CONTADINI & GEORGIOU
[2020] FamCA 807
•24 September 2020
FAMILY COURT OF AUSTRALIA
| CONTADINI & GEORGIOU | [2020] FamCA 807 |
| FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where interim orders were made in 2018 permitting the mother to relocate the child’s residence to a European country – Where the mother seeks the interim orders as final orders – Where the father seeks that the child return to live in Darwin with him and spend time with the mother – Where the father has spent time with the child during the period of the adjournment but not recently due to COVID-19 – Where the mother has encouraged and supported the relationship of the child with the father – Where the child has adapted to and is now well settled in the European country – Where the child has a strong relationship with both parents – Consideration of the impact of COVID-19 – Where a meaningful relationship can be maintained with the father if the child remains in the European country – Best interests of the child – Orders. FAMILY LAW – PRACTICE AND PROCEDURE – Hearing – Where the mother and child were unable to return to Australia as per the interim orders – Where the final hearing was conducted via Microsoft Teams. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC Evidence Act 1995 (Cth) s 144 |
| Blanding & Blanding [2016] FamCAFC 21 Beckham & Desprez [2015] FamCAFC 247 |
| APPLICANT: | Ms Contadini |
| RESPONDENT: | Mr Georgiou |
| FILE NUMBER: | DNC | 520 | of | 2017 |
| DATE DELIVERED: | 24 September 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 17 and 18 August 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Franz |
| SOLICITOR FOR THE APPLICANT: | Darwin Family Law |
| COUNSEL FOR THE RESPONDENT: | Ms Bowen |
| SOLICITOR FOR THE RESPONDENT | Bowen Lawyers, Barristers & Solicitors |
Orders
That all previous orders be discharged.
That the parties have equal shared parental responsibility for X born … 2010 (“the child”).
That the mother and the father 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 in the event that the parties cannot come to a joint decision about a major long-term decision concerning the children’s health the mother will have sole parental responsibility for matters affecting the child’s health.
That the child live with the mother.
That the child spend time with the father subject to compliance with the COVID-19 restrictions on travel and social distancing as may be imposed by any State, Territory or the Commonwealth of Australia as follows:-
(a) In 2021 and each alternate year thereafter:-
(i)during the Country B Easter/spring school holidays for a period of two (2) weeks;
(ii)during the Country B summer school holidays for a period of five (5) weeks;
(b) In 2022 and each alternate year thereafter:-
(i)during the Country B summer school holidays for a period of five (5) weeks;
(ii)during Christmas holidays for a period of two (2) weeks to include Christmas Day;
(c)On the child’s birthday, Father’s Day, the father’s birthday and at such other times as may be agreed between the parties in the event that both parents are in the same location;
(d)On any occasion should the father travel to Europe for up to fourteen (14) days on no more than one (1) occasion in each calendar year at the father’s costs and PROVIDED that should the time fall during school terms THEN the father shall ensure the child’s attendance at school and that any extra-curricular activities to which the child is enrolled are undertaken and PROVIDED THAT neither the child or the father shall be compelled to undertake self or enforced quarantine in order to give effect to these orders.
That for the purpose of the child spending time with the parent with whom he does not live, unless the parties otherwise agree in writing as follows:-
(a)The parents shall equally pay for the costs of all flights for the child to spend time with him or her on the basis that the father will pay the entire costs of travel for the child from Country B to Australia and the mother will pay the entire costs of the child’s travel from Australia to Country B;
(b)That the father shall give the mother at least ninety (90) days’ notice in writing of the travel arrangement that he has made including a return flight, travel itinerary, address and telephone details of where the child will be staying and if applicable a notice in writing from the airline that the child has been booked to fly as an “unaccompanied minor” from the airport nearest the residence of the mother to the airport nearest the residence of the father and return;
(c)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; and
(d)The parent collecting the child shall telephone the other as soon as possible after collecting the child from the airport to confirm his arrival.
That the child have the following parental communication with the parent he is not living or spending time with as follows:-
(a)Telephone or Skype conversations with the parent on days and at times as agreed between the parties but failing agreement on two (2) occasions per week for up to one (1) hour on each occasion and to facilitate such telephone or Skype conversations, the parent who has the care of the child at the time will have the child available to speak to the other parent.
That for the purpose of communicating information between the parents, the mother and the father shall communicate:-
(a)by telephone or text message in circumstances of an urgent nature and otherwise;
(b)by email about day to day matters including arrangements for each party to spend time with the child.
That each party shall advise the other and keep the other advised as follows of:-
(a) the child’s residential address;
(b) telephone numbers at which 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 thereafter.
That each of the parties shall 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 either 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 upon the child attaining the age of fourteen (14) years the mother shall take all necessary steps for the child to attend upon a professionally accredited psychologist or such other suitably qualified practitioner for the child to be afforded an opportunity if he shall so request to enable him to express his wish to remain living with the mother or to live with the father with the parties to jointly instruct the practitioner to prepare a report detailing the child’s wishes (if any) and to release same to each of the parties at their joint and equal cost.
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: DNC520 of 2017
| Ms Contadini |
Applicant
And
| Mr Georgiou |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Contadini (“the mother”) and Mr Georgiou (“the father”) continue to be unable to resolve parenting issues in respect of X born … 2010 (“the child”).
Following a final hearing commencing 21 August 2018, judgment was delivered and interim orders made on 12 September 2018 which adjourned the parties’ applications for final orders for hearing in the Darwin Circuit of the Family Court of Australia in August 2020.
During the period of the adjournment extensive interim orders provided for the following:
(1)That the parties have equal shared parental responsibility for the child;
(2)That the child live with the father until 1 January 2019;
(3)That as and from 1 January 2019 the child shall live with the mother and she shall be permitted to relocate the child’s residence to Country B;
(4)That the mother and child return to the Commonwealth of Australia on or before 20 July 2020;
(5)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.
