Webster and Webster (No 3)

[2017] FamCA 815

FAMILY COURT OF AUSTRALIA

WEBSTER & WEBSTER (NO. 3) [2017] FamCA 815

FAMILY LAW – CHILDREN – Where the parties agree the children should live with the mother and that she should have sole parental responsibility for them – Where the dispute was limited to the extent of holiday time the children should spend with the father and whether this time should occur overseas – Where the father resides in the United Kingdom – Where there is a risk the father will retain the children overseas in contravention of orders – Concluded that although the risk of retention may not be as pronounced as the mother fears, the repercussions are potentially serious – Order restraining the father from removing the children from Australia

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996

Convention on the Civil Aspects of International Child Abduction, signed at The Hague on 25 October 1980

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 65Y, 70M, 111CA, 111CZ
Family Law (Child Protection Convention) Regulations 2003 (Cth)
Family Law Regulations 1984 (Cth)

AR v RN (Scotland) [2015] UKSC 35
Jacks & Samson (2008) FLC 93-387
In the Marriage of L & T (1999) 25 Fam LR 590
Webster & Webster [2017] FamCA 202
Webster & Webster (No.2) [2017] FamCA 557

APPLICANT: Ms Webster

RESPONDENT: Mr Webster

INDEPENDENT CHILDREN’S LAWYER: Ms Escobar, Clayhills Escobar Solicitors

FILE NUMBER: SYC 5182 of 2015

DATE DELIVERED: 22 September 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 7 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Escobar, Clayhills Escobar Solicitors

Orders

1. All former orders made in respect of the following children (“the children”) are discharged:

   (a)       B, born … 2004; and

   (b)       C, born … 2006.

2. All passports held by the Registrar pursuant to Order 6 made on 30 November 2015 shall be forthwith surrendered to the mother.  

3. The mother shall have sole parental responsibility for the children.

4. The children shall live with the mother.

5. Subject to the father’s compliance with Order 10 hereof, the parties shall take all reasonable steps to ensure that the children spend time with the father as follows:

   (a)For the first half of the Autumn school holidays;

   (b)For the whole of the Winter school holidays; and

   (c)For one-half of the Summer school holidays, being the first half in the years when the holidays commence in an odd numbered year and the second half in the years when the holidays commence in an even numbered year.

6. For the purposes of implementation of the preceding order, the school holidays are deemed to commence at 7.00 pm on the last day of school term, the school holidays are deemed to end at 7.00 pm on the last day before the first day of the new school term, and the mid-point is noon on the day halfway between those first and last days.

7. For the purposes of implementing these orders, the father or his nominee shall:

   (a)Collect the children from the mother’s residence at the commencement of the time due to be spent by the children with him; and

   (b)Return the children to the mother’s residence at the conclusion of the time spent by the children with him.

8. The parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:

   (a)The father each Wednesday at 6.00 pm when the children are living with the mother, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time; and

   (b)The mother each Wednesday at 6.00 pm when the children are spending time with the father, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.

9. The parties shall take all reasonable steps to ensure that the children’s names are removed from the Airport Watch List in force at all of points of arrival and departure in the Commonwealth of Australia and, for that purpose, the parties are granted leave to furnish a sealed copy of these orders to the Australian Federal Police.

10. The father is restrained from causing or permitting:

    (a)The children’s removal from the Commonwealth of Australia; and

    (b)The children to be or remain in his physical presence whilst they are outside the Commonwealth of Australia.

11. Pursuant to s 65Y of the Family Law Act, the mother is permitted to take the children to a place outside the Commonwealth of Australia.

12. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

13. The mother shall authorise and request the principals of any schools attended by the children to provide to the father, at his expense, copies of the school reports and school photograph order forms relating to the children.

14. Each party shall forthwith inform the other, and keep the other informed in writing, of their respective current residential address, mobile telephone number and email address.

15. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

16. Any and all other outstanding applications under Part VII of the Family Law Act are dismissed.

17. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Webster & Webster (No.3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: SYC 5182 of 2015

Ms Webster

Applicant

And

Mr Webster

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The applicant mother and respondent father are in dispute about parenting orders for their two children under Part VII of the Family Law Act 1975 (Cth) (“the Act”) and also the alteration of their property interests under Part VIII of the Act, but these reasons only deal with determination of the parenting dispute. Determination of the property settlement dispute is some way off yet.

