Acharya and Sinha

[2013] FamCA 1041

FAMILY COURT OF AUSTRALIA

ACHARYA & SINHA [2013] FamCA 1041

FAMILY LAW – CHILDREN – Father seeks international relocation with the child – Mother seeks to remain in Australia with the child – Various proposals before the Court as to child’s future living arrangements –Where the child has lived in a shared care arrangement since the parties’ separation – Where the mother has been the child’s primary carer to date – Whether weight should be placed on the Single Expert Report – Whether the circumstances lend to the parties having equal shared parental responsibility or not – The parties’ level of communication and cooperation – Whether there would be an impact upon the parenting capacity of a parent if certain live with/spend time with proposal are adopted by the Court – Whether either an equal time or a substantial and significant time arrangement is in the child’s best interests – The reasonable practicability of the parties’ respective primary and alternative proposals.

Family Law Act 1975 (Cth)

Champness & Hanson (2009) FLC 93-407
Ember & Assadi [2013] FamCAFC 107
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
Gronow & Gronow (1979) 144 CLR 513
MRR v GR (2010) 240 CLR 461
Sampson & Harnett (No 10) (2008) Fam LR 315, [2007] FamCA 1365
Sigley & Evor (2011) 44 Fam LR 439, [2011] FamCAFC 22
Taylor & Barker (2007) 37 Fam LR 461, [2007] FamCA 1246

APPLICANT: Mr Acharya

RESPONDENT: Ms Sinha

FILE NUMBER: PAC 814 of 2013

DATE DELIVERED: 20 December 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 8 - 11 and 17 October 2013, 12 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Ms Warda of Coleman Greig Lawyers

COUNSEL FOR THE RESPONDENT: Mr Bell

SOLICITOR FOR THE RESPONDENT: Mr Kramer of Horowitz & Bilinsky

Orders

1. Ms Sinha (“the mother”) and Mr Acharya (“the father”) have equal shared parental responsibility for the child S, born … 2010 (“the child”).

2. The mother have sole parental responsibility for making decisions for the non-major long term issues relating to the child when she lives with or spends time with her, and the father shall have sole parental responsibility for making such decisions when the child is living or spending time with him.

3. The child is to live with the mother, except as provided in Order 4.

4. Until the father returns to the United Kingdom in late January 2014, the child is to live with the father each alternate week from 7.00 pm Sunday to 7.00 pm the following Sunday, with the parties to facilitate changeover as agreed between them.

5. For Christmas 2013, the child is to spend time with the mother from 12.00 pm on 25 December 2013 until 6.00 pm on 26 December 2013, with the parties to facilitate changeover as agreed between them.

6. Following the father’s return to the United Kingdom and when the father is not otherwise permanently living in Australia:

   (a)The child is to spend time with the father as agreed between the parties, or failing agreement, as follows:

   (i)In Australia, whenever the father visits under the regime set out in Order 6 (b); and

   (ii)In the United Kingdom for a period of not less than three (3) weeks during each calendar year, at times and dates as agreed between the parties under the regime set out in Order 6 (b).

   (b)       The child’s time with the father is subject to the following conditions:

   (i)The mother is to spend up to three (3) hours per day with the child and the father during each day of the first week the child spends with the father; and

   (ii)The child is to spend no more than seven (7) consecutive nights with the father and then is to spend at least one (1) night with the mother prior to the next period of more than one (1) consecutive night with the father.

   (c)       The child is to communicate with the father as follows:

   (i)By Skype, webcam or other electronic means that facilitate visual communication at a time and on three (3) days per week as agreed between the parties;

   (ii)The father is to initiate the call or connection and the mother is to do all necessary things to facilitate the communication, and when age-appropriate, provide the child with privacy during such periods of communication;

   (iii)By telephone at reasonable times and for reasonable periods, including but not limited to, the child’s birthday, Father’s Day and Christmas Day, where the father is not otherwise spending time with the child;

   (iv)By written correspondence; and

   (v)By emails and text messages when the child is able to communicate by such means.

7. Notwithstanding the above Orders:

   (a)On the child’s birthday, if the father is in Australia, he is at liberty to spend time with the child for a period of not less than three (3) hours at a time as agreed between the parties;

   (b)If not in the mother’s care, the child spend time with the mother on Mother’s Day for a period of time as agreed between the parties;

   (c)If not in the father’s care, the child spend time with the father on Father’s Day for a period of time as agreed between the parties; and

   (d)At Christmas, other than as provided for in these Orders, and so far as can be facilitated, the child spend each alternate Christmas Day from 12.00 pm until 6.00 pm Boxing Day with the parents, with the mother in odd numbered years and the father in even numbered years failing agreement.

8. In respect of the travel and travel expenses:

   (a)Each party is to bear the costs of his or her own airfare to and from the United Kingdom or to and from Australia for the purpose of the child spending time with the father;

   (b)The parties are to equally bear the cost of the child’s airfare in respect of the child travelling to and from the United Kingdom for the purpose of her spending time with the father;

   (c)The father is to provide to the mother not less than two (2) months’ written notice of his proposed dates to travel to Australia and the mother is to provide to the father not less than two (2) months’ written notice of her proposed dates of travel to the United Kingdom with the child;

   (d)Each party is to notify the other parent by email or text not less than seventy-two (72) hours prior to such travel of flight details; and

   (e)The mother shall accompany the child to and from the United Kingdom for the purpose of the child spending time with the father pursuant to Order 6(a)(ii) above, until such time as the parties agree that the child may travel independently.

9. Each party is to keep the other advised of his or her current residential address, postal address, email address and all contact telephone numbers.

10. The mother is to keep the father advised of the names of the child’s treating medical practitioners and provide all necessary authorities to such medical practitioners to enable the father to obtain information in relation to the child’s health.

11. Each party is to keep the other advised of any serious illness or accident suffered by the child during a period in his or her care and advise the other as soon as practicable of each treating medical practitioner or like professional, and authorise each of them to speak with the other parent.

12. The mother is to provide to the father, at least once in each calendar month, a recent photograph of the child.

13. The mother is to authorise the principal of any school, kindergarten or day care centre attended by the child from time to time to provide to the mother, at the father’s expense, copies of the following documents:

    (a)       School reports for the child; and

    (b)       School or class photographs of the child.

14. Each party is at liberty to attend the child’s day care/school functions, sporting events and extracurricular activities that parents are ordinarily invited to and attend from time or time.

15. The mother and the father at all times do all things necessary to ensure the child’s British Passport and Australian Passport are renewed prior to expiration and they maintain valid passports for the child and they share the costs associated with the renewal of each passport.

16. The mother is to hold the child’s Australian passport in her possession and the father is to hold the child’s British passport in his possession, unless otherwise agreed.

17. The parties take all steps to register these Orders in the United Kingdom.

18. Leave is granted to the parties to restore the matter to the list within six (6) months of delivery of Judgment on seven (7) days’ notice to each other and to the Court.

19. All outstanding applications and cross-applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym
Acharya & Sinha 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 814 of 2013

Mr Acharya

Applicant

And

Ms Sinha

Respondent

REASONS FOR JUDGMENT

Introduction & Background

1. The child S (“the child”), who is three, is the daughter of Mr Acharya (“the father”) and Ms Sinha (“the mother”).  The parents, who were married in Australia in 2006 lived together in the United Kingdom from April 2007, where the child was born in 2010.  

2. The mother, father and child moved to Australia in July 2012 and the parents separated in December 2012.  Although the parents reconciled for a short time from late February until June 2013, two days before the reconciliation began, unbeknown to the mother, the father commenced these proceedings by filing an Initiating Application. 

3. The two proposals, which were initially sought by the parents and remain the parties’ principal options, raise the dilemma of the father wanting to live and raise the child in the United Kingdom and the mother wanting to live and raise the child in Australia.

4. Both parents seek equal shared parental responsibility.

5. The father plans to return to the United Kingdom for at least for two years from early February 2014 to complete his training to become a specialist medical professional.  His initial and primary plan is for the child to live in the United Kingdom spending equal time with each parent.  Central to this plan is the mother living in the United Kingdom in reasonably close proximity to the father’s intended residence, though the father does not seek an order requiring her to do so.

6. The mother is opposed to living in the United Kingdom and the father has been aware of this opposition from at least the time of separation. 

7. The mother’s primary proposal is for the child to live with her in Australia, with the current equal shared care arrangement continuing until the father leaves to return to the United Kingdom.  Thereafter, under the mother’s proposal, the child will live with her and spend time with the father whenever he visits Sydney (if reasonably practicable), as agreed between them, and in the United Kingdom for a minimum of three weeks each year with the mother travelling with the child for that to occur.

8. The father’s alternate application, if the child is to live with her mother in Australia, is for the current shared care arrangement to continue until his return to the United Kingdom.  Thereafter, the father seeks orders that he spend time with the child for two block periods of four weeks per year in the United Kingdom and Australia respectively and for an additional three weeks per year in either the United Kingdom or Australia.

9. Further possible arrangements were considered in the course of the proceedings.  Firstly, the father proposed as another alternative that the child return to the United Kingdom for the two years of the father’s specialist training and spend equal time with each of the parents.  Once again, it is central to this proposal that the mother live near the father in the United Kingdom even though the mother, to the father’s knowledge, opposes moving to the United Kingdom.  Under this scenario, the mother and child would be permitted to return to Australia at the end of the two years where the equal time arrangement would continue, were the father to reside in Australia or under specified block periods in Australia and the United Kingdom if he were to remain in the United Kingdom.

10. It was made clear in the proceedings if not well before, that the mother does not wish to return to the United Kingdom and so I also canvassed the possibility of the father and the child living in the United Kingdom with the mother remaining in Australia and spending specified time with the child in the United Kingdom and Australia.  This option is not sought by either party. 

11. It is clear that if the mother were required to live in the United Kingdom to give effect to parenting orders, she would comply with those orders, but would not be doing so willingly.  On the basis that the mother may, in effect, be required to live in the United Kingdom, the mother proposes that the child live with her and spend substantial and significant time with the father, rather than have an equal time arrangement.

12. The mother’s minute of proposed order (Exhibit C) only contemplates the father living in Australia until he leaves for the United Kingdom.  It does not contemplate that the father will relocate to Australia on a permanent basis.  If he were to return to live here after two years, the mother proposed in an oral submission that the father should spend “substantial and significant time” with the child.