It was also intended that the return of the child to Darwin would enable a Family Assessment to occur and a report to be completed and released by 10 August 2020 in anticipation of the resumption of the proceedings.
The parties were able to agree extensive interim orders which provided for the time that the child would spend with the father, the method and manner by which the child would travel between Country B and Australia and how the parties would share the anticipated cost of travel.
In addition to what might be considered the substantive interim orders the parties were also able to agree the extent of the child’s communication with each of the parties, the exchange of contact information and in particular the residential address of the parties. The parties agreed to engage the child with a professionally accredited counsellor to assist in circumstances where the Court found that there existed the potential for adverse impact upon the child of being separated from the father, leaving Darwin in terms of extended family, school and friends and the potential for the child to be anxious in settling into a new environment in Country B given the linguistic and cultural hurdles.
The proceedings resumed for hearing on 17 and 18 August 2020 whereupon judgment was reserved. The resumption of the trial was the subject of an application by the father to vacate the trial on the basis that the mother sought to be relieved of the obligation to physically return the child to Darwin.
The mother made an application to give her evidence remotely from Country B. She satisfied the Court that the logistics of returning the child to Darwin, as required under the interim orders, was at best uncertain and at worst not able to occur. If an arrangement could be made it would still involve an onerous level of expense in terms of the cost of flights and would involve the mother and the child being placed in quarantine either in Western Australia or in Darwin.
I considered that the mother had exhausted all reasonable avenues in attempting to return with the child to Darwin and whilst the father’s reasonable distress and upset at not being able to spend significant time with the child was obvious, I considered that the interests of the child and the proper administration of justice dictated that in the absence of the mother and the child’s physical presence in Darwin, the proceedings could be satisfactorily concluded by a remote hearing.
As matters transpired, the mother gave her evidence from her home in Country B, the family consultant gave her evidence remotely from the Darwin Registry and the jointly instructed psychologist gave her evidence from her work place in Country B.
The father, his solicitor appearing as counsel and the mother’s solicitor appearing as counsel were also in Darwin.
Whilst it is important to ensure that the parties remain invested and engaged with their proceedings and are not subsumed or overwhelmed by the use of technology, I am satisfied that neither party felt constrained by a remote hearing and that ample opportunity was given to the parties via their legal representatives to energetically promote the separate proposals of the parties as to the future parenting arrangements for the child.
Background
The Court brings to account the extensive reasons for judgment as delivered 12 September 2018.[1]
[1]Contadini & Georgiou [2018] FamCA 701
Neither counsel sought to challenge earlier findings and the focus of the resumed proceedings were very much centred upon the events that occurred following the departure of the child from Australia to Country B, with particular emphasis on the extent to which the child is able to or has adapted to the mother’s home in Country B and the extent of any adverse impact on the child arising from the disruption of his close relationship and attachment to the father.
Documents relied upon
The mother relies upon the following documents:
(a)Affidavit of the mother filed 29 July 2020 (relevant only to travel restrictions and quarantine requirements consequent upon COVID-19 travel protocols);
(b)Affidavit of the mother filed 13 August 2020;
(c)Affidavit of Ms N filed 17 August 2020;
(d)Outline of Case filed on behalf of the mother.
Documents relied upon by the father:
(a)Affidavit of the father filed 22 May 2020;
(b)Affidavit of the father filed 31 July 2020;
(c)Affidavit of the father filed 15 August 2020;
(d)Outline of Case filed on behalf of the father.
Chronology
| 12 September 2018 | Delivery of judgment and interim orders made allowing the child to travel with the mother to Country B |
| 12 September 2018 – 2 January 2019 | Child lives with the father |
| 10 January 2019 | The mother, the child and Mr C leave Australia for Country B |
| March 2019 | The child commences therapeutic intervention with Ms N, psychologist |
| July 2019 | Child spends time with the father in Country D |
| December 2019/ January 2020 | Child spends time with the father in Darwin |
Relevant issues
The mother seeks final orders that accord with the interim orders dated 12 September 2018.
The only significant change is that whilst the mother wants both parents to share equally in the child’s airfares, because there has been some disagreement between the parties, the mother seeks that the parties alternately pay the full return airfare for the child.
The child will turn 10 years of age in November 2020. There are at least some airlines that allow the child to travel unaccompanied. It appears that the child is sufficiently confident and competent to undertake unaccompanied travel providing there is no requirement for a transit stopover or quarantine.
The father sets out his proposed orders in his Outline of Case document at pages 3 - 8. The significant difference is that the father seeks that the child live with him and spend time with the mother either in her home in Country B or with appropriate notice, in Darwin.
The orders proposed by the father are comprehensive of the Court deciding that the child should live with the father in Darwin, that the child should live with the mother in Country B, or the circumstance of the mother and the father living in the same location.
Whilst not required of the mother, she readily volunteered that if the Court ordered the child to return to Darwin and live with the father, she would remain in Country B.
The interim orders provided for the child to spend time with the father as agreed between the parties in writing and failing agreement as follows:
(a)For five weeks in July (summer) school holidays in Darwin;
(b)For two weeks in the December/January (spring) school holidays in Darwin;
(c)On any occasion should the father travel to Europe (Country B, Country D or another agreed location) for up to fourteen days on no more than two occasions at his cost provided the time does not interfere with the child’s schooling.
The mother sought that the interim orders remain in place as final orders. Whilst not specifically raised, it is a reasonable inference that if the child is to live with the father then the mother is content to spend time with the child as provided for in the interim orders.
