Zin & Yijun [2022] – Parenting Orders for Children’s Return to Australia in Family Law Case

SCHONELL J:

1. On 31 March 2022, the husband filed an Initiating Application seeking interim orders for the immediate return of the parties’ two children, X born in 2015 and Y born in 2020 to Sydney. The filing arose in circumstances where the wife had, with the consent of the husband, travelled to Country B for a holiday but had thereafter indicated to the husband that she did not intend to return to Sydney with the children.
2. At the hearing, the husband sought orders in a Proposed Minute of Order that became Exhibit “A” in the proceedings. The orders he sought were as follows:

Procedural

1. That the mother’s application for child support and spousal maintenance be adjourned to a date after the mother returns to the Commonwealth of Australia, noting the mother has not yet raised a child support assessment.
2. That the applicant is to file a financial statement and financial questionnaire within 28 days.
3. That the parties exchange financial disclosure pursuant to Rule 6.06 of the Family Law Rules within 42 days from today’s date.
4. That the parties are to file one consolidated affidavit each in preparation for the interim hearing as to child support and spousal maintenance no later than 7 days prior to the interim hearing and the affidavit is to be limited to 20 pages and 10 annexure.
5. An order as to the appointment of an Independent Children’s Lawyer.
6. Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and children [X], born in 2015 (“[X]”) and [Y] born in 2020 (“[Y]”) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
7. Each party will do all things necessary to ensure the children attends upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
8. The parties and the children shall continue to attend at such times, dates and places as the Court Child Expert may advise.
9. The Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:

5.1 any agreement reached between the parties;

5.2 identification of key issues requiring resolution;

5.3 any views expressed by the child;

5.4 any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;

5.5 the mother’s ability to facilitate a significant and meaningful relationship between the children and the father;

5.6 the effects of the mother’s unilateral move to [Country B] on the children;

5.7 the impact of the issues/dispute before the Court on the children;

5.8 any other matters that the Court Child Expert considers important to the welfare or best interests of the children.

10. Upon completion, the Child Impact Report shall be provided to the Associate to Justice Schonell for release to the parties, including by way of order made in Chambers.
11. The Court Child Expert shall be at liberty to inspect any material filed by the parties any subpoena material held by the Court.
12. The matter be listed before the Court for a further interim hearing as to the interim parenting live with and spend time arrangements on a date after the Child Impact Report is released.
13. Leave is granted to the parties to contact Chambers to file any terms of agreement and to administratively vacate the interim hearing in the event the parties reach an agreement on the interim parenting arrangements prior to said date.

Return to the Commonwealth of Australia

14. That, the mother do all that is required and sign all documents necessary so as to cause the children to be returned to Sydney, New South Wales, in the Commonwealth of Australia, within 28 days from the date of these Orders.
15. That the mother is to do all that is required and sign all documents necessary so as to cause the Passport for the child [X] to be renewed forthwith and provide documentary evidence of the application and supporting documentation of said application within 3 business days from today’s date.
16. That for the purposes of obtaining the Passport for the child [X], the father is to sign the application form and provide all documents necessary to the mother no later than 2 days after her requesting said signature or documents.
17. That, pending the children’s return to Australia, the children are to spend time with the father by way of video call twice a week on a date and time agreed between the parties and absent agreement then on Tuesday and Friday between 6pm and 6.30pm for a period of up to 15 minutes.
18. That, for the purposes of the children returning to the Commonwealth of Australia, the mother is to use the credits available to her by virtue of the return tickets already booked. Should any further fee be raised by the airline or a difference in price be incurred to change the date of return travel, then the father will pay said fee and/or difference in the price for the mother and children to return to Sydney, Australia.

Pending further order of the Court:

Live with and school

19. That, upon their return to Australia, the children and the mother are to reside in the former matrimonial home being the property situate at and known as [G Street, Suburb H], NSW and have sole occupation of the home to the exclusion of the father (“the home”).
20. That the father is to continue paying the mortgage repayments, utilities and rates associated with the home.
21. That the children live with the mother and spend time with the father every weekend from Friday 5pm until Sunday 5pm with changeover to occur at the home by the father or his nominee.
22. That the parties are to forthwith do all that is required and sign all documents necessary so as to cause [X]’s enrolment to be reinstated with [C School] and for the child to recommence attending school.
23. That the father be responsible for the payment of the school fees for [X].
24. That, on a without admissions basis and without prejudice to the father’s position, from the children’s return to Australia and pending the hearing of the spousal maintenance application filed by the mother, the father will:

20.1 continue to pay the private health insurance premiums at the current rate of cover;

20.2 pay for the child [Y]’s day care fees for 5 days a week;

20.3 pay to the mother the amount of $500 per week by way of spousal maintenance.

