Contadini and Georgiou
[2018] FamCA 701
•12 September 2018
FAMILY COURT OF AUSTRALIA
| CONTADINI & GEORGIOU | [2018] FamCA 701 |
| FAMILY LAW – CHILDREN – With whom a child lives – International relocation – Where the mother seeks to relocate to a European country with the child – Where the mother will relocate irrespective of the outcome of these proceedings – Best interests of a child – Meaningful relationship – Where the mother and father currently have an equal shared care arrangement – Following hearing orders are made on an interim basis and the matter to be reconsidered at a later date. |
| Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 65DAA, 69ZN, 69ZT, 69ZT(3)(b) |
| AMS v AIF (1999) 199 CLR 160 Godfrey & Sanders [2007] FamCA 102 H & W (1995) FLC 92-598 Mazorski & Albright [2007] FamCA 520 R and R: Children’s wishes (2000) FLC 93-000 Starr & Duggan [2009] FamCAFC 115 Zahawi & Rayne [2016] FamCAFC 90 |
| APPLICANT: | Ms Contadini |
| RESPONDENT: | Mr Georgiou |
| FILE NUMBER: | DNC | 520 | of | 2017 |
| DATE DELIVERED: | 12 September 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Darwin |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 21 - 23 August 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Franz |
| SOLICITOR FOR THE APPLICANT: | Darwin Family Law |
| COUNSEL FOR THE RESPONDENT: | Ms Romeo |
| SOLICITOR FOR THE RESPONDENT: | Margaret Orwin Barrister & Solicitor |
Orders
That all previous orders be discharged.
That the parties have equal shared parental responsibility for X born … 2010 (“the child”).
That each party will make a genuine effort to come to a joint decision about all major long term decisions including:-
(a) The child’s education;
(b) The child’s religious and cultural upbringing; and
(c) The child’s health.
That the parties’ application for final orders be listed for hearing in the Darwin Circuit of the Family Court of Australia in the August 2020 listings.
That the child live with the father until 1 January 2019.
That as and from 1 January 2019 and during the period of the adjournment the child shall live with the mother and the mother be permitted to relocate his residence to Country B.
That the mother and child return to the Commonwealth of Australia on or before 20 July 2020.
That as and from 20 July 2020 the child live in Darwin with the parties on an alternating week about basis pending the outcome of the final hearing.
That pursuant to s 62G(2) of the Family Law Act 1975 (Cth) the parties and the child attend upon and at the direction of a family consultant nominated and appointed by the Director of Child Dispute Services for the purposes of the preparation of a family report to be conducted in the Darwin Registry and completed and released by 10 August 2020.
That during the period of adjournment the child shall spend time with the father as agreed between the parties in writing and failing agreement as follows:-
(a)For five (5) weeks in July (Summer) school holidays in 2019 in Darwin;
(b)For two (2) weeks in the December/January (Spring) school holidays in Darwin, from 28 December 2019;
(c)On any occasion should the father travel to Europe (Country B, Country D or another agreed location) for up to 14 days on no more than two (2) occasions at his cost provided the time does not interfere with the child’s schooling.
That in the event that the mother returns to reside in Darwin:-
(a)During school terms the child shall live with the parents on an alternating week about basis;
(b)During school holidays the child shall live with each parent for half of all school holidays as agreed between the parties and failing agreement, with the mother for the first half and with the father for the second half in even years and with the father for the first half in odd-numbered years and with the mother for the second half in odd-numbered years;
(c)For half of the child’s birthday;
(d)With the father for the father’s birthday and Father’s Day; and
(e)With the mother for the mother’s birthday and Mother’s Day.
That for the purpose of the child spending time with the parent with whom he does not live (“the spend time with parent”) the time shall be spent as agreed between the parties in writing and failing agreement as follows:-
(a)The parents shall equally pay for the costs of all flights for the child to spend time with him/her;
(b)The child shall be accompanied on all international flights by a parent or family member or as an “unaccompanied minor” according to the airline’s minimum age requirement;
(c)That the parents shall equally pay for the cost of all flights for the accompanying person’s travel;
(d)The spend time with parent shall give the parent the child is living with (“the live with parent”) at least ninety (90) days’ notice in writing of the travel arrangements that she or he has made, including details of the return flight and travel itinerary, address and telephone details of where the child will be staying and,
(e)if applicable, a notice in writing from the airline that the child has been booked to fly as an “unaccompanied minor” to travel to the airport nearest the residence of the live with parent (or such other airport as agreed between the parents) to the airport nearest the residence of the spend time with parent (or such other airport as agreed between the parents) and return;
(f)If either parent causes the child to miss a flight then the parent who is responsible for the missed flight will pay for the next available flight;
(g)That the parent who is collecting the child shall telephone the other as soon as possible after collecting the child from the airport to confirm the child’s arrival.
That the child have the following parental communication with the parent he is not living with:-
(a)Telephone and Skype conversations with the parent on days and at times as is agreed between the parties, and failing agreement on two (2) occasions per week for up to one (1) hour on each occasion and to facilitate such telephone calls the parent who has the care of the child will ensure that the child is made available to speak with the other parent;
(b)Telephone conversations with the other parent as the child may request and the parent who has the care of the child will facilitate the making of such telephone call or calls;
(c)That there shall be privacy during telephone conversations between the child and either parent.
That for the purposes of communicating information between the parents the parties shall communicate:-
(a) By telephone or text message about matters of an urgent nature;
(b)By email about day to day matters including arrangements for each party to spend time with the child and such communication is restricted to matters pertaining to the child only and not to the interpersonal relationship as between the parties.