2. Ultimately, the parenting dispute was very narrow. The parties agreed the children should live with the mother and that she should have sole parental responsibility for them. The parties also agreed the children should only spend time with the father during their school holiday periods (excluding the Spring school holidays, at the father’s request), because of his intention to live in the United Kingdom (“UK”) for the foreseeable future.

3. Their dispute was limited to:

   (a)Whether the time the children spend with the father in the annual Winter school holidays should encompass the whole of the holiday (as the father wanted) or only one-half of the holiday (as the mother wanted); and

   (b)Whether the time the children spend with the father in the Summer, Autumn, and Winter school holidays should be confined to Australia (as the mother wanted) or whether the father should be at liberty to remove the children from Australia during those periods (as the father wanted).

Relevant history

1. The parties began cohabitation in 1994 and married in 1998 in the UK.

2. Their two daughters were born in the UK in 2004 and 2006 and were respectively aged 13 and 11 years at the date of trial.

3. Both parties are Australian citizens and the family returned from the UK to reside in Australia in 2008. The father retained his business interests in the UK and still spent proportions of each year in the UK, though there was some factual disagreement about the quantification of the proportions. The father admitted to the Family Consultant it was about half the time, but the mother said it was slightly more.[1]

   [1] Family Report, para 3; Mother’s affidavit, para 14

4. The parties eventually separated in April 2015. The father vacated the former matrimonial home, leaving the children in the mother’s primary care.

5. The mother commenced these proceedings in August 2015. Interim parenting orders were first made by the Court in November 2015, providing for the parties to have equal shared parental responsibility for the children, for the mother to surrender the children’s passports to the Court, for the children to live with the mother, and for the children to spend substantial time with the father. More interim orders were made in January 2016, slightly adjusting the time spent by the children with the father and restraining the parties from removing the children from Australia, for which purpose the children’s names were added to the Airport Watch List.

6. Notwithstanding the orders, the father continued to spend about one-half of his time in the UK and he saw the children in accordance with the orders only when he was back in Australia.[2]

   [2] Family Report, paras 11, 15

7. In February 2017, the father collected the eldest child after school when the existing interim orders did not provide for her to spend any time with him and he retained her in his care for about the next three weeks.[3] The mother brought an interlocutory application to rectify the situation and, following another interim hearing in March 2017, the eldest child returned to the mother. The fresh orders provided for the mother to have sole parental responsibility for the children, for the children to live with her, and for the children to still spend substantial amounts of time with the father (see Webster & Webster [2017] FamCA 202).

   [3] Mother’s affidavit, paras 38-43

8. Although those orders applied until trial in September 2017, the father did not avail himself of them after he moved to live permanently in the UK in June 2017.[4] The children have not seen him since then.

   [4] Mother’s affidavit, paras 16-17, 23-24, 46, 52-54, 70

Evidence

1. The mother relied upon the affidavit she filed on 31 July 2017, together with three other documents she tendered as exhibits, either with the father’s consent or over his objection.[5] The mother was cross-examined by the Independent Children’s Lawyer, but not the father.

   [5] Exhibits M1, M2, M3

2. The father relied upon the document entitled “Affidavit”, which he circulated to the mother, the Independent Children’s Lawyer, and the Court shortly before trial. It was not an affidavit because it was not sworn or affirmed, but the father orally affirmed the contents of the document during the trial and the document was marked as an exhibit.[6] The father was cross-examined by the Independent Children’s Lawyer, but not the mother.

   [6] Exhibit F1

3. The parties and Independent Children’s Lawyer also relied upon the Family Report, dated 19 May 2017, but the Family Consultant was not required for cross-examination by either party or the Independent Children’s Lawyer.

Legal principles

1. Orders in respect of children are made under Part VII of the Family Law Act (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Best interests – primary considerations

1. There was no contest in these proceedings that the children enjoy meaningful relationships with both parties, from which they derive much benefit. In fact, the mother would prefer the father to allow the children to spend even more time with him than he proposes but, given his voluntary decision to live in the UK and to limit the children’s visits with him to only school holiday periods, he must believe that level of interaction with the children is sufficient to sustain their emotional connection. In such circumstances, s 60CC(2)(a) of the Act was not engaged as an influential consideration.

