Cobb & Jepson
[2021] FamCA 12
•22 January 2021
FAMILY COURT OF AUSTRALIA
Cobb & Jepson [2021] FamCA 12
File number(s): LEC228/2008 Judgment of: CAREW J Date of judgment: 22 January 2021 Catchwords: FAMILY LAW – CHILDREN – Relocation – Whether it is in the child’s best interests to relocate with the father to the United Kingdom –Where the father is at liberty to relocate with the child – Where the father has the capacity to support the child should he relocate to the United Kingdom – Where the father will likely facilitate the child spending time and communicating with the mother and grandmother if he and the child relocate to the United Kingdom – Where the father will not be required to delay his decision to relocate with the child due to the COVID19 pandemic.
FAMILY LAW – CHILDREN – With whom a child spends time – Whether the time spent between the mother and child occurs in the presence of the maternal grandmother - Where time should occur in the presence of the grandmother if requested by the child - Whether the child is neglected by the father – Whether the parents’ alleged involvement of the child in the conflict has had an impact on the child – Where the child’s behavioural issues and school absenteeism are likely to be attributable to her being the focus of her parents’ ongoing conflict.
FAMILY LAW – CHILDREN – Parenting Order – Variation – Where there is a ‘final’ parenting order in place – Rice & Asplund – Where the father’s wish to relocate with the child to the United Kingdom is a significant change warranting variation to the previous parenting order – Where the mother’s evidence does not establish a sufficient degree of significance to warrant a reversal in the child’s living arrangements or parental responsibility – Where it is in the child’s best interest to continue to live with the father – Where it is in the child’s best interests that the father continue to have sole parental responsibility for the child.
Legislation: Convention on the Civil Aspects of International Child Abduction
Drug Misuse and Trafficking Act 1985 (NSW)
Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations1986 (Cth)
Narcotic Drugs Act 1967 (Cth)
Cases cited: AMS v AIF (1999) 199 CLR 160
Babcock & Waddell [2019] FamCAFC 129
Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Carriel & Lendrum (2015) FLC 93-640
Colgan & Colgan [2014] FamCA 828
Doherty & Doherty [2016] FamCAFC 182
Gunst & Dittersdorf [2019] FamCA 126
M & M (1988) 166 CLR 69
Mahoney & Houston [2018] FamCA 71
Poisat & Poisat(2014) FLC 93-597
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
Tritton & Ryan [2019] FamCA 929
Zahawi & Rayne [2016] FamCAFC 90
Number of paragraphs: 97 Date of hearing: 11 – 14 January 2021 Place: Brisbane Solicitor for the Applicant: Jensens Solicitors & Attorneys First Respondent: Self-represented Solicitor for the Second Respondent: Amanda Fawaz Solicitor Counsel for the Independent Children's Lawyer: Ms Hellewell ORDERS
LEC228/2008 BETWEEN: MR COBB
ApplicantAND: MS JEPSON
First Respondent
MS B JEPSON
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
Other
ORDER MADE BY:
CAREW J
DATE OF ORDER:
22 JANUARY 2021
THE COURT ORDERS THAT:
(1)Pursuant to paragraph 4 of the parenting Order made on 27 May 2014, Mr Cobb born … 1976 (“the Father”) continue to have sole parental responsibility for X born on … 2007 (“the Child”).
(2)Pursuant to paragraph 2 of the parenting Order made on 27 May 2014, the Child continue to live with the Father.
(3)Paragraphs 16 to 19 of the parenting Order made on 27 May 2014 be discharged.
(4)Paragraphs 4 and 7 of the Order made on 5 December 2019 be discharged.
(5)The Father be at liberty to relocate to England, United Kingdom with the Child and the Child, X (a female) born on … 2007, be removed from the Family Law Watch List.
(6)The Father be at liberty to obtain a British Passport for the Child.
(7)The Father be at liberty to register the Child as a British Citizen for the purposes of schooling and government regulations in England.
(8)The Father inform the maternal grandmother, Ms B Jepson born on … 1948 (“the Grandmother”) and Ms Jepson born on … 1967 (“the Mother”) of the confirmed travel arrangements and flight details of when he and the Child will relocate to England and of the confirmed arrangements and contact details for where they will be residing upon arriving in the England, within 24 hours of confirming such arrangements.
(9)Within 48 hours of arrival in England, the Father inform the Grandmother and Mother of their safe arrival.
(10)The Father make arrangements for the Child to spend time for a period of 7 days with the Grandmother to include the Mother as requested by the Child, not less than 7 days and not more than 14 days prior to the date of departure.
(11)The Grandmother, the Mother and the Father provide to each other by email, their residential address and emergency contact details and notify each other of any change of same within 7 days.
(12)The Child spend time with the Grandmother, when the Grandmother travels to England, for a period or periods agreed between the Father and Grandmother and/or failing such agreement as follows:
(a)for no less than three days if during the Child’s school term provided that such a visit does not disturb the Child’s attendance at school; and
(b)should the Grandmother travel to England during the England Easter school holidays, for no less than one week; and
(c)the Grandmother must provide to the Father at least 6 weeks’ notice of the proposed dates and details of where she will be with the Child at all times.
(13)Subject to paragraph (16) of this Order, following the relocation to England, the Child spend time with the Grandmother in Australia for a period of up to 4 weeks during the English Summer school holidays in each year, with such time to conclude at least 2 weeks prior to the end of the English Summer school holidays, and in the event that the Grandmother intends to spend any or all of that time with the Child away from her residence then she notify the Father of the alternate address/es and dates, where and when, she proposes to stay with the Child and further provide such information at the soonest available opportunity after she makes such arrangements.
(14)In addition to the time in paragraph (12) and (13) of this Order, the Child spend one additional period of time with the Grandmother as agreed between the Grandmother and the Father, subject to the Grandmother taking into consideration the wishes of the Child, but failing agreement between the Father and the Grandmother, during the UK Easter school holidays once each calendar year as follows:
(a)For 10 days in Australia; or
(b)For two weeks in the United Kingdom and Europe;
with the Grandmother providing 30 days’ notice to the Father of whether time will proceed in accordance with (14)(a) or (14)(b).
(15)Time in accordance with paragraphs (13) and (14) of this Order is subject to the following:
(a)The Grandmother providing the Father not less than 30 days’ notice in writing that the Child shall spend time with her in Australia or that time shall occur in the UK and/or Europe;
(b)Within 14-days after the Grandmother giving notice to the Father in accordance with paragraph (15)(a) of this Order the Grandmother provide to the Father, a copy of the return airfare ticket or alike for the Child, an itinerary and travel insurance details for the duration of the travel.
(16)Should the Father notify the Grandmother following receipt of the details outlined in paragraphs (13) and (14) of this Order that he does not intend to make the Child available for time in accordance with this Order, then the Father is to reimburse the Grandmother for any financial loss incurred as a result of the cancellation of the return flights and makeup time for the Child to spend time with the Grandmother shall be arranged between the Grandmother and the Father in consultation with the Mother taking into account the wishes of the Child.
(17)Paragraphs (13) and (14) be suspended at any time that the Child will be required to self-isolate or be in hotel quarantine for a period of 2 weeks (upon entering either Queensland from England or returning to England from Queensland) as may be determined by the Queensland Government in Australia or the United Kingdom Government in relation to the COVID-19 pandemic.