If the Court determined that the child should live with the mother in Country B then the father seeks that the child should spend time with him as follows:
(a)In 2020 for a period of two weeks during the Christmas holidays to include Christmas Day and each alternate year thereafter;
(b)In 2021 and each alternate year thereafter:
i)during Easter/spring holidays for a period of two weeks;
ii)during summer school holidays for a period of five weeks;
iii)during autumn school holidays for a period of two weeks;
(c)In 2022 and each alternate year thereafter:
i)during summer school holidays for a period of five weeks;
ii)during Christmas school holidays for a period of two weeks;
The parties are agreed that should the father travel to Europe he can spend up to fourteen days with the child on no more than two occasions in each calendar year at his cost and provided that, if the time shall fall during school terms the father shall ensure the child’s attendance at school and at any extracurricular activities in which the child is enrolled.
Relevant findings that underpin the decision to adjourn the proceedings
At the time of the commencement of the proceedings the child was spending equal time with each of the parties. That arose from an agreement between the parties as indicated in a parenting plan entered into on 20 October 2017 (Exhibit “1”).
The father sought to retain that arrangement whereas the mother was determined that she should return to Country B and that orders should be made which would allow the child to go with her.
Paragraph 113 of the judgment made the following finding:
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.
When considering the nature of the relationship that the child has with each of the parties, I found at [126] that:
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.
The father currently does not consider that the mother is supportive of his relationship with the child whereas the mother is concerned as to the father’s ability to properly and appropriately care for the child in terms of the day to day exigencies of life. The mother does not consider that the father is appropriately invested with promoting the child’s education.
The child’s views were considered by the family consultant who recorded that the child did not wish to leave Darwin. I found that whilst the child understood the nature of the dispute, namely, whether he should relocate with his mother to Country B, I considered it a relevant factor that the family consultant did not explore with the child his reaction to the reality that the mother was intending to live in Country B permanently.
I considered that the child’s views as expressed should be tempered by a finding 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 circumstances.”[2]
[2]Contadini & Georgiou [2018] FamCA 701 at [144].
I considered that the prime focus should be to determine the extent of the impact of the inevitable outcome of being separated from one parent or the other.
The evidence of the family consultant did not assist and I found at [164]:-
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 interest. 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.
It may be that the parties or either of them consider that that interim orders represent the Court undertaking an experiment involving the child. I considered that there was sufficient evidence as to the child’s circumstances in Darwin but that the proposal of the mother, whilst considered to be not unreasonable, was absent the evidence necessary to enable the Court to arrive at an informed decision as to which of the proposals of the parties would best serve the child’s interests.
I considered that the mother was sufficiently attuned to the child’s needs to provide him with the necessary support given the linguistic hurdle that the child would face and the uncertainty of a different environment and social structure.
It is also an important consideration that the parties were able to recognise that whatever the circumstance might be, the child would benefit from counselling and therapeutic intervention.
That safety net was provided by Ms N, psychologist.
Approach to be adopted
There are different considerations to those that have arisen since the relocation of the child to Country B than were considered in the earlier hearing.
Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires that I have the best interests of the child as the paramount consideration and as was considered at [115] of the interim judgment, I propose to adopt the same approach and to have regard to the primary and additional considerations as set out in ss 60CC (2) and (3) of the Act.
During the first hearing the mother presented evidence consistent with her position that the father exhibited abusive, derogatory and threatening behaviour towards her. To some extent, the mother pursues a similar approach, however it is a button pressed faintly. The focus of the proceedings at present is directed to a consideration of the child’s relationship with each of the parties and all other things being equal, whether the child has been able to adapt to life in Country B and the extent to which his separation from the father has adversely impacted upon him.
Evidence
The Mother
The mother’s evidence is contained in her trial affidavit filed 13 August 2020.
Following the delivery of the interim judgment the mother returned to Country B on 19 September 2018. The child remained with the father pending the further order that he leave Australia and take up temporary residence with his mother in Country B.
The mother expressed concern that the relationship and level of communication between the parties was poor. She considered that whilst the child remained in the father’s care in Darwin the father was not prepared to provide information as to relevant matters affecting the child’s care and welfare. It appears that the parties were not able to arrange counselling for the child in Darwin in order to assist with the child’s anticipated anxiety at being separated from the mother and then the later separation from the father.
The mother returned to Darwin on 2 January 2019. The mother and the child left Australia on 10 January 2019.
The mother observed that the child appeared to have been informed of the proceedings and some of the allegations that had been made by each of the parties.
The mother’s evidence also suggests that the animosity between the father and Mr C remains unresolved.
The child finished Grade 2 in December 2018. There was a disconnect between the academic school year in Australia and Country B which promoted the mother to decide that the child should spend some time in Grade 2 and then transition to Grade 3 in Country B in August 2019.
A focus of the interim proceedings was the consideration of how the child would cope and adapt to a different school system in Country B and the likely linguistic hurdles that he would face.
The child was enrolled in a bilingual school and it seems that significant effort was expended to assist in the child’s proficiency in the K language and what the mother contends is a slightly higher academic level for the same year grade.
It is regrettable that the child’s education was interrupted by COVID-19 restrictions from March 2020.
The mother is candid in her admission that the child struggled emotionally soon after his move to Country B. Language was a difficulty and initially until he made friends of his own age, he missed his school associates in Darwin.
The mother reports that the child’s teachers were concerned by the child’s presentation in that he made it clear that he thought it was a matter for him for him to choose whether he lived with his mother in Country B or with his father in Darwin. There is little doubt that whilst the decision was not one for the child he considered that it was. The mother concedes that this was a burden for the child and hampered his anticipated scholastic progress.
The mother and father agreed that the child would benefit from counselling. The mother arranged for the child to see Ms N.
The mother’s evidence seeks to contrast the more recent pleasing progress promoted by the child becoming more proficient in the K language, enrolling in a local soccer club and forming an increasing social circle of friends with his earlier anxiety about leaving the familiarity of Darwin to the unfamiliar environment of the mother’s village in Country B.
