Catalan & Garcia
[2022] FedCFamC2F 63
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Catalan & Garcia [2022] FedCFamC2F 63
File number(s): MLC 9837 of 2020 Judgment of: JUDGE BENDER Date of judgment: 28 January 2022 Catchwords: FAMILY LAW – PARENTING – Relocation – Mother seeking to relocate from Australia to Country B with the parties’ seven year old daughter – where the Mother seeks the emotional, financial and practical support of her family in Country B – the Father opposes relocation arguing that it is in the child’s best interests for the Mother to remain living in Australia – where the Father proposes that the parties have shared care of the child – where the Mother has limited employment opportunities and limited family support in Australia – where the Mother seeks sole parental responsibility for the child should relocation be allowed and equal shared parental responsibility for the child should relocation not be allowed – where the Father seeks equal shared parental responsibility.
HELD – The Mother be permitted to relocate the child’s residence from Australia to Country B forthwith – the child spend time with the Father following relocation no less than once per year in Country B and two out of every three years in Australia – the Mother facilitate the child communicating with the Father no less than twice per week – the parties have equal shared parental responsibility.
FAMILY LAW – PROPERTY – Father’s Application for the adjustment of the parties’ property interests – where the Father seeks the parties each retain the property in their own possession – where the Mother seeks the parties each retain the property in their own possession should relocation be allowed – where the Mother seeks an equal division of the parties’ property, being the former matrimonial home in the Father’s name and the Father’s superannuation entitlements, should relocation not be allowed.
HELD – The parties each retain the property in their own possession including property and superannuation entitlements.
Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(2), 60CC(3), 61DA, 61DAA Cases cited: Taylor v Barker [2007] 37 Fam FLR 461
Fyfe v Kingsley [2020] FCCA 1535
AMS v AIF (1999) 199 CLR 160
U & U (2002) 211 CLR 238
Heath v Hemming(No.2) [2011] FamCA 749
MRR v GR [2010] HCA 4Division: Division 2 Family Law Number of paragraphs: 306 Date of last submission/s: 4 November 2021 Date of hearing: 3 – 4 November 2021 Place: Melbourne Counsel for the Applicant: Ms Pearson of Counsel Solicitor for the Applicant: Simon Nixon & Associates Counsel for the Respondent: Ms Mallett of Counsel Solicitor for the Respondent: Leslie Family Law ORDERS
MLC 9837 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CATALAN
Applicant
AND: MS GARCIA
Respondent
ORDER MADE BY:
JUDGE BENDER
DATE OF ORDER:
28 JANUARY 2022
THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for the child X born in 2014 (“X”).
2.X live with the Mother.
3.The parties do all things necessary and sign all necessary documents to cause X to be issued with an Australian Passport, with such Passport to be held by the Mother.
4.The Mother be permitted to relocate with X to Country B forthwith.
5.Pending relocation pursuant to order 4 herein X spend time with the Father as follows:
(a)each Tuesday and Thursday from 5:00pm until 8:00pm (extending to 9:00pm during school holiday periods);
(b)on each alternate weekend from 10:00am Saturday until 8:00pm Sunday;
(c)by WhatsApp Video or telephone each Wednesday at 5:30pm or upon X’s reasonable request; and
(d)as otherwise agreed between the parties in writing.
6.Following relocation pursuant to order 4 herein X spend time with the Father as follows:
(a)in Country B on no less than one occasion per calendar year, with the Father to provide the Mother with 56 days’ written notice of his intention to exercise such time, and the following shall apply:
(i)during the Father’s visit, X shall spend time with the Father for between seven and 14 consecutive or non-consecutive days to be agreed between the parties no less than 28 days prior to travel;
(ii)the number of overnights between X and the Father shall increase incrementally by one night each visit, commencing with two consecutive overnights on the first visit;
(iii)the number of consecutive overnights between X and the Father shall not increase beyond seven nights save in accordance with X’s wishes;
(iv)the Father shall provide the Mother with details of X’s accommodation for all overnight time; and
(v)the balance of the days X spends with the Father for the duration of each trip shall comprise daytime visits only.
(b)in Australia
(i)in February 2023 and during every third February thereafter, with the Mother to travel to Australia for no less than 21 days, and for X to spend time with her Father as per the incremental progression set out in paragraphs 6(a)(i) to 6(a)(iv) herein;
(ii)in December 2024 and every third December thereafter, such time to include Christmas Day, with the Mother to travel to Australia for no less than 21 days, and for X to spend time with her Father as per the incremental progression set out in paragraphs 6(a)(i) to 6(a)(iv) herein;
(iii)at such further and/or other times as agreed between the parties in writing.
(c)by electronic communication
(i)via WhatsApp Video or such other agreed form of video communication at 7:00pm Country B time on such days as agreed between the parties and failing agreement each Wednesday and Sunday, with the Mother to initiate the call to the Father;
(ii)the Mother shall facilitate X contacting the Father by video communication upon her reasonable request to do so.
7.The Father shall facilitate X briefly telephoning the Mother prior to bedtime each night X stays with the Father, and briefly again on the following morning, unless agreed between the parties in writing.
8.Unless otherwise agreed between the parties in writing, changeover shall occur as follows:
(a)for time pursuant to order 5 herein at C Supermarket;
(b)for time pursuant to order 6(a) herein, the Father shall collect X from the Mother’s residence at the commencement of time and shall return X to the Mother’s residence at the conclusion of time; and
(c)for time pursuant to order 6(b) herein, the Mother shall accompany X to and from Melbourne on each occasion and the costs of the Mother’s travel shall be borne solely by the Mother.
9.The parties shall share equally in the cost of flights for X to travel to Australia pursuant to order 6(b) herein.
10.Both parties be permitted to attend all school events relating to X normally attended by parents and receive at their expense all school reports, school photograph order forms and newsletters.
11.Each party shall advise the other of any serious illness or injury suffered by X as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
12.Both parties facilitate X’s attendance at any birthday parties or agreed extra-curricular activities which coincide with their period of care.
13.Each party keep the other informed at all time of their current residential address and contact telephone number.
14.The parties continue to do all things necessary to facilitate X receiving ongoing therapeutic assistance, including by:
(a)pending relocation continuing to facilitate X’s attendance on and follow all recommendations of Ms D or her nominee; and
(b)following relocation engaging her with a suitably qualified and experienced child psychologist in Country B;
15.The Mother shall provide X’s psychologist in Country B with the following:-
(a)an authority to speak with the Father;
(b)a copy of the Family Report of Dr E dated 20 May 2021; and
(c)a sealed copy of these orders.
16.The parties and their families be restrained by injunction from:
(a)denigrating the other parent in the presence or hearing of X and shall ensure a neutral or positive tone is used in all references to the other parent;
(b)discussing adult issues with X, including but not limited to these proceedings;
(c)questioning X in relation to her involvement with and attendance upon professionals, including but not limited to the Family Report writer and the psychologist appointed pursuant to these orders; and
(d)exposing X to family violence, including but not limited to physically disciplining her or threatening to use physical discipline.
17.The Father retain his right, title and interest in the property situate at F Street, Suburb G in the State of Victoria (“the property”) to the exclusion of the Mother.
18.The Mother forthwith do all things necessary at her expense to remove the caveat currently lodged by her over the property.
19.Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the Father).
(b)insurance policies remain the sole property of the owner named thereon.
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Catalan & Garcia has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BENDER:
INTRODUCTION
This matter relates to both parenting and property matters following the breakdown of the parties’ seven year marriage.
The Father is seeking parenting orders for the parties to have equal shared parental responsibility for their seven year old daughter X born in 2014 (“X”), that the Mother and X remain living in Australia and that X live with each of her parents on a week about basis (such time to build up over six months) and for special occasions.
In relation to the property matter, the Father is seeking orders each party retain all assets in their name or possession. This would result in the Father retaining all assets in Australia, including the property at F Street, Suburb G in the State of Victoria (“former matrimonial home”) which he owned at the commencement of the relationship and the Mother retaining property she owns or has an interest in in Country B.
The Mother is seeking orders that from January 2022 she be permitted to relocate with X to Country B. She proposes that upon relocation she have sole parental responsibility for X. If permitted to relocate the Mother proposes X spend time with the Father on at least one occasion each calendar year in Country B and for 2 out of every three years for a period of no less than 21 days when the Mother and X will travel to Australia.
If permitted to relocate the Mother seeks orders that the Father retain the former matrimonial home and otherwise the parties keep all other property owned by them.
If not permitted to relocate, the Mother seeks orders the parties have equal shared parental responsibility for X, X live with her and spend time with the Father on Tuesday and Thursday evenings and each alternate weekend from 10:00am Saturday to 5:00pm Sunday. In relation to financial matters, she seeks orders the former matrimonial home be sold and the net proceeds be divided equally between the parties and the parties’ superannuation entitlements be equalised. She proposes the parties otherwise retain all other assets owned by them.
BACKGROUND
The Father was born in Country B in 1962 and is aged 59 years. He and his family migrated to Australia when he was 11 years old. He is an Australian citizen. He has two adult children from his first marriage, Mr H who has 2 young children of his own (about X’s age) and Ms J. The ages of the Father’s adult children are unknown. The Father has not re-partnered.
When the parties commenced cohabitation and during the relationship the Father ran his own handyman business. Due to COVID-19 restrictions the Father ceased trading. He is now employed as a tradesman with Employer K earning approximately $53,000 per annum.
The Mother was born in Country B in 1973 and is aged 48 years. She has not re-partnered. She is engaged in home duties. Despite genuine efforts since separation to find paid employment in Australia, she has not been able to do so.
The parties commenced a long distance relationship in 2009. They met through the Mother’s cousin who lives in Queensland and is a friend of the Father and his family. The Father saw a photo of the Mother at her sister’s wedding and made contact with her.
The parties became engaged in 2011. It was agreed between the parties that the Mother would initially move to Melbourne but they would return to live in Country B in the medium term.
The Mother migrated to Australia in 2012 and the parties in 2012.