(18)The Grandmother pay the costs and buy a return ticket for the Child from the United Kingdom to Brisbane on a flight (without any stopovers other than for refuelling) with British Airlines, Qantas Airlines or some other airline agreed between the Father and the Grandmother and pay all costs associated with the Child spending time with the Grandmother if in Australia or travelling in the United Kingdom or Europe.
(19)The Child only fly with an airline service which provides an unaccompanied minor program until such time as the Child is of an age when she can fly independently.
(20)When time occurs in Australia in accordance with paragraph (13) of this Order then changeover be at the Brisbane International Airport where the Grandmother shall collect the Child at the commencement of time and deliver the Child to the Brisbane International Airport at the conclusion of time.
(21)When time occurs in the United Kingdom and/or Europe in accordance with paragraph (14) of this Order, then changeover shall occur at a location agreed to by the Father, but failing agreement at Heathrow Airport in London.
(22)The Child’s passport remain in the possession of the Child when she is spending time with the Grandmother in accordance with this Order.
(23)During the time the Child is spending time with the Grandmother in accordance with this Order, the Mother be at liberty to spend time with the Child at all times as reasonably requested by the Child.
(24)When the Child is spending time with the Grandmother, neither the Grandmother nor the Mother is required to consult with the Father when making decisions about issues that are not major long-term parenting issues.
(25)The Father inform the Grandmother and the Mother of any changes to the Child’s residence or school within 7 days of such change.
(26)Following relocation to England, the Father inform the Grandmother and the Mother of the details of the school where the Child is enrolled to attend school, and any extracurricular activities the Child is enrolled in, within 48 hours of her enrolment.
(27)The Father provide to the Grandmother and the Mother a written summary of the Child’s health, academic achievement, social development and participation in extracurricular activities, not less than once every three months.
(28)The Father advise the Grandmother and the Mother of any serious illness or injury suffered by the Child at the soonest available opportunity.
(29)The Father facilitate the Child to video call each of the Grandmother and the Mother at all reasonable times but at a minimum of once per fortnight and on Christmas Day, Easter Saturday, the Child’s birthday and any other day significant to the Child.
(30)The Father facilitate the Child to video call the Mother on Mother’s Day and the Mother’s birthday.
(31)The parties, by this Order, hereby authorise the school attended by the Child to give the parties information about the Child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the Child (at the requesting party’s cost).
(32)During the time the Child spends with or communicates with a parent, that parent shall:
(a)respect the privacy of the other parent and not question the Child about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent or the extended family of the other parent in the presence or hearing of the Child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the Child.
(33)Save as provided by this Order, all previous Orders be discharged upon the Father relocating to England with the Child.
(34)The bond paid on behalf of the Father to the Brisbane Registry of the Family Court of Australia in the sum of $10,000 and held as Special Public Monies by way of bond/security (pursuant to the Order made on 5 December 2019) be released to the Payer, Mr C or to the Trust Account of Jensen Solicitors.
(35)Any outstanding Applications be dismissed.
(36)The independent children’s lawyer be discharged after the expiration of 30 days of the date of this Order.
(37)Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cobb & Jepson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Carew J
X is a teenage girl aged 13 ½ years (“the child”) and, unfortunately, she has been the focus of conflict between her parents for her entire life. The child’s father and maternal grandmother (who is also a party in these proceedings) agree that the father should be able to relocate to the United Kingdom (“the UK”) with the child. The child’s wish to relocate is seen, at least in part, as a means of escaping the conflict, which in years past has been described as akin to a war zone. The child’s mother opposes the relocation and applies for the child to live with her despite the child’s limited relationship with the mother and two previous parenting trials confirming that the child live with the father. The child has lived with her father for the last ten years.
For the reasons which follow, the child will continue to live with the father and he will continue to have sole parental responsibility for the child. The father will be at liberty to relocate with the child to the UK.
WHAT ORDER DOES EACH PARTY PROPOSE?
The father, grandmother and independent children’s lawyer (“ICL”) largely agree on what order should be made as reflected in the Minute of Order marked exhibit 14 in the proceedings. This would see the child continue to live with the father and relocate to the UK. The father does not seek any order other than as reflected in exhibit 14.
The grandmother proposes that an additional order be included that requires the father to consult with her (and indirectly with the mother) about major long term parenting issues, with the father being required to consider their views but ultimately retaining sole decision making power for the child. The grandmother also proposes an order to delay the relocation of the child until the requirement for returning Australians to quarantine is lifted.
The mother proposes that she have sole parental responsibility and that the child live with her. Such an order would reverse the current arrangements which have now been in place for ten years. The father’s time with the child, on the mother’s proposal, would be supervised until he returns a negative drug test and thereafter would occur on alternate weekends and during school holidays. The precise terms of her proposal are set out in a document filed by her on 7 January 2021. During submissions, the mother sought to include alternate orders in the event that she was unsuccessful in her primary proposal, and doing the best I can, I understand those additional orders to be as follows:
(a)A mandatory injunction requiring the father to notify the mother and maternal grandmother if he travels with the child outside of England;
(b)An injunction restricting the father’s travel to countries that are signatories to the Convention on the Civil Aspects of International Child Abduction[1] (“the Hague Convention”);
(c)The retention of the $10,000 bond (which the father deposited with the Court for the purposes of proposed holiday travel in June 2020 which could not occur because of the COVID-19 pandemic restrictions);
(d)A mandatory injunction requiring the father to be responsible for the costs of one of the child’s return trips to Australia in the event of the demise of the grandmother;
(e)A mandatory injunction requiring the father to register the Australian order in the UK;
(f)A mandatory injunction requiring the father to return to Australia in the event of contravention proceedings being commenced (presumably by the mother);
(g)An injunction restraining the father from relocating until it is safe to travel in relation to COVID-19.
[1] Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1343 UNTS 97, (entered into force 1 December 1983) (‘The Hague Convention’).
In the event the father’s application to relocate with the child is dismissed, all parties, other than the mother, seek a continuation of the ‘final’ 2014 parenting order.
ISSUES
In September 2020 when I listed this matter for trial, the parties identified a list of significant issues that required determination. During the trial the list of issues was modified with the assistance of the parties and all agree that the significant issues for trial are accurately and adequately addressed in the following list:
(1)Does the father have the capacity to support the child if he relocates with the child to the UK?
(2)Will the father facilitate the child spending time and communicating with the mother and/or maternal grandmother if he relocates with the child to the UK?
(3)Should the time spent between the mother and child occur in the presence of the maternal grandmother if the child requests the maternal grandmother’s presence?
(4)Is the father’s capacity to provide appropriate care for the child impeded by his cannabis use and/or is the child neglected in his care?
(5)What impact, if any, has the parents’ alleged involvement of the child in the conflict had on the child?
(6)What impact, if any, will a refusal to accede to the child’s wish to relocate to the UK have on her relationship with the mother and maternal grandmother?
(7)How, if at all, will the child’s relationship with the mother and maternal grandmother be affected if there is a long delay in the child being able to return to Australia because of current quarantine restrictions?
(8)Should the child’s departure from Australia be delayed until the removal of current restrictions relating to the COVID pandemic, and in particular the lockdown in the UK?
