Cullin and Tarankiev

[2016] FamCA 263

FAMILY COURT OF AUSTRALIA

CULLIN & TARANKIEV [2016] FamCA 263

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – where the mother seeks to relocate with the child to Sweden – where the child is now four years old – relocation permitted after July 2017

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children

Family Law Act 1975 (Cth)

Banks & Banks (2015) FLC 93-637
Cox & Pedrana (2013) FLC 93-537

APPLICANT: Mr Cullin

RESPONDENT: Ms Tarankiev

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 3154 of 2013

DATE DELIVERED: 22 April 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 13 and 14 April 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Hetherington from Hetherington Legal

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. All previous Orders are discharged.

IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT

1. The child B, born … 2012, shall live with the mother.

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. The mother have sole parental responsibility for the major long term issues for the child, with such issues to include but not be limited to:

   (a)       her education;

   (b)       her religious and cultural upbringing; and

   (c)       her health.

2. Except in the event of an emergency involving the child, the mother shall consult the father about decisions to be made in the exercise of her sole parental responsibility as follows:

   (a)the mother shall inform the father about the issue about which a decision which needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision, in writing;  and

   (b)       the mother shall give the father fourteen (14) days to respond;  and

   (c)the mother shall consider the father’s views/response when coming to her decision;  and

   (d)the mother will inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.

3. Each party has responsibility for daily decisions about the day to day care, welfare and development of the child whenever she is in his or her care.

4. At any time after 14 July 2017, the mother is at liberty to relocate the child to live with her in Sweden.

5. The Court requests that, from 14 July 2017 or such earlier time as the parents agree to in writing, the Australian Federal Police remove the name of the child, B, born … 2012 (a girl) from the Airport Watchlist at all points of international arrival and departure in Australia.

6. Until such time as the mother and the child depart Australia to live in Sweden pursuant to Clause (6) of this Order, the child shall spend time with her father at all times as may be agreed between the parties in writing but, failing agreement, as follows:

   (a)commencing 25 April 2016:

   (i)each Tuesday afternoon: from the conclusion of the father’s working day until 6.30pm; and

   (ii)each alternate Thursday: from the conclusion of the father’s working day until 6.30pm, with the first Thursday to occur on 5 May 2016; and

   (iii)each alternate weekend from 4.00pm Saturday until 5.00pm Sunday, with the first weekend to occur on 30 April 2016; and

   (b)       commencing 11 June 2016:

   (i)each Tuesday afternoon: from the conclusion of the father’s working day until 6.30pm; and

   (ii)each alternate Thursday: from the conclusion of the father’s working day until 6.30pm; and

   (iii)each alternate weekend: from 1.00pm Saturday until 5.00pm Sunday; and

   (c)       commencing 4 July 2016:

   (i)each Tuesday afternoon: from the conclusion of the father’s working day until 6.30pm; and

   (ii)each alternate Thursday: from the conclusion of the father’s working day until 6.30pm; and

   (iii)each alternate weekend: from 9.00am Saturday until 5.00pm Sunday; and

   (d)       commencing 2 January 2017:

   (i)each Tuesday afternoon: from 3.00pm or the conclusion of school until 6.30pm; and

   (ii)each alternate weekend: from 3.00pm, or the conclusion of school Friday until 5.00pm Sunday (except on Sunday, 22 January 2017 when the time shall conclude at 10.00 am), with the first weekend to occur on the weekend of 6 January 2017.

7. During the Easter 2017 school holidays the operation of Clause (8)(d) of this Order shall be suspended and the child shall spend time with her father as follows:

   (a)from the conclusion of school on Friday, 31 March 2017 until 9.00am on Tuesday, 4 April 2017; and

   (b)on 11 April 2017: from the conclusion of the father’s working day until 6.30pm; and

   (c)from 3.00pm on 14 April 2017 until 1.00pm Sunday, 16 April 2017;  and

   her time with her father pursuant to Clause (8)(d) of this Order shall recommence in the week commencing 24 April 2017.

8. During the June/July 2017 school holiday period the operation of Clause (8)(d) of this Order shall be suspended and the child shall spend time with her father as follows:

   (a)from 3.00pm, or the conclusion of school on Friday, 23 June 2017 until 6.30pm on Tuesday, 27 June 2017; and

   (b)from 3.00pm or the conclusion of the father’s working day on Friday, 7 July 2017 until 6.30pm on Tuesday, 11 July 2017.

9. Unless otherwise agreed, changeovers for the child’s time pursuant to Clauses (8), (9) and (10) of this Order shall occur as follows:

   (a)when time with her father commences from school or daycare: with the father to collect the child from day care or school, and return her to the mother’s home at the conclusion of the time; and

   (b)when the time with her father commences on a day when she is not otherwise at school or daycare: with the mother to deliver the child to the father at his home at the start of the time and the father to return the child to the mother at her home at the conclusion of the time.

10. After the child relocates to live in Sweden, she shall spend time with her father as agreed between the parties, but, failing agreement:

    (a)in Australia each year: for a period of not less than 21 consecutive days during the extended European summer school holiday period (occurring in June/July/August) on the following terms:

    (i)the mother shall accompany the child to Australia until such time as the earlier of the mother advising the father in writing that the child has reached an age and level of maturity when she can travel as an unaccompanied minor or the child reaching the age of 15 years – after which she may travel as an unaccompanied minor;  and

    (ii)the mother shall be responsible for the cost of her own airfare and travel;  and

    (iii)the father shall be on leave from work for a period of not less than 14 days of this time;  and

    (iv)the mother shall notify the father of the child’s school term and holiday dates for the following year by no later than 31 December in each year;  and

    (v)the father shall give the mother no less than four (4) months’ notice in writing of the dates on which he proposes the child travel to Australia;  and

    (vi)the mother shall book the child’s return travel by air and notify the father of the cost of the child’s travel by providing him with a copy of the airline receipt and itinerary, and, within seven (7) days thereafter, the father shall reimburse to the mother one half of that cost by payment to the bank account nominated by the mother;

    (b)       in Sweden: at any other time during each year on the following terms:

    (i)the father, and/or members of the child’s extended paternal family, shall give the mother not less than three (3) months’ notice of an intention to travel to Sweden and spend time with the child there; and

    (ii)the father shall be responsible for his own cost of travel.

11. The time the child shall spend time with her father pursuant to Clauses (12)(a) and (12)(b) of this Order shall, unless agreed by the parents occur as follows:

    (a)in 2018: for five (5) consecutive nights followed by one (1) night with her mother, followed by five (5) consecutive nights followed by one (1) night with her mother, followed by five (5) consecutive nights followed by one (1) night with her mother, followed by three (3) consecutive nights; and

    (b)in 2019: for six (6) consecutive nights followed by one (1) night with her mother, followed by six (6) consecutive nights followed by one (1) night with her mother, followed by seven (7) consecutive nights;  and

    (c)in 2020 and thereafter:  for seven (7) consecutive nights followed by one (1) night with her mother, followed by seven (7) consecutive nights followed by one (1) night with her mother, followed by five (5) consecutive nights.

12. After the child relocates to live in Sweden, she shall communicate with her father as agreed between the parties but on no less than three (3) occasions each week by Skype, telephone or other electronic communication at such times as may be agreed between the parties and, failing agreement, between 7.30am and 8.30am (Swedish time) each Tuesday, Thursday and Sunday, with both parties to do all things necessary to ensure that each has in place the technology necessary to enable Skype communication to occur.

13. In order to facilitate the child’s communication with her father by Skype or telephone, her mother shall ensure the child is available to receive the telephone call or the Skype communication at the relevant time, arrange for her to telephone or Skype the father on the following night if, for any unforeseen circumstance, the child misses the telephone call or the Skype communication from her father and, to the extent appropriate for her age, ensure she has  privacy during her communication with her father.