13. In any event, it is the father’s case under any proposed suite of orders that he will return to the United Kingdom at the beginning of 2014 for a two year period to finish his specialist training, irrespective of the outcome of these proceedings. 

The Undisputed Facts

1. Both parents are of Sri Lankan heritage.  The father was born in Sri Lanka and grew up in the United Kingdom with his younger brother and parents.  The mother was also born in Sri Lanka and grew up with her family in Sydney.  After completing school, the father attended University in the United Kingdom and qualified as a medical professional.  After completing school, the mother studied at University and thereafter worked in various roles in banking. 

2. In 2006, the father began training in the United Kingdom as a specialist professional.  It is a five year training scheme, of which he currently has two years to complete.

3. The mother and father met through arrangements made by their respective parents.  In 2006, the parties had telephone and email contact only and in July 2006, the mother’s parents flew to London and met the father’s parents.

4. The parties met physically for the first time in September 2006 in Australia and were married in a civil ceremony in October 2006. 

5. The father returned to the United Kingdom in October 2006.  The mother remained in Australia.    

6. A religious ceremony was held in Sydney in March 2007, as well as a reception.  There was also a wedding reception in the United Kingdom in April 2007.

7. The mother and father commenced living together in April 2007 in the United Kingdom, and in May 2007, the mother started working for X Bank as a compliance officer.  The mother attained professional qualifications in the United Kingdom.  The father was employed a registrar as part of his specialist training. 

8. In 2009, the mother and father moved to be closer to the father’s workplace, and the mother commuted to London, some distance away, for work.

9. The child was born in 2010.  The mother took maternity leave from her employment.  Around the time of the birth of the child, the maternal grandparents travelled to the United Kingdom to assist the parents in the care of the child.  The maternal grandmother stayed for about one month after the birth. 

10. In October 2010, the mother and father attended two counselling sessions in relation to their marriage and difficulties regarding their differing approaches to the care of their daughter. 

11. In February 2011, the mother returned to work and the maternal great grandmother came to the United Kingdom from Australia, and lived with the parents, assisting with the child until she was nine months old. 

12. At nine months of age, the child commenced day care three days a week, from Monday to Wednesday.  Although the father was opposed to the child commencing child care at this age, he ultimately agreed to it.  The mother made all the actual arrangements with the child care centre and paid for child care.  The paternal grandparents cared for the child each Thursday, and the mother cared for her whilst working from home on each Friday.

13. In July 2011, the mother commenced counselling with a cognitive behavioural psychotherapist and attended 24 sessions from this date.  The focus of the counselling concerned marriage difficulties, the mother’s sense of isolation and her feelings of rejection by her husband and his family.  

14. In January 2012, the mother became a senior manager of X Bank in London. 

15. In July 2012, the mother, father and child moved to Australia and the father commenced work at a Sydney hospital.  This employment was not part of the United Kingdom training scheme from which he took ‘time out’.

16. Initially the mother, father and child resided with the maternal grandparents in north western Sydney. 

17. The mother worked for X Bank, London, from Australia remotely from the time of arrival in Australia until September 2012.

18. In September 2012, the mother commenced work as a contractor in compliance at Z Company in Australia.

19. In November 2012, the mother, the father and the child moved into a rented home in Suburb H. 

20. Following an argument on 28 December 2012, the parents separated, with the mother taking the child with her.  The mother and child have lived with the maternal grandparents since this date (other than during a time of reconciliation as referred to below). 

21. On 16 January 2013, the father sought legal advice and, by agreement, the child started having overnight stays with him from 17 January 2013, gradually increasing to an equal shared care ‘week about’ arrangement.  The father changed his work hours from February 2013 to accommodate this arrangement. 

22. Various family members from each of the families attempted to assist the parties in reconciling.  A mediation session was also held on 12 February 2013, but the parties were unable to reach a final resolution of the parenting issues. 

23. On 24 February 2013, the parties had lunch and agreed that the mother would move back into the family home with the child and the parties would attempt reconciliation.  She and the child returned to the home on 27 February 2013. 

24. The father also filed his Initiating Application on 27 February 2013, but the mother was not aware of it until mid-May 2013 when the application was served on the mother’s solicitors.

25. In late May or early June 2013, the parties separated on a final basis, and the mother returned to her parent’s home.

26. The parties then reverted to the ‘week about’ shared care arrangement, which also involves the child spending two hours a day with the parent she is not living with.  Under this arrangement, the child spends time with both parents each day.

27. The child and mother live with the maternal grandparents, who are available to assist the mother with the care of the child, if required.  The mother has close connections to extended family and childhood friends, many of whom have children.  The mother works full-time and is able to work flexibly and from home when required to care for the child.  The child is settled in child care near the mother’s home where the mother intends her to remain until she commences school in 2016.

28. The father has two years of training to complete in order to become a qualified specialist professional in the United Kingdom.  He is due to recommence this training in February 2014 in the United Kingdom, and intends to complete that training regardless of the orders made by the Court.  The father intends living in Town Y, on the outskirts of London, with his parents initially.

1. The mother does not wish to return to live in the United Kingdom.  The mother is a permanent resident of the United Kingdom and holds a British passport.

2. In about mid-2013, the father’s parents made arrangements on behalf of the father to reserve a place in a private nursery/primary school for the child to attend from February 2014, located a short distance from the paternal grandparent’s home.  The mother was not consulted in relation to these arrangements and the school was not informed that the parents were separated.  The enrolment will not proceed however, without the mother’s consent.

Dr B’s evidence

1. Dr B, a consultant child and adolescent psychiatrist and adjunct associate professor of psychiatry and psychologist at a University, prepared an expert’s report to assist the Court, gave some short additional oral evidence and was extensively cross-examined in the proceedings.

2. The doctor considered the documents which had been filed at the time he prepared his report, in July 2013, interviewed each of the parents alone and observed the interactions of each of them with the child.  He also interviewed the paternal grandparents and maternal grandparents and observed each of their interactions with the child.  The doctor was asked to consider a number of matters relating to the child’s relationships and the best interests of the child.

The parents’ proposals

1. Dr B understood that the father wished to return to the United Kingdom and raise the child in that country and that the mother wished to remain in Australia and raise the child here, and these were the proposals explored in his interviews.  It is also clear from the report and from cross-examination that the doctor understood that each parent hoped the other parent would move to be closer to the child, but realised that this may not occur.  The doctor said that he proceeded on the basis that both parents thought that they would probably end up in different countries.  Accordingly, much of the report is involved with a consideration of choosing between separating the child from either her mother or her father.

Observations of the child

1. Dr B’s conclusions so far as the child are concerned, are that whilst he could find no evidence for a major anxiety disorder or behaviour disorder, there were observations during the interaction with her parents which raised some concerns, together with matters the parents had raised.  In particular, the doctor was concerned about the child’s difficulty with being redirected during play, her lack of reciprocity and willingness to engage with either her parents or grandparents and the level of obsession and preoccupation with particular themes and activities.  In the doctor’s opinion there is a possibility that the child is displaying symptoms which might indicate that she has a pattern of development consistent with high functioning autism previously known as Asperger’s disorder.

Attachment and Relationships

1. Prior to being cross-examined about the details of his report Dr B gave some oral evidence about the way in which attachment relationships are formed and maintained.  He said that attachment develops over the first 12 to 18 months (of life) but an attachment type process begins developing at around eight months and then would continue until about two years of age.  He said that the development of a secure attachment did not necessarily just relate to the amount of time the child spent with a caregiver, as children will develop very strong attachments to a father who is working and often absent, though he conceded that the physical time together was important. 

2. So far as these parents were concerned, the doctor’s position was that both parents were motivated and committed and that the child had formed a secure attachment to them.

3. In relation to the child’s relationship with others, Dr B said that she related well to her father, appeared comfortable with him and there was no evidence of any disturbance in her attachment to him.  The child was described by Dr B as being similarly very comfortable with her mother and appeared to have a secure attachment to her.  He also felt that the child displayed more range of affect with her mother than with her father.  It was the doctor’s opinion that the mother showed more warmth in the relationship with the child and the child reciprocated that warmth.

4. Dr B also thought that the child seemed comfortable with both sets of grandparents subject to his concerns about the child’s manner of relating generally. 

5. Dr B reported there is considerable advantage to any child maintaining a meaningful close relationship with both parents and also with their extended family.  

6. The doctor said that evidence in the literature indicates that the quality of the relationship and attachment to the mother is strongly predictive of a child’s emotional, social, cognitive and educational outcomes and has a strong bearing upon the quality of peer relationships subsequently at school as well as for the child’s educational development.  He said that a strong secure attachment not complicated by a major mental illness or other factors, which will impede the mother’s capacity to care, is strongly predictive of positive outcomes for a child for the first seven to eight years of life. 

7. The doctor also said that a father’s attachment has a strong bearing on a child’s outcome, particularly educational development and that a secure attachment to both parents will reduce the risk of later developmental and behavioural difficulties if there are subsequent adversities in a child’s life. 

8. The doctor went on to say in his report that, in his opinion, the child’s relationship with her mother is crucial for her development.  The doctor also said, however, that there is no society where mothers raise children without help and that in almost all cultures that have been studied it has been shown that whilst the mother is the primary care giver, she receives considerable support and assistance from others and the child also receives benefits from having relationships with others. 

9. The doctor said that in considering the additional support that children receive from extended family, there has been considerable focus in recent research on what is known as “the grandmother effect”, a description of maternal grandmothers supporting their daughters in raising their grandchildren, and that both emotional and material support have a positive effect on the mother’s wellbeing and her maternal behaviours. 

10. The doctor felt that the concept of the extended family had particular relevance in this case as there are two sets of grandparents, two sets of extended family as well as two parents who wanted to be involved and responsible for caring for the child.

11. These are proceedings that commenced after 7 June 2012, when section 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”) was amended to substitute new paragraphs for the former subparagraph (c), which related to the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. Although an opinion on this issue which has been removed from the Act was not required, it was still requested and was, therefore, included in the doctor’s report.

