Burton and Reed

[2013] FamCA 866

FAMILY COURT OF AUSTRALIA

BURTON & REED [2013] FamCA 866

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – Where the applicant mother seeks to relocate with the child overseas – Where the respondent father does not consent to the relocation of the child but did not oppose the mother’s application – Where the matter proceeded undefended
FAMILY LAW – CHILDREN – BEST INTERESTS OF THE CHILD – Where the Court considered whether the interests of the child in permitting the mother to relocate with the child overseas outweighed the interests of the child in having regular contact with her family in Australia – Where it was determined that it was in the child’s best interests to permit the mother to relocate with the child     

APPLICANT: Ms Burton

RESPONDENT: Mr Reed

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: SYC 1328 of 2012

DATE DELIVERED: 1 November 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 18 September 2013 and 29 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Withdrawn

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Johnston

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Marks Griffiths & Bova Solicitors

Orders

1. That the applicant mother have the sole parental responsibility for the child B born … 2006 (“the child”).

2. That the applicant mother have the sole responsibility for giving consent and making arrangements for the issue of the child’s passport and the Court direct that the Department of Foreign Affairs, Australian Passport Office issue a passport for the child without the consent of the father.

3. That the child live with the mother.

4. That the mother be permitted after 1 January 2014 to relocate the residence of the child from Sydney in Australia to Region H, in Country C.

5. That the child spend time with the father as follows:

   (a)       Weekly via telephone which the mother shall facilitate;

   (b)In the event that the mother and child visit Australia the mother shall notify the father in writing, advising of their travel arrangements, the duration of their stay and offering to make the child available to the father at reasonable times, and the father shall advise the mother in writing of his available times.

6. That in the event of the child’s suffering hospitalisation or requiring emergency medical treatment, the mother shall notify the father as soon as practicable and advise as to the hospital, if any, that the child is attending or is to attend.

7. That the mother shall advise the father in writing from time to time of the address and telephone number of residences where she and the child reside in a timely manner.

8. That the father shall be at liberty to send gifts, cards and letters to the child and the mother shall ensure that the child receives the same.

9. That in the event that the father travels to Country C, the father shall notify the mother in writing, advising of his travel arrangements and the duration of his stay, and the mother shall then offer to make the child available to the father and the father shall advise the mother in writing of his available times.

10. That the mother encourage the child to send letters and photographs of herself to the father at no less than six monthly intervals.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1328 of 2012

Ms Burton

Applicant

And

Mr Reed

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

1. Before the Court is an application by Ms Burton (“the mother”) to relocate to Country C with the child B (“the child”) who was born in 2006 and is now aged 7 and a half years. The child’s father is Mr Reed (“the father”).

2. In the event that the mother is permitted to relocate with the child, she seeks sole parental responsibility.

3. The matter came before the Court for the first day of the trial on 15 March 2013. Both parties appeared unrepresented and directions were made for the preparation of a Family Report and for the preparation of the matter for trial. The matter was listed for call over on 1 July 2013 with a view to listing the application for trial if all material had been filed.

4. A Family Report was prepared and the father participated in the interviews for the preparation of the report.

5. On 1 July 2013 a solicitor appeared for the father and told the Court that the father does not consent to the mother’s application to relocate with the child but that he does not oppose the application. He asked the Court to deal with the matter as an undefended matter. A Notice of Discontinuance was filed. Thereafter the father has taken no part in the proceedings and the matter has been heard on 18 September 2013 and 29 October 2013 as an undefended matter.

6. The Court had the assistance of a report from a Family Consultant, Ms Reed (“the Family Consultant”), and an Independent Children’s Lawyer (“the ICL”) for whom Mr Johnston of Counsel appeared pro bono. The mother has represented herself.

7. The ICL supported the mother’s application to relocate.

BACKGROUND

1. The mother was born in Country C and her extended family live in City O. The father is Australian.

2. The mother came to Australia in about 1992 and she commenced a relationship with Mr D (“Mr D”) in 1993. They have three children: Mr E aged 19 years; and twins, F and G, aged almost 17 years.

