Armand and Sheriff
[2019] FamCA 172
•22 March 2019
FAMILY COURT OF AUSTRALIA
| ARMAND & SHERIFF | [2019] FamCA 172 |
| FAMILY LAW – CHILDREN – International relocation application – parental responsibility – conflict between parents – the capacity to emotionally care for a child – objects of Pt VIII of the Family Law Act – opportunity for the child to reach their full potential – relocation creating a buffer for the conflict between the parents. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC |
| AIF v AMS [1999] HCA 26 Morgan v Miles 2007 FLC 93-343 MRR v GR [2010] HCA 4 Taylor and Barker 2007 FLC 93-345 U & U (2002) 211 CLR 238 |
| APPLICANT: | Ms Armand |
| RESPONDENT: | Mr Sheriff |
| FILE NUMBER: | SYC | 1270 | of | 2008 |
| DATE DELIVERED: | 22 March 2019 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 14 May 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell |
| SOLICITOR FOR THE APPLICANT: | Tiyce & Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Self-represented |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Faloon |
Orders
That all existing Orders be hereby discharged.
That the child B, born on … 2004 (“B”) shall live with the Applicant Mother.
That the Applicant Mother shall have sole parental responsibility for B such to include but not be limited to the school B shall attend.
That the Applicant Mother inform the Respondent Father of any decisions made pursuant to Order 3 by email within forty eight (48) hours of the making of such decisions.
That the Applicant Mother be permitted to relocate with B to Country C no earlier than the commencement of the second week of the NSW Easter school holiday period 2019.
That the Applicant Mother shall be solely responsible for seeking the issue of a Passport for B and in the event that the Respondent Father fails to execute any Passport Application within seven (7) days of provision of any Application to him, these Orders shall provide sufficient authority for any consent to any such Passport Application and the issue of a Passport to the Applicant Mother.
That this Order shall act as sufficient authority to the Australian Passport Office or issuing authority in relation to the issue of a Passport for the child B to the Applicant Mother pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth) and without the need for consent of the Respondent Father.
That B shall travel to Australia and spend time with the Father (subject to the orders below regarding travel) on the following occasions, or as otherwise agreed to by the parties in writing:
c)European summer holidays (2019)
d)Christmas holidays (2019 – 2020)
e)Easter holidays (2020)
f)European summer holidays (2020)
g)Easter holidays (2021)
h)European summer holidays (2021)
i)Christmas holidays (2021 – 2022)
j)Easter (2022)
k)European summer holidays (2022)
That for the purposes of travel to Australia from Country C pursuant to Order 8 (c) – (k), B shall depart on his journey no later than two (2) days after the conclusion of the school term pursuant to the school calendar of the school B attends.
That for the purposes of travel from Australia to Country C pursuant to order 8(c), B shall depart on his journey no later four (4) days before the commencement of the school term pursuant to the school calendar of the school B attends.
That for the purposes of travel from Australia to Country C pursuant to Order 8(f), (h) and (k) B shall depart on his return journey no later than fourteen (14) days before the commencement of the school term pursuant to the school calendar of the school B attends.
That for the purposes of travel from Australia to Country C pursuant to Order 8(e), (g), (i), (j) and B shall depart on his return journey no later than three (3) days before the commencement of the school term pursuant to the school calendar of the school B attends.
That pursuant to Order 8(d), B will travel to Sydney, Australia with the Applicant Mother and will spend time with the Applicant Mother up until 10:00am Christmas Day (25 December 2019) or as otherwise agreed to by the parties in writing whilst he is in Australia.
That pursuant to Order 8(d), B shall spend time with the Respondent Father from 10:00am Christmas Day (25 December 2019) until 8:00pm 3 January 2020 or as otherwise agreed to by the parties in writing whilst he is in Australia.
That changeover pursuant to Orders 13 and 14 occur at the Father’s residence or at a location otherwise agreed to by the parties in writing with the Applicant to deliver B and collect B from the Respondent Father.
That to give effect to Orders 8, 9, 10, 11 and 12 the parties shall do all things necessary to ensure B is delivered to the airport in a timely fashion so as to meet the relevant flights.
That the Applicant Mother shall be responsible for meeting B’s travel costs pursuant to Order 8.
That the Applicant Mother shall provide to the Respondent Father a copy of B’s flight details and travel itinerary upon the purchase of B’s flight to travel to and from Australia, no later than twenty-eight (28) days before B is expected to travel to Australia pursuant to Order 8.
That the Applicant Mother shall be at liberty to communicate with B at all reasonable times and with reasonable frequency, when B is in the care of the Respondent Father.
That the Respondent Father shall be at liberty to communicate with B at all reasonable times and with reasonable frequency, when B is in the care of the Applicant Mother.
That communication between B and the parties pursuant to Orders 19 and 20 includes but is not limited to using: text message, telephone calls, WhatsApp, Skype and Facetime.
That the Applicant Mother and the Respondent Father be restrained from placing B on the Australian Federal Police Airport Watchlist.
That neither the Applicant Mother nor the Respondent Father shall denigrate the other parent in the presence or hearing of B nor allow B to remain in the presence or hearing of any person who is engaging in such conduct.
The Mother shall inform the Father of any long-term decision that is required for B, seek his views, tell him what decision she proposes to make and consider any courteous communication that he provides in return.
The Mother shall promptly provide the Father with copies of school reports, school photos and any information relevant to B’s extracurricular activities.
In the event that the parties agree that B not travel to Australia for one of the ordered periods, and that in its stead the Father spend time with B in Country C, then the Mother shall be responsible to meet the costs of the flights to and from Country C for the Father.
Pending B’s relocation to Country C in accordance with the above Orders, B shall, unless otherwise agreed by the parties in writing, spend time with the Father as follows:
a)During school term time, each alternate weekend from after school Thursday until the commencement of school on Monday, or if the Monday is a public holiday, the Tuesday;
b)For school holiday periods:
i)Unless and until B relocates to Country C, the whole of the 2019 NSW Easter school holiday period;
ii)Otherwise for the second half of school holiday periods commencing at 6.00pm on the second Saturday of the school holidays and finishing at 6.00pm on the last day that B is not at school;
Notations:
a)The Respondent Father is welcome to travel to City D, Country C to spend time with B throughout the Christmas holiday period 2020 – 2021.
b)B is enrolled at the E School, City D, Country C
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Armand & Sheriff has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: SYC1270/2008
| Ms Armand |
Applicant
And
| Mr Sheriff |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties in this matter are Ms Armand (“the Mother”) and Mr Sheriff (“the Father”). The parties were in a relationship between 2003 and early 2008. The parties have one child, B, born in 2004. At present there are consent orders in place, entered into on 3 December 2010. The parties do not strictly follow those orders, having come to alternate arrangements by consent. B lives with his Mother and spends each second weekend with his Father, has daily telephone contact with his Father and ad hoc midweek dinners each week with his Father, arranged by the agreement of each of the parents.
These proceedings are necessitated as the Mother now seeks to move to Country C with B. Her partner, Mr F, has obtained work in Country C. The Mother and Mr F have been in a relationship since 2015, moving in together in July 2015. In November 2015 Mr F proposed to the Mother and they then planned to marry in 2016. Those plans have been delayed, they say, due to the current proceedings and due to each of them undergoing heart operations. The Mother and Mr F still intend to marry. The Mother says that she will not move to Country C without B.
The Mother also says that she intends to remain in Country C with B until the end of his schooling, even if Mr F’s employment in Country C ends before B finishes.