12. In my view, in this matter, as evidence which is discussed below will indicate, the willingness of each parent to facilitate and encourage a close and continuing relationship with the child and the other parent, although not being a matter the Court must consider is, nevertheless, very relevant in the circumstances where the Court is considering orders for a child to reside with one parent and maintain a relationship with the other parent in another country. 

13. In relation to this factor, the doctor noted that the father’s statements indicating his willingness to support the relationship between the child and her mother were fairly ambivalent and conflicted.  The doctor noted that the father also felt that the mother would be inflexible in being able to make time for the child compared to himself, although the doctor was not clear that this statement was an accurate portrayal of the workload of a specialist medical professional.

14. The doctor also noted that the father felt that his relationship with the child had been impeded by the mother and the maternal grandparents.  The father appeared to the doctor to have limited concern about supporting the child’s relationship with the maternal grandparents in contrast with his own parents and also noted that the father felt that the child should be living in the place where she was born rather than living with her mother in Australia.  Overall, the doctor formed the impression that the father may be inflexible and more rigid regarding parenting arrangements and supporting the child’s relationship with her mother.

15. The doctor said the father did not indicate at the interview a great deal of empathy for the position of the mother and was quite critical of her use of childcare.  In this regard the doctor said the father may not be aware of the research literature which indicates that children do not appear to experience any detrimental effects from childcare with some evidence suggesting that children are better prepared cognitively and socially for school having had this experience even at an early age.  The doctor noted that if the child does have social deficits such as those he was concerned about, this would apply to an even greater extent. 

16. The mother, on the other hand, expressed to the doctor strong opinions regarding the importance of fathers in children’s lives and believed that the child’s relationship with her father should be encouraged.  

Equal time with both parties

1. So far as a shared care arrangement is concerned, the doctor said that if both parents reside within reasonable proximity to each other, an equal shared care arrangement would be feasible and may even be advisable.  He said, however, that it would be likely to have a greater advantage as the child gets older, during her primary school years.

2. He also said under cross-examination, that whilst he had seen equal shared care arrangements work, the main problem was sustaining them.  He said that as a child keeps changing, adjustments need to be made to meet other needs of the child, such as peer relationships, friendship and extra-curricular activities.  

3. Under further cross-examination on this issue, the doctor said that communication is the essence of effective shared parenting and that it is important for parents to continue to communicate and not arrange anything without “common consent”.

4. When asked about the importance of routines in a shared care arrangement, the doctor said that it is important for the parents to negotiate so that matters run smoothly, and that this is more difficult to achieve in a week about arrangement, but would be better if there was good communication.

5. The doctor also referred to the benefits of children with a high level autism diagnosis having predictable meal times, bedtimes and routine practices.  He said, in addition, that all children benefit from predictability and structure and not having things change too much.  The doctor did not think it would be good for the child if there was too much variability and that if the parents were to make such an arrangement, it should be fairly predictable and reliable.

6. Dr B was also cross-examined about the mother’s view of shared parenting.  He said that although the mother envisaged shared parenting she expressed anxiety over the suggestion of equal shared care for the child mainly because of her recent experience and concern about stressing the child and creating instability for her, which he described as understandable anxieties.  

7. Under cross-examination, as to this issue, the doctor said he had never seen an arrangement such as in this case whereby the child was spending time with each parent on each day.  The doctor did not agree that the arrangement that had been negotiated, so that the child spent two hours per day with the non-residential parent, would give him confidence in the capacity of each of the parents to prioritise the child’s needs.  He said the arrangement may have been related to anxiety in the parents in maintaining the relationship with the child in such a stressful period.  The doctor said that if the mother had agreed to this arrangement because she had wished to avoid conflict this was a reasonable position because of the negative impact of parental conflict.

Likely effect of change in circumstances

1. Dr B said that due to the current dilemma presented by the parents, any decision as to where they would live would result in a change in the relationship of the child with her parents and extended families.  He approached the matter by weighing up the benefits of maintaining the relationship with the mother and maternal grandparents as against returning to live in London with the father and paternal grandparents. 

2. The doctor’s opinion is for children in this age group, it is of greater value to maintain the relationship with the mother unless there are significant extenuating circumstances, which are not present in this matter.  He said that the impact of a mother’s relationship with a child is greater in this age group in terms of future development than the father’s, and that the father’s relationship becomes more important as the child gets older with the advantages of the relationship becoming more similar to that of a child’s relationship with their mother.

3. Counsel for the father cross-examined Dr B at length about his conclusions concerning a mother’s relationship with a child of this age.  The doctor made it clear that he was not suggesting that there was a general presumption that children receive better parenting from their mothers than from their fathers, despite extensive cross-examination to the effect that he was in fact relying upon some sort of general presumption.

4. Dr B remained firm as to his opinion concerning the particular role of mothers of children under five and referred to his own research and another considerable body of evidence in support of this proposition.  He was not swayed from his opinion that at this point in the child’s development the relationship with her mother has a greater salience to her emotional well-being.

5. The doctor was extensively cross-examined about another new circumstance and its likely impact upon the child; the mother co-parenting the child in the United Kingdom in circumstances where she opposed doing so.  The doctor responded on many occasions that the mother had expressed concerns about her feelings of being socially stressed and anxious about being so isolated in the United Kingdom and that she would find it very difficult to manage, without any close relationships she could rely on. 

6. When cross-examined about detriments to the mother and child in the event that the mother felt constrained to live in the United Kingdom, the doctor said that each of these parents depended more upon their own families for emotional and social support than upon each other.  The doctor said his belief was that the mother would feel less supported and less secure if she were separated from her family having to take care of the child than if she were in Australia.  The doctor formed the view that the mother had experienced considerable loneliness and distress during the marriage and had not felt supported by the paternal grandparents.  The doctor stood firm on his evidence concerning social support received from parents and the significance of the relationship between the child’s mother and her own mother.

7. The doctor said that if the mother felt isolated and did not have a well-developed set of relationships outside work she may have chronic unhappiness and grief, which she would probably overcome but that it would have a bearing on the relationship between her and the child.  When asked about the risks to the mother emotionally, the doctor said that as the mother had been sad, unhappy and did not feel socially supported in the United Kingdom, if this became chronic, it could impede her capacity as depressed mothers can be irritable and less attentive.  He said that such mothers are less emotionally available and tuned in and that this can have an impact even if the child has a secure attachment to her mother.

8. When asked about particular concerns for this child if she does indeed have high functioning autism, the doctor said she would do better if she had a secure relationship with her mother and that early intervention would be more likely to be effective if the parent is secure and happy.

9. The doctor was also extensively cross-examined about the father’s social connections in Australia, which would be relevant to a possible order under which the father may feel effectively compelled in the future to return to Australia to be involved in parenting the child.

10. The doctor remained firm about his assessment of the father, that he seemed to him to be resilient and strong.  The doctor was also cross-examined about what the father had told him about his decision to not remain in Australia and on a number of times the doctor said that the father had told him that his main difficulty was in relation to work.  He said the father did not say that he would be distressed if he were required to remain (or return to Australia), nor was the issue of the father’s social isolation in Australia explored, as the father did not raise it. 

11. The doctor was also cross-examined about the impact upon the child in the event of separation from her father.  The doctor agreed that their relationship could be impaired if ongoing communication was not well managed.  The doctor referred in this regard particularly to the use of technology for communication and noted that in his experience children as young as 18 months, and even younger, had started to use Skype with their grandparents and cousins.  He did concede, however, that it probably would be a significant challenge for a three year old to maintain a parental relationship between the United Kingdom and Australia by electronic communication.

12. The doctor did not agree with the conclusion that if the child only saw her father for two block periods each year, there would be a very significant and rapid deterioration in her attachment and relationship with him.  He said that that rather than a rapid decline it would make the relationship a bit more poignant and there might be some sadness and grief.

13. The doctor said that if the separation became a permanent arrangement it would mean there would be some attenuation of the relationship, and explained that attenuation in this context meant that the relationship would become less intense and less significant in the child’s life.  He said, however, he had experience of many children who maintained relationships in these circumstances.

14. The doctor said that if the child saw her father on two block occasions each calendar year and engaged in Skype communication there would be an impact on the relationship, but that if the child was constantly in communication and there was a great deal of effort to support the relationship, it would, in his opinion, have less impact.

15. The doctor said that it did not follow that the father/child relationship would become insecure or ambivalent if they were separated and that the important thing was for the child to know that the absent parent cares about her and has her in mind.  Despite lengthy cross-examination as to these issues relating to the father/child relationship, the doctor remained firm in his opinion.

16. The doctor was cross-examined about a scenario not envisaged at the time he carried out his assessment but that had subsequently emerged, that is, that the parents reside and share parenting while living separately in the United Kingdom for the two years the father is to take to conclude his training.  Although the doctor initially indicated that this may present a solution to their dilemma, he ultimately said that such an arrangement would only postpone the grief and disruption to another time if the father was not, at the end of the two years, able to come back to Australia. 

1. The doctor maintained his position under cross-examination that separation after a two year period could be just as detrimental as separation now in that there would be significant grief and loss at the future stage also. 

Attitude towards the child and responsibilities of parenthood

1. So far as attitude towards the child and responsibilities of parenthood are concerned, Dr B said, in his judgement, both parents are very committed to and attached to their daughter.

Capacity of the parents

1. So far as the capacity of the parents is concerned, Dr B said that, in his opinion, the mother has considerable competence and ability.  He said she was very warm in the interaction with the child, and compared to the father, showed a greater understanding about the child, was somewhat more perceptive about some of the difficulties in the child’s development and was making a considerable effort to try and engage the child socially with her age group.  The mother, in the doctor’s opinion, also indicated a willingness to collaborate with the father about the child’s development, education and time with him. 

2. The doctor said that whilst he found the father to be very committed and concerned about his daughter, the father may have some difficulties relating to his personality, which make him less flexible and less emotionally available compared to the mother.  The doctor noted in the father a certain rigidity and obsessional quality evident from his affidavits and other statements about his behaviour with the child and observed that in the session with his daughter the father had less range of emotions and less capacity to modulate and adapt to the child’s play.

3. The doctor also said that whilst the father indicated a willingness to include the mother, he made more negative statements about her and his affidavits indicated more rigidity about the future collaboration between them.