2. The father has been convicted of numerous breaches of a family violence order made by a State court against him for the mother’s protection,[7] which would ordinarily suggest there may be some need to protect the children from psychological harm they may suffer through exposure to the father’s family violence but, in the circumstances of this case, that was not so. The mother considers the children should spend more time with the father than he is willing to allow, so any apprehension she personally feels about the father does not impinge upon the children’s relationships with him. Nor is the mother apparently concerned by any suggestion the father’s irascibility is caused by some form of psychological condition.[8] Accordingly, s 60CC(2)(b) of the Act was not engaged as an influential consideration either.

   [7] Mother’s affidavit, paras 25-27; Family Report, paras 12-13, 18, 32, 52, 102

   [8] Family Report, paras 26, 60, 101

Best interests – additional considerations

1. Although the father took opportunities to gratuitously criticise the mother, his criticism was unwarranted. She has shown much greater sensitivity for and insight into the children’s emotional needs than him. The Family Consultant considered she had demonstrated a “flexibility and willingness to actively encourage and support the children’s relationship[s] with the father”, which was undoubtedly correct.[9] For example, because of the father’s choice to travel to and stay in the UK for weeks or months at a time, the mother always needed to be permanently available for the children, but she always responded to his requests to seamlessly resume his visits with the children when he chose to return to Australia. Even when the father unilaterally retained the eldest child in February 2017, the mother still ensured the youngest child spent time with him and her sibling in accordance with the existing interim orders (see Webster & Webster at [30]). More recently, when the father revealed his intention to relocate permanently back to the UK and not see the children for a prolonged period, the mother implored him not to abandon them insensitively.[10]

   [9] Family Report, para 106

   [10] Mother’s affidavit, paras 46-53

2. The mother fervently believes that, if not prevented by Court order, the father will likely retain the children in his care overseas in breach of the agreed orders that will invest her with exclusive parental responsibility for them and provide for them to live with her in Australia. She believes his financial interests lie in the UK rather than Australia and he has undeclared resources which would enable his avoidance of international detection. She shared her fear with the Family Consultant[11] and repeated it at trial. There could be little doubt her fear is genuine.

   [11] Family Report, para 67

3. The eldest child told the Family Consultant that the mother’s concern about the father retaining them overseas was completely unfounded,[12] and the youngest child told the Family Consultant they should be permitted to travel overseas with both parents.[13] Despite both children broaching adolescence, no weight is reposed in their expressed views because they do not have sufficient maturity to understand either the father’s motivation to retain them overseas or the implications of their overseas retention. Significantly, both of them were clear to tell the Family Consultant they wanted their home to be in Australia.[14]

   [12] Family Report, para 87

   [13] Family Report, para 91

   [14] Family Report, paras 86, 91

4. While the father disavowed he would retain or hide with the children overseas, the Independent Children’s Lawyer was not convinced. She shared the mother’s concern, for which there was an objectively reasonable basis overall.

5. First, the father has breached Court orders numerous times in the past, so he does not regard Court orders as binding if he finds his compliance with them to be inconvenient. On several different occasions he was convicted for breaches of the State family violence order made against him for the mother’s protection,[15] he at least threatened his defiance of the existing interim parenting orders in December 2015,[16] and then in February 2017 he wilfully contravened existing interim parenting orders for about three weeks.[17] The father’s confidence was misplaced when he asserted during cross-examination that he had never given the mother reason to think he is a “flight risk”. His past conduct demonstrates his unreliable record of compliance with Court orders.

   [15] Mother’s affidavit, paras 25-27; Family Report, paras 13, 32, 52, 102

   [16] Exhibit M3

   [17] Exhibit M3; Mother’s affidavit, paras 38-43

6. Second, the father’s declared residential plans have been unsettled over recent months. He told the Family Consultant in May 2017 he intended to live for “the majority of time in Sydney”,[18] but he then moved to live permanently in the UK only a month later in June 2017. At trial in September 2017, he said he has a visa which enables his permanent residence in the UK and he intends to apply for UK citizenship within about the next 12 months. Unexpectedly, the father appeared at trial by telephone link from Asia, not from the UK by video link, as he formerly said he would, explaining only that his presence in Asia was due to some business opportunity. At the last interim hearing in July 2017, when he unsuccessfully applied to vacate the trial, he informed the Court his poor financial circumstances prevented him from travelling outside the UK, even for the trial (see Webster & Webster (No.2) [2017] FamCA 557 at [5]). The father’s financial circumstances may therefore be much better than he is willing to concede. Notably, for child support assessment purposes, his current annual income is set by the Child Support Registrar at $493,000,[19] though there was an unresolved conflict in the evidence about whether he actually pays any child support.[20] If the father is as internationally mobile as the facts suggest, it might be difficult to trace his whereabouts with the children if he ever chose to retain them somewhere overseas, particularly since the children’s international mobility would also likely be enhanced by their dual citizenship of both Australia and the UK.