That each of the parties shall advise the other of:-
(a) Their residential address;
(b)Telephone numbers(including landline and mobile) at which they and the child can be contacted; and
(c)Any email address to which the child can have access;
and shall notify any change in such details within forty eight (48) hours.
That each of the parents be entitled to obtain directly from any health or welfare professional, educational institution or any other professional attended by the child, copies of any reports, notices of other relevant verbal or written advice relating to the health, education and welfare of the child and for this purpose, each of the parties shall immediately notify the other party of the names and contact details of any relevant health or welfare professional or educational institution and keep the other so informed.
That the parents will do all acts and things to enrol the child with a professionally accredited counsellor and the following shall apply:-
(a)If the child is living in Darwin or in Country B he is to attend appointments with a counsellor as may be agreed between the parties;
(b)Both parents will follow the reasonable directions of the counsellor including but not limited to the frequency and duration of the sessions and any associated referrals for the child and/or the parents;
(c)The parents are to encourage and facilitate the child attending the sessions; and
(d)The parent with whom the child is living shall pay for the costs of counselling.
That without admission to liability, each parent be restrained by an injunction from:-
(a)Denigrating the other parent or members of the other parents’ family including via social media, but not limited to the child or in the child’s hearing or presence or allowing anybody else to do so;
(b)Entering into or remaining at the residence of each of the parties except with their prior written consent;
(c)Allowing the child to be in the presence of any other person who is under the influence of excessive alcohol;
(d)Physically disciplining the child;
(e)That the parents be restrained and an injunction granted restraining them from:-
(i)Questioning the child about the other parent’s household;
(ii)Discussing or otherwise exposing the child to unnecessary particulars of the Family Law proceedings.
That changeovers for the child shall occur as agreed between the parties and failing agreement at the Darwin International Airport or City E International Airport and the following shall apply:-
(a)That the mother shall collect and return the child for the December/January school holidays;
(b)That the father shall collect and return the child for the mid-year school holiday period.
That during the period of the adjournment the mother will make all relevant enquiries in order to determine whether the Court on the adjourned date is able to make the following proposed order:-
(a)That the mother has obtained from a Court of competent jurisdiction in Country B recognition pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at the Hague on 19 October 1996 (“the Child Protection Convention”) of the orders of the Family Court of Australia made in these proceedings; or
(b)That she has obtained from a Court of competent jurisdiction in Country B a Declaration of Enforceability in Country B pursuant to Article 26 of the Child Protection Convention of the orders made in the Family Court of Australia and of these orders; or
(c)That she has registered in a Court of competent jurisdiction in Country B pursuant to Article 26 of the Child Protection Convention, the orders of the Family Court of Australia and these orders, she will be entitled to remove the child from Australia at the expiration of seven (7) days from the date upon which the documentary proof has been served on the father.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Contadini & Georgiou has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: DNC 520 of 2017
| Ms Contadini |
Applicant
And
| Mr Georgiou |
Respondent
REASONS FOR JUDGMENT
introduction
Ms Contadini (“the mother”) and Mr Georgiou (“the father”) each seek parenting orders in respect of X born in 2010 (“the child”).
By Amended Initiating Application filed 6 July 2018, the mother seeks parenting orders which would enable her to relocate to Country B with the child.
A summary of the orders sought by the mother pursuant to her Outline of Case Document filed 17 August 2018 are as follows:-
(1)That the parties have equal shared parental responsibility for the child.
(2)That the child live with the mother.
(3)That the mother be permitted to relocate the residence of the child to Country B on or after 3 September 2018.
(4)That the child shall spend time with the father as agreed between the parties but failing agreement as follows:-
(a)For five (5) weeks in the July (Summer) school holidays in Darwin;
(b)For two (2) weeks in the December/January (Spring) school holidays each year in Darwin;
(c)On any occasion should the father travel to Europe at his cost provided the time does not interfere with the child’s schooling or extra-curricular activities.
(5)That if the mother is not able to relocate the child’s residence to Country B then the child shall live with the father in Darwin and spend time with the mother as agreed and in default:-
(a)For all of the July school holidays and the whole of the December/January school holidays with the mother to pay the costs of the child’s airfare;
(b)If the mother is visiting Darwin for up to 35 days on no more than two occasions per year providing the time does not interfere with the child’s schooling or extra-curricular activities.
(6)That if the mother returns to live in Darwin then the care of the child shall be shared equally between them.
The father opposes the orders sought by the mother to relocate the child to Country B but subject to that, in all other circumstances the orders sought by him are not dissimilar to those sought by the mother.
The father filed an Amended Response on 15 August 2018 and seeks that if the child is not permitted to relocate to Country B then he should spend three weeks in the July school holidays and four weeks in the December/January school holidays with the mother either in Australia or in Country B.
If the child is permitted to relocate then he should remain with the father until 5 January 2019 and thereafter he seeks five weeks in the European summer holidays and two weeks in the December/January school holidays.
He proposes that the costs of the child’s travel be shared, including the cost of an accompanying person until the child is able to travel unaccompanied on international flights.
At the conclusion of the proceedings the parties tendered a comprehensive draft Minute of Order which provided for their substantive agreement in all other than the mother’s application to relocate the child’s residence to Country B. Accordingly, I propose to make orders in terms of the draft Minute forming Exhibit “11” in the proceedings with amendments recognising that the orders are made on an interim and not a final basis.
