The mother’s proposal would result in minimal change to the children’s current regime;
g)If the Court were to find that a block period of time was a preferable order in the best interests of the children, then the alternative orders proposed by the mother, namely a 5 night block each fortnight, would be appropriate;
h)The father’s proposal would constitute an approximately equal time arrangement and would be inconsistent with the boys’ emotional and developmental needs, and was not favoured by the Family Consultant;
i)Neither party has raised any issue of practical difficulty and expense of a child spending time with either parent, as they live only 20 or 30 minutes away by car;
j)Although they have different approaches to parenting, neither party is particularly critical of the other’s parenting capacity;
k)Whilst [X] appeared to the Family Consultant to be a happy, socially confident and engaging child, [Z] and [Y] have special needs which include anxiety, compromised self-esteem and learning difficulties;
l)The special needs of [Z] and [Y] would make it difficult to predict when any change would be appropriate, so it would not be preferable to make orders phasing in change over specified times;
m)Major long-term decisions, such as where to enrol [X] for High School, remain unresolved; and
n)As to travelling overseas for the father’s wedding in October, it is submitted that each child be permitted to travel overseas with the father when he or she commence High School.
Whilst the parties were to provide written submissions within fourteen days, for some reason the submissions by counsel for the father were not received until Friday 3rd June 2011, after an inquiry was made by my Associate. It is possible that the submission was in fact forwarded earlier but was misplaced or misfiled.
The submissions have now been received and will be considered.
The father proposes that during school term time the children should live with him:
a)In Week 1 of each fortnight, from Saturday at 9:00 am until the commencement of school the following Wednesday morning; and
b)In Week 2 of the fortnight, from Monday after school until the commencement of school the following Wednesday morning.
Counsel for the father submitted that the mother’s opposition to the father’s proposal to take the children to Belgium for the wedding in September or October had no logical basis. The mother had expressed concern that the father may try to retain them in Belgium, but that she had agreed to their travelling once they were older. It was submitted that the mother’s evidence in this regard was inconsistent with much of her earlier evidence about the children’s relationship with their father.
As to the Family Report and the Family Consultant’s evidence, Ms Kennedy of counsel, who appeared for the father, submitted that the Family Consultant had based his recommendations on a hypothetical family rather than this particular family and had not discussed his recommendations with the parents. The Family consultant was untroubled by the thought of the children spending 4 or 5 days with their father. The boys, especially [Z], would benefit from improving their academic performance.
It was further submitted that an additional day and night with the father would further the children’s relationship with him. Both parents agreed that the father’s proposal for the children to be tutored on a Tuesday night would assist the children’s learning and social issues. Their self esteem and social skills had improved as a result of their spending more time with their father. The children also have a positive relationship with Ms V.
The child [X] has expressed the opinion that she likes her father being involved in her homework. She understands and appreciates the benefits of her father’s input into her homework.
The mother has made positive comments about the effect on the children of their increased time with their father.
The area of dispute between the parents involves some 20 nights per year. The parents are prepared to accept recommendations about how best to support the children with changes in their lives.
It was further submitted that the parties’ evidence was that the children were thriving in the father’s household in terms of their homework and schoolwork. The mother has had difficulty with the children’s homework and the father’s capacity to support the children’s homework.
The father wishes to take the children to Belgium for his wedding, and it would be in the children’s best interests to attend. The mother did not offer a plausible reason for the children not attending the wedding. Belgium is a signatory to the Hague convention on international child abduction. It was submitted that there was no logic to the mother’s opposition when she had asserted that it would be appropriate for the children to travel overseas in approximately two years’ time, when they will be of High School age.
The Relevant Law
Section 60CA of the Family Law Act 1975 provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (see also s.65AA). The Court determines what is in a child’s best interest by having regard to the primary considerations in s.60CC(2) and the additional considerations in s.60CC(3) of the Act.
The Court must also consider the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent (see subsection 60(CC)(4)) and have regard to events that have happened and circumstances that have existed since the parents separated (see subsection 60CC(4A)).
The Court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3) of s.60CC (see s.60CC(5)).
I have considered all of the matters in s.60CC, including when making the orders by consent.
