WINDSOR & KAVA - [2014] FamCA 739

FAMILY COURT OF AUSTRALIA

WINDSOR & KAVA

[2014] FamCA 739

FAMILY LAW – CHILDREN – Relocation – interim application – where mother relocates to Singapore for employment without the children – where mother places children in care of a third party – where father available and able to care for the children – consideration of wishes report in relation to eldest child (age 10) – where concern as to significant dislocation of children – where considered submissions from Independent Children’s Lawyer opposes interim relocation – where orders made that children live with father and orders facilitating communication and time with the mother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Sayer & Radcliffe & Anor [2012] FamCAFC 209
Starr & Duggan [2009] FamCAFC 115
Goode and Goode (2006) FLC 93-286
MRR v GRR (2010) 240 CLR 461
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405

APPLICANT:

Ms Windsor

RESPONDENT:

Mr Kava

INDEPENDENT CHILDREN’S LAWYER:

Shanna Mahony

FILE NUMBER:

PAC

3320

2010

DATE DELIVERED:

5 September 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

29 August 2014

REPRESENTATION

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mahony Family Lawyers

Orders

Pending Further Order

That parenting orders made on 11 October 2012 be suspended pending further order.
That the father have sole parental responsibility for the children X born … 2004 and Y born … 2009.
The children live with the Father.
That the children spend time and communicate with the mother as follows:
(a)       as agreed to by the father and mother in writing such writing to include SMS or email communication and in default of agreement:
(b)       whilst the mother is resident in Singapore the father shall facilitate the children having electronic communication with the mother by Skype, FaceTime or similar method of visual communication each day between 7:00pm and 8:00pm Sydney time with the mother to initiate such communication with the children and for the purposes of such communication the father shall ensure that the children are able to receive the mother’s communication between the said times provided always that should the children or either of them wish to so communicate with the mother at other times the father shall use his best endeavours to facilitate such communication and provided always that whilst the children are communicating with the mother the father shall facilitate the children having reasonable privacy;
(c)       whilst the mother is resident in Singapore the father shall facilitate the children having communication with the mother by email and/or telephone at all reasonable times and the father shall facilitate such communication by ensuring that he at all times has an available email address known to the mother and an available landline or mobile telephone number known to the mother with such communication to be initiated by the mother provided always that should the child X wish to speak to or communicate with his mother at reasonable times and with reasonable frequency the father shall initiate such communication on behalf of the child and provided always that whilst the children are communicating with the mother the father shall facilitate the children having reasonable privacy;
(d)       in the event that the mother proposes to travel to Australia she shall provide to the father not less than 72 hours’ notice of her intention to do so and should the mother be in Sydney during school term the children shall spend time with the mother each weekend from after school/preschool Friday until before school/preschool Monday for no more than 2 consecutive weekends and provided always that should the mother be in Sydney for school holidays the children shall spend a period of not less than 5 consecutive nights in such school holiday period with the mother with such period to be agreed to by the mother and father and in default of agreement during the last week of each school holiday period;
(e)       in the event that the mother remains resident in Singapore the children shall spend time with the mother during the period of the term 3 school holidays (20 September 2014 to 6 October 2014) for a period of 7 consecutive nights during the last week of the said school holiday period so as to facilitate the children’s return to Australia by no later than the day prior to the resumption of school term and for the purposes of this order:
(i)        the mother shall within 14 days from the date of these orders notify the father in writing of the proposed dates of travel for the children and book and pay for the children’s airfares Sydney – Singapore – Sydney at the best price reasonably available,
(ii)      the father shall upon being notified by the mother of travel arrangements for the children book and pay for his own airfares Sydney – Singapore – Sydney so as to accompany the children and for his accommodation whilst the children are in Singapore,
(iii)     the father shall within 14 days of the children’s return to Australia reimburse the mother as to one half of the children’s airfares and in default of the father reimbursing the mother the mother shall be entitled to offset the amount otherwise reimbursable to her by the father against her child support liability from time to time,
(iv)     that whilst in Singapore the father shall ensure that the children spend time with the mother at all times when the mother is not working and should the mother be working collect the children from the mother each morning and return the children to the mother each afternoon or evening.
That the father do all things necessary to enrol and ensure the attendance of the child Y at School AB at Suburb BC in 2015 and prior thereto ensure the child is properly assessed for his school enrolment.
Liberty to the mother to apply on short notice as to Christmas school holidays in the event of no agreement.
Liberty to apply on short notice as to implementation or enforcement of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Windsor & Kava has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3320 of 2010

Ms Windsor

Applicant

And

Mr Kava

Respondent

REASONS FOR JUDGMENT

The present application comes before the court in circumstances where the mother has relocated herself to Singapore for the purposes of her employment, leaving the children in the care of a neighbour having granted to that neighbour what she refers to as “temporary guardianship” of the children.
The father became aware of the mother’s relocation after the event.
The subject children are X born in 2004 and Y born in 2009.