Before turning to consider the significant issues raised by the parties it will be helpful to set out some relevant background.
BACKGROUND
Mr Cobb (“the father”) is 44 years of age and unemployed. He was born in the UK but has lived in Australia since 1998. The father holds a number of certificates which enable him to work primarily in the construction industry. He was last employed in April 2018, although he currently undertakes some work on the property where he lives in lieu of paying an occupation rent. The father’s current income is by way of Social Security of $425 per week (Newstart Allowance and Family Tax Benefit) and child support from the mother of $8 per week. He owns no assets of significant value. The father lives with the child in a modest house in northern New South Wales.
Ms Jepson (“the mother”) is 53 years of age and unemployed. Ms Jepson apparently holds qualifications as a scuba diving instructor (an activity she describes as more of a “lifestyle” than an occupation given the minimal income she receives from it) and she has also worked at a plant. When she works at the meat processing plant her take home pay can be up to about $700 per week. While somewhat unclear, I gained the impression that the mother has not been employed in any capacity since about March 2020 and when she is employed, her annual income is modest. On 31 December 2020, the mother was diagnosed with Barmah Forest Virus and medical evidence suggests she may be unfit to return to employment until 5 April 2021. The mother’s current income is by way of Social Security in the sum of $455 per week. She owns no assets of significant value. The mother rents a property in the D Area.
Ms B Jepson (“the grandmother”) is 72 years of age and a retired educator. She is the child’s maternal grandmother. She owns her own home and has provided considerable assistance to the father historically, including having him live with her for a period in 2017/18 with the child. She has had significant involvement in the child’s life and has agreed to fund the child’s airfares to return to Australia twice a year if the child relocates to the UK.
The father and mother had a brief relationship for a few months in 2006, the product of which is the child, X born in 2007.
The father has another child, Ms F born in 1999. The father has a close relationship with Ms F and her mother, Ms E, both of whom gave evidence in support of the father’s case.
The mother has three other children, Ms G born in 1990, Mr H born in 1991, and Mr J born in 1998. The mother is estranged from Ms G and Mr H. Mr H recently married and has a child, Y, aged two years. The mother was not invited to his wedding and she has not met her grandchild.
There have been two previous parenting trials and numerous other applications determined by the courts in relation to the child.
Proceedings were first commenced in 2008 and after a three day trial at the end of 2010, a ‘final’ parenting order was made on 1 February 2011. In coming to the conclusion that the best interests of the child would be met by her living primarily with the father, Bell J provided some background and made a number of findings, as follows:
10. The application on the part of the father was initially for some form of shared parenting. He at all times has alleged that it should be something like 50:50. The mother on the other hand has never at any time up until very recently offered anything else but supervised time with the child (Amended Response 2 November 2010). She alleges the reasons for this is that she is affeared of the father's drug-using ways, his lack of adequate concern in relation to the child's synthetic clothing on her allergies, his unacceptable aggressive behaviour towards her and such behaviour taking place, on two occasions I believe it was, in front of the child. And more importantly, her view that he has sexually abused and/or interfered with [the child] and also with his daughter Ms F. However, on 21 July 2008 orders for contact were made.
…
12. The father readily concedes that his conduct towards the respondent has not been in the best interests of either himself, the respondent or the child. He recognises that this is not in the interests of the child. I noticed on the first day of the trial that he came across as a very aggressive, cocky young man. However, I am sure after listening to advice tendered to him by his counsel, or perhaps considering that his attitude was not improving his case at all, he reverted to a confident but sensible and sensitive man. He recognised that he himself has many faults but that he says that much of his inappropriate behaviour has been engendered by the attitude of the mother towards him.
…
14. [The mother] further alleged that the father had sexually assaulted the child and refers to some evidence concerning redness in the child's vulva area. She subsequently and only comparatively shortly before the trial conceded that there could have been another explanation for what appeared to her to be damage perpetrated upon the child by the father and she withdrew any allegations of sexual impropriety by the father towards the child.
…
23. … [It is] quite clear that the mother has frequently endeavoured to interfere with the father's relationship with the child by not complying with orders made for contact, by alleging to the police that a photo of a naked child posted on Ms F's Facebook was created by the father, that she has on frequent occasions displayed difficult behaviour insofar as the contact centre is concerned. She has alleged, as she concedes at a subsequent time without justification, that the child has been abused by the father, that she has made similar allegations to Ms F's mother concerning the father's abuse of Ms F who as a result of this contacted Det. Sgt K regarding allegations. These allegations were clearly unfounded and Ms F said that nothing had ever happened to make her feel uncomfortable with her father.
…
31. The mother further appears to be fixated upon the father’s failure to adequately care for [the child]. …
32. I do not believe that … Ms Jepson has developed any insight into her own behaviours. …
…
36. … the father himself is no angel. He has exhibited bad temper. … uncontrolled behaviour in relation to the mother and unfortunately, … on two occasions in front of the child. … regrettably there has been a child born who is subject, … to extremes of personality problems between both her parents …
…
38. … the mother will not … in any way encourage a meaningful relationship of [the child] with her father.
39. There has been family violence between the parties, perhaps more in the field of abuse by both parties towards each other.
…
41. … the child gets on well with the father and the mother and obviously there is warm and loving relationship exhibited by the child to both her mother and her father.
42. … the mother will not encourage a close and continuing relationship between the child and the other parent. She appears, … to have done everything she possibly can to ensure that the child does not have a close and continuing relationship with the father.
…
46. … the father is capable of providing for the needs of the child marginally, including emotional and intellectual needs. …
47. … the father has not been physically violent towards the mother but there has been a fair bit of violence by way of verbal abuse of each other.
In a second trial heard in the Federal Circuit Court over four days in 2013, judgment was delivered on 27 May 2014 by Judge Turner. Her Honour observed that, but for the father’s application to relocate with the child to Perth (which was ultimately abandoned), the parenting matters would not have been reopened. The same could be observed in relation to the current trial, i.e. but for the father’s application to relocate with the child to the UK, the parenting matters would not have been reopened. In any event, the child’s living arrangements were not varied in 2014 and the father’s sole parental responsibility was confirmed. In the course of her Reasons, Judge Turner made the following observations and findings:
23. Since 2011:
a) [the child]has been attending counselling.
b)The mother has relocated from New South Wales to L Town in Queensland.
c) There have been numerous reports to welfare departments.
d)There have been several statements made by [the child] that she was sexually abused, all of which were recanted by the child.
e)The mother arranged for the police on several occasions to conduct a welfare check on [the child] whilst the child has been in the father’s care.
f) The police have been involved by the parties in their disputes.
…
31. Up until the hearing the mother was spending time with [the child] on alternate weekends and half of the school holidays.
…
55. …
a) The parties’ utter contempt for each other continues …
b)Communication has not improved between the parties since the orders were made in 2011. …
c)The parties avoid seeing each other with the maternal grandmother attending changeovers with the father.
d)The co-parenting between the parties is non-existent with both parents highly critical of each other’s parenting ability and style. … the mother raised issues some of which featured in the 2011 hearing commenting about the father and “his inadequate parenting regarding her education and specifically poor school attendance and her poor health.”
…
63. The mother bases her proposal on the following:
a)The father does not facilitate or encourage time between the mother and her extended family and [the child].
b)The father does not meet the child's needs in respect to her education and health.
c) The child is at risk due to the father's anger.
d) The father is a drug addict.
e) The father does not abide by Court orders.
