Blanchard and Hermann

[2014] FCCA 2143

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLANCHARD & HERMANN [2014] FCCA 2143

Catchwords:
FAMILY LAW – Parenting matters – mother’s application to relocate to the United Kingdom with the parties’ two young children aged 10 and 7.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Taylor v Barker (2007) 37 Fam FLR 461
Cowley & Mendoza [2010] FamCA 597
Heath v Hemming (No.2) [2011] FamCA 749

Sigley & Evor (2011) 44 Fam LR 439

Applicant: MR BLANCHARD

Respondent: MS HERMANN

File Number: DGC 234 of 2014

Judgment of: Judge Bender

Hearing dates: 14, 15, 25 August 2014

Date of Last Submission: 25 August 2014

Delivered at: Melbourne

Delivered on: 1 September 2014

REPRESENTATION

Counsel for the Applicant: Mr Hall

Solicitors for the Applicant: John Conquest Lawyers

Counsel for the Respondent: Mr Puckey

Solicitors for the Respondent: Resolve Conflict Lawyers

ORDERS

1. The mother have sole parental responsibility for the children X born (omitted) 2004 (“X”) and Y born (omitted) 2007 (“Y”).

2. X and Y live with the mother.

3. The mother, X and Y be permitted to relocate to the United Kingdom as from 1 April 2015.

4. The Order of the Federal Circuit Court of Australia restraining the removal of X, female, born (omitted) 2004 (“X”) and Y, male born (omitted) 2007 (“Y”) from the Commonwealth of Australia 3 February 2014 be discharged.

5. The Australian Federal Police remove the names of X and Y from the Airport Watch List at all points of international arrivals and departures in Australia.

6. Prior to the mother, X and Y relocating to the United Kingdom, X and Y shall spend time with the father as follows:

   6.1For a period of not less than three months, from 10.00am to 5.00pm on the first two of each three Saturdays in a three week cycle commencing 6 September 2014 with such time to be supervised by any of the paternal aunts, Ms N or Ms C, the paternal grandfather, Mr M or the paternal grandmother, Ms D or such other supervisor as agreed between the parties in writing, noting however on the Father’s Day weekend X and Y will spend time with the father on Father’s Day rather than on the Saturday and changeover shall occur outside (omitted) Shopping Centre unless otherwise agreed between the parties in writing.

   6.2Upon X and Y spending time with the father pursuant to order 6.1 hereof and upon the father:

   (a)     complying with orders 15 and 16 herein; and

   (b)    supplying drug screens negative for any illicit or unexplained prescribed substances; and

   (c)    providing to the mother a written report from his treating psychiatrist at the father’s expense confirming the father has attended all appointments as directed, is compliant with his medication regime, that the father’s mental health is stable and that the father poses no risk to X and Y if he spends unsupervised time with them;

   the father shall spend unsupervised time with X and Y as follows:

   (i)From 10.00am to 5.00pm each Saturday for four occasions and thereafter;

   (ii)From 10.00am to 5.00pm Saturday and Sunday for the first two weekends in each three week cycle for four occasions and thereafter;

   (iii)From 10.00am Saturday to 5.00pm Sunday for the first two weekends in each three week cycle.

   (d)    Changeover shall occur at (omitted) Shopping Centre unless otherwise agreed between the parties in writing.

   6.3For no less than four hours on Christmas Day 2014 as agreed between the parties and failing agreement from 4.00pm to   8.00pm and if X and Y have not started spending unsupervised time with the father, such time to be supervised by any of the supervisors named in order 6.1 herein.

   6.4By telephone or Skype at all reasonable times as agreed between the parties and failing agreement, each Tuesday, Wednesday and the Sunday of any weekend that Y and X have not spent time with the father between 6.30pm and 7.00pm and if X and Y will not be at home at this time the mother shall ensure X and Y have their mobile phone with them.

   6.5As otherwise agreed between the parties.

7. Upon the mother, X and Y relocating to the United Kingdom:

   7.1If the father has commenced spending unsupervised overnight time with X and Y prior to X and Y relocating to the United Kingdom, and neither of the father’s treating psychiatrist or treating psychologist has contacted the mother to advise the father is not complying with their directions as to his treatment or that they have formed the view that X and Y would be at risk if they were to spend unsupervised time with the father then X and Y shall spend time and communicate with the father as follows:

   7.1(a) In 2015 and 2016 for three weeks in each of the United Kingdom long summer vacations and for two weeks in each of the United Kingdom winter and spring vacations in Melbourne for such times as agreed between the parties and failing agreement as follows:

   (i)On the first occasion such time occurs:

   (x)In the first week from:

   ·          10.00am on Day 1 to 12.00pm noon on Day 2;

   ·          10.00am on Day 3 to 12.00pm noon on Day 4; and

   ·          10.00am on Day 5 to 5.00pm on Day 6.

   (y)In the second week from:

   ·          10.00am on Day 1 to 12.00pm noon on Day 3; and

   ·          10.00am on Day 4 to 5.00pm noon on Day 6.

   (z)In the third week from:

   ·          10.00am on Day 1 to 12.00pm noon Day 4; and

   ·          10.00am on Day 5 to 5.00pm on Day 7.

   (ii)On the second and third occasions that such time occurs for five consecutive days in each week;

   (iii)On the fourth occasion that such time occurs for two periods of seven consecutive days and one period of five consecutive days separated by 24 hours with the mother; and

   (iv)On the fifth occasion that such time occurs for one period of not less than ten days.

   7.1(b) Commencing in the Spring vacation 2017 and provided the father has spent time with X and Y pursuant to order 7.1(a) herein, for at least 10 days in each of the winter and spring United Kingdom school vacations and at least 21 days in the long United Kingdom summer vacation in Melbourne.

   7.2If prior to the mother, X and Y relocating to the United    Kingdom the father has not commenced spending unsupervised    time with X and Y then X and Y shall spend time with the father for three weeks in the United Kingdom long summer vacation and two weeks in each of the United Kingdom spring and winter vacations in Melbourne and such time shall be each alternate day from 10.00am to 5.00pm with such time to be supervised by any of the supervisors named in order 6.1 herein or such other supervisor as agreed between the parties in writing.

   7.3During any period the father is in the United Kingdom as agreed between the parties save that in the event X and Y have not been spending unsupervised time with the father in Australia such time will be supervised by such person as agreed between the parties and failing agreement as nominated by the mother.

   7.4By Skype each Wednesday and Saturday at such times as are reasonably practicable to accommodate the time difference between the United Kingdom and Melbourne.

   7.5By telephone as agreed but no less than twice a week on days when there has been no Skype communication at such times as are practicable to accommodate the time difference between the United Kingdom and Melbourne;

   7.6Such further or other times as are agreed between the parties in writing.

8. The mother shall pay all necessary costs associated with X and Y spending time with the father in Melbourne for two periods each year, such periods to be for the long summer vacation and either of the winter or spring vacation to be nominated by the mother in writing no later than 14 February each year and the father shall pay all necessary costs for X and Y spending time with the father for the third period each year, such necessary costs  of the father to include return airfares for X and Y and for the mother or such other agreed adult person to accompany X and Y and the father shall provide the mother proof of purchase of such return fares no less than 28 days prior to the departure date, failing which the time that X and Y are to spend time with the father in Melbourne for that third period shall not take place.

GENERAL

1. When X and Y are spending unsupervised overnight time with the father pursuant to these orders, the father shall advise the mother of the address and contact telephone number of where X and Y will be spending overnight time in writing including text message no less than 24 hours prior to each overnight time.

2. The father shall be restrained from ingesting illicit substances or any prescription drugs other than in accordance with the directions of his treating medical practitioners at all times.

3. The father shall undergo random supervised drug screens within 24 hours of a written request to do so received from the mother or her legal representative, with such requests to be made no more than once per month over a period of 12 months from the date of these orders and the father is to provide the results of such screens to the mother or her legal representative as soon as possible thereafter.

4. In the event the father fails to comply with Order 11 herein or if any of the father’s supervised drug screens are positive for illicit substances or for prescription drugs that are not explained by an up to date certificate/letter from his treating medical practitioner, the period in which the father is to submit to supervised monthly drug screens at the request of the mother shall be extended to a period of 2 years after the making of those orders and the mother shall be at liberty to make urgent application to this Court for a variation of the current spend time orders.

5. The father shall continue to attend upon his treating psychiatrist Dr H or such other psychiatrist as recommended by Dr H (“his treating psychiatrist”) and comply with all recommendations of his treating psychiatrist including but not limited to attendance upon his treating psychiatrist as directed by his treating psychiatrist and taking all medication as prescribed by his treating psychiatrist.

6. The father shall continue to attend upon his treating psychologist Ms M or such other psychologist as recommended by Ms M (“his treating psychologist”) with such frequency as recommended by his treating psychologist.

7. The father shall forthwith authorise and continue to authorise his treating psychiatrist and his treating psychologist to immediately contact the mother either by telephone or email in the event:

   (a)the father fails to comply with their recommended treatment; or

   (b)they form the view that the father’s mental health will place X or Y at risk in the event they spend unsupervised time with the father; or

   (c)the father purports to revoke this authority.

8. For the purposes of Order 15 herein, the father shall forthwith provide his treating psychiatrist and treating psychologist with a copy of these orders and keep them appraised of the mother’s current contact telephone number and email address at all times.

9. The father be permitted to attend all school events relating to X and Y as normally attended by parents and receive at his expense all school reports, school photograph order forms and newsletters.

10. Each party shall advise the other of any serious illness or injury suffered by X and/or Y as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.

11. Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the X and/or Y, and from permitting any other person so to do.

12. Each party keep the other informed at all times of their current residential address, contact telephone number and email address.

13. The mother shall forthwith do all things necessary to make application by consent to the High Court of England to obtain “mirror” orders reflecting orders 1, 2, 3, 7-21 herein pursuant to the Children and Families Act 2014 (UK) (“the mirror orders”) and the father shall sign all necessary documents to enable such orders to be made by consent and if practicable the mirror orders shall be obtained prior to the mother, X and Y relocating to the United Kingdom pursuant to order 3 herein.

IT IS NOTED that publication of this judgment under the pseudonym Blanchard & Hermann is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 234 of 2014

MR BLANCHARD

Applicant

And

MS HERMANN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter relates to the mother’s application to relocate from Melbourne to the United Kingdom with the parties’ children X born (omitted) 2004 (“X”) and Y born (omitted) 2007 (“Y”).