Previous Orders

Final orders as to parenting were made by Federal Magistrate Halligan, as he then was, in the Federal Circuit Court of Australia on 11 October 2012. (Windsor & Kava [2012] FMCAfam 1221)
The orders provided:
a)The mother have sole parental responsibility of the children;
b)The children live with the mother;
c)The children spend time with the father as follows:
(i)each Christmas Day from 9:00am until 5:00pm;
(ii)each Father’s Day from 9:00am until 5:00pm;
(iii)on the children’s birthdays, from 3:00pm until 7:00pm;
(iv)for the first six months from the date of these orders, being every alternative weekend, from Friday at 3:00pm until the following Saturday at 5:00pm, commencing on 19 October 2012;
(v)for the following six months, being every alternative weekend from Friday at 3:00pm until the following Sunday at 5:00pm, and thereafter;
(vi)thereafter, every alternate weekend from Friday at 3:00pm until the following Monday at 9:00am, or Tuesday 9:00am if the Monday is a public holiday;
(vii)commencing with the school holidays at the end of Term 1, 2015, for the second half of all school holidays, and the father’s time under the preceding sub-paragraph shall be suspended during school holidays on the commencement of this provision;
d)The fathers time with the children if relevant, be suspended from 9:00am to 5:00pm on Mother’s Day;
e)For the purpose of the school holiday orders as referred to above at sub-paragraph 4(g):
f)The school holidays shall be defined to commence on the last day of school term prior to the school holidays, and shall be defined to conclude on the last day of such school holidays;
g)The place of changeover is to take place at either:
(i)the McDonald’s Restaurant located at …; or
(ii)the children’s school if such a changeover takes place on a weekday during a school term period;
h)Each party shall do all things necessary to ensure that the other party is sent directly from their school, copies of all school reports, weekly bulletins, correspondence and school photograph applications;
i)Each other party shall inform the other in a timely manner, all significant medical events, and significant educational and sporting events, directly relevant to the children;
j)Within 7 days from the date of these orders, the parties each contact Unifam Parramatta and do all things necessary to apply to be accepted in the “Keeping the Contact Program” and if accepted each party shall attend all appointments as directed by Unifam Parramatta;
k)Within 7 days from the date of these orders, the parties each contact Relationships Australia and do all things necessary to enrol in such parenting group if available, focusing on improving parental interaction as is recommended by that organisation, and thereupon each party will attend all appointments required by Relationships Australia;
l)The mother shall not engage the children in any extracurricular activities that may occur during times the children are to be with the father under these orders without the father's prior written consent;
m)The mother shall cause the children to telephone the father at 6:00pm each Monday, Wednesday and Friday that the children are not spending time with him and the father shall make himself available to receive the call from the children at those times;
n)Each party is restrained from:
(i)denigrating the other party or members of the other party’s family in the presence or hearing of the children and shall ensure no other person does so;
(ii)discussing these proceedings with or in the presence or hearing of the children and from showing the children any documents filed in or prepared for these proceedings, and shall ensure no other person does so; and
(iii)passing information or messages through the children to the other parent.
The reasons for judgment of Halligan FM reveal the mother and father to have a significantly conflictual relationship.