14. The mother and father shall:

    (a)keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within 24 hours of such change;  and

    (b)keep each other informed of the names, addresses and contact details of any medical or other health professionals who treats the child;  and

    (c)inform the other as soon as is reasonably practicable of any serious medical condition, significant health issue or illness suffered by the child; and

    (d)keep the other informed of the details of any school, educational facility or extra-curricular activity provider attended by the child.

15. By this Order, the mother and father authorise any day care, school, educational facility or extra-curricular activity provider attended by the child to provide to each parent, at that parent’s request and cost, all information about her educational progress and school related activities.

16. Subject to the conditions imposed by the child’s school or extra-curricular provider, these Orders authorise both parents to attend school functions and extra-curricular activities to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.

17. By this Order, the mother and father authorise any medical or other health professionals who treat the child to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about her attendance and treatment.

18. The mother shall provide to the father, within 28 days of her receiving the same, a copy of any school report she receives about the child’s progress at school.

19. On no less than one occasion each year, the mother shall provide to the father a copy of any official school photograph in which the child appears.

20. Neither parent denigrate the other, their partner or their family to, or in front of, or within the hearing of, the child and each shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of, the child and, failing their compliance with such a direction, shall remove the child from that environment immediately.

21. By no later than 14 April 2017, the mother do all acts and things and take all reasonable steps to obtain:

    (a)from a Court of competent jurisdiction in Sweden: recognition pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation 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 on 22 April 2016; or

    (b)from a Court of competent jurisdiction in Sweden: a declaration of enforceability in Sweden, pursuant to Article 26 of the Child Protection Convention, of the Orders of the Family Court of Australia made on 22 April 2016; or

    (c)that she register in a Court of competent jurisdiction in Sweden, pursuant to Article 26 of the Child Protection Convention, the orders of the Family Court of Australia made on 22 April 2016; and

    provide the father notice in writing of such declaration or recognition within seven (7) days of receiving the same.

22. All outstanding applications are dismissed.

23. The Independent Children’s Lawyer is discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cullin & Tarankiev has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3154 of 2013

Mr Cullin

Applicant

And

Ms Tarankiev

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The parties were involved in what has been described by Mr C, the author of three Family Reports prepared to assist the Court, as “fundamentally a dating relationship.” This relationship commenced in about early 2010 and ended, finally, not long after the birth of their daughter, B, on 23 March 2012.

2. B is the only child of each of her parents. She is also the only grandchild of each of their parents. She is clearly much loved by all of the adults to whom she is biologically related.  I accept entirely that each of her parents genuinely wants only the best for her, is genuinely committed to her and that each genuinely thinks that his or her respective parenting proposals will see her have the best chance of fully achieving her potential as a person.  She is, indeed, fortunate to have two parents who have a genuine commitment to, and interest in, her welfare.

3. The child’s mother, who was born in Country D, moved to live in Sweden when she was 21 years of age. She lived in that country until she moved to Australia for employment reasons in July 2009 when she was 38 years of age. When she travelled to this country, she did so with the idea that she would work here for about six months and then return home to Sweden.  She is now 44 years of age. She is fluent in the Swedish, Country D and English languages. She is an Australian citizen, as is the child’s father, who was born in this country and has only ever lived here.

4. The child is a citizen of both Australia and Sweden.

5. The child has always lived primarily with her mother.  It is accepted she will continue to do so irrespective of whether she remains living in Australia or moves to live in Sweden. The mother is, as was noted by Mr C, well organised in meeting and discharging her parenting responsibilities.  She has been employed by the same employer since moving to live in Australia and, whilst she works Monday to Friday, is able to work from home each Monday. When her mother is at work, the child spends time at daycare.

6. According to Mr C’s most recent report, the child’s father typically works six days a week. He has been employed by the same employer for a number of years.  On occasions, when his work day is cut short by strike action or otherwise ends earlier, he collects the child from daycare and spends time with her.

7. The child currently spends time with her father[1] each Tuesday, from the conclusion of his work – which may be as early as about 9.00 am on occasion - until 6:30 pm, each alternate Thursday, from the conclusion of his work until 6:30 pm and – commencing from 26 September 2015 – each alternate weekend from 4:00 pm Saturday until 5:00 pm Sunday.

   [1]          pursuant to Orders made by consent by Judge Howard on 4 August 2014.

The competing proposals

1. The child’s mother seeks that the child relocate with her to Sweden in order to be able to commence kindergarten there in August this year. As an alternative, she supports the proposal advanced by the Independent Children’s Lawyer that the child move to live in Sweden from about August 2017.

2. If living in Sweden is found to be in the child’s best interests, her time with her father may be limited to that which occurs during:

   a)one period of three weeks in Australia each year: when the mother and the child travel to Australia and during which, until she commences primary school, she will spend up to three blocks of four consecutive nights, punctuated by an overnight return to her mother’s care and – once she has commenced school – for up to three blocks of six consecutive nights, punctuated by an overnight return to her mother’s care; and

   b)one period of three weeks in Sweden each year:  for up to three blocks of four consecutive nights, punctuated by an overnight return to her mother’s care;  and

   c)on such other occasions when her father is able to travel to Sweden.

3. The child’s father opposes her moving to live in Sweden. He is concerned that, given the distance between Australia and Sweden and the associated high cost of travel between those countries, such a move will deprive her of the opportunity to continue to develop a relationship with him and her extended paternal family. In responding to these concerns, the child’s mother asserts that the relationship between the child and her father is sufficiently established and developed to withstand the practical imposts of the distance between Australia and Sweden.  

4. The child’s father proposes that, if she remains living in Australia, the time she spends with him be increased in a graduated manner. He seeks that, until she commences Prep in January 2017, she spend time with him every Tuesday afternoon until 6:30 pm, every Thursday from 1:30 pm to 6:30 pm and each alternate weekend from Friday afternoon until 5.00 pm Sunday. Once the child commences Prep in January 2017, he proposes simply that the child’s time with him commence at the conclusion of school, rather than the conclusion of his work day. He continues to advance that the child’s time with him at the weekend conclude at 5.00 pm on Sunday afternoon.

5. When interviewed by Mr C in February 2016, the father said he would be willing to consent to the child living in Sweden when she was older. It appears he told Mr C that, provided there were appropriate provisions made for her to spend time with him in both Australia and Sweden and for ongoing communication in the intervals between such face-to-face times, he would agree to a move to Sweden when the child was at least 5½ years of age.[2]

   [2] Third Family Report at [14].

6. Consequently, the most recent Family Report outlines that the child’s parents were close to reaching an agreement about her future parenting arrangements during their interviews with Mr C: that is, they discussed the mother and the child relocating to Sweden from any date after September 2017 and that, before then, the child and her mother have the opportunity to travel to Sweden for a period of up to four weeks each year - during which time the child communicate with her father once a week by telephone or Skype. They appear to have nearly agreed that, after the child moved to live in Sweden, she should spend time with her father at least twice a year (for a period of four weeks in Sweden - during which time he could stay in the mother’s home - and for a period of four weeks in Australia - during which time the mother would stay at the paternal grandmother’s home) and that she also communicate with him by telephone or Skype three times per week. The costs of the child’s airfare for her annual trip to Australia were to be shared equally by her parents, with each parent presumably meeting their own costs of their respective trips to either Sweden or Australia each year.

1. Whilst the father has subsequently asserted he felt pressured during the Family Report process to express this view, I do not accept that whatever pressure he now says he felt subjected to arose from anything specifically done by Mr C during the process.

2. Rather, I consider it much more likely that, when faced with the mother’s recounting of how continuing to live in Australia is impacting on her, the father wanted to act to alleviate the same.  His response gives further support for the conclusions I have reached that the mother is genuine in her recounting of the impact on her – and, indirectly, her parenting of the child – of having to continue to carry out her primary parenting functions here rather than in Sweden.