Section 61DA of the Act requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of the child or children concerned for the parents to have equal shared parental responsibility.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, subsection 65DAA(1) requires the Court to consider:
a)whether the child spending equal time with each parent would be in the child’s best interests; and
b)whether such an arrangement would be reasonably practicable.
If the Court does not make an order for equal time with each parent, the Court is required by subsection 65DAA(2) to consider:
a)whether it would be in the best interests of the child to spend substantial and significant time with each parent; and\
b)whether such an arrangement would be reasonably practicable.
I have considered all of the matters in ss.61DA and 65DAA.
Conclusions
This is a case where the parties are able to have a sensible and civilised discussion about their children but are unable to agree about a couple of issues. Neither party alleges that the other is a bad parent, far from it, but they agree that they have different parenting styles. It is to their great credit that they have already consented to Orders that are intended to be in their children’s best interests.
There are several issues that emerge very clearly from the evidence:
a)The father wants to spend more time with the children.
b)The children have benefited from the father’s active interest in their schoolwork and spending time with him generally
c)The two boys have learning difficulties, anxiety and low self esteem.
d)The boys in particular have a need for a well-defined routine without significant change.
e)All three children have a good relationship with their older half brother [B] and want to spend more time with him.
f)The children have a younger half sister, [A], who is just a baby.
g)The mother has felt “redundant” as a parent because of the extra time the children have been spending with their father[8] and appears threatened by the idea of the father taking the children to Belgium for a holiday, fearing that they may not return.
[8] Family Report page 4 [13]
The best interests of the children are the paramount consideration. This means that the Court will make orders for their benefit, based on the evidence, rather than necessarily following the wishes of one or other of the parents. However, the wishes of the parents are relevant and should be considered.
It is clear that the children have a meaningful relationship with each parent. There is no evidence of any risk of physical or psychological harm to the children in the care of either parent.
[X] has expressed the opinion that spending another day a fortnight would not bother her and she appreciates her father’s assistance with her homework.
The two boys are in a somewhat different position. They appear to be apprehensive about any change to their daily routine anxiety producing and they would both like to spend more time with [B].[9]
[9] Family Report 9 [32]
The children’s relationships with each parent are good, and they appear to have good relationships with their parents’ partners, Ms V and
Mr M.
The parties do not criticise each other’s parenting and the mother has acknowledged that the children have benefited from spending time with their father.
The likely effect of a change to the children’s circumstances of a change to the arrangements is one of the important issues in this case. Whilst [X] appears to be reasonably resilient, the two boys appear to be more vulnerable to the effects of change. The children seem to have benefited from spending more time with their father, and it would seem that some sort of an increase of time may also be beneficial.
There is no practical difficulty or any particular expense involved in the children spending time with one or other parent, as they live in suburbs of Sydney that are only about 20 or 30 minutes away by car.
Although their parenting styles may differ, both parents appear to have the capacity to provide for the children’s needs.
The eldest child, [X], was born [in] 2000. She is therefore eleven years and four months old. The two boys, [Z] and [Y], were born [in] 2001. They are ten years and three months old. [Z] and [Y] have learning difficulties, especially [Z]. The boys have Attention Deficit Hyperactivity Disorder.
The parents have a positive attitude to the responsibilities of parenthood.
There are no family violence issues or any family violence orders in existence.
The best interests of the children would indicate that the Court should make the orders least likely to lead to the institution of further proceedings in relation to the child. The children are aware of the proceedings between their parents and [X] has told the Family Consultant that spending an extra night each week with her father did not really bother her but coming to Court did.[10]
[10] Family Report 8 [29]
It is relevant that both parents have formed new relationships. The children appear to have a good relationship with Mr M and Ms V. As a result of the mother’s new relationship, she now has a new baby, [A], who is a half sister to the children.
In ascertaining the orders to be made that would meet the children’s best interests, the Court is mindful of the recommendations of the Family Counsellor in the Family Report and in his oral evidence, but the Family Counsellor does not decide the case, the Court does. That said, I am not persuaded that the father’s criticisms of the Family Report are entirely justified.
The father submits that the Family Consultant based his recommendations on a hypothetical family and not this family. That assertion is not borne out by the evidence.
Whether it is in the Children’s Best Interests to Spend More Time with the Father
The evidence supports the view that the children would benefit from spending more time each fortnight with their father.