2. The father opposes the relocation of X and Y and seeks orders they remain living in Melbourne.

3. Whether there is relocation or the mother, X and Y remain living in Melbourne, the mother seeks orders that X and Y’s time with the father remain supervised because of ongoing concerns in relation to the father’s mental health.

4. The father seeks orders that his time with X and Y be unsupervised subject to him remaining engaged with and following all reasonable directions of his current treating psychiatrist and treating psychologist and his authorising his treating psychiatrist and treating psychologist to contact the mother in the event he fails to comply with their directions or they are concerned the father may pose a risk to X and Y if they were to spend time in the father’s unsupervised care.

Background

1. The mother was born on (omitted) 1979 and is aged 35 years. She is a (occupation omitted) employed on a full-time basis working at the (employer omitted). The mother is engaged to Mr J who lives in (omitted) in the United Kingdom where he is employed in his own (omitted) business.

2. The father was born on (omitted) 1974 and is aged 39 years. He is employed as a (occupation omitted) with (employer omitted). The father has repartnered with Ms R and lives in her home in (omitted), Melbourne. Ms R has two sons from her previous marriage, A aged 10 years and B aged 7. Ms R’s sons live with Ms R and their father in a week about arrangement. X and Y have not met Ms R, A or B.

3. Both parties were raised as part of the (religion omitted) Community. The mother continues to be part of the (religion omitted) Community. The father is no longer a member.

4. The parties met in 1998 and married in (omitted) 2000.

5. The father admits to suffering from depression and anxiety and to the use of alcohol and illicit substances including marijuana and amphetamines and alcohol from the age of 15 years and continuing throughout the parties’ marriage.

6. In 2004 the father suffered a major psychotic episode. Police and ambulance attended and the father was referred to the CAT team at (omitted) Mental Health Service in (omitted) and from there to Dr D, psychiatrist for ongoing treatment. Dr D diagnosed the father as suffering from Bipolar Affective Disorder and prescribed medication to manage the disorder.

7. The father concedes that in the five years after his diagnosis he continued to use illicit substances, to drink alcohol to excess and that he was not always compliant in taking the medication prescribed by Dr D.

8. In May 2009 the father suffered another serious psychotic episode. The police, ambulance and a CAT team were called and the father was admitted as an inpatient in the Psychiatric Unit at (omitted) Hospital for three weeks. He was given a diagnosis of Bipolar Affective Disorder, severe anxiety and paranoia.

9. Whilst the father was in hospital, the father’s sister Ms C disclosed to the mother that the father had been sexually intimate with her when he was 14 and she was 11. The mother confronted the father in the hospital with this disclosure and he conceded it had occurred.

10. This disclosure together with the father’s mental health issues, alcohol abuse and drug addiction caused the mother to decide to formally separate from the father.

11. The father’s discharge from (omitted) Hospital to his parents’ care was subject to a 12 month Community Treatment Order which required him to attend appointments with his psychiatrist as required and take medication as prescribed.

12. After the parties separated, X and Y spent time with the father by agreement between the parties, such time being supervised by either the paternal grandparents or either of the father’s sisters Ms N (“Ms N”) or Ms C (“Ms C”).

13. Whilst the father’s time was not always regular, particularly when he worked in Queensland for six months in 2009/2010 the father usually spent time with X and Y on a fortnightly basis.

14. On 13 April 2013 there was an incident at the mother’s home when the father arrived unannounced in an agitated state. Shortly after this incident the mother instructed her solicitors to write to the father putting a proposal to formalise arrangements for the father’s time with X and Y. The father did not respond.

15. On 21 June 2013 there was an incident at (omitted) Railway Station. The father had collected Y to spend the weekend at the father’s parents’ home. X by choice was not spending the weekend with the father.

16. Whilst Y was using the urinal in the toilets at the station, a stranger walked past Y and tousled his hair. The father warned the stranger three or four times not to touch Y again. As the stranger left the urinal he again tousled Y’s hair. The father then accosted the stranger and he and the father wrestled until the father had the stranger up against the wall of the toilets. Whilst the father and the stranger were fighting, two other men in the toilets took Y away from the fight. Eight police officers then attended the scene.

17. The father advised the mother of the incident at the station at the conclusion of Y’s weekend with him. When Y subsequently described the incident to the mother he told the mother that when the police searched the father’s bag there were knives in it.

18. Because of the father’s behaviour at the railway station and, in particular, his loss of temper and the fact that he was carrying knives, the mother was concerned about X and Y’s safety in the father’s care and was not prepared to allow the father to spend time with X and Y unless such time was fully supervised by the father’s parents or sisters when X and Y were picked up and returned. At this time the father did not have a license and was using public transport when he collected X and Y.

19. Agreement was unable to be reached between the parties and X and Y did not spend face to face time with the father save for one hour on 19 January 2014 until orders were made on 23 March 2014.

20. In 2010 the mother rekindled her relationship with Mr J who is English. The mother and Mr J have known each other since 1996 and dated for a time in 1997 when the mother was living in England.

21. Since rekindling their relationship, the mother and Mr J have kept in contact daily via the internet and telephone. They spent face to face time together in December 2011/January 2012, June 2012, December 2013/January 2014 and for 2 weeks during the final hearing of this matter. The mother and Mr J both see their relationship as permanent and they intend to marry in the first half of 2015.

22. At the mother’s request the father met the mother at her parents’ home on 18 January 2014. At this meeting the mother told the father of the resumption of her relationship with Mr J, that she and Mr J wished to marry and that she wished to relocate to the United Kingdom with X and Y.

23. On 21 January 2014 the father sent correspondence to the mother to advise her he did not agree with X and Y relocating with her to the United Kingdom.

1. On 25 January 2014 the mother texted the father requesting he sign the paperwork to renew X and Y’s passports as her father wanted to take them to (country omitted) over the Easter 2014 holidays. As X and Y’s passports were not due to expire until August 2015, the father did not accept the explanation as to why X and Y needed their passports renewed from travel to (country omitted) in Easter 2014.

2. On 31 January 2014 the father filed an Initiating Application seeking an urgent order restraining either party from removing X and Y from Australia.

3. On 3 February 2014 an order was made by Judge O’Sullivan preventing either parent from taking X and Y from Australia and X and Y’s names were placed on the Airport Watch List for a period of two years.

4. The matter came before Judge O’Sullivan again on 25 March 2014. On the undertaking of the father’s sister Ms N to supervise the father’s time with X and Y, interim consent orders were made for X and Y to spend supervised time with the father from 11.00am to 2.00pm on 5 April 2014 and 19 April 2014 and commencing Saturday 3 May 2014, from 10.00am to 5.00pm and each alternative Saturday thereafter.

5. Since the making of the orders on 25 March 2014 the father has spent time with X and Y on 6 of the 10 Saturdays they were to spend time with him pursuant to the orders of 25 March 2014. On two occasions the time has taken place on an alternate day and on two occasions no time took place because the supervisor was not available.

The Evidence

The wife’s evidence

1. In support of her application the wife relies on her affidavits sworn the 25 February 2014 and 31 July 2014. The wife also relies on the following affidavits:

   (a)Mr J sworn 31 July 2014; and

   (b)Ms V sworn 25 February 2014.

2. The mother is seeking to relocate with the parties’ children X and Y to the United Kingdom so that she can marry her fiancé Mr J and start a new life with him.

3. It is the mother’s proposal that if permitted to relocate, X and Y will return to Australia twice each year during the United Kingdom school holidays at the mother’s expense. The mother proposes that when in Australia such time occur by agreement but failing agreement that it occur for three occasions each week between 10.00am and 5.00pm with such time to be supervised by any of the two paternal aunts or the paternal grandfather.

4. In her viva voce evidence, the mother indicated she would be prepared for X and Y to spend a third occasion with the father in Australia in each year on the basis that the father fund the cost of X and Y  and an accompanying adult travelling to and from Australia.

5. The mother also proposes that in the event of relocation there be frequent Skype and telephone communication between X and Y and the father with such communication to accommodate the time differences between the United Kingdom and Australia.

6. In the event that relocation is not allowed, it is the mother’s proposal that X and Y spend time with the father each alternate Saturday from 10.00am to 5.00pm with such time to be supervised by either of the paternal aunts or the paternal grandfather.

7. In her viva voce evidence, the mother indicated that in the event the father continues to fully engage with his treating psychiatrist and treating psychologist, that they provide a report confirming that his mental health is stable and that he is compliant with all requirements as to his medication and that the father provide his treating psychiatrist and treating psychologist with an authority to contact her in the event that he fails to regularly attend upon them as directed or follow their instructions as to his medication or they form a view that his mental health is such that he would be a risk to the children if he were to spend unsupervised time with him, then she would be open to X and Y spending unsupervised time with the father.

8. It is the mother’s evidence that the parties’ marriage was marred by the father’s escalating mental health issues which were exacerbated by his excessive alcohol consumption and use of illicit substances.

9. In November 2004 the father suffered a significant psychiatric episode when he disappeared overnight and was located the following day in a hotel, naked and in possession of pornography and amphetamines. Police and ambulance officers attended and as a result the father was referred to the team at (omitted) Mental Health Service in (omitted) and thereafter to Dr D, psychiatrist, for ongoing treatment.

10. It is the mother’s evidence that it was at this time the father was diagnosed as suffering from Bipolar Affective Disorder and was prescribed medication to manage that condition.

11. Is the mother’s evidence that the father was not always compliant with his medication regime and that on many occasions she would have to remind the father of the necessity for him to take his medication.

12. In May 2009 the father suffered a further major psychiatric episode. It is the mother’s evidence that the father disappeared from the matrimonial home for a period of six days during which time the mother reported the father missing to Victoria Police. On the father’s return the mother contacted the police. An ambulance and CAT team arrived at the matrimonial home. Upon assessment of the father, he was admitted as an inpatient at the Adult Psychiatric Inpatient Unit at (omitted) Hospital.

13. It is the mother’s evidence that whilst the father was in the (omitted) Hospital, the father’s younger sister Ms C disclosed to the mother that she had been sexually abused by the father when the father was 14 and Ms C was 11. The mother confronted the father whilst he was in hospital with his sister’s disclosure and he confirmed to the mother that this had occurred.

