Family Court: previously abducting mother allowed to return with children to Ireland

It has been suggested by a number of commentators recently that the 2006 amendments to the Family Law Act have made it considerably harder for relocation cases, especially international relocation cases, to succeed.

In contrast to that commentary, the Full Court of the Family Court in Champness and Hanson recently dismissed an appeal by a father seeking to prevent the mother from returning with the children to Ireland. What was most significant was that the mother had previously abducted the children to Ireland, and only returned with them to Australia after the father commenced Hague proceedings.

The trial judge, Justice Burr, set out a list of factors both for and against the move:

The factors mentioned in supporting a relocation to Ireland were:

• The mother having been born in Ireland and having spent her first 31 years living there.
• The children being “part Irish” and having experienced life in Ireland where they had extended family and where they could explore their Irish culture and enjoy their extended family.
• The significant financial support available to the mother in Ireland where she had been offered a home and a job.
• The mother being far more secure emotionally when removed by a significant distance from a violent and controlling former partner (it being noted the mother’s emotional security was essential for her to fully discharge her parental responsibilities, she being the “single most important person” in the children’s lives).
• The children not being exposed to the possibility of witnessing further violence by their father towards their mother and suffering his controlling behaviour.
• The “all embracing extended family in Ireland” being a “far cry” from their experience in Australia where they had been isolated by their father’s conduct in Adelaide and where in Sydney they had few friends and only one aged relative.
• The father being able to maintain regular communication with the children and with the father’s relationship with the children being “supported by twice yearly physical contact”.
• The mother’s acceptance of the importance of a relationship between the children and the father.
• The children would not suffer the loss of any present relationship with extended family members on the father’s side.
• As [O] had not commenced his primary schooling, there would be no disruption to his academic progress.
• [E] had already experienced schooling in Ireland and would “readily make the adjustment again”.
• The relocation had been supported by the Independent Children’s Lawyer who considered it “clearly best represents the children’s interests”.
• A move to Ireland “recognises the mother’s right to freedom of movement”.

The list of factors against the relocation to Ireland was much shorter:

• The children would see less of the father who had been seeing them each month at the Contact Service in Sydney.
• The cost of physical contact would be much greater than if the children remained in Australia.
• “The children’s re-emerging relationship with their father was likely to take longer than if they remained resident in Australia”.
• [E] would have to change schools.
• The children had been born in Australia and had spent all of their lives in Australia, except for the 9 months they had spent in Ireland.

Lack of meaningful relationship

The father argued that for the children to return to Ireland would mean that he would not have a meaningful relationship as set out in s.60CC(2)(a) of the Family Law Act:

Counsel for the father submitted “face to face contact and time … are the
important factors to foster a meaningful relationship”. He asserted this was
“even more so in this case where the children are young, have been spirited off
to Ireland and the mother refuses the father any time at all with the children
when she is forced to return to Australia”. Counsel acknowledged the evidence
showed the father’s relationship with the children “although supervised is
progressing well”, but added that supervised time was “a far cry from being a
meaningful relationship”.
Counsel for the father submitted the relationship
would only become “meaningful” if the children remained in Australia “so as to
provide more regular face to face contact and interaction”. Counsel conceded
this submission was contrary to the Court Expert’s evidence that a meaningful
relationship could be sustained if the children relocated to Ireland. However,
counsel criticised the manner in which he said the trial Judge led the Court
Expert to express this opinion. This complaint is the subject of a specific
ground of appeal and we will consider it later.

Counsel for the father submitted it was:
an inescapable reality that
relocating the children … will very significantly compromise their
relationship with their father such that it will never develop to a meaningful
relationship and will eventually cease to exist at all. It will prevent the
establishment of a level of intimate interaction that can only be borne from
regular, persistent and frequent contact and interaction.

Counsel went on to submit it was implicit in the evidence of the Court
Expert that it was not possible to sustain such an intimate interaction when the
parents were living vast distances apart, especially in light of the mother’s
past resistance to the father spending time with the children.

Counsel for the father referred to cases where the Court had refused
applications for an international relocation, including another case determined
by Burr J. He referred also to Professor Patrick Parkinson’s article “Relocation
in an Era of Shared Parental Responsibility” which analysed a number of
relocation cases. Professor Parkinson had concluded that “the overall pattern of
reported decisions is that a majority of domestic relocation cases are
allowed…[whereas] the position is different in regard to international
relocations where it is very unlikely that relocation will be allowed”.

Counsel for the father submitted the primary considerations in s
60CC(2) are “above additional considerations” – i.e. those considerations
contained in s 60CC(3).
He acknowledged one of the two primary considerations in s 60CC(2)
related to the protection of children from physical or psychological harm but
submitted there was little risk of such harm and “the prospect of children
witnessing violence to their mother is practically non-existent”.

The Full Court found there was no merit in this ground:

It is convenient to address first the father’s submission that the primary
considerations in s
60CC(2) are “above additional considerations”.

It is true the primary considerations are “above” the additional
considerations in the sense they appear first in s 60CC.
However, we do not accept the premise inherent in the submission of counsel for
the father that the primary considerations will always outweigh the additional
considerations.

