Burns and Melville

[2018] FamCA 299

FAMILY COURT OF AUSTRALIA

BURNS & MELVILLE [2018] FamCA 299

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – where the father seeks the child to relocate to live with him in the United Kingdom – where the mother opposes the relocation – where the child is almost 14 years old – where the mother is the child’s primary care provider– where the mother emigrated to Australia in 2012 with the child, her husband and their daughter with the consent of the father – where the mother commenced Hague proceedings in the United Kingdom when the father held the child over in late 2015 – where it was then ordered that the child return to Australia – where the father’s application is refused.

Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160
Banks v Banks (2015) FLC 93-637
McCall v Clark (2009) FLC 93-405

APPLICANT: Mr Burns

RESPONDENT: Ms Melville

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 11190 of 2015

DATE DELIVERED: 8 May 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 9 and 10 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lyons

SOLICITOR FOR THE APPLICANT: Nicholes Family Law

RESPONDENT: In person on her own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Downes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All existing parenting orders are discharged.

2. The child, B (the child), born … 2004, live with the mother.

3. The parties have equal shared parental responsibility in relation to the issues of the child’s name and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the father and all other major long term issues (as that expression is defined in the Family Law Act 1975 (Cth)), other than the issues of the child’s health and education.

4. In the exercise of their equal shared parental responsibility for the child, each  parent shall:

   (a)inform the other parent in writing by email of any decision that needs to be made about a particular issue; and

   (b)within fourteen (14) days of receiving information about a decision that needs to be made, respond in writing (sent by email) to the other parent outlining his or her view about the decision; and

   (c)in the event that the decision is an urgent decision or an emergency, the parent will send a text message to the other parent informing them that there is an emergent situation and then telephone the other parent to reach a decision;  and

   (d)use their best endeavours to consider the view of the other parent in reaching a decision.

5. In the event that the parents are unable to reach an agreement on a decision to be made in the exercise of their equal shared parental responsibility for the child, they shall use the dispute resolution procedure prescribed in this Order.

6. The mother have sole parental responsibility in respect of decisions relating to the child’s education and health save that the mother shall, prior to making a decision about any such issue (unless the decision is required to be made in emergency circumstances):

   (a)inform the father in writing of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and

   (b)allow the father no less than fourteen (14) days after the provision by her of the information referred to above to respond to the same in writing; and

   (c)consider the father’s response, if any, when coming to her decision about any such issue; and

   (d)inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.

7. The father shall have sole responsibility for making decisions about the child’s day to day care, welfare and development whilst she is in his care.

8. The mother shall have sole responsibility for making decisions about the child’s day to day care, welfare and development whilst she is in her care.

9. The child shall spend time with and communicate with the father at all times as agreed between her parents in writing and, failing agreement, as follows:

   (a)for two (2) weeks during the Queensland June/July school holidays in each year, with such time to occur in the United Kingdom;  and

   (b)during the December/January school holidays in each year, with such time to occur in the United Kingdom and such that the child spends Christmas with the mother in even numbered years and spends Christmas with the father in odd numbered years and, to give effect to this Order:

   (i)when the child’s time with the father occurs in odd numbered years: the child will depart Australia for the United Kingdom on the first Saturday after school ends and shall spend time with the father for a period of four (4) weeks and then depart the United Kingdom to return to Australia; and

   (ii)when the child’s time with the father occurs in even numbered years: the child will depart Australia for the United Kingdom on 27 December and shall spend time with the father until the Saturday prior to school recommencing for the first term (of the next year), when she shall depart the United Kingdom to return to Australia.

   (c)for such other periods of time as the child may reasonably request to spend time with the father in the United Kingdom; and

   (d)on any occasion that the father travels to Australia: for up to two (2) weeks, with the father to notify the mother of his intended travel dates to spend time with the child not less than 60 days prior to his arrival in Australia and with the father to ensure that the child continues to attend school or extra-curricular activities if the time takes place during school term.

10. The travel costs of the child shall be paid by the parents equally, save for any costs of the father travelling to Australia to spend time with the child (for which the father shall be solely responsible) and to give effect to this Order:

    (a)the father is to pay for the child’s return flights between Australia and the United Kingdom for the time in June/July 2018 and each even numbered year thereafter and the mother is to pay for the child’s return flights between Australia and the United Kingdom for the time during the December/January period in 2018 and each even numbered year thereafter; and

    (b)the mother is to pay for the child’s return flights between Australia and the United Kingdom in June/July 2019 and each odd numbered year thereafter and the father is to pay for the child’s return flights between Australia and the United Kingdom over the December/January period in 2019 and each odd numbered year thereafter; and

    (c)within seven (7) days of booking and/or paying for flights, the parents shall notify each other in writing of the flight details. 

11. The child shall be at liberty to communicate by Skype with the father and members of the paternal family at any reasonable time, but at least on each Sunday evening between 6.00 pm and 7.00 pm (AEST) using her own Skype account and the m other shall assist the child, if necessary, in setting up that account.

12. The child be at liberty to communicate freely with her parents and/or members of her maternal and paternal family by telephone, Skype, text or other electronic means (including social media).

13. For the purposes of communication, the parent whose care the child is in will respect the privacy of the child during such communication and not unreasonably interfere with such communication.

14. The parents will communicate with each other using their own private email or Skype messages that the child is not able to access or read and the parents are prohibited from communicating with each other through or via the child.

15. During the time the child is with either parent, the parents shall:

    (a)actively promote the child’s relationship with the other parent;  and

    (b)respect the privacy of the other parent and not question the child unduly about the personal life of the other parent;  and

    (c)speak of the other parent and their family members respectfully;  and

    (d)not denigrate or insult the other parent in the presence or hearing of the child and use his or her best endeavours to ensure that others do not denigrate or insult the other parent in the presence or hearing of the child;  and

    (e)not involve the child in parenting issues and use his or her best endeavours to ensure that others do not involve the child in parenting issues;  and

    (f)not allow the child to read, copy or view any of the Court documents or documents prepared as part of these proceedings or the Hague Convention proceedings.