…
69. The father continues to be angry and reactive.
70. The mother continues to misinterpret situations to meet her own needs and to manipulate situations so as to enable the mother to portray herself as the victim.
71. Both parties continue to fail to protect [the child] from the ongoing conflict.
72. Both parties continue to embroil [the child] in the ongoing conflict.
…
74. Poor [the child].
75. A damaged child who continues to be damaged.
76. You have to wonder what life holds for this child and whether normality will ever be in her reach.
…
78. Neither parent accepts the impact of their behaviour on [the child]. …
79. But the impact of the toxicity of the parties’ disputes is already evidence in [the child]’s behaviour.
80. The future is bleak for [the child]…
…
83. The only person who truly has [the child]’s interests at heart is the maternal grandmother. …
85. … it is in the best interest of [the child] … to remain living with the father.
86. I base my finding on the following:
a)The child is at risk of psychological and emotional abuse in the mother’s care. This is demonstrated by the following:
i)The mother fails to protect [the child] from the adult conflict and adult issues. …
ii)The mother shares her negative views about the father with the child. … “Mum said that Dad would kill everyone in the family”… [during the family report interviews] [the child] pointed to herself stating that “she needed saving” …
…
b)The mother is unlikely to facilitate or encourage time between the father and [the child] if the child is living with the mother. …
i) …
ii) …
iii)… [quoting from the family report] “mother is angry, petty, focuses on complaints and criticisms – not interested in getting on with [the father] – can only find fault and full of blame that goes back to incidents years ago – not a good prognosis for future access – can only predict constant conflict and much anxiety for [the child].”
…
c) The mother is overactive and manipulative …
…
89. A strong and sensible woman, the maternal grandmother is well aware of the shortcomings of each party …
…
92. … [the child] loves her grandmother and has a close bond and meaningful relationship with the grandmother.
If granted liberty to relocate with the child, the father proposes to do so as soon as possible so that the child can have the opportunity to settle into the education system and choose her subjects prior to the commencement of the new school year in September 2021.
It is common ground that the child should not quarantine on her own in a hotel. For that reason, both the mother and grandmother oppose the immediate departure of the child, in the event the father is granted liberty to relocate with the child, and contend that her departure should be delayed at least until the requirement to quarantine on return to Australia is lifted.
It is agreed between the father and grandmother that, prior to any relocation, the child should spend seven days with the grandmother not less than 14 days prior to her departure and that the child should also spend time with the mother during the seven days if requested by the child.
These proceedings take place during the COVID-19 global pandemic where infections are on the rise in the UK and various containment measures are in place. No party sought to rely upon any medical evidence identifying specific risk to the child, although the grandmother, without objection from the other parties, tendered certain media articles from News.com. In one such article it is suggested that the requirement for incoming travellers to Australia to undertake hotel quarantine may continue until at least mid-2022. In another article, reference is made to “oxygen shortages and nine-hour ambulance waits at UK hospitals” and to “hospitals being ‘completely swamped’”. Although England’s South West is said to be experiencing “very dramatic and accelerating increases” in patient numbers, there is no evidence relevant to the specific area to which the father proposes to relocate, nor any evidence that would enable any assessment of the magnitude of any risk or increased risk posed to the child. The article also refers to the roll-out of a vaccine and the priority for vaccination being given to health workers, the elderly and the most clinically vulnerable. The mother also tendered, without objection, certain documents downloaded from Australian Government websites which include the following notification as at 10 January 2021 from the “smart traveller.gov.au”:
A national lockdown is in place across the United Kingdom. Non-essential retail, gyms and personal care services are closed. Restaurants, pubs and bars also remain closed. You can only meet one person from another household in an outdoor, public space for exercise, and overnight stays away from home aren't permitted. You're not permitted to mix with anyone outside your own household unless in a support bubble. Travel is banned between Scotland and the rest of the United Kingdom. Check with authorities for details and updates to restrictions (see 'Travel').
Before considering the significant issues in this case I set out the applicable legal principles.
APPLICABLE LEGAL PRINCIPLES
Every proposed parenting decision requires application of Pt VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[2]
[2] Family Law Act 1975 (Cth), s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility for a child;
(d)The communication a child is to have with another person or persons; and
(e)Any aspect of the care, welfare or development of the child, or any other aspect of parental responsibility for a child.
A parenting case involving relocation is just another parenting case.[3] There are no special tests that apply. For instance, the father in this case does not have to establish a compelling reason for wishing to relocate.[4] Nor is the enquiry one that is directed to whether or not the father should be ‘permitted’ to relocate.[5] The best interests of the children remain the paramount, though not the sole, consideration.[6] Where the legitimate interests of an adult conflict with the best interests of children, the former must give way.[7]
[3] Zahawi & Rayne [2016] FamCAFC 90 at [48].
[4] AMS v AIF (1999) 199 CLR 160 (‘AMS v AIF’).
[5] Babcock & Waddell [2019] FamCAFC 129 at [141] – [142] (Aldridge J) quoting AMS v AIF (n 4) at 223, [188] (Kirby J) and at 231–232, [217]–[218] (Hayne J).
[6] AMS v AIF (n 4) at 225, [193].
[7] Ibid.
The Court is not required to make findings of fact on every factual dispute raised by the parties.[8] The paramount issue for the Court is to determine what is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[9] on each and every factual dispute.[10]
[8] Baghti & Baghti [2015] FamCAFC 71 at [63].
[9] M & M (1988) 166 CLR 69 at 76.
[10] Ibid.
The objects and principles of Part VII of the Act are set out in ss 60B(1) and (2), and relevantly, s 60B(2)(b) and (e) refer to the child’s right to spend time on a regular basis with, and communicate on a regular basis with, their parents and people significant to their care welfare and development such as grandparents.
Section 65C permits a grandparent to apply for a parenting order.
In deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. There are also additional considerations including any views expressed by the child, the nature of the relationship between the child and the parents and other persons including the maternal grandmother, the likely effect of any changes including the likely effect on the child of any separation from the parents or any other person including the maternal grandmother, the capacity of the parents and the maternal grandmother to provide for the intellectual and emotional needs of the children, the maturity, sex, lifestyle and background of the children and the parents, any family violence, whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings and any other relevant matter (s 60CC). In considering the primary considerations, the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section, in what is sometimes referred to as the ‘legislative pathway’, I have considered all sections as required when making my determination.[11]
[11] Banks & Banks (2015) FLC 93-637.
DOES THE FATHER HAVE THE CAPACITY TO SUPPORT THE CHILD IF HE RELOCATES WITH THE CHILD TO THE UK?
As noted in the background set out earlier in these reasons, the father has not been employed for about two years. He exists on Social Security of $425 per week and child support from the mother of $8 per week. The father does not have to pay rent because he undertakes some work on the property on which house is situated. Most of his income currently goes to his solicitor to whom he owes about $12,000. The father spoke of feeding himself and the child from his vegetable garden and eating rice. The father was nevertheless apparently able to take the child on a skiing holiday in New South Wales for six days in July 2020.