A second major aspect of this case relates to the parties’ highly conflictual relationship. A significant component of this is the Father’s emotionally driven outbursts directed at the Mother and at B, which also becomes relevant in differentiating between the parents in terms of their parenting capacity. Although the parties have managed to navigate the current arrangements for B, their conflictual relationship impacts on the question of the desirability of a move to Country C, and also on the assessment of their parenting capacity.
The matter also falls to be determined within the context that B has good relationships with both of his parents, indicating that neither parent has undermined the relationship B has with the other parent, despite the difficulties that they have with each other.
Litigation history
Prior to entering into the consent orders, in 2008 the parties engaged in litigation concerning the Mother's intention to live in Country G with B and the Father's position that B should be returned to Australia. The Mother was born in Country G and they dispute the circumstances by which she and B came to be in Country G. She says it was by consent. While the Father agrees that there was consent for the Mother to travel, he does not agree that there was consent for her and B to live there. In any event, as a result of the litigation the Mother and B were returned to Australia. Despite this history, since that time the Mother and B have engaged in frequent overseas travel. On the Father's account this has occurred approximately 15 times. The Mother has, on each occasion, returned from the overseas travel with B.
Final orders were made by consent in 2010 that provided generally for B to live with the Mother and to spend each alternate weekend with the Father, along with each Wednesday overnight, half of school holidays and special occasions.
B has ceased spending the midweek time with the Father. This was by consent. The Father said that he had not agreed to the change,[1] then said that he had allowed it to happen, and that ultimately the parties reached an agreement about it.[2] That agreement meant that B had dinner with his Father each Wednesday night, rather than staying overnight.
Orders Sought
[1] T107.
[2] T108.
Further Litigation
The Father asks the Court to dismiss the Mother’s Application “on the basis that the change in circumstances is not sufficient to overturn the principle in Rice and Asplund”.[3]
[3] The Father’s Affidavit filed 14 September 2017, [40].
This may be shortly dealt with. The serious relationship that has developed between the Mother and Mr F, Mr F’s involvement in B’s life, and his move to Country C, all constitute a significant change in circumstances as they relate to B. These justify further litigation as to what is in B’s best interests.
Orders sought by the parties
The Mother’s orders sought are set out in full in exhibit M3 ‘Applicant Mother’s Proposed Orders’ and the Father’s orders sought are contained in exhibit H1 ‘Respondent Father’s Proposed Orders’.
The Father also provided a set of orders containing his proposed changes to the order sought by the Applicant Mother in the event that B is able to move to Country C, being the ‘Respondent Father’s Proposed changes to the Applicant Mother’s orders’. The orders as sought by the parties are appended to this judgement.
In general terms, the Mother sought an order allowing her to relocate with B to Country C and that he live with her.
The Mother sought that she have sole parental responsibility for B, including but not limited to the school that he attends.
The Mother sought provisions permitting the Mother to obtain a passport for B whether the Father agrees or not, and provisions prohibiting the parties from placing B on the Australian Federal Police Airport Watchlist.
The Mother sought orders regarding school holidays and arrangements for the Father to see B during these times, including for B to travel to Australia.
The Mother sought orders concerning special occasions and communication.
The Father sought that B would remain in Australia and that B would live with the parties on a week about basis.
The Father sought equal shared parental responsibility for B.
The Father sought provisions for school holidays and special occasions.
The Father sought to place B on the Australian Federal Police Airport Watchlist and that B can travel overseas with either party with notice.
The Father sought provisions for communication and schooling in the event that the Mother cannot afford tuition at H School.
In the event that B cannot move to Country C, the Mother opposed the week about arrangement, but indicated that she thought that there could be an increase in the time with the Father by a further overnight per fortnight.
The Independent Children’s Lawyer (“ICL”) supported the Mother’s proposal to move. The ICL did not propose any significant changes other than to add to the Mother’s Order 3 a requirement that the Mother inform the Father of any long-term decision that is required, seek his views, tell him what decision she proposes to make and consider any courteous communication that he provides in return.
The ICL also supported the Father’s addition of an order requiring the Mother to provide him with copies of school reports, school photos and any information relevant to B’s extracurricular activities.
The Mother agreed with these proposals by the ICL.
Material relied upon
The Mother relied upon the following:
a)Initiating Application filed 30 June 2017;
b)Affidavit of Ms Armand filed 13 April 2018;
c)Affidavit of Mr F filed 13 April 2018; and
d)Single Expert Report prepared by Mr J released 11 April 2018.
The Father relied upon the following:
a)Affidavit of Mr Sheriff filed 16 April 2018;
b)Affidavit of Ms K filed 16 April 2018; and
c)Family Report by Family Consultant Ms L dated 23 September 2010 (interviews 17 August 2010).
As noted above, one of the items relied upon by the Father, and annexed to his affidavit, is a previous Family Report from the 2010 proceedings prepared by Ms L. While the Report was significantly outdated by the time of these proceedings, the Father said that the Report had the potential to go to matters currently in dispute between the parties. It was admitted over objection on the basis that, in relation to factual matters advanced within that Report, both as to opinions offered by the Report writer, Ms L, and as to her recording of factual matters as asserted by the Mother, should the Father wish to rely upon said factual matters in the current proceedings it would be necessary for him to identify those to the Mother in his questioning of her. The Father identified no such matters to her in questioning. While the ICL’s counsel, in passing, referred to a matter within the Report, that passing reference and the failure of the Father to identify any particular matters in the Report to the Mother means that no regard will be had to the Report in these proceedings.
The ICL relied upon the following:
a)Report prepared by Mr J dated 4 April 2018 and interviews conducted on 12 February 2018; and
b)Child Inclusive Conference Memorandum prepared by Ms M dated 17 October 2017.
Principles
The paramount consideration in determining what order should be made is, pursuant to s 60CA, the best interests of each of the children. That is to be determined on consideration of the matters set out at s 60CC of the Family Law Act, but in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.
The objects and principles contained at s 60B provide that:
(a)The objects of this part are to ensure that the best interests of children are met by:
a.ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b.protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c.ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d.ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(b)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
a.children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b.children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c.parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d.parents should agree about the future parenting of their children; and
e.children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In the light of the objects and principles, in order to determine what is in a child’s best interests, the court is required to consider the two primary considerations and the additional considerations, to the extent that they arise in a case, as set out at s 60CC.
In doing this, the court is obliged to take proper account of the positions of the parties, the evidence led and the arguments pursued, while remembering that these do not set the boundaries for making a decision as to what is in a child’s best interests, those boundaries being set by the objects and considerations set out in the legislation.[4]
[4]U & U (2002) 211 CLR 238.
The court is also required, pursuant to s 61DA, to presume that it is in the best interests of the child for the parents to have equal shared parental responsibility unless the presumption is rendered inapplicable, inappropriate (in interim proceedings) or rebutted.
If an order is to be made for equal shared parental responsibility then the court is to follow the reasoning process set out in s 65DAA and described by Boland J in Morgan v Miles as “the careful exercise of a structured discretion to determine the appropriate order to be made”.[5] That process calls for the sequential consideration of orders for equal time with parents, followed by orders providing for substantial and significant time with a parent prior to a consideration of other options.
[5] Morgan & Miles (2007) FLC 93-343.
Relocation
Cases that involve an international move for a child pose hard questions with difficult consequences, each in the context of unique circumstances.[6] Often a move will be of great importance to the party who wishes to move. Often the moving party will be the parent who has the primary care of the child. Often a move will result in fundamental changes in the way in which a left behind parent may be involved in a child’s life. The preferred approach is not to deal with the relocation as a discrete issue but, where possible, “as just one of the proposals for the child’s future living arrangements”.[7]
[6] Kirby J in AIF v AMS [1999] HCA 26, [142].