The parents’ emotional and behavioural states

1. The doctor viewed the parents had not thought through their engagement and marriage; they appeared to have romanticised their long distance relationship and not appreciated its limitations.  He viewed the parents as not having been emotionally engaged and involved with one another during the marriage and focused on their careers, which appeared to have been aggravated by their extended family living in different countries.

2. Dr B formed the opinion the mother was distressed and lonely in the marriage and felt unsupported by the paternal family, and that the father had not reflected on the marriage breakdown and was less flexible or willing to negotiate future arrangements. 

3. The doctor formed the view that both parents had made considerable sacrifices and effort supporting their daughter – they both had stable employment, good careers to date and have positive future prospects.

4. Dr B formed the view that the parents had considerable personality differences.  The mother is “much more emotionally engaged” and socially outgoing in comparison with the father, who is “far less sociable and less engaged in the world apart from his work”.  The doctor was of the opinion the father may have some traits of Asperger’s disorder, but was unable to make a diagnosis during assessment.

Risk of harm

1. Dr B identified no risk of harm in respect of either parent or grandparent.  Whilst the father had raised with him some comments about the mother’s parenting style, it appeared this was more a highlight of the differences in their family culture rather than deficits in the mother’s parenting.  The mother raised no concerns as to risk of harm with the doctor about the father.

Likelihood of further proceedings

1. It was the doctor’s view that there is considerable risk of further legal proceedings in respect of the child given the parent’s strong wishes to live in separate countries.

2. The mother raised concerns with him of the father retaining the child in the United Kingdom or removing the child from Australia, which the doctor viewed as understandable in the circumstances.  He thought that if arrangements were in place for the child to visit the other parent in the other country, this would minimise any risk of further proceedings.

Conclusion

1. It was submitted on behalf of the father that Dr B’s evidence concerning the relationship of the child to each of her parents, and the role of the parents and, in particular a mother, should either not be accepted or that very little weight should be attached to it.

2. First it was submitted that Dr B started from the position of an arbitrary view about gender and his evidence was compared to the type of evidence which was said to have been specifically disapproved of in Gronow & Gronow[1]. 

   [1] (1979) 144 CLR 513

3. In that case the High Court was being asked to consider a submission that in the absence of findings hostile to a mother, and the mother is otherwise satisfactory, then the proper care and custody of a young girl should be vested in her.  The High Court said that as the primary Judge in the case had undertaken a searching analysis of all of the qualities of each of the parents, which might relate to their respective suitability as custodian of their daughter, there was little room for any presumptions of this type.

4. In respect of a presumption of the type proposed in that appeal (that a mother is in some way naturally a preferred custodial parent) Stephen J in the majority [at 18] said:

   Three cases in this Court were said by the respondent to support the view that there is some general principle preferring the mother as custodian of young children. I would myself doubt whether they do more than acknowledge that same circumstance to which Evatt C.J. [the trial Judge] referred in her 1977 judgment when she spoke of “the importance of the mother to a child of this age”.

5. In my view, Dr B’s evidence does not reflect a general principle that a mother is a preferred custodian of young children.  The doctor in his evidence acknowledged many times the significance of fathers, but remained firm as to his opinion of the particular role of mothers of children under five based on his expertise and considerable experience, including research undertaken by himself and others, which was cited in his report and again under cross-examination.  Dr B also gave extensive evidence about his observations concerning the nature of this particular parent-child relationship, which was not arbitrarily based upon gender. 

6. It was also submitted by the father’s counsel that the doctor had been questioned about three particular articles, with which the doctor was not familiar, and that much of the research upon which he relied was based on intact families.  On this basis, it was submitted the Court should not give his evidence any meaningful weight at all.  Under cross-examination the doctor was simply asked about his familiarity with three articles, but no evidence about any alternative position was placed before the Court.  There was no concession made by the doctor that the research referred to by him was in any way flawed, nor was it suggested to the Court how the fact that this evidence was based mostly (but not entirely) on intact families diminished its significance.  This is not, in my view, a basis for giving this evidence little weight.

7. It was submitted by the father that a further reason to attach little weight to the doctor’s evidence was because the part relating to possible separation of the child from the mother was, in any event, not particularly relevant as neither the primary, nor secondary proposal of the father involved such a separation, and there is no evidence upon which it could be concluded that the mother will not move to the United Kingdom in the event that an order is made for the child to reside there. 

8. In my view, it would not be appropriate to attach little weight to the entirety of the doctor’s evidence simply because, as it turns out, the doctor’s opinion on one topic may not be as relevant due to the way in which the case was argued, especially as it was based on the way in which the parties presented their cases to the doctor.

9. In relation to the doctor’s evidence generally, I note that he found that the contents of the parents’ affidavits supported his observations and assessment at interview.  His assessment, based on his expertise and experience, was itself supported by reference to identified research carried out by both himself and others.  The doctor was extensively cross-examined and, whilst he made some small concessions, he remained unshaken as to his conclusions.

10. Many of the doctor’s opinions are pertinent to matters of best interests of the child as applied to the central dilemmas in this case, of the child residing in one country with the other parent in another, or co-parenting in circumstances which one parent does not choose.  For these reasons, I accept and I attach significant weight to his evidence.   

The matters in dispute

1. There are a number of factual matters in dispute, many of which ultimately are not of significance.  These include issues such as whether the parties married on condition that the mother would reside in the United Kingdom, the suggestion that the father may suffer from Asperger’s Disorder or an autism spectrum disorder and the quality of care or parenting provided by each of the parents. 

2. The reason that the last of these issues, which is very relevant in parenting matters need not be resolved by me is because, despite the contents of their affidavits and information relayed to the expert report writer, each of the parents conceded in the hearing they have no difficulties with the quality of the care provided by the other parent, except it is still maintained that they each have different parenting styles.

3. There are other facts which are in dispute which have a greater degree of relevance for the resolution of this matter.  These include the working hours of the father and his level of involvement in the day to day care of the child, the mother’s social supports, psychological state, relationships and circumstances previously in the United Kingdom and if she were to return, involvement of the paternal grandparents in the care of the child, the circumstances surrounding the current shared care regime, and the parents' capacity to cooperate and communicate with each other.

The father’s working hours and level of involvement in caring for the child

1. The father’s first and alternative proposals are that he and the child return to the United Kingdom, with the parents having a ‘week about’ equal shared care arrangement for the future, or alternatively for at least a period of two years whilst the father completes his specialist training.  In further submission, counsel for the father indicated that if equal time were not found to be in the best interests of the child, the father was not seeking that the child should live with him, but rather to have substantial and significant time with the father.

2. In support of his proposal, the father first asserts that in the United Kingdom, prior to coming to Australia, he played a significant role in caring for the child.  More importantly from his position, he says he was also very involved in the child’s care in Australia, especially after the separation.  The father also asserts that he will only be working 48 hours per week upon his return and will have flexible arrangements to facilitate the proposed level of involvement in caring for his child.

3. The mother’s position is that the father was not as involved in the United Kingdom in caring for the child as he asserts, worked longer than 48 hours each week in the United Kingdom and will do so in the future.  She is also concerned that if there is an equal shared care arrangement in the United Kingdom, it will be the father’s parents who will take a significant level of responsibility for the child during the time the child is with the father. 

4. From the mother’s perspective, the nature and extent of the paternal grandparents’ involvement in the care of the child has been a cause of significant stress for her and would continue to have a significant stressful impact upon her if she were required to co-parent the child in the United Kingdom.  The nature of the paternal grandparents’ involvement is disputed by the father.

5. So far as the day to day care of the child is concerned, in his affidavit of 9 August 2013, the father said that in the United Kingdom, after the mother returned to work she would dress the child and take her to and from day care, and if he was at home when they returned, which he described as “about three quarters of the time”, he would usually feed the child, give her a bath and put her to bed.  The father was not cross-examined about his evidence concerning his level of care of the child when the family previously lived in the United Kingdom.

6. The mother asserts that she has always been the child’s primary care giver.  It is not disputed that the mother took seven months maternity leave to care for the child and that she made the arrangements for the child to be enrolled in child care and paid for it as the father did not agree that the child should commence child care at that age. 

7. In relation to the care of the child in the United Kingdom and the father’s working hours, the mother says in her affidavit that when she returned to work following maternity leave, she worked flexibly between 7.30 am and 4.00 pm four days per week, and from home on Fridays, and that the child attended a day care centre from Monday to Wednesday, was looked after by the paternal grandparents on Thursdays and on Fridays was home with her. 

8. The mother described the father working odd and extremely long hours and being required to be available on call prior to the parties leaving the United Kingdom.  She also said that in the United Kingdom, the father sometimes did not come home for a couple of days at a time, and that she rarely heard from him during those periods.

9. The father’s counsel was very careful to take the father to each of the paragraphs in the mother’s affidavit with which he disagreed and to cross-examine the mother as to the issues in dispute.  The limited cross-examination about the father’s level of care and involvement in the child’s life in the United Kingdom was not directed to disputing her evidence but to exploring the mother’s views about those arrangements.  For this reason, I am satisfied that whilst the father was involved in the child’s care when he was in the United Kingdom, it was not to the degree that he states and that the mother was the child’s primary carer at that time.

10. Under cross-examination the father agreed that the work he would be returning to in the United Kingdom for the next two years was broadly similar to his work before he came to Australia.  He said he previously worked 40 to 48 hours per week and on the basis of a directive introduced in 2006, doctors in the United Kingdom were not to work longer than an average of 48 hours per week. 

11. In support of the father’s evidence that he will only be working 48 hours per week as a trainee specialist in the United Kingdom, the father also relies upon the affidavit and oral evidence of Dr W, the training program director who is currently overseeing the father’s traineeship. 

12. In her affidavit, Dr W confirms that doctors' working hours in the United Kingdom have been capped at the European working time directive of 48 hours per week.  However, under cross-examination Dr W said that the father would have to be involved in research, other courses and meetings outside normal working hours, and whilst the father would work 48 hours per week averaged over the relevant work period, at the higher level he was pursuing, he may often exceed 48 hours per week.

13. The mother tendered an extract from her phone of an application that the father agreed set out his work hours in the United Kingdom for a number of months in 2011 and for the month of March 2012 (Exhibit G).  The extract shows that whilst the father’s working weeks averaged to be regularly between 40 to 50 hours, for a number of actual weeks he worked in excess of 60 and 70 hours.  The extract also shows that the pattern of work was irregular with the father working up to six days one week or as little as one day in another week.