Present proceedings

The present proceedings commenced with the mother filing an initiating application on 20 February 2014. In that application the mother sought orders that in summary relevantly provided:
a)that the orders made on 11 October 2012 continue; and
b)that the mother be permitted to take the children to Singapore to facilitate the children visiting the paternal grandmother.
On 27 May 2014 the mother filed an application in a case seeking interim orders that in summary provided that:
a)the mother have sole parental responsibility for the children;
b)that the children live with the mother;
c)that the children’s names be removed from the airport watch list;
d)that the mother and children be permitted to relocate to Singapore;
e)that after relocation the mother facilitate electronic communication between the children and the father;
f)that otherwise the children spend time with the father as agreed between the mother and father;
g)that in the event that the father is in Singapore the children spend time with the father each Wednesday from after school to 8:00pm and each Saturday from 8:00am to 8:00pm and commencing in 2015 for the second half of all school holidays;
h)that the mother provide to the father children’s school reports and other information relevant to their welfare;
i)that the mother be permitted to renew the children’s Australian passports without the father’s signature; and
j)that the father be restrained from attending the mother’s residence and any place of work.
On 16 June 2014 the father filed a response to the mother’s application in a case, that response seeking relevantly the following orders:
a)that the mother’s application in a case filed on 27 May 2014 be dismissed;
b)that orders made on 11 October 2012 be discharged;
c)that the father have sole parental responsibility for the children;
d)that the children live with the father;
e)that should the mother relocate to Singapore she provide to the father her residential and work addresses, email and contact phone number;
f)that should the mother reside in Singapore the children shall communicate with the mother by Skype or FaceTime communication each Monday, Wednesday and Friday between 7:00pm and 8:00pm and on such further or other periods as are agreed between the mother and father; and
g)that should the mother be in Sydney the children spend time with the mother each Wednesday from after school to 8:00pm and each Saturday from 8:00am to 8:00pm and commencing 2015 the second half of school holiday periods.
On 28 July 2014 Judge Halligan in the Federal Circuit Court of Australia made various procedural directions in relation to documents filed by the parties and otherwise ordered:
a)that an independent children’s lawyer be appointed to represent the interests of the children; and
b)that proceedings be transferred to this court.
As a consequence of the interim orders sought in the matter proceedings were listed for a case management hearing on 15 August 2014. On that date the mother appeared by telephone from Singapore and the father in person and the Independent Children’s Lawyer also appeared. Pending determination of the parties respective interim applications orders were made to the following affect:
a)that the father and mother have equal shared parental responsibility for the children;
b)that the children live with the father;
c)that the children spend time with the mother as agreed between the parties in writing and in default of agreement and in the event that the mother is in Sydney each weekend from 9:00am Saturday until 5:00pm Sunday;
d)that whilst the mother’s resident in Singapore the father shall facilitate the children having electronic communication with the mother are not less than each alternate day between 7:00pm and 8:00pm Australian Eastern Standard Time with the mother to initiate such communication with the father;
e)that the mother give the father not less than 72 hours’ notice of her intention to travel to Australia;
f)that the mother and father file and serve any updating affidavit evidence and a sworn financial statement by Thursday 28 August 2014; and
g)proceedings be adjourned for interim hearing to 2:15pm on 29 August 2014.
It was noted by the court that the Independent Children’s Lawyer if possible will seek to obtain a “wishes report” if same can be arranged through Legal Aid New South Wales during the period of the adjournment and the father will obey all reasonable requests by the Independent Children’s Lawyer for the purposes of the children being made available for that report notwithstanding such arrangements may require the children to be absent from school.