When the Mother came to Australia, the parties lived in the former matrimonial home. The Father had retained the former matrimonial home from the property settlement from his first marriage. Its value and the amount owing on the mortgage at this time is unknown.
In 2013 the Mother obtained an administrative position at Employer L (before migrating to Australia she was an administrative assistant in a Company in Country B). She ceased this employment when X was born.
During their relationship the parties (and X when she was born) travelled to Country B every year for four to six weeks to visit the Mother’s family. The Father would also spend time with his extended family in Country B. The fares for their travel were paid by the Father with occasional assistance from the Mother’s family.
The parties separated under the one roof in April 2019. The Mother describes this as “very unpleasant”.[1]
[1] Paragraph 41 of the Mother’s affidavit sworn 25 October 2021.
After separation the Mother deposes to feeling “trapped” in Melbourne and of her staying in the spare room at the back of the house when the Father was home. X refused to sleep in her own room and insisted on sleeping with the Mother – something she is still doing to this day.
It is the Mother’s evidence that in July 2019 she was warned by a friend that the Father was surveilling her. She then discovered a hidden microphone in the dining room which she believes the Father was using to monitor her phone discussions with her family in Country B.
The Mother annexed to her trial affidavit a photograph of the device she found and an advertisement for a recording device that looked identical to the photograph of the device found by the Mother.
It is the Father’s evidence the device photographed by the Mother was a charger for his mobile phone. However a picture of the charger for his phone does not match the photo taken of the device found by the Mother in the dining room. For those reasons I am satisfied the Father was recording the Mother’s conversations using the device the Mother photographed.
The Mother and X moved out of the former matrimonial home in October 2019.
After the parties separated under the one roof, X began to exhibit severe separation anxiety becoming very distressed when left by the Mother at kindergarten. Whilst having some separation anxiety earlier, it was not nearly as severe.
After the parties physically separated, X spent frequent time with the Father by agreement. X was reluctant to spend time with the Father unless his eldest daughter Ms J was present. X refused to spend any overnight time with the Father.
When X’s separation anxiety worsened, the Mother proposed that X see a psychologist. Whilst the Father considered X’s separation anxiety to be a normal childhood occurrence and not a serious concern, he agreed for X to attend upon psychologist, Ms M in September 2019.
In November 2019 the Mother sought legal advice. On the advice of her then solicitor, the Mother placed a caveat on the former matrimonial home in December 2019.
The Father was very angry (and remains very angry) that the Mother placed a caveat on the former matrimonial home. When the parties separated the Father had agreed to pay child support in the sum of $150 per week. After the caveat was lodged the Father texted the Mother (the text was in Language B and the Mother annexes the original text and a sworn translation to her trial affidavit) as follows: -
21:57pmFrom today X is not seeing the psychologist any more under my order. I’ll notify on Monday. Try to change with her because you’re passing her insecurity. Start by leaving her to wipe her backside.
22:20pmThere is not help from me, you get paid monthly the amount Human Services states.
It is the Mother’s evidence that after the caveat was lodged the Father’s anger and threatening behaviour towards her, including threatening that he would keep X overnight, increased. The Mother sought advice and was advised to apply for an Intervention Order which she did in late January 2020. When the interim Intervention Order was granted, the Father emailed X’s psychologist Ms M withdrawing his consent to X being treated and cancelled all future appointments.
The Father continued to spend regular day time only with X.
In May 2020 the parties attended Family Dispute Resolution with Victoria Legal Aid and entered into a Parenting Plan in the following terms:
1)That the parties have equal shared parental responsibility for X born in 2014.
2)That X live with her Mother.
3)That X spend time and communicate with her Father as follows:
a. Each Tuesday and Thursday from 5:00pm until 8:00pm;
b. Commencing 30 May 2020 and each alternate Saturday thereafter from 11:00am until 6:00pm;
c. Commencing 26 July 2020 and each alternate Sunday thereafter from 11:00am until 6:00pm;
d. By telephone each Wednesday from 5:30pm until 6:00pm; and
e. As otherwise agreed between the parties in writing.
4)That the parties be and are hereby restrained by injunction from:
a. Denigrating the other party or members of the other parties family in the presence of hearing of X.
5)That for the purposes of changeover this occur at C Supermarket.
6)That the parties enrol in and complete a Post Separation Parenting Course and provide proof of completion to the other parties solicitor.
7)That the Father enrol in and complete a Tuning into Kids Course and provide proof of completion to the Mother.
8)That the parties do all acts and things necessary to ensure X attends upon a psychologist forthwith and for this purpose:
a. The solicitors for the Father provide to the solicitors for the Mother the names of three proposed psychologists and the Mother elect on of the proposed psychologists;
b. That the parties be at liberty to communicate with and attend upon the psychologist; and
c. The parties follow all reasonable recommendations of the psychologist;
d. The parties equally meet the cost of such psychologist
NOTATION
A.That pursuant to s68P of the Family Law Act that insofar as the Intervention Order is inconsistent with the Parenting Plan that this Parenting Plan prevails.
B.That the Mother’s preference for X’s attendance upon a psychologist is from N Counselling and when providing the three proposed psychologists referred to in Paragraph 8 hereof that the Father will take that into account.
Pursuant to the terms of the parenting plan, the Father provided the Mother with the names of three psychologists in June 2020. It is the Mother’s evidence that none of these psychologists were available and/or prepared to assist X.
On 9 September 2020 the Father instituted the current proceedings seeking both parenting and property orders.
On 9 December 2020 the Mother filed her Response.
On 12 December 2020 interim consent orders were made which provided inter alia:
•The parties have equal shared parental responsibility for X.
•X live with the Mother.
•X spend time with the Father each alternate weekend:-
•Until 9 January 2021 from 11:00am to 6:00pm on Saturday and Sunday.
•For 2 weekends 11:00am Saturday to 11:00am Sunday.
•For 2 weekends 11:00am Saturday to 2:00pm Sunday;
•From 6 March 2021 from 11:00am Saturday to 6:00pm Sunday.
•From 16 April 2021 from 6:00pm Friday to 6:00pm Sunday.
•On special occasions.
The orders also provided for the parties to attend upon Dr E for the preparation of a Family Report.
It is the Mother’s evidence X’s severe general anxiety and separation anxiety continued throughout 2020/2021. The Mother put forward several proposals to the Father and obtained a mental health plan for X to attend upon a psychologist given her ongoing extreme anxiety. The Father objected to the contents of the mental health plan and the proposed letters of instruction prepared by the Mother’s solicitors.
On 20 May 2021 Dr E released her Family Report. Whilst Dr E’s report will be considered in more detail later in this judgment, Dr E found X to be “a shy, reserved child who is temperamentally predisposed to anxiety”. In paragraph 55 of her Family Report Dr E states:-
Her difficulties appear to have become more acute in the context of parental separation, including more generalised anxiety (many typical childhood worries and fears) and more impairing separation anxiety. She appears to currently meet criteria for Separation Anxiety Disorder. She expressed a belief that her father has made comments to her about killing her mother, which has compounded her worry about her mother’s wellbeing in her absence. X does not present as fearful of her father and seems to believe Mr Catalan’s comments were said in jest; however, she is highly anxious about night-time at his home due to other features of his property and her pre-existing separation anxiety. Her presentation is consistent with a child who has been primarily cared for by her mother and, though she loves her father, she experiences him as insensitive to her emotional needs and obstructive to attempts to get support through connection to her mother.
Dr E noted the current arrangement whereby X spent time with the Father for two nights each alternate weekend appeared to be exacerbating her worries and recommended this time be pulled back to the overnight commencing Saturday morning instead of Friday afternoon and for the Father to facilitate X having contact with the Mother during the weekend for reassurance.
In paragraph 46 of her report Dr E sets out part of her discussions with X as follows:
Using visual aids (St Luke’s Innovative Resources “The Bears” cards), the writer explored X’s feelings about different events being discussed. When talking about the sleepovers, X chose a scared looking bear and said she felt “worried”. When asked to tell the writer more about that, she said, “I worry sleeping in someone else’s house because Daddy said we’re going to kill my mummy but we’re not.” When asked to clarify who the “we” was who was going to kill her mummy, she said, “Daddy.” X was unable to tell the writer anything about the context of these alleged statements (e.g., what was happening when Daddy said this? What happened after he said that?) other than that it was something her father said directly to her. When asked to select a bear to show how Daddy felt when he said this to her, X chose a laughing bear, saying she thought he felt “cheeky” when he said it, but X’s own affect was somber (sic) and frightened when giving her account.
As noted Dr E’s report was released to the parties on 20 May 2021. It is the Father’s evidence that he was “horrified by this allegation and I believe that (the Mother) has coached X to say these words in her interview with Dr E.”[2]
[2] Paragraph 105 of the Father’s affidavit filed 11 October 2021.
X spent time with the Father on 22 May 2021, immediately after the release of the Family Report. To use the Father’s words, he “interrogated” X about why she told lies to Dr E about him wanting to kill the Mother.
The Father recorded his questioning of X because, to quote his evidence “if someone asks me, I can say is the truth”.
The recording of the Father’s questioning of X was played to the Court. This is a transcript of part of that recording:-
MR CATALAN: … what you said. You said that I was bad to you. You said that I want to kill your mother. Why did you say those things? Did somebody told you to say that? You can tell me. Tell me the truth. You won’t get in trouble or nothing, but – no. Your little friend told you that? No. Can’t be ..... who could have told you that. But if you told me the truth – just tell me the truth? Who was it? You – no one is going to get in trouble. It’s just that if you don’t tell me the truth I won’t be able to see you. You won’t be able to stay here. You understand.
X: ..... O (who is a 4 year old friend of X)
MR CATALAN: No. It wasn’t O. You’re not telling me the truth. Please tell me the truth.
X: It was my mother.