Urinalysis testing

25. That, on a without admissions basis, the father will undergo a chain of custody urinalysis test once a fortnight for a maximum of three fortnights.
26. That the father is to instruct his solicitors to provide a copy of the results of the urinalysis tests to the mother’s solicitors within 72 hours of said results being received.

Family Law Watchlist and passports

27. The father is to retain the children’s passports and, to do so, then within 7 days of the mother’s arrival to Australia, the mother is to cause the delivery of the children’s passports, Australian and [Country B], to her solicitors for delivery by courier to the solicitors for the father within 2 business days of receipt. The father is to then collect said passports from his solicitor’s office.
28. That pending further order, each party and each of their servants or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children [X] (a male) born in 2015 and [Y] (a male) born in 2020, or either of them, from the Commonwealth of Australia.
29. The Marshal of the Federal Circuit and Family Court of Australia and all officers of the Australian Federal Police and of the Police forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these Orders and take all necessary steps to restrain either party from removing or attempting to remove the said children or either of them from the Commonwealth of Australia.
30. Pending further Order of the Court, the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said children’s name on the Family Law Watchlist, also known as the PACE Alert System, at all points of arrival and departure in the Commonwealth of Australia.
31. The Australian Federal Police maintain an airport watch list of the said children on all flights leaving any international or domestic airport in all States and Territories of the Commonwealth of Australia.
32. The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these Orders.

Injunctions

33. That, the mother is restrained by injunction from changing the children’s residence without the father’s prior written consent or an order of the Court.

NOTATIONS:

1. The mother has not yet raised a child support assessment with the Child Support Agency in Australia.
2. For the purposes of travelling to [Country B], the parties had booked return airfares to Australia. The mother, upon her unilateral decision to remain in [Country B], changed the date of return on said tickets to a later date in 2022. These tickets remain valid.

100. For the purposes of the orders requiring the father undertake urinalysis testing, it is noted that the husband takes prescription medication being:
     1. Medication for blood pressure, the name of which the applicant is unsure at this time, prescribed by his general practitioner [Dr D];
     2. [Medication] for depression, prescribed by his general practitioner [Dr D];
     3. [Medication] for adult ADHD, prescribed by his psychiatrist, [Dr F];
     4. [A second medication] for adult ADHD, prescribed by his psychiatrist, [Dr F];
     5. [Medication] for Obsessive Compulsive Disorder, prescribed by his psychiatrist, [Dr F].

4. The father has undertaken a urinalysis test on 27 April 2022, the results of which have yet to be produced.

(As per the original)

3. The wife conceded that this Court had jurisdiction to hear the application.
4. The wife did not seek any interim orders in relation to the children either in her Response or in her Case Outline.
5. Her counsel advised the Court that she opposed the children’s return to Australia, contending that the issue of return should await determination at a final hearing.
6. The wife through her counsel indicated that if the Court did make an order for return then she did not take issue with the orders as proposed by the husband in Exhibit “A” save that if a return order was made then she sought a three month period (husband’s proposed Order 14), that she would need seven business days to comply with the requirement to obtain the necessary passports (husband’s proposed Order 15), and that the amount of maintenance should be $1,000 per week (husband’s proposed Order 24).
7. The wife was advised that the Court was not determining the issue of spousal maintenance as the husband had not filed a financial statement and this was something that could be addressed on the adjourned return date.
8. The issue for determination was therefore whether an order should be made for the return of the children to Australia within 28 days or whether the children should remain in Country B, and whether the issue of return should be determined at a final hearing.
9. The husband relied upon the following documents:

(1) Initiating Application filed 31 March 2022;(2) Affidavit of husband filed 31 March 2022;

(3) Notice of Risk of husband filed 20 April 2022;

(4) Parenting Questionnaire of husband filed 31 March 2022;

(5) Case Outline; and

(6) Proposed Minute of Order.