The mother’s evidence

The parties were married in December 1997, separated on a final basis in June 2010 and divorced in April 2012.
The mother alleges that the father had been verbally and physically violent towards her during their relationship. This issue was the subject of a determination by Halligan FM as he then was in his reasons for judgment as follows:
28. Bearing in mind the view I take of the credit of both parties and based on the evidence of both of them, I am satisfied that there has been family violence within the meaning of that term on only one occasion. That incident occurred during the mother’s pregnancy with [Y] when the father wanted the mother to go to sleep, he believed in her own best interests, but the mother wanted to relax and watch TV. His insistence that the mother do what he thought was best for her against the mother’s clearly expressed preference to do otherwise, including him taking the mother by the arm to physically escort her against her will to her bedroom during which he kicked a cardboard box that struck the mother, was, I am satisfied, family violence. The father conceded the mother was justified in calling the police the next day. But the fact that the mother waited until the next day to call the police in the circumstances puts into perspective the relative seriousness of this incident. In my view, it is at the lower level of seriousness.
The mother says that she was in employment in Australia from 29 August 2008 to August 2013 as a senior manager. She asserts that she was let go from this employment as a consequence of the father repeatedly contacting her employer. This is an assertion denied by the father who says that she lost her job by reason of poor performance.
The mother contracted to purchase a four-bedroom townhouse at CD Street, Suburb BC and in November 2012 moved in to that townhouse as a tenant with the settlement of the purchase to take place about 6 months later.
The mother subsequent to her move to Suburb BC enrolled the eldest child X in School AB at Suburb BC where the child commenced year 3 in 2013.
The mother asserts that the child is progressing well at school, excelling at religious study, maths, science and English. The child continues to receive various achievement awards for good behaviour, leadership quality and diligence. The child has also commenced violin at his school each Monday and participates in the chess club at school each Friday afternoon.
The child X was enrolled by the mother starting February 2013 in the DE preschool, a short walk from her new home at Suburb BC. The child was enrolled in a second preschool for a short period and then in March 2014 commenced attending at EF Preschool.
As the mother was in full-time employment she hired a nanny from Monday to Friday to assist her for the care of the children.
The mother says that since August 2013 she has applied for over 30 permanent employment positions but has not been able to obtain employment other than some short-term contract work.
Subsequent to her losing her employment she placed her home at Suburb BC on the market as she had no capacity to continue servicing the mortgage. She was living on her savings and her credit cards. The settlement of the sale was completed on 14 July 2014 and the mother asserts that she realised no equity from the sale.
In April 2014 the mother applied for the position of a Director in Singapore and her application was successful and she was offered employment to commence on 2 June 2014. The mother applied for and was granted a work and residence visa for Singapore on 8 May 2014. The position offered to the mother included a rental subsidy payment and as at 23 May 2014 the mother had secured three bedroom rental accommodation in Singapore. The mother asserts that there are other expatriate children living in the same apartment block and that some of those children will attend the same school as she plans for X.
The mother has facilitated the enrolment of the child X at School FG in Singapore and the enrolment of the child Y at GH preschool in Singapore. The mother’s child care arrangements for the child Y facilitate care for the child from 7:00am to 7:00pm and the mother proposes to hire domestic help to provide before and after-school care for X.

The mother departed Sydney for Singapore to take up her employment on 1 June 2014 and placed the children with a “temporary guardian”, a Mr IJ who, with his wife and children, lives in premises nearby to the mother’s former home. The mother had become acquainted with Mr IJ through his employment as a security guard for the complex in which the mother resided.
It appears that the father became aware of the mother’s departure to Singapore during the period between 4 and 14 July when the children were with him for the purposes of school holiday time. The mother alleges that the father failed to return the youngest child to preschool after 7 July 2014. Presumably it was her intention that the children would return to the care of the “temporary guardian” after the conclusion of the school holidays.
Once the eldest child X resumed school he was retained by Mr IJ on instructions it is inferred from the mother and thereafter the child did not attend school thereafter until 15 August 2014. The mother asserts the child’s non-attendance was for fear that the father would take the child into his care.
It was the mother’s proposal that X would commence school in Singapore on 19 August 2014.
The mother earns from her employment in Singapore $2769 Singapore dollars per week with her primary expenses being rent of $900 per week, education expenses for the children of $1000 per week, child-minding $150 per week and otherwise household and living expenses. She discloses no rental subsidy in her financial statement.
The mother at present proposes that she will not return to Australia to reside. The mother asserts that she was confident that the father would give his consent for the children to relocate to Singapore.
The mother includes in her affidavit in support of orders sought by her emails passing between herself and the father. Those emails evidence the difficulties that the mother and father encounter in communication with each other in a child focused way.