3. In January 1994 the mother was required to leave Australia as her visa had expired. She returned to Country C and her eldest child was born there. Mr D travelled to visit but was not in Country C when the child was born. The mother returned to Australia with the baby and she and Mr D married in 1995. The mother suffered post natal depression.

4. The mother and Mr D finally separated in January 2004. The children lived with the mother and spent time with their father. The parents maintained a good relationship.

5. Mr D has repartnered and the mother describes Mr D and his wife, Ms D, as “very good friends” and says that the child loves them dearly.

6. The father had a relationship with Ms I (“Ms I”) and they have a daughter, J, aged 13 years. The mother has a friendly and close relationship with Ms I and the child has a good relationship with J. Ms I and J lived with the mother and the child for about three months when they were without housing.

7. In 2004 the mother suffered from depression and what she describes as a “breakdown” and admitted herself to hospital as a voluntary patient for about three weeks.

8. In 2004 the mother and the father met.

9. In 2005 the mother and the father commenced to live together and the child was born in 2006. The pregnancy was difficult. They married in 2008. Mr D was the best man and Ms D was the bridesmaid.

10. The father suffered severe financial problems during the relationship. He borrowed a large sum of money from the mother which has never been repaid. Their rent was substantially in arrears and the father had pressing business and taxation debts. He began to exhibit symptoms of psychiatric illness and in 2008 was involuntarily detained. The mother’s father came from Country C to assist and paid from his own funds some of the outstanding debts and the arrears of rent.

11. In mid-2009 the mother began to have episodes where she lost consciousness. She gave evidence that she would “pass out” and be covered in bruises. Unsurprisingly, this was a source of great anxiety for the child. An angiogram was performed causing a large blood clot. She suffered severe complications. Her treating specialist provided a report. She is described as suffering from widespread neuropathic pain disorder, entrenched chronic pelvic pain syndrome, axial neuropathic pain and a regional pain syndrome involving her right leg. The doctor reports that the mother is treated with “trigger point blocks” which give relief from pain for periods of weeks but until recently she has also been reliant on opioid pain relief. She gave evidence that she is reducing her reliance on opioids and attempting to rely on alternate pain relief.

12. In addition the mother has been diagnosed as suffering from bipolar disorder. She is cared for by a psychiatrist and on medication which causes drowsiness during the day. She also suffers from Meniere’s disease which causes disequilibrium.

13. The parents separated in 2008, the mother moving to be close in proximity to Mr and Ms D. the child lived with the mother after separation.

14. Immediately after separation the mother invited the father to spend time with the child but he did not.

15. The father has repartnered. His partner has two children: K aged 12 years; and L aged eight years.

16. In 2011 the two sons of the mother and Mr D moved to live with their father. At some later time, probably in 2012, their daughter moved to live with Mr D for half of her time, spending the remainder of her time with the mother and the child.

17. The mother gave evidence that approximately every six months she is hospitalised for a period of six weeks for cortisone treatment. During those periods, the child stays with Mr and Ms D. They both leave for work early so the child is taken to school by one of her step siblings.

18. The child has been enrolled at a school near to Mr and Ms D’s home so that they are not unduly inconvenienced if they are caring for the child. The mother needs to drive the child to school.

19. In addition to her scheduled hospitalisations, the mother has “crash periods” when she is completely incapacitated. This occurs every two to four weeks and the episodes last about two days. She described those periods as being like a severe case of the flu. She has pain everywhere and no energy. She cannot care for the child and cannot drive. She arranges, if she can, for Mr and Ms D to care for the child but she is unable to drive during these episodes and can’t get the child to school on her own.

20. On occasions, the mother has had to delay urgent admission to hospital because she needed to make arrangements for the child.

21. The mother’s treating psychiatrist, her neurologist and her general practitioner are all supportive of her moving to Country C, citing, in particular, her need for family support.