10. The wife relied upon the following documents:

(1) Response to Final Orders filed 20 April 2022;(2) Affidavit of wife filed 20 April 2022;

(3) Parenting Questionnaire of wife filed 20 April 2022; and

(4) Case Outline.

BACKGROUND

11. The parties are both Country B by birth.
12. The parties married in Country B in 2014 and later that month, the wife moved to Queensland to live with the husband who had initially come to Australia in early 2011.
13. In 2015, the parties’ first child X was born. In mid-2015, the parties’ and X obtained permanent residency.
14. At some stage during 2017 (the exact date matters little for the purposes of this application), the parties moved to New South Wales where the husband purchased a business.
15. In 2020, X commenced attending C School.
16. In 2020, Y was born.
17. In November 2021, the husband moved out of the former matrimonial home and indicated to the wife that he did not intend to travel with her to Country B for the forthcoming family holiday.
18. The parties seem to agree that this was when they separated.
19. In December 2021 (the date matters little for the purposes of this application), the wife travelled with the children to Country B for the purposes of a four-week holiday.
20. On 31 January 2022, the wife, by a letter from her solicitor, informed the husband that she did not “have a plan to return to Australia in the near future as the elder child (X) will enter a primary school in Country B in early March of this year” (husband’s affidavit filed 31 March 2022, Annexure H).
21. In the same letter, the wife proposed that the husband spend time with the children for half of each school holiday and on other occasions upon the giving of two weeks’ prior notice. She also sought various documents by way of disclosure obligations and sought a sum of money by way of spousal maintenance and child support. The letter ended with a statement to the effect that if she did not receive a response then the wife would be commencing proceedings without further notice.
22. It is not in dispute that the husband had not been given any prior notice of the wife’s intention not to return to Australia nor is it in dispute that the wife’s intention to remain in Country B and enrol the child in school was a unilateral act.
23. On 20 April 2022, the wife filed a Response in which she sought interim orders by way of financial injunctions and spousal maintenance. Despite the orders the husband sought in relation to interim parenting arrangements, she sought no interim parenting orders. As part of the final relief, the wife sought an order that she have 65% of the parties’ property, an order for permanent spousal maintenance, that the children live with her in Country B, and that she have sole parental responsibility. The wife proposed no time orders between the husband and the children.
24. The husband contends in his affidavit that following the parties’ separation, and prior to the wife travelling to Country B with the children, he saw the children about two or three times a week, that he attended the home and sometimes stayed overnight but in a different room, and that X was dropped off to his sister’s place on one occasion.
25. The husband says that following the receipt of the letter from the wife’s solicitors, the husband contacted the wife and there was a text exchange between the parties. The husband says in that text exchange the wife said to him on 8 February 2022:

35. …

… “you haven ‘t changed anything, do you really miss the children? Your priority is your work and your exercise. If you really miss your kids you have to fit your time into the children’s time. What time do you want? I will see whether I can change it.”