14. I am satisfied that whilst the father will work an average of 48 hours per week in the United Kingdom for the two years from February 2014, his working pattern will be irregular and he will be required to undertake work related duties in addition to these hours.  I am satisfied that he will not be available to care for the child in an arrangement similar to the current equal time arrangement.

The paternal grandparents

1. There are a number of reasons why the mother says that returning to the United Kingdom would be extremely difficult for her and why it would not be in the best interests of the child to be raised in the United Kingdom under an equal shared care regime.  Firstly, there are a number of interrelated issues pertaining to the paternal grandparents.

2. It is the mother’s position that the paternal grandparents have made her feel unwelcome and have been critical of her parenting.  It is also the mother’s case that the paternal grandparents and the father are aligned, especially on issues where their opinions differ from hers, and that the grandparents and father have at times excluded her from matters relating to the care of the child.  An associated issue is that it is not entirely clear to what extent the paternal grandparents will be caring for the child during the father’s “time” under his principal proposal.

3. Each of these matters is relevant to the father’s proposal that he either live with his parents or would be heavily reliant upon them when he returns to the United Kingdom, which the mother says would have an impact upon her ability to co-parent the child if she were required to do so in the United Kingdom.

4. In her affidavit, the mother gives examples of the paternal grandparents and father excluding her, including them celebrating a traditional religious teething ceremony for the child from which she was excluded, and wishing to carry out a head shaving ceremony despite her opposition.  She also says they taught the child to say “daddy”, “grandma” and “granddad” in the Tamil language but did not teach her to say “mummy”.

5. The mother also says that it was always the father’s position that if she were to return to work after the child’s birth his mother should look after the child.

6. Although there is no dispute that the parents had significant differences of opinion in relation to parenting including the use of childcare, discipline and routines, the mother also sets out in her affidavit examples of the father and his parents being aligned in relation to these issues and others which caused significant stress in their relationship. 

7. There was some cross-examination of the mother on the issue of the paternal grandparents’ alignment with their son and the mother’s examples of her feeling left out.  It was put to the mother that she was asked to participate in the teething ceremony but she maintained that she was not asked or told that it may happen.  The mother became quite distressed under cross-examination when describing what she anticipated if she were required to reside in the United Kingdom and raise the child in a shared arrangement, as engaging with the father and his parents in a “power struggle” over the child.

8. Under cross-examination the mother maintained that the father regularly made lots of comments to the effect that she should do exactly as he said or he would get his mother to step in and look after the child and said this was the cause of a lot of arguments.

9. At the commencement of his evidence the father was taken to a number of the paragraphs of the mother’s affidavit concerning criticisms of her parenting, alignment of the father and his parents and exclusion of the mother.  He specifically denied making a number of statements to the effect that his mother is superior as a mother and should be looking after the child, but some of the other examples the mother gives, particularly of his parents excluding the mother and aligning with him, are not denied nor is there an alternate version of the incidents given in his affidavit.

1. In relation to the details of his proposed equal time shared-care arrangement in the United Kingdom, the father said that he had discussed with his parents, that he and the child would live with them for 12 to 24 months and proposed an arrangement that closely mirrors the arrangement currently in place in Sydney.  He said that he had not yet discussed the issue of rosters with the hospital and when asked whether he had made enquiries to see if the roster could accommodate a week about arrangement, he said that it was “very flexible and involved much fewer hours”.  The father did not say that the roster could be arranged so that he worked for seven days then had seven days off, as he currently does in Sydney.

2. In relation to the level of paternal grandparent involvement in the child’s care, the father agreed under cross-examination that, in reality, in the United Kingdom some of the time he would be at work and the child would be in his household being cared for by his parents, or either of them.

3. When asked about future plans for school, it became apparent for the first time in the proceedings that the father had recently asked his parents to look at nursery and primary schools near their home and that they had reserved a place in a nursery/primary school by completing an enrolment form on his behalf.  When asked more questions about the process of identifying this school and lodging the paperwork for a reserved place, in my view, the father was somewhat evasive and did not give direct answers.  Ultimately, he agreed that he had not discussed this issue with the mother and that all the arrangements, such as visiting the school on Open Day and completing the paperwork, was done through his parents.  He also said that the school was located three kilometres or five minutes by car from his parents’ home and that no other applications for schools had been lodged.

4. The maternal grandmother gave evidence of her observations, particularly in the time she spent with them shortly after the child’s birth.  She said that when the father came home from work he would question the mother about what she had done with the child during the day and would chastise them (that is the mother and the maternal grandmother) if they had been out, accusing them of being selfish and would tell the mother that she was a hopeless mother.  The maternal grandmother was not cross-examined about this evidence.

5. In her affidavit, the paternal grandmother said she and her husband always tried to welcome the mother and tried not to interfere with their son’s relationship with his wife.  Although the paternal grandmother describes the child as having a good relationship with both her parents, she describes the relationship with the father as loving and kind, but was quite critical of the mother’s parenting style, referring to it as harsh and describing the mother as quite sharp when she speaks to the child and as a strong disciplinarian.

6. The paternal grandmother also makes criticisms in her affidavit of the mother ignoring the advice of the father in relation to the child, being harsh in her demeanour to the father and the grandparents, and of avoiding the grandparents and not visiting them voluntarily.

7. The paternal grandmother said in her affidavit that she and her husband “are completely available” to have (the father) care for (the child) in the United Kingdom.  She made no mention in her affidavit of shared care or the mother residing in the United Kingdom.

8. On issues relating to the relationship between the mother and the paternal grandparents, the alignment of the father and his parents, the likely involvement in the future of the paternal grandparents in child-rearing and the mother’s belief about the way in which these matters would impact upon her capacity to share parenting of the child in the United Kingdom, I prefer the version of the mother over the father for the following reasons.

9. Some aspects of these matters were not denied by the father in his affidavit or addressed in his oral evidence and others are supported by the maternal grandmother’s evidence, which was not challenged.  Others are consistent with the father’s own case, especially some aspects of the paternal grandmother’s evidence.

10. Further, at the heart of the mother’s evidence in this area is her perception of the impacts of others’ actions and statements upon her, which is very subjective.  Whilst I accept that the paternal grandparents tried to welcome the mother, and the mother conceded in her evidence that this had been the case, the effect of her evidence was that she felt excluded.  Whilst the paternal grandparents quite reasonably offered their son their total support, at times this was, in my view, legitimately seen by the mother as them aligning with their son in his criticism of her parenting.

11. There is also support for the mother’s version from information given by both parents to Dr B.  For example, the father told Dr B that in the argument over childcare his mother became involved and it is clear that she was of a similar view to the father over the issue and at odds with the mother.  Further, the father’s expressed concern to Dr B about the mother’s parenting and this description of her as having an aggressive verbal style is very similar to the maternal grandmother’s description and caused conflict within the relationship.  On the issue of the paternal grandparents’ future involvement in the care of the child, the father told Dr B he would like to care for the child at home with his parents and went on to say that he would not be reliant on childcare.  When interviewed by Dr B, the paternal grandparents both indicated a willingness to be fully involved in helping the child if she was living in London.

12. The mother told Dr B that the father supervised everyone in the care of the child when she was an infant, including her own parents and that the only ones he did not supervise were his parents.  The mother gave Dr B a number of examples where she and the father disagreed in relation to parenting where the paternal grandmother supported the father.  For example, she described the father insulting her by calling her “dummy mummy” when she wanted to use a dummy with the child, a practice with which the father and his mother did not agree.

13. Dr B did not address the issue of difficulties that may be encountered in the United Kingdom if the paternal grandparents are significantly involved in the care of the child and the mother is also in the United Kingdom co-parenting, as this was not a proposal presented to him by the father. 

14. Although the father said he will be living with his parents for 12 to 24 months and envisages a week about equal time arrangement, there is no evidence that he will be able to implement an employment arrangement to allow this to occur. 

15. Although Dr W, the father’s supervisor in the United Kingdom, said that as much flexibility as possible with rosters would be provided to him, it was not suggested to the doctor that this could include alternate week working arrangement.  In light of the father’s evidence and Dr W’s evidence that the father’s roster will be roughly the same in the next two years as it was in the past, there is no evidence from which I could be satisfied that the father would be able to arrange a regime that would support him working on a seven day on and seven day off cycle.  In these circumstance and in light of the father’s and paternal grandparents’ evidence and information given to Dr B, I am satisfied that the paternal grandparents will be significantly involved in the care of the child in the United Kingdom.

16. In this case, although not ultimately pursued, as each parent conceded that they had no criticism of the quality of care of the other parent, in their affidavits and in their interviews with Dr B, both parents are quite critical of aspects of the other parent’s parenting.  It is only the mother, however, who felt that the father's alignment with his parents caused her to feel isolated and excluded and was the cause of considerable conflict between them.  Only the mother says that these circumstances would impact upon her parenting in the future if she were required to share it with the father and in reality his parents.  Although the father at times alleged that the maternal grandmother interfered and aligned with the mother and this caused conflict between them, he did not suggest it had an impact on his own parenting.

17. Dr B described the issues that the father raised regarding the parenting style of the mother as more to do with a difference in family culture than any specific deficits in the mother.

18. Whilst Dr B did agree with some of the matters upon which the mother based her criticism of the father’s parenting such as what he described as “a certain rigidity and obsessional quality”, the doctor saw these as matters relating to the father’s personality rather than specific defects in his parenting.  However, Dr B did express the opinion that the father made fairly rigid demands and expectations of the mother if he was to be the primary guardian and the child returned to the United Kingdom.

19. In these circumstances, I do not make any findings about the quality of either parent’s care of the child.  However, I do find that there has been significant conflict between the parents over matters regarding parenting, and that the paternal grandparents have been involved in these issues, aligning with their son.  In these circumstances, and in light of the likely significant involvement of the paternal grandparents’ in parenting the child in the United Kingdom, I am satisfied that it is likely that difficulties and conflicts will be experienced by the parents if they are co-parenting the child in the United Kingdom, particularly on an equal “week about” basis.