Principles

1. The determination of the disputes summarised broadly above must, of course, occur according to the well-known statutory provisions which provide that, having had regard to the Objects of Part VII of the Family Law Act1975 (Cth), the principles which underpin those Objects[3] and, subject to s 61DA, s 65DAB[4] and Division 6 of Part VII of the Act, such parenting order as thought proper may be made.[5] 

   [3]          s 60B of the Act.

   [4]          Parenting plans.

   [5]          s 65D of the Act.

2. In deciding whether to make a parenting order, I must regard the child’s best interests as the paramount consideration.[6] Whilst the matters to be considered in determining those parenting orders which are in the child’s best interests are as prescribed by s 60CC of the Act, it is not necessary for each consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion.[7]

   [6]          s 60CA and s 65AA of the Act.

   [7]          Banks & Banks (2015) FLC 93-637.

Benefit to the child of having a meaningful relationship with both parents

1. When first spoken to by Mr C in March 2014, both of the child’s parents agreed she should have “every opportunity to establish and maintain a relationship with her father”.  Given they also agreed it was appropriate for her to remain predominantly cared for by her mother,[8] the fact she has developed the relationship with her father observed by Mr C owes a significant amount to the mother’s support of the same.

   [8] First Family Report at [14].

2. During his second interview with Mr C in December 2014, the father expressed his belief that, if the child moved to live with her mother in Sweden, it would simply not be possible for him to maintain any kind of parenting relationship with her.[9]  I do not accept this to be the case.  I consider that, with the mother’s support and encouragement, it is more likely than not that the father will be able to maintain a parenting relationship with the child wherever she lives. 

   [9] Second Family Report at [14].

3. I accept the mother was truthful when she told Mr C in mid-December 2014 that she valued the child’s relationship with her father.  I also accept as truthful her recounting that she intends to make all reasonable efforts to maintain the relationship between them[10] in the event the child is permitted to live in Sweden.  I consider she has done this to date.

   [10] Second Family Report at [15].

The child’s relationship with each parent

1. Mr C observed, in early March 2014, that the child went to her father with neither resistance nor enthusiasm: that is, while she did not protest him cuddling her, there was no indication of reciprocity, and she was slow to engage in play. In contrast she was verbal, comparatively animated, responsive and more engaged in play during her time with her mother.[11]

   [11] First Family Report at [75].

2. I accept Mr C’s conclusions as outlined in the first Family Report, that the child’s presentation reflected positively on the parenting she had received as at that time and that it was likely her strongest attachment was then to her mother.[12]

   [12] First Family Report at [84].

3. When the father spoke with Mr C in mid-December 2014, he reported that his relationship with the child was strengthening and that she warmly greeted his brother (her uncle) during time they spent together.[13] He reported the child also regularly spent time with her paternal grandmother during the time she spent with him and also had the opportunity to see her paternal grandfather, who travelled to spend time with her.[14]  As already noted, she is clearly a much-loved member of her paternal extended family.

   [13] Second Family Report at [19].

   [14] Second Family Report at [20].

4. Having observed the child interact with each of her parents in mid-December 2014, Mr C concluded that she enjoyed positive attachments with both of them. I accept his evidence in this respect. He noted she seemed more relaxed and willing to engage with her father than she had been during the first interview in March 2014.[15] I accept his assessment that the child’s primary attachment was still to her mother and that her relationship with her father was developing appropriately.[16] I also accept his evidence to the effect that her relationship with her father was and is important – particularly in relation to her longer term self-concept and identity issues.

   [15]         Second Family Report at [57 and 59].

   [16]         Second Family Report at [62]

5. Mr C interviewed the parties again on 10 February 2016. Neither reported any particular concerns associated with the existing parenting regime.[17] Both agreed the child appeared generally happy with the existing parenting arrangements.  Their respective assessments are corroborated by the observations of the child’s reaction when collected by her father from the Childcare Centre which suggests she loves him very much, is happy to see him and enjoys spending time with him.

   [17] Third Family Report at [9].

6. The child appeared relaxed and spontaneous with each of her parents and comfortable with the physical affection each offered. I accept Mr C’s opinion that the child has strong attachments with both of her parents and that, whilst her primary attachment remains most likely to her mother, she is now of an age and developmental stage where she has “an increased capacity to establish multiple attachments.”[18]

   [18] Third Family Report at [55].

7. I accept the mother’s evidence that the child is always happy to see her father. I also accept that, on occasion, she has been reticent to sleep over at his house. For example, on 2 April 2016, the child became distressed and clung to her mother’s neck, saying she was afraid. I am not persuaded it is likely the child is, in fact, fearful of her father; rather, I accept the tenor of Mr C’s evidence that, given the child’s age, it is almost impossible to know what she is thinking or how she is feeling when, on occasion, she demonstrates resistance to going to her father. I accept it is important not to conclude from her behaviour at such times that it is because of something her father has done, as opposed to simply being how she feels – for whatever reason – on any particular day.  I am not persuaded, therefore, that it is likely either of the child’s parents have actually or deliberately contributed to her behaviours on such occasions.

Parental capacity

1. I accept that, in March 2014, Mr C concluded there were no identified risks associated with the parenting of either the father or mother.[19] I also accept that, in December 2014, he assessed each of the child’s parents as having demonstrated a capacity to function adequately.

   [19]         First Family Report at [82.

2. Insofar as it relates to the father, this opinion is cast into some little doubt by his interaction with the child’s Daycare Centre on 17 December 2015. On that day, during a disagreement about photos, the father told the Centre to “sort its shit out”. [20] The Manager of the Centre notified the mother that, if the father approached her (the Centre Manager) or her staff in the manner he did that day, he would be instructed to leave the premises, with a police escort if necessary.  This event does the father little credit. It also provides some corroboration for the mother’s account of the manner in which he has previously spoken to her and causes me to approach his denials of making the comments she reports with some scepticism. I suspect his use of profanity is not as restricted to work hours and the work site as he suggests.

   [20]         Affidavit of the mother filed 21 March 2016, at [201603-02]

3. I accept that the father has travelled away from Brisbane on occasions without notice to the mother at all, or very short notice. These trips include E Town in November 2014, Country F in August 2014, E Town in May 2015, Country F in August 2015, and Country G in March 2016.  His failure to tell her is, I think likely a symptom of his lack of appreciation of the need to inform the mother so she can manage the impact of his absences on the child’s parenting arrangements.

4. The manner in which each of the parents approach issues like this is, I suspect, very much a reflection of who each of them are as people:  the mother, more structured and seeking of certainty and routine; the father, more laissez-faire, with an inherent expectation that events and others will simply ebb and flow around him and to meet his needs.  One need only have regard to the changeover event in 2013 to appreciate their fundamentally different approaches:  there, the mother demonstrated her need for certainty (asking the father to tell her where changeover would occur at the end of the child’s time with him) and the father demonstrated his determination not to yield to her request for certainty but to continue to insist he had not yet made a decision about where he was taking the child.  Each parent was unable to yield to the other, with the consequence that all, including the child, were involved in a distressing event.

Father’s attitude to the mother

1. I accept that, in mid-June 2013, when dropping the child back at her house, the father yelled at the mother and swore at her in the manner she alleges. I accept he also threatened that she would never go home[21], called her a “fucking bitch”, said he did not give a shit her mother was sick and told her she was not an “Aussie”.

   [21]         Previously referring to Sweden.

