Weeramantry and Bendik

FAMILY COURT OF AUSTRALIA

WEERAMANTRY & BENDIK

[2018] FamCA 74

FAMILY LAW – CHILDREN – With whom a child lives – International Relocation – Where mother seeks to relocate to Country M with the children from China – Where father opposes the relocation and seeks orders to relocate children from China to Australia with him – Interim Orders made permitting relocation – Where interim orders for equal shared parental responsibility are in the children’s best interests – Where interim orders made that children live with the mother and spend significant and substantial time with the father

Family Law Act 1975 (Cth)

APPLICANT:

Ms Weeramantry

RESPONDENT:

Mr Bendik

FILE NUMBER:

SYC

6703

2017

DATE DELIVERED:

12 January 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

12 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Picker

SOLICITOR FOR THE APPLICANT:

Edwards Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Wearne

SOLICITOR FOR THE RESPONDENT:

Reid Family Lawyers

Orders

All previous parenting orders regarding C born … 2007, B born … 2008 and D born … 2011 (‘the children’) be discharged.

UNTIL FURTHER ORDER

Ms Weeramantry (‘the mother’) and Mr Bendik (‘the father’) shall have equal shared parental responsibility in consultation with the other in respect of making decisions about the long term issues concerning the care, welfare and development of the children.
The children live with the mother.
The mother shall be permitted to live with the children in Country M but not any other State apart from within Australia without either the written consent of the father or an order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).
The mother be permitted to sign all documents necessary to enrol the children in school and extra-curricular activities in Country M.
Within forty eight (48) hours of the date of this order the father shall return to the mother all of the children’s passports.
The children spend time with the father as follows:-
(a)for four (4) weeks commencing the second day after the commencement of the long June to August school holiday period;
(b)for one (1) week during the October school holiday period;
(c)for three (3) weeks over the January school holiday period; and
(d)for one (1) week over the April school holiday period.
with the mother to meet the costs of the children travelling from Country M to Australia and return for each of the holiday periods referred to above.
The father shall, on the giving of one (1) month’s notice to the mother, spend such additional periods of time with the children in Country M, of up to six (6) one (1) week periods during the year, that travel to be at the expense of the father.
Such other periods as are agreed in writing between the parties.
The children shall have reasonable SMS, telephone, Facetime, Facebook or Skype, email, Instagram and any other relevant technology contact with the father at least four (4) times per week at times reasonably nominated between the parties having regard to the time differences and schooling to which the children are attending.
The children spend time with the father from 9.00am Saturday 13 January 2018 until 6.00pm Thursday 18 January 2018 when the children are to be returned to the mother.
Both parties are restrained from:-
(a)abusing, demeaning or belittling the other party or members of the other party’s family in the presence or hearing of the children or any one of them and are required to remove the children from any circumstance or any other person who is doing so;
(b)discussing these proceedings or any parts of these proceedings with the children other than to inform them of the fact that they will be attending school in Country M and that they will be spending significant time with their father; and
(c)from exercising any physical chastisement on the children or any one of them in any form or another.
Within seven (7) days from the date of these orders the mother shall be permitted and authorised to direct Edwards Family Lawyers to return the sum of thirty thousand dollars ($30,000) held in their trust account to the mother.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
These proceedings be listed for directions hearing before Registrar Mordaunt in April 2018.
Costs of both parties be reserved.

IT IS DIRECTED

The mother organise a time on 24 January 2018 for the children to spend some time with the father before they leave to travel to Country M.
A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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 Weeramantry & Bendik 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 SYDNEY

