CHOI & CHOI

[2019] FCCA 1254

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHOI & CHOI [2019] FCCA 1254

Catchwords:
FAMILY LAW – Parenting – relocation – mother and father both formerly lived in Hong Kong – mother wishes to return with six year old daughter to Hong Kong – consideration of best interests and reasonable practicability – order for equal time for child between parents in Australia.

Legislation:

Family Law Act 1975 (Cth), ss.60, 60CA, 65DAA, (1),(b)

Cases cited:

AMS & AIF (1999) CLR 160

Taylor & Barker (2007) FLC 93-343

Paskandy & Paskandy (1999) FLC 92-878

MRR & GRR (2010) 240 CLR 461

McCall & Clark (2009) FLC 93-400

Champness & Hanson [2009] FamCAFC 96

Applicant: MS CHOI

Respondent: MR CHOI

File Number: MLC 10840 of 2018

Judgment of: Judge McGuire

Hearing dates: 2, 3 & 4 April 2019

Date of Last Submission: 4 April 2019

Delivered at: Melbourne

Delivered on: 15 May 2019

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Solicitors for the Applicant: Carew Counsel Solicitors

Counsel for the Respondent: Mr A Robinson

Solicitors for the Respondent: Taussig Cherrie Fildes

ORDERS

1. That the parents have equal shared parental responsibility for the child [X] (“[X]”) born … 2012.

2. That [X] live on a week about regime between the parents.

3. That changeovers for [X] between her parents take place on Fridays at 5.00 p.m. at a location as agreed between the parents.

4. That [X] spend such other time with each parent or variations of the above as may be agreed between the parents from time to time.

5. That each of the parents be and is hereby restrained from removing [X] from the Commonwealth of Australia without the express written consent of the other parent.

6. That each of the parents have liberty to apply for the imposition of an Airport Watch List Order in respect of [X].

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10840 of 2018

MS CHOI

Applicant

And

MR CHOI

Respondent

REASONS FOR JUDGMENT

Applications

1. These are parenting proceedings in respect of the parties only child, [X] born … 2012 (“[X]”) (aged six years).

2. The applicant is the mother.  She asks for an order that [X] live primarily with her and that she be permitted to relocate [X]’s primary place of residence from Melbourne to Hong Kong.  The mother proposes that [X] spend time in school holidays with the father in Australia or in Hong Kong and that the father have reasonable time with [X] during any visits by him to Hong Kong.  The mother asks for an order for equal shared parental responsibility.

3. The father proposes parenting orders which would see [X] living in a week-about arrangement in Melbourne.  Should the mother be permitted to relocate with [X] to Hong Kong then the father suggests that he spend school holiday time with [X] and that he also spend time on an ad hoc basis by him visiting Hong Kong.  He too asks for an order for equal shared parental responsibility. 

Background

1. The father is 39 years of age.  He is a professional.  He was born in Hong Kong but moved with his family to Australia when he was three years old.  His family members predominantly live in Sydney.

2. The mother is 42 years of age.  She too is a professional.  She was also born in Hong Kong but moved to England for boarding school education from the age of 13 years.  Her parents now live in Europe.  She has a brother who continues to live in Hong Kong.

3. The parties commenced cohabitation in London in 2008.  They married in Hong Kong on … 2009 and moved to live in Hong Kong in … 2009 where both were employed as professionals.

4. After [X] was born on … 2012, it is agreed that the wife's mother resided with or substantially resided with the parties for approximately two years and assisted in the care of the [X].

5. The mother returned to full-time employment with the Employer in … 2013 and following her maternity leave.  In that month the parties engaged a full-time domestic helper/nanny.

6. In … 2013 the parties purchased a property at Property A in Melbourne with a joint view to them eventually moving to live in Australia. 

7. In … 2015 the father left his employment to concentrate on further employment. It is clear that he assumed a greater role in the care of [X] and coinciding with the maternal grandmother returning to live in Europe although she continued to visit Hong Kong on two or three occasions each year.  The parties continued to receive assistance from the domestic helper/nanny.

8. In December 2017 the parties and [X] relocated from Hong Kong to Suburb A/Melbourne.

9. In February 2018 [X] commenced Prep at Suburb A primary school.

10. Between late February and May 2018 it is clear that the parties discussed separation, perhaps had a trial separation, and eventually separated.  During this period the wife completed two weeks of work on projects for Employer in Hong Kong and in … 2018 the father commenced employment as a professional in Melbourne.  The mother resigned from Employer in late April 2018.

11. On 12 May 2018 the father vacated the former matrimonial home at Property A.  The mother and [X] have remained living in that property subject to [X]'s time with the father.

12. In late May 2018 there were text or email communications between the parties with the mother advising of her desire to return to Hong Kong with [X].  It is clear that the father offered initial agreement and suggested that he himself may relocate to Hong Kong.  He later revoked any such agreement.

13. [X] initially spent time with the father only for day times on Saturday and Sunday of each weekend but graduating to the current arrangement whereby [X] spends eight nights per fortnight with the mother and six nights with the father.  [X]'s time with the mother takes place exclusively on weekdays and her time with the father being from Friday evening until Monday morning on each weekend.  Interim orders were made in these terms on 22 October 2018.

14. Pursuant to the discussions, in … 2018 the mother purchased a residential property in Hong Kong in a complex in which her mother and brother share the ownership of another residence.

15. The parties attempted a trial reconciliation albeit unsuccessfully in July 2018.

16. The mother commenced these proceedings, together with a property application, on 18 September 2018.  The parties have wisely reached consensus as to property orders prior to the start of this trial.

17. The mother remains unemployed.  The father continues in his employment as a professional.

18. The parties privately and jointly obtained a family report from Dr B, such report being released to them on 25 February 2019.