The father’s evidence

The father asserts that the child Y has been in his care since 15 July 2014. The child X has been in the father’s care since interim orders on 15 August 2014.
The father and mother met on several occasions in the first half of May 2014 and spoke by phone on one occasion. The mother informed the father that she proposed to move to Singapore and take the children with her.
She said to the father, he alleges:
Australia has many discriminations. I had been thinking to move to Singapore since I lost my job since October 2013. I can’t find a job because I am overqualified, I had few interviews with job hunter in Singapore otherwise I will move to Western Australia, at [Town JK] mining small town at least 6 hours fly.
The father informed the mother that he did not agree with the children moving to Singapore or Perth. The mother replied:
Yes, you don’t have choice, because I have sole parental responsibility, I can move anywhere I like, and I have another job offer from [Town JK], mining company in W.A.
The father informed the mother that she could go to Singapore but not the children.
The father asserts that without his knowledge the mother has travelled to Singapore on various occasions leaving the children in the care of unknown others.
Information from the Department of Immigration indicates that the mother has been absent from Australia more recently for the following periods: 31 August 2013 to 9 November 2013, 20 April 2014 to 23 April 2014, 2 May 2014 to 14 June 2014, 17 June 2014 to 21 June 2014, and 22 June 2014 to the present.
The children stayed with the father during the term 2 school holidays from 4 July to 14 July 2014. When the children came into the father’s care on 4 July 2014 the father says they were unwell and unkempt. During that period the children informed the father that the mother had indeed moved to Singapore and that they were in the care of a nanny and their neighbour Mr IJ.
On 14 July 2014 the father dropped the child X to school and spoke to the mother’s neighbour Mr IJ who said to the father “I’m happy for you as the father to look after the children, since in [the mother] moved overseas.”
The father collected some belongings of the children on the afternoon of 14 July and further belongings during the day on 15 July 2014. The father attended at X’s school to collect the child on 15 July to find that the child had already been collected by Mr IJ.
Thereafter the child X did not attend school until shortly before he was placed in the father’s care on 15 August 2014. Mr IJ refused to provide to the father information in relation to X’s welfare, the inference being that this was done on the mother’s instructions.
The father expresses concerns in relation to changes in the children’s circumstances whilst they are in the primary care of the mother. In particular the change of X’s school from School KL, Suburb LM that he attended in 2010, 2011 and 2012 to his present school, to which he was moved without consultation with the father. The mother informed the father of the change in schooling arrangements and preschool arrangements with the children on 1 February 2013 only an hour or so before the father was due to collect the children for time with him.
The father further expresses concern in relation to changes in the child care and preschool arrangements for the child Y as referred to above and the mother’s five moves as to her accommodation since July 2010.
The father has retained the children’s passports out of concern for their circumstances.
Subsequent to Y coming into the father’s care in July the father has enrolled the child at Suburb LM Early Learning Centre three days per week. The mother, he asserts, having cancelled the child’s previous child care arrangements. The father has now enrolled the child Y to commence his formal schooling in 2015 at the school attended by his older brother at Suburb BC.
The father has accommodation for the children in his home where each of the children would have their own rooms. The father has lived in the Suburb LM district since 2002. The father has assistance from his church community and others if necessary in relation to the care of the children.
The father has, since Y has come into his care, enrolled the child in a children’s beginner taekwondo program and the child is doing swimming lessons Saturdays at the MN Swimming Centre nearby to his home.