FILE NUMBER: SYC 6703 OF 2017

Ms Weeramantry

Applicant

And

Mr Bendik

Respondent

EX TEMPORE REASONS FOR JUDGMENT

These are proceedings between Ms Weeramantry (‘the mother’) and Mr Bendik (‘the father’). I am delivering ex tempore reasons, and in doing so I can indicate to the parties that I reserve the right to go through and correct grammar, English and to change the order of words, but without changing the nature of what I said. I will arrange for these reasons to become available to the parties as soon as practicable after they are delivered.
The mother and father are involved in high conflict and polarising litigation and dispute regarding the parenting of their three children: C aged 10, B aged 9 and D aged 6 (‘the children’). It is the mother’s case that the children should live primarily with her in Country M when she moves there in the next few weeks or few days, I am not sure how far away it is. The parties have spent a considerable period of time living and working in China. The mother offers no suggestion that she can or will move to Australia at this stage.
It is the father’s general case that the children should live in his primary care in Australia with the support of his parents.
Each of the parties is suggesting and submitting that the children should spend block time with the other party, and that will have some significant impact later in these reasons. I can only deal with the case as it is presented to me, and I am obliged in considering cases like this to consider the position of the children, both in terms of the mother’s proposals and in terms of the father’s proposals. I have done so.
The parties each filed in the last day or so lengthy and complex affidavits. The mother’s affidavit contains some 42 pages of typed material and is, in total, about 111 pages. The father’s affidavit contains 23 pages of typed material and totals some 72 pages overall. Both of those affidavits were brought to my attention at about 5 pm last night. I took the trouble to sit down and read them before I left chambers, at home last night and when I arrived in chambers at about 6 am this morning. Given that I have read all of that material and the other material to which I will allude, and that whilst I believe I understand the context of the material, if during the course of giving these reasons I make what is an obvious error of fact, I invite counsel for each of the parties to interrupt me and remind me of any such circumstance.
During the course of argument, I was perhaps a bit surly with the advocate for the father in terms of reading every document and every page. I can indicate to her and, more importantly to the parties, I have not read every word of every document. I have read and considered every document. It is not possible in the time available to do so. Much material was presented to me. I concerned myself with was the substance of the document.
The mother relied upon the following documents:-
(a)     her affidavit filed 9 January 2018 to which I have alluded;
(b)    her amended notice of risk or abuse dated 9 January 2018, which does no more than reflect the material which is contained in her and other affidavits;
(c)    an affidavit of Ms E filed 9 January 2018;
(d)    an affidavit of Ms F filed 9 January 2018; and
(e)    an application in a case which was filed on 7 December 2017.
In many ways, that application in a case has been varied in terms of the minute of order which was tendered to me and which is Exhibit E3.
The father relied upon:-
(a)     his affidavit to which I referred to earlier;
(b)           an affidavit by his mother, Ms Bendik (‘the paternal grandmother’) filed 18 December 2017; and
(c)           an affidavit by her partner Mr G (‘the paternal grandmother’s partner filed 18 December 2017.
(d)           an affidavit of his father Mr H Bendik filed 16 October 2017;
(e)           an affidavit of Mr J filed 16 October 2017; and
(f)     an affidavit of Mr K Bendik filed 16 October 2017.
I have read all of that material and have had regard to it. The father has filed a response to an application in a case on 18 December 2017, which set out the orders he sought, although that has, to some extent, been varied during the course of argument today, and I have had regard to those changes.
This is an unusual case in that most relocation cases start from a point where a child or children are living in one place and one or other of the parents wants them to move to another place. Courts have been reluctant in those circumstances on an interlocutory basis to remove a child or children from a place where they are settled to a different place, given that the evidence is not tested. In this case, whatever result will be will involve the children being separated from one parent or another and living in a place which is different to that in which they have spent at least the recent years.
I had considered allowing cross-examination of the parties, but given the extent of their evidence I did not permit it. Had I adopted that course, this case would have, in my view, ended up to be, in essence, a final hearing because the cross-examination in relation to both the parties and their witnesses would have been extensive and could hardly have been, in my view, properly contained today. If I had limited the cross-examination as I had earlier considered, that would have done little justice to the parties. Given those circumstances and given the approach adopted generally in interim matters, I have declined permission to cross-examine.
The father is aged 43. He was born in the United Kingdom and came to Australia when he was just one year or so. He is a permanent resident in Australia and says that he has regarded Australia as his home. There are apparently no significant issues as to his health, although some issues have been raised as to his behaviour, with which I will deal with later in these reasons. The only significant issue appears to be, at the moment, that he has broken a toe; and I am not sure how that occurred.
The mother was born in 1975 and is therefore 42 and is about to celebrate her 43^rd birthday. She is an Australian citizen.
I take it, given the correspondence I have read, the emails that have passed between the parties and their affidavits, that this relationship breakup and the events leading up to it, the events giving rise to it and the subsequent events have had a profound impact on these parties and, of course, some significant heartache and anxiety. I can see it in their faces as I utter these words.
The parties apparently commenced living together in about 2006. They married in 2009. In that year, the parties and their children moved to Country M, the mother having taken a job in that state. The younger child was born in Country M; however, she has been registered as an Australian citizen.
In March 2014, the mother took up different employment in China, and the parties moved there. The parties separated in October 2017. The father remains living in Australia. The mother returned eventually with the children and lives in China, but has been offered and has taken employment in Country M. The mother took steps prior to the relationship break-up to find work in Country M and is now employed on a substantial income in a low-tax state.