[7]Taylor and Barker (2007) FLC 93-345.
In considering a relocation as a proposal for a child’s living arrangements Gummow and Callinan JJ in U v U determined that the parties’ positions do not set the boundaries for the determination of the case:
[80] We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties...but the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s68F (now s60CC) and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child's best interests.
[81] It is to that overarching issue that the primary judge applied his mind. In doing so he did not overlook the appellant's entirely reasonable desire, to return to...
In that case the need for “careful consideration” in a case involving relocation was also emphasised by Gaudron J (although in dissent):[8]
[37] It must be acknowledged that it is likely that, in very many relocation cases, a Mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the Mother or the Father who wishes to relocate. So much was made clear in AMS v AIF3.
[8]U & U (2002) 211 CLR 238, [37].
On the issue of relocation, Morgan & Miles was determined in the context of the Family Law Act being largely in its current form. Boland J there observed that:[9]
80. It follows from my exposition of the legislation, that earlier core principles:
– that the child's best interests remain the paramount but not sole consideration;
– that a parent wishing to move does not need to demonstrate “compelling” reasons;
– that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child's best interests; and
– the child's best interests must be weighed and balanced with the “right” of the proposed relocating parent's freedom of movement,
…remain valid.
[9]Morgan & Miles (2007) FLC 93-343, [79] ff.
Further, on the manner of consideration, in Morgan & Miles Boland J noted that the Court will:
• Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
…
• Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child's best interests, make such order which may provide:
– that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
– that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
– that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
– the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
• Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
It may also be observed that whether or not a case involves a question of relocation, the structured reasoning process set out in the Family Law Act still has application where an order for equal shared parental responsibility is made. Where such an order is made, proper consideration must be given both to best interests and to reasonable practicability, as the unavailability of either will prevent an order for equal time or substantial and significant time being made.[10] Issues of reasonable practicability often become significant in a case involving relocation.
[10]MRR v GR [2010] HCA 4.
Section 60CC considerations
A number of the s 60 CC considerations have significance in this matter in an overlapping manner. Prominent within the hearing were the considerations as they related to the benefits of meaningful relationship (s 60CC(2)(a)) when seen in combination with the nature of the relationship between B, his parents and Mr F (s 60CC(3)(b)), B’s particular characteristics (s 60CC(3)(g)), and the capacity of the parents to provide for B’s needs, particularly his emotional needs as he grows into an adult, or, as put by the Single Expert, individuates (s 60CC(3)(f)). There was significant overlap between these factors.
To the extent that they have been expressed, B’s views (s 60CC(3)(a)) are also an important consideration.
Prominent also are considerations relating to the changes a move will bring for B (s 60CC(3)(d)) combined with the practical difficulties of a move and its impact upon his personal relations with, and contact with the Father (s 60CC(3)(e)).
While not being established as falling within the concept of family violence (see s 60CC(2)(b),(3)(j)) the difficult relationship, characterised at times by aggression by the Father, between the parties, is a matter that falls within s 60CC(3)(m) as well as impacting upon the above other considerations.
These considerations inform the assessment of the various matters raised by the parties below and overall analysis of the parties’ proposals. It should not be thought that the headings employed below delineate sharp boundaries between the considerations.
Views
The issue of how B speaks about the options of remaining in Sydney or moving to Country C are useful in terms of how they reflect his views on the move. The parent’s interactions with B’s views are also useful as to what they indicate about each party’s capacity to emotionally care for B.
B says that he attempts to keep both his parents happy.
B did not express a view to the Single Expert about the proposed move to Country C. He identified that what he would miss most would be his current school. He also describes missing his “special friends” and being able to hang out with them. He expressed stronger feelings in relation to the possibility of leaving his friends than in respect of his Mother and Father.
When B spoke to the Single Expert, the height of his expression as to his views was that he sought a further night with the Father.
B has told the Mother that he is 50-50 regarding the move to Country C, noting that he would be sad to be leaving his friends. The Mother’s evidence was:[11]
Has he said to you that he’d be sad?‑‑‑Yes. He – he has. He says it – the way he puts it is that he’s – he’s fifty-fifty – and there would be elements – although he’s excited, there would be elements of leaving Sydney that would make him sad, and leaving his friends would be one of them, which I think is understandable.
[11] T76.
The Mother accepted that B might say something different to her to what he says to his friends about the move, that is, he might just say something to make her happy. At the same time, the Mother believed that if B really did not want to do something, that he would be able to tell her.
She thought that he was “possibly confused” about the move.
In terms of B making a decision about whether to stay or to go, the Mother says that B is still underage and needs support for making major decisions.
While the Mother said to B, following Mr F’s proposal, that she would be prepared to say no to her engagement with Mr F if B was not in agreement, she has not said similar about the move to Country C. While the Mother says that if he is not happy in the long run she would reconsider her position in relation to Country C, she has not said to him that if he does not want to go, she will not go.
B has previously said to her that the move would be “great for me”. However, despite the support that this offers to the Mother’s application, she expressed reservations about it, as she thought that what supported this view was his enjoyment of travelling. The Mother thought that B did not really understand the reality of what would be involved in moving to another country. That is, she accepted that there was probably a lack of understanding by B as to the ramifications of his view at that point.
This concession supports the Mother's credibility in her assessment of B, given that this constitutes an admission against interest. This is indicative of both the Mother’s understanding of what may be affecting B’s thought processes, and her capacity to acknowledge them, where to do so is not in accordance with her own interests. This speaks in turn to her capacity to care emotionally for B.
The Mother has also said that a couple of months prior to the proceedings B said that he would like to have an extra night with his Father. In the event that she did not move to Country C the Mother thought there should be an extra night with the Father, perhaps on a Monday to connect with the Father’s weekend, or perhaps an extra Saturday night.
The Father accepts that it would be unfair to try and influence B as it would place a burden of choice upon him.
The Father says that a number of years ago B expressed his preference for a 7 - 7 arrangement for his time with his Mother and Father. The circumstances and terms of that expression are not clear. Such a preference does not seem to have been repeated by B in recent years.
The Father did not accept that B would tell him things that he thought that the Father wanted to hear. The Father initially accepted, then denied that B might not tell him things in order for the Father not to be hurt. He expected that B knows that the Father was “the lesser of the person to get upset over something,” presumably the Father asserting that he is less likely to become upset than the Mother.[12] Conflictingly, the Father said to the Single Expert that B would know “how upset I'll be” if B was to move to Country C. The Father accepts that he has told B that he will be upset. The Father does not accept that having told B this constitutes a reason why B might not tell him his true thoughts about moving to Country C or not moving to Country C, because the Father says that he will let B tell him because B “knows I'll always be here for him."
[12] T103.
To the Single Expert the Father said that he had said very little to B about the proceedings “… he said he has not made his mind up… he knows how upset I'd be… I've told him".
Assuming that the Father’s reports and statements are genuine, they reflect limitations in the Father’s understanding of the potential impact his conduct and statements might have on Band, consequently, limitations in his capacity to emotionally care for B. Further, in terms of who might be more liable to become upset and display being upset to B, the evidence did not show that the Mother has done so, and did demonstrate that the Father certainly has exposed B to his upset and potential for upset.
Nature of relationships/capacity to provide emotional care
B said in his interview with the Single Expert that he can confide in both of his parents when he is ‘upset’.[13]
[13] Report of Single Expert, released 11 April 2018, [75].