2. I also accept that, on occasions throughout 2013, the father called the mother a “fucking bitch” or a “dumb bitch” in front of the child.[22]

   [22]         Affidavit of the mother filed 4 October 2013, at [4, 5, 6]

3. The father accepted during his cross-examination he has used the expletive “bitch” in referring to the mother; he denies referring to her by other derogatory terms.  Given the manner in which the father spoke to the Childcare Centre over something as relatively trivial as photos, I consider it more likely than not that, on occasions when he has felt the mother responsible for restricting his time with the child, he may well have used the insults the mother speaks of.  Whilst he may regard these comments as transient in nature, the mother clearly does not and, I suspect, they have had a more profound effect on her than the father appreciates: after all, he is used to moving between using the language of the work-site (as he described it) and less expletive-ridden communications whereas – as the records of, Dr H, the psychologist upon whom the mother attended between November 2013 and January 2014[23] – the mother’s personal history has not exposed her to this.

   [23]         Exhibit “1”

4. I accept the mother’s evidence that, on numerous occasions, she has attended the nominated changeover location (McDonald’s Suburb I) only to receive a message from the father telling her that he and the child were elsewhere and she would have to come to them.

5. It is certainly possible the father approached the child’s return to her mother in this manner with the deliberate intention to cause the mother stress and upset. It is also possible he simply failed to appreciate the impact on her, her life and her plans which followed such decisions. 

6. After all, he has been quick to acknowledge the mother’s strengths as a parent on a number of occasions:  for example, he told Mr C in early 2014 that he regarded the mother as “an absolutely fantastic mother”[24] and reiterated this view in February 2016 when he described her as a “fantastic mum” and said “you can see that in the child”.[25]

   [24] First Family Report at [67].

   [25] Third Family Report at [43].

7. I accept that, at least in the last Family Report interviews, the father demonstrated some empathy for her mother’s circumstances. I also accept his focus is upon ensuring that the child has the opportunity to continue to maintain and develop a relationship with both of her parents.

8. The mother’s view of the father’s behaviour toward her is that it is controlling, manipulative and disrespectful.  She considers he has previously used her desire to return to Sweden in an emotionally abusive manner by introducing that she travel to Sweden with the child for a holiday (to enable them to spend time with the maternal family), telling her he is agreeable to the same but later withdrawing his consent in an accusatory manner. For example:

9. On 1 September 2014, the father sent the mother a text to suggest she and the child visit her mother for Christmas.  On 8 September 2014, the mother asked him, via text, whether he really meant it was okay for them to go to Sweden for Christmas and he replied, saying “yes” and that he never wanted to deny her a holiday with the child;  he asked for her word she would return the child to Australia and that it be “written up”;  when he asked the mother how long she and the child would go to Sweden for, she said “2 – 3 weeks”;  he ended their exchange by saying that he needed to speak with his lawyer and needed some guarantee she would return the child to Australia.

10. On 9 September 2014, the father sent the mother another text.  He admonished the mother for being rude and not nice at a changeover, saying “did you listen in that course that you done”;  and told her that if she wanted to discuss her holiday then she should do so with him, “it not hard”.

11. The mother accepts she did not follow up the father’s original suggestion for a holiday to Sweden after receiving this text and, given its tone, I am not surprised.  I accept that she simply decided not to continue on with her proposal that she and the child visit Sweden for a holiday at Christmas because she wanted to avoid the argument.

12. On 7 July 2015, the father sent the mother a text.  In it he raised the idea that they should look at the child spending overnight time with him “very soon” because, on his account, this should have begun (within 60 days of her turning three) and he had been very reasonable in thinking of her (the mother) and not pushing for this.  Having made these points, he told her he wanted her to book or look at returning to Sweden with the child for a holiday to see her mother and friends and said he would pay for the child’s return flights.  He also told her he was going to Country F between 4 August 2015 and 12 August 2015.

13. It is relevant to record, in passing, that the Order made 4 August 2014 actually provided for the child to start spending overnight time with her father in September 2015.  No order required overnight time to start within 60 days of the child’s third birthday in 2015.

14. On 10 July 2015, the parties communicated by text.  Included in these messages, the mother told the father she had not responded to his email because it was too overwhelming for her “depressed condition”.  The father’s response included the assertions that he had not expected a reply but was “just stating what should be happening by now, with the child, no questions asked”.  He also took the opportunity to tell the mother that:

    Remember its about [the child], not you, weather you feel shit, or me or how I feel, everything is for her. I told you to sort you stuff out, go on a holiday, I will pay for [the child], if you choose not to then its in your and [the child] misses out because of you, I have offered. The more you stop me from spending time will work against you, sorry [Ms Tarankiev], the child is my world, always have and always will…[incomplete]

    (errors and omissions in original)

15. It is, I think, clear the mother did not press the issue of taking the child overseas for a holiday immediately after this message.

16. However, in late October 2015, the mother raised whether the father would agree to the child travelling with her to Sweden for Christmas 2015.  The father asked her the date she was thinking of and said he would sort out all of the child’s ticket.  The mother said she had not decided upon dates but wanted to check with him first and noted she would need a letter from him.

17. About a week later, the mother asked the father if he was still okay for them to go to Sweden for Christmas and for him to pay for the child’s ticket – she said she would get some quotes the next day and present them to him.  She ended by saying it would be so special, with some snow for Christmas for the child.

18. The father replied as follows:

    [Ms Tarankiev], the way you treat me, saying I manipulate [the child] really breaks me, I have never done that to her at all,iam sorry but it’s not a good idea that you take [the child] out, iam sorry but I don’t know that I will see [the child] again. With what you are doing really hurts me, you cannot see it. Please don’t put the guilt on me with any texts, I love the child so much and miss her every hr I not with her. Iam sorry [Ms Tarankiev]

19. I accept it was open to the mother to approach the Court to seek orders to permit her to remove the child from Australia for a holiday to Sweden.  I do not, however, accept that her failure to do so should be seen as an abandonment of her desire to return to live in Sweden or a deliberate refusal to take action which may have assisted her to continue to live and parent the child in Australia.  Rather, I accept that she did not want to fight with the father about this issue before the final hearing. I consider it more likely than not that, when she became aware that he no longer agreed to the child travelling to Sweden for a holiday, she simply decided not to press the issue.

20. The father’s changes of position about this issue are, I consider, also more likely than not to have heightened and exacerbated the mother’s sense of lack of support, isolation and frustration in primarily parenting the child in Australia.  On two occasions he raised the issue of the child travelling with her mother to Sweden for a holiday but then, when push came to shove, refused to agree to the same.

21. If, as the mother says, the father has told her he does not see any benefit to the child in her learning about her cultural heritage or learning to speak the languages her mother speaks and told her to “stop speaking to the child in that language, she’s an Aussie,”[26] I cannot accept he meant these statements.  No truly caring parent could conceivably want to restrict their child from the opportunity to be exposed to and learn as many skills (which include languages) as possible.

    [26]         Affidavit of the mother filed 6 June 2013 at [53]

Mother’s attitude to the father

1. In early 2014, the mother told Mr C she believed the child was “probably safe” with her father[27] and generally appeared to be happy enough to attend her visits with him.

   [27] First Family Report at [68].