They currently spend four nights a fortnight with him, from 9:00 am on Saturday to 9:00 am on Tuesday in one week and then from after school on Monday until before school on the Tuesday. On balance, the children appeared to have benefited from spending this time with him and his fiancée. They do not seem to have any difficulty in coping with their parents’ differing parenting styles, and this has no doubt been helped by the fact that the parents themselves accept that they have different styles.
Their school work and home work have improved and [X] has said that she likes her father’s input into her homework. The father will pay for tutoring for the children, which should assist them academically and boost the boys’ self esteem.
The parents have agreed to equal shared parental responsibility, but it does not follow that the children should spend equal time with each parent. I am not satisfied that this would be in the children’s best interests, and such an arrangement may increase the boys’ anxiety. It would be, in my view, too radical a change to make. The children should have a primary residence, and the mother’s home is the appropriate venue. It is where their half siblings [A] and [B] will be.
It would appear to be preferable that the children spend a block of time with their father each fortnight, rather than two separate periods of time. This should be for five days and five nights, so that the children could settle firmly into the routine of one household before going back to the other. It should include a Friday night, but not the same Friday night as [B] spends at his mother’s home.
The children should have one Friday in each household after school, where they can relax after the school week and tell each parent the news of school. The father’s routine of “pizza night” on a Friday night, as set out in his affidavit of 8th February 2011[11], sounds as if it is a relaxed arrangement where the children could enjoy a relaxed evening with the father and his fiancée.
[11] At paragraph [31]
The Need for a Well-Defined Routine
A block of five days and nights each fortnight with the father would set up a regime which the children would readily understand. Although the parties only live about half an hour’s drive apart, the reduction in the number of changeovers would reduce the inconvenience of constantly packing and re-packing bags.
Time with Siblings
The children, [Z] and [Y] in particular, have expressed the wish to spend more time with their older half-brother [B], who lives with his father and spends alternate weekends with his mother. It seems unfortunate that the previous arrangement for the children to spend time with their father apparently clashed with the weekend when [B] would be in the mother’s home. That fact may possibly have prompted their expressed reluctance to the mother to go to their father’s place on a Friday night.
It seems apparent that the weekend that [B] spends in his mother’s home should be the weekend that the children are there as well. This arrangement may be in [B]’s interests, too, as it would give him the opportunity to spend time with his two half brothers.
The boys, all three of them, have a new half sister. She is only a little baby, having been born in January 2011, and the depth of the relationship between her and the children is still to develop, but the children want to be with her, and this will no doubt develop as she gets older. The presence of the child [A] is, to my mind, a factor that points toward the desirability of the mother’s home being the primary residence, as it allows all four children to spend time together.
It is for those reasons that the concept of one block of time with the father appears to be in the children’s best interests.
The Proposed Visit to Belgium
The father wants to take the children to Belgium for his wedding to
Ms V. His plan is for them to be away for a period of three weeks.
The mother opposes the idea and has expressed the fear that the father may not return the children to Australia. There is no evidence to support that fear, and it appears to be groundless. The mother’s reasons for wanting to defer the children’s travel overseas until they are of high school age do not seem to be particularly well-considered.
In any application to take children out of the jurisdiction temporarily, the Court must consider the risk that the children would not be returned to Australia (see Line & Line[12]). One matter to be considered is whether the country of proposed travel is a signatory to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (known as “The Hague Convention”) (see Family Law Act 1975, s.111B).
[12] (1997) FLC 92-729
Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986 shows that Belgium has been a Convention country since 1 May 1999. Whilst the father has worked extensively in the Netherlands, the evidence all points to the fact that he has chosen to return to live in Australia permanently. The risk of the father removing the children from Australia permanently is very low.
At present, the father only appears to be seeking in-principle approval for his plan, as no detailed proposal has been submitted. It would be desirable for the children to participate in the wedding of their father and his fiancée, and they may well enjoy a holiday in Europe. [X] would seem to be old enough to travel with the father and Ms V, although it may not be the case that [Z] and [Y] would necessarily embrace the concept of going away to Europe for three weeks. It may be a source of anxiety for them.
There is insufficient evidence for the Court to be satisfied that this plan would be in the children’s best interests. If the father wishes to pursue the idea, he should prepare a detailed proposal and put it to the mother. If there is no agreement, then there will need to be a specific application to the Court.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 21 June 2011
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