16. The parents shall:

    (a)keep each other informed to all times as to their residential addresses, and residential and mobile telephone numbers, email and Skype addresses and of any changes to same within a period of no more than two (2) days after any change; and

    (b)keep each other informed as to the names and addresses of any treating medical practitioners, psychologists, counsellors, healthcare practitioners and other such medical professionals from whom the child obtains treatment and, by this Order, any such practitioners are hereby authorised to provide to each parent any information that such practitioners may lawfully provide about the child; and

    (c)inform each other as soon as reasonably practicable of any injury or illness affecting the child that requires any significant medical treatment or hospital admission and, by this Order, any treating medical practitioner or hospital are hereby authorised to provide to each parent any information that may lawfully be provided about the child.

17. Each parent is at liberty to liaise directly with the child’s schools, sporting and extra-curricular bodies to receive notices, information, newsletters, reports, photographs and any other such information about the child and her progress.

18. Any educational institutions or extra-curricular third parties (such as music teachers, sporting coaches and the like) upon whom the child attends are hereby authorised to provide the parents with any information about the child’s educational progress and school related or extra-curricular activities and supply the parents with copies of any school progress reports, photographs, certificates and awards obtained by the child, with any out of pocket expense connected to any such request to be the responsibility of the parent who made such request.

19. The parents will do all acts and things necessary, including signing all necessary documents, to enable a passport to issue or be renewed in the child’s name, with the mother and father to share equally in the costs associated with the passport application or renewal.

20. In the event the mother and/or the father refuse to sign the passport applications or renewal, then a Registrar of this Honourable Court be responsible for signing the child’s passport applications or renewals on behalf of the mother or father (as the case may be).

21. The child’s passport will be held by the mother and the mother is to release the passport to the child to allow her to travel to spend time with the father as provided for in this Order.

22. Each parent notify the other parent of any international travel with the child in addition to that prescribed by the earlier terms of this Order and each parent is hereby permitted to cause the child to undertake such travel, provided a parent is present and also, provided that the parent seeking to travel provides to the other parent, no less than (30) days before the date of the departure:

    (a)an itinerary setting out the travel arrangements for the parent and the child, to include details of the intended destination, departure and return date;  and

    (b)a copy of the tickets or other evidence of pre-paid return tickets and return dates; and

    (c)telephone or Skype contact details for the child for the period that the child will be overseas.

23. The parents will jointly reach agreements in relation to those major long term issues for the child in respect of which they have equal shared parental responsibility and, in the event they are unable to do so:

    (a)either the mother or father shall compile a list of three (3) Family Dispute Resolution Practitioners that can facilitate dispute resolution by telephone and convey this list to the other parent within seven (7) days of any dispute between the mother and the father;  and

    (b)the other parent shall choose a Family Dispute Resolution Practitioner from this list and convey this choice to the mother or the father (as the case may be) within seven (7) days of receiving this list; and

    (c)either the mother or the father shall commence the Family Dispute Resolution and the parents shall make a genuine effort to resolve the dispute;  and

    (d)the mother and father shall equally contribute to the cost of Family Dispute Resolution.

24. The Independent Children’s Lawyer is discharged.

25. All outstanding applications are otherwise dismissed.

26. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

IT IS NOTED THAT

(A)The parents, noting the age of the child, will respect the wishes of the child if she expresses a view to spend more, less or different time with the father during her school holiday periods.

(B)The parents note that, save for the child’s return to Australia at the start of each school year, in order to obtain the most cost effective flights for the child, they can book flights that fall within a 48 hour period of the changeover day and notify the other parent of the details of the booked flight.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burns & Melville has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11190 of 2015

Mr Burns

Applicant

And

Ms Melville

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Mr Burns and Ms Melville have one child together: B, who was born in the United Kingdom in 2004. She will be 14 years of age this June. She has mostly lived with and been cared for by her mother and she currently lives with her mother, her step-father and seven year old half-sister C. Her mother seeks that this parenting arrangement continue, whilst her father seeks that she return to the UK to live with him.

2. Whilst they were initially in dispute about many other aspects of the orders which will be made, the child’s parents ultimately resolved such dispute. Unfortunately, they were unable to resolve their dispute about the child’s future living arrangements and it is about this (and the issue of the allocation of parental responsibility) that their trial proceeded.

3. It is clear that the child is much loved by her parents, her paternal grandmother, her step-father and her half-sister.  It is also clear that she loves all of these people very much. I think it highly likely that she does not wish to hurt either of her parents and this is why she “opted out” and chose not to express any particular view about her preferred future living arrangements during her most recent interaction with Mr E, the author of the two family reports prepared to assist in this matter. I accept his evidence to the effect that, when she spoke with him, the child avoided using words she thought might convey a particular view about her future living arrangements and that she likely did so because she did not want to upset either of her parents.

4. I accept that, before the child spoke with Mr E most recently, her mother told her that the decision about her future living arrangements was now up to the Court, that the Court placed a great deal of weight upon the Family Reports and that she should think carefully about what it was that she wanted to say to Mr E. I also accept that the mother told the child that, if she wanted to return to the UK, she would send her back to that country; that now was the time for her to express her view and, as the Court would take her views into account, she should say what she wanted to happen about her future living arrangements.

5. Despite all of this encouragement, the child interacted with Mr E on 6 February 2018 in the way that he reports she did.

Relevant Circumstances

1. The Applicant father currently works in the public service. He and the mother (who was also a public servant) were both born in the United Kingdom. They commenced cohabitation in 2002. At that time they were both members of the public service. They married in the United Kingdom in 2002. They separated finally in the United Kingdom on January 2007.