19. I have no evidence before me that either party has re-partnered.

20. The trial in respect of [X]'s living and parenting arrangements proceeded in this Court over three days from 1 April 2018.

The Issues

1. The major issue before the Court is as to whether [X]'s best interests are served by living primarily with the mother in Hong Kong and hence spending time with the father predominantly during school holidays or, alternatively, living in a shared care arrangement between the parents in Melbourne.

2. In circumstances where the mother has made it clear that she would not herself relocate to Hong Kong without [X], then should [X] remain in Melbourne there is a dispute between the parties as to whether she continue to live in an 8/6 arrangement between the parents over a fortnight which is the mother’s preference or, on the father's case, whether [X] live on a week-about basis between the parents.

3. Should [X] be permitted to relocate to Hong Kong then there remains some dispute between the parents as to the school in which [X] should to be enrolled.

4. Specifically, there is an issue for the Court as to the mother's capacity to care for [X] to a requisite degree if the mother should remain in Melbourne in circumstances where the mother claims to have vulnerabilities related to historical mental/emotional illness and where she claims that her isolation from family, her unemployed status, loneliness, and lack of support network together with the stresses of her marriage breakdown have and will continue to impact on her mental health such that there will be a negative vicarious impact for [X].

5. There is an issue as to the father's capacity to care for [X] on a week-about basis where he proposes to enlist the assistance of his own mother who has so to date primarily lived in Sydney but where she claims are to be willing to relocate herself to Melbourne permanently to assist the father and [X].

6. I should emphasise that, for the good fortune of [X], this is not a matter where issues such as family violence or substance abuse are argued or evident.  Indeed, each of these parties in their evidence, both in explicitly and implicitly, was able to be complimentary to the other in respect of their parenting insight and ability.  Generally speaking, against a background of the marriage breakdown, these two parents present as intelligent, articulate, cosmopolitan and child focused.

Applicant Mother’s Case

1. The mother argues that she is lonely and without support in Melbourne.  She says that she came to Australia as a married woman and a plan to live in a family unit together with her husband and [X].  She says that she does not work and does not actively seek employment as she wishes to relocate to Hong Kong.  She says that her mother and brother will support her in Hong Kong but are not able to do so in Australia.  Secondly, the mother says that she has employment available to her with her former firm.  She says that she has lived and worked previously in Hong Kong.  In essence, the mother says that her own happiness will be negatively impacted in Australia but positively so if she is able to return to live in Hong Kong.  The inference that the Court is asked to take is that her parenting of [X] will exponentially be positively impacted.

2. The mother concedes that [X] and the father have an established and attached relationship.  She says, however, that this very strength of the relationship will cause it to endure a change in its nature and frequency whereby the mother extends an open invitation to the father to spend time with [X] in Hong Kong and otherwise proposes school holiday time including greater proportions of such holidays.

The Father's Case

1. The father argues that the parties themselves agreed that Australia offers a better and preferred work/life balance for both the mother and the father in their professions and for [X] than does Hong Kong.

2. The father argues that he and [X] have such a close and frequent relationship that the nature of that relationship will suffer if the mother is permitted to relocate with [X] to Hong Kong.

3. The father says that the mother is a talented and renowned professional and would have little, if any, difficulty in obtaining employment in Australia to her requisite status and that this in turn will give her employment and social outlets.

4. The father says that [X]’s best interests are served by having a high frequency of both the mother and the father in her life.

The Evidence – Family Report

1. The parties themselves commissioned a private family report from Dr B who is a forensic psychologist specialising in child, adolescent and family psychology and a former family consultant for the Family Court and the Federal Circuit Court.

2. Dr B interviewed the parents, the child, and had the benefit of observations of [X] with each parent on 12 February 2019. His report is dated 25 February 2019.

3. At [43] and following appear Dr B recommendations as follows:

   [43] In line with the opinions outlined above, there are several recommendations:

   That, [X] would likely adjust readily to return to Hong Kong, though a relocation would have a significant impact on her capacity to maintain a meaningful connection with her father;

   There are a number of factors that suggest remaining in Australia is the preferred option for this child;

   That, should [X] remain in Australia, she should transition to a week – about living arrangement between her two parents.

4. Dr B gave evidence and was cross-examined.  Significantly, he concedes a relevant admission from his report being an assessment of the impact on the mother’s parenting and hence vicariously on [X] should the mother be required to remain unhappily in Melbourne and perhaps against the background of the mother's historical mental/emotional illnesses.  Dr B stressed, however, that his report is a forensic rather than therapeutic exercise.  Relevantly, however, he does reference the mother's circumstances in the following: –

   [34] – [35] – Mr Choi, for example, has referred to the applicant mother's history of difficult mental health, and her perfectionist and obsessional focus on work…

   … Having reviewed the material filed with the Court, and examined these parents directly, I am not convinced that any of the issues raised have long-term implications for [X]’s well-being in either care environment .… Moreover, many parents will encounter periods of mental ill-health over the course of their lives, and again, is not an atypical issue cited in circumstances of separation.  However, there is no approximate connection demonstrated during the course of this assessment to suggest that either Mr Choi's decision-making relating to [X], nor Mrs Choi's history of mental illness, has impacted on the care or well-being of this child. I would add also that Mrs Choi's work ethic, which she acknowledges has been pronounced, was part of a broader agreement between the parents about setting the family up financially in the longer term. 