The mother relies upon the following documents:-
(1)Outline of Case Document filed 17 August 2018
(2)Amended Initiating Application filed 6 July 2018
(3)Trial Affidavit of mother filed 6 July 2018
(4)Affidavit in Reply of mother filed 10 August 2018
(5)Affidavit of Mr C filed 6 July 2018
(6)Affidavit of Ms F filed 31 July 2018
(7)Affidavit of Ms G annexing documents relating to the mother and the child’s Country B Residency Permit filed 6 July 2018
(8)Affidavit of Ms H (psychologist) filed 6 July 2018
The father relied upon the following documents:-
(1)Amended Response to Initiating Application filed 15 August 2018
(2)Trial Affidavit of father filed 3 August 2018
The Court was further assisted by a family report dated 1 June 2018 prepared by family consultant Mr J.
At the commencement of the proceedings I advised counsel that I was cognisant of the provisions of s 69ZN of the Family Law Act 1975 (Cth) (“the Act”) and to the extent that it was necessary to do so I raised with counsel their attitude as to whether the provisions of s 69ZT should be dispensed with namely, whether the Evidence Act 1995 (Cth) should have application.
There were no significant or relevant allegations of family violence, nor was there any allegation by the parties that the child was the subject of any abuse or inappropriate conduct by either parent.
Section 69ZT(3)(b) requires that before I should dispense with its provisions I should be satisfied that the circumstances are exceptional and have regard to the following matters:-
(i)The importance of the evidence in the proceedings; and
(ii)The nature of the subject matter of the proceedings; and
(iii)The probative value of the evidence; and
(iv)The powers of the court (if any) to adjourn the hearing, to make another order or to give directions in relation to the evidence.
I did not consider that there were any circumstances which would fall into the category of “exceptional”. The parties each concede that they should have equal shared parental responsibility and subject to the mother being permitted to relocate the residence of the child to Country B there would be no real impediment (other than imposed by distance) to the child spending significant time with the father either in Country B or in Australia or in circumstances where the child’s relocation is not permitted and the mother remains in Country B. The father acknowledges that the child should spend as much time with the mother as is reasonably practicable given the circumstances.
At the commencement of the proceedings counsel had reached agreement in respect of objections to affidavit material as referred to in the Outline of Case Documents.
MS F – DOMESTIC VIOLENCE COUNSELLOR
The mother relies upon the Affidavit of Ms F filed 31 July 2018. The father’s counsel objected to the affidavit being read into evidence in its entirety.
Ms F is a registered counsellor and has significant experience as a counsellor in domestic violence.
Annexure “FB2” includes a report from Ms F in response to a request from the mother’s solicitor. The mother was referred for domestic violence counselling in April 2016. A careful consideration of the report reveals that Ms F does not seek to provide an opinion as to whether the allegation that the father has been the perpetrator of domestic violence and the mother has been the victim is corroborated. The report sets out the history as provided by the mother, rather than the report representing an opinion.
The report must be considered a self-serving statement. The mother is able to give the evidence first hand and to some extent she does so in her affidavits of evidence.
In circumstances where there is no challenge by the father to the mother’s evidence that she attended for counselling (but he continues to deny being the perpetrator of family violence), there is no residual relevance to the proposed evidence given by Ms F.
In those circumstances the affidavit of Ms F was struck out.
CHRONOLOGY
… 1963
Date of birth of father
… 1973
Date of birth of mother
February 2009
Parties commence a de facto relationship
… 2010
Date of birth of X in Country B
… 2011
Parties marry in Country B
June 2013
Father returns to Darwin
October 2014
The mother and child travel to Darwin
July 2016
Parties separate
May 2017
Mother commences relationship with Mr C and vacates the former matrimonial home
20 October 2017
Parties put in place a parenting plan
The mother was born in Country B but holds Country K citizenship. Her parents migrated to Country B from Country K. She has spent most of her childhood and adult years in Country B. She has family members in Country B but predominantly in Country K.
The father was born in Australia and retains a strong cultural connection to his Country D heritage. He has significant family members in Darwin but also extended family in Country D.
The parties met in Country L, lived together in Country B from 2009 and were married in 2011.
The child was born in Country B and has the advantage of dual Country K and Australian citizenship.
The family lived in City M, Country B until 2013 when the father returned to Darwin.
The mother recognises that the father was unhappy in Country B and accepts that he struggled with limited language skills and poor employment opportunities.
The family were reunited in Darwin in October 2014, but following unhappy differences the parties separated initially under the same roof in 2016 and then physically separated in June 2017 when the mother and the child left the family home.
The parties are both currently in employment in Darwin. The mother holds a responsible position and her employment is as a contractor rather than a fulltime employee.
The father has had a number of different jobs but is currently in employment.
The mother has decided that she will return to Country B before 30 September 2018. The mother is considered to be a foreign national and currently benefits from a C Class Permit. That entitles the mother to certain benefits including taxation relief similar to a Country B citizen. In certain circumstances a C Class Permit holder can leave Country B for a maximum of four years. Thereafter, whilst the mother is able to return to Country B she would have a different residency status.
The last possible date for re-entry to Country B is 30 September 2018.
The issue of the mother’s retention of her C Class Permit is agreed by the father.
The mother is candid as to her plans to return to Country B. She does not wish to lose her connection with Country B and considers that despite her best efforts she dislikes living in Darwin. She does not feel connected even though she has employment and is highly proficient in English.
She has no family in Darwin and whilst she acknowledges it is a difficult decision, she intends to return to Country B irrespective of the outcome of these proceedings.
She has re-partnered with Mr C who also has Country B residency. Their relationship is of relatively short duration having met at a much earlier time but only forming a relationship in 2017. The mother intends to take up residence with Mr C, but confirms that the prospect of a relationship with him is not the factor that motivates her intention to return to Country B.
The father has no interest in returning to Country B. He was unhappy whilst there and found that the climate significantly aggravated the symptoms of a degenerative spinal condition namely, Cervical Spondylitis.