2. Given the time that has passed and that it is accepted that the mother has been the child’s primary carer, it is, I think, unnecessary to resolve the parental dispute about the degree to which the father cared for the child in the period from her birth until the parental separation, when the child was about 2½ years of age.

3. When her parents separated, the child remained living with her mother. Whatever the frequency and duration of it, I accept the father spent time with the child in the period from January 2007 until May 2007.  He was transferred to Country F for about four months in May 2007. After he returned to the United Kingdom (in about October 2007), he spent time with the child.  The extent, frequency and duration of this time is also in dispute;[1] again, resolution of the dispute about this issue does not seem to me to assist the determination of those parenting orders which, in May 2018, are in the child’s best interests.

   [1]The father says he and his daughter spent time together on a monthly basis, whereas the mother suggests the time was not as frequent as this during the period from the father’s return to the United Kingdom and September 2012.

4. It is, I think, sufficient simply to conclude that the child and her father spent some time together, perhaps on a fairly regular basis, until September 2012.  I also accept that, in the period from 2007 to 2012, the child spent time during holidays with her father: namely, three weeks during the summer school holidays and 10 days after Christmas on an occasion.  This time occurred without the requirement for a Court order to mandate it.

5. The mother remarried in 2009. The mother and her husband (Mr Melville) have one child together: C, who was born in 2010.  At that time, the child was about six years of age. It could not be thought other than that the relationship between the girls is a strong and established one and that they regard themselves as sisters.

6. The mother, Mr Melville, the child and C lived together in the United Kingdom until 2011. They then moved to live in City G, where they remained until about September/October 2012. The father was transferred to Country H in July 2012 for three months. 

7. In about August 2012, the mother told the father that she and Mr Melville wanted to relocate to Australia with the child and C. Whilst the father initially opposed such a move and the parties were engaged in litigation about it, they ultimately reached agreement and, on about 6 October 2012, they consented to parenting orders which permitted the child to move to live in Australia with her mother.

1. Consequently, the mother, Mr Melville, the child and C travelled to Australia on 28 November 2012 with the intention of living permanently in this country. The mother, Mr Melville and C have continued to live in Australia since November 2012.

2. After she arrived in Australia in November 2012, the child communicated with her father via Skype. On his account, this happened every weekend. Further, she spent time with him in Australia during the Christmas 2013 school holiday period, as he had travelled to this country to spend time with her. They went on a five-week driving and camping holiday.

3. After the father returned to the United Kingdom following this holiday, he had Skype contact with the child. He says that, whilst he called every Sunday, his calls were not answered on occasion.  I am not persuaded that anything of significance turns on this.

4. In June 2014, the mother and father spoke about the child returning to the United Kingdom to stay with her father for about six months. I accept that the mother was the instigator of this idea and that she proposed it, at least in part, because the family[2] was then still waiting to hear if they were going to be able to remain permanently in Australia. I also accept that the mother suggested that, given the child was not then in high school, the circumstances provided a good opportunity for the child and her father to spend significant time together. I accept that she thought, in essence, that it would enable them to strengthen their relationship.

   [2]          The mother, Mr Melville, the child and C.

5. I accept that the child’s parents agreed that she would travel to the UK to live with her father from November 2014 and that she would be back in Australia by about 25 June 2015. I accept they agreed she would attend high school in this country.

6. Pursuant to the parental agreement, the child travelled to the United Kingdom on 28 November 2014 to live with her father.  In breach of the parental agreement, she did not return to Australia in June 2015. She was only returned to Australia after the mother commenced Hague Convention proceedings in the United Kingdom; it took two orders to have her return to this country.

7. There can be no doubt that the father’s decision to retain the child in the United Kingdom in breach of his agreement with the mother shattered whatever trust she previously had in him. Her perspective of him as a parent has certainly been detrimentally affected as a result of this decision, and I consider it understandable that this is the case. Any assessment of the mother’s current difficulty in nominating much positive about the father as parent must, of course, take into account the manner in which he breached the trust she reposed in him to return the child to Australia as they had agreed. It must also take into account the difficulty that was encountered in having the child returned to Australia and the fact that the mother needed to travel to the UK (at significant expense) in order to accompany the child on her return to this country.

8. I have no hesitation in concluding that the impact of what I regard as the father’s unjustified retention of the child in the UK, contrary to the parental agreement pursuant to which she travelled to that country, has continued to reverberate in the mother’s thinking about him and his interactions with the child; it has influenced the manner in which she has approached issues such as her oversight of the child’s communications with him since her return to Australia in November 2015.

9. Whilst the father sought to justify his decision to depart from the parental agreement that the child return to Australia in June 2015 on the basis that the child had told him insistently that she wanted to remain in the UK, it seems to me to be clearly established that he was content to abdicate his responsibility to abide by the terms of the parental agreement in furtherance of his support for the child remaining with him in the UK.

10. It is clear the mother has concluded that the father and/or members of the extended paternal family either positively encouraged the child not to board the plane on which she was originally to return to Australia or failed to ensure that she was adequately prepared to undertake that Court-ordered journey. It was this that necessitated the mother travelling to the UK and a further appearance before the Court there and the making of a further Order for the child’s return to Australia. Again, the manner in which I consider the father failed to manage the child’s necessary return to Australia has clearly had a significant impact on the way in which the mother regards him.

11. A further matter which has also contributed to the mother’s view of the father’s approach to co-parenting the child is his decision not to tell her that the child was going to travel to Country J for a holiday with a maternal cousin and maternal aunt during the time she was living with him in the UK. That is, it seems that both the father and the mother’s sister were content to let the child’s mother think that the child was holidaying in the UK with her cousin and aunt when, in fact, she left the UK and spent time in Country J with them. The father’s answers during  his cross-examination about this event (which were to the effect that he saw no reason for the child to miss out on the holiday opportunity; that it was acceptable for him to make the decision about her travel outside of the UK and not to inform the mother of the same and that he would act in the future as he had in the past if confronted with the same occurrence) are unlikely to have reassured the mother that he has realised the importance of both parents letting the other know where their daughter is so that both can be assured of her safety and so that both can check about her well-being if something unforeseen occurs at her location.