The mother now considers that the child is well settled into his life in Country B and there is positive feedback from the psychologist, his teachers, his doctor and the parents of the child’s friends.
The mother highlights that the child has a respectful and close relationship with Mr C and has spent time with Mr C’s extended family.
It is uncontroversial that the time the child has spent with the father in Darwin has been problematic. Under the interim orders he has spent time with the father in July 2019 and during the December 2019 Christmas school holidays.
The child last spent time with the father during the December 2019/January 2020 Christmas holidays. The interim orders that provided for the child to return to Darwin by 20 July 2020 and to spend week about with each of the parties was flouted by the COVID-19 restrictions.
During the course of the proceedings I heard argument as to the difficulties that the mother would face both in terms of the exorbitant cost of travel and the necessity to quarantine in Australia.
It is easily understood that the father remains distressed that he is not able to have physical contact with the child.
It would seem that subject to some missed opportunities, the father and child have been in regular contact by FaceTime, telephone or social media.
The mother recounts an observation of the father’s attitude to the child during a video call on 30 May 2020. The mother records that the father challenged the child as to the child’s Facebook account that he was happy and well settled.
The occasions when travel was able to occur were fraught with argument and dispute between the parties as to the contribution by each of them to the cost of the child’s airfare.
Whilst the mother would seek to cast blame on the father for his intransigence in not readily contributing to the airfare costs, it seems that the matter may be capable of resolution by each of the parties being required to purchase the child’s return ticket from one parent to the other.
On 26 December 2019 the child departed Country B for Australia via Dubai and Singapore. The child flew as an unaccompanied passenger and the mother reports that notwithstanding some anxiety on her part the child managed the travel arrangements well and expressed pride in his achievement.
The mother continues to pay for the child’s curricular and extra-curricular activities without contribution by the father.
It is a relevant matter that there is compliance with the orders of 12 September 2018 that required the interim orders to be the subject of registration pursuant to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.[3]
[3] Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, opened for signature 19 October 1996. 2204 UNTS 503 (entered into force 1 January 2002).
The mother’s current position is to remain in Country B and for the child to travel between Country B and Australia.
The mother considers it unlikely that she will receive significant financial support or assistance from the father.
The parties are apparently agreed as to how the cost of the child’s travel between Country B and Australia will be paid and met by each of them.
The mother agrees to the father communicating with the child three times per week and subject to it taking place at unreasonable hours or with excessive frequency, the mother welcomes more time between the father and the child.
The mother is prepared to facilitate the child having a mobile phone, it being the principal method of communication with the father provided that the father bears the cost of same.
The mother agreed that the father has extended family in Darwin and that the child had regular and enjoyable involvement with them.
When asked to give an example of the manner in which the mother supports the child’s relationship with the father’s extended family, she advised that at Christmas she and the child had crafted a Christmas card that could be sent to a number of the father’s extended family in Darwin and overseas.
Without hesitation, the mother acknowledged that the child loves his father and considered that it was understandable that the child would wish to live with both of the parties. It is a challenge for the child to accept that his parents will not ever reconcile their differences.
In recognition of the strength of the child’s relationship with the father, the mother agreed that if the child expressed a clear wish to return to Darwin having attained the age of about 15 years then she would allow it to occur.
For the moment the mother’s evidence was that the child’s interests were best served with her in circumstances where she has been the parent primarily involved in the child’s educational development. The mother considers it a positive development that the child can now speak the K language and he has two K language tuition classes each week.
The mother considers that with the improvement in his language skills the child is now more comfortable and independent. He is able to take himself to and from school and the mother observes pleasing improvement in his level of maturity.
The mother was challenged as to her decision to change the child’s school from a bilingual school to a public school. Her reasons for doing so were firstly to ameliorate the significant cost involved being in excess of $60,000 per year, but primarily because the move now required the child to focus on speaking in the K language.
The mother did not inform the father of her decision. She acknowledged that it was a unilateral decision, but contends that the difficulty in civil communication with the father was such that she did not believe the parties would reach any agreement.
The mother acknowledged that it was open to the Court to order that the child return to the father’s care. If that occurred she would remain concerned as to the father’s preparedness to promote his education. The mother’s evidence is that it was not her experience that the father engaged at any significant level with the child’s schooling. The child’s education was a matter she considers had been left almost entirely to her.
The mother impressed with her preparedness to concede the difficulties that the child experienced with his transition from Australia to Country B. Her evidence was insightful in terms of the importance of promoting his education and she was prepared to stand her ground in limiting the child’s use of computer games even though it was a source of upset and dispute between them.
Whilst the evidence of the psychologist will provide some assistance as to the emotional wellbeing of the child, the mother did not consider that there were any health concerns affecting the child. She remained concerned as to the inability of the parties to be able to communicate.
The mother remains employed on a substantial income of $160,000 per annum. Mr C appears to be self-employed and provides financial support to the family in that he pays the rent and the mother shares in the household costs and expenses.
The mother denied that there was any rift in her relationship with Mr C.
The Father
The father relied upon his trial affidavit filed 15 August 2020. The father highlighted much of the history of the parties’ relationship and their residence in Darwin that was given in the interim proceedings.
The family lived in Country B for four years until the father returned to Darwin in June 2013 and was subsequently joined by the mother and the child in October 2014.
It is not controversial that each of the parties maintained a significant involvement in the day to day parenting of the child. There was an agreement between the parties that they would reconsider after five years whether they would make Darwin their permanent home or move interstate. The parties also considered a move to Country B.
The father concedes that the mother did not enjoy her time in Darwin. She was homesick and her dislike of Darwin was a constant source of conflict between the parties.