The father proposes to sell his modest assets if he is able to relocate with the child to the UK. He anticipates that this will provide him with about $4,500. He has sufficient credit with Flight Centre to pay for two one way flights to the UK depending upon the timing of the flights and this is borne out by exhibit 5. If he has not secured employment within three months of relocating (which is how long he expects his savings would last) he is eligible for Social Security and is familiar with a competitive food market and the availability of food from local community gardens. Once he has his own accommodation, he anticipates he will need about £300 per week for expenses.
The father proposes to live, initially at least, with his brother, Mr C, in a village in P County, England, called M Town. Mr C’s address is N Street, M Town, P County, …. M Town is about 215 kilometres South West of London. Mr C lives with his wife, Ms Q and their ten year old daughter, Z. Ms Q is a health care worker and her 19 year old son, Mr R, also lives with them. Mr C has been self-employed technician for the past 22 years. He was optimistic about the father obtaining employment (given his qualifications and experience) which he said continued to be in demand despite the COVID-19 restrictions. Mr C says that he lives in a “large family home with spacious rooms” that has a “double garage at the end of the garden which has been lovingly converted into a comfy living space … [with] a small kitchenette, composting toilet and access to water”. In addition, he says that the father and child can use the facilities in the main house and are welcome to live with them as long as needed “whilst [the father] secures a work position and [the child] settles into a local school”. Mr C and his family have not met the child in person. The father indicated that as his sister-in-law is a health care worker, she may have some objection to him and the child living with them until he and the child have returned a negative test result for COVID-19 because she did not want to put her patients at risk of infection. The father is happy to undertake the required testing.
In the event that the father does not live with his brother, his friend, Ms S is willing to have the father and the child live with her. Ms S lives with her husband and 13 year old daughter in a village about 24 kilometres from M Town. She preferred not to provide her actual address because of a concern that the mother, whom she has never met, may target her in some way. (This concern appears to arise as a result of the mother’s repeated habit of calling police to undertake welfare checks on the child in the father’s care. The father contends that in one year the mother orchestrated 52 separate welfare checks. As a result of this, the father had not provided his current address to the mother for some time, prior to the commencement of this trial). Ms S nevertheless provided her address confidentially to the Court. Ms S last saw the father in person in 2009 but maintains regular communication with him. She has known the father since childhood. She and her eldest daughter stayed with the father in Australia for nine weeks in 2004. She has not met the child in person. Ms S has two spare rooms at her home and is happy for the father and the child to stay with her family for as long as they need to. She contends that there is ample reasonably priced accommodation in the area and considerable opportunities for work despite the COVID-19 restrictions. In response to a question from the mother, Ms S said that her daughter’s attendance at school is 98% and that High School students are currently remote learning because of the COVID-19 restrictions.
If the father relocates, he will initially have sufficient savings to provide for himself and the child for a period of about three months. He will have no housing costs and given his brother’s long standing business in a field well familiar to the father, it seems his prospects of finding employment are reasonably good. In fact, his financial circumstances may well improve upon his relocation. Accordingly, I am satisfied that the father would have the capacity to support the child should he relocate to the UK.
WILL THE FATHER FACILITATE THE CHILD SPENDING TIME AND COMMUNICATING WITH THE MOTHER AND/OR MATERNAL GRANDMOTHER IF HE RELOCATES WITH THE CHILD TO THE UK?
The mother and grandmother share some apprehension that once the child relocates, the father may not facilitate her continued contact with them. However, even in the midst of years of ongoing conflict, the child has continued her relationship with both the mother and grandmother. Even during 2020 when the relationship between the father and the grandmother deteriorated somewhat, the child spent two weeks with the grandmother in January 2020, a weekend in February, March, May and June, as well as five days in September 2020, a weekend in October, two weekends in November (one to attend her half sibling’s wedding), and a weekend in December 2020. On most occasions the child also spent some day time with the mother, although she has not seen the mother since 6 November 2020 seemingly because that visit ended in a “screaming match”.
The father and grandmother have substantially agreed to a way forward and the grandmother has even undertaken the responsibility for meeting the cost of airfares so that the child can return for visits.
Despite her relationship with the mother causing her considerable stress, the child displayed considerable empathy for the mother in her exchange with Mr T during the most recent interviews on 10 December 2020 and Mr T noted the following:
115. [The child] empathises with Ms Jepson in regard to her being excluded from Y’s life. She considers her brother’s position unreasonable. She also noted that both Mr H and Ms G refuse to have anything to do with their mother and explains that she feels bad about that. The youngster insisted that, despite the continuing tensions between them, “I wouldn’t do that to her”.
Given her age and the history of the parties’ deferring to her wishes, it is probable that the child will ensure that her relationships with the mother and grandmother continue.
I conclude therefore that the father will likely facilitate the child spending time and communicating with the mother and grandmother if he and the child relocate.
SHOULD THE TIME SPENT BETWEEN THE MOTHER AND CHILD OCCUR IN THE PRESENCE OF THE MATERNAL GRANDMOTHER IF THE CHILD REQUESTS THE MATERNAL GRANDMOTHER’S PRESENCE?
The father and maternal grandmother agree that if the child requests the presence of the grandmother as a condition to her spending time with the mother, her wishes should be acceded to. While the mother does not think such a condition is necessary, the requirement for the mother’s time to occur in the presence of the maternal grandmother formed part of the ‘final’ parenting order in 2014, until varied by consent in December 2019. The order consented to by all parties at that time included the following provision:
That the Mother be at liberty to spend time with the child when the child is spending time with the Maternal grandmother each alternate month, at a time and on the day nominated by the child.
Having regard to the parties’ previous consent to abide by the child’s nomination of when she wants to spend time with the mother, and the fact that the child did spend time with the mother until November 2020, I conclude that the time spent between the mother and child should occur in the presence of the grandmother if the child requests it. I have come to this conclusion particularly because of the unpleasant exchange between mother and child on the last occasion they saw each other. The child may well feel more comfortable having the grandmother present, at least initially.
IS THE FATHER’S CAPACITY TO PROVIDE APPROPRIATE CARE FOR THE CHILD IMPEDED BY HIS CANNABIS USE AND/OR IS THE CHILD NEGLECTED IN HIS CARE?
Despite his meagre financial circumstances, the father continues to smoke cannabis on average once or twice per week. The father is a long time user of this substance despite its possession being illegal.[12] The father was charged and dealt with in 2014 for cultivation of cannabis and, while no conviction was recorded, he was fined. The mother was the informant which led to the father’s charge and the source of her information was the child, who was then only seven years of age. I will say more about the mother’s involvement of the child later in these reasons. The mother tendered into evidence an audio recording of herself and the child in 2014 (exhibit 6). It is apparent from the content of that recording that the child was aware of the father’s cultivation of plants she called “pots”. It is also apparent that the child knew the plants were cultivated by the father for sale and that her knowledge caused her some anxiety. In exhibit 6 she said:
I don’t want Daddy to get caught but I don’t want him to do bad things.
[12] Drug Misuse and Trafficking Act 1985 (NSW), s 10. (Prohibited drug as referred to in s 10 is defined in s 3 and Schedule 1).
The father contends that he has not cultivated cannabis since that time but he continues to smoke cannabis. Doing so in circumstances where possession of cannabis is illegal sets a poor example for the child. There is, however, no evidence that his use of cannabis impedes his capacity to provide adequate care for the child despite perhaps the extent to which the cost of cannabis diminishes his income. That said, there is no evidence of how much of the father’s income is used on acquiring cannabis.