22. The child was absent from school for 61 days in 2012. In term 1 of 2013, the child missed 15 days of school. The mother was unable to say whether on each occasion she was ill or the child was ill. In term 2 of 2013, the child missed 18 days of school. The mother did not know how many days the child had missed in term 3. The child is a bright child and is “holding her own” in class. Her school report for 2012 indicates that she puts in a lot of effort. Her school principal told the Family Consultant that the child puts in a lot of effort and has been making good progress, despite her absences. There can be no doubt that she would benefit from regular attendance at school.

23. As a result of the child’s absences from school, a notification was made to the New South Wales Department of Family and Community Services (“the DFCS”), as it is now known, and the child was enrolled in a program of counselling at M Family Centre. In a report dated 14 May 2013, her counsellor, Ms N (“the Counsellor”), indicated that the child had attended 10 sessions and would attend a further two sessions. The Counsellor noted that, during the assessment on 20 December 2012, the mother expressed concern about the child’s separation anxiety. The report notes: “[The child] was sometimes very emotional and has seen her mum very ill. She often expressed somatic illnesses to get out of going to school and had many school absences.” By May 2013, the Counsellor noted that the child was no longer complaining of illness and had regular attendance at school. That information does not appear to be consistent with the child’s attendance records for second term.

24. The mother told the Family Consultant that the father had sent her a text indicating that he would agree to the child’s relocation if she (the mother) did not pursue him for the money that she had lent him. Annexed to the mother’s affidavit filed 15 May 2013 are transcripts of text messages sent to her by the father. On 16 April 2013, the father sent the following text:

    If relocation takes place, I propose to pay $100 per week child support for the next 11 years for our daughter [B] (that I don’t get to see or have regular contact with…) If relocation occurs suitable communication to be via skype, emails, phone calls and letters. An address of where the child is living must be provided at all times.

    On a financial level we are no longer associated and are to separate entities including any inheritance received in the future. We are no longer entitled to any part upon receiving their share of the estate… by signing this document both parties understand and agree accordingly not to pursue each other or any family member, including any court proceedings. The start of the document will state properly about relocation, which will be signed when we meet.. And there will be a signing point for each of us where our names are

25. On 17 April 2013 the father sent to the mother a text which read, inter alia: “If you sign you have my permission”. I infer that the father was indicating consent to the mother’s application to relocate, provided that she signed a document renouncing her financial claim.

B’S TIME WITH HER FATHER

1. After the parties separated in December 2010, the father did not see the child although the mother invited him to do so. The mother told the father he was welcome to see the child if he gave her some notice. The mother estimates that the father saw the child five times in 2011.

2. In the first half of 2012, the mother asked the father if he would agree to her going back to Country C and taking the child with her. He did not agree and she filed her application for relocation. Thereafter, the father did not see the child for five months.

3. In April 2012, orders were made for the child to spend time with her father each alternate Saturday from 10.00am to 5.00pm. In May 2012, those orders were extended to provide for overnight time each alternate weekend.

4. In July 2012, the Family Consultant prepared a Child Responsive Memorandum (“the memorandum”). At that time, the child was spending time with her father on alternate Saturdays between 10.00am and 7.00pm. The father had not availed himself of the overnight time. the child had not been to the father’s home and had not spent overnight time with him. She had not met the father’s partner or her children. In the course of the interviews with the Family Consultant, the parents agreed that the child would go to her father’s home on her next visit.

5. Concerns were raised about the father’s mental health. The memorandum notes that the father is medicated for paranoia and obsessive compulsive disorder. The mother expressed concern that the father’s psychiatric conditions were neither acknowledged nor appropriately managed.

6. In July 2012, orders were made requiring the father to provide a report from his treating psychiatrist.

7. In October 2012, the mother filed a Contravention Application complaining that the father was not spending time with the child. The mother gave evidence that the father failed to take the child for weekends and continually cancelled the arrangements. She said he had taken the child on only two weekends. At the time she filed her affidavit on 23 October 2012, the mother said the father had no plans to see the child for several weekends.