Whilst not necessarily a view shared by the mother, the father considered that the parties were initially happy, however the mother’s unhappiness having to remain in Darwin in circumstances where the employment opportunities were limited and the domestic finances of the family were parlous, the relationship soon became one of high conflict.
The father acknowledges that the relationship became irreconcilable following the father slapping the mother with an open hand in order to calm her down.
Following the child’s relocation to Country B the child travelled to Country D to visit the father’s extended family in July 2019.
The mother does not challenge the father’s assertion and perception that the child very much enjoyed his time with the father. In compliance with the orders, the child travelled to Darwin over the 2019/2020 Christmas holiday period and spent 14 days with the father.
The father annexes a sample of text messages sent by the child to him expressing his love and a plea that the father and mother should reconcile. I find that the child misses his father but does not have the maturity to reconcile that his mother has no intention of returning to Darwin. It is an impossible conundrum for the child that his desire for the parties to reconcile and thereby enable him to maintain a close and loving relationship with each of them is forlorn hope.
At present the parties have agreed that the child will communicate with the father on three occasions in each week, namely Wednesday, Saturday and Sunday.
The child has a tablet and subject to the provision of Wifi, the child can contact his father at will.
Whilst there have been some difficulties caused by the time zone difference of approximately eight hours, it appears that the parties have been able to reach an appropriate accommodation as to communication between the father and the child.
The father considered that he had maintained a close relationship with the child apart from some difficulties arising from the time difference and a reluctance of the mother to engage with the father and exchange necessary information.
The father’s evidence revealed that the father and the child speak frequently and exchange significant information concerning the child’s home life, his school and extra-curricular activities.
When the parties were together it seems that an aspect of the conflict centred upon the different parenting styles of the parties. The father has maintained a long-held concern that the mother is strict and regimented with the child. It is not suggested that she is aggressive, but rather she does not exercise much flexibility. There are rules that the mother considers the child needs to follow.
The father considers that he is more likely to allow the child more freedom. The father does not consider that his parenting style is lackadaisical as asserted by the mother, but rather he considers that the child should be able to enjoy increasingly more freedom and self-determination.
The father was asked about the involvement of a counsellor for the child in the period leading up to his relocation to Country B. The father conceded that the child was upset and missing the mother. The father tried to minimise the importance of the child’s need for therapeutic intervention, however it seems consistent with the finding that the child has a strong emotional attachment to each of the parties.
The interim proceedings highlighted the father’s appalling relationship with the mother’s partner Mr C. The father’s evidence is that time has softened his animosity and whilst he does not like Mr C he denies that they have a poor relationship. An example of his more balanced approach is his congratulations expressed to Mr C on his recent birthday. The father considers that the relationship with Mr C is now cordial.
In contrast, it was put to the father that he had threatened to cut Mr C’s throat. The allegation arises from a statement made by the child. The father denies that he had ever expressed such a view.
The father stated that he remains somewhat bitter about the breakdown of the relationship and he is now more accepting that there is no possibility of a reconciliation and is prepared to concede that Mr C is kind to the child.
In compliance with the interim order made in anticipation that the child would experience significant anxiety and distress at being separated from the father and living with the mother in a different environment, the mother arranged for the child to receive counselling from a psychologist, Ms N. She produced her report dated 16 June 2020 and upon the father receiving it, on 18 June 2020 he forwarded to the psychologist two text messages asserting that she was biased and it was his hope that the report would be discarded or given no weight.
The text messages, whilst not overtly threatening, nonetheless demonstrate that the father continues to hold deep resentment at the mother’s decision to separate and take the child with her to live in Country B with Mr C.
The mother alleges that the handovers between the parties have been problematic and marred by the father’s aggressive and uncooperative attitude. She asserts that at a handover in August 2019 the father made disparaging remarks about the mother in the presence of the child such as “Look at you, you gold digger, “Fuck you”, and “Karma will get you one day and I will sit back and watch.”[4]
[4] Affidavit of mother filed 13 August 2020 at [40].
The father denies that he used offensive or abusive language either to the mother or about the mother in the presence of the child.
The father’s evidence did not impress in respect of his assertion that he was now comfortable about the mother’s decision to separate and recognised that the child’s interests would be best served by the parties engaging in cordial and civil communication. The father remains angered by the mother and resentful that Mr C is in the role of step-father. It is likely that there will be ongoing hostility between the parties although not to the extent that the child’s relationship with either party would be undermined.
The mother complains that she undertook the day to day parenting of the child, whereas the father tended to be more interested and involved in the child’s extra-curricular activities.
I am able to find that the relationship of each of the parties is important to the child.
Ms N
By joint letter of request dated 26 May 2020, the parties requested Ms N to prepare a report setting out in detail her professional involvement with the child.
The psychologist commenced her therapeutic intervention with the child on 26 March 2019. She conducted regular bi-weekly sessions and provided therapeutic framework and processes such that the child would freely discuss his concerns and the basis of any anxiety or distress.
The following is an assessment of the child’s presentation:-
[The child] is a bright and curious boy with interests that are appropriate for his age, such as soccer, Star Wars, computer games and hanging out with friends. He is very talented in drawing and exhibits great interest in history (e.g., the Second World War, the Titanic, ancient Greece). His emotional outbreaks formed a central topic during the initial phase of the therapy, but gradually subsided thereafter. He can verbally express himself very well and can explain and argue his viewpoints. While [the child] was initially shy and withdrawn with respect to social contacts, he has found a close friend during the first months. This contact has developed into a stable friendship and the two boys now meet every Wednesday afternoon.[5]
[5] Affidavit of Ms N filed 17 August 2020, page 8.
The psychologist considered that the first therapeutic task was to assist the child in settling into his new environment in Country B.