12. I found his approach to this issue and his answers in defence of that approach to demonstrate an absence of any appreciation of the importance of open communication between parents about matters relating to their children.

13. Against this background (that is, of the father’s breach of the parental agreement, his inability to ensure that the child returned to Australia as originally ordered and his approach to the child travelling to Country J), I am not persuaded that any of the asserted failures by the mother to act to support the child in her relationship with her father are indicative of an underlying belief that the child should not continue to have a meaningful relationship with him. I am buttressed in this conclusion by the fact that, when he spoke with Mr E in March 2016, the father said that, from his perspective, the parental relationship was a positive and respectful one before November 2014: the mother had kept him informed about the child’s schooling and he did not have any concerns about her parenting.

14. I accept that, particularly initially after the child’s return to Australia in November 2015, the mother was worried that the father would attempt to remove the child from Australia and return her to the UK and, later, that he would attempt to influence and persuade her to return to live with him there.

15. Happily for the child, whatever difficulties had occurred in her Skype communications with her father were resolved by interim consent Orders made on 18 August 2016. I conclude as much because the father said their communications have mostly proceeded unimpeded since then, although conversation is difficult when the child goes away with her friends during school holidays. It seems most likely that this is simply a consequence of the child’s age and likely focus on her friends, rather than being of the mother’s doing.

16. The child had not spent any face-to-face time with her father following her return to Australia in December 2015 until she travelled to the United Kingdom to spend time with him between 23 December 2017 and 17 January 2018. As already noted, they had communicated via Skype during this time.

17. The child’s trip to the UK was eventually agreed to between her parents. Unfortunately, this agreement was not reached until after the father sought orders for such time and the matter came before Justice Carew. The agreed terms of the orders which will be made to finalise the current proceedings should ensure that there is no future necessity for the parties to return to Court about the child’s time with each of them during her school holiday (and other) periods.

Brief overview of the consequences for the child of each of her parent’s proposals

1. The father said that, if she moves to live with him in the UK, the child will return to live in the home he owns and will return to the school she attended when she lived with him there previously. He said he will be available to care for her on a day-to-day basis (because he will no longer be deployed by the army as he is in what I will describe as a “transition to leave” phase and will cease his engagement in the army in about 18 months’ time). He said he will not have to travel away for work but, if he is unable to care for the child, her paternal grandmother who lives in close proximity will do so. I accept his evidence in these respects.

2. However, I also note that the father was posted to Country F between April 2017 and December 2017; the mother said he only returned to the UK the day before the child arrived there to spend her holiday time with him. He did not tell the mother about this posting and he did not mention it to Mr E when interviewed by him in early February 2018. During his cross-examination, the father accepted he had not told the mother about this posting and also accepted that his decision to withhold this information was because he was concerned about the possible ramifications for his child support assessment of such knowledge. He also explained that he took the posting to earn funds to pay for this litigation.

3. The mother said that, if the child remains living with her in Australia, she will either continue to attend her current school (where she has a particularly close friend whom she regards as her sister) or will move to a school which is geographically closer to their current residence. Otherwise, the child will continue in her day-to-day activities and interactions as she has previously.

Principles

1. The statutory framework does not deal differently or specifically with cases involving a proposed relocation of a child. Therefore, the well-known statutory provisions provide that, having had regard to the Objects of Part VII of the Family Law Act1975 (Cth)(“the Act”), the principles which underpin those Objects[3] and, subject to s 61DA, s 65DAB[4] and Division 6 of Part VII of the Act, such parenting order as thought proper may be made.[5] 

   [3] s 60B of the Act.

   [4]          Parenting plans.

   [5] s 65D of the Act.

2. In arriving at the parenting order I think is proper in the circumstances of this case, I have had regard to the Objects of Part VII of the Act and the principles which underpin the same.

3. In deciding whether to make a parenting order, I must regard the child’s best interests as the paramount consideration.[6] Such interests should not be viewed in the abstract or separate from the circumstances of the child’s parents.[7] Further, the statutory exhortation to regard the child’s best interests as the paramount consideration does not mean that the legitimate desires and interests of her parents are to be completely ignored – rather, where legitimate parental interests conflict with the child’s best interests, the former must give way.[8] That is, the determination of those orders which are in the child’s best interests may well mean that one parent’s “choice” is effectively outweighed in the balance; from a parent’s perspective, the outcome may not be optimal.

   [6] s 60CA and s 65AA of the Act.

   [7]See, for example: AMS v AIF (1999) 199 CLR 160 at 207-208.

   [8]Ibid.

4. Whilst the matters to be considered in determining those parenting orders which are in the child’s best interests are as prescribed by s 60CC of the Act, it is unnecessary for each consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion.[9] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in the child’s best interests. I have considered all of the relevant considerations in arising at my conclusion about those orders which are in the child’s best interests.

   [9]          Banks v Banks (2015) FLC 93-637.

The benefit to the child of having a meaningful relationship with both of her parents

1. The term ‘meaningful’ is not synonymous with the term ‘optimal’. The Act does not define the term ‘meaningful relationship’, nor does it prescribe criteria on which the Court should rely to assess how a child’s parents have, or should have, a meaningful involvement in that child’s life. In McCall v Clark,[10] the Full Court concluded that the preferred interpretation of ‘benefit to a child of a meaningful relationship’ is the prospective approach.  That is, the Court should consider and weigh the evidence at trial and determine how, if it is in a child’s best interests, orders can be framed to ensure that the child has a meaningful relationship with both of that child’s parents. 