Mr T also observes that while the father acknowledges the continued use of cannabis and that this theoretically presents a potential risk to the child he is “not aware of any reliable evidence that the father’s reportedly occasional marijuana use has had any significant impact on his capacity to parent [the child]”.
The mother raises issues of neglect, as she has done in previous trials. Annexure “C” to the mother’s affidavit filed 21 December 2020 contains a number of photographs purporting to substantiate her allegations of neglect. The neglect issues relate to the following:
(f)The child’s poor oral hygiene;
(g)Head lice and matted hair;
(h)Dirty clothes;
(i)Dirty nails;
(j)Poor school attendance; and
(k)Poor behaviour at school.
There is no evidence from an expert relating to the child’s teeth. The photographs of the child’s teeth and clothing are many years old. It is unclear when the other photographs were taken but they do not support a finding of ongoing serious neglect.
When interviewed by Mr T, the family report writer, in December 2020 he described the child as “casually attired but generally clean and appropriately groomed”. The same observation was made by Mr T on 12 November 2019.
The school records do not raise any issue about the child’s hygiene. The two recent photographs of the child (exhibit 4 tendered by the grandmother and exhibit 11 tendered by the father) do not indicate any cause for concern. The child appears well groomed.
The child’s absences from school are cause for significant concern. Since commencing high school in January 2019, the child has been absent from school on 184 days (although 28 of these days may relate to remote learning during the COVID-19 restrictions). Included in the list of absent days are several days when the child was suspended from school due to poor behaviour. The father contends that the child has experienced considerable anxiety relating to the ongoing conflict between her parents and that this accounts for a significant number of the days absent. The school records indicate that the child is intelligent but that her lack of attention and engagement are inhibiting her performance. Despite that, the child continues to excel in English. Her most recent report card from semester two 2020 includes the following observation:
[The child] is a sophisticated English student with outstanding literacy skills. She engages wholeheartedly with course content and completes set tasks with enthusiasm. She has completed all the tasks required of her. Her Persuasive Powerpoint on Northern Ireland was extraordinary.
The observations made in relation to other subjects are less encouraging and it is obviously essential that the child’s attendance at school improves.
The child has been seeing a counsellor, Ms V, since about July 2020 and a range of issues have been discussed by the child including her dislike of one particular teacher, her wish to travel to England, her worry that her mother and grandmother do not trust the father, her feelings of constant anger about the family problems, the history of litigation between her parents about her, her feelings of loneliness and having limited peer connections, problems with friends at school, her feelings of stress about court issues and school issues, the mother’s denigration of the father and a particular argument between herself and the mother during which the mother told her that her family in England never cared about her. The child disclosed on 25 August 2020 that the mother said to her – “looks like no one loves you”. Whether or not the mother did say this to the child (and the mother was not cross-examined about it), this is the child’s perception of what was said. In a session on 11 November 2020, the child disclosed her need to escape this place. She was upset and crying during this session and disclosed the mother’s statement to her that the father had brainwashed her. The child said the mother then screamed at her and said she had “Stockholm Syndrome”. The mother concedes a very unpleasant exchange on the last occasion she saw the child in November 2020, but attributes the screaming to the child over a period of about two hours to which she finally responded by raising her own voice. The mother denied initiating the term “Stockholm Syndrome”, claiming that the child first used the term.
Consistent with findings made by two previous judges, I find that the mother continues to reject responsibility for any of her daughter’s problems. During this trial, the mother remained focussed on her perceptions of the father’s shortcomings and contended that any problems experienced by the child, including absenteeism, is attributable solely to the father. I must say the mother’s complete lack of insight into the role she has played and continues to play in the child’s unhappiness and anxiety is breathtaking.
In response to a question from the mother, Mr T said that he would have to know a lot more about the circumstances of the child’s absenteeism before offering an opinion on whether it reflected upon the father’s parenting capacity. He did offer the opinion however, that the continuing conflict and the anticipation of conflictual incidents have perhaps caused the child some anxiety and stress, and that has had an impact on her attendance at school.
In conclusion, I reject the contention that any “neglect” of the child, including her absenteeism, is attributable solely to the father. The child’s ongoing problems are more likely to be attributable to her being caught in the midst of her parents’ ongoing conflict. The grandmother, a retired teacher, contends that the schools in England are far stricter than Australia in ensuring that children attend school. Whether or not this is the case, I consider it likely that the child’s attendance at school may well improve if she relocates because she will no longer have to contend directly with the conflict between her parents and she will be living in a household, at least initially, where the other children in the household are reliably attending school or participating in studies while lockdowns are in place.
WHAT IMPACT, IF ANY, HAS THE PARENTS’ ALLEGED INVOLVEMENT OF THE CHILD IN THE CONFLICT HAD ON THE CHILD?
While each parent blames the other for the child’s involvement in the conflict, I am satisfied that each of them have done so. I see no utility in undertaking an assessment of which parent has done so to a greater extent.
By way of example, it appears that the father failed to ensure that the child was out of earshot during a hearing by telephone before another Judge of this Court in or about August last year, describing the child as “devastated” by the Judge’s alleged comments. The father has done little to reassure the child that she does not need to make the decisions that are properly for adults to make.
In relation to the mother, it never ceases to amaze me that litigants who record their children fail to appreciate how damaging the content of these recordings are to their own cases. So blinded are they by the mission to attack the other parent that they entirely overlook those parts of the recording that reflect badly on themselves. Such is the case here. The mother’s comments to the child in both recordings are appalling. For example, in the 2014 recording made by the mother (exhibit 6) the mother undermines the father to the child and creates internal conflict for the child e.g. she repeatedly refers to the father’s lack of employment, she tells the child the father will only learn if he is stopped from doing bad things, and she tells the child that the father tells lies. In the 2015 recording (exhibit 7), the mother interrogates the child e.g. “How often does Daddy say he wants to hurt me?”, “When he says long trip he wants to take you to England doesn’t he?”, “You don’t want to go without Mummy do you?”, and undermines the father with comments such as “He would have to go to work and he doesn’t really like working, does he?” The mother also undermines the grandmother with comments such as “she does lie about little things”. The mother demonstrates no insight at all into the damaging impact of her own behaviour. The grandmother, as kindly as she could, pointed out the mother’s lack of insight when cross-examined by the mother. My impression was that the mother completely missed the point of the grandmother’s observations.
It was predicted back in 2014 that the child would suffer if her parents did not stop the conflict. The conflict has not stopped and, according to Mr T, the child is likely to have experienced some associated trauma which has had an impact on her development. I have no doubt that is the case. Mr T opined that the entrenched conflict to which the child continues to be exposed has been distressing and anxiety provoking for the child and has caused her to become “hyper vigilant” and ultimately to “pay the price” for the parents’ inability to bring an end to the conflict. Mr T summarises his opinion about the child in his second report as follows:
128. In summary, [the child] presents as an engaging, sensitive and somewhat quirky child. She has grown up in an environment of family conflict and I consider it likely that this has had an impact on her mood and behavioural regulation, and on her development generally.
In Mr T’s view, the child may benefit from the relief provided by relocation.