The relationship between the parties remains poor. The communication is limited to text messaging which at times has been the vehicle for offensive and derogatory remarks that appear to emanate principally from the father.
The parties entered into a parenting plan on 20 October 2017 which provided for the child’s time to be shared equally between the parties. The terms and conditions of the plan were comprehensive in respect of the parenting arrangements for the child, but by November 2017 it appears that the parties were again in conflict. There were difficulties in the parties reaching any variation of the parenting arrangements to accommodate changed personal circumstances and the mother complains that the father’s focus was not on the child but his refusal to accept that the relationship and marriage was over and his continued unrelenting pursuit of the mother. Whilst the mother agrees that from time to time she used inflammatory and offensive language directed to the father, she considers that it was out of frustration rather than as part of a general course of conduct.
The father confirms that the parties’ relationship was acrimonious and at times involved physical aggression.
He railed against what he considered to be the mother’s continued denigration of him that he was lazy and a liar. He denied any allegation that he had been physically violent to the mother or that his conduct and language caused her to be intimidated.
He does acknowledge that he had cause to slap the mother to the face on one occasion when they were in Country B.
He agrees that he has held the fervent hope that the parties would reconcile their differences. He acknowledges that some of his language and text messages could be considered as aggressive and offensive, but does not think that the mother was adversely affected by them in the way she alleges.
The mother has now issued an application seeking a divorce order. The father considers that the filing of the application draws an effective line in the sand and he now accepts that there is no hope of reconciliation. He tells the mother that she no longer needs to be concerned about any future threatening conduct. He is strong in his opposition to the child relocating to Country B, but accepts that the child’s relationship with his mother is important and subject to the tyranny of distance he considers that the proposed orders agreed by the parties will do all that is possible to ameliorate the child’s distress.
It is a common feature of the parties’ separate presentation that they recognise the strength of the child’s relationship of each of them and his desire that his time with the parties not be further reduced.
The decision by the mother to return to Country B will inevitably result in a significant change in the child’s current circumstances.
Each of the parties are considered important to the child.
PRINCIPLES APPLICABLE TO RELOCATION CASES
In AMS v AIF (1999) 199 CLR 160 Hayne J highlighted that the focus of the court must be on how a child or children would be affected either to their detriment or their benefit by the separate proposals of the parties:-
[216]An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the Court to decide where the custodial parent may live: that decision is to be made by the parent.
…
[218]To translate the question into this form – has the mother shown a good, or good enough, reason for wanting to move – focuses attention upon the reason and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child – to be in the custody of the father … or to be in the custody of the mother…That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother’s custody…
The Full Court in Starr & Duggan [2009] FamCAFC 115 gave clear direction as to the coexistent principle that the best interests of the child is the paramount consideration and the legislative framework will of necessity involve some overlap of a consideration of similar factors pursuant to s 60CC. The approach is not meant to be rigid such that:-
[38]…[I]t is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2005] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
The relocating party is not required to justify why they seek to relocate. It is how well the best interests of the child will be served against the setting of each of the parties’ respective proposals, in this case the wife’s application for the child to relocate her residence to Country B.
Whilst there is no specific principle or procedure that is required to be brought to account when relocation is either overseas or involves a substantial distance between the relocating parties, the child or children and the remaining parent, nonetheless a tyranny of distance is likely to reduce the options available to the parties.
In the decision of Zahawi & Rayne [2016] FamCAFC 90 the Full Court considered a number of authorities, both international and local, and summarised the position as follows:-
[47]All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow & Callinan JJ said in U v U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
[48]“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
(Footnotes omitted)
THE FAMILY CONSULTANT
Pursuant to an order made on 5 December 2017 that a s 62G(2) report be prepared, the family consultant conducted interviews and observations of the parties and the child on 24 April 2018 and published his report on 4 June 2018. The family consultant correctly identified the principal issue which was the mother’s application to relocate with the child to Country B and the father’s opposition. The parties were not opposed to providing the non-relocating parent with significant block time during school holiday periods.
The family consultant observed that the mother appeared “deeply distressed” at her current predicament arising from her decision to return to Country B even if that means leaving the child in the primary care of the father.
She presented as being abjectly unhappy in Darwin and considered that a return to Country B was the only effective way of restoring financial wellbeing and personal happiness.
Her position was summarised by the family consultant as being homesick.
Whilst the mother did refer to her concern that the father appeared intent on continuing his denigrating and stalking behaviour, that could not be said to be the mother’s prime motivation.
She was uncertain as to how she would cope if the Court’s decision was that the child should remain in the care of the father.
She was also concerned as to how the child would deal with the dramatic emotional upheaval of being separated from her for extensive periods of time.
The family consultant considered that the mother was worn out by the conflict and could see no resolution other than her return to Country B hopefully with the child.
The father considered that the parties were able to effectively co-parent. He reported that their interaction with each other was “civilized and polite”. As at the date of the interview the father still harboured the somewhat forlorn hope that he and the mother could reconcile their relationship.
He emphasised that he was entirely supportive of the child’s relationship with the mother, but remained trenchantly opposed to the child’s relocation.
He considered that the child was developing well in Darwin, had a good social network of friends and was advancing academically.
He was worried that the child would feel abandoned and alone in Country B with no friends, an unfamiliar environment and at a linguistic disadvantage.
He repeated his evidence that moving to Country B was not an option in terms of his previous language difficulties and an inability to find meaningful and remunerative employment.
Whilst he considers that the mother has not made any genuine attempts to settle, nonetheless he accepts that she is unhappy.