   [18] Family Report, paras 68, 80

   [19] Mother’s affidavit, para 8

   [20] Mother’s affidavit, para 20; Family Report, para 49

1. Third, the father recently informed the mother by email of his intention to have the children live with him in the UK.

2. On 29 July 2017, the father informed the mother:[21]

   I’ve decided I want sole parental responsibility of both children and I want them to live with me in [the UK].

   [21] Exhibit M1

3. Then, on 1 August 2017, the father informed the mother:[22]

   I am in the process of seeking legal advice in [the UK] about having a change of jurisdiction for both property and children matters to be heard by a UK court or a European court. It is quite likely that I will also be seeking international child custody for the children to be returned to the UK. The children are UK citizens by birth and naturalised Australian second. They do not have my permission to reside permanently in Australia nor to have their UK citizenship renounced.

   [22] Exhibit M2

4. Although the father confirmed at trial the mother should have sole parental responsibility for the children and they should live with her, his very recent contrary attitude raises the spectre he could change his mind again if orders were made which permitted the children to visit him outside Australia. Only a month ago he apparently genuinely believed the children’s interests were better served by them living with him in the UK. He gave no evidence at trial to explain why he changed his mind, so there is a real chance his asserted change of mind was some form of unexplained tactical ruse to appease the mother and relax her apprehension about the children flying overseas to meet him. On the other hand, if the sentiments he expressed to the mother in those recent emails about his desire for the children to live with him overseas were false, it only serves to raise speculation about his motives and proves his representations are prone to unreliability and need cautious evaluation.

5. Finally, during the father’s closing submissions, he asserted his belief that, within the next few years, the children will voluntarily choose to live with him instead of the mother. If he honestly believes that to be true, it is easy to see how he would more readily accede to any request by either child to remain in his care while visiting him overseas. That is precisely what led to the interim dispute between the parties in February 2017. The father alleged the eldest child asked to stay with him, so he ignored the existing interim orders, ostensibly because he believed her request proved her relationship with the mother had fallen into disrepair and she was fearful of her (see Webster & Webster at [22]-[23], [26], [36]-[40]).

6. The evidence satisfactorily establishes the existence of a real risk that, if the children are permitted to spend time with the father outside Australia, he would retain them and take steps to avoid their detection or at least resist their return to Australia. Objectively, the risk may not be quite as high as the mother and Independent Children’s Lawyer both consider it to be but, if the risk eventuates, it could be very difficult to remedy. The mother would need to invoke some form of judicial process in an international jurisdiction to secure the children’s return to Australia.

7. Australian orders cannot be registered and enforced in the UK (or any other international jurisdictions) pursuant to s 70M(1) of the Act unless the relevant jurisdiction is a “prescribed overseas jurisdiction” (rr 14 and 24 and Schedule 1A of the Family Law Regulations 1984 (Cth)). Presently, the UK is not so prescribed. In fact, few jurisdictions are.

8. Alternatively, the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”) is designed to resolve international jurisdictional disputes over children and makes provision for the recognition and enforcement in one Contracting State of parenting orders (called “measures of protection”) made in respect of children in another Contracting State. The 1996 Convention entered into force in Australia on 1 August 2003 and in the UK on 1 November 2012. The UK therefore meets the definition of a “Convention country” in Australia (s 111CA), even though it is not recognised as such in subordinate legislation (s 111CZ(2)(c); Schedule 1 to the Family Law (Child Protection Convention) Regulations 2003 (Cth)). In the absence of such regulatory recognition, some doubt necessarily attends the mother’s entitlement to petition the Court’s Registrar to send a sealed copy of this Court’s orders to the Commonwealth Central Authority for transmission to the UK Central Authority (reg 10 of the Family Law (Child Protection Convention) Regulations 2003 (Cth)).

9. Nevertheless, the parenting orders made in these proceedings will be conditionally recognised by operation of law in the UK (Article 23) and, since the mother is an “interested person” or “interested party”, she would be able to request a court of competent jurisdiction in the UK to decide on the recognition in the UK of the parenting orders made by this Court (Article 24) and to issue a declaration of registration and enforceability in respect of the orders (Article 26). But that process would need to be initiated by the mother personally, in the UK, and at her expense. It would not necessarily be easy for her and it could be time-consuming, particularly if the father contests the enforceability of the orders on various grounds under the 1996 Convention (Articles 11, 23(2), 26).