The Single Expert thought that “B does not experience a psychologically or physically abusive context in either household.”
Nature of B’s relationship with the Father and the Father’s capacity to care
The Mother accepted that, even though B sees his Father at present only each alternate weekend, that it is time that he looks forward to. She agreed that B rings the Father every day. The Mother said, while being cross-examined by the Father that “B loves you and needs you”. The Mother accepts that the Father has not been obstructive in any way in her relationship with B.
The Father told the Single Expert of the closeness of his relationship with B saying “he approaches me for cuddles and he is open around me… he is a great kid… a gentle lad… I feel I have brought a calmness to his life… I have said very little about these proceedings… he said he has not made his mind up… he knows how upset I'd be… I've told him".
B told the Single Expert that the Father has never bad mouthed the Mother.
However, the Father has displayed significant limitations in his capacity to emotionally care for B. He accepts that he is a person who, at times, wears his heart on his sleeve. This feature of his personality leads to some troubling interactions with B, and also with the Mother, which in turn have the potential to impact, albeit indirectly, on B.
One set of communications with B in May 2018 is contained at Exhibit M6 and involves the Father discovering that B had sent a card to Mr F in relation to Mr F being his “step dad.” Although the Father was initially evasive as to whether he had sent such a message, a text exchange between the Father and B was introduced into evidence:
you have never bought me a card or anything that somebody saying or doing it for you. but you write a card to [Mr F] saying the best stepdad ever. just write on my card greatest arsehole ever. You have such a great Mother and stepfather as I am just an arsehole. oh well , not your fault, my son.
B responded to this that he was sorry.
The Father then responded:
by the way, this guy is not your stepfather or is he? I don’t give a??!!!
B messaged his Father:
but I’ve tried countless of time to get extra days with you, but obviously it never happened
The Father responded:
all good, B. Nothing in relation to you. Hopefully you know and why get so mad as I love you so much and want to spend all my time with you. I love you so much. Dad
While the Father may, and apparently does, feel undermined by the involvement of Mr F in B’s life, his text exchange with B was of no benefit to B, and potentially detrimental, as B had to deal with the Father’s response to the situation.
The Father’s capacity to emotionally care for B is undermined by his view of the Mother, and in particular the prospects of the communication of such views to B. The Father did not accept that he has been critical of the Mother to B, other than to communicate to B that the Mother is looking to take B away from him. His criticism, both direct and indirect ranged beyond this concession, despite B’s comments that his Father did not say bad things about the Mother.
Exhibit M6 contained messages undermining the Mother to B, referring to her as “your Mother who wouldn’t let me have you last weekend after they had you for an extra week when you went overseas”.
Exhibit M8 contained messages between the Father and the Mother regarding Country C in November 2017 and displayed further aggression towards the Mother. In this correspondence the Mother sought that the parties try to reach further agreement in relation to Country C. The Father sent an emotionally charged response, later justifying his response on the basis of upset on his part. He said:
There is nothing to discuss with you both. I’ll start talking and [B] to stand up for himself and not to be bullied by both of you… From now on I will explain to [B] that evil plan was all you ever wanted to get out of Australia… [B] is now seeing as - yes, gets older - what you are like. You had better make sure he likes what he sees. Your bad temper and aggression is very well known… I will start talking to everyone about what you are both going to do. If any one of [B’s] friends’ parents think it is okay… I will certainly be letting them know my thoughts… I will start telling him his choices. You are not his only choice… You have been nothing but a bully.
The Father explained this communication again on the basis of emotion. He did not accept either that he had said such things to B, or that the Mother would think that he would actually speak to B’s friends’ parents.
However, the messages contained threats to undermine the Mother’s relationship with B, and her position with other parents. It appears to be the result of the Father’s unconstrained anger.
The specific issue raised by the messages in relation to the capacity of the Father to emotionally care for B lies in the risk that in his anger he will seek to harm the relationship between B and his Mother.
The exchanges between the Father and B in relation to the step dad card show that the Father is either unable or unwilling to shield B from his emotional responses. The balance of the messages shows the strength of the emotional response of the Father, and its direction at the Mother, and the accompanying threat to act on that emotion to the detriment of B’s relationship with the Mother.
Exhibits M4 and M5 were tendered in relation to a music book for school work for B which bore markings upon it which scribbled out the Armand portion of B’s name (on the basis that the Mother had hyphenated Armand Sheriff rather than leaving them as two distinct names). Initially the Father denied that he had scribbled out Armand, then was evasive as to whether or not he had made the markings on the books, but ultimately accepted that he had.[14] The evasion led to significant doubts as to the Father’s candour.
[14] Exhibit M5.
Highly hostile comments were also written on the book, such as “there is no Armand,” “NONE,” “surname only got it” and “check birth certificate.”
Assuming that the Father found the Mother’s hyphenation to be offensive, it cannot be thought other than that there was a strong prospect that B would become aware of this marking of his book.
When asked whether at times he became so angry with the Mother that he made threats, after initially responding “no”, the Father said “I’m not saying I probably haven’t, but… You know, frustration, unfortunately… Can be annoying.”
Ultimately the Father accepted that it was possible that the crossing out of the Mother’s name on B schoolbooks may have been an example of him becoming so angry as to lose control.
While the Father’s response was out of control, the hyphenation of the name (it not being established by whom it was done) was an act likely to cause upset for the Father.
Consistent with this behaviour, when the Father set out his son’s name at [6] of his trial affidavit, he set out his name as “B”, omitting Armand, which forms a part of his name. I do not accept his denial that this was indicative of any attitude on his part towards the Mother.
Given the conduct in respect of the school book, and the Father’s lack of candour, the omission of the Mother’s name should be taken as an example of the depth of the hostility that he feels for her, the expression of which is likely to come to B’s attention.
For the acknowledged strengths that the Father has, and his closeness to B, these matters reflect a significant deficiency in his parenting capacity.
Nature of B’s relationship with the Mother and the Mother’s capacity to care
The Mother has been B’s primary carer from separation.
The Father alleged to the Single Expert that the Mother has a problem with her anger. This did not emerge as a matter of any significance in relation to her care of B.
The Father likewise told the Single Expert that the Mother drinks excessively, although he provided no sufficient example to demonstrate that this is an issue of significance, beyond a general assertion to the Single Expert that she gets drunk and rings when B is with him. When this might have occurred, or how he was aware of it was not plain. The Single Expert correctly observed that “neither parent presented any convincing evidence that (B) is currently being exposed to substance misuse in either household.”
Despite these criticisms, the Father also told the Single Expert that he thought “[Ms Armand] and I were great parents.”
B told the Single Expert that the Mother says bad things about the Father and his family. It was not identified what these things might be, but B’s comment shows some weakness in the Mother’s capacity to care emotionally for B. The Single Expert thought that, despite the Mother’s negative feelings about the Father, her recognition of B’s love for his Father and affectionate relationships with the Father’s family meant that she was likely to comply with orders for Matthew to spend time with the Father in Sydney if she were living in Country C.
The Single Expert also identified the risk that if the Mother is unable to relocate to Country C, that B will experience a “Mother who feels isolated, unsupported and probably resentful.”
The criticism emphasised most by the Father was as to the Mother’s attempt by these proceedings to remove B from Australia and thereby put distance between he and B.
B’s relationship with Mr F
B and Mr F have an important relationship. It is one that is significant to B. B refers to Mr F as his step dad.
