FLAST CASE SUMMARY: Purcell & Purcell [2019] Parenting
Purcell & Purcell [2019] FCCA 447 (27 February 2019)
A family of four foreign tourists sailed their boat into Sydney Harbour 18 months ago on tourist visas. The parents just separated recently. The mother tried to fly the children out of Australia back to Singapore without the father’s knowledge or consent the same day they separated.
The father realised the mother and the children were at the Airport by using the ‘Find my iphone’ app and then urgently made an ex parte oral application by phone to the Court for orders preventing the mother from removing the children from Australia and enlisting them on the Family Law Watch List.
The orders were granted immediately and the mother and children were unable to board their flight.
There are now competing applications, the mother seeks to return to her country with the children, the father seeks to remain with the children in Australia and pursue a work visa. There are Family Violence allegations from both parties.
FACTS SUMMARY:
- Family of four (children 7 & 9 years old) foreign tourists on an 18-month sailing holiday and sailed into Sydney harbour with tourist visas.
- The family remained in Sydney residing on the boat at Suburb L from ...2018 until separation on 28 January 2019.
- The father realised the mother and the children were at the Airport on the same day as separation and made an urgent ex parte oral application by phone to the Court for orders restraining the mother from removing the children from Australia and placing them on the Family Law Watch List.
- The orders were granted and given effect straightway and the mother and children were unable to board their flight.
- There are untested allegations of family violence against each party.
- The father claims the Mother drugged him in order to leave with the children.
- There is no current right to remain in Australia beyond 3 months with a tourist visa.
- The father wants to remain with children in Australia and seek a work visa.
- The mother wants to return to place of domicile and last place of habitual residence.
ISSUE:
Should the mother’s application be granted, and the children returned to Singapore, or should the application be dismissed and the children are to stay in Australia for the parenting dispute to be determined?
HELD:
Orders were granted for the mother and children to return to Singapore. In Singapore, the Court can decide the applicable parenting orders in the best interests of the children.The children are required to board a non-stop flight to Singapore, a Singapore Stop order, and enforceable undertakings to this and to the Singapore Court.
In determining this matter, the paramount consideration is the children’s best interests (ss.60CA, 60CC, 65AA).In suitable cases, the Court may decide for the matter to be heard in the Courts of a foreign country for the best interests of the child/ren.
The father has submitted that the mother’s conduct attempting to relocate the children unilaterally exhibited that she poses a risk of severe psychological harm to the children. The Judge was not convinced on the evidence provided that the children are at risk of harm from either parent. It was also accepted that the family violence allegations remain untested, and will need to be considered and determined by a Court in further proceedings.
Moreover, it was considered the father has the option to reside and work in Singapore; this will provide the children with an opportunity to maintain a meaningful relationship with both parents there (the father has not specified his intent to go back to Singapore if the children do). It was established that the mother cannot reside or be employed in Australia other than as a tourist; it is unknown what the mother’s legal capacity to visit Australia on a regular basis is to see the children to enable a meaningful relationship.
Additionally, the father claims there was an intention by both parties to reside in Australia permanently, the mother denies this and contends it was only talked about as a possibility. The Judge was satisfied with the evidence provided that the intention before separation was to leave Australia by 2019 to sail to Country F (no application was made before separation to obtain a subclass 600-visitor visa to vary the existing visas).
It was determined that it’s in the best interests of the children to return to Singapore there they are permanent residents, remain domiciled. The mother can then make an application for divorce, the Singapore Court will have jurisdiction to make the comparable of parenting orders in respect of the children.