MR CATALAN: It was your mother, was it? And why did she say that? And remember I said to you you must tell the truth when ..... Yes? Doesn’t matter. That’s all right. We can fix it. We can do – hey. We can fix it. Don’t worry. I promise you that – I promise you that we will always be together. Okay? And your mother shouldn’t have told you that because that’s bad. You’re only a little kid. But thanks for telling me what you said, okay, because we can fix it. We can go back to normal. All right? You don’t have to feel bad. Okay. Daddy loves you very much. Lada loves you very much. All the family that you have here, we all love you, and we all want you to stay here, okay, with us. All together. Okay.
X: Okay.
MR CATALAN: All right. You happy now?
X: Yes.
MR CATALAN: So thank you for telling me the truth.
The Father’s tone was such that his questioning of X is appropriately described as “an interrogation”. The Father’s tone, aggression and anger at X are palpable and X sounds frightened.
When asked if he thought it was appropriate to question X about the Family Report, the Father replied:
“I regret it because I shouldn’t ask a seven year old…but think worse situation – telling a kid to lie is more important than my questioning.
…
Knowing X hasn’t been telling the truth – very important to me to know where that lie was coming from.”
On 27 May 2021 after the Family Report was released, the Mother’s solicitors wrote to the Father suggesting X’s time with the Father be reduced to one overnight as recommended by Dr E. The Father did not agree to this.
On 17 June 2021 X’s school contacted the Mother in relation to X telling her friends and teacher that the Father had threatened to kill the Mother and that he had hit her and locked her in her room. Because of X’s comments, her school notified the police and the Department of Families, Fairness and Housing (“DFFH”).
Following X’s disclosures to the school, the police obtained an interim Intervention Order for the protection of the Mother and X on 22 June 2021. The existing parenting orders were not suspended at that time.
On 24 June 2021 DFFH spoke to X. Whilst she disclosed physical abuse by the Father, her description of that abuse was inconsistent. She told DFFH she had been punched by the Father and was bleeding as a result. However the mark on her face that X showed DFFH (a small scratch) did not match her story. X also told DFFH the Father left her alone at night and did not let her call anyone if she was scared or worried.
When DFFH interviewed the Father he denied all allegations and expressed his belief that X was being influenced by the Mother to make the allegations as they would support the Mother’s application to relocate to Country B.
On 23 June 2021 the Mother issued an Application in a Case seeking interim orders for X’s alternate weekend time with the Father to be reduced to one overnight in line with Dr E’s recommendations. The Mother’s application came before the Court on 23 August 2021. After an interim defended hearing the Court ordered inter alia:-
•X’s alternate weekend time with the Father reduce from 2 nights to 1.
•When with the Father overnight X be permitted to call the Mother before bed and again in the Morning.
•The parties be restrained from denigrating the other, discussing adult issues, questioning her about her involvement with professionals and any report writer/psychologist and exposing X to family violence including physical discipline.
•The parties forthwith engage with a child psychologist in relation to her anxiety and they share the costs of same.
On 20 September 2021 X started seeing psychologist Ms D.
On 27 September 2021 a final Intervention Order was made without admission against the Father for the protection of the Mother and X for a period of 12 months.
PROPERTY
As previously set out in this judgment, the Father owned the former matrimonial home at the commencement of the relationship. It is the Father’s evidence that he had equity in the former matrimonial home at the time of approximately $110,000. It is his further evidence he had $20,000 in savings.
It is agreed that the former matrimonial home is currently valued at $740,000 and the mortgage is $196,000.
The Father sold a Motor Vehicle 1 after separation for $5,000. It has a red book value of $34,000. It is the Father’s evidence this car was in need of extensive repairs and the amount he sold it for reflects its poor condition.
At the commencement of the relationship the Mother was the registered owner of an apartment in Country B being P Street, City Q, Country B (“P Street”). She and her sister were the registered owners of R Street, City S, Country B (“R Street”).
It is the Mother’s evidence that all monies for the purchase of these properties were provided by her parents and they were registered in either her or her and her sister’s names for asset management purposes.
It is the Mother’s evidence that before moving to Australia she executed a Power of Attorney in favour of her parents to enable them to manage the properties. Any rental income earned from P Street, City Q was retained by her parents. It is her further evidence R Street, City S is a beach/holiday home which is used by the family and not rented out.
It is the Mother’s evidence that in 2019 her parents decided to sell P Street, City Q. Her parents did not consult her in relation to this decision as they had Power of Attorney to manage the property. Further they had funded its purchase. On 17 June 2019 P Street, City Q was sold to the Mother’s sister for USD$60,000. It is the Mother’s evidence her parents received the whole of the sale proceeds.
It is the Father’s evidence he obtained market appraisals for the Mother’s Country B properties in June 2020 which he annexed to his trial affidavit. The appraisal for P Street, City Q is USD$180,000 and USD$140,000 for R Street, City S.
It is the Father’s evidence that during the relationship the Mother received the rental income from P Street, City Q which was paid into an account in the Mother’s name in Country B.
The Mother denies receiving any rental income for property in Country B and denies having a bank account in her name in Country B. It is her evidence that the only account she had in Country B after she and the Father married was a joint account she and the Father opened to receive wishing well gifts. It is her evidence that the parties emptied the account after they married.
Neither party put any sworn or independent evidence before the Court in relation to the Mother’s Country B properties, any alleged bank accounts in her name in Country B or the dealings relating thereto.
THE EVIDENCE
The Father
The Father relies on his trial affidavit sworn 11 October 2021 and his financial statement sworn 9 September 2020. The Father also gave vive voce evidence at the final hearing.
It is the Father’s evidence he has a close and loving relationship with X. He argues that if the Mother is permitted to relocate with X to Country B his relationship with X will be reduced to nothing because of the distance between Australia and Country B and the very limited time they will be able to spend together.
It is the Father’s evidence that he does not believe the Mother will support X’s relationship with him if she and X are allowed to relocate as the Mother has manipulated X to tell lies about him to the report writer, her school and DFFH in order to be allowed to return to Country B.
The Father agrees he and the Mother did agree they would return to live in Country B after they married. It is his evidence however that this was on the understanding this would only be when his parents passed away. The Father rejected the Mother’s Counsel’s suggestion that he and the Mother’s return to Country B was conditional upon his parents’ passing was a “recent” invention on his part.
The Father also agrees that from the commencement of the relationship, the Mother has wanted to return to Country B to live.
The Father agrees with the Mother’s evidence that she had a very good relationship with his family during their marriage, but that since the parties separated his family and in particular his daughter Ms J and his brother no longer have any relationship with her. He notes there was an occasion when the Mother contacted his adult son asking him to look after X when the Mother had a fall, was admitted to hospital and the Father did not respond to the Mother’s calls for assistance.
Whilst agreeing X has some anxieties, the Father’s evidence is they are “usual childhood worries”.
It is the Father’s evidence that X is scared of noises, spiders and, he realised after reading the family report, the concrete “lion” in his garden. He explained that as a result of the Tuning into Kids course that he completed, he has developed strategies to address X’s fears by taking X to see the things that are scaring her so that she is able to realise that she does not need to be scared of them.
It is the Father’s evidence that X started experiencing separation anxiety in 2019 whilst he and the Mother were separated under the one roof. The Father agrees that he believed this to be a stage that she was going through as both his adult children had similar problems at kindergarten. However because the Mother was so insistent X needed help, he agreed to her attending upon psychologist Ms M. When cross-examined as to why he had withdrawn his consent to X continuing to attend upon Ms M, especially when on his evidence X was making considerable progress with her, the Father explained that he did so because Ms M was only speaking to the Mother and not to him, that Ms M was therefore only getting the Mother’s version of what was happening and that the Mother was manipulating the information Ms M was receiving in order to support her desire to relocate from Australia to Country B.
When questioned as to why he did not agree to X attending upon psychologists suggested by the Mother, despite there being agreement in their May 2020 parenting plan that she do so, the Father explained that he did not agree to the psychologists proposed by the Mother because the mental health plans that the Mother had obtained from X’s treating general practitioners were based on information provided by the Mother only and that he wanted input into what the psychologist was told.
Whilst saying the Mother is a terrific person and mother, the Father observed that the Mother is very overprotective of X and that many of X’s fears stem from the Mother and her own fears to which she exposes X.
The Father’s “interrogation” of X in relation to comments made by her to the report writer that were contained in Dr E’s family report are set out in paragraphs 41 to 46 of this judgment. The Father showed no remorse and exhibited no insight into the impact of this questioning on X when giving his vive voce evidence.
It is the Father’s evidence that he has a very good relationship with X, that she can tell him anything, that she now happily spends overnight time with him and on occasion asks to be able to stay longer.
It is the Father’s evidence that he believes that X should be spending equal time with both her parents as they both love her and she would benefit from equal input from both of them. It is his evidence and he believes that increasing X’s time with him from the current one night a fortnight to seven nights a fortnight would be something she could easily manage over the next six months.
In relation to financial matters, it is clear from the Father’s evidence that he remains very angry that the Mother placed a caveat on the former matrimonial home, in part as it has restricted his capacity to borrow in order to fund these legal proceedings.
It is the Father’s evidence that he does not accept that the Mother does not have a continuing interest in P Street, City Q and R Street, City S and that they have a value considerably greater than that given to them by the Mother.
It is the Father’s further evidence that he believes that the Mother is receiving rental income from P Street, City Q which is being held on her behalf in bank accounts in Country B. In support of this, he questions how the Mother has managed to save $9,600 since the parties’ physical separation when her only source of income is said by her to only be Centrelink payments. The Father argues the Mother has only been able to save these monies because she is receiving assistance from her family and rental income from the properties in Country B. He concedes however that there is no evidence from the Mother’s discovered Australian bank accounts that any such income has been received by her.
Whilst the Father agrees that when the parties physically separated he agreed to pay the Mother $150.00 per week for the support of X, he immediately ceased those payments when she placed a caveat on the former matrimonial home.
It is the Father’s evidence that when the parties were together his income from his business was less than he currently earns as an employee of the Employer K. It is his further evidence that when the parties were together he was able to fund most of the parties’ annual travel to Country B to visit the Mother’s and his family. He was also able to meet the parties’ living costs in Australia.