8. That application was dismissed on 26 November 2012 but its filing is supportive of the mother’s attempting to ensure that the child had a relationship with her father. The Court noted that the father would recommence seeing the child and spending overnight time with her on 15 December 2012.

9. When the Family Consultant saw the parties for the preparation of the Family Report, she noted that the child was seeing her father each alternate weekend. The orders then provided for time from 10.00am on Saturday to 10.00am on Sunday.

10. When the matter came before me on the first day of the Less Adversarial Trial (“the first day LAT”) on 18 September 2013, the mother gave evidence that the child had not seen her father since 4 June 2013 because of her concerns about his mental health. The mother had been contacted by police on 18 June and told that the father had reported concerns that the mother had hired a “hit man” to kill him. The father told the Family Consultant that the maternal grandmother had stabbed the maternal grandfather. The father told the Court at the first day LAT that he would not participate in the proceedings because he believed that Mr D would have him killed.

11. The father told the Family Consultant that if he were to cross-examine Mr D, he would be afraid for the lives of J, his partner and her children. I note that Mr D was the father’s best man when he married the mother and the father was Mr D’s best man at his wedding to Ms D.

12. The father has requested DNA testing to ascertain whether the child is his child.

13. In an affidavit sworn 22 October 2013, the mother deposes to having contacted the father after the first day LAT and telling him that the child would be available to spend time with him the following weekend. The father refused to take the child. The mother has informed the father on four separate occasions that the child is available and the father has not taken her on any of these occasions.

THE MOTHER’S PROPOSALS

1. The mother wishes to move to Country C with the child to live in close proximity to her parents; her sister and brother-in-law; and her brother and sister-in-law who all live in proximity to City O. The mother’s sister has a daughter, P, who is 11. Her brother has a daughter who is 17 and a son who is 14.

2. In City O, the mother will be eligible for social security assistance and public housing and the child will be able to go to the local public school where her cousin, P, attends.

3. The maternal grandparents, primarily, and the mother’s sister and brother-in-law would all be available to help with the child’s care if the mother is incapacitated and, in particular, would assist in making sure that the child is taken to school.

4. The mother gave evidence that her six-weekly stays in hospital would not be required if she lives in City O because she could have her cortisone treatment as a day procedure (that would also be available in Australia but the mother lives too far from the hospital). In City O, family members could take her to the hospital and bring her home, so that she should not have to stay in hospital.

5. If she has days when she is incapacitated, her parents or her sister could help with taking the child to school and collecting her. Her sister is a social worker and works flexible hours. The child can be taken to school with P. When she is well, the mother can walk the child to school.

6. The mother proposes to return to Australia with the child once each year so that she can spend time with her older children and so that the child can spend time with her father and her extended family in Australia. The mother will fund those trips using the sum of $45,000 which has been released to her from her superannuation. The cost of her return to Country C will be paid for by her father. Her parents will assist her if further funds are needed.

7. In addition to annual trips to Australia, the mother proposes that the child can communicate with her family in Australia by Skype.

8. The mother has considered the effect of her ill health on her proposal to travel to and from Australia from Country C. She gave evidence that she had discussed her proposal with her neurologist. She anticipates experiencing pain during travel but having medication to assist. She understands that the flight “might just be rough”.

9. The maternal grandfather has travelled to Australia on a number of occasions to provide support for the mother. He provided a letter in support of the mother’s application. Although the letter is not sworn, these are proceedings to which Division 12A applies and the letter was received into evidence. The ICL did not require him for cross-examination. I accept that the mother’s extended family will provide her with both financial and emotional support in City O.

THE FAMILY REPORT

1. In the course of the preparation of the Family Report, the Family Consultant interviewed the mother and the father; the child; the father’s new partner and her children; and the three children of the mother and Mr D. She also briefly interviewed J and spoke by telephone with the principal of the child’s school. The Family Consultant also had the advantage of material produced on subpoena by the DFCS and by the New South Wales Police.