The more important consideration was the father’s concern that if the child relocated to Country B his ability to maintain a close attachment and relationship with the child would be compromised. He was also concerned that the mother may well put up barriers and as such the child’s relationship with him would be qualitatively different.
At the time of interview the child was seven years old. He impressed the family consultant in his polite and articulate presentation and notwithstanding his age, it is apparent that the family consultant carefully considered the views and wishes as presented by him.
The relationship that the child enjoyed with each of the parties was unsurprisingly stereotypical. The observations of the family consultant suggested that the child was more closely emotionally attached to the mother but enjoyed a more robust physical relationship with the father.
When asked about his relationship with the mother the child’s response was that:-
I like to play with her and to be with her.
When talking about the father the following observation is important:-
…[the child’s] body language changed, his eyes lit up, he smiled and his body language was indicative of an enjoyable time with this father.
He expressed that he would feel “awful” if he wasn’t able to spend time with either parent.
He was not fearful of either parent, although he had a recollection of his parent’s arguing with each other which made him feel “angry and sad”.
The child was aware of the central issue namely, the mother’s application for his relocation to Country B. When pressed, the child expressed a wish not to leave Darwin but was open to spending time in Country B on holidays.
When engaged in an exercise to determine and identify “his most trusting relationships”, he had little difficulty in identifying his parents.
The family consultant noted that the child became sad when questioned as to how he would feel being separated for a lengthy period of time from his father. The focus of the assessment was predicated upon the mother seeking to relocate the child to Country B, but the family consultant did not give consideration to the mother’s present intention to leave Darwin in any event. If that had been explored, the Court would have been assisted by the child’s reaction to what was likely to be an unpalatable and challenging proposition for the child.
The focus of the report and the evidence of the family consultant is to be considered as centred upon the potential for disruption to the relationship between the father and the child but not the converse.
The family dynamics are made more complicated by the father’s seeming inability to refrain from making derogatory and insulting remarks in respect of the mother and her partner. The father’s conduct is potentially more damaging by reference to the extent to which the child clearly understands his father’s depth of feeling towards both her and her partner.
The issue is summarised by reference to [62] of the report:-
… The writer would like to note that [the child] in his interview did not seem to have a good opinion about the mother’s partner, [Mr C], and therefore it may be difficult for them to form a trusting relationship particularly when [the child] is likely going to see the mother’s current partner, [Mr C], as the reason why he is no longer able to spend time with his father and also why the mother decided to relocate to [Country B]. The fact that the father has allegedly made a number of comments to [the child] in relation to the mother’s partner and thus the likely impact the mother’s relationship with him is going to have on [the child’s] relationship with his father may have already prompted [the child] to develop certain feelings towards the mother’s current partner which would make it difficult for them to achieve a trusting relationship.
Consistent with her evidence, the mother maintained that her principal reason for returning to Country B was that she was homesick and that whilst her relationship with her partner was “a powerful motivation to return to [Country B]”, the mother’s evidence was that the relationship was important but not determinative.
The family consultant accepted that the mother appeared supportive of the child’s relationship with the father but minimised the possible negative impact as a consequence of her proposed relocation. She was quick to describe the father in negative terms and considered that whilst the emotional attachment between the child and the father was significant, he was not very adept at the day to day exigencies of life and providing for the parenting needs of the child. She was critical of him being able to provide financially for the child and given his somewhat aggressive conduct towards her she did not consider that he necessarily presented as a good role model.
The evaluation by the family consultant was that the mother’s proposal to relocate the child to Country B would not promote his best interests.
He considered that the child was well settled in Darwin and had a positive relationship with the father which was likely to suffer deep insult if he was not able to see him on a face to face basis.
He referred to the child’s wish not to leave Darwin, but that the overarching consideration was the deleterious impact that would be immediately caused to the relationship between the father and son should relocation occur and the consequential impact on the child of losing the close attachment with the father.
The difficulty is that the family consultant did not consider the impact on the child of the mother’s proposal that she will inevitably return to Country B.
In evidence, the family consultant was required to consider whether his evaluation and recommendations would change with his current understanding of the mother’s intention. Moreover, the family consultant was asked to consider whether more overt and aggressive conduct by the father directed to and against the mother may require a reassessment.
The family consultant was placed in an invidious position of not having been given any real opportunity to consider the potential effect on the child of the separate proposals of the parties and certainly no opportunity was available for those issues to be explored.
The best that can be said of the evidence is that the scales which had favoured the father’s proposal for the child to remain in Darwin but visit the mother in Country B was now more finely posed.
MS H - PSYCHOLOGIST
The mother relied upon the evidence of Ms H who provided therapeutic assistance to the mother and to the child. She saw the child for the first time on 22 August 2017 following a referral from his general practitioner on 31 July 2017 under the federally funded Access to Allied Psychological Services (ATAPS) program.
The referral letter, which forms Exhibit “9” in the proceedings, enabled the child to receive 12 free counselling sessions per calendar year. The basis of the referral was that:-
[The child] has been having mood swings and is intermittently withdrawn. His mother and himself have recently come out of a domestic violence situation with his father. I believe he will benefit from psychological services through you. I appreciate your ongoing care.
The problem or diagnosis as set out in the Mental Health Care Plan as prepared by the general practitioner was that the child suffered from an adjustment disorder and the focus of the therapy was to improve his behaviour.
The child had three counselling sessions with Ms H and three with a different colleague who was not called and did not give evidence.
It was not necessarily intended that Ms H would give evidence of her involvement with the child in anticipation of the litigation.
The report from Ms H, being Annexure “BK2” to her affidavit filed 6 July 2018 comes about only because the mother’s solicitor by letter dated 29 June 2018 posed an extensive number of questions. The tenor of the request for a report was clearly directed to the likely issues to be considered in the litigation and to assist the mother in her parenting proposals.