5. Further, at [38] Dr B appears again to recognise the mother’s claimed circumstances if required to remain in Melbourne where he says:

   There is a strong argument that [X] would be well served by returning to Hong Kong with her mother.  There would be practical support, a furtherance of familial connections, and very likely enhanced employment opportunities for the applicant mother in comparison to Melbourne. It is significant to note as well that Mrs Choi no longer has the security of her marriage to Mr Choi in this country, meaning that there is a very real social isolation for her remaining in Melbourne.

6. Consequently, and whilst Dr B is criticised for a lack of precise assessment of any possible impact of the mother's unhappiness/isolation on her parenting capacity, I accept that his exercise is more a forensic assessment generally, and it might perhaps have fallen more properly upon the mother, having an onus to prove her assertions, to adduce evidence from a suitably qualified clinician?

7. Dr B otherwise notes in his report that these parents do not bring the more common issues regularly seen before these Courts such as substance abuse and family violence. He notes that the parents have worked 'in a highly functional manner together' since separation where they regularly exchange information about their daughter and have negotiated some flexibility in their arrangements.  At [7] Dr B notes that neither parent makes allegations that [X] has been abused or mistreated in the care of the other and there are no specific or emphasised concerns in respect of parental capacity.

8. In his interview with Dr B, Mr Choi raised the same issues as he did before this Court.  He believes that [X] is now settled in Australia and competent in the English language and enjoying the particular culture.  He expressed concerns in respect of the mother’s propensity for working long hours and being ambitious in her career if she is to return to Hong Kong with possible consequent detriment to [X].  Primarily, he expressed to Dr B that he would become 'a transient figure in her life' if the child was to return to Hong Kong.  Interestingly, and some emphasis was placed on this in cross-examination of both Mr Choi and Dr B, the father appeared to be more agreeable to a relocation per se (even to London or elsewhere) but not to Hong Kong.  In cross-examination, the father disagreed with the quote attributed to him but conceded that the he maintains his concerns in respect of Hong Kong's work/lifestyle dichotomy.

9. Similarly, the mother in her interview with Dr B emphasised the issues that she raised before this Court being primarily her feeling of isolation and lack of support to Australia.  At [22] she tells Dr B that she 'did not believe that she would revert back into her former habits of extreme work hours.'

10. Dr B interviewed [X] who is just six years of age.  He describes her as reserved and circumspect.  Dr B bullet points [X]'s responses in the interview and they are worthy of repetition here as follows:

    (a)[X] described her parents’ separation had been upsetting for her, and that she wanted to live with both of her parents;

    (b)She stated that she enjoyed attending Property A primary school, and that she had made friends;

    (c)[X] understood that her parents disagreed about whether to remain in Australia, stating, 'my daddy wants to live in a different house and wants to stay in Melbourne but my mum wants to live in Hong Kong';

    (d)She said that, 'I like Melbourne more' , then went on to state that she would be happy also living in Hong Kong and that the best solution would be to live 'maybe both';

    (e)[X] did not believe her parents to be on overly positive terms, though described, 'they just talk to each other, they don't love each other, they just separated from each other'.  Equally, she did not describe any pattern of either parent criticising or undermining the other;

    (f)[X] did not report that there was anything weighing heavily on her emotionally, nor that she was particularly anxious about the relocation decision currently affecting her family.

11. Dr B observed [X] with both parents.  He describes those observations simply as follows:

    (24)   Observations of [X] with her father were positive.  [X] presented as familiar and comfortable. She engaged with Mr Choi in a natural way. They improvised a drawing game together, demonstrating a reciprocal and close bond.  Mr Choi impressed as attuned and highly skilled with his daughter. 

    (25)   [X]'s presentation varied very little when observed with her mother.  She was similarly accustomed and interactive.  Mrs Choi was perhaps more structured in her play with [X] than was the respondent father, although this was not intrusive, nor did it inhibit any natural exploration on the part of the child.

12. Despite a perhaps eventual and reluctant concession as to an omission in respect of the matters set out above, Dr B in his evidence in Court maintained that, on balance, emphasis should be placed on the nature of the current relationship for [X] with each of her parents and its high frequency and close attachment.  He noted that [X] was ambivalent has to the question of living in Australia or returning to Hong Kong but also noted that she is likely to be 'fairly adaptable' and would adjust to any eventuality.

13. When pressed, in cross-examination, Dr B maintained his understanding and observations that the mother's mental health was stabilised.

14. Interestingly, at [39] Dr B notes the certain irony in the strength of the relationship between this six year old child and her father in that Mr Choi himself perhaps conceded a relocation in some form for the mother and the child, albeit not to Hong Kong which, as Dr B notes, 'negates his argument that his relationship with [X] would be severed irreparably'.

15. Finally, Dr B recommendations are perhaps seen to rest on his comments at [41] where he notes the robustness of [X] but suggests:

    It would seem more straightforward, prima facie, for [X] to remain living in Melbourne now that she has settled into school here (noting also a cumulative effect of successive changes for children), and to spend regular time throughout the year with her maternal family in Hong Kong, rather than relocate entirely. 

The Mother's Evidence

1. The mother gave evidence in a confident fashion and understandably in an attempt to shore up her own case.  Significantly, she was not noticeably critical of the father.  On one occasion she volunteered positive comments in respect of the father's capacity and his relationship with [X]. 

2. The mother emphasised her feelings of isolation and being left without physical or emotional support in Melbourne.  She showed a clear desire to return to her career although was at pains to assure the Court and the father that she would not return to her previous onerous work habits.

3. The mother did not adduce evidence from her prospective employers.  Rather, she chose to annexe a letter from that employer which is now some seven months old, but which also carries a draft contract for potential employment.  That letter does suggest the firm to be both flexible and family friendly and perhaps at odds with both the mother's previous experiences there and the father's evidence of the mother’s past work habits.  Without the author being present for cross-examination, the Court is left with some issues of interpretation or even ambiguities in the letter.  The mother, however, was cross-examined vigorously in respect of her work intentions and maintained that she would prioritise her care of [X] over her employment and was confident that a balance could be achieved.