The Wishes Report

Exhibit E is a report dated 27 August 2014 prepared by Ms BB, Social Worker, in the employ of Legal Aid NSW. The report was prepared at the request of the Independent Children’s Lawyer for the subject children and is based on interview with the child X on 25 August 2014.
The reporter notes that the father was not present when the child was interviewed; he remained in the reception area with Y. An attempt was made to interview Y in the presence of his father. However as Y remained distracted and unable to settle and engage in the interview process the interview was terminated.
At the time of interview X was 10 years and 2 months of age. The child informed the reporter that he would prefer to be called “[an abbreviation of his given name]”.
The child said that he had some understanding of the purpose of the interview and was aware of the court proceedings. The child’s understanding was that a “Judge person” would make decisions about what would happen. The child clearly had significant knowledge of the court proceedings, informing the family reporter “when dad wouldn’t sign the paperwork for the passport mum told me she would go to the family court and make arrangements for me to go to Singapore”.
X initially expressed a wish to return to live with his neighbours until he could go to Singapore, having been told by the mother that she had left him with neighbours as she needed to go to Singapore for work but couldn’t take him as his father would not sign papers for his passport. X seemed acutely aware of his mother’s employment difficulties.
Initially X said he could not understand why his father would oppose his move to Singapore. However on further exploration by the family reporter X acknowledged that his father would miss him but suggested he could continue to see his father often as his mother was prepared to pay for him to fly to Australia.
Somewhat unrealistically X expressed the view that he could continue to see his father every second weekend but eventually conceded that these arrangements could not be maintained if he lived in Singapore. The child appeared to become more aware of why the father opposed the children’s move to Singapore but still insisted that visits could be arranged and that this would make his father happy.
X reported that he had not missed his mother since she left Australia and he had been able to talk to her regularly via the Internet. The child could offer no explanation as to why his mother made arrangements for him to stay with neighbours rather than his father. X expressed the view that his younger brother Y did not miss the mother and was happy staying with the neighbours but that Y likes living with their father.
X was of the view that his father was trying hard to look after him as well as Y.
X confirmed the mother’s previous arrangements where the children were significantly cared for by a nanny employed by the mother.
X identified his mother, father and Y as his immediate family while drawing a family genogram.
X had memories of living with his parents before they separated. He had memories of domestic incidents between his mother and father and being disciplined physically by his father. He described his present contact visits with his father as “all right” and said that his father does not hit him or shout at him. He described similar activities with his father as when with his mother.
When spoken to about school X talked in a very positive way about his current school at Suburb BC. The child reported that he is “somewhere in the top of his class. Dad saw my teacher and she told him I came second in English.” The child reported that he enjoyed playing his violin, he was in the school band and that religion was his favourite subject. He further reported that he liked his class teacher, that he had many school friends and that he would miss them when he goes to Singapore. The child reported to the report writer that if he stayed in Australia he would most probably go to School CC for high school.
When faced with the possibility of not being able to join his mother in Singapore, X said he would be unhappy but would stay with his father observing “I would be really sad. If I had to I would stay with dad but it would take a long time to get used to staying with dad”.
The child acknowledged that if he lived in Singapore his father would miss him and would be sad.
In the event that he was not allowed to join his mother in Singapore X told the report writer that he would like to continue to be able to talk to his mother on FaceTime every day and would like to visit his mother during the school holidays but was unsure how much this would cost.
X said that he thought it was important for Y to be with him and that any arrangements made in relation to where he lived needed to be the same for Y. Although if he was allowed to go to Singapore and Y was to stay with his father, X would choose to go to Singapore rather than stay with Y saying that Y would be happy living with their father and his father would look after Y.
In summary the report writer observed that X was able to articulate and express his views in an appropriate manner but at times found it difficult to describe his feelings and became emotionally distressed during the interview, particularly when talking about the mother and the possibility of not joining her in Singapore.
There was nothing, observed the report writer that indicated that the child’s answers were rehearsed or that he had been coached in some way.
The child had some understanding of the court process and had some recollection of the court’s involvement with his parents in earlier proceedings. The child seemed to have been provided with a glossy picture of Singapore by the mother. The child’s attraction to Singapore, says the report writer, may not be solely motivated by his need to be restored to his mother’s care but may include what he views to be an adventure of leaving Australia and it is highly likely that the mother has influenced the child’s thinking to a certain degree about the lifestyle and activities he would experience in Singapore.
The report writer observes that X would prefer to live with his mother but the child accepts that he may not have a choice and will remain living with his father. Whilst X is willing to be separated from his brother in order to join his mother in Singapore, separation of the siblings is not suggested or supported by the reporter. Maintenance of the brotherly bond between X and Y is critical says the reporter, as this will be an enduring sibling relationship for both boys if nurtured and supported.
X identifies his school placement as being a positive strength in his life and indicated that his school life would be a support to him if he remained in Australia and with his father.

The Independent Children’s Lawyer

Both parties appeared unrepresented. Their submissions were of little utility as they persisted in descending into criticism of each other. Both parties showed little capacity to properly reflect on the needs of their children.
In considered submissions the Independent Children’s Lawyer was of the view that it was in the best interests of the children for the mother to return to Australia and resume arrangements as were provided for in previous orders.
The affidavits and the wishes report submitted the ICL, reveal the children are settled in Australia and X enjoys his school and his friendship groups.
Whilst X was at first angry with his father for what he perceived as an impediment to him going to Singapore, the child became more thoughtful and was able to engage with the report writer in relation to different options and outcomes. The Independent Children’s Lawyer contends the report reveals an unexpected degree of maturity in the child X who presented as well aware of the conflict between his parents. It is clear that the children have been unsettled by arrangements over the last few months, particularly the mother’s decision to relocate to Singapore.
The Independent Children’s Lawyer contended that it was difficult to envisage an order that facilitated on an interim basis the relocation of the children to Singapore and was not supportive of such an order.
As to the mother and father, the Independent Children’s Lawyer held concerns about their level of conflict escalating and the blame levelled one against the other. Both parents see their particular position as black and white and give no credit to the other parent for their role in the children’s lives.
The Independent Children’s Lawyer conceded that the children’s primary attachment was to the mother. The child X it was contended could cope with electronic communication with the non-resident parent but at the age of only just 5 such an arrangement would be difficult for the child Y.
Importantly the Independent Children’s Lawyer expressed reservations as to the likely effect on the children of the loss of their present “social capital”. X would be required to start again at a third school and Y is shortly required to complete his “best start program” being a preliminary to the commencement of his formal schooling in 2015.
It was difficult, said the Independent Children’s Lawyer, to recommend at present further significant changes to the lives of these young children.
The ICL notes that the mother’s relocation to Singapore and the respective financial circumstances of each of the parties present some practical difficulties and expense in the children having contact with the non-resident parent. Such time would of necessity need to be during NSW school holidays with regular electronic communication with the non-resident parent and other times when the non-resident parent is visiting.