14. It is the mother’s evidence that this disclosure, coupled with the father’s ongoing mental health issues, alcohol abuse and illicit drug usage caused her to decide that she could no longer stay married to the father.

15. It is the mother’s evidence that after she and the father separated, she ensured that X and Y spent time with the father but always on the condition that such time was supervised by members of the father’s family, and in particular, the paternal grandparents and paternal aunts Ms N and Ms C.

16. It is the mother’s evidence that for approximately 6 months in 2009 and 2010 the father moved to Queensland for work and that during this period he spent very limited time with X and Y.

17. It is the mother’s evidence that that on the weekend of 21 June 2013 only Y spent supervised time with the father. It is the mother’s evidence that at this time the father had lost his licence and that he would collect and return Y to (omitted) station to spend a weekend at the paternal grandparents so that they could supervise that time. The paternal grandparents did not accompany the father for the purposes of the changeover.

18. It is the mother’s evidence that at the conclusion of the weekend of

    
    

    21 June 2013 the father advised the mother of an incident that had taken place when he had collected Y at the commencement of time. The father advised the mother that Y had to go to the toilet and that whilst in the toilet a stranger had tousled Y’s hair whilst Y was using the urinal and that when the father asked the stranger to desist in that behaviour he had not done so. The father advised the mother that a tussle had ensued requiring police attendance.

19. It is the mother’s evidence that when Y described the incident to the mother he spoke of the father and the stranger fighting and of the father throwing the stranger against the wall and said that when the police had looked in the father’s bag there had been knives and a bloodied shirt. It is the mother’s evidence that Y told her he had been frightened by the incident.

20. It is the mother’s evidence that as a result of Y’s disclosures about what had occurred on the weekend of 21 June 2013, she became concerned about the father’s stability. Because of this the mother told the father she was only prepared to allow him to spend time with X and Y on the basis that his parents or sisters supervised all his time with X and Y, including at changeovers.

21. It is the mother’s evidence that the father refused to agree to her proposals in this regard and as a result, time between X, Y and the father did not take place.

22. In relation to the mother’s relationship with Mr J, it is the mother’s evidence that she and Mr J have known each other since 1996. Mr J’s parents and her parents are old family friends. It’s the mother’s evidence that she and Mr J dated for short period of time in 1997 when the mother was living in England.

23. It’s the mother’s evidence that in 2010 she and Mr J rekindled their relationship when they made contact again by way of electronic communication.

24. It is the mother’s evidence that she and Mr J have daily Internet or telephone communication and had face-to-face time with each other in December 2011, January 2012, June 2012, December 2013, January 2014 and again whilst Mr J was in Australia for the purposes of the final hearing.

25. It is the mother’s evidence that she and Mr J have determined they wish to spend the rest of their lives together.

26. It is the mother’s evidence that Mr J’s father suffers from Parkinson’s disease and requires considerable care. Mr J, who is an only child, assists his mother in his father’s care and is committed to doing so into the future. Because of this, it is not possible for Mr J to relocate to Australia in order to marry the mother and in order for the mother and Mr J to be able to marry and start a new life together, it will be necessary to the mother, X and Y to move to England.

27. It is the mother’s evidence that after she and Mr J had made the decision that they wanted to marry in early 2014, she contacted the father and asked him to meet with her so that she could discuss with him her future plans and, in particular, obtain his agreement to X and Y relocating to England.

28. It is the mother’s evidence that Mr J currently lives with his parents. If permitted to relocate, the mother, X and Y will initially live with Mr J’s parents for short period of time until she and Mr J marry. After the mother and Mr J marry, they will find rental accommodation close to Mr J’s parents’ home so that they can continue to assist in Mr J’s father’s care.

29. The mother is a practising (religion omitted), as is Mr J, and within their faith it would not be appropriate for them to live together as a couple until they are married.

30. It is the mother’s evidence that she has made enquiries in relation to X and Y attending school in the county in which they will live upon relocation to England. It is the mother’s evidence that there are 55 schools in that county and that she has identified three schools which she believes would be most suitable for X and Y. The mother concedes that school placements are very much dependent upon vacancies at the school and that there is no guarantee that X and Y would necessarily find a place in her preferred schools.

31. The mother was questioned in relation to what enquiries or applications she made to obtain a Visa to enable her to live in England. It is the mother’s evidence that she believes she would be eligible for a fiancé visa but that she had not made any application for that Visa at this time given that such applications cost hundreds of dollars. It is the mother’s evidence that she does not intend to incur the expense of applying for a Visa until the outcome of her application to relocate is known.

32. It is the mother’s evidence that she believes that once her Visa status has been resolved, she will be able to find employment as a (occupation omitted) in England. Before she can work in England, she would have to complete a three month course in order to have her Australian qualifications recognised in England.

33. The mother confirmed that the maternal grandmother has been a considerable support to her, X and Y since she and the father separated. It is the mother’s evidence that the maternal grandmother is currently responsible for collecting X and Y from school each afternoon and taking them back to her home until the mother has completed work in the evening.

34. The mother was questioned as to what supports she would have in England to assist in the care of X and Y given her extended family all reside in Australia and that she has no friends in the immediate vicinity of Mr J’s parents’ home.

35. It is mother’s evidence that Mr J and his mother would assist in the care of X and Y and that her parents would be very regular visitors to England, spending anywhere up to 6 months of each year in England in order to maintain their very close relationship with the mother, X and Y.

36. The mother concedes that X and Y both love their father. However, it is the mother’s evidence that because of the father’s mental health issues, his alcohol and drug addictions during the relationship and the somewhat limited time that X and Y have spent with the father as a result of these issues, they do not have the kind of relationship that they might otherwise have had with a father who did not have these problems.

37. It is the mother’s evidence that she believes that if permitted to relocate, her proposals in relation to the time that X and Y spend with the father as well as the mother’s commitment that there be regular Skype and telephone communications between X, Y and the father would enable X and Y to maintain the relationship that they currently have with the father.

38. When questioned as to how the mother and Mr J would afford to fund two trips each year for the mother, X and Y to travel to Australia, it is the mother’s evidence that with both she and Mr J working, and, if necessary, with assistance from the maternal grandparents, she would ensure that such trips took place.

Mr J

1. Mr J is the mother’s fiancé. Mr J swore an affidavit in these proceedings on 4 August 2014 and gave viva voce evidence at the final hearing.

2. Mr J confirmed that he and the mother have known each other for approximately 17 years and that they became reacquainted in 2010 after the mother had separated from the father. Mr J confirmed that shortly after he and the mother reconnected he and the mother formed a romantic relationship and that it is their wish to marry in early 2015 and to commence a life together.

3. Mr J confirmed that his father suffers from Parkinson’s disease and that as an only child he believes he has a responsibility to assist in his father’s care. For this reason it is not possible for Mr J to relocate to Australia in order to marry the mother.

4. It is Mr J’s evidence that he, together with a partner, own an (omitted) business which operates from a premises at (omitted). It is Mr J’s evidence that he commutes daily to and from his business premises, which takes approximately 50 minutes each way by train. It is Mr J’s evidence that he generally arrives at work at around 9.00am and returns home at approximately 6.00pm.

5. It is Mr J’s evidence that from his business he receives a monthly income of approximately £3000.It is Mr J’s evidence that he currently has approximately £13,000 in savings and that he is otherwise in the process of having a barge fully renovated at which time he believes that, having purchased the barge for £8000 he will be able to sell it for anything up to £400,000. It is Mr J’s evidence that he has already had an offer for the purchase of the boat of £340,000.

6. When questioned as to his capacity to assist in the care of X and Y in the event that the mother has been successful in obtaining employment as a (occupation omitted) in England, Mr J gave evidence that because he has his own business, he has flexibility in determining his working hours and that he would therefore be able to assist in the care of X and Y outside of normal school hours.

7. It is Mr J’s evidence that he and the mother are genuinely committed to a future life together and even if not permitted to relocate, will marry, albeit he is hoping that the Court will allow the relocation.

Ms V

1. Ms V is the maternal grandmother. Ms V swore an affidavit in these proceedings on 3 July 2014 and also gave viva voce evidence at the final hearing.

2. It is the maternal grandmother’s evidence that she supports the mother’s application to relocate to England in order to be able to marry Mr J as she believes the mother is entitled to pursue happiness in a loving and committed relationship.

3. The maternal grandmother confirmed that she has offered considerable assistance to the mother in the care of X and Y, practically, emotionally and financially.

4. The maternal grandmother confirmed that she currently collects X and Y from after school care each afternoon and has them at her home until the mother finishes her shift at (omitted) Hospital.

5. The maternal grandmother readily conceded that she would miss X, Y and the mother dreadfully if they were to relocate but gave evidence that she and the maternal grandfather would consider living in England for at least six months in each year in order to be able to spend considerable time with their daughter and grandchildren.

6. When the maternal grandmother was challenged by Counsel for the father about the practicality of she and the maternal grandfather living six months in each year in England given that the maternal grandparents have other children and grandchildren who reside in Australia, that she and the maternal grandfather are currently in full time employment and the cost of living in two countries, it was apparent that this proposal was no more than an idea and not a concrete plan.

7. However, the Court is satisfied that in the event the mother, X and Y were allowed to relocate, the maternal grandparents would be regular visitors to England and would spend as much face to face time with the mother and X and Y as possible.

The Father

1. The father relies on his affidavits sworn 31 January 2014 and 31 July 2014. The father also relies on the affidavits of:

   (a)Ms N sworn 31 January 2014

   (b)Ms R sworn 31 January 2014

   (c)Mr M sworn 31 July 2014

   (d)Ms M sworn 1 August 2014.

2. Other than the father, Counsel for the mother did not require any of the father’s witnesses for cross-examination.

3. To his credit, the father was very honest about the extent of his mental health issues, alcohol and illicit drug use during the marriage. The father conceded that during the marriage he self-medicated with illicit substances and alcohol, that he was out of control and that at times he was “more than difficult” to live with.

4. The father confirmed in his evidence that the mother was incredibly supportive of him during the marriage, that it was she who reminded him to take his medication and that it was she who bore the brunt of the care of X and Y during the periods when his drug and alcohol abuse and mental health were at their worst.

5. It is the father’s evidence that from separation until 2011, he and the mother were able to put in place arrangements for him to spend supervised time with X and Y by agreement. It is the father’s evidence that during this period he usually spent time with X and Y on a fortnightly basis.