2. In relation to the time that the child spends with her extended family, the mother reported to the Family Consultant that the child had seen her father on approximately four occasions from July to December 2012 because the father was unavailable on the scheduled weekends. She said that the child had spent each alternate weekend with her father since January 2013 and also spent five days in the January school holidays and seven days in the April school holidays with her father. The mother said that the scheduled weekends for the child to spend time with her father remain on the alternate weekend to when J, K and L are also there, so the children are not often spending time together.

3. The mother expressed the view that it would be good for the child to spend more time with J but that the child had expressed discontent with spending time with L. The mother told the Family Consultant that the child spends time with Mr E, F and G on the weekend that she is with the mother. The mother told the Family Consultant that the child becomes distressed when the father cancels his visits and that the seven day holiday period which the child spent with her father was too long for the child.

4. The Family Consultant interviewed all of the children with whom the child has a relationship. Mr E, the mother’s oldest son, indicated that he intends to visit Country C to visit his mother and the child if they were to relocate there. F, the mother’s oldest daughter, told the Family Consultant that she would miss the child if she relocated to Country C but, based on their mother’s circumstances, she considered it would be better for the child and their mother in Country C and that she would visit when she could. G told the Family Consultant that he considered his relationship with the child to be good and that he thinks the child would adapt to living in Country C if she were to relocate there with her mother.

5. J told the Family Consultant that she believes that she has a strong relationship with the child and that she gets upset when she thinks about the possibility of the child’s relocating to Country C.

6. Both K and L told the Family Consultant that they did not spend much time with the child but both presented as happy to play with the child in the playroom.

7. The child told the Family Consultant that she was aware that her mother was proposing that they relocate to Country C and she appeared to be generally aware of the distance involved. The child did not know what her father would like to happen. The child told the Family Consultant that she will miss Australia, her home and everyone she loves in Australia. The people that she would miss included all of her half and step siblings, her father, her father’s partner and Mr and Ms D.

8. The child knew of her maternal grandparents but did not seem to be aware of any other family members in Country C.

9. The child described all the adult and child members of her family positively. She identified as feeling particularly close to J.

10. The child spoke of her mother’s illness as causing her to feel scared and gave some indication that she has, at times, taken on a caring role for her mother. The child indicated having experienced differences in the type of activities that she and her mother participated in when her mother was well, compared to when she is unwell.

11. In her evaluation, the Family Consultant noted that the father is not opposed to the possibility of travelling to Country C to spend time with the child, but he has never travelled overseas before and this would be a significant undertaking for him. There is no evidence that he will be in a financial position to visit the child in Country C either regularly or at all. Telephone calls and video calls by Skype will almost likely be the primary method for the child to maintain a relationship with her family in Australia if she were to relocate, although the Family Consultant noted the mother’s proposal to return to Australia each year for five or six weeks.

12. The Family Consultant says that the child’s age does not pose any particular problem associated with relocation, such that a younger child or an adolescent might experience. The Family Consultant says that at seven years of age she has the capacity to retain memories of family members in Australia and to utilise phone and video calls to maintain those relationships, albeit with a decreased level of closeness. The Family Consultant says that if the child were to relocate, after a significant period of not spending time with her father, she might require brief visits with him to re-establish their relationship, prior to her feeling comfortable spending blocks of time with him during any visit to Australia. She says that, whilst changing schools is likely to be disruptive, the child is not yet entrenched in friendships or school attendance such as an adolescent might be and, therefore, there should be no specific difficulties in her capacity to transition to a new school and community.

13. The child expressed to the Family Consultant that she will miss her family members in Australia if she relocates to Country C but did not express a view regarding the relocation.

14. The Family Consultant says that the child’s general psychological functioning indicates that she has personal strengths which will assist her if she is to relocate and no special needs which would make it particularly difficult for her.

15. The Family Consultant expressed the view that the child is likely to have a closer and more significant relationship with her mother than with her father because her father has had limited involvement in the child’s life. The child has not lived with her father since she was two years old and she has gone substantial periods of time without spending time with him.