The Mother
The Mother relies on her trial affidavit sworn on 25 October 2021 together with her financial statement sworn on the same date. The Mother also gave vive voce evidence at the final hearing.
The Mother seeks orders she be able to relocate with X to Country B so that they will have the emotional, financial and practical support of her family.
It is the Mother’s evidence that since her separation from the Father she has been and continues to be isolated in Australia. When she was in a relationship with the Father, it is her evidence that she had the support of not only the Father but also his extended family, sharing a close relationship with his parents, his brother and his two adult children. With the parties’ separation that support and those relationships have been withdrawn and the Mother has not seen or had any support from either the Father’s daughter Ms J, his parents or his brother. It is the Mother’s evidence that she was able to call upon the Father’s adult son to look after X on one occasion when she had a fall and had to go to hospital. He came to her assistance but this was a one-off and otherwise she has no regular contact or offers of support from him.
The Mother agrees that she has a cousin who lives in Melbourne and that if relocation is not allowed she would be seeking the Court’s permission to move closer to her cousin in order to have her support. She notes however that because of COVID-19, her ability to interact with her cousin has been very limited. Her only other relatives in Australia are a cousin in regional Victoria and two cousins on the Region T with whom she has limited contact.
In relation to X’s anxiety, the Mother’s evidence is that X continues to be reluctant to separate from her and is insisting upon sleeping with her despite the efforts of X’s new psychologist.
The Mother agrees with the Father that X has good friends at school. It is the Mother’s evidence that X will not go for sleepovers at her friends’ homes or spend any lengthy period of time at their homes, always wanting to know where the Mother is and when she will be coming to pick her up.
It is the Mother’s evidence that she believes X has a good relationship with her Father and she enjoys spending time with him as well as with her half-brother and -sister.
The Mother spoke generally positively of the Father’s parenting, observing that X loves him and that they do interesting and fun things together which X enjoys.
The Mother expresses concern however about some aspects of the Father’s parenting. In particular she is concerned about his interrogation of X after the release of the family report, her belief that he is discussing these proceedings and other adult issues with X and that there have been occasions when he and Ms J have denigrated her to X, telling her that she is a bad mother.
When giving her vive voce evidence the Mother told the Court that on the weekend that X spent with the Father immediately prior to the final hearing, she was the happiest and the most settled that she had known X to be after time with the Father. X was happy and relaxed when the Mother called her on the Saturday night and returned in a happy and positive frame of mind.
It is the Mother’s evidence that telephone communication between X and the Father had some difficulties with X being reluctant to talk to her Father at times. It is the Mother’s evidence that since the Father and X have started talking to each other by WhatsApp, their communication has improved considerably with X taking her phone into her bedroom to show the Father things she has been doing, the two of them singing and reading together and the two of them chatting together happily in an involved and loving way.
The Mother readily concedes that X’s relationship with her Father will be dramatically altered if relocation is allowed as she will no longer be able to spend time with her Father on a weekly basis. It is the Mother’s belief however that X will be able to maintain a meaningful relationship with the Father if she sees him at least once each year as is proposed by her and if they continue to have regular video electronic communication.
It is the Mother’s proposal that when the Father travels to Country B to see X, he be responsible for the cost of his airfares, noting he has family in Country B with whom he can stay so he will not need to pay for accommodation.
It is the Mother’s proposal that when she and X travel to Australia for X to spend time with the Father, she will be responsible for the cost of her own airfares and that she and the Father share the cost of X’s airfares. It is the Mother’s evidence that her father will assist her in funding her and X’s travel expenses to Australia until such time as she is well-established in secure full-time employment after which she will be able to personally afford the cost of her and her share of X’s travel.
It is the Mother’s evidence that she believes the Father will be able to afford to travel to Country B to spend time with X. She notes that during the marriage the Father was primarily responsible for the family’s airfares to travel to Country B though there were two or three occasions when her family also assisted. It is the Mother’s evidence the Father told her he regularly travelled to Country B to visit his family prior to their marriage, those trips being funded by him.
Placed into evidence before the Court was information from Centrelink which evidenced the Mother’s genuine but unsuccessful efforts since separation to obtain employment. The Mother told the Court that she had a second interview for a job working in a take away shop shortly after the conclusion of the final hearing. It is the Mother’s evidence that she was a secretary in Country B before marrying the Father and moving to Australia and that she will be able to obtain similar employment in the event of her return to that country.
The Mother denies that she has influenced or manipulated X to make the disclosures and allegations she has made to the report writer, her school and DFFH in relation to the Father. It is the Mother’s evidence those disclosures came solely from X. Whilst concerned about the disclosures made by X, the Mother’s evidence is that when X told her about the incidents where she says the Father scratched/hit her, she told the Mother it was an accident and there were no injuries on X that supported the descriptions that she gave to the school or DFFH.
It is the Mother’s evidence that she has never denigrated the Father to X and that she has always supported her relationship with the Father. The Mother’s only requirement in relation to the time X spends with the Father is that it reflects X’s anxieties and her capacity to happily spend time away from her.
In relation to the Father’s proposal that if relocation is not allowed a shared care arrangement be put in place for X within the next six months, it is the Mother’s evidence that she believes such an arrangement is not in X’s best interests. It is the Mother’s evidence that X is primarily attached to her and could not manage a shared care arrangement given X’s anxieties and inability to manage being away from her for longer than a single night.
In relation to financial matters, the Mother confirmed her proposal that in the event relocation is allowed each of the parties retain the property that they currently own. It is the Mother’s evidence that she believes this would be an equitable outcome in circumstances where she would have the practical and financial support of her family in Country B.
It is the Mother’s proposal that if relocation is not allowed, there should be an equal division of the parties’ assets which on her evidence consist of the former matrimonial home and the Father’s superannuation.
The Mother argues that such an outcome is just and equitable. If she is required to remain in Australia her financial resources are limited. She will need that level of financial support in order to be able to properly accommodate and care for herself and X in Australia where her employment prospects are limited and she will continue to be X’s primary carer.
It is the Mother’s evidence that the sale of P Street, City Q to her sister was a decision made by her parents. Whilst P Street, City Q was in her name all funds for its purchase were provided by her parents. When the Mother moved to Australia she gave her parents full Power of Attorney on the clear understanding they could deal with the property in whatever way they chose, including deciding to sell it. The Mother does not know why her parents decided to sell the property after the parties separated and could not comment on the suggestion of the Father’s Counsel that they did so in response to her separation from the Father.
In relation to R Street, City S, it is the Mother’s evidence that whilst that property is in her and her sister’s joint names, it was paid for by her parents and is treated as a family property. All members of the family use it for holidays and on weekends. Now that her parents are retiring, it is the Mother’s evidence R Street, City S will be used more regularly by her parents during the week as well.
The Mother absolutely refutes that other than $2,000.00 which her parents gave her when she physically separated from the Father in order to pay for a bond on a rental property when she moved out of the former matrimonial home, her parents have provided no financial support to her since separation. It is her evidence that after P Street, City Q was sold to her sister, her sister has rented it out and it is she who is receiving the rental income.
The Mother denies that she has any bank accounts currently in Country B.
Dr E
Dr E is a clinical psychologist and family report writer employed in private practice. Dr E was engaged by the parties to prepare a family report. That report is dated 20 May 2021 and is before the Court by way of an affidavit sworn by Dr E on 24 June 2021. Dr E also gave vive voce evidence at the final hearing.
Family Report
Dr E describes the Father in paragraph 13 as affable and easy-going and said that his attitude to the Mother “was one of mistrust and he appeared to feel maligned by her.”
The Father told Dr E that X was affectionate and had previously been quite timid, but “normal”.
The Father told Dr E that X is happy at school, has four or five close friends and that her teacher does not report any concerns about her behaviour. He emphasised that the teacher told him he had not observed X to have any difficulties separating from her Mother.
The Father told Dr E that during the relationship X always slept in he and the Mother’s room in her own bed. He raised no concerns about X’s mental health or development. When Dr E asked the Father about the impact upon X of separation under the one roof, she reports the Father told him there were no changes in any routines other than the Mother slept in the spare room and that there was “no change for X”.
The Father told Dr E that when X is with him she never asks for her Mother, and never asks to call the Mother unless she wants to share something. X is always sad about leaving at the end of her time with him, telling him that she doesn’t want to go and that he is the best dad in the world.
Dr E reports that the Father told her the Mother had been “seemingly fixated on the idea that X needed professional help” and that he thought this was unnecessary as her separation anxiety at kindergarten was a “normal phase” for a child, noting that she came out of her shell a few months after she first exhibited this behaviour.
The Father told Dr E that it was Mother who first arranged for X to see a psychologist and that whilst he initially agreed to this he later realised that the Mother was “feeding” the psychologist information about their home life and telling her that he had a bad influence on X.
Dr E reports that the Father did not believe X requires professional support as he doesn’t see any signs of anxiety when she is in his care. However he wanted Dr E to consider this issue in her assessment.
When discussing his concerns about the Mother’s care of X, the Father told Dr E he felt the Mother was “very fake” and that he couldn’t trust her. He reported that the Mother had always been “a terrific person” during their relationship but there was now a “big plot” between her and her parents to action the relocation.
Under the heading ‘Plans for the future’ Dr E reports the Father’s plans in paragraph 26 as follows:
26.Mr Catalan reported that there was no future for X in Country B. He reported that this had always been a concern for him, and the matter was never settled (though he acknowledged it was his intention to move the family to Country B after his parents passed away). He said, “If she goes to Country B, it will destroy X.” He estimated that he would only be able to visit her once or twice a year at most and it would destroy his relationship with her. Mr Catalan endorsed his application for week-about care, insisting this was the best arrangement for X.
When discussing the Mother, Dr E describes her as presenting in a friendly manner, with an attitude towards the Father that was respectful but incredulous because of his alleged denial and fabrication. The Mother told Dr E that she was fearful of the Father.
The Mother told Dr E that the parties’ relationship difficulties came to a head on their trip to Country B in late 2018/early 2019 and that she moved into their spare room on their return from that trip. She told Dr E “it was hell” until she moved out in October 2019.