6. It is father’s evidence that from 2011, when he advised the mother that he had met someone online from the (country omitted), he began experiencing more difficulties when seeking to arrange to spend time with X and Y.

7. The mother adamantly denies this allegation and states that any difficulties that may have arisen in relation to arrangements for the time to be spent with the father was as a result of Y’s, and more particularly, X’s reluctance to spend time with the father.

8. The father was cross-examined at some length by Counsel for the mother about the incident at (omitted) Railway Station in June 2013. In describing how that incident unfolded, it became apparent from the father’s evidence that the situation escalated as a result of the father’s agitation about what was occurring.

9. It would appear that a gentleman, quite inappropriately, tousled Y’s hair as he walked past Y to use the urinal. The father told the gentleman in question not to do this and when this gentleman responded the father continue to argue with the gentleman.

1. When the gentleman finished at the urinal and was leaving the toilets, he again tousled Y’s hair. The father then became extremely agitated and physically confronted the gentleman, grabbing him and pushing him towards the exit of the toilets and wrestled the gentleman to the ground.

2. Whilst this physical alteration was taking place, two other strangers in the toilets took charge of Y and moved him away from the altercation between the father and this gentleman so that he was not exposed to their violence.

3. Whilst the father agreed he should have handled this situation differently and perhaps should have not confronted the gentleman in the manner in which he did, it was apparent that he still felt that he was protecting Y from a gentleman whom he described as “intruding on Y’s personal space”. It was clear from the father’s evidence that Y had not been unduly distressed or disturbed when this gentleman ruffled his hair but rather it was the father who took offence to this behaviour.  

4. If the father had not argued with the gentleman and instead moved a little closer to Y he would have ensured that the gentleman could not approach Y once he had finished in the toilet and the incident would not have got out of control.

5. The description given by Y to his mother after this incident is such that it is understandable that the mother had real concerns in relation to the father’s behaviour and sought that in future the father be accompanied by a member of his family during changeover for time between himself and X and Y.

6. The father was critical of the mother for not enabling X and Y to spend time with him after this incident in June 2013. The father offered no explanation as to why he would not agree to having a family member accompany him when he collected X and Y or why he only commenced proceedings in relation to the living arrangements for X and Y when the mother approached him to discuss her proposal that she, X and Y relocate to England.

7. The father is strongly opposed to X and Y relocating to England. It is his concern that if X and Y were to move to England, they would not have any real relationship with him whatsoever.

8. It is the father’s evidence that he believes that it is not possible for X and Y to sustain any kind of meaningful relationship with him if they only see him two or three times a year. It is his evidence that Skype and telephone communication would not facilitate the continuation of his relationship with X and Y, particularly in circumstances where that communication is going to be made difficult because of the time differences between England and Melbourne.

9. It is the father’s further evidence that he is not confident that the mother would continue to promote his relationship with X and Y if permitted to relocate. The father questions her commitment and capacity to ensure that X and Y travel to Australia twice per year in accordance with her proposal.

10. The father’s concerns in relation to the mother’s commitment to promoting his relationship with X and Y are based in part on the fact that since the Court made interim orders in March 2014 for the father to spend supervised time with X and Y on alternate Saturdays, not all those times have taken place.

11. However, when the father was cross-examined in relation to the circumstances surrounding those occasions when time did not take place, it became apparent that on those occasions when time did not take place it was as a result of the unavailability of the supervisors or because the father himself did not attend to pick up X and Y at the designated pickup point because he had misunderstood that it was the date upon which he was meant to be spending time with them.

12. Further examination of the circumstances in which X and Y spent time with the father in fact showed that the mother had been flexible in arranging alternate times and agreeing to a supervisor who was not named in the Court orders.

13. In relation to the father’s mental health, it is the father’s evidence that he believes that his mental health has been stable since 2009.

14. In paragraph 2 of the father’s affidavit sworn be 31st of January 2014 he deposes as follows:

    “I do suffer from a Bipolar Affective Disorder of which I control through medication, counseling, life coaching, meditation and other positive networks focused on reaching positive harmonious life.”

15. When this matter came before the Court on 25 March 2014, orders were made for the father to attend upon Dr T for the purposes of a psychiatric assessment.

16. Pursuant to that order the father attended upon Dr T on

    
    

    10 June 2014 and Dr T prepared a psychiatric assessment which is dated 16 June 2014 and is annexed to Dr T’s affidavit sworn on 25 June 2014.

17. In his report Dr T expresses great concern that the father believes that he is able to manage his psychiatric condition himself. It is Dr T’s opinion that at a minimum the father needs to attend a psychiatrist for regular reviews and that his time with X and Y should continue to be supervised pending further psychiatric treatment for a period of 6 to 12 months.

18. Whether as a result of Dr T’s report, or whether as a result of the father’s own recognition of the need for him to fully engage with his mental health professionals, in July 2014 the father commenced seeing Ms M, clinical psychologist at the (omitted) Centre for Clinical and Health Psychology in (omitted) on a fortnightly basis.

19. In addition, the father reconnected with his treating psychiatrist

    
    

    Dr D and at the time of the final hearing had attended upon Dr D twice and had another appointment scheduled for shortly after the final hearing.

20. In his submissions, Counsel for the father indicated to the Court that the father would consent to any orders which required him to continue to attend upon Ms M and Dr D as directed by them. Counsel for the father further indicated that the father would consent to an order that he authorise Ms M and Dr D (or any other treating psychiatrist or psychologist that they were to refer him to) to immediately notify the mother in the event that he failed to attend upon them or follow their reasonable directions regarding the taking of medication or that they formed the view that his mental health was such that X and Y would be at risk if they were to spend unsupervised time with him.

21. It is the father’s evidence that since 2009 he has been fully compliant with taking his medication as directed by his treating doctors. It is the father’s evidence that he is currently prescribed lithium, sodium velcate and metazapine.

22. At the request of the mother’s solicitors, the father underwent a supervised drug screen on 14 July 2014 which showed a positive reading for benzodiazepines.

23. When Dr T was giving his viva voce evidence, he advised the Court that the father’s current drug regime would not produce a positive reading for benzodiazepines.

24. When asked to explain why his drug screen had provided a positive reading for benzodiazepines, it was the father’s evidence that the only explanation he could give for the positive reading was that one night when he was unable to sleep he had inadvertently taken a couple of sleeping tablets that that had been prescribed to him over five years ago that were loose in the drawer of his bedside table. Overnight the father located some of these tablets which were still sealed in their packet and they carried the name of Zyprexa.

25. Dr T was contacted by telephone by the parties’ legal representatives and the Court was advised that Dr T had indicated that Zyprexa would not have produced a positive reading for benzodiazepines.

26. Given Dr T’s evidence, the father was unable to explain to the Court how it was that his supervised drug screen had produced a positive reading for benzodiazepines.

27. When the father was giving viva voce evidence in relation to his taking medications that had been prescribed to him some five years earlier, it was his evidence that in the 12 months leading up to the final hearing he would have taken, at most, only 4 to 6 of these tablets.

28. In relation to the father’s current relationship with X and Y, it is his evidence that since he resumed time with X and Y in March 2014, he has been able to re-establish his relationship with them. It is the father’s evidence that his relationship with X and Y is as close and loving as it was when he was spending alternate weekends with them prior to the incident at (omitted) Railway Station in June 2013. The father describes X and Y as being affectionate and loving toward him, being comfortable with him, holding his hand and giving him hugs and Y telling him on each occasion that he sees him that “I love you dad”.

29. In discussions with the report writer, Dr M, and in his viva voce evidence, the father described the mother as being “a great mother and a really good person”, and stated that “if you believed in reincarnation… the kids would choose her again”.

30. Despite these positive comments, the father is extremely distressed that the mother wishes to relocate to England with X and Y, and expressed concern that in the last 12 months the mother has been undermining X and Y’s relationship with him; firstly, by stopping all time between he, X and Y for 8 months after the (omitted) Railway Station incident, secondly, by making supervised time difficult by being obdurate about alternate supervisors and thirdly, in more recent times, not making X and Y available for regular telephone communication with him.

31. The circumstances in relation to the manner in which X and Y have spent face-to-face time with the father since the (omitted) Railway Station incident have been previously set out in this judgment.

32. It is the mother’s evidence that in relation to telephone communication, she has recently changed the hours that she works such that during the school week X and Y are collected from after school care and taken directly to the paternal grandmother’s home. Because X and Y are not permitted to take a mobile telephone to school, they have not had their mobile phone with them when they have gone to the maternal grandmother’s home and therefore have not been in a position to take calls from the father.

33. In the event that the mother is not permitted to relocate with X and Y to England, the father is seeking orders that X and Y spend unsupervised time with him each alternate weekend from 6.30pm Friday until 6.30pm Sunday, from 6:30 pm until 7:30 pm Wednesday in the alternate week, for half of school holidays and on special occasions.

34. As indicated previously in this judgment, the father would agree to that time being conditional upon him continuing to engage with his treating psychiatrist and treating psychologist and to him authorising them to immediately contact the mother in the event that he is not attending as directed, is not following their recommendations or if they have concerns that his mental health would place X and Y at risk in the event he was to spend unsupervised time with them.

35. It is the father’s evidence that whilst his mental health issues have impacted on his ability to spend as much time as he would have liked with X and Y, he believes that he has a close and loving relationship with them and that it is in their best interests that their relationship be afforded every opportunity to fully develop. It is the father’s further evidence that the relocation proposed by the mother, if allowed, would not only prevent the relationship between he, X and Y from developing fully, but that it would in fact cause the relationship to diminish almost to the point of non-existence.

Ms M

1. Ms M is the father’s treating psychologist. Ms M swore an affidavit on 1 August 2014 in support of the father.

2. While Ms M was not required for cross-examination, the assessment summary contained in her report is of relevance. In her assessment summary Ms M states as follows:

   I have been seeing Mr Blanchard in the capacity as his private psychologist since 1 July. Mr Blanchard has a long standing history of BiPolar Affective Disorder and is aware and acknowledges that his previous erratic compliance to psychiatric medication and treatment, the combination of illicit substances, the abuse of prescription drugs and the fact that Mr Blanchard was struggling to function adaptively from day to day has had a significant impact on his mental health and contributed to the breakdown of his marriage. His genetic predisposition to BiPolar Affective Disorder, the symptoms of depression he experienced since age 14, the sexual abuse he experienced at age 14 which was perhaps a contributing factor to the incest between him and his sister have all played major roles towards Mr Blanchard’s mental health difficulties.