…

26. He also says that on 8 February 2022, he had a video call with X and Y and this was the first contact he had with the children since they had left for Country B.
27. The husband says there was another text message on 10 February 2022, where he complained about not seeing the children that day by video and that the wife replied:
    38. … “I was unwell, you need to give me notice to see the kids. How about child support, properties and financial assets divided? What are you going to do? my lawyer didn’t receive anything. If you want to see the kids, you should care about supporting financially … think about what your duties are”
28. The wife in her affidavit identifies that shortly after marriage, she found bottles on the husband’s desk which she says were anaesthetics, and she says that the husband brought these bottles home “secretly to take” (at paragraph 13). She refers to a conversation she had with the husband in 2016 about taking such drugs. She says that the husband injected himself in front of her.
29. The wife makes a series of assertions in her affidavit suggesting that the husband had problems with alcohol consumption, that he pressured her to have sex, that he physically assaulted her, and that he was taking prescription sleeping tablets and other medication for a range of mental health issues as well as pain killers. The wife also gives evidence that the husband ordered medication over the internet and that on one occasion he was under the influence of medication to the point that he was unstable and an employee called her and she had to come to his work. The wife also gives evidence that the husband was “contacting drug dealers by SMS” (at paragraph 53), and annexes what she contends to be a number of SMS messages between the husband and these alleged drug dealers.
30. In her affidavit, the wife says that when the husband was under the influence of drugs and/or alcohol he would say things to the effect that “our family should die” and that “he would set [the family on] fire” (at paragraph 55). The wife also refers to the husband being on other occasions drunk and affected by alcohol, having an affair, addicted to phone games, and spending large amounts of money on motor vehicles and computers.
31. The wife contends that on 8 February 2022, the husband and X had a conversation following which, according to the wife, X “started showing hysterical behaviour” (at paragraph 90). The wife took X to be assessed and attaches to her affidavit reports from, what would appear to be, a psychologist, as well as another report described as a ‘diagnosis’.
32. The first report dated 16 March 2022 is described as a “Comprehensive child psychological evaluation”. The report contends that the child expressed anxiety saying, “I do not want to return to Australia, I am afraid that my father will take me” (at paragraph 1). This statement is reported to have been said to the wife and was the reason the wife took the child to a hospital. A number of tests were undertaken and the conclusion contained in the report is that:
    4. … the current patient is likely to experience emotional instability due to a heightened negative perception of surrounding stimuli, and may easily adopt an irritable and vigilant attitude. In addition, it seems that he grew up in an unstable family atmosphere, and due to parental discord and conflict, the child seems to have continuously experienced tension and nervousness, fear, insecurity, and frustration with the desire for love.

In addition, their perception of their parents is negative and distorted, and they are experiencing hostility, anger, and resentment toward their father. However, as the child has a poor ability to elaborate and express his emotional difficulties, when faced with a stressful situation, he cannot flexibly handle negative emotions and can express them through immature actions.

Therefore, it seems that psychiatric intervention is necessary to relieve symptoms, and play therapy to promote psychological stability is also considered helpful. In addition, suppo1tive and empathic parenting attitudes are required based on understanding the child’s condition at home.

33. The other report is dated 1 April 2022. Whilst it is said to be prepared by a medical institution, it is unclear whether the report was prepared by anyone holding medical qualifications. The report states:

… Currently, as a result of a psychiatric interview and psychological examination, it is considered that a child is emotionally unstable due to the unstable family environment in Australia, fear, anger, resentment towards the father, and fear of his father when he returns to Australia. It is considered that psychiatric observation and treatment are necessary in a more stable environment for the treatment of the patient. A psychiatric re-evaluation is required later if necessary.

34. A reading of both reports does not disclose any recommendation that the child not see his father.
35. Whilst no objection was taken to this material by counsel for the husband, the question of its weight is an issue to be assessed in the reliance placed on the reports. It is not clear from the reports, which have been translated from Country B into English, which of the conclusions are the result of statements by the wife or by the child, and what the level of experience or expertise of the person preparing the reports is. No curriculum vitae’s have been provided.
36. The content of the reports stands inconsistent with the proposals in her solicitor’s correspondence and somewhat inconsistent with the text messages in the husband’s affidavit. The wife elected not to respond to any of the husband’s contentions in his affidavit.
37. The husband denied the wife’s allegations of family violence and drug abuse.

APPLICABLE LAW

38. Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), I set out in short form my reasons.
39. This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to the disputed facts of which there are many.
40. Notwithstanding such indisputable proposition, the wife’s counsel put various submissions to me to the effect that I should draw some conclusion from the evidence in the wife’s affidavit adverse to the husband. I am clearly unable to do so and will not do so. These are matters for a final hearing. The best I can do is resolve the matter on the undisputed facts and/or objective material.
41. However, just because I am unable to determine or resolve disputed facts or assertions does not mean that I ignore allegations of risk.
42. In Marvel & Marvel (No. 2) [2010] FamCAFC 101; (2010) 43 FamLR 348 (which has been cited with approval by the Full Court in Eaby & Speelman [2015] FamCAFC 104; (2015) FLC 93-654), the Court observed:
    122. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