16. The Family Consultant says that the most significant people who have provided care to her on a regular basis apart from her mother are her sister, F, and Mr and Ms D.

17. The mother expressed the view to the Family Consultant that living in a different country will help the child deal with her distress at her father’s lack of involvement in her life which can be explained by the distances involved. The Family Consultant agreed that this may be the case but suggested that it may also be the case that being separated from her father when she desires his attention and love will exacerbate the distress that the child experiences.

18. The Family Consultant finds it difficult to predict the impact of relocation to Country C on the mother’s functioning. In her report she says:

    It is her country of origin so she is therefore familiar with it and her primary reason for relocating is so that she can benefit from the support and assistance of friends and family. This bodes well for the possibility that the relocation would have a positive impact on [the mother’s] functioning.

    In relation to the child the Family Consultant says:

    [The child’s] history of care and information gathered from interviews and observations indicate that the child has a positive relationship with her mother. However, the complexity of that relationship, with the specific impact of [the mother’s] ill health, suggests that [the child] requires additional relationships with other family members.

19. The Family Consultant says:

    [B]ased on the history of care and the child’s relationships, it is suggested that the child should remain living primarily with her mother. It is evident though that [the mother] requires improved assistance and support in order to care for the child. [The child’s] absenteeism from school is extremely concerning and is likely to have had a significant detrimental impact on her cognitive and social development. … Whether they are living in [Country C] or Australia, [the mother] needs to ensure that she has the capacity to guarantee the child’s attendance at school.

20. The Family Consultant concludes her report by analysing the relocation options:

    For the child, the combined advantages of relocating to [Country C] and disadvantages of remaining living in Australia include: [the mother] is struggling to provide care for the child due to her health problems and [the father] does not appear to have provided meaningful support; the child and her mother may receive much needed support from extended maternal family members and friends in [Country C]; [the mother’s] mental health and general functioning might improve with the support she receives and the happiness she derives from returning to her country of origin which is likely to improve her capacity to parent the child. One of the difficulties in assessing the possible advantages and disadvantages of an international relocation is the number of unknown variables, such as [the mother’s] relationship with her parents and siblings and [the mother’s] capacity to financially provide for [the child] in [Country C].

    For [the child] the combined advantages of remaining living in Australia and the disadvantages of relocating to [Country C] include: if she were to remain in Australia, the child would have the opportunity to maintain meaningful relationships with a variety of family members including half siblings, her father and extended paternal family which would be difficult to maintain if she were to relocate to [Country C]; an international relocation would require her to adjust to an unknown and different living arrangement, a different environment and climate, a change in schools and the introduction to a new community; and the unknown nature of the supports and services available to the child and [the mother] in [Country C], particularly if [the mother’s] health deteriorates.

21. The child was also seen by a psychologist, Ms Q, on three occasions earlier in 2013. Ms Q’s reports dated 16 February 2013 and 15 April 2013 were tendered by the ICL. Ms Q notes that the child was referred to her because of anxiety about her mother’s state of health and contact with her father. The child was angry with her father about the contact arrangements (I infer about his inconsistency) and conflict with K and L.

22. In her report dated 15 April 2013, Ms Q reports that the child wanted regular contact with her father. That view is consistent with the Family Consultant’s observations. The child expressed difficulties with L.

23. Most relevantly, the child is noted to be worried about her mother’s health, fearful that she can’t take care of her mother and concerned about her mother’s “wellness”. Ms Q refers to the mother’s health as being “stable” but this does not appropriately recognise the fact that, although stable, she is very unwell.

24. As to her wishes, Ms Q says that the child would be happy to live in Country C as long as her Australian family could come too. The mother disputes the child having expressed that view and says she was present during the interview. Ms Q was not called, in circumstances where the Family Report had been prepared after Ms Q last saw the child and was more current.