10. The Convention on the Civil Aspects of International Child Abduction (“the 1980 Convention”) also applies, having entered into force respectively on 1 January 1987 in Australia and on 1 August 1986 in the UK. Relevantly for present purposes, the primary object of the 1980 Convention is to secure the prompt return of children to one Contracting State when wrongfully retained in another. If, in this case, the father wrongfully retained the children in the UK following their visit there with him pursuant to orders made by this Court, the mother could request the Central Authority to initiate action in the UK to recover the children, but again, the process may not be as easy as it sounds. The father could resist the children’s return on several grounds, namely: the children’s place of habitual residence had changed to the UK, they would be at grave risk of harm or would be placed in an intolerable situation if returned, they object to their repatriation to Australia, or their return to Australia would be inconsistent with their fundamental freedoms (Articles 3, 4, 13, 20).

11. The father has made allegations of that ilk before, so the prospect is not fanciful. When he retained the eldest child in February 2017, he asserted she wanted to live with him and she was fearful of returning to the mother (see Webster & Webster at [23], [26], [40]). The mother told the Family Consultant that, when the eldest child was eventually returned to her care pursuant to further Court order, she confessed she felt pressured by the father to tell the police she wanted to live with him instead.[23] If that were true, she might perceive the same pressure again if she visits the father overseas. Any expressed desire by the children, who are now or nearly adolescent, to live with the father in the UK might be pivotal. In the UK, the factual determination of a child’s “habitual residence” for the purposes of application of the 1980 Convention necessitates evaluation of the child’s actual stability rather than any joint parental intention about the child’s permanent domicile in a particular jurisdiction (see AR v RN (Scotland) [2015] UKSC 35 at [12]-[17], [21]).

    [23] Family Report, para 23

12. The inconvenience, difficulty, delay, and possible expense the mother would likely incur in procuring the children’s return to Australia by resort to either the 1996 Convention or the 1980 Convention, if wrongfully retained by the father in the UK (let alone in another foreign State which is not a signatory to those Conventions), tends to recommend the imposition of an embargo upon the children being taken or sent outside Australia to spend time with the father. As already noted, while the risk of their wrongful retention by him may not be as pronounced as the mother fears, the serious repercussions in the event of its occurrence means the risk is not worth taking. The mother and Independent Children’s Lawyer established the need to foreclose the children’s visits with the father outside Australia and an order should therefore clarify the parties’ rights under s 65Y of the Act.

13. The father’s proposal for the imposition of conditions upon the children’s overseas trips to visit him was insufficiently re-assuring.[24] His provision to the mother in advance of an itinerary for the children, which involves their travel to only “Hague Convention” countries deemed safe by the Australian government, would not preclude him from changing such plans once the children were in his care outside Australia.

    [24] Exhibit F1, para 19

14. The father’s cross-examination revealed a further impediment to his proposal. His expectation is that, if the children are able to travel overseas to visit him, he will not accompany them in transit. Instead, he plans to arrange for some person to collect the children from the mother’s home, take them to the airport, and place them on a flight to the UK, upon which flight they will be unaccompanied. Presumably that also means they will be unsupervised at any stop-over airport in Asia or the Middle East en route to the UK. The same arrangements would necessarily apply for the return trip to Australia. While that level of responsibility might not be beyond the children within the next few years, it is probably too much to expect of them at this point in time. They are still relatively young and immature.

15. Another factor that added weight to the mother’s proposal was the need to avoid taking any risks with the eldest child’s health. She collapsed in May 2017 and was hospitalised for about 10 days. The cause of her ill-health remains undiagnosed, but she is under the continuing care of a paediatric gastroenterologist and a respiratory specialist.[25] The father has not attended any of the eldest child’s medical appointments and the mother believes she is more competent to manage the child’s health at the moment.[26] The mother is understandably concerned the child’s health may be compromised if she travels overseas for weeks at a time, to the UK or other countries, where her current medical records are not immediately available and she is deprived of the continuity of her current medical care. Her concerns are valid, at least until the eldest child’s present health crisis is resolved.