The parties had a difficult relationship breakdown, to which I have read and had regard to in the various affidavits of the parties. The mother commenced these proceedings in October 2017, and shortly after that, in a duty hearing, the mother was permitted to return to China with the children. However, the hostility and conflict between the parties continues.
The matter came before me on 19 December 2017 and I was concerned at that time that the only evidence I had in this very difficult case was that of the parties and their supporters. As a consequence, I asked for and arranged for a Child Inclusive Conference to be convened, dare I say it, in the hope that these parties might find a solution, and if not, at least give me some insights from an objective point of view as to what was happening in the lives of these children and a little bit more information about their parents.
I interpose at this stage and say this. My task as a judge is to put in place orders that meet, in my view, the best interests of your children. I do not know your children. I have never met them. From what each of you say and from what I have read, they are delightful children. I can make orders, and I will make orders today, which I regard will be in the best interests of these children. What I cannot do is stop the conflict that exists between you two.
Whatever the result that I come to today I will put in place some structure, but it is up to you as parents to somehow reform your relationship, not as a couple but as separated parents, and form some sort of parental alliance for these children, because if the conflict to which they have endured since at least October 2017 continues, in one form or another, it will profoundly impact upon these children whether they are living in Australia or whether they are living in Country M. Your tasks as decent parents, and one finding I will make in this case is that both of you try the best you can, given your circumstances, to be decent parents. If you cannot stop that conflict, you will do your children immeasurable harm.
I received the report, from the Child Inclusive Conference, last night. Unfortunately, given the nature of bureaucracies, a copy had been posted to each of the parties, and I am sure that it will reach them some time later this week or early next week. As such, the parties were presented with that document earlier today. I allowed a short period of time so that it could be read and so that advocates for each of the parties could address me in relation to that report.
A series of documents was tendered to me to which I have had regard. The first was the report to which I have earlier referred. The second was the case outline filed on behalf of the mother. The third was the form of order sought by the mother. The fourth was a statement given to New South Wales Police by the mother on 9 October 2017. The fifth were documents produced by New South Wales Police in relation to that event and also in relation to a matter in 2005. Given the nature of the 2005 report and the conflicting evidence and the fact that no proceedings were taken at all, I can give it little weight, and having regard to the time that has passed since then, it is of little moment in terms of this case.
I was provided with the employment contract of the mother and have read that in the context of the evidence she gave, noting that her evidence was not tested. I was provided with the material from L Medical in terms of the symptoms the mother suffered which brought upon some medical treatment. I was provided with a copy of an email from the mother to the father which caused me some concern in relation to the children being told the truth about things which concern them, and I have had significant regard to that. I had tendered to me the text messages that passed between the parties and the mother’s sister. Finally, I have been given a copy of the passport of the paternal grandmother, showing travel between 4 and 10 November 2010 and 21 January 2010 and 7 February 2010 and also travel between 14 September 2012 and 23 September 2012.
At this point in the reasons, I would normally insert and will insert the processes to which the Court has to inform itself with regard to parenting. It seems agreed that in terms of time, the parties each provided roughly equal time with the children up to the time they moved to Country M. There is issue as to the time each of them spent with the children from then on, both in Country M and in China. Each of them, in their evidence, asked me to treat their role parenting role as more significant than the other.
There are also very serious allegations of past domestic violence up to the time of separation and, on the part of the father the mother has asserted controlling and abusive behaviour since then. The mother asserts that the father occasionally abuses alcohol, and she has broader concerns, although they are a stretch even on her evidence. As I said, I had regard to the other witnesses of the mother.
In terms of the father, the mother provided evidence in her affidavit in relation to what she observed as to the conflict between the child and the father. There were some concerns raised about the paternal grandmother’s partner, and I will deal with them now.
The paternal grandmother’s partner filed an affidavit denying any impropriety on his part.
I tried to discern from the material what exactly he did, said, or in which way he behaved which gave rise to that concern. It appeared that he took a two year old boy out for a while and did not come back when the family, or at least the mother expected him to come back, on the mother’s evidence. That he is, on the mother’s evidence, a different character, but there is nothing there which could give rise to the concerns to which the mother alludes in her material. Whilst courts have to be very careful, particularly in an interim basis, there needs to be something apart from intuition, anger, or a relationship break-up to give rise to an injunction such as that.
Although, and I am confident, that given that the allegation was made, that, at least whilst these proceedings are on foot, everyone will be hypervigilant, about the involvement of the paternal grandmother’s partner with the child. There is no material there upon which this Court could exercise its powers to make the order that was sought by the mother, and I do not intend to make that order.
I am also provided with evidence from the paternal grandfather, which gives his perspective of the events around 9 October. I am also provided with evidence of Mr K Bendik, the good news is that he likes his brother. The bad news is I do not think he thinks much of the mother. I am not sure that it adds too much to the overall impact of these proceedings at this stage, and they will be a significant factor on the final hearing. I also have read the affidavit of Mr J, who is the partner of the paternal grandfather, and I have had regard to that material.