The Mother says that the first time that she observed B’s use of this term was approximately one and a half years ago. It was not something that she had encouraged but a term that B used when speaking with his peer group. She believes that he picked up the use of the term from other members in his peer group who have experienced the reconstituting of families.
The Father cross examined the Mother about a card in which B had described Mr F as the best “stepdad”. She says that although she was there for the purchase of the card, both the card and what was written in it were B’s choice.
B was asked by the Single Expert about his relationship with Mr F, the Single Expert inferring that B’s view was that Mr F was able to see “both points of view”.
Mr F’s account to the Single Expert and the Court was that in speaking to B about Country C he does not seek to leave B with the burden of choice. He told the Single Expert “I say to him you are not choosing between your parents… What you say counts but the pressure is not on you to choose but you do have a voice”.
The Single Expert's view was that it was “unlikely that B would hear either parent (Ms K) expressing positive sentiments about his relationship with the other parent with any conviction”. He did not form the same view about Mr F who he thought was “the only one of the four key adults who would be likely to be able to be naturally/unselfconsciously supportive of B’s relationship with the other parent".
Mr F has shown other commitment to B, including providing financial support for B’s schooling, and providing support for the proposed move to Country C.
Relationship between the parties
The relationship between the parties is a strong consideration in this case. B is not isolated from, or immune to their interrelationship. A number of the instances outlined above emphasise the nature of the relationship. As identified later in this judgment, the Single Expert assesses that B experiences the conflict between his parents. He was also assessed as being aware that the Mother is scared of the Father.
The direct and indirect impacts on B become an important consideration, including in the context of what the interrelationship says about the capacity to provide emotional care to B.
The Father accepted the Single Expert’s assessment that there is tension in the relationship between himself and the Mother, and that the tension is not good for B.
The Mother says that she feels dominated by the Father, and views him as obstructive. The Single Expert assessed the Mother as scared of the Father.[15] The Mother says that she feels that she has no voice in communication with the Father, that what she says is refused and she feels rubbished. She says that she feels nervous when dealing with the Father.
[15] T173.
The Father did not accept that the Mother had a reason to feel this way. He denied that he had any problem with dealing with the Mother respectfully, despite accepting that he did have a problem in dealing with her in a non-aggressive manner at times.
The Father also denied that he would become so angry as to lose control. On that issue he was taken to his behaviour in relation to changing the name that the Mother had written on B’s school books.
The Father accepted that he does “arc up a bit”. He accepts that he has sent some aggressive emails, which he blames, at least in part, on what he sees as the obscenity on the Mother's part of the proposed move to Country C.
A number of examples of aggressive behaviour by the Father that undoubtedly impact the Mother are set out below in assessing the Father’s parenting capacity.
The Father was cross-examined as to the character of his response to the Mother following her email advising him of her desire to move to Country C.[16] He was asked if his response was respectful. His answers ranged from “in a way, yes” to “it wasn’t totally respectful”, and denying that it was totally disrespectful.
[16] Exhibit M1 pp75-76.
His response to the Mother’s proposal of a move was:
there is no further discussion. Do not ever mention this again. If you want to go – go. I’m not interested in hearing what you believe is a wonderful opportunity. Do not try me on this… How dare you?????
The Mother sought to engage the Father in mediation relating to the move to Country C. The Father refused to participate in mediation. Given the fundamental dispute between the parties, being the Mother’s intention to move to Country C with B and the Father's intention that B not move, it is difficult to see what progress could have been made through mediation.
The Father accepts that his communication in the past has shown unbridled emotion, particularly where something which he regards as unfair has occurred or some other problem has occurred between the parties. One particular example can perhaps be seen at exhibit M7 which is correspondence following Mr F’s name appearing on an email string for B’s sports team. His name was on the list on which the Mother’s and Father’s names were both included along with 20 or 30 other people. The response that he gave to seeing Mr F’s name on the email string was to message the Mother saying:
I notice this [Mr F] has his name on the email. REMOVE IT or I will hit the fucking roof… If I see it again there will be a problem… And I will create one… That’s a fucking joke. Take it off now… You had better treat this seriously or there will be a fucking problem…. Is this guy a fucking idiot? You are going and a very dangerous road with me now… How fucking dare you… To say I am fucking furious is an understatement. Put yours there you idiot…fucking guy’s name off now.
When the Father was asked about this, although he accepted that it was not a message that should have been sent, he did not accept it was necessarily bullying or intimidating. His response as contained in exhibit M7 was completely disproportionate. He accepted that it was not the right thing to do in terms of response but disagreed that it appeared “unhinged.” He accepted that some of what he had written there could be perceived to be threatening. When asked whether this communication had been unnecessary on his part he accepted that to be the case but explained it away as being an aspect of human emotion. He said that any fear expressed by the Mother was unwarranted. The communication gives the appearance that the Father was out of control. It was certainly threatening. The Father’s explanation displayed little insight into the impact of such communications, and gave no comfort that such behaviour was unlikely to be repeated.
Further examples were contained in Exhibit M10, being correspondence between the parties regarding proposals for the Mother to travel with B. Whether or not the Mother’s proposals were last-minute, or presumptive, as suggested by the Father, the Father’s responses were highly aggressive.
The Single Expert reported that the Father had told him that although he had written aggressive emails and messages, for each of those there were about 50 or 60 positive communications. The Mother’s lawyers wrote to the Father asking him to produce such emails. He did not. He was invited to produce his emails to the Court. He accepted that there would not be 50 or 60 pleasant emails for communications for each unpleasant one.
Under cross-examination the Father denied that he hated the Mother and denied that he would have left anyone with the impression that he hated the Mother.
In contrast, the Father was reported, by his partner Ms K, to hate the Mother in her interview with the Single Expert. “Hate” reasonably reflects the manner in which he has interacted with the Mother.
Despite these difficulties in communication with the Father, the Mother accepted that he has not been obstructive of her relationship with B in the past 10 years and has been supportive of her relationship with Mr F.
The difficult behaviour has not, however, flowed all in one direction. The Mother accepted that the first that the Father knew of the potential move to Country C was when the Mother emailed him following Mr F accepting a job there.
One of the matters that the Father found particularly upsetting was what he regarded as the Mother presenting the move to Country C as a fait accompli.
The history of Mr F taking the Country C job involves him being approached by his current employer in 2015 regarding such a job. His position in Sydney was due to expire in 2018. He then underwent a competitive process for that position, being offered the position in February 2017. Prior to Mr F being offered the position the Mother had some discussions with B about the potential of a move to Country C. The Father was not aware of this potential move when it was raised with B. When offered the position, Mr F took it up. In February 2017 the Father was first put on notice of the potential move to Country C. He opposes such a move.
It is understandable that the Father would find this sequence upsetting. However, given the difficulties between the parties it was also understandable that the Mother might raise the prospect with B before raising it with the Father. This approach by the Mother had the potential to place B in a difficult position, where he is aware of the prospect of the move but the Father is not.
Although the Mother and Mr F enrolled B in school in Country C in November or December 2017, the Mother copied none of the school documents to the Father.
It may also be seen that Mr F has signed a number of documents relevant to B as though he is B’s Father. These include various documents related to his enrolment at H School, which was signed by the Mother and Mr F but not by the Father. Mr F’s name appears above parent’s/guardian’s name for a number of different documents. Similar has occurred in respect of the Country C school that they intend to enrol B in.
B’s application for that school was completed by the Mother and Mr F, who both signed the form. The Mother says that she also put the Father’s name on the form, as the Father, and thought that he was aware that she was making application for that school. However, she accepted that what the Father had been told was that B was going for an interview at the school. The Mother accepted that the Father would be upset by Mr F signing the document.