Dr E sets out in paragraph 33 the Mother’s description of the parties’ separation under the one roof as follows:
33.Ms Garcia reported that, during the separation under one roof, Mr Catalan would pick fights and criticise her all the time, that “it was a problem” if he arrived home and she was not there. Ms Garcia reported that she felt she could not leave the home if he were home as he would call and ask, “Where are you?” and often get angry. Ms Garcia reported that she found a microphone in the furniture after being alerted to its presence by someone Mr Catalan confided in about having planted it there to monitor Ms Garcia. She reported that Mr Catalan later messaged her father and told him he had been spying on Ms Garcia for five months. She maintained that his denial of certain behaviours (planting a microphone to record her without her permission) was contradicted by superior evidence that she could provide to the Court if required. Ms Garcia reported that Mr Catalan disconnected the internet so she was unable to contact her family for about a week and took her keys to her car for four days in the middle of winter. She said he then gave her keys back. Ms Garcia reported that her car later suspiciously stopped working and she suspected he sabotaged it somehow, resulting in her having no transport for six weeks, leaving her dependent on the kindness of friends and public transport to get X to and from kindergarten. She said Mr Catalan refused to take X to kindergarten (though he was home and not working at the time) and made her catch the bus in the rain. Ms Garcia recalled Mr Catalan refusing to collect her and X from hospital (after X was seen for stomach pain). She described him as rude, aggressive and screaming complaints at her. Ms Garcia reported that X witnessed this frequently. She reported that, after one particular “big fight,” Mr Catalan walked out of the home and X said to her, “We have to move out of here.”
The Mother describes X to Dr E as an amazing, very kind, very sensitive child who is smart, affectionate, empathic and friendly. The Mother told Dr E that X had a history of separation anxiety but this did not emerge until her second year of kindergarten (2019) in the context of increased parental conflict after separation under the one roof.
The Mother told Dr E that X still insists that she stay with her until the bell at the start of school and that she walk her to her classroom but other than the odd occasion X is happy to go into class after this.
The Mother reported that X always slept in a separate bed in her parents’ room until the Mother moved into the spare room after which X began to sleep with her. The Mother believes that this was in the context of the high verbal and emotional violence of the Father towards her until they moved out. The Mother reported that X started getting anxious about going to kindergarten, would cry and resist going, hugging her leg and needing to be pried off at drop off. The Mother told Dr E that the educators at the kindergarten said that X was crying at nap time and they expressed worry about her at home. Having noted X’s increased anxiety the kindergarten as part of X’s transition plan to school suggested to the Mother that X see a psychologist. The Mother agreed with this suggestions.
In paragraph 38 Dr E reports the response to her question of the Mother about X’s relationship with the Father. She states:
38.Ms Garcia reported that she could not say now as she did not see them together except at changeover, but when X was younger, she was often tense around her father and did not want to bother him, because he would “never talk to her in a nice way.” Ms Garcia reported that she and Ms J often spoke to him about the need to adopt a softer and kinder tone with X. Ms Garcia said that, since separation, Mr Catalan had said “bad things” to X that scared her, such as that she was going to die because she’s not eating enough vegetables. Ms Garcia said Mr Catalan said “You’re going to die” all the time and at times X could not sleep because she was so afraid of dying. Ms Garcia said X came home on Tuesday worrying because Ms J had apparently said she was fat. Ms Garcia said Mr Catalan told X he was going to take her on a plane and “disappear from this world,” which left Ms Garcia having to comfort X and reassure her that there Mr Catalan couldn’t take her anywhere due to COVID-19.
The Mother reported that the Father told X that only babies cry. Because of this, X feels she has to hide how she is feeling from the Father when she is upset. The Mother also told Dr E that X told her the Father and Ms J talked badly about the Mother to X and to others and had told X “don’t ever say mum or her name in my house”. The Mother said that X had told her she cried before bed because the Father wouldn’t let her call her to talk to her before going to bed.
In paragraph 39 Dr E reports as follows:
39. Ms Garcia said Mr Catalan told X he wished Ms Garcia were dead and he would be the one to kill her. She said she tried to reassure X that Mr Catalan just said these things and didn’t mean them, reminding her how he used to say the same thing about Ms J (Ms Garcia maintained that Mr Catalan did not have a good relationship with Ms J prior to separation, once changing the locks because she had a key, and often fighting and saying he wished she were dead).
In response to a question about her concerns in relation to the Father’s care of X, Dr E reports that the Mother told her that aside from the emotional harm the Father was causing X by denigrating the Mother and making threats to kill, she felt he did not provide appropriate supervision to X as she had seen the Father leave X waiting outside a store while he browsed inside and that she was therefore not safe.
In relation to the Mother’s plans for the future, the Mother told Dr E she needed to return to Country B because she missed her family and needed their support to help care for X as she was unable to rely on the Father. Further her previous good relationship with the Father’s family was no more as the Father had forbidden members of his family to maintain contact with her, leaving her isolated.
The Mother told Dr E that:
…her family was more than 70 people in Country B and X already spoke with many of them daily. She said X was never anxious about being left with her maternal grandparents if Ms Garcia needed to go out when they visited Country B, indicating a high level of comfort and familiarity with the grandparents. She stressed that the locale was a “safe, good neighbourhood” in the capital city of City Q, which was well resourced with bilingual schools and psychological support for X. Ms Garcia reported that she did not expect X’s anxiety to immediately remit if they relocated, and she intended to seek professional support.
In relation to X, Dr E describes her engaging in a shy, softly-spoken manner.
In paragraph 46 Dr E discusses exploring X’s feelings about the different events being discussed using visual aids (St Luke’s Innovative Resources “The Bears” cards). Dr E states:
When talking about the sleepovers, X chose a scared looking bear and said she felt “worried.” When asked to tell the writer more about that, she said, “I worry sleeping in someone else’s house because Daddy said we’re going to kill my mummy but we’re not.” When asked to clarify who the “we” was who was going to kill her mummy, she said, “Daddy.” X was unable to tell the writer anything about the context of these alleged statements (e.g., what was happening when Daddy said this? What happened after he said that?) other than that it was something her father said directly to her. When asked to select a bear to show how Daddy felt when he said this to her, X chose a laughing bear, saying she thought he felt “cheeky” when he said it, but X’s own affect was somber (sic) and frightened when giving her account.
In paragraph 49 Dr E states she returned to discussing the topic of sleepovers at the Father’s home with X. Dr E writes:
49.X reported that she did not like sleepovers because “at night-time there are lots of trees and bats in his backyard and a statue of a lion – it all makes me scared.” She explained that she did not feel worried being there during the day. She said at night-time she worried that the lion statue could turn alive. X said she did not feel scared at Mummy’s apartment because “no one can break in.” When asked if she thought she would be scared having a sleepover with Daddy if he lived in an apartment too, X appeared confident that she wouldn’t be scared then, noting that she had once “stayed in an apartment with Daddy for three nights and I felt very safe because we were on the 16th floor.”
In paragraph 50 Dr E states:
50.The writer asked X whether she was able to talk to anyone about how she felt, and X indicated she cannot. She said she can’t tell Daddy because, “If I do, he says that I’m a baby, so I keep it inside.” When asked how she felt at school, X said, “Always at school I worry about something bad happening to Mum.”
In paragraph 51 Dr E sets out that she explored X’s relationship with her parents using animal figurines, using space to show closeness in relationships. Dr E states:
51.X positioned the figurines for both parents equally close to her. When asked about her choices, X reported that she felt the same love and closeness to each parent. When asked how her parents felt about each other, X said, “Angry.” When asked if they both felt angry, X responded affirmatively.
Dr E observed X with each of her parents for 30 minutes. She describes X’s interactions with her Mother as warm and familiar and that their interactions suggested a close relationship. In relation to the Father, Dr E observed X to appear as similarly comfortable and relaxed in the company of her Father as with her Mother.
Under the heading ‘Evaluation’, Dr E states the following:
55. X presented as a shy, reserved child who is temperamentally predisposed to anxiety. She has a longstanding history of subthreshold separation anxiety (not impeding functioning) and a family history of the same (her mother had childhood separation anxiety with somatic symptoms). Her difficulties appear to have become more acute in the context of the parental separation, including more generalised anxiety (many typical childhood worries and fears) and more impairing separation anxiety. She appears to currently meet criteria for Separation Anxiety Disorder. She expressed a belief that her father has made comments to her about killing her mother, which has compounded her worry about her mother’s wellbeing in her absence. X does not present as fearful of her father and seems to believe Mr Catalan’s alleged comments were said in jest; however, she is highly anxious about night-time at his home due to other features of his property and her pre-existing separation anxiety. Her presentation is consistent with a child who has been primarily cared for by her mother and, though she loves her father, she experiences him as insensitive to her emotional needs and obstructive to attempts to get support through connection to her mother.
56. Ms Garcia presents as a child-focused mother with a sound understanding of her daughter’s sensitivities. There was no evidence at this assessment of her contaminating X’s views or “planting things in her head” as alleged by Mr Catalan. There was no evidence of restrictive (unjustified) gatekeeping; her assessments of risks to X were measured and her responses appeared proportionate. Her proposal to relocate appears driven by the reduction in emotional and practical support available to her in Australia as a result of the separation (the loss of Mr Catalan and his family), which has left her isolated. She shares close, unproblematic relationships with her parents and family in Country B and seeks to avail herself of the “village” there to help her raise X. One must wonder whether she would be taking such action if Mr Catalan had actively provided support to her after separation.
57. Mr Catalan presents as a loving father with a somewhat unsophisticated understanding of X’s experience. He downplays her anxiety – as he does not see it – but X’s report suggests that he responds insensitively when she does express distress, with inappropriate expectations of the child. X’s report raised significant concerns about Mr Catalan’s understanding of the impact of denigration of a parent to a child and suggests he and Ms J are sabotaging their own relationships with X by their callous disregard for her mother. Mr Catalan casually brushed off the allegations of violent comments to X, though Ms Garcia reported that such comments were commonplace for Mr Catalan when he was engaged in interpersonal conflict (e.g., with his ex-wife, his daughter). Mr Catalan was similarly dismissive of other allegations of wrongdoing, including his actions that led to his first wife obtaining an IVO against him and Ms Garcia’s allegations of Mr Catalan recording her without her consent.