In terms of the evidence, it was put to me that I should make positive findings having regard to the quality and the quantity of the evidence on the part of the father and, at times, on the part of the mother. This evidence has not been tested and evidence is not measured by quantity. It is measured by quality and by testing. I have had significant regard to the allegations made, but I do not make the adverse findings, as was asked of me, at least at this interim hearing.

THE LAW

The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deals with children is set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(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).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
The terminology of the section is thus that the court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)      the nature of the relationship of the child with:
(i)      each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii)      to spend time with the child; and
(iii)    to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)       either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)      the capacity of:
(i)      each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)      if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i)      the nature of the order;
(ii)      the circumstances in which the order was made;
(iii)    any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v)      any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)     any other fact or circumstance that the court thinks is relevant.

I have earlier said that both of these parents are good parents. I say that for a number of reasons. Firstly, having read the parents’ interest and love of these children, which is set out in their affidavits, it is clear from that. Secondly, each of the parents acknowledged to the family consultant that the other parent was a good parent. This is an unusual thing in this Court, to have one party acknowledge anything positive about another party, and perhaps gives me some hope that these children may survive the trauma of the break-up of their parents’ marriage. I certainly hope so.
It is clear from the evidence of the family consultant that these children have a close relationship with each of their parents, and I am satisfied, particularly given the approach of the parents, where one parent is successful that the other parent should have block time. It enables me to have regard to the violence, which I am obliged to do and which I should do. Violence is a terrible thing in any form that it comes. But each of these parents assert to me, through their cases, that they say the other parent is reliable enough to have these children with them for periods not only of hours or days, but in periods of weeks. I am satisfied that it is in the benefit of these children to have a meaningful relationship with both of their parents.
I have an obligation to protect these children from physical, psychological harm or being subjected to or exposed to abuse, neglect or family violence. There is evidence of family violence in respect of these children and with respect to the parents, each to the other. I can, but I do not make, findings against one or other of the parties, but I am concerned at the level of hostility which was exhibited by each of the parties to the other. Whether that be by anger, frustration, the breakdown of the relationship or otherwise, I do not know.
I am also concerned that if the level of conflict that exists between the parties continues, that will also impose a risk on these children of psychological harm into the future, and I alluded to that earlier in these reasons. In applying the question of violence, I have given it greater weight than the consideration of the benefit of a meaningful relationship with one or other parent. However, given the matters to which I have already referred, I am satisfied that it is appropriate that one or other of the parents should have significant block time with the children.
Each of the children expressed views which are contained in the report of the family consultant. It is significant that B is described as a confident, open child who was happy to talk about his family. He complained that his parents used to fight so often. He said he used to feel panicked that one parent would get injured, as happened one time when, “The couch hurt mum’s neck”. He expressed a view that the best solution for them was to relocate to Country M, because they will live in a big house and the father will be able to visit every holiday.
C made similar comments and described unhappiness from both parents, in particular, at times, the father. His preference was that they live in Country M. They are, of course, a 10 year old and an eight year old child, and it is not a matter for them as to where they live. It is a matter preferably for their parents, but as their parents are unable to agree, it is a matter for me. I have given some weight to their evidence, but the decision, to make it clear, is my decision, not theirs.
I enjoyed reading the comments of D, although I have given her views little weight. She sounds just a delightful child for which both parents ought to be proud of her, and I did like to hear that she is a straight A student. She will give her brothers a hell of a time in future, I suspect.
It was put to me that much of this was placed in the children’s heads by the mother. That may well be the case, but it is not something which the family consultant identified, and if there had been a question of coaching, I am confident that the family consultant would have said so. That does not mean that it did not occur, but it makes it less likely. What it does show, frankly, and what some of the other evidence shows, is that both of these parents are anxious to win. Both of them are anxious that the children live with them, but they are equally anxious that the children have a relationship with the other party. It is sadly not an uncommon circumstance, as in this case, that people see their cases through the lens of their own particular circumstances.