I accept Mr T’s opinions and in my view, the child really does need to escape the chronic dysfunction created and continued by her parents.
WHAT IMPACT, IF ANY, WILL A REFUSAL TO ACCEDE TO THE CHILD’S WISH TO RELOCATE TO THE UK HAVE ON HER RELATIONSHIP WITH THE MOTHER AND MATERNAL GRANDMOTHER?
The child presented as quite mature and thoughtful during the December 2020 interviews with Mr T. She had obviously given considerable thought to the relocation issue, acknowledging that she had done her own research and noted the “weather is crap”. She explained to Mr T that she was keen to develop relationships with her paternal family and was satisfied that her existing relationships with her maternal family could be maintained long distance. She also said she was willing to return to Australia twice a year to spend time with the grandmother and mother and to communicate with members of her maternal family regularly. When asked by Mr T whether her wish to relocate is mostly related to “running away from something, or running to something, or if it is a bit of both”, the child appeared to give some thought to the question before replying that it may be a bit of both. The child disclosed to Mr T that she often feels sad.
The child’s relationship with the mother is already fraught and there have been recent tensions between the child and the grandmother. The child’s wish to relocate was thoughtfully expressed by the child to Mr T and he, the ICL, and the grandmother support the child’s wish to relocate which is at least in part motivated by her desire to escape the entrenched conflict between her parents. Consistent with the comments expressed to Mr T, the child has expressed similar views to her own counsellor, Ms V, e.g. on 11 November 2020 the child spoke about her need to escape.
The child’s behaviour at school has been problematic at times. In my view, the strain of the conflict has become intolerable for the child. In a child focussed concession, the grandmother now agrees to the relocation. In my view, the already difficult relationship between the mother and child is only likely to deteriorate if the child’s wishes are ignored.
HOW, IF AT ALL, WILL THE CHILD’S RELATIONSHIP WITH THE MOTHER AND MATERNAL GRANDMOTHER BE AFFECTED IF THERE IS A LONG DELAY IN THE CHILD BEING ABLE TO RETURN TO AUSTRALIA BECAUSE OF CURRENT QUARANTINE RESTRICTIONS?
It may be that the child will be unable to return to Australia for visits after she relocates until at least mid-2022 (according to the media reports relied upon by the grandmother). However, if she were to relocate in the next couple of months, her first anticipated return visit would be at Easter 2022 and then during the summer break in mid-2022. While there are many uncertainties about when the child may be able to return for a visit, the only evidence before me suggests that the child may miss the Easter 2022 visit but would likely be able to return for the summer break. The child may not see the mother and grandmother face to face for up to 17 months, depending upon her actual date of departure.
In Mr T’s view, which I accept, the child is developmentally at a stage where her maternal family relationships can be maintained at a distance by the use of electronic means. The child is well familiar with communicating with her paternal family in this way and has indicated to Mr T an intention to maintain her maternal relationships if she relocates.
Even if the child does not see the mother or grandmother face to face for months, or even longer, I am comfortably satisfied that her relationship with them will not diminish. In fact, given the unique history of this case, as identified by Mr T, I consider the relationships, particularly with the mother, may even improve.
SHOULD THE CHILD’S DEPARTURE FROM AUSTRALIA BE DELAYED UNTIL THE REMOVAL OF CURRENT RESTRICTIONS RELATING TO THE COVID PANDEMIC, AND IN PARTICULAR THE LOCKDOWN IN THE UK?
As already noted, the child has consistently expressed her need to escape the conflict and to relocate to the UK so that she can become better acquainted with her paternal family. The evidence from Mr T about the child’s distress and anxiety and the evidence from the child’s counsellor, Ms V, as to the child’s distress as recently as November 2020 persuade me that, although there are risks associated with relocating to the UK arising as a result of the COVID-19 pandemic, delaying the child’s relocation for an indeterminate period would be likely to increase the risk of greater distress and anxiety for the child.
WHAT PARENTING ORDER IS PROPER?
As already noted, there already exists a ‘final’ parenting order and, to what extent, if at all, that order should be varied is governed by the principles identified in Rice & Asplund. [13]
[13] Rice & Asplund (1979) FLC 90-725 (‘Rice & Asplund’). .
While the Court has the power to vary a ‘final’ parenting order (s 65D(2) of the Act) in appropriate circumstances, the father’s proposal to relocate to the UK and the mother’s proposal to reverse the living arrangements and parental responsibility for the child, is subject to the hurdle of establishing a significant change in circumstances since the primary order. The Full Court in Rice & Asplund[14] (per Evatt CJ) stated:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation, for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
[14] Ibid at 78,904.
The above quote encapsulates what is generally referred to as the ‘rule’ or the ‘principle’ in Rice & Asplund..[15] While the Court is not relieved of its obligation to consider the legislative provisions set out in Part VII of the Act, so far as relevant,[16] “[t]he nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings”.[17] That said, any variation of a parenting order pursuant to s 65D(2) of the Act will necessarily invoke the paramountcy of the best interests of the child and the consideration of such provisions in s 60CC of the Act as are relevant to the determination.[18]
[15] Poisat & Poisat(2014) FLC 93-597 at 79,386 [8] (‘Poisat & Poisat’).
[16] Ibid at 79,389 [32].
[17] Poisat & Poisat (n 15) at 79,389 [34]; See also Carriel & Lendrum (2015) FLC 93-640 at 80,173 [55].
[18] Doherty & Doherty [2016] FamCAFC 182 at [64]–[66] (Kent J).
When considering whether or not to vary a ‘final’ parenting order, two particular public policy issues are also at play: firstly, the need to guard against one judicial officer simply substituting her or his view for that of the original judge; and secondly, the need to have a rule that can be relied upon to discourage endless litigation.[19]
[19] SPS & PLS (2008) FLC 93-363 at 82,452 [56] – [58].
The latter public policy issue plays little part in my deliberations given that the matter proceeded to a full trial over four days. The former public policy issue remains relevant in the current case although the practical application of the Rice & Asplund[20] principles is limited given the extent to which all matters raised by the parties were canvassed.
[20] Rice & Asplund (n 13).
In response to the mother’s proposal for the child to live with her, Mr T opines that it is “difficult to envisage [the child] establishing emotional/psychological equilibrium in the care of her mother when it has not been possible for them to consistently enjoy conflict free visits”. It is his recommendation that the child continue to live with the father and that he be at liberty to relocate with the child. Although not supporting relocation when he completed his 2019 report, Mr T explains in his most recent report that he has “developed a view that the unique features of this family may need to take precedence over theoretical perspectives”. Those unique features include an ongoing dispute for all of the child’s life and the prospect that relocation (even with the risks associated with relocation in the midst of the COVID-19 pandemic) “might well give the child some relief”.
The father’s change in circumstances, namely, a wish to relocate with the child to the UK is, in my view, a significant change warranting variation to the previous parenting order. By contrast, it is apparent that in 2011 and 2014 the mother criticised the father’s parenting capacity on the basis of both his drug use and general neglect of the child including in relation to the child’s education. The mother raises the same issues in the current case and, although some of the evidence relied upon by her has arisen after those earlier proceedings, the evidence does not establish a sufficient degree of significance to warrant a reversal in the child’s living arrangements or parental responsibility.