2. However, she had earlier outlined that she lost her trust in the father after a number of occasions when he removed the child from daycare without her knowledge or consent.[28] She says these incidents occurred:

   a)in July 2012: she was told by a staff member at the child’s daycare that the father had attended at the facility with an unknown woman to see the child;[29] and

   b)in October 2012: she attended at the child’s daycare to collect her and was told the father had attended with the same woman and removed the child for an hour and a half;[30] and

   c)on 6 February 2013: she received a telephone call from the director of the child’s daycare centre, seeking to confirm what the father told them – namely, that she had agreed for the child to leave with him and a woman;[31] the father removed the child from daycare against her wishes and did not return her to the Centre until 5.15 pm – he did not tell her at any time where he and the child were;[32] and

   d)on 17 April 2013: it was agreed that the child would spend time with her father after daycare; after about an hour, the mother telephoned the father to find out where he was - the phone rang out; she became frantic and contacted the paternal grandmother to find out if she had heard from the father or was able to get in contact with him – she was told she (the grandmother) could not reach him;  sometime after 7:30 pm, the father telephoned the mother saying he and the child were at a friend’s house and he would be home soon;  and

   e)on 9 May 2013: the mother received text messages from the father telling her he was going to take the child from daycare contrary to their agreement that he would collect the child from her home;  when she arrived at the daycare to collect the child, she was not there and the father had already removed her;[33]  and

   f)on 13 May 2013: during attempts to negotiate the child spending time with her father the following day, the mother suggested he collect her from her house after 4.30 pm (so she would have received her afternoon breastfeed); the father insisted he collect the child directly from daycare – he said she should not be breastfed: he sent a text message at about 11.30 pm saying:  “give up breastfeeding if u don’t want to pump. She doesn’t need you anymore, not your fricken breast milk anyway. I’m picking her up at 2.30 pm, end of story.”[34] As a result of this exchange, the mother collected the child herself to prevent the father again removing the child without her consent.

   [28]         Affidavit of the mother filed 6 June 2013 at [6]

   [29]         Affidavit of the mother filed 6 June 2013 at [7]

   [30]         Affidavit of the mother filed 6 June 2013 at [9]

   [31]         Affidavit of the mother filed 6 June 2013 at [10]

   [32]         Affidavit of the mother filed 6 June 2013 at [11]

   [33]         Affidavit of the mother filed 6 June 2013 at [32-34]

   [34]         Affidavit of the mother filed 6 June 2013 at [36-38]

1. These issues and the attitudes expressed by the father to the mother on occasion are clearly relevant when assessing the level of support provided to the mother initially and her evidence that the first 12 months or so after the child’s birth were extremely taxing, draining and stressful for her. I accept her evidence in this respect.

2. These comments also reveal a different side to the father’s attitude to the mother:  one which is certainly less than empathic or supportive; he has clearly been willing to express demeaning and undermining statements;  he has also clearly chopped and changed in his attitude and approach to the mother (for whatever reason)  and in negotiating with her about matters relevant to the child. I consider it more likely than not that this changeability has, of itself, likely contributed further to the mother’s feelings of isolation and being unsupported.

3. On 10 March 2013, during a discussion at least the mother thought was to be about future parenting arrangements, the father did not wish to discuss establishing regular time between he and the child, but only wanted to discuss spending time with the child on her upcoming birthday;[35] when the mother told him she had already made plans to have people to her house and that the child could spend time with him the following day,[36] the parties argue;[37] the father sent a number of text messages threatening to show up at her house while her guests were there and she subsequently contacted the paternal grandmother, to urge her to make the father see sense.[38] 

   [35]         Affidavit of the mother filed 6 June 2013 at [14]

   [36]         Affidavit of the mother filed 6 June 2013 at [15]

   [37]         Affidavit of the mother filed 6 June 2013 at [16]

   [38]         Affidavit of the mother filed 6 June 2013 at [18]

4. On or about 22 March 2013, the mother sent a text to the paternal grandmother indicating that she wished to return to Sweden.  After the event on 17 April 2013, she was so distressed that she sent text messages to the paternal grandmother telling her she wished to return to Europe.[39] 

   [39]         Affidavit of the mother filed 6 June 2013 at [28]

5. I accept the mother has sought to ensure the child has a meaningful relationship with her paternal extended family throughout her life by regularly sending emails and photos to the paternal grandparents and facilitating time between them in the absence of the father.

Impact on the child of proposed relocation to Sweden

1. Mr C’s December 2014 Family Report contains his assessment that, at that time, the child was developing a closer relationship with her father, who was assessed as very committed to a continuation of that process.[40]

   [40] Second Family Report at [66].

2. At that time, Mr C considered the mother’s proposal to relocate the child to Sweden problematic because, at her age, the child would generally require frequent contact with her father in order to establish and maintain a close relationship with him: Mr C felt her age meant that her sense of memory was different to that of an older child, with the consequence that infrequent visits (even if of a relatively long duration) were not developmentally appropriate.[41] As at December 2014, he considered it difficult to see how the child’s relationship with her father would not be severely compromised if she lived in Sweden.[42]

   [41] Second Family Report at [67].

   [42] Second Family Report at [68].

3. Given that the father told Mr C in February 2016 that the child generally spent time with her paternal grandmother on a weekly basis and saw her paternal grandfather approximately every three weeks, a move to live in Sweden would bring this frequent interaction to an end. Of course, it would also offer to her the opportunity to develop and maintain relationships with members of the extended maternal family and/or friends of her mother who are located in Europe. It would also provide her with the opportunity to experience a new and different cultural experience and may foster the likely development of bilingual or multilingual skills.

4. Whilst arising in another context, the child’s mother told Mr C in late 2014 that, whilst the child had communicated with her maternal grandmother by Skype she had not found this satisfactory[43] – or, I infer, sufficient - for the child to be able to develop a relationship with her maternal grandmother. This comment has to be seen, I consider, in the context of the very limited interaction the child has had with her maternal grandmother to date.

   [43] Second Family Report at [33].

Family violence

1. On 25 August 2013, an incident at changeover resulted in the mother applying for a protection order against the father.[44] That application details an argument between the parents.  The child became distressed. The mother says when she went to check on the child in the father’s car, he jumped in the driver’s seat, started the car and started driving with the mother half out of the car. She says he grabbed her left arm, pushed her out of the vehicle and yelled “fuck off, out of my car bitch”. She says when the father eventually stopped the vehicle, she took the child from her car seat to try to calm her down and the father ran around the vehicle, yelling “Neighbours! Somebody! Help!” She says he started to push her and yelled “you fucking bitch, it is my time to have [the child]”. When the mother returned to her house with the child in her arms, he started screaming with great rage: “Fucking bitch I hate you. I wish you dead. I make sure you fuck off to your fucking Sweden. You will lose. Fucking slut. You foreign whore”.[45]

   [44]         Affidavit of the mother filed 4 October 2013, at [17]

   [45]         Affidavit of the mother filed 4 October 2013, at [Annex LT14]

2. Given the father’s admission that he has previously referred to the mother as a bitch, I prefer the mother’s account of his language toward her during this incident.

3. Documents provided to Mr C by the Independent Children’s Lawyer indicate the father was the Respondent to an Application for a Domestic Violence Order in 2009. When this issue was discussed with him, he insisted to Mr C that he was never physically violent towards his previous wife.

4. In his first report, Mr C noted that neither parent suggested to him that their relationship was marked by violence.[46] However, he also noted that each had accused the other of violent behaviour during the post-separation period. However, the incidents reported by each parent appeared limited and had occurred only when they needed to engage with each other to transition the child between them. Given this, Mr C considered it likely that these events had been a consequence of matters such as “anxiety, frustration, poor impulse control and inadequate conflict resolution skills.”[47] In a general sense, I accept this assessment.

   [46] First Family Report at [64].

   [47] First Family Report at [64].

The Mother and her attachment to Australia

1. In his first report (prepared following interviews in early March 2014), Mr C noted that the child’s mother was employed full-time (which involved the ability to work from home each Monday), reported a local network of friends (including a number of people of Swedish origin), had a very good command of both spoken and written English and appeared to be settling in Australia “satisfactorily”.[48] At this time, her mother (the child’s grandmother) had returned to Country D, but she reported close friends and an aunt living in Sweden.

   [48] First Family Report at [41].

2. Mr C concluded, from his first interaction with the child’s mother, that she presented as “a relatively bright and somewhat anxious woman” who was satisfactorily adjusting to life as a sole parent in what, he considered, must still seem a somewhat foreign land. He had no doubts she was a capable parent, with a genuine commitment to the child. It has not been suggested to the contrary.