Interim Relocation

The Full Court said in Sayer & Radcliffe & Anor [2012] FamCAFC 209:
47. It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders (see Morgan and Miles (2007) FLC 93-343 at paragraphs 72 to 73, Palmer & Hammer (No 2) [2011] FamCAFC 196 at paragraph 28).
48. A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents (see Palmer & Hammer (No 2) paragraph 76; Morgan and Miles paragraphs 80 to 81). It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
49. The provisions of the Act which form that legislative pathway have been reproduced at length by this Court many times (Taylor v Barker (2007) 37 Fam LR 461, Morgan and Miles (supra), Adams & Randall (2011) FLC 93-482).
In Starr & Duggan [2009] FamCAFC 115 the Full Court said:
35.In McCall & Clark the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.
36.The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
37.Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.
38.However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
• first make findings concerning the relevant s 60CC factors;
•then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
•then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
39.Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.

The parties’ proposals

The proposals of the parties have been discussed above.
Consideration of the proposals is hampered by both parties asserting financial circumstances that would at first appear to preclude international travel by the children to be with the non-resident parent.

The mother conceded that the children would require a period of adjustment should they move to Singapore but was of the view that they would cope with the change. The mother has no capital funds and would live from week to week on her income. She asserts no capacity to fund travel of the children to or from Singapore.
The mother has 18 days annual leave available to her each year but asserted that she had used 5 already in travel to Australia.
The father submitted that if the children reside with him he would facilitate the children, accompanied by him travelling to Singapore for the latter half of the Term 3 school holidays provided the mother paid the airfares. She asserts she no capacity it appears to do so.

Discussion

The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286, MRR v GRR (2010) 240 CLR 461.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the children.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption does not apply where:
a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)]; or
b)in interim proceedings, where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; or
c)if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the children’s best interests and reasonably practicable.