   More recently Mr Blanchard also presents with grief/loss in the context of his family and the emotional and psychological difficulties related to his past experiences and the possibility of his children relocating to the United Kingdom. Mr Blanchard’s goals in terms of therapeutic gains is to gain better insight into his mental illness, address and come to terms with his past traumatic experiences and abuse and the breakdown of his marriage, address and resolve feelings of guilt and shame related to past behaviours, develop strategies to manage and cope with stressors and emotional situations more effectively, to continue to have a mental stable state to learn and develop strategies that will help him maintain a healthy relationship with his children and significant others in his life and to live an adaptive and healthy lifestyle. Mr Blanchard has been taking positive steps towards his treatment/therapy by being compliance with attending his appointments, being compliant with taking his psychiatric medication, by recognising and acknowledging the importance of ongoing psychiatric and psychological care and treatment by seeking psychological therapy and seeking to reengage with his previous psychiatrist Dr D. As such, his willingness to address and resolve past and current issues that have been barriers towards him living a healthy and adaptive life, his willingness to grow as a person and gain insight into his behaviour and mental illness, his family support and support from his partner Ms R, his commitment to treatment/therapy, his ability to maintain employment status and maintain a mental and physical state effectively in this sector, his ability to establish and maintain a healthy relationship with his partner Ms R serve as protective factors. It is my understanding that if Mr Blanchard continues on this path and also continues to engage in psychological and psychiatric treatment he will continue to make significant gains in all aspects of his life.

Dr T

1. Dr T undertook a psychiatric assessment of the father on 10 June 2014 which is contained in his assessment dated 16 June 2014 and is before the Court pursuant to his affidavit sworn 25 June 2014. Dr T also gave viva voce evidence at the final hearing.

2. As set out earlier in this judgment, in his report Dr T is extremely concerned about the father’s belief that he was now able to manage his psychiatric condition largely by himself with only the assistance of his general practitioner.

3. In his report, Dr T made the observation that he believed that this intervention was not likely to prevent further outbreaks of the father’s illness when he was under stress.

4. Under the heading ‘Opinion’ on page 7 of his report, Dr T sets out the following:

   1.Mr Blanchard suffers from Bipolar Illness complicated by drug and alcohol abuse. His early childhood experiences was marred by sexual abuse and he acknowledges that such abuse occurred by him of his younger sister.

   2.His work history has been variable. Whilst he did attempt to run a business during the marriage, he was not able to cope with this due to combination of drugs, alcohol which aggravated his psychiatric condition.

   3.Mr Blanchard has now re-partnered to Ms R who is supportive of him. She lords him for seeking alternative healthy ways to deal with his illness using meditation and holistic methods, and as such, she reports that she and her sons have never experienced or been exposed to any episodes of Bipolar Illness. She has witnessed him missing his two children of whom he speaks very fondly. Whilst that may be the case, Mr Blanchard suffers from a serious psychiatric illness and has required hospitalisation, and at one point was on a CTO.

   4.The least that is required is for Mr Blanchard to attend a Psychiatrist for regular reviews. Ms Hermann's is concerning in respect to Mr Blanchard’s ability to care for his children. The June 2013 episode at the railway station depicts his poor judgment and volatility. As such it would be my opinion that supervised contact continues with the children at this point pending further psychiatric treatment for a period of 6-12 months.

   5.Dr M [sic] has assessed the children and her report will throw further light on the relationship between the children and their father and mother.

5. In his viva voce evidence it was explained to Dr T that the father had now engaged with his former psychiatrist and was regularly seeing his psychologist Ms M and further that the father had indicated to the Court his willingness to consent to orders that mandated his attendance upon those treaters.

6. Dr T indicated that he felt that this showed the father was now acknowledging the issues that had given rise to his illness and his engagement with his psychiatrist and psychologist pointed to a possible move toward unsupervised time between the father, X and Y.

7. However, it is Dr T’s evidence that before a move to unsupervised time takes place, there should be an engagement by the father with his psychiatrist and psychologist for between 6 to 12 months followed by a report from those treaters confirming that, from a psychiatric perspective, the father was well.

Dr M

1. Dr M is a forensic psychologist who prepared a family report in relation to this matter dated 21 July 2014 which is before the court pursuant to her affidavit sworn 23 July 2014. Dr M also gave viva voce evidence at the final hearing of this matter.

2. In preparing her report, Dr M saw the parties, X and Y on the 14th of May 2014 and again on the 29th of May 2014. Like Dr T, Dr M was particularly concerned about the father’s then attitude towards engaging in professional treatment to assist him in the management of his mental health issues.

3. In paragraph 119 of her report, Dr M makes the following observation:

   119.Whilst the father presents really well, and whilst he may indeed be in remission temporarily from the symptoms of his bipolar disorder […] the fact is that the father suffers from serious psychiatric illness, and the impact of this illness has been severe and significant on himself, the children, and the mother; and his view that he can now manage and treat this illness on his own with self-help, self-thought, research, and attendance upon various GPs as and when he sees fit; in my view is profoundly insightless and extremely troubling, and particularly when you consider that he hasn’t been able to control or manage this illness throughout his life to date; and even with professional help.”

4. In paragraph 120 of her report Dr M then states:

   120.It is largely because of this attitude and the very real risk it creates of relapse, and particularly in times of difficulty and stress, that leads the writer to totally agree with Dr T, for the need for the father’s time with the children to remain supervised, at least until he chooses to engage in regular appropriate professional psychiatric, and additionally psychological treatment, for at least6 months, but with a commitment to continue this treatment beyond this, even if it means monthly, 6 weekly or two monthly monitoring, for at least another year.

5. In relation to the specific issue of relocation, Dr M considered both the pros and cons that the court may wish to consider.

6. In paragraphs 103-105 of her Report, when discussing the matters that support relocation Dr M stated as follows:

   103.For instance, there seems to be no doubt that there would be many benefits for the mother if her proposed relocation with the children to the UK was approved by the Court whereby she will be able to be with her new partner, and start a new life with him there, and she will have his general and emotional and financial support, both for herself individually and as a parent to the children, and she will be able to work less and be more available to the children as a result, and ultimately you would expect that she is likely to be happier and more fulfilled, and you would expect a flow-on effect to the children; and she believes that she and her new partner will finally be able to provide the children with the stability, support, consistency, routine and normal family life that they have been missing and allegedly craving to date.

   104.Furthermore, it seems that the mother has been effectively parenting the children on her own for some time, and if her reports about the life she and the children led with the father are true, which seems likely, then she’s had an extremely difficult time of it; and having a stable loving partner is likely to be really desirable and important to her in the circumstances.

   105.Whilst the relationship is indeed untested and there is no doubt that there is some risk that it might not work out; the mother strikes as a fairly logical and level-headedwoman, who is devoted to her children, and who would not make such a move unless she was very very sure of the relationship.

1. When considering the matters that do not support X and Y relocating, Dr M in paragraphs 108 and 109 of her report states the following:

   108.If we now focus on the cons, there is also no doubt that any relocation, no matter what the reason, and especially an overseas relocation, is certainly going to have an effect on the relationship between a child and the non-resident parent; and in this case, it will significantly reduce/limit the amount of actual time the father is able to have with the children in both the short and long-term future; and the lack of any regularity is likely to reduce the chance for the father to rebuild the relationships to the point whereby there is quality and closeness in the relationships; and such a move will also significantly limit the father’s ability to be involved in the children’s lives in general in the future, and specifically in terms of their day-to-day life, and their schooling and sporting and social activities as they grow and develop; and ultimately less ideal and effective forms of contact will need to be established around actual visits in order to maintain familiarity and contact.

   109.Whilst both children are at an age and stage, whereby from a developmental perspective, they are likely able to manage a long-distance relationship with their father, as they will certainly have no trouble remembering him, and there will likely be no significant problems with them re-connecting with him if they maintain contact, and particularly if the mother continues to encourage this; at the same time, as time goes on they are likely to become closer to, and more bonded to, and attached to their mother as they see her more, and less close to, and less bonded and attached to their father as they see less of him, and it might be awkward for them at first when they spend time with him, although they will likely still settle and manage; and of course it would be much easier for them if they’d had years of positive experiences and memories with their father, which because of the circumstances is really not the case here; but even if they were to spend significant time with him now before they relocated, it is unclear whether or not this would make any difference, and particularly if his time with them remains supervised and thus relatively short in duration and limited in frequency.

2. Under the heading recommendations, Dr M stated as follows:

   125.On the basis of the information available, regardless of whether the mother is allowed to relocate to the UK with the children or not, it is recommended that they remain residing primarily with her, and that they continue spending as much supervised time with their father as is possible, and is practical and appropriate, depending on whether they are here in Australia, or over in the UK.

   126.If the Court were to allow Ms Hermann to relocate to the UK withy the children, then it is recommended that between now and their departure from Australia, that the children remain residing primarily with her, and that they spend time with their father every Saturday from 10.00am until 5.00pm, with this time being supervised by the paternal family, as per the current arrangements.

   127.It should be noted that I’m recommending every Saturday instead of every second Saturday, so that the children can build up a stronger relationship with their father before they relocate, as this will help maintain their long-distance relationship too.

   128.It is also recommended that the children spend time with their father 4 times a year if possible, with the mother financing 2 of these times, and the father financing the other 2. It is recommended that the children spend at least a week with their father during these visits, but from 10.00am until 5.00pm each day, and not overnight, with this time again remaining supervised by one of the approved supervisors in the paternal family.

   129.It is also recommended that the mother facilitates the children calling or Skyping the father at least once a week.

   130.In the event the Court was not to allow Ms Hermann to relocate to the UK with the children, then it is recommended that the children remain residing primarily with their mother, and they spend time with their father every second Saturday from 10.00am until 5.00pm, with this time being fully supervised by any of the approved members of the paternal family.

   131.It is also recommended that the father communicates with the children once a week, say on a Wednesday night between 6 and 6.30pm, and that the mother does everything necessary to facilitate this phone contact.

   132.In the event that the father chooses to engage in regular treatment and monitoring by an appropriate psychiatrist, then once he has been engaging for 3 months, it is recommended that the children spend an additional day with their father, so that they spend every second weekend with him on both Saturday and Sunday from 10.00am until 5.00pm, but not overnight, again with this time being fully supervised by any of the approved members of the paternal family.