4. Secondly, the mother adduced no professional evidence as to her current mental health or as to any likely impact on her own mental/emotional condition and/or on her parenting of [X] if she should remain in Australia.  The mother was cross-examined with some force as to her failure to adduce the best evidence in respect of both her employment and her mental health and was unable to give any persuasive responses.  She did, however, provide an affidavit by Ms C who is a Melbourne psychologist and deposes to having seen the mother on seven occasions from 4 September 2018.  Ms C was not required for cross-examination.  Her report, therefore, does not necessarily satisfy the more intrusive questions as to the effect on the mother of being required to remain in Victoria and/or the impact on her parenting.

5. Ms C describes her relationship with the mother as 'she was seeking support as she undertook the process of separating and discussing the care of their daughter, [X], with her ex-partner'.

6. There is no indication in Ms C's four paragraph report of 15 March 2019 that she has been provided with the mother's clinical notes from her previous Hong Kong psychiatrist or psychologist.

7. Ms C describes the mother as 'intelligent, articulate, thoughtful and loving’.  She notes the mother's feeling of isolation in Australia with no family support and limited friendships.

8. Further, however, the Court is left with littlest forensic assistance from Ms C's evidence.

9. The mother's own mother, Ms D, gave evidence and whose affidavit was filed 30 January 2019. Ms D and her husband live in Europe.  She indicated a willingness to assist the mother in the care of [X] but only should the pair relocate to Hong Kong where, of course, Ms D herself has historical connections, owns property, and has a son who lives in Hong Kong.  Ms D insisted, but perhaps unconvincingly, that she would not be so willing to assist the mother and [X] should they remain in Melbourne.

The Father’s evidence

1. The father also gave evidence and was cross-examined.  Like the mother, he presented as a positive, honest and good witness.  He also was not inclined to be critical of the mother or her parenting of [X]. Indeed, it is unlikely that he could offer such criticism given his proposal is one of shared care on a week-about basis.  Also like the mother, he presented as intelligent, articulate and child focused.  In his evidence.

2. Mr Choi was cross-examined vigorously as to whether or not he himself could relocate (or return) to Hong Kong.  He conceded that he had considered this is a possibility and indeed may have led the mother to such a belief in their text communications in May 2018.  The father, however, says that he is now considered and informed in his position that it would not be in his own best interests to relocate to Hong Kong where he emphasises that the work/lifestyle imbalance is not beneficial to him or to a family unit.  At best, he maintained that he would 'consider' a move at some time in the future if [X] was to relocate but clearly he would do so reluctantly.

3. Secondly, the father emphasised the current nature of his relationship with [X].  He says that both he and the mother notice [X] being upset when she leaves him now and is of the view that this would be emphasised if the nature of the relationship became one of less frequent contact.

4. The father says that [X] has successfully assimilated into the Australian lifestyle.  He says that she is happy and successful academically and socially in Melbourne.  The strong inference from his evidence is that he believes that [X] can benefit by having a more equal and frequent relationship between her parents.

5. Mr Choi emphasised the skill and professional recognition in which the mother is held and suggested that she herself would be happier in obtaining employment in Melbourne which would in turn give her and [X] that preferred work/lifestyle balance.

6. The father's mother, Ms E, gave evidence and was cross-examined.  Her affidavit was filed 25 March 2019.  Ms E gave evidence that she has come from Sydney to Melbourne since about September 2018 to assist the father in his care of [X] which currently occurs over each weekend and some six nights per fortnight.  Ms E had previously lived in Sydney for more than 30 years.  She owns three properties there.  She has two other children who live in Sydney and also a grandchild.  Whilst her assistance to Mr Choi is admirable, the Court is left to wonder whether this can be a long term arrangement or, alternatively, as to why the paternal grandmother should have that the 'need' to assist the father when his time thus far with [X] has been limited to weekends?

Relevant Law

1. Matters involving the potential relocation of a child bring to the fore particular difficulties and, not in the least, impingements on the rights of adult parents.  Notably, the jurisdiction of this Court deriving from the Family Law Act 1975 (‘the Act') focuses its jurisdiction first and foremost in respect of children.  That is, whilst a Court can permit or prevent the relocation of a child as a part of parenting orders, it cannot usually prevent the freedom of movement of an adult.  This has long been recognised by superior Courts including by the High Court in AMS & AIF[1] where trial judges are obliged to consider the 'right of freedom of movement' of an adult parent but subject always to the best interests of the child.

   [1] (1999) CLR 160

2. It follows that matters involving a proposed relocation of a child, and in particular a young child such as [X] in this case, are amongst the more complex, difficult and problematic matters coming before these Courts.  The majority of parenting matters involve more discrete disputes as to the division of actual time between children and parents.  A matter involving a potential relocation of a child, however, will inevitably leave one or other of the parents aggrieved by the result.  That is, a relocation of a child will usually leave the remaining parent with a significant sense of loss and a fundamental change in the nature of their relationship with their child.  That relationship will change in its type and frequency.  Relationships for the child with remaining extended family members will be similarly impacted by a lack of frequency.  The feelings of the remaining parent will often be accompanied by a sense of bitterness towards the other relocating parent resulting in ongoing difficulties of trust, co-operation and communication between the parents.  Whilst strong parent/child relationships might endure a relocation, the remaining parent will be denied relationship flexibility and spontaneity where opportunities for involvement in the child's schooling and extracurricular activities are effectively lost.  Practical and logistical issues of travel and expense of travel arise.  Further, as the child grows older and develops peer relationships and personal interests in his or her new location, the durability of even the most detailed Court ordered time-with arrangements will be tested.