59. The current assessment suggests that X’s parents are not equally matched in their capacities to meet her emotional needs, therefore equal shared care, as sought by Mr Catalan, is not in her best interests. Even the current arrangement is stressful for X; the high frequency contact with her father is positive, but the extended weekends appear to exacerbate her worries. It is suggested that, if X remains in Australia, this time be pulled back (to reduce to a single overnight, commencing Saturday morning instead of Friday afternoon), that Mr Catalan facilitate X to have contact with Ms Garcia during the extended visit for reassurance, and there be restraints by injunction on Mr Catalan or other paternal family members from denigrating Ms Garcia in the presence or hearing of X. It is important that these injunctions be enforced to reflect the seriousness of the emotional harm it causes to X. If it continues, Mr Catalan risks his time becoming further reduced and, possibly, supervised, to protect X.
60. If the international relocation is not permitted, the writer would consider Ms Garcia’s alternative relocation (to the west region of Melbourne) to have little impact on the care arrangements that are currently recommended for X, particularly given that Mr Catalan is working in the west full-time.
61. X’s need for psychological support has been a point of contention between the parties. The writer is of the view that X’s anxiety is well beyond a developmentally appropriate level and, whether she remains in Australia or relocates to Country B, she is likely to benefit from professional intervention to develop anxiety management skills and reduce symptomatology.
62. The issue of whether relocation to Country B is in the best interests of X is one that must be determined by the Court. The writer recognises that the psychological wellbeing and resourcefulness of Ms Garcia is likely to increase in Country B, given the high level of family support available. This may have some indirect positive consequences for X. She will likely benefit from the increased access to her maternal family network and the sense of belonging this invites. However, there is a risk of harm to X’s relationship with her father and of developmental harm to X from the loss of her father in her life if she is permitted to relocate to Country B. From a psychological perspective, children do best with quality relationships with two involved parents. It is widely recognised that fathers can make unique, important contributions to their child’s development. There is a large body of longitudinal research that identifies the positive relationship between father-involvement and psychosocial adjustment in adolescence and adulthood. In relocations, it is the loss of the father’s social and psychological involvement that can create harm for the child (Austin, 2008).
63. A relocation to Country B would inevitably reduce Mr Catalan’s involvement with X. If Ms Garcia’s evidence is preferred, Mr Catalan has not maximised his opportunities for social and psychological involvement with X to date and his involvement has not always been positive. However, this is a father who, from the date of separation, sought to see his child every day. He is psychologically invested. While he is not currently X’s preferred caregiver and arguably has some limitations in his capacity to provide emotional support to her now, she feels a close bond with him. Relationships are not static and can change over time as children (and parents) mature. It is possible that Mr Catalan’s relationship with X will strengthen over time if she remains in Australia, hence the Court must consider the loss of the potential, as well as the current, relationship
64. Though an international relocation would reduce Mr Catalan’s face-to-face involvement, at six years old, X may be able to maintain a meaningful relationship with her father via virtual contact if it is frequent, consistent and facilitated by Ms Garcia or another caregiver. The writer notes the time difference between Australia and Country B (13 hours) is somewhat restrictive and the poor coparenting relationship is a contraindication for success, given some level of communication and cooperation is required. Nevertheless, it does not seem beyond these parents to make it work. That Mr Catalan is from Country B himself also removes other potential cultural and language barriers that can obstruct relationships following international relocations.
65. If the relocation is permitted, it would be in X’s best interests to spend face-to-face time with Mr Catalan as frequently as possible, both in her new home country and in Australia. The writer recognises that financial restraints make this unlikely to be more frequent than twice each year. At this time, X is unlikely to manage extended separations from her mother (e.g., more than two consecutive nights) whether in Australia or Country B, meaning time would need to be limited to daytime only for most of the visits until her separation anxiety sufficiently remits and she is comfortable spending more extended time in her father’s care. X’s readiness to increase time is difficult to predict, but one would hope that with treatment, X’s overnights away from Ms Garcia could reasonably increase in 12-18 months, with gradual increases in time each visit.
Dr E’s recommendations are contained in paragraph 67 as follows:
67. Based on the available information and in the absence of evidence to the contrary, it is respectfully recommended that
a) The parents, Mr Catalan and Ms Garcia, share equal parental responsibility for X;
b) X live primarily with Ms Garcia;
c) If X is permitted to relocate to Country B with Ms Garcia,
i. She spend time with Mr Catalan in Australia on no less than seven (7) and no more than fourteen (14) consecutive days in two of every three years, and in Country B on no less than one occasion per calendar year as per Ms Garcia’s proposal;
ii. She communicate with Mr Catalan via videocall at least twice weekly, with Ms Garcia to facilitate the calls;
iii. Ms Garcia to email or message Mr Catalan updates of X’s wellbeing and progress at least weekly;
iv. The number of sleepovers increase incrementally each visit, commencing with two consecutive overnights (e.g., overnights on days 1 and 2, but daytime only on days 4, 5, 6 and 7), building up to five consecutive overnights, with additional overnights in accordance with X’s wishes;
d) If X is not permitted to relocate to Country B with Ms Garcia,
i. She spend time with Mr Catalan each Tuesday and Thursday from 5.00pm to 8.00pm and each alternate weekend from 10.00am Saturday to 8.00pm Sunday;
ii. In 12 months, the alternate weekend time extend to commence from 6.00pm Friday;
iii. For all overnights, Mr Catalan facilitate brief phone calls from X to Ms Garcia before X goes to bed and the following morning, for reassurance;
e) X engage with a suitably qualified and experienced psychologist or mental health social worker for evidenced-based treatment of her anxiety disorder;
f) The parties and their families be restrained by injunction from denigrating the other parent in the presence or hearing of X and ensure a neutral or positive tone is used in all references to the other parent.
Vive Voce Evidence
Counsel for the Father asked Dr E what she considered to be the strengths that the Father offered to X. Dr E answered:
He’s a very, warm, loving parent. He’s fun, he had his two older siblings in the – not necessarily in the home, but as part of that paternal family network that X really, you know, engages with… he’s warm, he’s gentle, he’s fun. He’s a loving dad who provides the important sense of her identity, and all the things good dads provide… overall, I think that she has a strong connection to her father… she was very comfortable and relaxed when she was with him. I think there was a really secure bond there.
Counsel for the Father asked Dr E whether she considered X’s attachment was still establishing with her Father. Dr E responded:
No. She has certainly displayed the sort of behaviours I would expect to see from a child who has a secure attachment – a secure bond with a parent in that… she knows that he’s a safe and secure person and secure base for her. There were also aspects of the relationship that were a bit contradictory in that he might say things that are upsetting or that have kind of cut her a little bit that, you know, she remembers him saying that she was annoying or she remembers him saying… quite awful things about her mother and so children can mesh contradictory experiences into one relationship. It’s not an unconditional kind of relationship, you know, feeling that she can say anything that she wants to him because she’s, you know, she’s aware that Dad might react in a particular way. But in saying that, unpacking all those layers of a really complex relationship, but at the core… she knows that he’s someone that she can rely on for safety and security, which is what we’re looking at for attachment.
Counsel for the Mother asked Dr E to expand on her comments in paragraph 62 of her report where she said “there is a risk of harm” and “there is a risk of harm to X’s relationship with her Father and of developmental harm to X from the loss of her Father if she is permitted to relocate to Country B”. Dr E’s evidence is:
I think at her age and the distance it’s going to be challenging to maintain the type of relationship that she might be able to maintain if she remained in Australia or in Melbourne. Simply because relationships form from frequency of contact, they’re incidental in a sharing of one’s day to day life and it’s that kind of cumulative kind of build up of knowledge of that person and their experience that then generates that connectivity; that feeling of knowing what to say next, knowing what to ask, knowing what’s important to her. And so if there is – if Dad loses that opportunity – or X loses that opportunity to be able to have Dad being involved and seeing her day to day life it’s going to be difficult for him to just pick up where they left off and, you know, “What’s happen with this person at school?” Or “how was Art today?” Or – it’s going to be a much more removed kind of conversation and that connectivity is going to be much more disrupted and fractured. Now that’s not to say they can’t maintain a relationship; I think it will be a challenge to maintain the type of quality and closeness that you can maintain when you’re in the same vicinity and being able to spend high frequency time together.
Dr E was then asked by the Father’s Counsel what harm did she believe could happen to X’s development if relocation is allowed. Dr E responded:
So what we know about human development is that we are designed for social connectedness and we actually do better with, you know, the greater number of quality connections and quality relationships. And what we’re doing is – if we’re removing Dad or we’re saying that Dad is going to be – sorry, a fly. If we’re saying that that relationship is going to – Dad is going to be – his contact is going to be much more reduced and that that relationship is going to be of a lower quality then we are cutting off that – all the good; all the protective factors – all the protectiveness that comes with that relationship and comes with that connection. So that’s not to say that someone else can’t – that we’re, you know – that it’s a one-to-one relationship if a child is – does not have a relationship with their father that they’re going to be destined to, you know, a life of mental health issues or substance abuse or anything like that. But we know that it’s a risk factor. We know that reducing quality of relationships and connectedness is a risk factor for a whole range of, you know, poor outcomes. Now, it’s a risk and I think that the developmental harm of not having a father and having that influence and his involvement is going to be a loss that will need to be mitigated by, you know, others in the village – you know, when I talk about the village; I mean it takes a village to raise a child. And there – I’m sure there will be other people that step in and Mum is not going to be – Mum will be well supported. But, yes, there’s something very unique about a maternal or a paternal connection to a child and I think we’re increasing the likelihood of challenges for X. That’s not to say it’s not the right decision or it’s in a – you know, on balance that it’s not in her best interests. But there are obviously risks associated with that decision.