However, some of the Father’s criticism of the Mother and Mr F was quite unwarranted. For example, the Father was critical of the Mother for referring to herself and Mr F and B as a family after they had been going out for about three months. The Father cross-examined the Mother about whether she had encouraged B to refer to Mr F as “stepdad”.
On any view, the relationship between the parties is one that presents great difficulties for them both. Some of the Mother’s conduct displayed little concern for its impact on the Father. However, the Father’s responses have been disproportionate and aggressive.
Change in circumstances
The Single Expert’s assessment, based on B’s characteristics and development, was that he would be able to adjust whatever the outcome of the proceedings. That is, even if he was to move to Country C, and feel sadness at the move away from his friends, or be aware of the Father's distress at his move, these are matters that he would be able to adjust to. The Single Expert thought that B is not going to experience traumatic loss with long-term psychological consequences, although he will experience a sense of loss for a period. B’s age, and the fact that he has started to develop autonomy is a buffer against that sense of loss.
The Single Expert also expected that B would be able to manage feelings of loss in particular through a combination of spontaneous and planned communication with the parent that he was away from. Likewise, if he was to remain in Australia with Mr F having moved overseas, he would also be able to adjust.
The move to Country C would involve a significant change of circumstances for B, carrying with it practical impediments for the time that he would spend with his Father.
The Mother's plan was that B would commence Year 8 in August 2018 in Country C. By that stage he would have been three quarters through Year 8 in Australia which would result in him partially repeating Year 8. She did not believe that this was problematic and thought that it would give him a better chance to focus on settling in, without being subjected to academic challenge.
It is her intention to remain in Europe for B to complete his schooling. At present Mr F’s position is due to finish when B is in Year 10 or 11. The Mother however hopes that B would finish his program O through to Year 12 in Country C and then make a decision as to where he would like to go to university. She has made enquiries that have informed her that she and Mr F and B will be able to stay in Country C beyond the end of his job. In the event that she is unable to join Mr F with B and Mr F decides that he will return to Australia she anticipates that it will take him about a year to unravel his Country C position, as there will be a need for him to find a replacement.
The Mother also plans that B and the Father would maintain daily contact. Although there was some inconsistency there was no significant challenge to her assertion that if a call was made at 7 am Country C time it would be 3 pm Sydney time, 8 am Country C time would be 4 pm Sydney time, 4 pm Country C time would be 9 am Sydney time, 5 pm Country C time would be 10 am Sydney time and 7 pm Country C time would be 11 am Sydney time. This gave a range of times from which it may be assessed that daily telephone time between the Father and B could be maintained if B was in Country C.
One of the particular effects of the change in circumstances that would be wrought by the move to Country C is that, as assessed by the Single Expert it would optimise B’s opportunity to ‘individuate’ himself. This means B developing psychologically into an individual with a distinct sense of self.
One particular factor in optimising the prospects of this is that the move will potentially create some distance from his family’s conflict. This expectation was based upon a number of factors. The Single Expert thought a decrease would occur in part because there would be less transitions between the households and less scope for conflict. He also thought that B’s experience of conflict would be decreased, as his experience of it would be less concentrated and less intense in part because of the media by which he and the Father would communicate.
The Single Expert thought that it was reasonable to infer that B’s experience of the conflict between his parents is in a context of B being aware that the Mother is scared of the Father. Presumably distance might be thought to ameliorate that effect, and also the potentially adverse effects that it has on what the Single Expert termed the Mother’s “thinking space.”
The Single Expert also thought that there would be an improvement based on the hope that the Mother would be able to refrain from the adverse comments that she has previously made in relation to the Father or his family, being a matter that B has complained about.
It may be anticipated that the difference in arrangements will ameliorate the effects on B of being exposed to the interrelationship between the parents and the poor parenting model this provides for B.
One of the particular benefits of a move to Country C is further exposure to Mr F who has been assessed by Mr J as being a stabilising influence who allows B scope for reflection upon his family and circumstances.
Practicalities of time with the Father
There are obvious impediments to time spent with the Father if B is living in Country C. These include the practical difficulties posed by distance and the requisite travel to spend time together in person.
However, B living in Country C would not necessarily inhibit regular communication, with the Mother proposing the continuation of daily contact that the parties and B currently make by phone or social media such as Skype and WhatsApp.
In her orders sought the Mother’s proposal to deal with the practical difficulties posed by the distance between Australia and Country C would consist of scheduled trips during school holidays for B to visit his Father in Australia or for the Father to visit him in Country C. In broad terms, the schedule of trips provided in the Mother’s orders sought provides for B to travel to Australia during Christmas, Easter and European summer holidays.
The move would provide a significant impediment to the Father’s time and involvement with B. The Father expects that he will be devastated if B is allowed to relocate. This view is supported by his de facto partner Ms K who notes that the Father has cried regarding possibly missing out on regular experiences with B, such as relating to his education or learning to shave or his first girlfriend. It is accepted that the Father is an involved, dedicated parent who is deeply committed to and loves his son.
Discussion
The proposals of the parties are diametrically opposed. The Mother asks that B live with her in Country C. The Father asks that if the Mother lives in Country C, B live with him in Sydney. The Mother has said that if B cannot move to Country C, she will not move. The Father says that under those circumstances B should live equally with each of his parents, while the Mother says that the current arrangements should remain, with the prospect of an increase in B’s time with his Father of a day a fortnight.
B’s best interests fall to be considered in the light of the Father’s proposal that B live with him if the Mother relocates, with the Mother’s proposal to relocate, weighed against the outcomes available if that relocation proposal is not accepted. Each party has set out a position if the relocation is not allowed. At the same time, the Court is not bound by the proposals as put forward by the parties.
The Mother’s proposal to move to Country C also falls to be considered on the basis that she has a legitimate interest in the move, which itself will carry weight where it does not conflict with B’s best interest.
The parties are at odds as to the allocation of parental responsibility.
An order of equal shared parental responsibility carries with it the obligations set out at s 65DAC. Despite the parties, in the context of their relationship, struggling through to date, it cannot be thought that they have an ongoing capacity to comply with the obligations to make a genuine effort to come to a joint decision. Consultation itself is fraught with potential for anger and aggression on the part of the Father, the expression of which may well spill over onto B. Such exposure is to B’s detriment.
That risk of exposure outweighs the benefit to B of having two parents cooperatively making long term decisions for him, if they could.
These matters speak against a regime of shared parental responsibility.
Determining B’s best interests in other respects requires a careful evaluation of what B faces in Country C and what he faces in Sydney, considered in the light of the Objects and Principles, particularly as they support maximising the meaningful involvement of both parents (and acknowledging B’s right to spend time and communicate with both parents on a regular basis), and receiving proper parenting to help B achieve his full potential.
In Country C B faces circumstances of sharing a home with his Mother and Mr F, under circumstances where Mr F is a positive influence in his life and where the Mother will have some separation from the aggression and pressure of the Father. B will however have less time with his Father, although that time, and communication, will still be regular. B has an important and close relationship with his Father, and he will feel the impact of the reduction in the contact that he has with him.
The Single Expert thought that in Country C the added distance between the parties holds potential to reduce the impact of the difficult relationship the parents share, which is characterised in particular by aggression on the part of the Father to the Mother. The distance may not remove that aggression, but does provide some buffer. Consequently, B should see a reduction in the impact of the conflict between his parents.
B may also see other benefits that flow from the opportunity to live in a foreign country and also a greater ability to spend time with the Mother’s family who live in Country G.