In October 2019 the psychologist made contact with the father. She was favourably impressed with his understanding of the child’s presentation and developmental issues. The psychologist records that shortly after her initial contact, the father indicated that he would not have further contact with her and considered that she did not bring an unbiased consideration to the matter but rather, was likely to assist the mother’s case that the child remain with her in Country B and not return to Australia.
Further contact was made with the father in January 2020 and then in May 2020. The psychologist records that the father’s impression of the child’s presentation was now more mature, self-assured and that the child seemed in a more relaxed state.
The mother’s involvement with the psychologist has been more extensive than has occurred with the father. The mother and her current partner have been seen every four to six weeks in the context of psychotherapeutic coaching. The strategies that were central to the therapeutic assistance provided were as follows:-
(1)Possible strategies for improving the child’s integration at school;
(2)The difficult communication between the parties; and
(3)How better to assist the child in undertaking and completing his homework.
It was anticipated at the time of making the interim orders that the child may well need some therapeutic assistance to deal with the likely heightened anxiety at moving from the familiarity of Darwin to the unfamiliar circumstances of the mother’s residence in Country B, with the attendant concerns surrounding education, language and the separation from the father.
Initially the child presented as being very worried that he would be required to make a decision as to whether to remain with his mother in Country B or return to his father in Darwin. The following extract from the psychologist’s report summarises the child’s presentation:-
During our interactions, [the child] has been very open. It is clear that he feels close to both parents. [The child] has concerned himself in depth with his origin, and he has repeatedly voiced that he misses his father. His inner conflict about his parents intensified during winter 2019. He was very worried that he would need to take a decision of where he would like to live in the future, and this burdened him a lot. Even the explanation that the decision would be taken by a judge rather than by him did not help much to ease his concern. He was also preoccupied that one parent would always be very sad if he chose to live with the other. In this context he also mentioned that it might be better to live with his father who is older and might, therefore, die sooner. …[6]
[6] Affidavit of Ms N filed 17 August 2020, page 9.
The psychologist made inquiries of the child’s teacher. She was advised that initially the child was not motivated to study the K language, however over time it appears that the child has integrated well into his current school and that he is both talented and cheerful.
He is highly attuned to his parent’s distress at the conflict and whilst initially anxious and uncertain, the opinion of the psychologist is that the child has undergone emotional development and is now more settled.
The child considered that as his K language improved he was now able to be more independent and it appears that with the assistance of his mother and Mr C he has adapted well to his life in Country B.
The psychologist considered that the mother has invested significant effort in assisting the child and was of the opinion that the child has been carefully looked after.
The evidence of the psychologist was impressive and balanced. She recognised the deep emotional attachment that the child has with both of the parties and acknowledged that the child misses his father.
The Family Consultant
By order made 10 March 2020 Ms P (“the family consultant”) prepared a family assessment report pursuant to s 62G(2) of the Act.
The family consultant appropriately considered the competing proposals of the parties and determined that there were no risk factors in respect of family violence or abuse, although the father remained unable to reconcile the breakdown of the relationship with the mother and the involvement of Mr C as a significant adult influence on the child.
As between each of the parties and the child, there are no relevant risk factors and no allegations or assertion of safety issues or substance abuse.
The family consultant approached the assessment by identifying and then considering the following matters:-[7]
(a)[the child’s] age and state of development in considering appropriate parenting arrangements;
(b)the nature of [the child’s] relationship with each of his parents and other significant persons, and the benefit to [the child] of having a meaningful relationship with each parent and other significant persons;
(c)the willingness and ability of each parent to facilitate and encourage a close continuing relationship between the child and the other parent;
(d)the effect of any change in [the child’s] circumstances, including the likely effect on him of separation from either parent, or other persons with whom he has been living.
[7] Family Assessment Report dated 19 June 2020 at [24].
Consistent with the father’s presentation throughout the proceedings, she records that the father holds a strong opinion that child was being treated as a “lab rat”[8] and “an experiment”[9] by the Court making the interim orders that allowed for the mother to relocate the child to Country B.
[8] Family Assessment Report dated 19 June 2020 at [26].
[9] Ibid.
He was concerned that the Court did not give proper weight to the cultural and family issues that impact upon the child and the potential loss of family connection with the father’s extended family resident in Darwin. It was noted by the family consultant that whilst the father placed importance upon the child’s Country D culture and background, he did not consider that the Country K influence that impacts upon the mother arising from her cultural background was as important and was highlighted by a lack of friendliness and hospitality.
The father was upset at the potential for there to be a beneficial relationship between the child and Mr C. It was a matter of significant irritation that the child refers to Mr C’s mother as his grandmother.
The father did not consider that there should be any weight attached to Mr C’s extended family.
Despite the father’s evidence that he was now able to rationalise and accept the separation from the mother, the family consultant recorded that the father still considered there was a potential for reconciliation and that her relationship with Mr C was financially based. The father has described the mother as a “gold-digger”.[10]
[10] Ibid at [30].
The father was asked to consider whether the relationship with the mother had been marred by family violence. The father considered that he had never been violent or abusive to the mother save for the occasion when it was necessary that he “slapped”[11] the mother on the basis that she was hysterical and needed to be calmed down.
[11] Ibid at [31].
The father fairly conceded that the child was not at risk of harm in the care of the mother and that she had “nurtured [the child’s] physical development and appearance, and was invested in his educational outcomes”.[12] He did consider that the mother was strict and impatient with the child and imposed a high level of rigor to his education and homework.
[12] Ibid at [34].
He summarised the mother’s parenting style as “very hard and strict”[13] whereas he was more liberal in his approach.
[13] Ibid at [37].
The family consultant noted that there was an inconsistency in the father’s description of the mother as being a great mother, but then subjecting her parenting to criticism on the basis that she was too strict.