   [10] (2009) FLC 93-405.

2. The child’s parents both agree that she will benefit by having a meaningful relationship with each of her parents.

The mother and Mr Melville: the relevant s 60CC considerations

1. The mother works Tuesday and Wednesday evenings and Saturday and Sunday mornings. Sensibly, she was not really challenged about her capacity – and that of her husband – to care for the child (and her sister C).

2. Mr Melville first met the child in December 2008. By no later than about mid-2009, he spent most nights at the mother’s home with the mother and the child. At that time the child was about five years of age. I accept Mr E’s assessment of Mr Melville as a reasonable person who is considered and insightful about the issues relating to the child. I note Mr E reported that he did not seek to criticise the father, but did fault the manner in which he had commenced proceedings seeking orders for the child to live with him in the United Kingdom. I accept Mr E’s assessment of Mr Melville and consider that, given the circumstances as I have outlined them earlier, his criticism is understandable.

3. When she spoke to Mr E in March 2016, the mother said that her proposal held no disadvantages for the child: they had moved to Australia for better education, better climate and a better standard of living for the child. Her biggest concern was that, if the child lived with her father in the United Kingdom, he would cut them off and there would be no relationship between them.  These concerns were based on her view that the father had influenced the child after she travelled to spend holiday time with him; that he and the paternal grandmother had discussed the Court case and called her a “bitch” in front of the child.

4. When she spoke to Mr E for the second time on 6 February 2018, the mother was frustrated by the drawn-out nature of the proceedings. He thought she displayed quite good insight into the child’s needs and experiences. She had supported the child in remaining at her previous school (because she wanted to) despite the fact that their change of residence meant more travel for her, albeit on the same school bus as she had previously caught.

5. The mother accepted that the child loves her father and enjoys travelling to the UK to see him and other members of her family who live there. However, she also clearly distinguished between a holiday trip and living in the UK permanently. She said she thought it best for the child to remain living in Australia because she is settled here with her school, her friends and her little sister. Her view was that the father did not understand that the child probably said one thing to him and one thing to her. She also said she had heard the father on Skype telling the child that her aunt and her cousin wanted her to come to the United Kingdom and pressuring her by saying things like “why don’t you come back; we want you to; don’t you want to live with us?”

6. When Mr E asked the mother if she thought it was fair for the child that she listened into the child’s Skype communication with her father, she said she wished she did not have to, but she did not trust the father not to pressure the child to come to live with him. 

7. I note that, during her cross-examination, the mother said that, once these proceedings are finalised, she had no future issue with whomever the child wanted to communicate. I accept her evidence in this respect.

8. I accept Mr Melville’s evidence to the effect that the child has told him on several occasions that she does not want to go back to the UK to finish school and go to college because she wants to complete these in Australia, then go travelling with her friend around Australia and, perhaps, to Europe (since her friend has not travelled there).

9. I also accept that, from Mr Melville’s perspective the child is happy at school and has a great friendship. I accept that he assesses that the loss of this relationship would be crushing for the child. I also accept he is particularly concerned about the impact on the child and C’s relationship if the child moves to live in the UK: he regards the girls as sisters and I accept that they look out for each other, love each other and have a very close and loving relationship.

10. I accept the mother’s evidence that, more recently and after she had spoken with her father via Skype, the child told her she did not want to go back to the UK and is happy in Australia. I also accept that the child told her mother that she did not want to tell her father this because she was scared of his reaction. Such a feeling is, it seems to me, consistent with a desire not to appear “disloyal” and not to hurt anyone.

11. I accept that the child “sent” her father a letter via Skype. This communication is exhibited to the mother’s 16 March 2018 affidavit.[11] It contains the communication that the child is happy and wants to stay in Australia, does not want to upset her father or anyone else and does not want “yous” (presumably her parents) to go to Court arguing anymore. In it, the child also said that she wanted to live in the UK when she was 11 years old but now wants to stay in Australia because she loves school and her friends and believes she would be at a disadvantage with her education (if she moved to the UK). The communication also contains the following exhortation to her father: “Remember I love you, nanna and all my family in the uk.”

    [11]         Annexure “LM-1”.

The father and paternal grandmother: the relevant s 60CC considerations

1. I accept that the paternal grandmother, who is retired and who assisted with the child’s care during the time she lived with her father in the UK, is both willing and able to help the father care for the child if she moves to live with him in the UK. I accept that, as her home is proximate to that of the father, she can be available to help at short notice if required. I note that, whilst she mentioned the child’s complaint about having to do  jobs or chores whilst in her mother’s care in her affidavit in a manner that certainly appeared to be critical of that idea, she was definite in saying, during her cross-examination, that she fully supported the idea that the child do jobs or chores around the home to help out; it seemed her concern (if one could describe it so strongly) was more that she thought the child only received pocket money if she helped around the home and not independently of any requirement to assist.

2. I am not persuaded that, however the issue of the child’s helping around the home and receipt of pocket-money in her mother’s home is managed, it is a factor that supports the father’s proposal that the child move from the environs known to her, and in which she is established, comfortable and settled, to live with him in the UK.

1. The mother’s concern that, if the child moves to live in the UK with her father, he will not actively support her in her relationship with her mother (and, presumably, Mr Melville and C) perhaps arises from the father’s report to Mr E during his March 2016 interview that he found it difficult to get the child to talk to her mother when she was with him and his apparent conclusion, when she was often upset and crying after their Skype communications, that this was more because her mother was pressuring her to return to Australia than because she was missing her mother. I consider that such a view demonstrates a limited capacity to appreciate the full impact on the child of then being separated from her mother in particular.