In the context that B “does not experience a psychologically or physically abusive context in either household” the key criteria that was applied by the Single Expert for making a recommendation related to B’s future development. He described this with the following question “which of the proposed parenting arrangements, as B prepares for adulthood, would be most likely to promote his capacity to develop a sense of self as a competent, distinct, autonomous entity – whilst still feeling able to remain connected to, and objectively tolerant/accepting of, important attachment figures – in summary, which parenting arrangement is most likely to promote his capacity to individuate."
A key benefit of the move to Country C is that B will receive parenting in a manner that helps him to achieve his full potential, in the sense described by the Single Expert, in that there will be better scope for him to individuate.
In Sydney, under either parties’ proposal, B will spend less time with the Mother, but greater time with the Father than if he is in Country C. That gives more scope to enjoy the benefits of relationship with the Father, but also greater exposure to the detriments that go with that relationship. Examples of those detriments can be seen in the burdening of B with the Father’s emotional responses to situations, such as the response in respect of B providing a card to Mr F, and the writing on the cover of B’s school book.
Further, in Sydney B faces greater impact from the conflict between the Father and the Mother. The Mother will be required to negotiate, at closer quarters, the Father’s emotion and aggression, and under that burden provide emotional support for B.
In Sydney B would also get to continue to enjoy the many relationships that he has, from school and outside school. Although there is some prospect of a change of school if he remains in Sydney, this is by no means a certain outcome, the likelihood resting with B staying at H School. However, even if that estimate is wrong and he does not, he will have more ready access to friends, and to the Father’s family, in Sydney than if he is in Country C. It may be anticipated that he will be able to maintain friendships in Sydney if he was to move to Country C, although they must be expected to undergo some change.
On balance, and according particular weight to the benefits of Country C as they relate to B’s development by having parenting to assist him to achieve his full potential, B’s best interests are met by the move where it occurs under circumstances as proposed by the Mother where he will be able to spend regular time, and have regular communication with his Father.
Under those circumstances his best interests are also promoted by the Mother holding sole parental responsibility. Although there is a risk that any communication about long term issues will be productive of conflict, the fact that the Mother holds parental responsibility might be expected to lessen the impact of such. Under those circumstances it is appropriate that the Father be kept up to date with pending long term decisions. He may not be able to participate in the decision making process, but it will assist in knowing what is coming up in B’s life and hence in interacting with B about what is going on for him.
I certify that the preceding one hundred and sixty-seven (167) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 22 March 2019.
Associate:
Date: 22 March 2019
Appendix A Orders Sought
Applicant Mother’s Proposed Orders
That all existing Orders be hereby discharged.
That the child B born in … 204 (“B”) shall live with the Applicant Mother.
That the Applicant Mother shall have sole parental responsibility for B such to include but not be limited to the school B shall attend.
That the Applicant Mother inform the Respondent Father of any decisions made pursuant to Order 3 by email within forty eight (48) hours of the making of such decisions.
That the Applicant Mother be permitted to relocate with B to Country C.
That the Applicant Mother shall be solely responsible for seeking the issue of a Passport for B and in the event that the Respondent Father fails to execute any Passport Application within seven (7) days of provision of any Application to him, these Orders shall provide sufficient authority for any consent to any such Passport Application and the issue of a Passport to the Applicant Mother.
That this Order shall act as sufficient authority to the Australian Passport Office or issuing authority in relation to the issue of a Passport for the child B to the Applicant Mother pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth) and without the need for consent of the Respondent Father.
That B shall travel to Australia on the following occasions, or as otherwise agreed to by the parties in writing:
a)Christmas holidays (2018 – 2019)
b)Easter holidays (2019)
c)European summer holidays (2019)
d)Christmas holidays (2019 -2020)
e)Easter holidays (2020)
f)European summer holidays (2020)
g)Easter holidays (2021)
h)European summer holidays (2021)
i)Christmas holidays (2021 – 2022)
j)Easter (2022)
k)European summer holidays (2022)
That for the purposes of travel to Australia from Country C pursuant to Order 8 (a) – (k), B shall depart on his journey no later than two (2) days after the conclusion of school term pursuant to the school calendar of the school B attends.
That for the purposes of travel from Australia to Country C pursuant to order 8(c), B shall depart on his journey no later four (4) days before the commencement of the school term pursuant to the school calendar of the school B attends.
That for the purposes of travel from Australia to Country C pursuant to Order 8(f), (h) and (k) B shall depart on his return journey no later than fourteen (14) days before the commencement of the school term pursuant to the school calendar of the school B attends.
That for the purposes of travel from Australia to Country C pursuant to Order 8(a), (b), (e), (g), (i), (j) and B shall depart on his return journey no later than three (3) days before the commencement of the school term pursuant to the school calendar of the school B attends.
That pursuant to Order 8(d), C will travel to Sydney, Australia with the Applicant Mother and will spend time with the Applicant Mother up until 10:00am Christmas Day (25 December 2019) or as otherwise agreed to by the parties in writing whilst he is in Australia.
That pursuant to Order 8(d), B shall spend time with the Respondent Father from 10:00am Christmas Day (25 December 2019) until 8:00pm 3 January 2020 or as otherwise agreed to by the parties in writing whilst he is in Australia.
That changeover pursuant to Orders 13 and 14 occur at the Father’s residence or at a location otherwise agreed to by the parties in writing with the Applicant to deliver B and collect B from the Respondent Father.
That to give effect to Orders 8, 9 and 10 the parties shall do all things necessary to ensure B is delivered to the airport in a timely fashion so as to meet the relevant flights.
That the Applicant Mother shall be responsible for meeting B’s travel costs pursuant to Order 8.
That the Applicant Mother shall provide to the Respondent Father a copy of B’s flight details and travel itinerary upon the purchase of B’s flight to travel to and from Australia, no later than twenty-eight (28) days before B is expected to travel to Australia pursuant to Order 8.
That the Applicant Mother shall be at liberty to communicate with B at all reasonable times and with reasonable frequency, when B is in the care of the Respondent Father.
That the Respondent Father shall be at liberty to communicate with B at all reasonable times and with reasonable frequency, when B is in the care of the Applicant Mother.
That communication between B and the parties pursuant to Orders 19 and 20 includes but is not limited to using: text message, telephone calls, WhatsApp, Skype and Facetime.
That the Applicant Mother and the Respondent Father be restrained from placing B on the Australian Federal Police Airport Watchlist.
That neither the Applicant Mother nor the Respondent Father shall denigrate the other parent in the presence or hearing of B nor allow B to remain in the presence or hearing of any person who engages in such conduct.
Notations:
a)The Respondent Father is welcome to travel to City D, Country C, to spend time with B throughout the Christmas holiday period 2020 – 2021.
b)B is enrolled at the E School, City D, Country C
Respondent Father’s Proposed Orders
That the Applicant Mother, Ms Armand, and the Respondent Father, Mr Sheriff, have equal shared parental responsibility for the major long term issues relating to the child B born in … 2004 ("B").
That unless otherwise agreed by the parents, B shall live with the Applicant Mother and Respondent Father on a week about basis starting Monday 4 June 2018.
When B is living with the Applicant Mother and the Respondent Father as described in Order 2, B shall live with the Applicant Mother in week 1, from after school Monday to 9am the following Monday and with the Respondent Father in week 2, from 9am Monday to after school the following Monday.
When changeovers do not take place at B’s School, the Applicant Mother will collect B from the Father at the beginning of week 1 and the Respondent Father will collect B from the Mother at the beginning of week 2.