3. Having interviewed the parents again in mid-December 2014, Mr C recounted that the mother claimed she had found the life of a single working parent very challenging and had determined that both she and the child would be in a better position if they lived in Sweden and had the opportunity to benefit from the proximity of close friends and family.[49] During this interview, she was, at times, tearful. Nothing in the mother’s presentation persuaded Mr C that her distressed presentation was anything other than a legitimate response to her circumstances.[50]  I accept his assessment as valid.

   [49] Second Family Report at [13].

   [50] Second Family Report at [24].

4. The mother told Mr C at this time that she had tried hard to settle satisfactorily in Australia, given she came to this country in July 2009 with an intention to stay only for six months. She expressed her belief that her life had been harder here than it would have been in Sweden and said she frequently found herself exhausted and stressed. She acknowledged the existence of a network of associates with whom she could socialise, but said she did not have close friends or family in Australia and, therefore, simply did not have an adequate support system in this country.[51]  I accept these comments to Mr C were made truthfully by the mother and that she honestly expressed her genuine feelings.

   [51]         Second Family Report at [27 – 28].

5. From the mother’s perspective, this situation remains the same now: that is, she has a small social network in Australia.[52] Her closest friend is, herself, planning to return to Sweden for her own family reasons. 

   [52] Affidavit of the mother filed 9 March 2015 at [195].

6. In mid-December 2014, the mother had, it seems, investigated the possibility of securing ongoing work with her current employer – whose operations in Sweden are more extensive than they are in this country.  She told Mr C she thought her prospects of ongoing employment were very good and that there were greater opportunities for career advancement in Sweden than in Australia.[53] She also outlined that expenses (such as rent and childcare) were significantly lower in Sweden than in Australia and that, consequently, she believed her financial position would be superior if she were able to return to Sweden with the child.[54]  No real challenge was made to this aspect of her evidence and I accept it.

   [53] Second Family Report at [30].

   [54] Second Family Report at [31].

7. The mother also told Mr C that she had close friends in Sweden, an aunt and cousins and that, whilst her mother had returned to Country D, she would soon move back to Sweden. She was distressed at missing her mother and having been absent when her mother had suffered illness.[55] Again, I accept she was genuine and truthful in her interactions with Mr C.

   [55] Second Family Report at [33].

8. Having spoken with her for the second time, Mr C assessed the mother as an intelligent and committed parent who has found life as a single parent in a foreign country extremely challenging. I accept this assessment.  I accept she has attempted to accommodate the child’s father in the context of the changed circumstances in her life.  I also accept as genuine her expressed need to act to place herself in a position where there is a greater prospect of her own needs being met.[56]

   [56] Second Family Report at [35].

9. When she spoke with Mr C for the third time in February 2016, the child’s mother reiterated she wanted to return to Sweden to be in close proximity to people she cares for and who can assist her. She suggested she simply does not have the personal support in Australia which would be available to her in Sweden. She told Mr C that, whilst her mother (the child’s maternal grandmother) continues to live in Country D, she intends to return to Sweden if the mother and the child are able to live there.

10. Again, I accept the genuineness and truthfulness of the mother’s assertions.  She also expressed concern that her sadness and anxiety about her current situation in Australia is affecting the child.[57] She attended upon a psychologist following her general practitioner’s referral but stopped attending because the psychologist could not make her happy as she could not send her back to Sweden.[58] She reported crying a lot and, on occasion, is unable to restrain herself from crying in front of the child. She says thinking about not being permitted to relocate to Sweden feels like a life sentence in prison.[59] I accept that, for the mother, this is the case.

    [57]         Affidavit of the mother filed 9 March 2015, at [207]

    [58]         Affidavit of the mother filed 9 March 2015, at [210]

    [59]         Affidavit of the mother filed 9 March 2015, at [211]

11. In February 2016, the mother underwent surgery. She found the experience to be particularly stressful because she did not have any support: she was unable to negotiate assistance with the father and spoke with the paternal grandmother to arrange the child’s care the evening before the surgery. This occurred during the Family Report interviews.[60]

    [60]         Affidavit of the mother filed 21 Mach 2016 at [50-51]

12. The child’s mother also told Mr C that the father’s behaviour toward her was more conciliatory when other people were present.  In February 2016, the mother told Mr C she often felt anxious when dealing with the father.[61] She maintained this position during her cross-examination. I accept her evidence in this respect.

    [61] Third Family Report at [40].

Parental relationship

1. I accept Mr C’s assessment, as outlined in the Family Report, that, it appeared “clear” the child’s parents never successfully developed a post-separation parenting alliance.[62] I also accept there has not been much trust between them and that it is more likely than not that, at times, each likely felt disrespected by the other.  Additionally, on a couple of occasions during the child’s transition between them, hostility has given rise to conflict.

   [62] First Family Report at [62].

2. The first Family Report contains the parents’ agreement that communication and cooperation between them during the post-separation period had been poor.[63]

   [63] First Family Report at [81].

3. I accept that, during the joint interview conducted by Mr C in mid-December 2014, both parents were generally civil to the other and exercised appropriate skills of containment. They were able to directly address each other when indicated.[64] Whilst the child’s father told Mr C during his second interview with him that the parents generally communicated satisfactorily, the mother disagreed. Having investigated further, Mr C concluded it established that the child’s parents did not then communicate about matters such as her diet, her activities, the structure of her day or parenting strategies: both agreed they could do much more in relation to communicating about these matters.[65]  That the father thought their communication satisfactory in circumstances where it was revealed they really communicated very little about the child’s day to day issues is a demonstration of his overall lack of appreciation of or insight into such matters.

   [64] Second Family Report at [36].

   [65]         Second Family Report at [38]

4. I accept Mr C’s assessment (in his second report) that, whilst the child’s parents had eventually managed to establish some basic co-operation, they have never successfully developed a post-separation parenting alliance and likely see each other as obstacles to their own individual and legitimate aspirations.[66] It is easy to accept Mr C’s assessment that the child’s mother likely considers the father an obstacle to her implementing her desire to return home to Sweden from Australia (where she never intended to live permanently) and the father likely sees the mother as someone who wishes to take the child away, therefore, bringing to an end any “realistic opportunity” for the development and maintenance of a parent/child relationship.[67] 

   [66] Second Family Report at [48].

   [67] Second Family Report at [48].

5. Mr C reiterated this opinion during his cross-examination and I accept as highly likely that these underlying attitudes may well have influenced each parent’s attitude and approach to communicating with the other.  Whilst the father appears to have more recently adopted a more conciliatory and inclusive approach to co-parenting the child (for example, by sending videos and photos of her to her mother), I hold a lingering concern that this has arisen in the context of the impending trial.  As already commented upon, he has previously demonstrated a certain degree of changeability in his attitude to the mother – alternating between high praise for her as a mother and, on occasion, making derogatory and denigrating statements to her – and I am not persuaded that this is unlikely to be a feature of future communication.

6. I accept that the child’s mother has genuinely not found the father generally supportive of her: for example, it appears that, when an opportunity arose for her to travel with the child to Melbourne for work purposes, the parties struggled to agree about the child’s make up time with her father; the assistance earlier this year was broached only during the Family Report interview process. 

7. Having spoken with both parents in a joint interview in February 2016, Mr C concluded that the comments made by each of them indicated that communication between them remained generally basic and lacking in substance:  particularly in relation to matters associated with the child’s routine and a common approach to parenting. I accept this.

Parental responsibility

1. When making a parenting order, I am bound to apply a presumption that it is in the child’s best interests that her parents have equal shared parental responsibility for major long term issues relating to her.[68]  The presumption is rendered inapplicable if the Court is satisfied that there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of her or another child or family violence,[69] or may be rebutted by evidence that satisfies the Court that it would not be in her best interests for her parents to have equal shared parental responsibility for him or her.[70]

   [68]         s 61DA of the Act.