The mother’s social supports, psychological state and relationships in the United Kingdom

1. Although it is beyond dispute that the parties had difficulties in their relationship and in their attitudes towards parenting from soon after the child’s birth, the mother also says she experienced other difficulties in the United Kingdom for which she sought professional assistance.  To a significant extent these other issues relate to matters concerning the paternal grandparents.

2. The father’s position in submissions is that the mother’s situation in the United Kingdom was not nearly as difficult as she suggests and submits that she will manage well in the United Kingdom if an order is made for the child to be raised there. 

3. It is not disputed that the mother is happy and strongly attached to her own family and that moving to the United Kingdom will be stressful, a matter acknowledged by the father in answers to questions under cross-examination.  The matter to be determined, however, is the extent to which it will be stressful and the impact, if any, the stress will have upon her parenting.

4. In relation to her psychological state, when living in the United Kingdom the mother attended counselling with a cognitive behavioural psychotherapist on 24 occasions between July 2011 and July 2012 with the focus of the sessions being her marriage, her sense of isolation and feeling of rejection by the father and his family.

5. The mother described her feelings and experiences in the United Kingdom in great detail to Dr B who reported that the mother at one point burst into tears talking about her distress about the feeling of essentially never being loved and the lack of affection.  The mother told Dr B that as a result of seeing the counsellor for 12 months she felt that she would be able to cope much more successfully if she was with her family and that she would feel less isolated.

6. So far as the future is concerned, the mother told Dr B that her main concern was that she would not be able to function in her role as a mother if she was forced to go to London.  Dr B noted that the mother’s feeling that she would be extremely unhappy and depressed was supported by information and affidavits from her mother. 

7. The mother maintained under cross-examination that even the possibility of spending two years residing in the United Kingdom concerned her because of the broader issues involving the father’s side of the family and because such an arrangement would involve significant disruption for the child who is in a routine, has a structure to her life and is involved in extra-curricular activities.  The disruption the mother says would also extend to herself, as she has a good job, has moved six times in five years and wants to give stability to herself and her daughter.  The mother also said that the lack of trust she has in the father due to him commencing proceedings behind her back is a significant matter of concern.

8. At one point under cross-examination the mother became distressed and said that the possibility of the Court making an order and her returning to the United Kingdom was something too bleak for her to even think about. 

9. When cross-examined about an email exchange between herself and the father in the beginning of 2012 concerning the father’s prospects of getting a job in Australia, the mother denied that she was keen to remain in the United Kingdom.  She said that she was keen to get a promotion in the United Kingdom and as soon as she got it she resigned.  Her evidence was to the effect that she used the promotion to secure a good job for herself in Australia.  The mother firmly maintained under cross-examination that the time she spent in the United Kingdom was as bad as she indicated.

10. The maternal grandmother described the mother as traumatised by the experience of conflict with the father over the child, when the child was a baby and she was assisting the parents in the United Kingdom.  When the maternal grandmother was cross-examined about the possibility that the Court may make orders effectively requiring the mother to return to the United Kingdom, she repeated that her daughter had been traumatised by her experience there.  The maternal grandmother also expressed her concern that as she is a leukaemia patient currently undergoing oral chemotherapy she may not be able to travel and support her daughter in the United Kingdom.  She said that whilst she is currently well, the future was not clear.  She said that she and her husband certainly would try and see their daughter and grandchild if they were in the United Kingdom, but that it depended on her health and their financial state.

11. I am satisfied that the mother did suffer significant psychological stress when living in the United Kingdom.  I am also satisfied that to a large extent it related to her personal relationship with the father but to some extent was also related to their serious differences over child-rearing and to the absence of a close attachment to the paternal grandparents.

12. I am also satisfied on the basis of the mother’s evidence and Dr B’s report that the support provided by the mother’s parents, particularly the maternal grandmother is crucial for the mother to be effective as a mother.

13. The father conceded under cross-examination that he had some concerns about the impact of the return of the mother to the United Kingdom in the short term and that, as she is strongly attached to her family in Australia, losing those ties will be very stressful for her.  He was not, however, concerned about the mother in the long term if she returned.  On the basis of these concessions, the mother’s and maternal grandmother’s evidence, together with Dr B’s evidence about the emotional impact of a mother’s chronic unhappiness and grief upon her relationship with her children and parenting capacity, and the importance of the maternal grandmother to the mothers parenting capacity, I am satisfied that if the mother were to reside in the United Kingdom to participate in the care of the child, the quality of her parenting would be reduced.

Current shared care regime

1. The mother says that prior to separation, the father had very little time for the child because of his work commitments and only since the separation he has changed his rosters to spend more time with her. 

2. The mother acknowledged in her affidavit that the child enjoys her time with her father but believes that the current arrangement is not a permanent solution as the father’s work commitments change from job to job as he rotates hospitals.

3. The mother says that the working regime in Australia for the father means that he is effectively on call 24 hours a day for seven days and then has seven days off.  The mother does not feel that a completely shared care arrangement for the child is suitable, though she concedes the regime came about after separation and it may be suitable when the child is older and if living in Australia. 

4. Both of the parents agree that the shared care arrangements commenced shortly after the separation.  It is also clear from an exchange of correspondence annexed to the father’s affidavit that the initial arrangements put in place for the care of the child following separation were made at the mother’s suggestion to accommodate the father’s then roster so that the father could care for the child or collect her from nursery school on the days the father was not working.  Under the original proposal the care arrangement was not equal time with both parents but involved the child living with her mother and spending significant time including two to four consecutive nights with her father.

5. The father made arrangements to change his roster so that from 1 February 2013 he worked alternate weeks and was available to care for the child on alternate weeks.  In late January 2013, the paternal grandparents arrived from the United Kingdom to assist the father in the care of the child, and have been in Sydney for lengthy periods of time throughout the year.

6. It is not clear from either parent’s affidavit exactly how the current equal time arrangement came about, except that it was said to have come about by mutual agreement.

7. Under cross-examination about the current arrangement the father said that he and the mother had agreed that they both should spend as much time as possible with the child, despite the week about arrangement in place.  The father was not cross-examined specifically on how this arrangement had come about prior to the period of reconciliation and cohabitation or how this arrangement had revived after the parties finally separated.

8. The mother’s affidavit does also not set out exactly how the equal shared care arrangement came about.  Paragraph 99 of her affidavit which deals with this issue is not entirely clear, but it appears to suggest that following final separation the mother suggested that during the week the father was not working the child should spend three nights with the mother and four nights and some additional hours with the father.

9. In her interview with Dr B and under cross-examination, the mother had stronger views about the equal shared care arrangement.  The mother told Dr B that if the father were to stay in Australia, she was not sure whether equal shared care would work.  As the time of the interview (August 2013) she felt the arrangement was very disruptive for the child, and told the doctor that the child needed a base, a place with her own bedroom.

10. Under cross-examination the mother said that she felt she had been “railroaded” into the current arrangement.  She felt that the arrangement was not in the child’s best interests but agreed that in the short term she had agreed to it to keep the father happy and so that the child could spend as much time with him in the interim.  The mother said she was told about the change in roster after the event and had no choice but to accept it.

11. The mother was also cross-examined about the additional daily contact that each of the parents had with the child when she was not in that parent’s care.  The mother said that there was no agreement to this arrangement and that she was at the mercy of the father who had 50 per cent of his time not working whereas she could do nothing as she worked full-time.  The mother was emotional and crying when giving this evidence.  The mother agreed that she had not said anything about these matters in her affidavit nor was it mentioned in letters from her lawyer.  The mother was pressed under cross-examination with questions to the effect that she had recently invented these views in relation to 50 per cent shared care but the mother insisted that she had always felt that way but was not in a position to disagree with the father’s proposals.

1. I also do not accept the submission that the relationship between the parents as separated parties is unusual in that it is cooperative and flexible, and that the parents do communicate well when required.  In this regard, I attach weight to some aspects of Dr B’s evidence and also to the parents' evidence.

2. Dr B was of the view that the father may be inflexible and more rigid regarding parenting arrangements, and was not challenged upon it.

3. The doctor described the mother as indicating in his opinion a willingness to collaborate with the father about the child’s development, education and time with him.  However, the doctor said that while the father also indicated a willingness to include the mother, he made more negative statements about her and his affidavits indicated more rigidity about the future collaboration between them.

4. The way in which the father went about making arrangements to reserve a position at a preschool in the United Kingdom without any reference to the mother does also not give me confidence in relation to his capacity to communicate openly and cooperatively with her.

5. Under cross-examination concerning the issue of the high level of cooperation that would be required for the father and the mother to co-parent in the United Kingdom, the father said he was sure that it would be difficult.  He went on to say, however, that they both shared the same aims.  This opinion, in my view, does not appear to be a realistic assessment in light of the quite significantly different parenting styles and views on parenting matters.

6. There is no evidence from which I could be satisfied that the father would be able to arrange a regime that would support him working on the seven day on and seven day off cycle as he currently does, and I have found that he would return to the unpredictable working hours he previously experienced. The paternal grandparents’ evidence and information given to Dr B upon which I found the paternal grandparents will be significantly involved in the care of the child in the United Kingdom are factors which will involve a change in the child’s circumstances, and should be considered here. Alternatively (and it is considered by both parties that the future arrangements in the United Kingdom are significant) these matters could be characterised as circumstances that the Court thinks are relevant under s 60CC(3)(m) of the Act.

7. Taking into account the mother’s concerns about the current arrangements, the likely difficulties that the parents would have in cooperating and communicating with each other, the need for predictability and limited changeability and quite different parenting styles that prevail in each of the parents’ homes, I am of the view that an order which establishes a primary residence for the child will be a changed circumstance that will benefit the child.

8. The issue of the likely effect of changes in the child’s circumstances including the likely effect on her of separation from her father arises squarely under the more extensive and dramatic separation that would arise if the parents lived in different countries.  The mother’s proposed order is the only order which raises this consideration.

9. As I said when considering the benefit to the child of having a meaningful relationship with both of the child’s parents, there is no doubt that in this matter the separation of the child from her father under the orders proposed by the mother is a matter of great significance especially as the child has, since separation, been equally cared for by both parents.  Once again, in my view, the evidence of Dr B is of particular significance.