3. To the contrary, orders which obligate one parent to remain with the child (in circumstances such as that now before the Court where the mother says that she will not herself relocate without [X]) will inspire similar grievances in that parent. Personal and professional ambitions are left unfulfilled.  That parent can feel isolated and be left without actual or perceived family or other physical and emotional support.  This in turn will also impact negatively upon any co-operative and respectful relationship with the other parent.

4. Consequently, matters involving the potential relocation of a child will usually leave Courts with options at the extremes rather than the subtle construction of orders in the more common of parenting cases.

5. The Family Law Act itself is silent as to the notion of relocation. It follows that the relocation of a child is neither expressly prohibited by law nor is there a presumption against it. That is, a proposal by one parent to relocate a child is simply one factor to be considered amongst a plethora of considerations in arriving at orders which, on balance, attend to the best interests of the child in circumstances where the child's best interests are the paramount considerations of the Court pursuant to section 60CA of the Act.

   In this sense, the Full Court in Taylor & Barker[2] confirmed an earlier authority of Paskandy & Paskandy[3] handed down prior to the significant amendments to the legislation in 2006 that there can be no dissection of a parenting matter into discrete issues of, firstly, with whom the child shall live and then a further or separate issue as to whether a relocation of the child should be 'permitted'.  The Court in Taylor & Barker noted:

   In our view, his Honour dealt with the relocation proposed in the context of his considerations of s60CC and s65DAA, at least insofar as it was possible to do so.  It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as it is possible, in the context of the making of the necessary findings in relation to the s60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s65DAA.

   [2] (2007) FLC 93-343

   [3] (1999) FLC 92-878

6. The peculiarities of matters involving a proposed relocation of a child have been considered by the High Court in MRR & GRR[4]being a matter with issues analogous to those now before this Court and where their Honours emphasised the dual requirements of parenting orders to be both in the child's best interests and 'reasonably practicable'.  That is, and importantly, trial judges are mandated, upon the making of an order for equal shared parental responsibility in parents for their child (which is not disputed here), to follow a statutory and intellectual course of consideration beginning with the question of whether the child spending 'equal time between parents' is both in the child's best interests and reasonably practicable.  If the answer to either of those questions is in the negative then the Court moves to consider whether the child living in a regime of 'substantial and significant time between parents is both in the child's best interests and reasonably practicable.

   [4] (2010) 240 CLR 461

7. In the matter now before me, the father proposes a regime for [X] of equal time between the parents on a week-about basis.  This then is essentially the first consideration of the Court in respect of the child's ultimate best interests and of issues of practicability.

8. The concept of 'substantial and significant time' is defined in the Act as involving time for a child with a parent on both weekends and weekdays and which allows the child and the parent to be mutually involved in each other's activities and interests. It becomes clear then, of course, that the mother's proposal for the relocation of [X] to Hong Kong does not permit a regime for [X] of either 'equal time' or 'substantial and significant time' by reason of matters of geography and logistics.

9. Significantly, the High Court in MRR & GRR (supra) noted at [15]:

   Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, and not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s65DAA(1) is not determinative of the questions arising under s65DAA(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 the parents remained in (X location), (the trial judge) was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.

10. Like the mother in MRR & GRR, the mother in the matter before me addresses the 'reasonably practicable' consideration in arguing that her personal circumstances, emotional health, and lack of emotional and physical support combine to make orders for equal time and/or substantial and significant time not reasonably practicable.

11. Whilst there is no discrete or particular mention of 'relocation' in the Act, various Full Courts have over the years compiled a helpful list of 'principles' for the assistance of trial judges in dealing with matters involving a proposed relocation of a child.. Those principles can be summarised as follows:

    ·Relocation matters are to be determined generally with reference to part VII of the Act;

    ·The child's best interests remain the paramount but not the sole consideration;

    ·A relocation proposal is to be evaluated within the context of the necessary findings in relation to the child's best interests (section 60CC matters) and, where appropriate, s.65DAA (‘reasonably practicable’);

    ·The Court must consider the parties’ proposals, including the advantages and disadvantages of a proposed relocation and may be required to formulate proposals itself in the best interests of the child;

    ·Neither party bears an onus to establish that a relocation or a continuation of an existing regime will best promote the interests of the child;

    ·An applicant for relocation need not show 'compelling reasons' in support of the relocation but, in my view, must produce probative evidence which permits the Court, on balance, to find that a parenting order involving a relocation is in the best interests of the child; and

    ·The child's best interests must be weighed and balanced with the 'right' of the proposed relocating parents freedom of movement but that such an adult 'right' must ultimately defer to the child's best interests.

12. As mentioned above, the starting point for the Courts consideration is the presumption at s.61DA of the Act that equal shared parental responsibility for their children is in the best interests of those children. Parental responsibility can be defined as all the duties, powers, responsibilities and authority which parents hold in respect of children by reason of the law. These responsibilities are usually seen as manifesting in parents making the long-term and important decisions for children in respect of issues such as education, religion, medical procedure and similar and as distinct from the more mundane day-to-day decisions that parents make for children. In the matter now before me, both parents asked for an order for equal shared parental responsibility and against a factual platform where issues of family violence and general capacity do not feature, I am entirely satisfied that it is in [X]'s best interests for there to be such an order.