The focus could have been directed to the potential impact on the mother’s ability to parent the child if the child was not permitted to return to Country B.
Ms H was also asked to provide her opinion in respect of matters that she could not possibly have explored and is unlikely to have had expertise.
In particular, I consider that her report provided little assistance in terms of the mother’s parenting of the child prior to separation, her view as to the mother’s capacity to provide for the primary care of the child and whether she is likely to facilitate the child’s relationship with the father, or the opinion of Ms H as to the likely effect on the child of the proposed relocation.
I found the evidence of Ms H to be unhelpful. Her involvement with the child was ostensibly not to provide an opinion but rather, to engage in a therapeutic relationship with the child for a perceived diagnosis of “adjustment disorder”. The report is directed to a range of topics outside of the parameters of the Mental Health Plan and the terms of engagement of Ms H.
In any event, the involvement of Ms H in 2017 has little relevance to the child’s presentation in 2018 given that when the father found out about the ongoing counselling he refused his consent for the counselling to continue.
I think it is important to highlight that Ms H has acted entirely properly in her engagement with the child. It is only as a result of the extensive request made by the mother’s solicitor unrelated to the original purpose of the referral that has become the focus of the proceedings.
MOTHER’S INTERVIEWS WITH THE CHILD
Exhibit “3” sets out the transcript of seven recordings made by the mother of various exchanges with the child. They appear to have been made opportunistically and the mother states that if the child said something which she considered relevant, then she would surreptitiously record.
The transcripts range between 26 July 2017 and 18 August 2017.
There is no dispute that the transcripts tendered into evidence accurately reflect the conversation.
The concern expressed by the father’s counsel is that the child is likely to have been aware of the mother’s interest in recording things said by the child, particularly where they are derogatory of the father and therefore little weight should be given to the utterings of a six year old in those circumstances.
An example of the tenor of the transcripts is easily understood from the second transcript taken at 9.41 pm on 26 July 2017:-
Child:Fighting with you, to shout at you because and say shout at you, ehmm… so I can say I wanna see daddy
Mother:That’s what daddy said to you?
Child:Well, that’s what he said
Mother:Ah?
Child:That’s what he said
Mother:What he say? That you have to yell at me?
Child:Yes, so I can (child is sneezing)
Mother:Bless you!
Child:Daddy, daddy
Mother:Sorry?
Child:Daddy…I see daddy
Mother:So daddy said you have to yell at me so you can see him?
Child:Yes, because I never see him again
Mother:Did daddy say that to you?
Child:Yeeesss!!! Why do you ask all the questions?
Mother:I’m curious, and he said you have to fight with me?
Child:Nooo, he didn’t
Mother:No? He didn’t say anything?
Child:He just said, shout at her, so I can see daddy
MotherOkay
An example of the mischief of the mother’s conduct in recording the conversations with the child is demonstrated by the short exchange in the transcript at 5.44 pm on 4 August 2017:-
The Friday after [the child] spent one week with his father, I picked him up from school.
Mother: Tell me, now you can tell…speak
Child:Let me guess…you…dad destroyed your life by bringing you to Darwin and…
I do not dismiss the evidence, but I propose to afford it little weight. I consider that its importance is not so much for the content of each of the transcripts of conversation but rather that the mother embarked upon the unwise exercise of recording the child’s words as an evidence gathering process. It is also an exercise that is prone to manipulation if for no other reason than the mother’s evidence admits that she only recorded those conversations that she thought would be useful to the thrust of her case and not any conversation in which the child spoke affectionately or pleasantly of the time that he spends with the father or his like for Darwin.
APPROACH TO BE ADOPTED
The child currently spends equal time with the parties pursuant to a Parenting Plan entered into on 20 October 2017 (see “Exhibit 1”).
The father seeks to retain the current arrangements, whereas the mother’s proposal is that consequent upon the child’s relocation to Country B, the father’s time would be significantly reduced to coincide with the European school holidays and other occasions that the father may attend Country B.
The parties agree that they should retain equal shared parental responsibility and whilst s 65DAA requires the Court to consider whether it is in the best interests of the child that he spends equal time with each of the parents and if so, whether equal time would be reasonably practicable, in the present case the parties concede that it would not be reasonably practicable.
The proceedings are predicated upon the mother’s clear intention to return and live permanently in Country B. It is not inherent in her proposal that if it is considered not in the child’s interests to allow his relocation to Country B, then the mother will abandon her plans.
The difficulty for the parties is that neither of them have any clear understanding of how the child will react and whether there will be any psychological harm or risk to the child of losing the closeness of attachment that he has with each of the parties.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests test is to be considered by application of the objects of s 60B(1) and the underlying principles of s 60B(2).
I am cognisant of the primary considerations and additional considerations in respect of the matters as set out in s 60CC(2) and (3).
I am also mindful of the directions contained in s 60CC(2A) and in particular the focus by the mother on what she consider to be the father’s abusive, derogatory and threatening behaviour towards her.
I propose to adopt the following approach:-
(1)Have consideration to the proposals put forward by each of the parties as they are identified and presented to the Court.
(2)Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2).
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests.
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of a child having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm.
(5)Have regard to the additional considerations under s 60CC(3).
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.
PARENTING CONSIDERATIONS
Meaningful relationship
It is fundamental to the Act that I regard the best interests of the child as the paramount consideration.