123. Later, at [100] their Honours amplified their comments and said:

[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

43. In Adamson & Adamson [2018] FamCA 523 (“Adamson”), McClelland J (as he then was) observed:
    50. It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
44. Parenting proceedings are governed by Pt VII of the Act.
45. Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
46. In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
47. The Full Court in Goode & Goode [2006] FamCAFC 1346; (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts.
48. I also note the observations of Judge Brown in Atwill & Mardin [2018] FCCA 1401, which are apposite to the application I have to determine, where her Honour observed:
    90. Two of the principles underpinning Part VII of the Act [section 60B(2) encourage parents to share duties and responsibilities for their children and to agree about future parenting arrangements for them.
    91. For reasons arising from these principles, amongst other factors, courts applying Part VII are discouraging of parents, who take unilateral actions in respect of arrangements for their children, except in circumstances of significant emergency.
    92. This is particularly so in cases of relocation, which invariably have implications for both the quality and quantity of relationship the parent left behind can have with the children affected by the other parent’s move.
    93. The High Court has indicated that cases involving relocation require delicate and careful analysis of all the pros and cons, in respect of the move, from the individual perspectives of all concerned, including the children. For the reasons outlined already, such a degree of analysis is not possible at the interim stage.
    94. In Morgan & Miles, which was a case which arose after the shared parental responsibility amendments were implemented, Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:

“It is highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined an abridged interim hearing, and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me that the comments of Warnick J in C and S remain apt and relevant to determination of these cases.”

95. The comments, of Warnick J referred to, were as follows:

“In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.”

(Footnotes omitted)

49. As indicated earlier, each of the counsel who appeared conceded that this Court has jurisdiction to make the orders as sought. The Court’s jurisdiction arises pursuant to s 69E of the Act. The wife’s counsel conceded that the children are habitually resident in Australia.
50. The husband’s initial proposal was that upon the children’s return that they spend time with him every weekend from 5.00 pm Friday until 5.00 pm Sunday. As the hearing progressed, the husband ameliorated that position and merely sought an order for return as well as an urgent hearing in relation to what the time arrangements should be upon their return. The husband proposed a sum of money be provided to the wife by way of interim spousal maintenance on a without admissions basis in the sum of $500 per week. The husband also proposed that the wife resume occupation of the former matrimonial home and that she would have exclusive occupation of the property.
51. The wife submitted that there are a significant number of risk factors, that the risk factors were such that there were concerns in relation to the husband having time with the children, that those risk factors required proper consideration and evaluation, which could only be conducted within the context of a final hearing. Counsel for the wife submitted that the observations of the Full Court in Sterry & Sterry [2017] FamCAFC 226 (“Sterry”) was authority for a proposition that this Court should not order a return of the child until there had been a fulsome assessment of the matters in relation to risk, which could only be conducted at a final hearing. I do not accept that Sterry is authority for that proposition nor do I accept that it is in the best interests of these children that their return should await a final determination, which may not occur for more than two years.