The Father’s Counsel asked Dr E to clarify what she meant by there being the possibility of harm to occur in X’s’ development. Dr E responded:
So when I say “development harm” I think about – we think about development across the lifespan. And going through childhood without a father– so in childhood we’re talking about role-modelling; we’re talking about playfulness, fun, you know, the kind of yin and yang that Mums and Dads or two different people bring to a child… certainly, you know, the father – or the father literature speaks to a really unique additional benefit that a second parent – which has typically been the father – brings to a child’s wellbeing in terms of their confidence, their adaptability, their problem solving. We see better outcomes in these areas with high father involvement. You know, problem solving, conflict resolution.
And so then you move into adolescence and we’re looking for identification and individuation; becoming her own person; having other people to kind of bounce off and look at as representations of – again, role-modelling, but – yes, also identification for her own identity.
And then as we moved into adulthood and, you know, the relationships with parents evolve again. So the – it’s very hard to say what – looking at her now, what – you know, which of those events in her pathway are going to be challenging for her. And all we can say is that she is at increased risk of having greater difficulties in – and it’s really a whole spectrum, I could – you know, of wellbeing.
Dr E then made the observation that the question is how X is going to internalise the absence of her Father:
Is it going to be a positive one? Is it going to be a positive thing that we moved away because we had to but, you know, “Daddy still loves me,” and you can maintain that relationship. And I think in this scenario it will be; I don’t think that there’s anything in this case that she would take on as being, you know, “I wasn’t good enough,” or, “Daddy didn’t want me and that’s why we moved away.” In some cases that might be a part of the narrative. I don’t think it is in this case, but I still think it will be a big job to maintain that relationship across that distance and time zone.
The Mother argues that an order for sole parental responsibility in the event of relocation is necessary as on a practical basis it will be very difficult for her and the Father to liaise and make decisions for X given the distance between Country B and Australia.
In her Family Report Dr E recommends that orders be made that the parties have equal shared parental responsibility for X, wherever she resides.
The Mother’s argument that it will be difficult for decisions to be jointly made in relation to X’s care in the event of a relocation is without merit. Modern communication technology means that the parties are able to speak to each other whenever a long term decision needs to be made. There is no reason this cannot take place wherever the parties are living.
The real question in relation to the question of parental responsibility is the difficulty the parties have had in communicating sensibly with each other since separation and in particular, whilst the Court proceedings has been on foot. This is perhaps best evidenced by the difficulties in the parties being able to reach agreement for a counsellor for X. However, the evidence before the Court is that the parties are able to discuss and make decisions for X and have done so since separation.
Whilst there is a current intervention order in place, the order was obtained by the police and was not an order sought by the Mother. The order relates to matters reported by X about incidences that allegedly occurred in the Father’s home that are not necessarily an accurate reflection of the Father’s care of her or of the positive relationship that they have.
I am satisfied that it is in X’s best interests that both her parents have input into the major decisions that will need to be made for her, no matter where it is that she lives. Accordingly an order will be made for the parties to have equal shared parental responsibility for her.
Where parents have equal joint parental responsibility for a child, section 65DAA of the Act requires the Court to consider the child spending equal time, or a substantial and significant time, with each parent.
Section 65DAA(1) provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
Sections 65DAA(2) and (3) of the Act provide as follows:
2. If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; the court must:
(i) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(ii) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(iii) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Section 65DAA(5) of the Act provides as follows:
5. In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.”
In the matter of MRR v GR [2010] HCA 4, the High Court considered the interrelationship between section 60CA, section 61DA(1) and section 65DAA of the Act.
In MRR v GR (supra), the High Court held at paragraph [9]:
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", [i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.
The High Court then held at paragraph [13]:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
The High Court further held at paragraph [15]:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s61DA(1) is not determinative of the questions arising under s.65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
Thus, the Court must consider not only whether it is in the child’s best interests to spend equal or significant and substantial time with each of their parents but also whether it is reasonably practicable for the child to do so.
In the event the Mother is permitted to relocate to Country B with X, it is neither practical nor possible that orders be made for X to spend equal or significant and substantial time with the Father.
In the event relocation is not allowed, the Father is seeking an order that X live equally with both of her parents. The Mother opposes that application and instead is seeking orders that X live in her primary care and continue to spend significant and substantial time with her Father, albeit the amount of overnight time that X spends with her Father only gradually increase from the current one night per fortnight. She proposes that in accordance with the recommendations of Dr E such increase take place at a pace commensurate with X’s reduction in anxiety and her capacity to manage additional overnight time away from her Mother.
The evidence before the Court in relation to X’s living arrangements in the event relocation is not allowed is very clear. It is Dr E’s evidence that given X’s anxiety an order for equal time cannot be supported as X would not be able to manage such an arrangement.
Further, the Father’s lack of attunement to X’s emotional and psychological needs and his inability to take guidance in respect to his parenting do not support a shared care arrangement. The Court is satisfied that an order for equal time is not in X’s best interests, particularly as she has only very recently commenced counselling to assist her in addressing her anxiety.
It is also very apparent from the evidence before the Court that if relocation is not allowed X should continue to spend regular time with her Father that includes at least two mid-week visits as well as alternate overnight weekend time. The overnight time should increase from one night to two then to three or four nights over a period that is commensurate with the improvements in X’s capacity to manage that time.
CONCLUSION
Parenting
Relocation cases can be amongst the most difficult matters to determine, particularly those that involve an application for a parent and child to move out of Australia. If relocation is allowed in a matter of that type it must as a matter of necessity result in a child living a considerable distance from one of their parents severely limiting the amount of time that child can spend with their non-resident parent and the level of involvement the non-resident parent can have in their child’s day to day activities.
The cases become even more difficult where you have two loving, caring and involved parents with whom the child has a close and loving relationship and with whom the child post-separation has had as an active part of their daily lives.
This is such a case. Since separation the Father has actively pursued his relationship with his daughter and has sought to be as involved with her and in her life as he can be. The Mother has been, and continues to be X’s primary carer and X is very closely attached to her.
Both parties were born in Country B. The Father moved to Australia with his family when he was 11. His parents remain living in Australia. He also has two adult children from his first marriage as well as grandchildren who are of a similar age to X in Australia. The Father has maintained his connections with Country B, visiting that country regularly and maintaining relationships with his Country B-based family.
The Mother is also from Country B where she lived until moving to Australia in 2012 when she married the Father.
Both parties agree that they had discussed returning to Country B to live with X during their relationship and it was something that they had intended to do.
Whilst the parties were together, the Mother had a very positive relationship with the paternal family based in Australia, being close to the Father’s parents, his adult children, particularly his daughter Ms J and the Father’s brother. When the parties’ relationship broke down the paternal family sided with the Father and the Mother’s support from and relationship with the extended paternal family ceased.
The Mother is now seeking to relocate to Country B with X so that she and X can have the love and emotional, practical and financial support of her family.
It is the Mother’s evidence that she is isolated in Australia and that other than a cousin who lives in Melbourne she has no other family who live near her.
It is the Mother’s further evidence that despite her very best efforts, she has been unable to find employment in Australia leaving her solely dependent on social security and the minimal child support that she receives from the Father.
The Father opposes the Mother’s application to relocate to Country B with X. He argues that his current close and loving relationship with X will be reduced to nothing because of the distance between Australia and Country B and the very limited time they will be able to spend together. The Father also expresses very strong doubts about the Mother facilitating his relationship with X in the event relocation is allowed and questions whether she would in fact comply with orders requiring her to bring X to Australia to spend time with him or cooperating with him spending time with X in Country B in the event that he has travelled there.
In her family report Dr E assesses the Mother as being child-focussed with a sound understanding of her daughter’s sensitivities. She states that there was no evidence of the Mother contaminating X’s views of the Father or planting things in her head as alleged by the Father. She notes the Mother’s proposal to relocate is driven by the reduction in the emotional and practical support available to her in Australia as a result of the separation that has left her isolated. She notes the Mother to share a close and unproblematic relationship with her parents and family in Country B and that the Mother is seeking to avail herself of the “village” in Country B to assist her to raise X.
Dr E asks whether the Mother would be making the application to relocate to Country B if the Father had actively provided support to her after separation and had encouraged the extended paternal family to continue to befriend and support the Mother and X as well.
Dr E describes the Father as a loving father who has a somewhat unsophisticated understanding of his daughter’s experiences. She notes him to downplay X’s anxiety and that X’s reports suggest that the Father responds insensitively to her when she expresses distress to him. Dr E observes the Father to have a poor understanding of the impact of denigration of a parent to a child and suggests that he is possibly sabotaging his own relationship with X by his callous disregard for the Mother.
Dr E assessed the parties as not being equally matched in their capacity to meet X’s emotional needs which is why she does not support orders being made for equal time in the event relocation is not allowed. In her May 2021 family report, Dr E suggested that there be a reduction from two nights to one night overnight that X was then spending with the Father as X was clearly not coping with that arrangement.
Dr E recognised that the psychological wellbeing and resourcefulness of the Mother would increase in Country B given the high level of family support available to her there and that this would have indirect positive consequences for X as a result.
Dr E however states that there is a risk of harm to X’s relationship with her Father and the possibility of developmental harm to X from the loss of her Father in her day to day life if she is permitted to relocate to Country B.
When discussing these observations in her report when giving her vive vice evidence, Dr E explained that the literature shows that children do best when they have quality relationships with two involved parents and that it is widely recognised that fathers can make unique and important contributions to their child’s development. Dr E’s evidence is that if X and the Father are unable to have frequent contact and share their day to day life experiences then the quality of their relationship must diminish as the cumulative build-up of knowledge of each other and their experiences is what generates connectivity and deep relationships.
Dr E agrees that the concerns that she expressed in relation to the impact on X’s relationship with her Father and possible developmental difficulties are present in most international relocation cases and that the matters that she was highlighting do not necessarily mean that relocation will be developmentally harmful for X. This is particularly so if X has her Mother’s “village” in Country B supporting her and particularly if her parents ensure that she is able to maintain regular and frequent electronic communication with her Father and they maximise to the best of their ability X’s capacity to spend as much face to face time with her Father as is practically and financially possible.