2. The father cannot identify any disadvantages to the child of his proposal. He told Mr E in March 2016 that the child would return to the same school where she had previously settled. He also stated that, whilst she might (my emphasis) in time, miss her mother, if she wanted to return to Australia, he would not stop her.  The father’s seeming inability to consider that the prospect of the child missing her mother – the parent from whom she has received the overwhelming amount of her parenting – was any more than a possibility seems to me to provide support for the mother’s concerns that, if the child lives with him in the UK, he may not actively support her in maintaining her relationships with those of her family members who remain living in Australia.

3. Any thought that the passage of time has changed the father’s assessment of the likely impact on the child of moving to live with him in the UK is dashed by the fact that, when Mr E asked him on 6 February 2018 what he saw as being the main impact on the child if she were to move to live with him in the UK, he  said that he did not see any (my emphasis) issues: he only had 20 months left in the public service and had good support in the United Kingdom to assist with the child’s care. He did not see any of the changes associated with such a move as an issue for the child: that is, he did not think a change of school, change of peer relations, moving away from her mother and moving away from her half-sibling and step-father would impact negatively upon her. He considered the child a very strong child, whom he thought would cope fine with these changes. Of course, “coping” and “benefitting” are two very different things.

4. The father’s case is that, whilst a relocation to the UK would obviously result in the child being separated from her mother and C, their respective relationships could be maintained through regular Skype communication, the child travelling to Australia during the United Kingdom school holidays and by the mother and C travelling to the UK.  However, he also reiterated to Mr E in February this year that he thought that, if the child lived with him in the UK, getting her to Skype her mother would be an issue, because she had previously refused to speak with her when she was in the United Kingdom previously. This view seems to me to provide further support for the mother’s concerns about the prospect that, if the child moves to live with her father in the UK, she will not be actively supported in maintaining her existing relationships in Australia.

5. I note that Mr E thought the father’s failure to mention or reference the child’s adjustment to not living with her mother quite remarkable. I agree. If, as Mr E opined, this is a reflection of the father’s inability to allow himself to concede the possibility that the child might miss her mother, such inability is, in my view, a significant deficit in the father’s parenting capacity.

6. A further example of the way in which the father approaches his parenting of the child (and is likely to do so in the future) can, I think, be gleaned from his comments to Mr E more recently that, whilst the co-parenting relationship between the parents was strained, he was not worried the child might be adversely affected by the ongoing tension between her parents because “she has not commented on that for a couple of years”.

the child: the relevant s 60CC considerations

1. The child was 11 years of age when Mr E first spoke to her in March 2016. He described her as expressing herself in a coherent and well organised manner. She told him she wanted to stay with her father and that her mother wanted her to stay in Australia. When asked why she wanted to stay in the UK, she said she had made friends in the UK and people were a bit friendlier there; she also said: “I don’t know really”.

2. The child told Mr E that she wished her parents lived closer together so she could see them. At that time, she outlined to Mr E that, if she returned to the UK, she would get to stay with and see all of her friends there, see her father every day and get to see her nanna and/or her family: she did not seem to fully appreciate that she would not get to see her mother and C.

3. Mr E thought the child’s interactions with her father in March 2016 to be accompanied by flat emotional tone: he regarded the father’s affect, flexibility and amount of interaction to be “notably low”. Despite the child’s attempts to engage with him, her father remained rather removed: she showed good levels of responsiveness to him when he did initiate something and she tried a couple of times to involve him in her play, but he appeared uninterested and unresponsive in his interactions with her.

4. In contrast, Mr E thought that the mother and Mr Melville interacted more fully with the child and that the child’s demeanour and affect was notably more buoyant with her mother than when she was with her father: she was noticeably more animated in her interactions with her mother than with her father.

5. I accept Mr E’s assessment of the child’s functioning as at March 2016. I also accept his assessment that, before she went to the UK in November 2014 (following her mother’s proposal and the subsequent parental agreement)   the child was unlikely to have had any internal sense of a relationship with her father and that, while she had communicated with him and spent time with him about a year earlier, theirs was not then a meaningful relationship.

6. I accept as highly likely that, given the circumstances which had existed before the child returned to the UK to live with her father in November 2014, the 12 months of living together (albeit in breach of the parental agreement that the child  return to Australia in June 2015) was likely a novel experience for both her and her father. I also accept as likely that such experience enabled them to form an emotional connection with each other and that, consequently, they developed a meaningful connection.

7. I accept Mr E’s assessment of the child in March 2016 as being confused about which parent she would like to live with, as having well-formed attachment behaviour towards her mother and as having a sense of loyalty (or, conversely, a sense of guilt or betrayal) to her father if she did not live with him. I also accept that, as at March 2016, the child lacked the cognitive sophistication to understand fully the consequences of her stated views, particularly in relation to the permanency of a “choice” to live with her father in the UK.

8. I accept that the child interacted with Mr E on 6 February 2018 as he describes in his report. I note, in particular, that she told him that her friend is like a sister to her. She and her friend go to the same school. As already recorded, I accept Mr E’s assessment that the child demonstrated her desire not to have to choose between her parents and did not want to appear “disloyal” to either.

9. I accept Mr E’s assessment that the child appeared to be doing well in terms of her social and emotional development and appeared to have a healthy self-esteem. I accepted she reported good peer relations and said she enjoyed school. I also accept that she spoke of enjoying her time with her father and her extended family members in the UK and that she expressed a strong desire to maintain contact and a relationship with them.

10. I accept Mr E’s opinion about the manner in which I should consider the child’s comment (or view) to the effect that she thought she would have a good life in both the UK and Australia: namely, that I should place limited weight on such comments because of his assessment of the current state of her cognitive “sophistication”. Even if I am wrong in accepting this opinion, it seems to me that this statement is a further example of the child’s desire not to choose between what she obviously knows are her parents’ competing proposals.

11. I accept Mr E’s assessment of the child’s relationship with her father as still developing and that it remains in something of a rebuilding stage. I also accept his assessment that maintaining a relationship with her father is something that is in the child’s best interests. Nothing in the mother’s presentation, evidence or case – when considered in context – persuades me that she thinks otherwise.