10. The father submits that Dr B’s evidence does not greatly assist the Court in this matter as it is generic rather than specific to the circumstances of the parents and child in this matter.  As I have already indicated, I do not accept this submission and find Dr B’s evidence helpful and attach significant weight to it in its entirety. 

11. In relation to this issue, the father submits that on any view it is not available for the Court to conclude that the attachment between the father and the child will remain the same if the child is separated under the mother’s proposed orders.  Although attachment as such is not a factor referred to in the best interest considerations, in this matter, where there was evidence given by Dr B both as to relationships and attachment, the effect of the father’s submission is that the Court could not conclude that if the child was separated from her father that the nature of her relationship would remain the same.  I agree with this submission and accept that the relationship will be affected over time.  I accept the evidence of Dr B that the relationship between the child and her father if they are separated under these orders will become attenuated or less intense over time.  I also attach weight to his evidence that the relationship may still be an important one for the child so long as communication is managed well and the child understands that the father still has her in mind and cares about her.

12. It has been submitted by the father that if the Court does not make orders in accordance with the father’s primary proposal, then the proposal that next best meets the child’s best interests is the proposal whereby the parties reside in the United Kingdom for two years and raise the child on an equal time basis there for that period.  As previously noted, it has been conceded that, in fact, the proposal would be for a period of 18 months rather than two years.  In relation to the likely effect of changes in the child’s circumstances, it is submitted by the father the two year proposal would cause less damage to the relationship between the father and the child.

13. Dr B’s evidence concerning the two year proposal was initially to the effect that this may present a solution to the dilemma in this matter.  However, it was then put to the doctor, and is the case on the evidence before me, there are no concrete plans for the father to return to Australia after the two years of his training.  The doctor then said that separation in two years’ time may be as detrimental to the child as separation now as she would still need to deal with the grief and loss under either proposal.

14. The two year proposal also raises a number of other changes in the child’s circumstances including leaving her current home and associated routines and moving to another country twice within an 18 month period and dealing with the possibility of a number of trips to Australia from the United Kingdom during that period to maintain the relationship with her maternal grandparents who may not be able to travel.  In addition, there will be other impacts for the mother from moving and establishing a new home and job and negotiating the relationship with the father under changed circumstances.  In light of the evidence about the mother’s previous experience and psychological state in the United Kingdom and Dr B’s evidence about the impact on parenting capacity in these circumstances I am of the view that there will be an added negative effect upon the child under this proposal.

15. The child has good relationships with each of her grandparents and the proposal whereby she resides in Australia with her mother would also involve ongoing separation from her paternal grandparents who have been closely involved with her care.  The paternal grandparents gave evidence of regular trips to Australia both before the parents were residing here and since that date.  The paternal grandparents have relatives in Australia and appeared to have the financial capacity to travel and unlike the maternal grandmother there were no health concerns or other impediments to their travelling to Australia.

16. Under the father’s proposal that the child reside and be cared for by both her parents in the United Kingdom either for two years or longer the child would be separated from her maternal grandparents with whom she shares a good relationship.  Whilst the maternal grandparents would travel to the United Kingdom both to support their daughter and see their granddaughter to the extent it was possible, the maternal grandmother did raise the issue of her health which may prevent her travelling.

Practical difficulty

1. Neither parent raised any issues in relation to the practical difficulty and expense of the child spending time with or communicating with the other parent and whether that difficulty or expense substantially affects her right to maintain personal relationships and direct contact with both parents on a regular basis. 

2. Under the father’s proposal there would be no concerns of this type as the parents would be sharing the care of the child and the parents would be living in close proximity with each other. 

3. Under the proposal whereby the child would reside in the United Kingdom for two years only or under the mother’s proposed order that the child would reside in Australia with her, neither parent has raised the issue of the practical difficulty or expense.  The child is fortunate to have parents who are reasonably well off enough to each be able to afford to take her to a country where the other parent lives each at least once per year and to facilitate a high degree of communication by telephone, webcam or Skype.

Capacity of the parents

1. The capacity of each of the child’s parents to provide for the needs of the child is another consideration which assumes significance in this matter.

2. Both parents have sufficient financial resources and capacity to more than adequately meet the physical needs of the child.

3. So far as meeting the emotional needs of the child is concerned, it has been submitted by the mother that the very fact that the father assumes that the mother will relocate to the United Kingdom successfully with little impact upon her in circumstances where she clearly does not wish to do so and says that it will have a significant impact on her psychological state, of itself indicates a lack of insight by him.  This lack of insight not only relates to a discounting of her position, but the way in which it may affect her capacity to parent the child.

4. The mother submits that the difficulties she experienced in the United Kingdom are likely to be exacerbated if she were effectively required to move there and this may affect her capacity to provide for the needs of the child.  Dr B indicated that mothers who are depressed are less emotionally available for their children and that there is an impact upon the quality of care that a mother in these circumstances would provide to the child. 

5. The mother also refers to the father’s long or unpredictable hours in the United Kingdom impacting upon his capacity to care for the child.

6. In my view, under the father’s principal proposal, the mother’s capacity to meet the needs of the child would be affected in the way described by Dr B.  Under the father’s proposal I am also of the view that the father’s capacity to care for the child in the same way as he is currently doing will also be affected simply due to his likely irregular hours.  Under the father’s alternate proposal of two years co-parenting in the United Kingdom, the impact on capacity to meet the child's needs would obviously be lessened, but may still exist.

7. Under the mother’s proposal, there is no evidence to suggest that her capacity would be in any way affected.  According to Dr B it will be important for the father to meet the child’s emotional needs by having her understand that he still cares for her and has her in mind if he is separated from her.  The evidence suggests that he does have the capacity to meet the child’s needs in this regard.

8. Each of the child’s parents and other people including both sets of grandparents have capacity to provide for the needs of the child.  However, Dr B felt that the mother was warmer in her interaction with the child and compared to the father showed greater understanding about the child, and was somewhat more perceptive about some of the difficulties in her development.  The doctor found that whilst the father was very committed and concerned about his daughter, he appeared to be less flexible and less emotionally available compared to the mother and had a certain rigidity and obsessional quality about his behaviour with the child and had less range of emotions and capacity to modulate and adapt to the child’s play.

Lifestyle, cultural background etc

1. Although both parents are of Sri Lankin heritage, as Dr B points out the mother identifies more with an Australian culture and the father is a little more connected to the cultural traditions of his parents.  Reference has also been made to the difference in parenting styles of the parents.  Under either set of proposed orders the child will receive the benefit of the lifestyle and culture of each of the parents.

2. The child may have a particular characteristic which is of some importance in this matter in that Dr B has some concerns that she may be showing characteristics consistent with high functioning autism.  Dr B’s evidence was to the effect that for a child who has these characteristics, routines and limited variability are of greater significance than for other children.  Under the mother’s primary proposed orders whereby the child lives with her and spends block time with the father, the child would receive greater benefit of routines and limited variability.  The mother’s proposed order that the child live primarily with her and spend substantial and significant time with the father if he is able to reside in Australia or under a similar arrangement if the mother were effectively required to reside in the United Kingdom would, in my view, offer slightly more advantages to the child than an equal shared care arrangement as proposed by the father.

Responsibilities of Parenthood

1. Each of the parents has a conscientious attitude to the child and the responsibilities of parenthood and even though the parents differ in their parenting styles neither suggest that there are any inadequacies in this regard.

2. However, it has been submitted by the mother that the father’s proposal is based more upon his own interest in pursuing his career than on the best interests of the child.  The mother’s evidence is that she is not critical of the father in pursuing his career and from the evidence of Dr W and of the father abandoning his training in the United Kingdom at this stage would be severely detrimental to his career. 

3. I am of the view that the mother does not regard the father’s commitment to his career which involves further training in the United Kingdom as reflecting poorly on his attitude to the responsibilities of parenthood.

4. The mother’s central complaint is that the father’s desire to complete his training in the United Kingdom together with his concession that the mother should either have primary care or at the least spend equal time with the child means that she is required to move to the United Kingdom.  In my view this reflects more upon his attitude towards the mother than to the child or the responsibilities of parenthood.

5. The issues of family violence do not arise in this matter.

6. In considering whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings, much concerning the future of this very young child is unknown.  Whilst the father is committed to completing his training in the United Kingdom and it is his contention that for at least the next two years equal time with each parent will be in the best interests of the child, it appears that the intentions of each parent is to reside in different countries in the future.  In other words, any equal time or substantial and significant arrangement will by necessity involve one parent residing not only in a country but possibly a specific part of a country not of his or her choosing. This raises concerns about the potential for ongoing proceedings between the parties to adapt to future change to a greater degree than is the case with the alternate proposed orders.

Equal time / substantial and significant time

1. I am of the view that it is not in the best interest of the child for her to spend equal time with each of the parents.  This view is based upon the current difficulties with the equal time arrangement and the opinion of Dr B that shared care arrangements are usually more advantageous to primary school aged children.  Further, the doctor’s evidence about the importance of good communication, flexibility for meeting the child’s ongoing needs and predictability are particularly important in this matter.  As I have noted, equal time in the circumstances of this case will effectively mean equal time between the paternal family and the mother, as opposed to equal time between the parents.  Finally, as I have previously said, I am of the view that the child having a primary home and spending time with her other parent, will offer her greater benefits.

2. So far as whether it is in the best interests of the child to spend substantial and significant time with each of the parents, it has been submitted by the mother that this is in the best interests of the child if the child were to reside in Australia and the father were to reside here also, and is an alternative proposition of the father and of the mother if she is required to live in the United Kingdom. 

3. The mother makes the same submission that she made in respect of equal time concerning the father’s proposal for the child to live in the United Kingdom with her and spend substantial and significant time with him.  That is, that this is not an order that is connected to the evidence, but is rather an order seeking to create a situation rather than to choose between situations that already exist. 

4. Having regard to each of the factors to which I referred under s 60CC of the Act in relation to equal time, I place considerable weight on the fact that the child would receive the benefit of having a meaningful relationship with both of her parents if she were to spend substantial and significant time with each of them.

5. Considerations of the nature of the relationship of the child with each of her parents and considering the extent to which each parent has taken the opportunity to participate in decisions and especially spend time and communicate with the child would suggest that an order of this type may meet her best interests. 