There is no doubt that X loves her Father and is closely bonded to him. There is also no doubt that the Father loves X, wants to have the best possible relationship he can with her and be able to spend as much time with her as he can.
There are however aspects of the Father’s relationship with X and his parenting of her which is of concern to the Court. The Father’s insensitivity to X’s anxieties and his downplaying of same resulted in X feeling that she cannot at times tell the Father how she is really feeling or express to him her fears and concerns.
The Father’s reaction to the Family Report, which has been thoroughly canvassed in this judgment, is also of real concern. That his immediate response was to “interrogate” X for what he perceived to be a lie and denigration of him was grossly inappropriate. The recording that he took of that exchange is really concerning. Perhaps of even greater concern is that the Father is unable to understand just how inappropriate his behaviour was in questioning X as he did and the impact it had on his daughter.
X is a somewhat shy young girl who Dr E assessed as meeting the criteria for separation anxiety disorder. She expressed the view that X’s anxiety is well beyond a developmentally appropriate level and that she needs professional intervention to develop anxiety management skills and reduce symptomology.
Whilst separated under the one roof the parties agreed to X obtaining professional assistance. She engaged with a psychologist for the last six months of 2019. After the parties physically separated in late 2019 the Father withdrew his consent to X attending upon her psychologist. The basis for this was that he hadn’t been able to speak to the psychologist directly and his belief that the Mother was manipulating the psychologist to support her wish to relocate to Country B and was therefore denigrating him to the psychologist who wasn’t getting to hear his side of the story.
The difficulty with the Father’s evidence that the psychologist hadn’t heard his side of the story is that he sent the psychologist a very lengthy letter setting out his concerns about the Mother, her behaviour and the difficulties that he believes that had caused. Further, there is nothing in that correspondence, which is an annexure to the Father’s trial affidavit that mentions X in any way.
It was after the Father had sent X’s psychologist that correspondence that he withdrew his consent to her continuing X’s treatment. Annexed to the Father’s trial affidavit is a copy of the letter in which he withdraws his consent. That correspondence is all about how the Father felt and does not discuss X, her treatment or asks the psychologist of the impact on X if her counselling was to stop as he proposed.
It was another 18 months before X was able to be linked with a psychologist. This was because of a number of factors that included COVID-19, the preparedness of a psychologist to assist a family that was in the middle of Court proceedings but also because the Father would not agree to psychologists suggested by the Mother as he took umbrage with the mental health plans that the Mother obtained for X from X’s treating GP on the basis that he hadn’t been spoken to.
The delay in X obtaining the professional assistance that she needed and still needs was primarily as a result of the Father’s own insecurities and his concerns about his rights and not about the best interests of his daughter in ensuring she got the assistance she needed.
The evidence of the Father’s questioning of X after the release of the family report and the subsequent disclosures X made to her school and DFFH was put to Dr E when giving her vive voce evidence. Dr E expressed a concern that if the Father was unable to change the kind of behaviours described to her then there was a genuine risk that his relationship with X would be undermined and their relationship could deteriorate as it would become untenable for X to maintain that relationship because she would be being made to feel by the Father that she had to choose one parent over the other.
When asked to express a view as to what outcome would be in X’s best interests, that is that she not relocate, that she relocate immediately or that relocation be allowed but there be a delay in that relocation to enable X to consolidate her relationship with her Father, Dr E expressed the view it was possible the Father had reached the limit of his parenting capabilities and as a result there was little prospect that this would be a matter in which X would spend really substantial time with the Father even if in Australia and that therefore the Court found relocation to be in X’s best interests.
I found the Mother to be an honest and genuine witness. Her evidence that she knows X loves her Father, that he is an important figure in her life and that she needs to have a relationship with him and the extended paternal family is genuine. I am therefore of the view that if permitted to relocate, the Mother will ensure that X is able to continue and maintain a relationship with her Father and will ensure that X regularly travels to Australia to spend time with her Father. I am also satisfied that she will facilitate X spending time with the Father when he travels to Country B and will ensure that X remains in regular contact via electronic communication with the Father.
The Father is genuine in his love for his daughter and his desire to be actively involved in her life. He is understandably concerned about the impact of relocation on the strength and quality of their father/daughter relationship.
There are aspects of the Father’s evidence that are concerning. In particular the Father impressed as someone who is at times more focussed on his rights and how he is impacted by the things X is saying than on X’s best interests or how his responses and behaviours impact her. He was unable to put his feelings aside and mitigate his behaviour so that he did what was best for X as opposed to what was best for him.
Dr E describes the Mother as “child-focussed” with a “sound understanding of her daughter’s sensitivities”. This was borne out in her evidence before the Court. She was able to acknowledge the Father’s strengths as a parent, X’s love for him and the importance of their relationship.
There is no doubt that the Father loves X and that she loves him. He has many positive attributes as a Father. Dr E describes him as a very loving parent who is warm, gentle and fun. She also describes him as a parent who has an unsophisticated understanding of X’s experience, responding insensitively when she experiences distress, downplaying her anxiety and lacking an understanding of the impact of denigration of a parent on a child.
The Court’s concerns about the Father’s inappropriate and concerning questioning and recording of X after the release of the family report, his belief that such an “interrogation” was appropriate in the face of what he believed was a lie and his inability to appreciate the impact this had on X is well set out in this judgment.
Also set out in this judgment are the Court’s concerns about the Father delaying X’s ongoing access to a psychologist because of his adult concerns being given precedence over X’s best interests.
There is a genuine concern about the Father’s capacity to change his behaviours when his beliefs/rights are challenged, even when failing to do so negatively impacts X. Because of this, Dr E questions whether the Father has reached the limits of his parenting capabilities and is unable to take on the advice/information given to him to be able to better parent X and meet her emotional needs.
For these reasons it is apparent that X’s emotional and psychological needs have been and will be best met by the Mother and that the Father will struggle to meet X’s emotional and psychological needs going forward.
X currently spends one night per fortnight with her Father as well as several day time only visits per week. Because of the matters discussed in the paragraphs 284 – 288, Dr E’s evidence is that it “dulls the prospective… of him being that dad who’s able to… eventually move to a shared care relationship or have…really substantial time even if she [X] was living in Australia”.
The conclusion drawn from this evidence is that X will in all likelihood continue to live primarily with her Mother now and into the future. It is therefore in X’s best interests that the Mother’s living circumstances and support base allow her to parent X to the best of her abilities.
If relocation is not allowed the Mother’s isolation, her lack of support emotionally, practically and financially and her inability to find well remunerated employment will make it much more difficult for her to parent X compared to the practical, financial and emotional support that would be available to her and X if she were able to return to Country B to live within her “village”, to use Dr E’s words. The Mother would have better access to accommodation and employment were she to be in Country B.
There is no doubt that if relocation is allowed X’s relationship with her Father will and must change as it will not be possible for them to have the level of normal day to day face to face interaction that has been taking place and would continue to take place in the event X continued to live in Australia.
Whilst it will be difficult and challenging for X to maintain a meaningful relationship with her Father from Country B, I am satisfied that it will be possible for her to do so through annual face to face time with him as well as regular and frequent multiple weekly electronic communications. I am satisfied that the Mother will ensure that this happens and believe the Father’s love of his daughter is such that he will do everything within his power to maximise the amount of time that he is able to spend with her.
It is also not outside the realms of possibility that the Father may choose to return to Country B to live for a period of time in order to be more actively involved in his daughter’s life as this is something he was prepared to contemplate doing upon marriage to the Mother.
For these reasons I am of the view that X’s best interests will be met if the Mother is permitted to relocate to Country B with her.
Whilst Dr E suggested that relocation be delayed in order to enable the Father and X to further consolidate their relationship, I am not persuaded that such an order would be in X’s best interests. The Father will understandably be very disappointed and disagree with this decision. His capacity to shield X from his distress and disappointment with the decision must be questioned in light of his response to the matters in the Family Report with which he disagreed. There is a concern the Father may intentionally, or unintentionally, undermine the decision and try and influence X to become oppositional to relocation if it is delayed. This cannot be seen to be in X’s best interests.
There is also the reality that the treatment for X’s anxiety is only in its early stages. It is Dr E’s evidence that it could be anywhere from 12 to 24 months before X will be capable of spending any increased overnight time with the Father. This raises the question as to how long do you delay relocation if the basis for that delay is to enable X’s anxiety to abate so she can spend additional overnight time with the Father before she leaves.
The evidence of Dr E that the Father may have reached the limits of his capabilities as a parent is such that it is possible he will not be a dad who is able to spend substantial overnight time with his daughter also mitigates against there being any further consolidation of the Father/daughter relationship, and which is deemed as already being a close and loving one.
For these reasons the Mother and X will be permitted to relocate to Country B without delay.
Orders will therefore be made that the parties have equal shared parental responsibility for X and otherwise substantially in the terms proposed by the Mother in her Outline of Case document.
Property
The Father is seeking property orders be made that each of the parties retain all assets currently held in their name and that they indemnify the other in relation to same.
The Mother’s position is that if she is permitted to relocate to Country B, the orders proposed by the Father are a just and equitable outcome in circumstances where each of the parties will have adequate financial security if they retain those assets they currently own.
Given relocation is being allowed, the parties are in agreement as to what property orders should be made.
Given there is no independent sworn evidence in relation to the value of the Mother’s property in Country B and the circumstances of the transfer of P Street, City Q is unknown, it is not possible to know what the actual asset pool is. This means it is not possible to give a percentage division to the orders proposed by the parties.
What is clear is that the orders that are proposed by the parties ensures the Father shall retain his home. He is now in secure employment. The Mother will have accommodation for herself and X provided to her by her family. Her evidence is she will be able to obtain well-remunerated employment upon her return home which will enable her to support herself and X.
For these reasons the Court is satisfied that the orders agreed to by the parties are a just and equitable outcome and should be made by the Court.
I certify that the preceding three hundred and six (306) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender. Dated: 28 January 2022
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