Best interests of the children

Firstly, the additional considerations s 60CC (3). The Court has had regard to each of the additional considerations set out in section 60CC (3) of the Act. The relevant considerations are as follows:
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;
The “wishes report” has been considered above. Only the child X was interviewed. The context of his interview and expressed wishes will not be repeated here. In the present application his wishes, reflective and to some extent ambivalent as they are, should be given little weight. Clearly the child has been placed in the middle of this conflict by both parents. The issue for determination is beyond the maturity of the child.
b)the nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);
Notwithstanding the conflictual and mistrustful attitude between the parents, the children appear to have established and positive relationships with both the mother and father. Historically the mother appears to be their primary attachment.
The nature of their relationship with each parent has been overshadowed by ongoing conflict and mistrust. It can only be expected that the mother abandoning the care of the children to a third party covertly would have been confusing to the children; particularly where their father had been spending significant time with them and had settled accommodation. This confusion seems to be evidenced in the wishes report in the more considered responses given by X in the latter part of the interview.
The nature of the children’s relationship with each other is important. It is regrettable that initially X expressed the view that he could go to Singapore and his younger brother could remain with the father.
c)the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child;
The parties have already had one hearing as to parenting over 6 days in late 2012. The children have been in a relatively settled arrangement since then until the recent actions of the mother in moving to Singapore unannounced. A proper assessment of this consideration awaits a final hearing.
ca)…
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This issue arises as a consequence of the mother’s unilateral move to Singapore. On either proposal the children will be in starkly different circumstance not envisaged at the time of their previous trial or indeed until May/June 2014.
The mother’s proposal will result in a significant and concerning dislocation of the children.
In this regard the submissions of the Independent Children’s Lawyer are important and thoughtful. A course that is less disruptive of the children’s established “social capital” until a fuller determination is sought by the ICL on behalf of the children.
The father seeks orders that facilitate a continuing stable environment for the children in Sydney with the youngest child commencing at X’s school in the new year.
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 affected the child’s rights to maintain personal relations and direct contact with both parents on a regular basis;
Apart from electronic communication, the ability of each of the parents to provide the children with face-to-face contact with the other parent is limited by financial considerations.
It would be less expensive for the mother alone to fly to Australia for time with the children. Neither party adduces evidence as to flight schedules or airfare costs.
The mother, she contends, has no capacity without financial contribution from the father to fund airfares for the children to Singapore and return although the father suggests he would travel with the children if funded.
The mother’s financial statement is indicative of a significant surplus of income over expenses if the children remain in Australia and she is not burdened with school fees.
The mother’s lack of leave entitlements makes the prospect of the children staying with her whilst she continues to work a significant child care issue. Should she have leave available she should if possible take it if the children are to spend time with her in Singapore. If leave is not available the children should be with the mother each evening and returned to the father’s care during the day.
The father has some capital funds available as evidenced by his financial statement. He has a capacity to contribute to airfares in the short term.
These considerations suggest that the children could travel with the father to Singapore for a portion of the forthcoming school holidays with the father paying his own airfare and accommodation and contributing to the cost of the children’s airfare.
f)the capacity of each of the child's parents; and 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;
Neither parent demonstrates any reflective capacity in relation to the needs of their children. Their ongoing conflict and self-interest is all consuming. An assessment of this issue will await final trial.
g)…
h)…
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Whilst the final relevance of this factor will await final trial, the evidence before this court thus far is indicative of the mother having a less than satisfactory attitude to her children and to her responsibilities of parenthood in her covert decision to move to Singapore.
Yet both parties present as less than appropriate in this regard. An assessment will await final trial.
j)any family violence involving the child or a member of the child's family;
This issue was dealt with at the earlier trial as referred to above. There are no recent issues in this regard.
There are allegations made by the parents one against the other as to conduct and behaviour that fall outside this factor.
k)…
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;
These are interim proceedings brought in urgent circumstances set out above. Final orders in relation to the subject children will await final hearing.
m)…
The primary considerations - s 60CC(2) are:
n)the benefit to the child of having a meaningful relationship with both of the child's parents; and
o)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In Mazorski & Albright [2007] FamCA 520; Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The children enjoyed a short period of development and stability in their parental relationships following the previous trial. Such bliss was short lived and about 18 months after judgment litigation has again exploded.
On a final basis it is clear that the children will live either in Sydney or Singapore. How the court promotes a meaningful relationship with the non-resident parent at that time awaits hearing.
At present the difficulties in relation to the children’s relationships with the parents must be considered in the context of the period until hearing. That is expected to be about 6-7 months in this Registry.
The father’s proposal is that the children remain here in Sydney in their present settled arrangements particularly X as to his school where Y will join him in a few months. The relationship with the mother can be facilitated by Skype and phone with face to face time practicable in school holidays. Such an arrangement is supported by the Independent Children’s Lawyer.
The second primary consideration is the “need to protect”. There are suggestions in the parties’ evidence and the wishes report that the children are exposed to the conflict between their respective parents particularly on occasions during electronic communication.
A significant factor for the court is the risk of psychological problems if any that will be occasioned to the children if they are dislocated from what the Independent Children’s Lawyer referred to as their “social capital” in Sydney into quite untested circumstances in Singapore.
The realities of that risk will be explored at a final hearing but this interim determination provides the opportunity for any such risk to be alleviated by the children being afforded stability until final hearing.

Parental responsibility

The mother on a final basis seeks an order that she have sole parental responsibility for the children.
The court is required in circumstances where there are parenting proceedings to consider the application of a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. Circumstances where that presumption does not apply are referred to above.
In circumstances where the court proposes to make an order that would mean that the children reside with one parent in Australia and the other parent is permanently overseas, where both parents demonstrate little ability to communicate with the other, where in the immediate future there are no major decisions to be made in relation to the children and a final hearing is at worst about 6-7 months away in this Registry it is not appropriate for the presumption to be applied.
It is appropriate in such circumstances for the parent with whom the children reside to exercise parental responsibility pending final hearing.
In the absence of the presumption as to equal shared parental responsibility applying, the court is not required to consider the provisions of section 65DAA that requires a consideration of equal time or substantial and significant time for the children with each of the parents where such indicated by the best interests of the children and are reasonably practicable. Clearly in circumstances where one parent is overseas a consideration of reasonable practicality would in any event preclude such time arrangements.
Having regard to the best interest considerations referred to above and the principles and objects of Part VII of the Act it is appropriate that orders be made that facilitate the children pending further order living with the father and for the mother to spend time with the children in Australia when she is in Australia, in Singapore during school holidays and for the continuation of electronic communication between the mother and the children.
Orders will be made accordingly as set out at the forefront of these reasons for judgement.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 5 September 2014.

Associate:

Date: 5 September 2014