   [69]         s 61DA(2) of the Act.

   [70]         s 61DA(4) of the Act.

2. On either party’s account of the changeover in August 2013, family violence occurred that day. Consequently, the presumption does not apply and the power to make parenting orders pursuant to s 65D of the Act is ‘at large’, albeit subject always to the child’s best interests being the paramount consideration.[71]

   [71]         Cox & Pedrana (2013) FLC 93-537, [19]; s 60CA; s 65AA of the Act.

3. In determining whether it is in the child’s best interests that an order requiring her parents to share parental responsibility is made, it must be remembered that, if the Court makes an order that the parties share parental responsibility for her and the exercise of that parental responsibility involves making a decision about major long-term issues in relation to them, such order requires the decision to be made jointly by the parties.[72] Additionally, such order also requires that each party consult the other in relation to the decision to be made about that issue and make a genuine effort to come to a joint decision about it.[73]

   [72]         s 65DAC(2) of the Act.

   [73]         65DAC(3) of the Act.

4. Whilst the child’s parents have been able to communicate about some day to day issues about her via text quite successfully, I am concerned that their attitudes to decision making and information sharing are so fundamentally different that they are likely to struggle to make decisions jointly.  The mother appears to have been the parent particularly responsible thus far for making decisions about the child and I accept she has acted positively to inform the father about these and to ensure he is able to be kept informed about the child:  for example, she told him about the daycare’s website through which parents can keep themselves informed about events and information relevant to their child’s attendance there, but he seems only to have focused on accessing photos of the child; he does not appear to have particularly accessed information as such – for example, about things like photos.

1. Mr C’s first report contains details of the agreement reached between the parties at that time. It included that they have “joint parental responsibility” for the child.

2. However, the Amended Response filed by the child’s mother on 14 October 2014 proposes that, provided she consult with the father, consider his views and give notice to him of her decisions about the issues, she have sole parental responsibility for major long term issues relating to the child. In contrast, the father proposes that an order for equal shared parental responsibility is the order in the child’s best interests.

3. Having taken into account, it seems, the mother’s proposal (during the course of their joint interview with him in mid-December 2014) that the parents jointly attend counselling with the objective of improving their parenting relationship, Mr C recommended then that the child’s parents have “joint parental responsibility” for her.

4. Unfortunately, the idea that the parties would participate in joint counselling for the purpose of attempting to establish better communication and a more cooperative parenting alliance (as discussed during the December 2014 interviews) has not been implemented: I accept that each parent took some personal responsibility for failing to pursue the matter and that both acknowledged that such an initiative could have assisted them in their co-parenting of the child.[74]

   [74] Third Family Report at [42].

5. If the child lives with her mother in Sweden, it is unlikely the father will be able practically to be involved in a meaningful sense about decisions about major long term issues relating to her.  It is more likely than not that the requirement that decisions be made jointly would be attended by an inherent risk of delay and dispute:  neither of which could be thought to be in the child’s best interests. 

6. Having regard to these and the matters discussed during my consideration, through-out these Reasons, of the relevant s 60CC considerations, I am satisfied that it is not in the child’s best interests for her parents to have equal shared parental responsibility for her.

7. I am satisfied that it is in her best interests that her mother have sole parental responsibility for her and reach this conclusion because:

   a)she is the parent who has historically borne the responsibility for the majority of the care of, and decision making for, the child; and

   b)she has previously acted to keep the father informed about the means by which he can access information about the child – for example, by providing him with the details of the website through which parents are able to access information and photos about her daily care while at childcare; and

   c)she has demonstrated, by her actions discussed above, what I consider to be a dedicated commitment to ensuring that the child is well cared for, supported and able to develop an ongoing relationship with her father; and

   d)I am confident she will comply with an order to inform the child’s father about a prospective decision about a major long term issue, invite his response, consider the same and, having made the decision, inform him of it.

8. I consider that the child’s mother – “the great mum” – should be able to exercise parental responsibly alone, subject to the requirement to consult with the father about such decisions.

Further conclusions

1. When the parties first spoke with Mr C in March 2014, the child’s mother outlined that she was committed to raising the child in Australia. I accept that this was her genuine position at that time. However, this position has changed.  I accept that the child’s mother has genuinely struggled to undertake the full time role of parenting the child and working full time here in Australia where she feels unsupported.  I also accept that she is genuine in her expressed wish to return to Sweden – a country she still clearly regards as her home.  There is nothing in the evidence which persuades me that the child’s mother is focused upon removing the role the child’s father has in her life and I accept she has genuine and positive regard for this, even where she continues to feel stressed and pressured at changeovers. 

2. If the child continues to live in Brisbane with her mother, I find she will continue to be cared for by a primary carer who has become increasingly unhappy and burdened by the requirement to fulfil her parenting of the child in a place she does not regard as her ‘home’; a place where she feels that she does not really fit or belong; where she feels isolated, alone and unsupported.

3. I accept that the mother will continue to be required to carry out her primary parenting obligations in circumstances where, from her perspective, she is exposed to behaviour by the father (such as failing to inform her on occasions that he intended to collect the child from daycare and unilaterally imposing changes to the location from which she is required to collect the child at the conclusion of her time with him) which causes her significant anxiety, stress and distress.

4. Given that I accept that, for the mother, matters such as these are stressful and that the father seems not to have realised this – or, at least, to the extent of consistently modifying his behaviours - I consider it more likely than not that, into the future, he will continue to behave as he has in the past. Whilst I am not necessarily prepared to conclude that he has deliberately acted to cause the child’s mother stress and upset, I am certainly persuaded that he has acted as he has on such occasions without insight into, and/or concern about, the impact of his behaviours on the mother as the parent entrusted with the responsibility of being the child’s primary care provider.

5. I consider that the child will be able to maintain a meaningful relationship with her father if she lives in Sweden with her mother – her acknowledged primary care provider and “great mum” – from about July 2017. Whilst her relationship with her father will involve less direct face to face physical time, be accompanied by the associated impost of additional travel and may not be ‘optimal’, it can be meaningful. I consider it is more important for the child that she continue to be parented by an optimally functioning primary care provider – she needs her mother to be able to continue into the future to be the great mother she is acknowledged as having been for the child to date.

6. I am persuaded that the child’s mother has taken proactive steps to involve the father in accessing information about the child’s day to day activities at daycare and has approached the child’s telephone communication with him from a perspective that this should occur without limitation. That she regards such things as important for the child – as I find she does - augurs well for the future in terms of her ability to promote and support the child’s relationship with her father if she lives in Sweden.

7. I am persuaded that, despite the difficulties she has experienced from her perspective, the child’s mother has ensured the father has been kept informed about relevant matters. I consider her past behaviour is demonstrative of an underlying attitude that accepts it as vitally important for the child’s well-being and her prospects of developing in an optimal way as she matures, that her father remain an active part of her life. I am confident she will ensure he continues to remain informed about the child and matters relevant to her. I am also confident she will actively support the child in maintaining her relationship with her father. I also consider that the child’s prospects of an ongoing meaningful relationship with her mother are more likely to be enhanced if the mother is happier and less stressed and better able to function optimally as a parent so she can continue to discharge her obligations as the child’s acknowledged primary parent.

8. I accept that the child’s father has paid child support in the amount assessed. He does not appear, however, to have offered to meet or contribute to any other expenses, despite having an excess of $500.00 per week available to him. Despite these funds, he appears simply to have ignored the mother’s requests to contribute to the costs she bears when he arrives and removes the child early from childcare. His refusal to yield in this respect – especially when he clearly has the capacity to contribute something (however token) by which he could have demonstrated to the mother his understanding of her positon and support for her – is troubling.