   133.Similarly, if the above were to occur, then it is recommended that a review of this matter is made 6 months later, and possibly by way of an updated family report, with a view to moving to partially supervised and then unsupervised time if the father remains committed to engaging in ongoing treatment, and on the basis that all is going well otherwise.

   134.It is also recommended that if the parties have not already done so, that they both attend an appropriate post-separation parenting program, in order to gain insight into the children’s needs in relation to them being a separated family.

   135.It is also recommended that the father’s treating psychiatrist, if he chooses to go down this path, is provided with a copy of this report, as well as Dr T’s report in order to understand what our concerns are, and with a view to aiding the treatment process.

3. In her viva voce evidence, Dr M indicated that whilst X and Y love their father, they haven’t really established a positive relationship with him as he has not been available to them emotionally or physically throughout much of their childhood as a result of his mental illness.

4. It is Dr M’s evidence that in the event X and Y were to relocate to England and they spent with the father in accordance with the proposals currently before the Court, X and Y would be able to maintain the relationship that they currently have with the father

5. It is Dr M’s evidence that if the Court were to allow relocation her preference would be that prior to their departure, X and Y be afforded the opportunity to build up their time with the father to the stage where they are spending unsupervised overnight time with him as this would enable a level of normalisation of their relationship with him. It is Dr M’s further evidence that this would enable X and Y to maximise the benefit of their time with the father when they spent time with him in Australia.

6. When asked to expand on how the father’s time with X and Y could progress to unsupervised overnight time, it is Dr M’s evidence that, conditional upon the father’s fully engaging in psychological treatment then over a period of six months, time between X, Y and the father could move from supervised to partially supervised and then to totally unsupervised overnight time.

7. Dr M was a questioned as to the likely impact on X and Y if they were to relocate to England, particularly in the context of them leaving not only the father but their extended families including their maternal grandmother with whom they are very close, the schools that they have attended all their lives and the friendship groups and communities in which both parties acknowledge the children to be very happy and settled.

8. It is Dr M’s evidence that while there is always an impact on a child when they cannot see a significant person in their life, that does not mean they will not manage that impact, nor does it mean that they will be prevented from having a quality relationship with that other person, just that it might be slightly different.

9. Dr M was of the view that there is no doubt that X and Y would miss significant people in their lives, particularly the maternal grandmother. However, it is Dr M’s evidence that X and Y’s ability to manage a move away from the maternal grandmother would be dependent on how often they are able to see her, how frequently they are able to communicate with her and how the mother and maternal grandmother ensure that the communication lines between X and Y and the maternal grandmother are kept open at all times.

10. In relation to the change of school, Dr M made the observation that some children manage moving to a different school in a different community really well and that other children don’t manage that change at all. It was Dr M’s observation that it depends very much on how the parents facilitate and support the children through that change.

11. In relation to X and Y, it is Dr M’s observation that they are quite well adjusted and resilient children and that they have a really positive relationship with their mother. In Dr M’s view X and Y will manage in adjusting to such a change.

12. It was put to Dr M by Counsel for the father that it would be preferable for any relocation to take place at a time that would enable X and Y to commence at the start of a new school year. In England this would be in early September 2015.

13. Whilst Dr M agreed that it is preferable for children who are changing schools to start at their new school at the beginning of the school year, in relation to X and Y she was of the view that it would be necessary to weigh the tensions of knowing they were going to relocate against the benefit of starting at the commencement of the new school year. It is Dr M’s evidence, she thought a waiting period of any longer than six months prior to relocation may well create tensions that would not be in X and Y’s  best interests.

14. At the conclusion of Dr M’s evidence I put the following to her,

    “Dr M, the ideal is children are afforded the opportunity to live in sufficient proximity to both parents so that they can have the kind of regular and sustained time with them to ensure an optimal relationship with both their parents?”

15. Dr M responded

    “ that’s the ideal, yes.”

16. I then put to Dr M:

    “When you are dealing with a relocation case, the first thing that goes out the window is that ideal. What I understand you to be saying in this particular matter is that given the somewhat restricted relationship they (X and Y) have with their father through circumstances where no one is really is at fault, if there is to be a relocation, then ideally you would like the children to be afforded an opportunity to improve on their relationship (with the father) before they go because that would better enhance their capacity to maintain something beyond the less than ideal relationship they have now?”

17. Dr M responded

    “yes”.

The Legal Approach

1. It is the mother’s application in this matter that she be permitted to relocate with the parties’ two children X and Y from Melbourne to the United Kingdom.

2. Relocation cases are often discussed as if they form a discrete subset of parenting cases that are to be determined differently to other parenting matters. The jurisprudence makes it clear however that this is not so and that a relocation matter is to be determined in the same way that all parenting matters are determined, that is by following the legislative framework prescribed under the Act to determine what order is in a child’s best interests.

3. In Taylor v Barker (2007) 37 Fam FLR 461 at 475, their Honours Bryant CJ and Finn J said:

   When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74;
   (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.

4. In Cowley & Mendoza [2010] FamCA 597, His Honour Murphy J succinctly stated as follows:

   A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.

   A relocation case falls to be determined like any other parenting case.[1]

   [1] At paragraph 31.

Best Interests of the Child

1. Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):

   1.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.

   2.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).

2. Section 60CA of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration

3. In this matter, both parties are in agreement that in the event the Court allows relocation and the mother, X and Y are in the United Kingdom, an order that the mother have sole parental responsibility for X and Y is appropriate.

4. In the event the Court does not allow the mother to relocate with X and Y, the father seeks an order that the parties have equal shared parental responsibility for X and Y whilst the mother seeks that even in this circumstance she have sole parental responsibility for them.

5. In the circumstances of the issues in this case, this issue will be considered after a proper consideration of the best interests of X and Y and a finding on the question of relocation.

Best Interests of the Child

1. To determine what is in the best interests of the child, the Court must consider the matters set out in Section 60CC(2) and

   
   

   Section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court must be considered and assessed in the context of each of the parties proposals. The Court should then make a decision as to which of the parties proposals, or such other arrangements as the Court determines given the Court is not bound by the parties’ proposals (see AMS v AIF 199 CLR 160, U & U 211 CLR 238), is in the children’s best interests.

Section 60CC(2)

1. Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests. They are as follows:

Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents

1. X and Y have a secure and loving relationship with the mother. She has been their primary carer for all of their lives and it is she who has provided them with security and stability.

2. X and Y love their father but because of his mental illness and the relatively limited time they have spent with him, they have a much less secure relationship with him.

3. In Heath v Hemming(No.2) [2011] FamCA 749, Justice Kent in paragraph 104 reviewed the authorities relating to parenting cases involving proposed relocation. In subsection (a) of paragraph 104
   His Honour considered Section 60CC(2)(a) and summarised the case law in relation to the benefit of the child having a meaningful relationship with both of the child’s parents as follows:

   (a)s60CC(2)(a) expresses the primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents. Similarly, s60CC(3)(b) requires the Court to consider the nature of the relationship of the child with, inter alia both parents and the objects and principles expressed in s60B also contain various references to the involvement of both parents in the life of their child.

   In Sigley & Evor (2011) 44 Fam LR 439 the Full Court recently considered what is required by the term “meaningful relationship” in s60CC(2)(a). The Full Court:

   (i)approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 per Brown J and McCall v Clark [2009] FamCAFC 92; (2009) FLC 93-405 per the Full Court);

   (ii)concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in
   s60CC(2)(a) is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (referred to by the Full Court as “the prospective approach”). However, the Full Court noted that s60CC(3)(b) requires a Court to explore existing relationships between a child and the child’s parents and other persons and thus, depending upon the factual circumstances, examination of the evidence as to the nature of the child’s relationships at the date of hearing (referred to by the Full Court as “the present relationship approach”) may also be relevant, for example where a significant relationship had not been established between a child and a parent at the date of trial;

   (iii)confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship. (Citing M v S [2006] FamCA 1408; (2007) FLC 93-313 per Dessau J at [38]-[39]; Godfrey v Sanders [2007] FamCA 102 per Kay J at [33]-[36] and Champness v Hanson [2009] FamCAFC 96; (2009) FLC 93-407 per the Full Court at [103]);

   (iv)concluded that “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a meaningful relationship;

   Clearly, if it is determined that a meaningful relationship with both parents is in the child’s best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child’s age and level of maturity (s60CC(3)(g)) may assume particular importance. This may also lead a Court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a “meaningful relationship” with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable.

1. It is the evidence of Dr M that if X and Y were permitted to relocate to England at this time they are developmentally at an age where they will be able to maintain a long distance relationship with the father.

2. It is Dr M’s further evidence that given the somewhat limited and tenuous relationship that X and Y currently have with their father, the proposed relocation would not diminish that existing relationship.

3. However, as has been set out in some detail in this judgement, it is Dr M’s evidence that if X and Y were afforded the opportunity to strengthen their relationship with their father prior to relocation, they would be able to maintain a much stronger and more meaningful relationship with the father after relocation.

4. Dr M has suggested a graduated increase in the time that X and Y spend with their father resulting in X and Y spending unsupervised overnight time with their father prior to relocation. It is Dr M’s evidence that this increase could take place over a six-month period subject to the father continuing to fully engage with his treating psychologist and treating psychiatrist and those treaters confirming their satisfaction as to the stability of the father’s mental health.

Section 60CC(2)(b) The need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

1. There is no risk of X and Y being exposed to any physical or psychological harm in the care of the mother.

2. The father’s history of mental illness, alcohol and illicit substance abuse must raise concerns in relation to him posing a risk of harm to the children.

3. The father’s unwillingness to properly engage or seek professional help to manage his psychiatric illness and his belief that he was able to do so through holistic means including meditation, research and the input from his treating general practitioner until very recent times has meant that there could be no confidence that his mental health issues were being properly managed or that he was not at risk of further outbreaks of his illness when under stress.

4. The incident at (omitted) Railway Station in June 2013 when Y was in the father’s unsupervised care highlights the concerns about the father’s ability to behave appropriately when he has X or Y in his care.