The mother was forthright in her decision that whatever order was made, she would not leave Country B and return to Darwin. Her description of Darwin was uncomplimentary but was at least consistent with her initial dislike for Darwin. It is likely that the mother’s position has not changed and that her time living in Darwin was generally unhappy.
The mother also complained that the father continued to make inappropriate and insulting comments either to her or about her and Mr C. The mother alleged that the father had called her an idiot and a “malaka”[14] (a prostitute).
[14] Ibid at [67].
The family consultant remained concerned at the ability of the parties to communicate about the child, however they were each able to recognise that the other loved the child and that it was important for the child to maintain a relationship with each of them.
At the time of the assessment the child was aged nine years and seven months. The family consultant considered that he appeared to be healthy and well-groomed but also bored and disinterested in the interview.
The child commented that the area that he lived in was nice and that he had made some friends but in particular his best friend called “Q”.[15]
[15] Ibid at [88].
The child recognised that both of his parents loved him dearly. He recognised that in his mother’s home she was diligent in her care for him but was also certain that in the father’s home he would be cared for in the same way.
In a challenge to the father’s position, the child recognised that Mr C was an important person in his life. He summarised his relationship as follows:-
‘he does everything for me, he is kind, he lets me do things, and he works very hard for me and mum.’[16]
[16] Ibid at [95].
Consistent with the child’s divided loyalties, when asked what he would seek if he was able to make a magical wish, the child’s response was that he would live with his mother and father in Australia but not in Darwin and that Mr C would visit him.
The family consultant recorded that the child has a strong relationship with both parents and is confident that each of them love him.
The family consultant considered that irrespective of with which parent the child lived, the orders should ensure that the child spends extended time during the school holidays with the other parent.
Parenting Considerations
Meaningful Relationship
The parties agree that it is in the best interests of the child that he maintains a meaningful relationship with each of the parties. The legislation seeks to promote a meaningful relationship, but not necessarily an optimal relationship.[17]
[17]Godfrey & Sanders [2007] FamCA102 at [36].
A “meaningful relationship” is synonymous with a substantial or important relationship.
In Blanding & Blanding [2016] FamCAFC 21 Finn J considered the Full Court decision in Beckham & Desprez [2015] FamCAFC 247 which directed that the Court now should focus on the practical reality of each party’s proposal and the consideration of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
The child currently lives with the mother in Country B. The father remains resolute in his determination to remain in Darwin. The mother does not intend to return to Darwin irrespective of any order that the Court may make.
The practical reality is that the parties will live in separate countries. The relationship that the child clearly enjoyed whilst both parties were living in Darwin is not now an option.
Both parties concede that it is not possible for each of them to maintain an optimal relationship with the child, but it also appears uncontroversial that a meaningful relationship can be maintained providing the prevailing circumstances at the time permit international travel either by the child between Country B and Australia, or by the parties.
I am obliged to frame orders that ensure the child is able to maintain a meaningful relationship with both parents.
The mother and child left Australia in January 2019. The father and the child were able to spend time together over the European long school holiday period, however consequent upon the COVID-19 pandemic international travel has not been available to the parties or the child. The unfortunate consequence is that the father has not spent any physical time with the child but has maintained a relationship by frequent electronic communication.
Whilst the potential impact of the COVID-19 pandemic and the resultant restrictions were within the contemplation of the parties given that the mother and child were not able to travel to Australia in compliance with the interim orders and the trial proceeded by way of the Microsoft Teams platform, neither of the parties placed any evidence before the Court as to the nature and extent of the restrictions on international travel and the circumstances that exist requiring the child’s obligation to quarantine upon travel to Australia.
The mother’s interim application seeking that she give her evidence remotely was predicated upon a difficulty in securing flight travel and what could only be considered as an exorbitant cost for the mother and child to travel to Australia.
In circumstances where opportunity has been given to the parties to introduce evidence in respect of the potential impact of the COVID-19 pandemic and the resultant travel restrictions before the Court, I consider that pursuant to s 144 of the Evidence Act 1996 (Cth) I can take judicial notice of the difficulty that is likely to be experienced in travelling from Country B to Australia given that any flight travel would arrive in Australia via a capital city not including Darwin. This then raises the issue of the quota imposed by each State upon persons travelling to Australia predicated by the extent to which quarantine facilities are available. There is no certainty in relation to the ability of the child and the mother to travel from Country B to Australia.
It is also not known when the travel restrictions may be modified either to enable a greater number of persons who are able to come to Australia and the extent to which quarantine is required.
It is a reasonable observation that international travel between Country B and Australia will remain the subject of heavy restriction.
I bring to account that the interim orders have not just removed the child from Darwin but with the combination of the consequences of the COVID-19 pandemic, the father’s ability to retain the relationship with the child is made more tenuous by the uncertainty as to when physical contact can resume.
I am required to consider the proposals of the parties in terms of their effect upon the child and assess whether the child’s best interests will be served. I cannot ignore the reality that the child remains in Country B and is effectively unable to travel back to Australia, nor is the father able to readily travel to Country B.
It is not open to me in the absence of evidence to guess when the COVID-19 travel restrictions may be lessened or removed. I will make orders that of necessity are conditional and subject to compliance with COVID-19 travel restrictions.
Views expressed by the child
There is a concession by each of the parties that the child has a strong emotional attachment with each of them. There is no doubt that the child loves both his mother and his father. He would consider that the best outcome would see the parties reconciled and whilst perhaps not living in Darwin nonetheless remaining as a family unit.
When separated from his mother the child misses her care, attention and comfort and when separated from his father he misses a close and physically active engagement. The child is happy in the care of either parent. In the circumstances of this case it is not possible for the child to be happy in the presence of both parties in the same place.
I place significant weight on the views of the child but not as to a preference as to the parent with whom the child would wish to live, but as an indication of the importance of the child’s relationship with each of the parties.