We concur with the view expressed by Warnick and Thackray JJ in Marsden
& Winch (No. 3) [2007]
FamCA 1364 concerning the relationship between the primary and additional
considerations. In that matter their Honours said:

The present case is not an appropriate vehicle in which to undertake
a detailed
analysis of the implications of the legislation prescribing
certain matters as
“primary” considerations. It is sufficient to say it is
palpably clear that
whilst the “primary” considerations should be accorded
particular importance in
determining what order will best promote the
interests of the child, they cannot
determine the outcome in every case. Not
only must the “additional”
considerations be taken into account, but the two
“primary” considerations
themselves may tend in different directions. That
is to say, whilst there may be
great benefit attached to a particular child
having a meaningful relationship
with both parents, that benefit may be
outweighed by the need to protect that
particular child from physical or
psychological harm associated with maintaining
such a relationship.
It follows that we reject the premise inherent in
the husband’s
submission that his Honour was obliged to indicate “what factor or
factors
combined to displace the primary consideration contained in section 60CC(2)(a)”.
Firstly, that submission ignores the fact that there is a second primary
consideration which his Honour was also obliged to take into account.
Furthermore, it is not a question of other factors being needed to
“displace”
one of the primary considerations. Rather, his Honour was obliged
to take into
account all of the relevant considerations identified in the
legislation, giving
each of them such weight as he thought appropriate in
arriving at the result
most likely to promote [the child’s] best interests.
In doing so, he was of
course obliged to place particular emphasis on the
“primary considerations”.
This is not only because the legislature has
identified them as “primary” but
also because they are manifestly of the
utmost importance in determining what
outcome will best advance a child’s
best interests.

The submissions of counsel for the father also appeared at times to be based
on an assumption that it was obligatory for the trial Judge to make the orders
most likely to ensure the children had a “meaningful relationship” with both
parents. This is an incorrect assumption. The Court’s obligation is to make the
orders most likely to promote the child’s best interests. In seeking to achieve
that objective, s
60CC(2)(a) directs the Court to consider “the benefit to the child” of
having a meaningful relationship with both parents. Even if such a benefit is
established, it must still be weighed along with all of the other relevant
factors. (See Bennett J’s analysis in G & C [2006]
FamCA 994.)

It will be apparent from the summary we have provided that the trial
Judge was acutely conscious of the importance of both of the primary
considerations. In paragraphs 45 and 46 he discussed the legislative framework
and went on to say (at paragraph 47):

whether or not a “meaningful relationship” can be enjoyed by the father
and [E] and [O] in the event [of a relocation] will depend to a large degree
upon the quality of the existing relationships, the willingness of the parties
to maintain that relationship and whether different forms of time spent by the
father with his two children and different forms of communication can adequately
ensure the maintenance of that relationship.

His Honour accepted the evidence of the Court Expert that it would take
“some time” for a meaningful relationship between father and children to
“develop fully”. He also accepted her evidence that the development of a
meaningful relationship would require “a far greater input from the father and
far greater insight into the effect of his conduct upon the children and their
needs rather than his own”. He also recorded, and apparently accepted, the
evidence of the Court Expert that:

the father’s relationship with the children could still be meaningful in
circumstances where they saw him on two occasions per annum provided it was
supported by other regular forms of communication [and] that a meaningful
relationship can exist without involvement in the daily lives of the
children.

Although his Honour did find there was evidence of an improving
relationship between the father and the children, it must be recognised this was
measured against a low benchmark, since the father had not spent any time with
the children for two years from 2005 to 2007 and thereafter had only a few
supervised visits.

His Honour considered the relationship between father and children, such
as it was, could be further improved by continuing the regular supervised visits
until December 2008, when the children would take up residence in Ireland.
Thereafter, he considered the relationship could be sustained by face to face
visits of two weeks duration each year (to be funded predominantly by the
mother), along with regular communication by letter, telephone and various
electronic means as described in the orders replicated above.

We consider all of these findings were open to his Honour. Furthermore,
they need to be assessed in the context of his Honour having found an
overwhelming number of factors favouring the relocation to Ireland. In such
circumstances we are not persuaded his Honour failed to give proper attention to s
60CC(2)(a) and we conclude there is no merit in this ground.

Father’s violence

Counsel for the father made a variety of submissions concerning the absence or
quality of corroborative evidence to support the mother’s allegations. He
submitted that “the Court should …require fair degree of certainty that these
things occurred and were not sort of posturing and low level threats and dramas
often seen and experienced with most couples going through the vicissitudes of
life and living together”. Counsel also made reference to s 140
of the Evidence Act
1995 and the test in Briginshaw v Briginshaw [1938] HCA
34; (1938)
60 CLR 336.

The Full Court rejected this argument:

This ground can be dealt with shortly. The trial Judge had the significant
benefit of seeing and hearing the evidence of the parties. He found the evidence
of the mother concerning the father’s violent and controlling behaviour to be
“compelling”. His reliance on other evidence was merely by way of corroboration
of that “compelling” evidence.

Rice and Asplund

Aside from the obvious issue that the mother and children, in moving back to Ireland would not be the subject of further litigation in Australia, but in Ireland, the court dealt with the father;s argument that in making a long term supervision order, the father would have difficulty in changing the orders later in light of the Rule in Rice and Asplund.

The Full Court stated:

We nevertheless acknowledge that the Full Court has expressed concern about
the absence of some kind of review mechanism when orders are made for long-term
supervised contact. Part of the concern, expressed in cases such as H v K [2001]
FamCA 687, is that the parties are left with “no mechanism for moving
forward” and that the parent seeking to remove the supervision requirement will
have difficulty in meeting the “changed circumstances” test in Rice v Asplund (1979)
FLC 90-725.

We do not accept the Rice v Asplund test would prevent the father from
seeking to discharge the supervision requirement. The basis of the order was the
acceptance by his Honour that the father would need to “demonstrate a clearer
understanding of the impact of his violent and controlling behaviour and of
appropriate standards of parenting before the Court should consider discharging
the requirement for supervision”. Accordingly, should the father bring an
application supported by plausible evidence suggesting he had addressed these
issues, we have difficulty in seeing how Rice v Asplund could prevent him having
his application heard.