25. Ms Q’s recommendations about relocation can be given no weight in circumstances where her involvement was only with the child and the mother and she did not have available to her all of the material which was considered by the Family Consultant.   

SOLE PARENTAL RESPONSIBILITY

1. The law presumes that it is the best interests of a child for their parents to have equal shared parental responsibility for them.

2. The presumption can be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests to have equal shared parental responsibility.

3. Thus the Court is required to consider all of the matters in s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”) in order to come to a conclusion about parental responsibility. My findings in relation to those matters are set out below.

CONCLUSION

1. The ICL provided the Court with a Minute of Orders which sets out the orders which the ICL believes to be in the child’s best interests.

2. There is no doubt that the child would benefit from having a meaningful relationship with her father. Whether such a relationship can be maintained may depend on his attitude to its continuance. He has not availed himself of many opportunities to spend any, or extended, time with her and, as recently as the period from 18 September 2013 to the present, has not accepted offers by the mother to spend time with the child. The quality of their relationship may also be dependent on the father’s mental health and whether his paranoia and obsessive compulsive disorder can be effectively managed.

3. The Family Consultant notes that the child has been exposed to conflict between her parents and that her apparent anxiety during assessment, together with her presentation to her play therapist and to her treating psychologist, indicates that there may have been some detrimental impact on her from the conflict between her parents. However, the Family Consultant does not conclude that the issues of conflict should be given such weight as to mitigate in favour of relocation. This is but one consideration.

4. The benefits of the relationship with her father, for the child, have to be weighed against the benefits to her mother of living in Country C, against the background of all of the other factors which the Act mandates for consideration.

5. The child has expressed no views to the Family Consultant other than that she would miss her Australian family if she moves to Country C. To Ms Q, the child said that she wanted to live with her mother as primary carer.

6. I accept the evidence of the Family Consultant that the child’s closest and most significant attachment is to her mother. She is close to her father although distressed that he is not a consistent presence in her life. I accept the evidence of Ms Q that the child would like to have regular and consistent time with her father. There could be no doubt that she is close to Mr and Ms D, her sister, her brothers and J. Those are relationships that are important to her.

7. The Family Consultant records the child’s description of her enjoyment of time with her paternal grandparents and great grandmother. The mother says that the child has had very limited time with them. In her affidavit filed 9 March 2012 the mother deposes to the child not having seen her paternal grandparents for nearly two years.

8. The child has memories of her maternal grandparents but not of the other members of the mother’s extended family. She has no close relationship with her maternal grandparents although that relationship will no doubt develop if she lives in close proximity to them and has the opportunity to spend regular and frequent time with them.

9. The father has not availed himself of opportunities to spend time with the child. In her affidavit filed 8 March 2012, the mother deposes that the father has not provided financially for the child since separation in 2009.

10. He has chosen not to take part in these proceedings even though he told the Family Consultant that he was not aware of any threats being made against him. He has clearly indicated to the mother that he would agree to the child’s relocation if the financial matters between them were resolved.

11. The effect of change for the child has been carefully and helpfully summarised by the Family Consultant in her conclusion to the report. I have already set out in these reasons the Family Consultant’s evidence about the child’s ability to adapt to any changes.

12. The practical difficulties and expense of the child spending time with her father and extended family if she moves to Country C cannot be overstated. She will see her Australian family only once a year. Any more is neither physically nor financially sustainable. This is a significant factor to be considered. However, I also take into account the Family Consultant’s evidence about the child’s ability to maintain those relationships, notwithstanding their physical separation.

13. The mother has parented the child to the best of her ability but she has been severely hampered in her parenting by her physical and mental disabilities. The father’s parenting is subject to criticism by the mother for his inconsistency and unavailability.

14. The text messages annexed to the mother’s affidavit, to which I have earlier referred, demonstrate that the father has regularly caused J to check the child’s genitals. The mother sent a message to the father on 30 April 2013 complaining, inter alia, that: “She has once again come back with a vagina that is red and ‘weeping’ and pouring out discharge”. The mother asked the father to ensure that the child was properly cared for and had medical attention if she needed it. The mother concluded the text by stating: “this is the third time she has been with you for a longer period and come back with her vagina in this state”.