    [25] Mother’s affidavit, paras 56-64

    [26] Mother’s affidavit, para 69

16. The father’s grievance with the proposed restriction on the children’s overseas travel is answered relatively simply. He can still visit the children in their school holidays, but he will need to come to Australia to do so if he chooses to remain living outside Australia. He voluntarily chose to depart Australia in June 2017, while this litigation was pending, which must mean he values his business opportunities in the UK more highly than the opportunity for the children to frequently spend substantial amounts of time with him in Australia. After the family moved from the UK to live in Australia in 2008, he habitually spent about one-half of his time in the UK each year. He travelled between the UK and Australia frequently. He deposed at trial he now did “not have any immediate plans to return to Australia”[27] and, during cross-examination, he said he would not come back to Australia within the next two years, for which he gave no explanation other than that he had a business he was trying to build up and he was “technically insolvent”. But that was a bare opinion, the truth of which the mother does not accept and could not test. The father adduced no evidence at trial to prove he is financially unable to continue travelling frequently between the UK and Australia. The power to adduce such proof lay entirely with him and his failure to adduce it invites an inference that any evidence available to him would not have assisted his case. On the available evidence, he will be able to travel to Australia to see the children in school holidays, as he has done for years, if he is inclined. The choice is his.

    [27] Exhibit F1, para 12

Conclusions and orders

1. The parties, Independent Children’s Lawyer, and Family Consultant all thought the mother should have sole parental responsibility for the children and they should live with her. The parties have been unable to successfully share parental responsibility for the children and, since the father now intends to live permanently in the UK, allocation of equal shared parental responsibility for the children to the parties would not be in the children’s best interests. The presumption for such an order is therefore rebutted (s 61DA(4)).

2. Given the need to confine the time spent by the children with the father within Australia, the only residual question was the configuration of the school holiday time the children will spend with him. The Independent Children’s Lawyer’s cross-examination of the parties revealed their consensus that:

   (a)The Summer school holidays would be split in half so the children spend alternating halves of that holiday with the parties, with the order of rotation being irrelevant.

   (b)No special arrangement would be made to exempt Christmas Day from the first half of the Summer holidays, the consequence being that the children would spend the whole of Christmas with whichever party they were due to spend the first half of the holidays.

   (c)The children would spend the whole of the Spring school holidays with the mother. The father was disinterested in the children spending any time with him in that holiday period.

   (d)The children would spend the whole of the Winter school holidays with the father.

3. The dispute was therefore whittled down to whether the children would spend the whole of the Autumn school holidays with the father (as he wanted) or split those holidays equally between the parties (as the mother wanted). Neither had any persuasive argument to advance in support of their respective proposal, in which event the decision is virtually arbitrary. The Autumn holiday should be split evenly, but only because the children will then spend an equal amount of their total school holidays with both parties. Not unreasonably, the mother also wanted to take vacations with the children in their holiday periods.

4. Although the father made no application for the children to spend any time with him in the annual Spring school holidays, during his cross-examination he asked for the Court to consider making some special exception for that to occur in the 2017 Autumn school holidays, on the basis he had not seen the children since June 2017 and would not otherwise see them again until the 2017/2018 Summer holidays. His proposal is rejected because it was posited on the condition that the children would travel overseas to meet him in either Asia or the UK during that holiday, which cannot be permitted for the reasons already explained. As for the children alternatively spending time with him in Australia during that particular holiday, his proposal lacked any reasonable foundation. First, it was his choice to move to the UK in June 2017, either knowing or expecting he would not see the children for many months, and secondly, it was his overall application that he will not see the children for the period of about six months between the southern hemisphere Winter and Summer school holidays every year.

5. The parties agreed the children should be exchanged between them at the mother’s home. The father will arrange their collection from and return to the mother’s home at the beginning and end of their visits with him.

6. The remaining orders are self-explanatory and could not be the subject of reasonable opposition. Most of them were made between the parties on an interim basis in March 2017 and were not the subject of any complaint.

7. The mother sought an order compelling the father to submit to domestic violence counselling,[28] but no such order is made. It is doubtful the Court has power to make an order to that effect, unconnected to any parenting order (see In theMarriage of L & T (1999) 25 Fam LR 590 at 603-606; Jacks & Samson (2008) FLC 93-387 at [200]-[226]). But in any event, family violence was not an emphasised feature of the evidence in these proceedings.

   [28] Further Amended Initiating Application filed 3/7/17, Order 10

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 22 September 2017.

Associate: 

Date:  22 September 2017