PRIMARY AND ADDITIONAL CONSIDERATIONS

52. In applying the primary considerations, the benefit to the child of having a meaningful relationship with both of the parents is subservient to the need to protect the child from the risks and harms identified in the subsection.
53. A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright [2007] FamCA 520; (2007) 37 FamLR 518 at [26], cited with approval by the Full Court in Sigley & Evor [2011] FamCAFC 22; (2011) 44 FamLR 439).
54. Both parties consider it important that the children have a meaningful relationship with the other parent. They just differ as to the way it can occur and where it can occur.
55. In that respect, the wife consents to orders being made in the terms of Order 17 of Exhibit “A”, namely that the children spend some video time with their father for 15 minutes on two occasions each week.
56. As stated above, I am required when applying the primary considerations to give greater weight to the need to protect the children from risk and harm than to the benefit to the children of having a meaningful relationship with both parents.
57. The wife has made very serious allegations. I am unable in these interim proceedings to resolve the competing allegations but accept that I cannot ignore the allegations of risk. I need to act cautiously and the orders I make need to address the issues of risk that have been identified, balanced against the importance of a meaningful relationship.
58. In determining what is in the best interests of the child, I will now consider the additional considerations as far as they are relevant.
59. Dealing with the additional considerations, counsel for the wife placed some weight on the views expressed by the child, X, of a fear of his father. In particular, reference was made to the reports attached to the wife’s affidavit where the child expressed concern that his father would remove him or take him away. The difficulty I have with the reports is that it is unclear to me what has led the child to that conclusion and the context in which the statements were allegedly made. I also note that despite the reports recording such a statement, the reports did not say that the child should not see his father. I am conscious, however, of the risk but, also observe that the child is six years of age. There is, given his age, no evidence in relation to Y and his views.
60. There is little evidence from each party as to the nature of the relationship of the children with each of the parents. I note however that the wife permitted time between the children and the husband after separation and prior to travelling to Country B and proposed that the husband should spend time with the children for half of each school holidays as at 31 January 2022. If she did not think that there was a relationship between the children and their father, it is difficult to fathom why she would have acted in such a fashion.
61. Section 60CC(3)(c) requires the Court to consider the extent to which each of the parties has taken or failed to take the opportunity to participate in making decisions about long-term issues in relation to the children. In this respect, I note that the wife has acted unilaterally in not only deciding to not return to Australia but also to enrol the child X into school in Country B, and to have him engage in therapy and some form of psychological investigation without the husband’s knowledge or consent.
62. I note that s 60CC(3)(ca) requires the Court to consider the extent to which parents have maintained their children and note that it would appear that the wife has always been the primary carer of the children and that she does not contend that the husband did not provide her with financial means during the relationship. The husband provides a measure of financial support if the order for the return of the children to Australia is to be made.
63. Section 60CC(3)(d) of the Act requires the Court to consider the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the child’s parents. In that respect, the wife seeks no orders from the Court other than a dismissal of the husband’s application. She therefore proposes, in effect, a physical separation of the children from their father for a significant period of time until there is a final hearing of this matter. Given the delays in the Sydney registry, the children would on the wife’s case not spend any physical time with their father for more than two years. The wife puts forward no proposals for an interim time arrangement other than video contact.
64. The husband seeks orders for the children’s return to Australia and thereafter, a hearing to determine what should be the appropriate arrangements in relation to the children’s time with each of the children’s parents. In this respect, I note the observations of the now Deputy Chief Justice McClelland in Adamson, where his Honour observed:
    98. As I will discuss, while the Act requires the focus of these proceedings to be on the best interests of the children, authority suggests that a relevant factor to also consider is that a parent should not make a unilateral decision to significantly change the children’s circumstances in a situation where there is a dispute between the parties as to what parenting arrangements are in the long term best interests of the children.
65. Section 60CC(3)(e) of the Act requires the Court to consider the practical difficulty and expense of maintaining time and communicating with their parents. If the children continue to remain living in Country B, then there will be practical difficulties in the maintenance of a physical relationship between the children and their father. It was not suggested that there any such limitations if the children are returned to Australia.
66. I am required to consider s 60CC(3)(f) and the capacity of each of the parents to provide for the needs of their children. There is no objective evidence in relation to this. The only evidence is that contained in each of the parties’ affidavits and the reports. The wife contends, by virtue of the various allegations of risk, that the husband has a limited capacity to provide for the children’s needs. That is to be weighed against the matters referred to earlier at [60] of these reasons.
67. Section 60CC(3)(i) requires the Court to consider the attitude to the children and the parental responsibilities of each of the parties. I refer to the wife’s allegations made earlier. I also take into account the wife’s attitude to the responsibility of ensuring that the children maintain a relationship with their father and, in particular, note the husband’s submission in relation to the wife’s unilateral actions.
68. In relation to the allegations of family violence, I take these matters into account and also note that the wife makes an allegation that the husband physically assaulted her.