The overarching difficulty for the child has been his justified apprehension that he is required to choose between one parent or the other.
The circumstances in which the child finds himself are also not resolved but rather as he becomes more familiar with the language, culture and practices of Country B it appears from the evidence of Ms N and the family consultant that the child is becoming increasingly more comfortable in the Country B environment.
The child has not evinced any clear view that he would wish to live with his mother and be restricted in the time that he spends with his father to school holidays when that is permitted, or with his father in Darwin and not be able to spend time with the mother and her partner Mr C.
The nature of the relationship of the child with each of the child’s parents and other persons
The child has a clear and unbroken attachment to each of the parties. In addition, the evidence supports that Mr C has a close involvement with the child and is a significant adult in the child’s life.
In the father’s home, the child has the advantage of spending time with the father’s extended family.
I dismiss the father’s contention that the mother is not supportive of a strong family and does not recognise the importance to a child of extended family.
It is also noteworthy, although not determinative, that the child has formed a close relationship with Mr C’s mother. No person either associated with the mother or the father has been identified as somebody who is likely to be adverse to the child or would present as a risk.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child and to spend time with the child and communicate with the child
The father is in regular communication with the child. There is no suggestion that the child does not wish to communicate with the father and the mother’s position is to facilitate telephone and electronic visual communication with the child, providing it occurs at a reasonable hour and that the frequency does not disrupt unnecessarily the father’s household.
The presumption is that it is in the child’s interest that the parties each participate in making decisions about long-term issues affecting the child. Even though there is the tyranny of distance, the parties are able to communicate at a civil level and in terms of major issues there is no reason why the parties should not be able to confer about major long-term issues.
The extent to which of the child’s parents has fulfilled or failed to fulfil a parent’s obligation to maintain the child
The evidence easily satisfies me that the child would be properly maintained in the household of either of the parties.
The evidence supports a finding that to date and certainly since the child’s departure from Australia to Country B, the mother has borne the lion’s share of the financial commitments. The mother enrolled the child at a private school in Country B at significant cost.
The evidence does not support a finding that the father has provided significant financial support for the child although I have no doubt that in Australia the child would be well cared for.
The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents
The child has not without some difficulty transitioned to a life in Country B. The linguistic hurdle has placed some onus on the child to develop a proficiency in the K language. The child’s school reports indicate improving academic performance and development of the child’s maturity and level of independence.
The report of Ms N provides an evidentiary basis for a finding that the child’s emotional and psychological health are being properly fostered.
The practical difficulty and expense of a child spending time with and communicating with a parent
As discussed, COVID-19 has had a significant impact on the ability of the child to travel to Australia and spend time with the father. Whilst there is no evidence of the father’s ability to travel to Country B and spend time with the child, I am aware of the difficulty the father may experience on his return to Australia and the deleterious effect on the father’s employment.
COVID-19 has made the ability of each of the parties to comply with orders uncertain. The costs of air travel are onerous and there is no certainty that a plane ticket that is booked will not change or be withdrawn.
The parties agree that wherever the child may reside, they will share equally in the costs of travel. The problem is that at present the costs are onerous and likely to be beyond the financial wherewithal of the mother and the father.
Family Violence
The mother alleges that the father has engaged in family violence by ongoing aggressive communication and the father’s admission that in order to calm the mother down he felt it necessary to slap her across the face.
Whilst family violence should never be tolerated or minimised, neither party but in particular the mother sought to use it as a shield in respect of the orders that the father is seeking.
The parties dislike each other and their relationship is redolent with mistrust, however, they both recognise and strongly accept that the child loves each of them. To that extent they are prepared to do all that is reasonable to ensure the child maintains a relationship with the other of them.
Any other relevant circumstances
The family report highlights the closeness of the child’s relationship with each of the parties even though he has been physically separated from the father for some time.
The determination by the family consultant that there remains a close relationship between the child and the father supports the mother’s contention that she recognises the need for the child to maintain a meaningful relationship with the father and that she fosters it. She highlights her ready acceptance of the child travelling to Country D with the father and there is no real complaint as to the level and extent to which the father is able to electronically communicate with the child.
The mother is prepared to be generous in terms of the time that the child will spend with the father both in Australia but also in Country B should the father be able or decide to travel to Country B to spend time with the child.
The family consultant was impressed by the nature of the relationship and her evidence allows for a finding that even though the child and the father are separated by significant distance, the child’s relationship with the father, despite all of the hurdles remains intact.
CONCLUSION
The parties do not necessarily hold the other in high regard but are respectful of the needs of the child to maintain an ongoing relationship with each of them.
There is no evidence that suggests the mother is not prepared to facilitate the child’s time with the father subject to the COVID-19 restrictions allowing that to occur.
The mother does not appear to have denigrated the father in the presence of the child although there is some evidence that the father has not been able to restrain himself from making adverse remarks about the mother in the child’s presence.
The evidence supports a finding that the mother is impressive in her care of the child and promoting the child’s education in particular, given that she had to deal with the child’s initial reluctance at learning the K language and in coping with the unfamiliar environment both domestically and at school.
The further reality is that the child is not able to return to Australia in the foreseeable future. He is about to commence first semester in the new academic year.
I consider that in all the circumstances the best interests of the child determine that the child should remain with the mother in Country B but spend extended time with the father during school holidays and for other such periods as may be available to the father should he undertake travel to Country B.
There has been no evidence which suggests the presumption of equal shared parental responsibility has been rebutted, however, the issue of health is a relevant consideration that would support a decision that the mother should have sole parental responsibility for the child’s health.
The parties are in broad agreement as to ancillary orders and I propose to make orders that best reflect the interests of the child.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and three (203) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 24 September 2020.
Associate:
Date: 23 September 2020
3
2