To the extent that the mother has raised new issues, e.g. the father’s health, the mother concedes that the evidence, such as it is, does not establish a basis for the child to be removed from the father’s care. The mother rather belatedly raised the possibility that the father’s alleged health issues may increase his risk of COVID-19 infection. In the absence of any medical evidence identifying current health issues for the father (the mother raised historical episodes of pneumonia, coughing and wheezing), and the absence of any medical evidence identifying the father at a heightened risk from infection, I reject the mother’s contention.
Additionally, the mother raises the child’s behaviour at school. While there have been issues with the child’s behaviour at school over the last few years, the evidence does not persuade me that the father is solely responsible. Indeed, there appear to be multiple factors, including the child’s continued exposure to family conflict, her forthright views, and the influence of her peer group. The mother contends that the behavioural issues arose after the child “was removed from us”. The mother conceded during her submissions that she and the grandmother have continued to spend time with the child throughout the entire period (the mother’s last visit ending in a screaming match between herself and the child in November 2020). The mother then clarified her submission to assert that the child’s behaviour deteriorated when she and the grandmother were excluded from involvement in the child’s school and when she was allegedly taken away from the grandmother’s home “illegally” (this allegation appears to relate to a time when the grandmother made her home available for the father and child for a period commencing at the end of 2017 and concluding in early 2018). Whether or not the mother’s allegations about being excluded from the school or the father removing the child illegally are correct (these allegations were not put to the father), I have already observed that the child’s behavioural challenges at school appear to have numerous causative factors.
Mr T’s opinions and observations have been helpful in my deliberations and I accept his recommendations, which I note are supported by the ICL.
In relation to the additional orders proposed by the mother in the event the father relocates, I do not propose to accede to any of them.
Firstly, I reject the mother’s contention that the father should inform the mother whenever he leaves England. When COVID-19 restrictions are lifted, the father may wish to travel to see his mother in W City, Scotland. If he elects to do so with the child, I fail to see how that would impact upon the mother. If the father travels outside the UK, he should inform the mother and grandmother and insists he will do so. I accept his assurance and do not propose to include it in the order.
Secondly, there is no evidence to suggest that the father is a flight risk to countries that are not signatories to the Hague Convention. At some future time, he and the child may wish to holiday in such a country.
Thirdly, the bond of $10,000 was provided by the father’s brother for the specific purpose of travel in mid-2020. The COVID-19 pandemic interfered with those plans. The father wants to be able to return the bond to his brother, who needs it for the purchase of a home. In the event the father fails in his obligations pursuant to the proposed order for the child to return to Australia for visits, the mother and/or grandmother may have rights under the Hague Convention, to which the UK is a signatory, to seek intervention such as to ensure the father’s compliance.[21]
[21] The Hague Convention (n 1), art 21. See also Family Law (Child Abduction Convention) Regulations1986 (Cth), Schedule 1.
Fourthly, the mother makes no offer to contribute to the costs associated with the child returning to Australia yet proposes that the father should pay the costs of one return visit in the event of the demise of the grandmother. The grandmother is only 72 years of age. There is no suggestion she suffers from ill health. The father contends that in the event of the untimely demise of the grandmother, the parents should share equally in the costs of the child’s return visits. I see no need to make any further order about the costs associated with the child’s return visits other than as agreed to by the father and grandmother.
Fifthly, the requirement to register the Australian order in the UK might have been something I would have been prepared to consider if it had been raised in a timely way. Given the absence of any evidence addressing this issue, e.g. what, if any, process may be involved and importantly the likely time frame, I do not propose to make any such order.
Sixthly, there is no utility in making an order requiring the father to return to Australia if contravention proceedings are commenced in Australia by the mother because such an order would not be enforceable in the UK.
Lastly, as already discussed earlier in these reasons, there is great uncertainty about restrictions associated with the COVID-19 pandemic and delaying the child’s departure for an indeterminate period is only likely to cause more stress for the child.
I should acknowledge that the order sought by the mother in her primary proposal did contain certain orders that could be made irrespective of the rejection of her application for change of residence. Certain ones are already included in the order proposed by the father, grandmother and ICL and others were not objected to by the ICL, e.g. the mother seeks to be included in paragraph 10 of exhibit 14 so that her contact details and the father’s contact details are exchanged. I consider that to be appropriate despite the father’s alleged difficulties in the past with the mother seeking repeated welfare checks. The ICL does not oppose an order as sought by the mother that the child not be exposed to illegal substances (paragraph 18 of the mother’s proposed order). Despite the father’s admission to smoking cannabis on average once or twice per week, and the 2014 recording indicating the child’s knowledge of the father’s then cultivation of cannabis, there is no evidence that the child has been exposed to illegal substances in recent years. In any event, such a restriction might be interpreted as this Court giving some tacit approval to the father’s use of cannabis as long as the child is not exposed to it.[22] The possession of cannabis in Australia is illegal[23] and the Court does not condone its use in the child’s presence or not. In paragraph 19 of the mother’s proposed order she includes the following:
Not smoke or permit any other persons to smoke in the presence of the child.
[22] Colgan & Colgan [2014] FamCA 828 at [28] (Rees J). See also Mahoney & Houston [2018] FamCA 71 at [113], Gunst & Dittersdorf [2019] FamCA 126 at [138] and Tritton & Ryan [2019] FamCA 929 at [189].
[23] Save for certain exceptions relating to medicinal cannabis contained in the Narcotic Drugs Act 1967 (Cth).
The 2014 order contains the following provision:
15. That during such time as the child is in their care the party shall:
…
e)Not smoke or permit any other person to smoke in the presence of the child.
Despite such a provision being in the 2014 order, I was not taken to any evidence that might justify such an order. In any event, such an order would be very difficult to enforce and may simply invite future litigation.
The parents have no co-parenting relationship and I am unaware of any evidence where they have communicated. In the absence of any evidence to support paragraph 21 of the mother’s proposed order, I do not propose to make such an order.
Lastly, the order proposed by the mother in paragraph 22 of her proposed order is tantamount to a vexatious proceedings order. In the absence of any submissions to justify such an order, I do not propose to make it.
In relation to the additional orders sought by the grandmother, I am not persuaded that an order requiring the father to consult the grandmother and indirectly the mother before making major long term decisions is desirable. The father contends that such an order is not necessary because he intends to do so anyway. I accept that is the father’s intention. The father has already indicated his proposal in relation to schooling in the event of relocation and there is no evidence indicating a need for the addition of an order as proposed. Including such a provision in the order would, in my view, create the potential for further litigation and, accordingly, I do not propose to include it.
Delaying the child’s departure until the hotel quarantine requirement is lifted may result in the child having to remain in Australia until at least mid-2022 in circumstances where the child has expressed a strong desire to relocate, in part to escape the ongoing family conflict. I accept Mr T’s opinion that the child is at an age where her maternal relationships can be maintained by electronic means and, in the circumstances, I am not prepared to impose restrictions on the proposed departure time. That will be a matter for the father and he will, of course, be required to comply with all Government, airline and other COVID-19 restrictions.
In summary, the father will be at liberty to relocate to the UK with the child and he will retain sole parental responsibility. The child will continue to spend time with the grandmother both in Australia and overseas and the grandmother will pay the travel costs. The mother’s time with the child will be subject to the child’s wishes.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 22 January 2021
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