13. Whilst the Court’s discretion is broad in respect of determining the best interests of children, that determination must be within a legislative framework commencing with s.60B of the Act which sets out the objects and principles of the legislation as follows:

    (1)     The objects of this Part are to ensure that the best interests of children are met by:

    (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c)      ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

    (2)  The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

    (a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c)    parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d)    parents should agree about the future parenting of their children; and

(e)    children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. It is clear then that the issues raised and argued by these parents sit fairly and squarely with reference to both the objects and principles of the legislation as set out above. On a more practical level, however, the Court is then mandated to reference each of the statutory considerations set out in s.60CC(2) and (3) of the Act to the probative evidence given and adduced and to the proposals of each of the parties in order to ultimately arrive at a determination and to formulate orders which are, on balance, in the child's best interests.

2. Those s.60CC considerations are categorised as ''primary' and 'additional'.  There are, however, no hierarchical priorities and each matter must be considered as to its own particular factual platform and then weight to be attributed to the evidence reference to each of these factors accordingly.

Section 60CC Factors

S60CC(2)(a) - the benefits to the child of having a meaningful relationship with both parents

1. The evidence of both parents are, and the family reporter makes it clear that [X] is fortunate in that she has developed strong attachments to both of her parents.  Importantly, for my considerations, the Full Court[5] has interpreted the adjective 'meaningful' in qualitative rather than quantitative terms and views the enquiry for trial Courts to be of a ‘prospective' type although obviously considering the evidence in its current form.  As such, the Court is to look at the current nature of the relationship between the child and each of the parents in the sense of its quality, but against a background where the mother's proposal is to significantly change the quantity of time between the child and the father.  The mother argues that the strength of [X]'s relationship with the father will assist that relationship enduring a change in its form by way of a relocation to Hong Kong.  Conversely, the father fears that the relationship will suffer by reason of a change in its nature and frequency on the mother's proposal. This consideration is a 'primary' one but importantly not determinative of the orders that I will make but rather simply one within the many considerations for the Court to weigh and balance[6]. 

S60CC(2)(b) - the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

[5] McCall & Clark (2009) FLC 93-400

[6] Champness & Hanson [2009] famCAFC 96

1. Unusually, no issues of family violence, even within the broad definition of the term in the Family Law Act, are raised in this matter.

S60CC(3)(a)  - any views expressed by the child and any factors ( such as her maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views

1. [X] is just six years of age and would not ordinarily be expected to be able to formulate rational views and preferences as to her living arrangements.  Nevertheless, the report from Dr B indicates some understanding by [X] in the parental dispute and the issues for this Court. At [23] she indicates that she prefers Melbourne to Hong Kong but is generally ambivalent in respect of where she lives and this is perhaps an indication of the strength of her relationship with each of her parents and the confidence that she has in those relationships.  At [32] Dr B notes [X]'s ambivalence as to the question of living in Australia or Hong Kong.  He then opines that:

   Although shy and demure by disposition, my impression of this child is that she is likely fairly adaptable and would probably adjust well to any eventuality. 

S60CC(3)(b) - the nature of the relationship of [X] with each of her parents and any other persons including grandparents or other relatives.

1. [X] has been fortunate throughout her life to have enjoyed high-frequency relationships with both of her parents and continuing following their separation.  She currently lives with her father for six nights per fortnight in two blocks of three nights and in two blocks each fortnight with her mother.  She is described as attached and comfortable with each of her parents and it is fair to assume that she derives benefits from the nature of those close relationships.

2. Dr B and each of the parents reference the strength of [X]'s relationship with the father as an indication that she may well endure a change of that relationship by her mother's proposal to relocate to Hong Kong.  Inevitably, however, that relationship between [X] and the father would change significantly if [X] were to relocate.  Firstly, the frequency of the relationship would change substantially with the introduction of huge gaps of time between school holiday contact albeit with some opportunity for the father to fly to Hong Kong on occasion.  Secondly, the relationship would lose any opportunity for flexibility and spontaneity in the involvement of the father in [X]'s education and extracurricular activities. Thirdly, the relationship would take on a different form and be essentially limited to holiday time between child and father whereas the Mr Choi currently has an opportunity for involvement in [X]’s school by collecting her on Fridays and returning her to school on Mondays. His proposal of a week-about arrangement would further enhance the father's ability to be involved in [X]'s education and extracurricular activities on an equal basis with the mother.

3. Still further, should [X] relocate with her mother to Hong Kong then the nature of her relationship with her mother would also change from currently being one of shared time between the parents to one where the mother would assume a primary and dominant carer role, and it is here that the father challenges the mother's ability and willingness to balance her career ambitions and her parenting responsibilities if she and [X] are to relocate to Hong Kong.

S60CC(3)(c) - the extent to which each of [X]'s parents has taken, or failed to take, the opportunity: 1 - to participate and make decisions about long-term term issues in relation to the child; 2 - to spend time with the child; and 3 - to communicate with the child and (3)(CA) – the extent to which each of [X]'s parents has fulfilled, or failed to fulfil, the parents’ obligation to maintain her

1. On the evidence before me, both of these parents have discharged their responsibilities to the care and support of [X].  Indeed, they have each at times been able to negotiate that one or the other will prioritise employment whilst the other takes a more primary role in the care of [X].  Despite their dispute now before the Court, both the mother and the father have shown a willingness to co-operatively parent [X].

S60CC(3)(d) - the likely effect of any changes in [X] circumstances, and the likely effect on [X] of any separation from either of her parents or child, or other person (including grandparent or other relative) with whom she has been living

1. This consideration is at the crux of the dispute before the Court.  Essentially, the mother says that the strength of [X]'s relationship with her father would allow it to endure the changes in its nature by reason of a relocation to Hong Kong.  The father argues that such changes are unnecessary where [X] is successfully assimilated into Australian life and her schooling and where the opportunity exists for her to enjoy both of her parents being readily available and willing to accept the responsibilities of parenting her.  On a practical level, the mother's proposal, as mentioned above, would change the nature of [X]'s relationship with each of her parents.  Dr B recognises that [X] is currently 'not obviously closer or more attached to one of her parents'. The mother's proposal would inevitably cause [X] to become more reliant or dependent upon her mother given the absence of her father.  The relationship with her father would become more one of 'visiting' with lengthy gaps in direct contact.  Whilst any detriments in such a change can be addressed in part by the use of social media, it is generally accepted that these are not to substitutes for direct contact between a parent and a child.