5. Whilst there is no doubt that the stranger acted inappropriately by tousling Y’s hair whilst he was at the urinal, the father’s response to this incident was excessive. From the father’s description of what occurred, there is no doubt that it was the father who was primarily responsible for the incident getting out of hand and there being a physical altercation between the father and the stranger which resulted in Y having to be taken care of by two strangers. Fortunately, those two strangers acted to protect Y.

6. The reports of Dr T and Dr M highlight their real concern that until such time as the father genuinely engages in ongoing professional assistance to manage his mental health issues, the risk to X and Y as a result of the father’s mental illness is such that they should not spend unsupervised time with him.

7. To his credit, the father has now engaged with his treating psychologist Ms M and is currently seeing her every second week. The report provided to the Court on behalf of the father by Ms M makes it very apparent that there are many issues in the father’s life that he needs to work through and that the father will be required to continue to engage in psychological and psychiatric treatment if he is to make significant gains in all aspects of his life.

8. Through his Counsel, the father indicated to the Court a willingness to abide by any orders made by this Court that require him to continue to engage with his treating psychiatrist and treating psychologist and to authorise his treating psychiatrist and treating psychologist to immediately contact the mother in the event that he ceases to engage with them as directed, take his medication as prescribed or if they form the view that his mental health is such that he would pose a risk to X and Y if he was to spend unsupervised time with them.

9. A further concern in relation to whether the father poses risk to X and Y is the positive drug screen he returned for benzodiazepines. The evidence from Dr T is that the father’s current medication would not produce a positive reading for benzodiazepines.

10. The father could offer no explanation as to how a positive reading for benzodiazepines was returned other than the possibility that he had taken some sleeping pills that had been prescribed to him over five years ago. It is the evidence of Dr T that this medication would not have returned a positive reading from benzodiazepines. In light of this evidence, the father could not explain the positive drug screen result.

11. The father’s evidence that he had been taking sleeping pills that were prescribed to him five years earlier raises questions as to whether the father is self-medicating and what the impact of that behaviour would be on his ongoing mental health.

Section 60CC(3)

1. Section 60CC(3) of the Act sets out the additional considerations that the Court must look at when determining what is in the child’s best interests. Each of the matters set out under that section will be considered in turn were applicable in this matter.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

1. It is the evidence of the mother that she, X and Y have discussed that she is hoping to marry Mr J and that they will move to England when that occurs. It is the evidence of the mother that X and Y are both excited about the prospect of moving to England.

2. Given X and Y’s age, it is questionable whether they fully understand the impact a permanent move to England would have on them, and, in particular, whether they fully comprehend the realities of leaving their school, their friends and their extended family including the maternal grandmother to whom they are very close.

Section 60CC(3)(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child).

1. In paragraph 79 of her family report Dr M describes X and Y’s relationships with the parties in these proceedings as follows:

   79.X and Y appear to have formed a strong positive bond and relationship with their mother, interacting with her in a way that suggests that they see her as a safe, living and caring figure in their lives. Whilst the children also appear to have a bond with their father, it was much less secure than the one they have with their mother, and this is not surprising; given the history and circumstances.

2. In paragraph 81 of her family report Dr M described X and Y’s interaction with their father in the following terms:

   81.Both X and Y were also really responsive to their father during this observation session, but it was also obvious that they were being a little bit careful about everything too, and just a little bit hesitant, and the impression the writer got was that they were just not 100% sure of what to expect from the father...

3. In paragraph 82 of her family report, Dr M made the following comments in relation to the observations she made of X and Y up with the mother:

   82.In contrast, the mother was fantastic with the children, and it was easy to see that she has a really strong, positive and very secure relationship with the children; and the children were much more talkative, bubbly, animated and confident around their mother, and this made them feel really secure and trusting of her and the world around them.

4. X and Y have a close and loving relationship with the extended maternal family, particularly the maternal grandmother. For the first 18 months of X’s life, the parties lived with the maternal grandmother and since the parties separated the maternal grandmother has provided considerable emotional, practical and financial support to the mother in relation to her care of X and Y.

5. As the father’s time with X and Y has been supervised by members of the extended paternal family since the parties separated in 2009, X and Y also have a close relationship with the extended paternal family.

6. It is the mother and Mr J’s evidence that X and Y have also formed a close relationship with Mr J. Whilst they have spent limited face to face time with Mr J, it is the mother and Mr J’s evidence that X and Y speak regularly with Mr J both by telephone and Skype and that they have formed a very positive relationship with him.

Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.

1. Because of the father’s mental health issues both during and after the marriage, most of the decisions that have been made in relation to X and Y’s care have been made by the mother.

2. Whilst the father makes complaint against the mother that she has not always included him in the decision-making process in relation to X and Y, the necessity for his time to be supervised and the periods during which he has not been actively involved in the children’s lives for various reasons has meant that the mother has no other option but to have been the primary decision maker for X and Y.

Section 60CC(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.

1. The mother has borne the brunt of financial responsibility for the care of X and Y.

2. Whilst the father is currently paying $200 per week by way of child support, it is in the evidence of the parties that this is a relatively recent phenomenon and that there has been periods of time when the father has not paid child support because he has not been working.

3. The Court notes the father’s evidence that even if relocation is allowed, he will continue to pay child support for X and Y.

Section 60CC(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

1. Given the somewhat limited relationship that X and Y currently have with the father due to his mental illness and his resulting inability to be emotionally or physically available to X and Y, it is the evidence of Dr M that if relocation were to occur at this time it would likely have minimal impact on the current relationship between the father, X and Y.

2. It is Dr M’s evidence that if the father is able to properly address his mental health issues such that he is able to “step up” and fulfil his parental role then there is the possibility that if X and Y were to remain in Australia there could be a measurable improvement in their relationship.

3. The difficulty with this proposition, however, is that the father has not been able to “step up” during the marriage or in the five years since the parties’ separation and it is therefore very difficult to have any confidence in his ability to step up into the future.

4. It is Dr M’s evidence that if the time that X and Y spend with the father prior to relocation could be built up such that X and Y were spending unsupervised overnight time with the father, then upon relocation they would be better able to maintain a stronger relationship with the father than they currently enjoy.

5. In relation to the extended maternal and paternal families, there is no doubt that if X and Y relocate to England, relocation would impact on their relationships with their extended family.

6. It is the evidence of Dr M that X and Y will be able to maintain their relationship with their extended family with the support of the mother and the willingness of the extended family to ensure that they are in regular communication with X and Y.

Section 60CC(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.

1. If the mother is permitted to relocate to England with X and Y, there are considerable practical difficulties associated with ensuring that X and Y spend time with the father and the extended family in Australia.

2. The distance between England and Australia, the long transatlantic flights and the expense of that travel are all practical difficulties that have to be addressed in order for X and Y to maintain relationships with those who remain in Australia.

3. It is the mother’s proposal that she will pay for herself, X and Y to travel to Australia twice a year in order for X and Y to spend time with the father, and that she and Mr J are committed to ensuring that this takes place.

4. It is also the mother’s evidence that in the event the father pays the costs travel costs, the mother, X and Y will make the trip to Australia on a third occasion each year.

5. International travel, particularly between Australia and Europe, is tiring and it will be very important that the parties ensure that such travel does not become so onerous that X and Y become reluctant to undertake the journey.

Section 60CC(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

1. There is no doubt that the mother has provided for the needs of X and Y, emotionally, intellectually and physically.

2. Because of the father’s mental health issues, he has not always been in a position to meet X and Y’s emotional and physical needs and this to some extent has been exacerbated by his reluctance until recently to engage the professional psychiatric assistance required to properly manage his mental health issues.

3. In her family report, Dr M indicates that one of the benefits of relocation would be the mother’s happiness and fulfilment in being able to embark on a new life with her now partner. This in turn will have a positive flow-on effect for X and Y.

4. In her viva voce evidence, the mother indicated that even if not allowed to relocate, she and Mr J would still marry. However, one wonders how a long distance marriage of many years could work and the long term impact on the mother of being forced to live on the other side of the world from the man that she loves and wants to spend the rest of her life with.

5. It is the evidence of Dr M that children cope much better with change, and in particular the kind of dramatic changes that a relocation to the other side of the world would involve when that change is properly supported by the children’s parents.

6. It is Dr M’s evidence that given the strength of the relationship that X and Y have with the mother, she will be able to provide X and Y with the level of support that will enable them to adjust to the change and help them to thrive in their new environment.

7. The father is understandably distraught at the prospect of X and Y living on the other side of the world from where he lives and at the moment he is struggling to support X and Y in the event that the relocation is permitted.

8. In the event relocation is allowed, the adjustment for X and Y will be made even easier if the father is able to put aside his distress and support the children in the move.

Section 60CC(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant

1. The father has a history of mental health issues, drug and alcohol abuse, depression and anxiety.

2. Whilst it is the father’s evidence that his mental health is now stable, until very recently the father had not actively engaged with qualified mental health professionals so that his mental health was properly managed.

3. It is also of concern that a recent supervised drug screen undertaken by the father produced a reading positive the benzodiazepine and the father is not able to explain to the Court how such a reading occurred. This raises many questions, including whether the father is again using illicit substances or taking drugs that are not prescribed to him.

Section 60CC(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.

1. Throughout the parties’ very difficult marriage and the father’s acute mental health issues, alcohol and drug abuse, the mother fulfilled her responsibilities as a parent.

2. Since separation, the mother has continued to admirably fulfil her responsibilities as a parent and has provided X and Y with a safe, secure and loving base which has resulted in them being happy and contented young children.

3. Because of the father’s mental illness, he has at times been unable to properly fulfil his responsibilities as a parent. This should not be seen in any way to indicate that he has not always loved X and Y and wanted the best for them.

Section 60CC(j) any family violence involving the child or a member of the child’s family.

1. There is no evidence that either party has been physically violent to the other or to the children.

2. The inappropriateness of the incident at (omitted) station when the father became involved in a physical altercation in the public toilet has been fully canvassed in this judgment.

Section 60CC(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. Until June 2013, the parties had been able to agree on arrangements for X and Y to spend regular time with the father.

2. Even after the incident at (omitted) Railway Station, the father did not institute legal proceedings in relation to the living arrangements for X and Y and only did so when the question of relocation was raised with him by the mother.

3. It is to be hoped that with resolution of the relocation issue, the parties will have no further need for recourse to the Courts.

Section 60CC(m) any other fact or circumstance that the Court thinks is relevant.

1. After a very difficult marriage marred by the father’s mental health and drug and alcohol issues, the parties separated in May 2009.