The aims and objects of the Act are to ensure that the best interests of the child is met by:-
(a)Ensuring that the child has the benefit of both of his parents having a meaningful involvement in his life to the maximum extent consistent with his best interests; and
(b)Protecting the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence; and
(c)Ensuring the child receives adequate and proper parenting to help him achieve his full potential; and
(d)Ensuring that the parents fulfil their duties and meet their responsibilities concerning his care, welfare and development.
The best interests of the child, while paramount, is not the sole consideration. In this case both of the primary considerations are relevant.
In Mazorski & Albright [2007] FamCA 520 Brown J considered the definition of the term “meaningful” and observed:-
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. …
I proceed on the basis that when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with the children to be, where possible and in their best interests, substantial and significant.
In the present case it is that inevitably the child will be significantly affected by the loss of association and physical contact with one or other of his parents.
In Godfrey & Sanders [2007] FamCA 102 Kay J said:-
[36]… Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
The assessment of whether the separate proposals of the parties will adversely impact on the child’s ability to maintain a meaningful relationship with each of them is central to the determination.
The evidence of the parties is generally respectful of the level of attachment that the child has with each of them. They are critical of certain aspects of their separate ability to parent the child as demonstrated by the consideration by each of them that the other may not represent a good role model, but there is no hesitation in their recognition of the importance of the relationship that each of them has with the child. It is a reasonable inference to draw from the Parenting Plan that whatever may have motivated the parties they each considered that despite their separate potential failings, equal time with the child was the most appropriate way forward.
Protection from harm
The mother raises the risk to the child of psychological harm by the child being subjected to or exposed to the denigrating and derogatory conduct of the father.
The mother complains that the father has been unable to accept that the relationship is over and that there are no viable prospects for reconciliation. Whilst the father now concedes that he must accept the reality of the separation, Exhibit “8” which annexes some recent text messages between the parties would suggest that the father still has unresolved and residual animosity towards her:-
Father:I see you’ve replaced me for another slave.. got him to wash up, does he cook and clean whilst you lay on the couch hahahaha poor sucker! It won’t be long before he realizes that.. it won’t be long before he dumps you or you him.. karma will get you!
BTW the soap was you.. to wash the short arse.. I couldn’t find a jewish cap for him.. waaahahaha. [three emojis of a laughing face with a sweat bead on the top of the head]
Mother:That’s a lovely thought of you, but he has already one. The majority of his clientele is Jewish.
Father:Hahahaha
[a photograph of the actor Peter Dinklage]
[a photograph of the character ‘Cousin Itt’ with the caption “the original emo”]
I bet you he was in a midget Heavy Metal band.. his hair was so long he looked like cousin itt from the Adams Family. [eleven emojis of a laughing face with a tear coming from each eye].
[a photograph of a person wearing a Kippah]
The father was referring to the mother’s partner Mr C.
Exhibit “6” contains further offensive remarks directed to the mother:-
Father:BTW have you told [the child] that you’re pregnant or shall I!
This will be good for me.. as you have done this on purpose to take [the child] away! You have known him for less than one year and your pregnant! Wow [Ms Contadini] how much more are you going to hurt yourself!
As matters have transpired, the mother was not pregnant.
The father’s vitriol was not confined to the mother. By recent Facebook Messenger message dated 30 April 2018 to the mother’s partner which forms Exhibit “7”, the following appears:-
Hello [Mr C], I would like to thank you for destroying any chance of me getting back with my wife. You have not only destroyed me but my family! You are a low life person, you have no idea [of] what I have been through in my life. You have destroyed my sons life of having his mother and father back as a family. I may have had problems with my wife but we were fixing our relationship to make it better, you took that away from me and my son! You are a low life person, if you were a gentleman you should have walked away and allowed my wife and I to find our way.. you took my soul partner away and for that I hope to God he punnishes you for it.
And then at a later time the following was sent:-
You are not a man.. you found her so vulnerable and took advantage of her! You are such a low life person that had no balls to confront me. I can only wish she has an abortion, because you are an opportunistic bastard! You are a coward and a poor excuse of a man, no wonder you’re not married with any other woman, all know that you were just another rufiano…
The father also engaged in vitriolic and personal criticism of the mother to her cousin in early 2016.
The father’s conduct has extended over a number of years and certainly as of recent date showed no appreciable sign of abating.
His evidence was initially to deny that he intended to denigrate the mother or to involve the child in the conflict.
The father’s conduct cannot be as easily justified by adopting the observations of the family consultant that the father had a tendency to conduct conversation in a naturally loud voice and that he tended to come across as domineering. I reject his statement that he is not vindictive towards the mother. His evidence was unpersuasive and unimpressive on this topic.
The father’s aggressive conduct towards the mother has importance not just in terms of his ability to parent the child in an environment that promotes the child’s relationship with the mother or that he does not present as an appropriate role model but rather, it provides the basis to consider whether the father is able to maintain the child’s relationship with the mother in circumstances where she will be living in Country B.
The father does not consider that the mother is much invested in promoting his relationship with the child. It is integral to the mother’s presentation that she does not consider the father to be a good role model and that he lacks significant parenting skills but also the ability to look after the child on a day to day basis both personally and financially.
There is something in the father’s assertion, but his conduct is overwhelming in its negative view of the mother, her partner and life in Country B.
The child’s views
The Full Court considered children’s wishes in R and R: Children’s wishes (2000) FLC 93-000. At 87,070, the Court cited with approval the following statement drawn from the joint judgment of Fogarty and Kay JJ in H & W (1995) FLC 92-598 at 81,944:-
The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by [them]. …
The family consultant considered the child’s wishes and recorded that he did not wish to leave Darwin. He did not have a close relationship with the mother’s partner and his concern was reflected in his one wish and that is for his parents to “get back together and stop arguing”.