2. The mother's proposal will also bring changes for [X] in aspects of her life as identified and emphasised by the father in his argument before this Court.  [X] would be required to change school and perhaps educational philosophy and where English might not be the first language of those schools.  [X] would be living in an environment where both parents acknowledge a tendency towards emphasis on employment rather than the same work-life balance that each of these parents sought when relocating to Australia in 2017.

S60CC(3)(e) - the practical difficulty and expense of [X] spending time and communicating with her remaining parent and whether that difficulty or expense will substantially affect her right to maintain personal relationships and direct contact with both parents on a regular basis

1. [X] herself is described as robust and attached in her relationships with each of her parents.  She has previously lived in Hong Kong. Her parents are cosmopolitan and financially stable.  Air travel for children to spend time with parents is, even on an international basis, is not uncommon in the 21st-century. The father has indicated that he would be prepared to travel to Hong Kong himself on occasions should the mother's proposal be accepted.  Nevertheless, there would be logistical issues for this child in travelling between Hong Kong and Australia to visit her father, such that would not be evident if both parents were to remain living in Melbourne.

S60CC(3)(f) - the capacity of each of the parents to provide for [X]'s needs, including physical, emotional and intellectual needs

1. Each of these parents is complimentary of the capacity of the other to provide for [X]'s physical and emotional needs.  Indeed, each at different times has delegated the primary role of caring for [X] to the other whilst that parent pursued their employment ambitions.  Both parents are intelligent, articulate and worldly and each offer much to their daughter.

2. The issues in respect of ‘capacity' rests, firstly, with a question as to the mother's capacity to care for [X] if the mother herself should be unhappy and unfulfilled by being required to remain living in Melbourne as opposed to her preferred Hong Kong and, secondly, should the mother lapse back to her previous onerous work habits and ambitions if she is in Hong Kong?

S60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of [X] and either of [X]'s parents and any other characteristics of [X] that the Court thinks are relevant

1. The mother argues that a relocation of [X] back to Hong Kong will allow her more opportunity for exploration and involvement in her culture where both parents were born in Hong Kong.  Undoubtedly, this would be the case where [X] would attend school where Mandarin might be the preferred language and easy involvement in her culture would be available on a day-to-day basis.  Nevertheless, these parents themselves are worldly and cosmopolitan.  They made a conscious decision to move themselves and [X] to Australia in 2017.  This has resulted in [X] commencing her school life in a Melbourne school and, on the evidence before me, clearly assimilating into and enjoying the Australian culture but in circumstances where each of her parents are capable of ensuring continued education and exposure to her cultural background.

2. Secondly, it must be remembered that [X] is just six years of age and where she might reasonably be expected to be still establishing the important relationships with adults, not the least, being her parents.  To put it bluntly, and despite her robustness, the Court must still consider any potential impact on [X]'s relationship with her father should the nature of that relationship change so significantly by reason of the mother's proposal to relocate [X] to Hong Kong. 

S60CC(3)(h) - if the child is an aboriginal or Torres strait Islander

1. Not relevant.

S60CC(3)(i) - the attitude to the child and responsibilities of parenthood, demonstrated by each of the child's parents

1. On all of the evidence before me it is patently clear that [X] has the benefit of two capable and responsible parents.  These are parents who show mutual respect and potential for continuing co-operative and communicative parenting.  Whilst the mother has a preference to live in Hong Kong and the father a preference to live in Australia, it is clear that they each agonise in rationalising their own preferences with what they accept are their responsibilities for the six-year-old [X].

S60CC(3)(j) & (k) - any family violence or family violence orders that are applicable

1. These matters are not relevant to my determination.

S60CC(3)(l) - the order that would be least likely to lead to the institution of further proceedings in relation to [X]

1. The orders that the Court are required to make are prospective in their nature and effect.  As such, there are unknowns and vagaries which will arise in respect of [X]'s parenting.  Nevertheless, and despite the inevitability that one or other of these parents will be aggrieved by my orders being that the mother will be perhaps anguished or even resentful if the relocation is not permitted and, conversely, the father disappointed should [X] be permitted to relocate to Hong Kong, each of these parents should then move forward in their parenting of [X] armed as to their daughter's best interests.  Given their impressive presentations in the witness box and the mutual respect that they show for each other, I am confident that they would be able to do so accordingly.

Findings and Conclusions

1. I am easily able to find that [X] has an established, comfortable, meaningful and attached relationship to both of her parents.

2. I find that both parents are capable and attentive to [X]'s needs.

3. [X] is comfortable, happy and established in her school life in Australia.

4. The evidence satisfies me that [X] benefits from the current frequency of her relationship between her parents.

5. I am satisfied that [X] is ambivalent in respect of either parent's proposal, be it that she relocate with her mother to Hong Kong or remain but between her parents in Melbourne.  Whilst at just six years of age, I am not persuaded that [X] has the maturity or level of rationality in order properly understand her best interests but it is clear that she expresses no negative reactions to either staying in Australia or relocating with her mother to Hong Kong.