2. Subsequent to that separation, the mother bore the brunt of the responsibility for the care of the parties’ two young children X and Y and there is no issue that she has done an exemplary job in raising two happy and well-rounded young children.

3. In 2010 the mother rekindled a relationship with Mr J, a resident of the United Kingdom. Whilst this relationship has developed and unfolded over a long distance, the mother and Mr J have determined that they wish to marry and to make a life together with X and Y in the United Kingdom.

4. Mr J is an only child. His father has serious health issues.  Mr J assists in the care of his father and because of this is unable to move to Australia in order to marry the mother.

5. The father questions the durability of the mother and Mr J’s marriage in circumstances where they have never lived in the same country.

6. It is the mother’s evidence that she and Mr J both share the same faith being practising (religion omitted). They have communicated on a daily basis over the last five years and are both confident that they share the same life ideals and goals and will have a happy and fulfilled life with each other.

7. It is Dr M’s evidence that she challenged the mother in relation to her proposal to marry a man who has lived in another country for the majority of their courtship and with whom she has had relatively little face to face interaction. It is Dr M’s evidence that whilst the mother acknowledges that there is no guarantee that any relationship will work out, the mother believes that she and Mr J have the same values and feels confident that the relationship will succeed.

1. It is Dr M’s evidence that she is of the view that the mother has thought long and hard about her relationship with Mr J and she did not present “as someone who would go off willy-nilly and make these kind of decisions”.

2. Dr M also indicated that she was of the view that in making this decision the mother had seriously considered and was aware of the impact on X and Y of her the decision to marry Mr J and to relocate to the to the United Kingdom and that she carefully thought through all the issues associated with such a move before committing to the marriage.

3. It is Dr M’s evidence that she believes the mother will genuinely support the relationship between X, Y and the father and that she has shown a pattern of willingness to support that relationship over a long period of time.

4. It is therefore Dr M’s evidence that the mother will comply with the orders of this Court to ensure that X and Y continue to have a meaningful and loving relationship with the father.

Conclusion

1. This is the mother’s application to relocate with the parties’ young children X and Y to the United Kingdom in order to marry and commence a new life with her now partner Mr J in circumstances where it is not possible for Mr J to move to Australia in order for the marriage to take place.

2. The father is opposed to X and Y relocating as he is concerned that relocation will result in X and Y’s relationship with him deteriorating and that further, the mother will not do everything necessary to ensure that X and Y maintain a relationship with him.

3. The father admits that he suffered from depression and anxiety and that he has used illicit substances and alcohol from the age of 15, a pattern which continued during the parties’ marriage.

4. In 2004 the father suffered a major psychotic episode, was diagnosed with Bipolar Affective Disorder and was prescribed medications to manage his mental health.

5. After this diagnosis was made, the father continued self-medicating with alcohol and illicit substances and was not always compliant with his medication regime. He describes himself in this period as being “out of control” and openly acknowledges that at times he made life for the mother, X and Y extremely difficult.

6. In May 2009 the father suffered a further major psychotic episode as a result of which he was made an inpatient in the psychiatric unit at the (omitted) Hospital. During this period the paternal aunt disclosed to the mother that the father had been sexually inappropriate with her whilst he was a teenager and she was a child. As a result of this disclosure and the father’s ongoing mental health, alcohol and drug issues the mother separated from the father.

7. After the parties separated in 2009, the father spent fairly regular time with X and Y by agreement between the parties until June 2013 when, at the (omitted) Railway Station, the father got into an altercation whilst he had Y in his care.

8. All time spent between the father, X and Y after separation has been supervised by members of the extended paternal family.

9. It is the mother’s proposal if she is permitted to relocate to the

   
   

   United Kingdom, she will pay for herself, X and Y to return to Australia twice a year being three weeks in the United Kingdom long summer vacation and for two weeks in either of the United Kingdom spring or winter vacations to enable X and Y to spend time with the father.

10. It is the mother’s proposal that during these periods, X and Y continue to spend supervised time with the father, such time to be supervised by agreed members of the extended paternal family.

11. It is the mother’s evidence that in the event the father continues to fully engage with his treating psychiatrist and treating psychologist, that his treating psychiatrist and treating psychologist each provide a report confirming the father’s mental health is stable after six months of treatment and the father provides authority to each of his treating psychiatrist and treating psychologist to contact the mother in the event that the father is failing to attend upon them or failing take medication as recommended by them or they have concerns that the father’s mental health is such that X and Y would be at risk if they were to spend unsupervised time in his care, that she would genuinely consider the father’s time with X and Y becoming unsupervised.

12. The father is opposed to X and Y relocating to the

    
    

    United Kingdom and believes that if the proposed relocation were to occur, X and Y would no longer have a relationship with him.

13. Is the father’s proposal that in the event relocation is not allowed that his time with X and Y move to alternate weekends, half holidays and special occasions on an unsupervised basis on the condition that he continues to engage with his treating psychiatrist and psychologist and provides authority to his treating psychiatrist and treating psychologist to contact the mother in the event that the father is failing to attend upon them or failing take medication as recommended by them or they have concerns that the father’s mental health is such that X and Y would be at risk if they were to spend unsupervised time in his care.

14. In the event the mother is permitted to relocate to the United Kingdom, the father proposes that in addition to the two visits proposed by the mother for X and Y to come to Australia each year, they travel to Australia on a third occasion, the costs of the additional trip to be funded by him.

15. The report writer, Dr M, recognises that if the mother was able to relocate to the United Kingdom she would be happier and more fulfilled, which in turn would have a flow-on effect for X and Y.

16. It is Dr M’s evidence that the downside of relocation would be its impact on the relationship between X, Y and the father. Though the father’s illness has meant that the relationship between him, X and Y is tenuous, Dr M indicates that the relocation could negatively impact on the potential for the relationship that X and Y have with their father to be improved as it might otherwise be if X and Y were to remain in Australia.

17. Dr M acknowledges, however, that given the father’s illness and resulting lack of emotional availability to X and Y, it is not possible to predict that even if X and Y did not relocate that their relationship with the father would improve into the future.

18. It is Dr M’s evidence that if the Court allows relocation, it would be in X and Y’s best interests that, subject to the father continuing to engage with his treating psychiatrist and treating psychologist, their relationship with the father in the period between now and relocation be built up so that by the time of relocation X and Y are spending unsupervised overnight time with the father.  It is Dr M’s evidence that this build up could be achieved over a 6 month period.

19. The benefit of X and Y’s time with the father progressing to unsupervised overnight time before they relocate to England would be that when X and Y return to Australia to spend time with the father they will be able to spend overnight time with him. This would enhance their ability to maintain a meaningful relationship with the father.

20. The tension between a parent’s right to pursue their own life post-separation and the entitlement of a child to have a meaningful relationship with both his or her parents lies at the very heart of the difficulty the Court faces when determining an application by a parent to relocate in order to move on with their lives in pursuit of future happiness.

21. That tension becomes even more pronounced the greater the distance of the proposed relocation because of the practical difficulties of putting in place arrangements that enable children to spend regular time with both their parents and to enable both parents to have an active involvement in the children’s day to day lives.

22. Ultimately, however, the living arrangements for, in this case, X and Y must be determined in accordance with the provisions of the legislation and on the basis of what is in their best interests.

23. Because of the circumstances of their parenting since birth, it is to the mother that X and Y look for their security and happiness.

24. After a courtship of almost 5 years, the mother and Mr J have now made the decision that they wish to marry and pursue a life together and to provide a stable and loving home to X and Y. Because of Mr J’s responsibilities in England, they are only able to do this if the mother is able to relocate to England with X and Y.

25. Having considered all the relevant matters in this case, I am of the view that it is in X and Y’s best interests that the mother be permitted to relocate to England with them.

26. I am of the view that X and Y will benefit from the happiness and stability their mother will enjoy in being able to marry Mr J and pursue a life with him in England. I am also satisfied that X and Y will be able to maintain a meaningful relationship with the father upon relocation and that the mother understands the importance to X and Y of their relationship with the father and will do everything necessary to ensure that relationship is supported.

27. Given the evidence of Dr M in relation to X and Y being afforded an opportunity to improve their relationship with the father such that, if possible after a six month period their time with him builds up to unsupervised overnight time, orders will be made permitting the mother to relocate to England with X and Y as from 1 April 2015.

28. For a period of six months from the making of these orders until the relocation, orders will be put in place that, subject to the father’s continued engagement with his treating psychologist and treating psychiatrist and their provision of a report confirming the stability of the father’s mental health, enable a graduated increase of time between X, Y and the father such that by the time relocation occurs they will have commenced spending unsupervised overnight time with him.

29. As a determination has been made that the Court will allow relocation, an order will be made for the mother to have sole parental responsibility for X and Y as is agreed by both parties.

30. In these circumstances it is not necessary for the Court to consider whether orders for equal time or significant and substantial time should be made as is required under s65DAA of the Act.

31. However, even if an order was to be made for equal shared parental responsibility, the practicality of an order being made in those terms is not practicable  given the decision in relation to the relocation.

32. Upon relocation, orders will be made for the mother, X and Y to return to Australia on two occasions each year at the mother’s expense, for the mother, X and Y to return on a third occasion each year at the father’s expense, for there to be twice weekly Skype communication between X, Y and the father as well as additional telephone communication. The father will also be able to spend time with X and Y in the event that he travels to the United Kingdom.

33. The time between X, Y and the father after relocation will continue to be supervised by the members of the extended paternal family in the event that the father has not commenced spending unsupervised time with X and Y by the time they relocate to the United Kingdom.

34. In the event that X and Y have commenced spending unsupervised overnight time with the father before the relocation, then their time with him in Australia will gradually increase with each visit such that by 2017 they will be spending block periods of overnight time with the father when they visit him in Australia.

35. There is no doubt that this decision will be very distressing to the father. It can only be hoped that he will do everything within his power to minimise X and Y’s exposure to his distress and that he will put their interests first in supporting their adjustment to their new life in the United Kingdom.

36. It will also be equally important that the mother continues to support X and Y’s relationship with the father as she has done to date so that they can continue to have the opportunity to have an ongoing meaningful relationship with the father.

I certify that the preceding two hundred and eighty (280) paragraphs are a true copy of the reasons for judgment of Judge Bender

Associate: 

Date:  12 September 2014