He clearly understood the contention between the parties and the mother’s proposal that he should relocate to Country B. What he was not asked to consider or more importantly, did not realise was that his mother was intending to return to Country B in any event.
It is difficult to determine the weight that should be placed on the child’s wishes except to find with some certainty that he is closely attached and strongly engaged with each of the parties. He does not want there to be any change to the current arrangements.
The willingness and ability of each parent to facilitate and encourage the child’s relationship with the other
The mother contends that she is able to promote the child’s relationship with the father and this is supported by the orders she seeks which provide for extensive block time during European school holidays.
She is also concerned about some aspects of the father’s ability to parent the child in circumstances where his employment history has been sporadic and he continues to readily denigrate the mother in the presence of the child.
She is concerned that the father will not support her relationship with the child if he is not permitted to relocate to Country B.
Likewise, the father does not consider that the mother is well disposed to him and he fears that if the child relocates, under the influence of the mother and her partner his position of importance in the child’s life will readily be diminished.
I am not able to find that the father has conducted himself in a principled manner and he appears quick to disparage the mother if her conduct does not agree with his presentation.
To date, some of the father’s behaviour has lacked maturity and insight.
The mother cannot resile from the reality of the current predicament of the child namely, that she intends to leave for Country B before 30 September 2018 with the understanding that whatever the outcome of the proceedings may have been the child would have remained in the father’s primary care for a number of months.
I must bring to account the extent to which the parties by their actions must be seen to have some confidence that the child is not at risk in the care of the father.
The likely effect of any change in the child’s circumstances
In determining what is in the best interests of the child, I am required to consider the effect of any change in the child’s circumstances following on from the separation.
The mother’s proposal is for the child to relocate to Country B. The effects on the child will be dramatic. It is immediately apparent that the child’s relationship with either the mother if not permitted to relocate, or the father if relocation occurs, will be dramatically affected and adversely impacted. The family consultant is clear that this child has a strong attachment and relationship with each of the parties and will be distressed and upset at a reduction of time with either of them.
The difficulty is not in identifying the problem, but rather assessing the extent of the impact on the child. The issue is whether the parties, even using their best endeavours to promote the child’s relationship with the non-relocating parent, how the child will cope in any event.
Given the mistrust between the parties and the father’s inability to put aside the denigration of the mother, the uncertainty is manifest.
I have found that the evidence of the family consultant is unsatisfactory in that it does not really bring to account the potential impact on the child of remaining with the father and spending significantly reduced time with the mother.
I consider that at this stage there is insufficient evidence for me to be satisfied as to the likely consequences on the child of the parties separate proposals.
Practical difficulties and expense associate with contact
The parties have been able to agree all orders other than whether the child should remain in Darwin or relocate to Country B.
Accordingly, I am not obliged to consider in detail the practical difficulties and expense associate with each of the parties proposals other than to highlight the obvious, that even the proposed consent arrangements will still involve significant dislocation for the child, substantial travel and potential inconvenience for the parties in ensuring that the child is accompanied on international flights.
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings
The current arrangements of the parties may well be the subject of future adjustment.
To a very large degree the circumstances in which the child will find himself either by remaining primarily in the father’s care but without the strong emotional attachment to his mother, or in the mother’s care significantly removed from Darwin and cut off from the more physical interaction of the father.
I am conscious that the parties are weary of litigation both in terms of the financial and emotional cost.
I am concerned however that I do not have sufficient evidence to be satisfied that a final order either in terms of the mother’s proposal or the father’s proposal would represent the child’s best interests. There is no evidence that enables the Court to measure the depth of attachment that the child has to each of the parties but more importantly, the potential detriment to the child of that attachment being significantly disrupted.
I am of the view that the child should be given an opportunity to consider the circumstances that would exist in his current home with his father but in his mother’s proposed home.
I propose to put in place the orders that are the subject of consent between the parties and to fall in with the father’s position that at the very least the child should remain in his primary care until early January 2019. Thereafter, I propose that the child should be in the care of the mother in Country B for a period of about 18 months with the proceedings to return for a hearing in August 2020 following preparation of a further family report.
Exhibit “10” sets out the school year in Country B for 2018/2019.
The new school year started on 20 August 2018. After the short Christmas Holiday break, school resumes on 7 January 2019 with the spring holidays between 29 April 2019 and 10 May 2019 and the summer holidays between 8 July 2019 and 16 August 2019. Upon the child’s return to Country B in January 2019, he will complete what appears to be the second half of the equivalent of year 2 in Darwin. There will be a period of adjustment and the child will presumably be assisted with language and allow for a settling in period in preparation for the commencement of year 3 on 19 August 2019. The child will complete year 3 and return for the proceedings in July 2020.
I am satisfied that the disruption caused to the parties and the distress occasioned by a final decision not being made will be easily overborne by the advantage to the Court of direct evidence of the child’s experience both in Darwin for an extended time without his mother and then in Country B without his father.
The additional maturity likely to be enjoyed by the child may also assist if his wishes and views are expressed in the follow up assessment by the family consultant.
CONCLUSION
The Court has not decided the final orders that should be made in relation to where the child will live.
In the best interests of the child, I have decided to make only interim orders.
I do not intend that the parties will draw any conclusion from the orders so made, but they will understand that on the adjourned date the issues that have not easily presented themselves for determination are likely to be better crystalized.
Each party has a great deal to offer this child, but in the absence of sufficient evidence I do not consider it appropriate that I decide the matter by taking a “stab in the dark”. There is a more nuanced and purposeful way forward which in part is recognised by the parties in terms of their ability to agree the terms and conditions of the consent order.
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 12 September 2018.
Associate:
Date: 12 September 2018
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