6. I am satisfied that the mother is justified to a degree in her feelings of loneliness and isolation in Australia.  That is, she came to Australia on an agreement with her husband and in a family unit with her husband and daughter.  That marriage has since broken down leaving her without employment or any access to social or family support.  I am satisfied that this is a mother who has previously suffered some emotional illnesses due to particular stressors and has also enjoyed a close and supportive relationship with family members and particularly her own mother.  Nevertheless, Ms Choi impressed me in her evidence in Court and in respect of her background as to being worldly, sophisticated, intelligent and professional.  I accept that she has not pursued employment in Australia due to her desire to return to Hong Kong and pending the result of this litigation.  The evidence of her professional abilities and standing suggest, however, that she would readily obtain employment in Australia.

7. Further, and whilst I accept the mother's subjective view as to her emotions and desires, she has not adduced evidence to satisfy me that there would be any negative impact on her parenting of [X] should she be required to remain in Australia.  I note the opinion of Dr B that he understood the mother's mental health to be stabilised and despite recognising her unhappiness in Australia.

8. I am easily satisfied that the mother would also be able to obtain employment as a professional in Hong Kong.  Again, however, she has not adduced evidence in a desired form from her prospective employer such as to put to rest of the legitimate concerns of the father in respect of a work/life balance in Hong Kong and given the mother’s previous and conceded history of a heavy work load and ambition in Hong Kong.  The evidence, such as it is, from her prospective employer is in hearsay form and not able to be tested.  It leaves matters open to interpretation such that the Court is left with some of the concerns espoused by the father being unaddressed to any objective level.

9. I am satisfied, however, that the mother would have the frequent assistance of the maternal grandmother in caring for [X] and to accommodate the mother's work commitments in Hong Kong.  I do not necessarily accept, however, that this generally altruistic maternal grandmother would be disinclined to offer her assistance to the mother in Australia albeit perhaps not to the same degree as in Hong Kong.

10. Whilst I accept that these parents are likely to be financially capable and willing to each support [X]'s relationship with the other, it is obvious that the mother's proposal to relocate [X] to Hong Kong will create a significantly different relationship for [X] with her father where to date [X] has benefited from a high-frequency relationship and where Mr Choi has, for a period, assumed a primary role in her day-to-day care.  If [X] was to relocate to Hong Kong then the nature of that relationship would be changed significantly with much less frequency of contact, a loss of flexibility and spontaneity in that relationship, and with the addition of travel and logistic issues where [X] would become more of a visitor to her father.  At just six years of age, I am comfortably satisfied that this would create a significant change in the nature of that relationship and where this young child would be required to negotiate those changes in the nature of her relationships with each of her parents.

11. There are obvious positives to the mother's proposal of relocating herself and [X] to Hong Kong.  Firstly, [X] would do have more direct exposure to her culture.  The mother herself would be more likely, at least in the short term, be happier, be able to pursue her desired employment, and to have immediate family support for herself and in her parenting of [X].

12. The apparent disadvantages in the mother's proposals are conversely advantages on the father's argument.  Firstly, [X] will have both of her parents immediately and conveniently available to her if she is to remain in Melbourne. The evidence suggests that she is settled in her living arrangements and in to her first years of schooling but would need to adjust, actually, linguistically, logistically, socially and culturally to a new school on the mother’s proposals.  Further, if the mother and [X] were to remain in Melbourne then there is easy opportunity and availability for the mother and [X] to travel to Hong Kong during holidays.  It is highly likely that the mother would obtain employment in Australia and, whilst separated, it would be the actual support of the father in sharing the care of [X] as is the current to situation.

13. Whilst the mother is generally an impressive witness and parent for [X], there was one part of her evidence which gives some small residual concern as to her insight into [X]'s needs and her ability to separate [X]'s needs from her own desires.  When challenged in cross-examination as to any disadvantages for [X] in moving to Hong Kong the mother only, as an apparent afterthought, seemed to understand that 'oh yeah, she might miss her dad' in circumstances where both parents were at other times able to agree that [X] is frequently upset when she leaves her father's care, indicating the closeness of the relationship between father and daughter.

14. At its most abstract, a determination as to [X]'s best interests rests on a balance between the mother’s strong desire and her own subjective happiness in returning to Hong Kong with [X] as against a situation where [X] is clearly currently benefiting from the availability and highly frequent relationship with both parents.  On balance, and where the benefits to [X] of the current arrangements are abundantly evident, together with a lack of evidence focused on any harmful impact on the mother's parenting in remaining in Australia (but whilst accepting her general unhappiness, on remaining in Melbourne), I am of the view that, on balance, that [X]'s best interests are served by a continuation of the current shared parenting regime and where I am confident that the mother's current personal circumstances will not become entrenched given her professional skills, reputation and experience.

15. It remains for me, therefore, to determine what regime is in [X]'s best interests in continuing to live in Melbourne.  The current arrangement sees [X] living with her father for six nights per fortnight and with her mother for eight nights each fortnight. That configuration of time, however, gives the father only weekend time and conversely the mother no weekend time with [X]. In circumstances where quality of time is important for the formation and maintenance of child-parent relationships, and where both parents should take responsibility for dealing with a child's education, I prefer [X] moving to a regime whereby she live in a week-about arrangement between her parents.  I expect that this would also give more certain and available opportunities for the mother to pursue her employment in Australia.

16. I do not propose to make any specific orders in respect of [X] travelling with the mother to Hong Kong during school holidays as my observations of these two parents causes me to conclude that they will be respectful and accommodating in this regard. So as to emphasise the thrust of these reasons to be that [X] remains living in Australia unless the parents agree otherwise, there will be an order that neither parent remove [X] from Australia without the express written consent of the other parent.  I see no need, however, to further complicate what are generally respectful relations between two very good parents by imposing an Airport Watch List order although each will have liberty to apply in this respect.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 15 May 2019