9. The child’s father has the financial capacity to travel to visit her in Sweden. As noted, his income exceeds his expenses by an amount of about $500.00 per week (or, about $25,000.00 per year). He has been able to travel overseas relatively recently. No criticism is intended by this statement but the fact that this has been possible amply demonstrates that, if he chooses to, he will be able to provision into the future to ensure that the child will have the opportunity to continue to spend time with him in both Sweden and Australia.

10. The child currently attends daycare and has done so since she was about six months of age. She is eligible to attend Prep in Australia from January 2017. In the event that she does so, it is highly likely that she will form some friendships with her classmates and an attachment to her teacher. If a decision is made that she continue in daycare, she will no doubt continue to have or develop similar friendships and attachments there. These friendships will be lost and these attachments severed (at least to a large extent) if she moves to live in Sweden from about July 2017. This may cause her an initial sense of loss, but I am completely confident her mother is more than capable of managing the impact of any such losses so as to minimise the same. Additionally, given the child’s age then and her primary attachment to her mother, I am confident any negative impact caused by leaving daycare/Prep and her friends is likely to be minimal and short-lived.

11. If the child lives in Sweden with her mother, she will have the opportunity to form and develop a relationship with her maternal grandmother. Obviously, her opportunity to interact as frequently as has been possible to date with her paternal grandmother and her paternal grandfather will be diminished.  However, given that the father’s specific proposal that they (or, at least, the paternal grandmother) have the opportunity to spend time with the child if they travel to Sweden was not resisted by the mother, and that the mother has previously acted to keep them informed about the child, I am confident that, into the future, she will continue to appreciate how important they are likely to be for the child and, accordingly, to support her in her relationship with them.

12. I am not remotely persuaded on the evidence that, if the child lives with her mother in Sweden, her relationship with her father will not be promoted and supported by her mother. I consider that the child’s mother has clearly supported her in her relationship with him to date - there is nothing in her behaviours or presentation to suggest that she is likely to change: after all, as an intelligent and caring parent, she must be only too aware of the likely detrimental impact on the child’s future development of any behaviour or actions by her which would undermine the child’s existing loving relationship with her father. I am confident in concluding that it is more likely than not that the child’s mother will continue to support her in her relationship with her father into the future.

13. It is clear that, if the child remains living in Brisbane, there will be little practical difficulty and expense in her spending time with her father. Whatever there is will be unlikely to substantially affect her right to maintain a personal relationship and direct contact with both parents on a regular basis.

14. This clearly will not be the position if she moves to live in Sweden. The distance between Australia and Sweden means that travel between the father’s home here and the mother’s intended home there takes in the vicinity of about 32 hours. There are costs, too: those of accommodation and flights and, no doubt, other matters generally associated with travel. None of these arise if the child remains living in her current environment.

15. Fortunately, both of the child’s parents have the financial capacity to meet or contribute to these costs.  The child’s father has the financial capacity to afford to spend time with her on no less than two occasions per year if he accords to the costs associated with such time the primary importance I accept he is likely to. Thus, he is able to afford to have the child spend time with him on a regular, although not frequent, basis. Whilst there will be, obviously, increased practical difficulty in her spending time with him if she lives in Sweden, these difficulties are not such as to outweigh the benefits which I consider will be accorded to her if she lives in Sweden.

16. I accept that the child’s mother genuinely feels unsupported living in Brisbane. I also accept that she genuinely wishes to return home to Sweden where she can return to familiar surrounds and environs and the support of both family and friends. Whilst the resolution of the issue of the location in which the child will live in the future is not all about the mother and her wishes, hopes and desires, the fact that she will continue to bear the major responsibility for the child’s day to day care cannot be overlooked.

17. I consider that it is more likely than not that, if the mother is able to return to Sweden, she will be a happier person within herself and that it is more likely than not that the child will benefit, both directly and indirectly, from this.

18. Because of the mother’s actions in supporting the child’s relationship with her father in the time after their intimate personal relationship ceased, her evidence when asked questions about her likely attitude to any request he may have made to remove the child from Australia for a holiday and what I assess as her general attitude to compliance with Rules and Court Orders, I am satisfied that it is more likely than not that the mother will, in the future, act to support the child’s relationship with her father by abiding by the terms of an Order which will require the child to return to Australia each year to spend time with him.

19. In the event that this trust proves misplaced, the father has the ability to enforce the Orders pursuant to the Hague Convention.  He may also be able to rely on any legislation which may have been enacted by Sweden to give effect to its determination to become a contracting state to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children. In order to address this issue, the mother will be required to seek prior recognition of the final Orders made before mid-April 2017.[75]

    [75]Cape & Cape [2013] FamCAFC 114 – while the Full Court discussed the position of Germany in relation to the Child Protection Convention, given that Sweden has also ratified the Child Protection Convention, these comments remain apposite.

20. In imposing this obligation on the mother, I am not departing from my assessment of her as a parent who will abide the Orders of this Court. Rather, I am simply attempting to ensure that all that can be done to reassure the father in this respect is, at least, sought to be done.

21. Having regard to the matters discussed, I am persuaded that it is in the child’s best interests to relocate to live in Sweden with her mother.

When is it in the child’s best interests to relocate to Sweden?

1. I am persuaded that delaying the child’s relocation to Sweden will enable her to mature sufficiently as to be likely – with the support of her mother, which I accept will be forthcoming – to be able to hold the memory of her father and paternal grandparents with her during the periods of their physical absences. She will, of course, be assisted in this by the ability to see and interact with them via Skype on a regular basis.  In the period between now and about July 2017, she will have the opportunity to spend gradually increasing periods of time with her father and, no doubt, her paternal grandparents.

2. Having considered the evidence and weighed the considerations as set out above, I am persuaded that it is in the child’s best interests that she live with her mother in Sweden, where her mother is much likelier to be fully emotionally available to her, from about July 2017 onwards. 

The child’s time with her father until August 2017

1. I consider that the child’s best interests will be met by ensuring that she has the opportunity to spend time on a gradually increasing basis with her father between now and her departure for Sweden next year.

2. In fashioning the Orders I have concluded as being in her best interests and appropriate during this time, I have taken into account that she only started spending each alternate Saturday overnight with him from about September 2015. I have also taken into account that it is always difficult to determine the optimal pace of any change in such arrangements for any child and that both the mother and the Independent Children’s Lawyer do not propose any increase in the child’s time with her father in the period between now and mid-July 2017.

3. I also proceed on the basis that, as the purpose of any increase in the child’s time with her father is to provide her with the opportunity to continue to develop and strengthen the relationship she has with him, care must be taken to ensure that the process of increasing time – particularly overnight time – away from her mother does not cause her to feel distressed or unsure.  If that were to occur, the benefits to her of any increased time would be lost and the purpose thwarted.

4. However, I am not persuaded that it is likely to be in the child’s best interests to spend no more than one overnight time with her father each alternate Saturday between now and about July 2017. Rather, doing the best that I can - and trusting that the child’s parents will, in the future, behave as they most recently have when she became a little distressed on an occasion – I have concluded that increasing her time with her father incrementally in the manner outlined in the Orders made to finalise the proceedings is in her best interests and appropriate.

5. The graduation of increased time will, I consider, be likely to give the child the time to adapt.  It will ensure she has the opportunity to continue to strengthen her relationship with her father and extended paternal family; it will enable her to become used to the idea of consecutive nights away from her mother’s care in such a way that it is hoped she will be supported in the consecutive night time which will occur after she moves to live in Sweden.

The child’s time with her father after her relocation to Sweden in August 2017

1. I consider that it is in the child’s best interests to have the opportunity to spend face to face time with her father in the manner prescribed in the Orders made to finalise these proceedings. I consider these Orders allow her the opportunity to spend time with her father in both Australia and Sweden.

I certify that the preceding one hundred and twenty seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 22 April 2016.

Associate:     

Date:             22 April 2016.