12. I accept Mr E’s assessment that the child has a close emotional connection to her mother; that she gets along well with Mr Melville and that she has a close bond with C. I also accept that she has a very close relationship with her friend, whom she regards as a sister and that she likes her current school.

Parental responsibility

1. The mother sought an order for sole parental responsibility on the basis that the father could not talk to her and discuss issues. The father sought an order for equal shared parental responsibility.

2. The presumption that it is in the child’s best interests that her parents have equal shared parental responsibility for major long term issues relating to her applies in this case.[12] The parents are in dispute about whether it is rebutted or not:[13] the father advances that it is not; the mother advances that it is because, in essence, the father’s admission that there is no communication between them will persuade that it is not in the child’s best interests for her parents to have equal shared parental responsibility because the absence of communication between them will make it impossible for them to reach any joint decision (as they are required to do if there is an order for equal shared parental responsibility).

   [12] s 61DA of the Act.

   [13] s 61DA(4) of the Act.

3. I note that, when he spoke to Mr E in February this year, the father described the co-parenting relationship as strained: he said he and the mother Skyped on rare occasions. He also said the mother sent him the child’s school reports.  During his cross-examination, he expressed the view that he thought he and the mother would be better able to communicate after the proceedings were finalised; he also said he thought that reaching joint decisions about major long term issues relating to the child could be “achievable”.

4. It was submitted on his behalf that he had previously participated in making decisions about major long term issues relating to the child in that he agreed to her moving to live in Australia in 2012 and then reached agreement with her mother that she return to live with him in the United Kingdom. Of course, both of these examples pre-dated the father’s decision to dishonour the agreement he and the mother reached about the child’s return to the UK to live with him, the consequences of which have already been the subject of discussion.

5. I note that the father accepted during his evidence that he had historically trusted the mother to make appropriate decisions about major long term issues relating to the child. He said she had told him about such decisions and that he did not have any reason to think she would not make good decisions about such issues in the future. In fact, he was clear in saying that he did not think that the mother would choose an inappropriate school for the child to attend (if, in fact, she changed school in the future). He said he trusted the mother to make appropriate medical decisions for, or about, the child in an emergency.

6. In determining whether it is in the child’s best interests for an order that her parents have equal shared parental responsibility for major long term issues relating to her is made, it must be remembered that such an order requires the decision about major long-term issues to be made jointly.[14] Additionally, such order also requires that each party consult the other in relation to the decision to be made about that issue and make a genuine effort to come to a joint decision about it.[15]

   [14] s 65DAC(2) of the Act.

   [15] s 65DAC(3) of the Act.

7. Whilst the child’s parents have occasionally reached very significant decisions about major long term issues relating to the child, such decisions were made before the father’s decision to hold the child over in the UK. As already noted, the impact of that decision on the trust and goodwill which previously existed between the child’s parents should not be under-estimated.

8. If the child remains living with her mother in Australia, I think that a requirement that decisions about her education and health be made jointly would likely be attended by an inherent risk of delay and dispute: neither of which could be thought to be in the child’s best interests. For this reason and noting the impact of the father’s earlier decision to renege on the previous parental agreement on the mother’s attitude to him and his decision-making capacity, I consider that it is not in the child’s best interests for her parents to have equal shared parental responsibility for decisions relating to her health and education. However, I do consider it to be in the child’s best interests that her parents have equal shared parental responsibility for decisions about other major long-term issues relating to her.

What other parenting orders are in the child’s best interests?

1. Given the conclusions I have reached in relation to the issue of the allocation of parental responsibility for the child, I consider I am required to consider whether spending equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.[16] Clearly, given that the child’s parents live in different countries, it is not reasonably practicable for her to spend such time with each parent.

   [16] s 65DAA(1), (2) of the Act.

2. I accept that the child will benefit from having a meaningful relationship with both of her parents; she appears to have a positive relationship with both of them and is not at risk of being subjected or exposed to physical or psychological abuse, neglect or family violence whilst in the care of either of them.

3. I note that the father accepts that it is clear that the child has a loving relationship with her mother. Whilst he advances that this can be maintained and facilitated via regular Skype communication, and by facilitating the child travelling to Australia to spend time with her mother twice per year, he acknowledged that he struggled to ensure that the child communicated with her mother via Skype when the child lived with him in the UK.

4. I am not persuaded that the nature and strength of the child’s existing relationship with her mother – a relationship forged out of the mother’s role as the child’s primary carer to date – would be able to be maintained if the child was to move to live in the UK. I think such a move would cause a fundamental change to their current relationship and that such a change would not be in any way beneficial for the child. Such a move would also cause a fundamental change to the child’s relationship with her step-father and C and, again, I am not persuaded that there is likely to be any benefit at all to the child of such a change.

5. I note that Mr E considered that the child was likely to maintain a meaningful relationship with her father from this point forward in her life and that, provided she is able to spend as much time as is practicable with him (either in Australia or in the United Kingdom), she will be able to maintain a significant connection with him. The maintenance of both of these matters is likely to be further supported by ongoing communication via telephone and Skype.

6. I consider that the child will continue to be able to maintain a meaningful relationship with her father if she remains living in Australia with her mother – her acknowledged historical primary carer. I accept that the mother is likely to support the child’s ongoing relationship with her father. I also accept that she has done this in the past, for example by suggesting that the father attend a function at the child’s school when he was previously in Australia and by contacting him first more recently to ask whether he wanted to spend time with the child when in Australia for the trial. Of course, she has also previously facilitated the child’s return to the UK to live with her father for what was intended to be a specified period of time, an occurrence which clearly contributed significantly to the development of the child’s existing relationship with her father.