When B is living with the Applicant Mother or Respondent Father, the parent that has B in their care shall facilitate B to communicate with the other parent at anytime.
B should spend half of each school holiday period with each parent Mother/Father to have the first half in even numbered years, and the second half in odd numbered years, and the Father/Mother to have the opposite.
On B’s birthdays the parent who does not have B in their care will spend from after school until 8pm with B, if a school day, or for six (6) hours at a time agreed with the other parent, if a weekday.
On Mother's Day/ Father's Day if B is in the Mother's/Father's care, he will return to the Mother's/Father's care at 5pm the Saturday before Mother's/Father's Day and remain in their care until 5pm Sunday.
At Christmas, B shall be with the Mother/Father from Midday Christmas Eve to Midday Christmas Day and with the Father/Mother from Midday Christmas Day to Midday Boxing Day.
The Mother and Father will ensure B attend all extra-curricular and social activities that occur when B is in their care.
The Mother and Father are to notify the other as soon as possible of any medical emergency, serious injury or illness involving B.
If B is taking any prescribed medication, the parent who buys B’s medication will provide the other parent with the medication and instructions for its use, when the child goes into the other parent's care.
The parents shall primarily/only communicate about B by way of text message, telephone, or email.
Neither parent is to use physical discipline on B or allow someone else to do so.
Neither parent will speak badly of the other to B or where B can hear, nor allow another person to do so.
Neither parent will discuss any issue in dispute between the parents to B or where B can hear, nor allow another person to do so.
Each parent will be primarily responsible for caring for B while in their care.
Neither parent will question B about the other parent's household, their family, or their friends.
If either parent changes their contact telephone number or address they must notify the other within 24hours of that change.
To be given to B’s school and any medical professional treating the children: The school or medical professional is authorised to speak with either parent about B’s health, education, development, and welfare.
That if any weekend time which B spends with his Mother or Father falls on a long weekend such that the Monday is a public holiday then B will remain in his Mother or Father's care for the public holiday and be returned to school on the Tuesday, rather than the Monday, morning.
That the Commissioner of the Australian Federal Police take all necessary steps to immediately place B’s name on the Police Airport Watchlist at all points of arrival and departure in the Commonwealth of Australia until 8 September 2022.
That the Australia Federal Police maintain an airport watch of B on all flights leaving any international airport in all States and Territories of the Commonwealth of Australia until 8 September 2022.
That if agreed between the parties B can travel overseas with either the Mother or the Father and each party will give the other thirty (30) days notice of their intention to travel with B and provide a full itinerary.
That in the event that the Applicant Mother can no longer afford the tuition of H School, the parties must agree to an alternative school promptly, and that the cost of any future schooling will be shared equally.
Respondent Father’s Proposed changes to the Applicant Mother’s orders
That all existing Orders hereby be discharged.
That the child B born in … 2004 ("B") shall live with the Applicant Mother.
That the Applicant Mother shall have sole parental responsibility whilst B is in her care such to include but not be limited to the school B shall attend.
That the Applicant Mother inform the Respondent Father of any decisions made pursuant to Order 3 by email within eight (8) hours of the making of such decisions.
That the Applicant Mother be permitted to relocate with B to Country C.
That the Respondent Father shall have sole parental responsibility for B whilst he is in his care.
That the Applicant Mother shall be solely responsible for seeking the issue of a Passport for B and in the event that the Respondent Father fails to execute any Passport Application within seven (7) days of provision of any Application to him, these Orders shall provide sufficient authority for any consent to any such Passport Application and the issue of a Passport to the Applicant Mother.
That this Order shall act as sufficient authority to the Australian Passport Office or issuing authority in relation to the issue of a Passport for the child B to the Applicant Mother pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth) and without the need for consent of the Respondent Father.
That B shall travel to Australia on the following occasions, or as otherwise agreed to by the parties in writing:
a)Christmas holidays (2018 - 2019) from 15 December 2018 - 4 January 2019
b)Easter holidays (2019) from 6 April 2019 - 20 April 2019
c)European summer holidays (2019) from 22 June 2019 - 30 July 2019
d)Christmas holidays (2019 -2020)
e)Easter holidays (2020)
f)European summer holidays (2020)
g)Christmas holidays (2020 -2021)
h)Easter holidays (2021)
i)European summer holidays (2021)
j)Christmas holidays (2021 - 2022)
k)Easter (2022)
l)European summer holidays (2022)
That for the purposes of travel to Australia from Country C pursuant to Order 9(a) - (k), B shall depart on his journey no later than two (2) days after the conclusion of school term pursuant to the school calendar of the school B attends.
That for the purposes of travel from Australia to Country C pursuant to Order 9(c), B shall depart on his journey no later two (2) days before the commencement of the school term pursuant to the school calendar of the school B attends.
That for the purposes of travel from Australia to Country C pursuant to Order 9(f), (h) and (k) B shall depart on his return journey no later than five (5) days before the commencement of the school term pursuant to the school calendar of the school B attends.
That for the purposes of travel from Australia to Country C pursuant to Order 9(a), (b), (e), (g), (i), (j) and B shall depart on his return journey no later than three (3) days before the commencement of the school term pursuant to the school calendar of the school B attends.
That Orders 9, 10, 11, 12, 12, and 13 be amended by agreement between the parties if the annual time spent by B with the Respondent Father is less than eleven (11) weeks in duration.
That changeover pursuant to Orders 13 and 14 occur at the Father's residence or at a location otherwise agreed to by the parties in writing with the Applicant to deliver B and collect B from the Respondent Father.
That to give effect to Orders 9, 10 and 11 the parties shall do all things necessary to ensure B is delivered to the airport in a timely fashion so as to meet the relevant flights.
That the Applicant Mother shall be responsible for meeting B’s travel costs pursuant to Order 9.
That the Applicant Mother shall provide to the Respondent Father a copy of B’s flight details and travel itinerary upon the purchase of B’s flight to travel to and from Australia, no later than twenty-eight (28) days before B is expected to travel to Australia pursuant to Order 9 .
That the Applicant Mother shall be at liberty to communicate with B at all reasonable times and with reasonable frequency, when B is in the care of the Respondent Father.
That the Respondent Father shall be at liberty to communicate with B at all reasonable times and with reasonable frequency, when B is in the care of the Applicant Mother.
That communication between B and the parties pursuant to Orders 19 and 20 includes but is not limited to using: text message, telephone calls, WhatsApp, Skype and Facetime.
That the Respondent Father be able to place B on the Australia Federal Police Airport Watchlist should the Applicant Mother fail to comply with these Orders
That if agreed between the parties B can travel overseas with either the Mother or the Father and each party will give the other thirty (30) days notice of their intention to travel with B and provide a full itinerary.
That should B relocate to Country C with the Applicant Mother, the Applicant Mother will meet all the costs of B’s flights to and from Sydney to the period ending December 2020.
a)That should the Respondent Father travel to City D, Country C the Applicant Mother will meet the costs of the flights from Sydney to Country C and the return flight to Sydney to the period of December 2022.
That the Applicant Mother shall/will provide to the Father, copies of all school reports, school photos and any relevant information to B’s extra-curricular activities.
That neither the Applicant Mother nor the Respondent Father shall denigrate the other parent in the presence or hearing of B nor allow B to remain in the presence or hearing of any person who engages in such conduct.
B is enrolled at the E School, City D, Country C
Holiday dates are to be agreed to and continued annually within 30 days of each New Year's School Calendar to December 2022.
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Costs
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Injunction
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Remedies
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Procedural Fairness
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