CONCLUSION

69. I turn now to consider the issues of parental responsibility and other orders.
70. The husband did not seek any orders for parental responsibility. As previously indicated, the wife sought no orders other than a mere dismissal of the husband’s application. No submissions were put to me about the appropriateness of making an order for parental responsibility.
71. In this matter, given the allegations of risk, what would appear to be a high level of distrust and insufficient evidence, I find that it is not in the best interests of the child to make an order for equal shared parental responsibility or, for that matter, any order by way of parental responsibility. For these reasons, I am of the view consistent with s 61DA(3) that it would not be appropriate in the circumstances of this case for the presumption of equal shared parental responsibility to apply. In those circumstances, the mandate in s 65DAA is addressed.
72. In relation to time arrangements, I am not being asked by the husband to make orders for time. I am merely being asked by the husband to make an order for the return of the children to Australia. It is proposed that the time orders would be addressed at an interim hearing upon the children’s return.
73. I am of the view that it is in the best interests of these children for them to be returned to Australia as soon as possible. The wife seeks final orders from this Court as to parenting matters and thus she considers that this is the appropriate jurisdiction in which to hear the parenting aspects of the matter. This Court can address the questions of risk raised by the wife and a proper investigation of the allegations that she raises in relation to the husband and the possible risk he poses to the children more efficiently if the children are in Australia. The husband can be more properly and efficiently involved and engaged in any necessary psychological intervention that the child X needs and be involved in the therapy if considered necessary more efficiently if it occurs in Australia rather than Country B. The children can be, if thought necessary, be seen by an ICL and ultimately an expert for the preparation of a report more efficiently if the children are in Australia rather than Country B. The maintenance of the children’s relationship with their father can be more properly done with the children in Australia rather than in Country B.
74. Whilst the wife made no such submission, and indeed by her adoption of the husband’s proposed orders (subject to the variations to which I have earlier referred) she could be taken as eschewing any such submission, I recognise that it is the wife who will be required to remain in Australia. The form of order as initially sought by the husband saw her as the primary carer and thus her freedom of movement is being temporarily constrained.
75. I adopt with respect the observations of the now Deputy Chief Justice in Adamson where he recorded:
    105. While the orders sought by the father seek the return of the children from E Town to Sydney, the reality is that the mother, as the children’s primary carer, will be compelled to return with them. It is a serious matter for the Court to make an order that effectively restrains a person’s freedom of movement. In that respect, I have had regard to the decisions of the Full Court in Sampson & Hartnett (No 10) [2007] FamCA 1365 and Cales & Cales [2010] FamCAFC 237.
    106. In that context, in U v U [2002] HCA 36 at [142], Kirby J observed:

The burden of such injustices will ordinarily fall, as here, on the wife. It will be she, not the husband, who will usually be confined, in effect, in her personal movements, emotional environment, employment opportunities and chances of remarriage, repartnering and reparenting. Effectively, as here, it is she who will be controlled by court orders that require her to live, and make the most of her life, in physical proximity to the husband’s whereabouts. In this way, inconvenience to the husband is minimised. But the effect on the wife may be profound.

107. In terms of the potential impact on the children, in AMS v AIF [1999] HCA 26 at [145], Kirby J further observed that:

One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.

108. The Full Court in Bolitho & Cohen [2005] FamCA 458 confirmed that the proper approach to be adopted in relocation cases, as held by the High Court in U v U, is one involving the:

… weighing of competing proposals, having regard to relevant [s 60CC] factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.

76. Recognising as I do the above matters, these are interim proceedings and it is at this stage in the children’s best interests that they return to Australia. It does not in any way amount to a pre-determination of the relief the wife seeks on a final basis.
77. In requiring the wife to return the children to Sydney, I am conscious that there is a potential for the wife to suffer some financial hardship, which may affect the children and I note that the husband puts forward some proposals to address that concern.
78. I will attempt to ameliorate that hardship by listing the matter before a senior judicial registrar for determination of the competing applications for time and maintenance.
79. The wife contended that if orders were made for the children to be returned that she would require three months. It was contended from the bar table that this was necessary to make proper arrangements for the children, to continue the therapy that the eldest child is undertaking in Country B and in relation to matters of schooling
80. I am not satisfied that a three-month delay in the return of these children is appropriate. Beyond an assertion by her counsel, there is no evidence as to why the wife needs three months. The husband sought 28 days and I am of the view that it is appropriate that these children be returned sooner rather than later. It is really a matter of striking a balance and accordingly, I will make an order that the wife return the children to Australia within five weeks.
81. I will make the proposed amendment sought by the wife to the husband’s proposed Order 15 giving her 7 days to apply for passports.
82. I have varied the order the husband sought in relation to the wife’s occupation of the former matrimonial home. I make it clear that she is not required to live in that home if she does not want to.
83. I see no reason why the children’s passports should be held by the husband’s solicitor and accordingly will make an order that they be retained by the wife’s solicitor.
84. Otherwise, the husband sought by way of Exhibit “A” orders for the appointment of a single expert. At this stage, I am of the view that it is a premature to make such an order and this can be addressed once an ICL has been appointed.