15. The father’s response was:

    What a load of nonsense, [the child] knows it was checked regularly and it was normal (no redness). You just continually make up crap, (tall stories) or exaggerate on things…Unless you sign my document you won’t be granted relocation orders for [Country C]….As I won’t give the courts permission to do so and will not confirm or allow this to happen….You let me know when your (sic) got your pen ready.

16. In a later message the father said: “I got [J] to check the child regularly in regards to her vagina”. The mother in response pointed out that J is 12 years old and not qualified to decide when a seven year old’s genitals need attention. She messaged: “U r her dad. Do your job. Discharge like that is not normal in any female.”

17. That the father caused his 12 year old daughter to examine the child’s genitals is concerning as to his understanding of his responsibilities as a father to both children.

18. That he was prepared to trade off his consent to the mother’s application for financial advantage gives serious concerns about his willingness or ability to put the child’s interests ahead of his own and his capacity to provide for the child’s psychological and emotional welfare.

19. There has been no communication from the father to the mother since the exchange of texts referred to above in April 2013. He did not respond to her invitation to spend time with the child in September and October 2013.

20. In relation to parental responsibility, the father has not involved himself in any of the decision making in relation to the child. He has not cared for her when the mother was ill and needed to be hospitalised. He has not communicated with the mother since April 2013. His mental health issues cause concerns about his ability to perceive what is in the child’s best interests. Having regard to all of those matters, the mother should have sole parental responsibility for the child.

21. The father has not spent substantial and significant time with the child and he has failed to spend time that was available to him. Neither the mother nor the father seeks an order for equal shared time or substantial and significant time and such an arrangement would be inappropriate having regard to the limited time the father has spent with the child.

22. In determining with whom the child should live, I accept the evidence of the Family Consultant that the child should live with her mother. For the reasons I have set out, the mother is the person best able to care for the child both physically and emotionally.

23. In determining where the child should live I must balance the value to the child of regular and frequent contact with her extended family in Australia (and possibly with her father) against the benefits directly to her mother, and indirectly to the child, if she lives in Country C.

24. Having regard to the father’s mental health difficulties; his lack of commitment to time with the child in the past; the fact that he did not participate in these proceedings; the fact that he has had no contact with the child since June 2013; the fact that he was prepared to trade his consent to the mother’s application for financial advantage; and the fact that he has ignored or failed to acknowledge the mother’s offers of time with the child since 18 September 2013, I cannot be confident that he will make any effort to maintain that relationship into the future.

1. I accept the evidence of the mother that she will bring the child to Australia each year and that she will facilitate communication between the child and her family in Australia by email, Skype and letters. I note that the father in his text messages suggests that such contact is appropriate if the child is in Country C.

2. The mother will have the primary responsibility to care for the child. To date, she has been reliant on Mr and Ms D and F to assist her when she is unwell. That arrangement has not always worked for the child who has missed an excessive number of days from school. In addition, the child has been anxious and distressed about her mother’s illness and worried that she needs to care for her mother. In Country C, the child’s feelings of responsibility may be alleviated when she understands that other adult family members will be available to take responsibility for the mother and for her.

3. In Country C, the mother has readily available assistance from her parents and sister and hospital treatment will be readily available to her in closer proximity than in Australia. It will clearly be to the child’s advantage if her mother does not need to be hospitalised for periods of six weeks at a time.

4. In Country C the maternal grandfather and the child’s aunt will ensure that the child goes to school. If the mother remains in Australia, I cannot be sure that the child’s school attendance will improve.

5. On balance, I consider that the combined benefits of the mother having family support when she is ill and having family members available to ensure that the child is taken to school, outweigh the detriment of the child not having frequent time with her family in Australia. Accordingly, the mother will be permitted to relocate.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 1 November 2013.

Associate: 

Date:  1 November 2013