One of the most difficult issues of this case is the nature of the relationship of the children between each parent. It is the case of the father that he is the primary carer, and it is likely that he spent more time with the children, particularly over the last seven or eight years when the parties were in Country M and in China. It is the case of the mother that while she did not spend that significant amount of time with the children, that part of their care was given to people who worked with them, that the care she provided made her the primary carer.
I am not sure, and I am not able to make a finding one way or the other, despite being urged to do so. It is quite likely that all three of these children are firmly attached to both of their parents, and perhaps some of the comments they made at the end of the interviews about the sadness they felt with the relationship break-up is a reflection of that. The children clearly have a good relationship with the paternal family, and I have had regard to that.
The effect of the separation, the children staying with one parent or the other, will be profound on these children. If they are in Australia, it will mean they will travel to Country M perhaps three or four or five times a year and see their mother once every three or four months. There are 10 week gaps in between each term in New South Wales, and presumably most of the time will be the mother coming down to Australia or the children travelling up to Country M. For them, it will be dreadful in those circumstances. Similarly, if the children are in Country M, they will have to come down to Australia.
I accept the submission that given the circumstances of the father, it is going to be more than just hard for him to travel to Country M. If he travels up there to see the children, he will not only have to meet accommodation expenses and airfares but travel, and that will be an enormous burden, and he will need to accommodate the children as well as himself in those circumstances. Either scenario is not good for these children. Whichever one I impose will be difficult for them. It clearly makes the concept of equal time impossible, it is geographically impossible, and it makes the concept of significant and substantial time impossible.
If one had a magic wand to have these parties living close to each other, resolving some of their conflict and having these children spending significant time with each parent, it would probably be the optimal outcome, but that is not an option that is available to me in the circumstances of this case. In dealing with that, I have dealt with the practical difficulties and expense.
In relation to the capacity of each of the parents the father says the mother is pretty well awful. He says she is a moody, difficult person who controls him a bit of the time. I suspect part of that arises from the circumstances of the breakdown of the marriage, and there may be some accuracy to it. The mother is critical of the father and makes some claims about him, some of which seem at least outrageous. They may at some stage come to proof. I do not know.
They each have the capacity to meet the physical needs of the children. Each of them will have to work. The father will need to work in Australia and need to work full time and quite properly acknowledges that he will need the assistance, at least in the short to medium term, of his mother and other members of his family. The mother will need, if the children are with her, the assistance of some sort of domestic help in Country M.
These children have lived in Asia most of their lives and have gone to school in Asia. I will not be overly critical of either party in relation to the responsibilities of parenthood demonstrated by each of them except in terms of what has happened over the last six or seven months in the construct of their relationship breakdown. I have had regard, and significant regard, to the allegations of family violence, each levelled by one against the other. Each of the parties has, in some levels, engaged the children in the conflict between them. It is likely that the mother has done so at a greater level than has the father.
As I indicated to the parties during the course of this interim hearing, I intend to make non-denigration orders, each about the other. I intend to make orders not to discuss these proceedings with the children, and given the allegations of physical chastisement of the children, where each seem to accuse the other of being overly harsh and each seem to minimise their own, it seems to me that the best result in this case is to prevent both parties from exercising any physical discipline in relation to these children. There are better and more-effective ways to discipline children rather than that which the parties have, it seems, applied in the past. In relation to the question of parental responsibility, it was put that it would be difficult for there to be equal parental responsibility given the distance between the parties.
Whilst it may be difficult, it would seem to me that whatever the result, it is better for both of these parents to exercise parental responsibility notwithstanding the allegations of violence, and I intend to make an order that they have equal shared parental responsibility for these children. The most difficult part of this decision is whether the children should live primarily with the mother or the father. Having considered all of the material – and in particular, the comments made by the family consultant and those matters to which I have alluded – I am satisfied in this case that the children should live primarily with the mother.
However, I intend to make orders that the mother send these children down to Australia on regular occasions at her expense. I intend to make orders that the children have regular Skype and FaceTime contact with the father. I intend to make orders providing that the father can attend and see the children in Country M on regular occasions. I do not intend to make orders in relation to the paternal grandmother’s partner, as I have already indicated. Accordingly, having considered all of the facts and circumstances and having determined in the light of the circumstances of these parties, I make the following interim parenting orders.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 12 January 2018.

Associate:

Date: 8 February 2018

[2018] FamCA 74

12 January 2018

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