6. As indicated, I am of the view that the likely effect of a change in the child’s circumstances which has the effect of establishing a primary residence for the child but ensures that she spends significant time with the other parent would also indicate that this is an order which meets her best interests. 

7. I am also of the view, as previously indicated, that the issue of practical difficulty and expense arises more in relation to a consideration of the competing primary proposals rather than whether an arrangement that has the child spend substantial and significant time with each parent is in her best interests. 

8. A consideration of the capacity of each of the parents and other persons including, in particular, the paternal grandparents and their likely role in caring for the child which is also relevant to the issue of lifestyle and background and is another fact or circumstance that I consider relevant, also tend to suggest that this may be an appropriate order.

9. Similar concerns about the likelihood of an order of this type leading to the institution of further proceedings arise due to the uncertainty of the future. 

10. Taking all of these matters into account, it appears that an order which provides for the child to spend substantial and significant time with each of the parents would be in the best interests of this child.

Reasonable practicability

1. Section 65DAA(2) of the Act provides, with particular reference to subparagraph (d):

   (2)     Subject to subsection (6) if:

   (a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;

   the court must:

   (c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

1. It is submitted by the father, in reliance upon the Full Court decision of Ember & Assadi[8] that the issue for consideration by the Court is not whether the relocation is reasonably practicable but whether (equal or) substantial or significant time with each parent is reasonably practicable.  In this regard, it is submitted by the father that because the mother holds a British passport, has qualifications and experience that will enable her to obtain suitable employment in the United Kingdom and potentially has accommodation which may be made available for her, that it is reasonably practicable for such orders to be made. 

   [8] [2013] FamCAFC 107

2. The mother raises a range of concerns about any order that would require her to move to the United Kingdom including matters relating to reasonable practicability.

3. In Ember & Assadi (supra) [at 31] the Full Court said:

   We first observe that the issue is not strictly whether the relocation is reasonably practicable, but whether equal time or substantial or significant time is reasonably practicable. (emphasis added)

   However, the Court went on to say:

   However, plainly the argument of the mother here is centred around the factors that must be considered by the Court in considering whether it is reasonably practicable to put in place the proposed order as set out in s 65DAA(5).

4. As further observed by the Full Court in Ember & Assadi (supra) at [29]:

   The approach to be adopted in applying this section has been settled by the High Court in MRR v GR (2010) 240 CLR 461 as follows (at paragraph 13):

   Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

5. In MRR v GR[9] (supra) when considering the issue of reasonable practicability the High Court said [at 15]:

   Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. … Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

   [9] (2010) 240 CLR 461

6. In that case such parenting would only have been possible if both parents remained in Mount Isa, because the father had said he would not move from Mount Isa.  The mother did not want to remain in Mount Isa.  The High Court said in those circumstances the Court was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.

7. In this case, the father has said that he will be moving to the United Kingdom from February 2014 for at least two years and so the only possibility for substantial and significant time with each parent would arise if the mother were to move to the United Kingdom.  This involves an examination of the circumstances of the parties, more particularly those of the mother, in determining whether substantial and significant time is reasonably practicable. 

8. Section 65DAA(5) of the Act sets out matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend substantial and significant time with each of the child’s parents.

9. A strict application of the first of the matters that the Court must consider, that is, how far apart the parents live from each other would inevitably raise issues of the great significance about reasonable practicability, as, although the parents currently both live in Sydney, as from February 2014 the father will live with his parents just out of London whilst the mother will remain in Sydney.  Applying this consideration to the circumstances in this case once again raises the concept of a party seeking to create a situation rather than choose between situations that already exist, referred to in Sampson & Hartnett (supra). The issue of the mother relocating to London does appear to have been, as the mother submits, simply assumed by the father rather than something that arose from the evidence. Nonetheless I must consider the evidence that does exist about the mother’s likely circumstances in London if she were required to live there to give effect to the orders.

10. It seems to be assumed by the father that the mother will agree to reside in a house owned by the paternal grandparents, though there appeared to be some conflicting evidence about the immediate availability of these premises, which was mentioned for the first and only time in cross-examination of the father and then the paternal grandmother and was not further explored.  Given the mother’s employment record and qualifications, it is likely that she would be able to afford suitable accommodation if given enough time. 

11. The factor referred to in s 65DAA(5)(b) of the Act, that is the parents’ current and future capacity to implement an arrangement for the child spending substantial time with each of the parents again raises difficulty in application where as of February 2014 the parties intend to live in different countries. Once again the parents currently and in the future have the capacity to implement such an arrangement if one of them resides in a country not of their choosing. For each parent this would involve a considerable compromise; for the mother jeopardising her emotional well-being and for the father jeopardising his career plans.

12. In relation to employment, whilst it is clear that the mother is well educated and previously had a well-paid position in investment banking in the United Kingdom, her position which is specialised, no longer exists and the company which previously employed her also no longer exists. 

13. The factor under s 65DAA(5)(c) of the Act concerns the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement involving substantial and significant time with the other parent. Whilst I am of the view that the father is overly optimistic in his assessment of the level of cooperation between the parties, which would be necessary for an equal shared arrangement, this is a matter where there is not such a high degree of acrimony or conflict that the parents cannot cooperate and communicate to such a degree that such an arrangement would not be possible, for this reason.

14. I have some concerns that the arrangement under consideration of substantial and significant time may have a negative impact upon the child, a matter which must be considered under s 65DAA(5)(d) of the Act. As I have said, the parents’ capacity to implement a substantial and significant time arrangement would involve considerable compromise for either parent. The impact upon the mother’s wellbeing arising from her implementing such a care arrangement, would have a detrimental impact upon the child, according to Dr B’s evidence. On the other hand, whilst a change in the father’s career path is a matter of great significance to him, such a change that may allow him to implement a substantial and significant time arrangement in Australia would not have an adverse impact on the child on the evidence.

15. On the basis of past experience, separation of the mother from her own parents, the importance of that relationship and lack of relationship with the paternal grandparents, the mother would, in my view, experience significant emotional distress at having to parent in circumstances not of her choosing. 

16. Reasonable practicability is a factor grounded in the reality of the situation and, in this case, involves relocation in circumstances where one party seeks orders that will effectively require the party with whom the child will live to live in another country against her will.

17. Considering all of the factors to which the Court must have regard, I am of the view that a parenting arrangement where the child would spend substantial and significant time with each parent in the United Kingdom is not reasonably practicable in the particular circumstances of this case. 

18. The mother’s alternative proposal, which may arise if the father were to reside in Australia after two years is that the child would live with the mother and spend substantial and significant time with the father.  However, I cannot assess this proposal fully by reference to the reasonably practicability factors as there is insufficient evidence.

19. There is limited evidence before the Court about the likelihood of the father residing in Australia, and in any event, the father’s clear position is that he will not be living in Australia for at least the next two years.  This is supported by the mother’s evidence that the father said he was not interested in working other than in the United Kingdom.

20. However, if he were able to reside in Australia, I acknowledge that the father gave evidence that he would find it challenging and isolating in Sydney as he did not have close family or friends in Sydney.  Dr B, however, was of the view that the father appeared to him to be resilient and strong and he did not tell the doctor he would be distressed if required to live in Sydney,

21. The evidence before the Court in respect of the father residing in Australia is that he will not do so at least until he completes his final two years of his training in the United Kingdom.  After such two years, it appears the evidence is that the father could obtain work in Australia in the medical field, but not to the level of a specialist …, which is his preferred profession.  He could obtain similar work at a lower level, or he could undertake training to have his qualifications recognised in Australia or retrain, but this may involve some years of further study and/or training.  It appeared the father was not enthused about this course. 

22. Further, the situation of the father’s residency is somewhat unknown.  Having regard to the evidence of advice given internally by a solicitor from the firm that represents the father in these proceedings it appears his options are contingent upon him having an employer sponsor him.  It appears his only options are for a temporary work skilled (“457”) visa or possibly a permanent employer nomination scheme (“ENS”) visa.  He is unable to obtain a spousal visa because the relationship has broken down, and unable to obtain a child-related visa when the child is a minor.  His visa situation is, at best, uncertain.  In summary, on the evidence before the Court, I could not conclude that orders providing for the father to have substantial and significant time with the child in the event of him residing in Australia would be reasonably practicable.

Summary and conclusion

1. Each party seeks an order for equal shared parental responsibility. There is a presumption under the Act that this is in a child’s best interests and that presumption is not rebutted by any evidence upon which I could be satisfied having regard to the section 60CC factors that it would not be in the best interests of the child for such an order to be made.

2. As I have already indicated, an order of equal shared parental responsibility brings with it a consideration of whether the child spending equal time or substantial and significant time with each of the parents would be in her best interests and whether such an order is reasonably practicable.  As I have indicated, I am of the view that an order whereby the child would spend equal time with each of the parents would not be in her best interests.  I have also indicated that I am of the view that whilst an order providing for substantial and significant time with each of the parents would be in the child’s best interests, such an arrangement would not be reasonably practicable having had regard for the circumstances of the parents, in particular the mother should she reside in the United Kingdom or the father in Australia. 

3. The orders that I make must be those which are in the best interests of the child.

4. Having had regard to all of the considerations, I am of the view that the orders sought by the mother are the proper orders to make in these circumstances. 

5. In coming to this view, I attached particular weight to the primary consideration of the benefit to the child of having a meaningful relationship with both of her parents.  I also attached particular weight to the likely effect of changes in the child’s circumstances under each of the orders proposed and the capacity of the parents. 

6. These factors were taken into account in the context of a consideration of an international relocation where the father is seeking that the parent with whom the child is to live either primarily or at least half of the time should relocate to another country against her will. 

7. Having considered all of the s 60CC considerations and indicating the weight given to particular considerations and the evidence upon which I rely, I am of the view that it is in the best interests of the child for the parents to share joint parental responsibility for her, for her to live with her mother and spend time with her father as proposed in the mother’s Response, and further refined in oral submission.

8. In response to matters raised under further submissions, in addition, I will include an order for the parties to take all available steps to register these Orders in the United Kingdom.

9. Accordingly, I make the order as set out at the forefront of these reasons for Judgment.

I certify that the preceding three hundred and forty-four (344) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 20 December 2013.

Legal Associate:                  

Date:    20 December 2013