7. In contrast, I hold significant reservations about the father’s capacity to support the child to maintain her existing relationships with family and friends in Australia if she moved to live with him in the UK. He seemingly struggled in 2014/2015 to have the child communicate with her mother by Skype and he anticipated the same struggles recurring if she moved to live with him again now. This does not augur well for the maintenance of their relationship if the child was to move to live in the UK with him.

8. I do not accept that the parents have demonstrated an equal capacity to parent the child. Unlike the position with the father (as noted by Mr E and as referred to earlier in these Reasons), there is no evidence to suggest that the mother has been unable to appreciate the likely impact on the child of significant changes to her current care regime. Further, I consider that, in reneging on the parental agreement to return the child to Australia and her family here, the father demonstrated an incapacity to place the child’s needs above his own and he failed to appreciate appropriately the likely impact on her of the ongoing separation from her mother, step-father and sister. As his comments to Mr E aptly demonstrate, the father does not seem to have any appreciation at all of the likely impact on the child if required to cope with the disruption to her currently stable and settled care regime.

9. Nothing in the evidence before me persuades that the mother suffers the same deficits or limitations in her approach to her parenting of the child.

10. I am not persuaded that the father is as capable of addressing the child’s emotional needs as the mother: after all, his view is that the child is a strong child who would simply cope with the significant changes to her life which would attend a move to live with him in the UK. Such attitude does not suggest to me that he is likely to provide the child with any particular emotional support if she did move to live with him, simply for no reason other than that he does not seem to even recognise that this might be required.

11. This conclusion finds further support, it seems to me, when regard is had to the father’s evidence that, as the child has previously told him that “occasionally” she misses C, their relationship could continue to be facilitated via Skype communication and C travelling to the United Kingdom on occasion. Given the fact that, apart from the period she lived with her father in the UK in 2014/2015, the child has lived with C for all of C’s life, the concept that the child only missed C “occasionally” when they were apart seems to me to significantly under-appreciate the likely importance to the child of an ongoing opportunity to spend time and interact with her sister as they both continue to mature.

12. I accept that the child is very established and settled in her current parenting regime. I accept that the child is very settled and established at her current school and in her peer relationships. I accept that she has a friendship which is particularly important to her at present. I accept Mr E’s evidence to the effect that stability represents a significant protective factor in terms of the child’s future development, as she negotiates the perils and peaks of adolescence. I also accept that significant emphasis should now be placed on maintaining the child’s life in as settled a manner as possible, so as to give her a base from which to explore those experiences associated with adolescence.

1. I also accept that it is particularly important, at this stage of the child’s life, to guard against any risk that she may not in fact cope with the significant and meaningful changes to her schooling, peer relations and family structure that she would be called upon to manage if she was to move to live with her father in the UK.

2. Whilst a move to live in the UK with her father would obviously provide the child with greater opportunities to spend significantly more time with her father and members of her extended paternal (and, possibly, maternal) family, I am not persuaded that the likely benefits associated with this outweigh the likely impost on the child of a disruption to, and dislocation from, her established way of life; I am not persuaded that any benefits associated with a move to live in the UK now will outweigh the detriments which are more likely than not to accompany a separation from C, from her friends at school, from the mother and her step-father.

3. I consider it is more important for the child that she is provided the opportunity for stability as she continues on her educational pathway. I accept the assessment (contained in Mr E’s most recent report) of the strength of her attachment to a particular school friend: a girl she regards as her sister. I am not persuaded that it is likely to be in the child’s best interests to no longer have the opportunity to spend time with this person on a regular and consistent basis at school and, no doubt, during weekends and school holiday periods.

4. Whilst, as was the case between November 2012 and late 2014 and as has been the case since November 2015, the child’s relationship with her father will involve less direct face-to-face in-person time (and may not be ‘optimal’), I am persuaded that such relationship can continue to be meaningful if the child remains living with her mother and family in Australia. Such conclusion is strengthened by the fact that the father’s case involves an acceptance that he has had regular Skype communication with the child since Orders were made on 18 August 2016.

5. I consider that, for a child of the child’s age, Skype (and other forms of electronic communication) provides an avenue through which meaningful communication and interactions with her father can continue. Whilst it is not a complete substitute for physical interaction, it certainly provides a mechanism by which the child can continue to involve her father in her life and by which he can continue to know about matters that are important to her.

6. I consider that affording the child the opportunity to spend holiday time with her father in both the United Kingdom, and in Australia if he travels, will afford to her the opportunity to continue to develop and enjoy a meaningful relationship with him; particularly when this relationship can be assisted to flourish via the use of electronic communications.

7. I am not persuaded that the likely negative impact on the child of the significant disruption to her life, relationships and interactions with her peers associated with a move to the UK will be outweighed by the benefits which may accrue to her following a move to live with her father in the United Kingdom. Such a move would require her to forge new relationships with peers, to adapt to a new educational system and regime and to adapt to significant absences from her mother, step-father and sister, as well as from her friends in Australia.

8. For all of these reasons expressed above, I have concluded that it is not in the child’s best interests at present to live with her father in the United Kingdom; rather, her best interests will be met by continuing to live with her mother, step-father and C in Australia.

9. I also consider that an order which accords to the mother sole parental responsibility for decisions about the child’s education and health (with an obligation to seek the father’s input into those decisions) is that which is in the child’s best interests. I have arrived at this decision because the mother has historically been responsible for making such decisions, she has not been criticised by the father for any of the past decisions she has made and such order will negate any possibility of an impasse occurring about such decision: it will empower the mother, the parent with whom the child will be living in Australia, to make the necessary decision. The orders for consultation will, however, ensure that both of the child’s parents will be able to have input into decisions about such issues.

10. For the reasons outlined above, I consider that the orders set out at the commencement of these Reasons are the orders which are in the child’s best interests. 

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 8 May 2018.

Associate:     

Date:    8 May 2018