Davin & Kerrane
[2023] FedCFamC1F 853
•11 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Davin & Kerrane [2023] FedCFamC1F 853
File number(s): SYC 6089 of 2023 Judgment of: SCHONELL J Date of judgment: 11 October 2023 Catchwords: FAMILY LAW – PARENTING – Interim orders – Relocation – Where the mother sought to return to the United Kingdom pending the final hearing – Where final hearing dates have been allocated in March next year – Where the father opposed the interim relocation on the basis that there was a risk that the mother would not return with the child – Where there is no evidence that the mother would not return – Where the child is very young and has previously spent three months away with the mother in the United Kingdom – Where the father contended that his relationship with the child would be impacted if the child was to spend another three months in the United Kingdom – Where the Court is satisfied that the mother has no support networks in Australia, that her health is compromised in Australia and that she would be better supported in the United Kingdom – Relocation allowed pending final hearing. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 69ZL Cases cited: DeLuca & Farnham [2019] FamCAFC 100
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Kuebler & Kuebler (1978) FLC 90-434; [1978] FamCA 26
Line v Line (1997) FLC 92-729; [1996] FamCA 145
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Division: Division 1 First Instance Number of paragraphs: 64 Date of hearing: 5 October 2023 Place: Sydney Counsel for the Applicant: Mr Scarlett OAM RFD Solicitor for the Applicant: Boyce & Boyce Counsel for the Respondent: Mr Guterres Solicitor for the Respondent: Rubin Blight Hardy Family Lawyers & Mediators ORDERS
SYC 6089 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DAVIN
Applicant
AND: MS KERRANE
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
11 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Australian Federal Police be directed to forthwith remove the name of the child X (“the child”) born 2023 from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
2.The solicitors for the respondent mother (“the mother”) shall give effect to Order 1 by informing the Australian Federal Police forthwith upon these orders being made and providing them with a copy of these orders.
3.Subject to these orders and for the purposes of s 65Y of the Family Law Act 1975 (Cth), the mother is permitted to remove the child from the Commonwealth of Australia not before 13 November 2023, specifically for the purposes of residing in the United Kingdom with the child.
4.The mother shall return the child to the Commonwealth of Australia by no later than February 2024.
5.Forthwith and prior to the mother’s departure from Australia, for the purposes of these orders, the mother shall pay a security bond for the return of the child to Australia, in the amount of $20,000 by way of bank cheque, with such sum to be held on trust for both parties by the mother’s solicitors and to be disbursed as follows:
(a)to be repaid to the mother in full within seven (7) days of her return to Australia; or
(b)to be paid on account of any legal and/other appropriate fees incurred by the applicant father (“the father”) if the mother fails to return the child to Australia and for the purposes of this order, the father shall provide all necessary invoices and accounts to the mother’s solicitor for payment.
6.Between the date of these orders and the mother’s travel to the United Kingdom, the father shall spend time with the child as follows:
(a)Every Wednesday and Thursday from 6.00 am to 8.00 am, with such time to occur at the mother’s residence while the mother is not present unless otherwise agreed between the parties in writing; and
(b)Every Saturday and Sunday from 10.00 am to 1.00 pm.
7.Pending the mother returning to Australia:
(a)The mother shall facilitate video calls between the father and the child at times agreed between the parties in writing but failing agreement, each Monday, Wednesday and Saturday at 11.00 am UK time (being approximately 8.00 pm Sydney time);
(b)Each Friday, the mother shall send an email to the father providing him with an update in respect of the child, including but not limited to details of the child’s health, developmental progress, social activities, and providing photos; and
(c)In the event the father travels to the United Kingdom, and upon the giving of no less than 14 days’ written notice to the mother of his dates of travel, the father shall spend time with the child as agreed between the parties and failing agreement as follows:
(i)On the first, second and third days the father is in the United Kingdom, he shall spend time with the child in the presence of the mother for up to two hours each day; and
(ii)Thereafter, each day for his remaining visit, the father will spend up to three hours each day with the child, without the mother being present, unless otherwise agreed between the parties in writing.
8.The father shall spend time with the child from the child’s return to Australia as follows:
(a)For the first three days that the child and mother are in Sydney, the father shall spend time with the child in the presence of the mother for up to three hours each day;
(b)Thereafter, the father shall spend time with the child as follows:
(i)Up to four hours each Saturday and Sunday between 10.00 am and 2.00 pm unless otherwise agreed between the parties in writing;
(ii)For the purposes of this order, in the event the mother does not have access to or the use of a car, the father shall be responsible for collecting the child from the mother at the commencement of his time and returning the child to the mother at the conclusion of his time and shall have installed an age appropriate car seat for the child in his car.
9.For the purposes of these orders, the father must be always present during his time with the child. In the event the father is not available to care for the child pursuant to these orders, he must provide the mother with no less than twelve hours’ notice that he is unavailable.
10.Each party shall do all acts and things and provide all necessary authorities to enable the other party to liaise directly with the child’s medical practitioners and to provide that party with any information he or she may request from time to time in relation to the child’s health.
11.Each party shall keep the other advised of their current residential address, email address and contact telephone number and advise the other of any changes within forty-eight hours of such occurring.
12.Each party shall forthwith notify the other of any serious illnesses or injuries suffered by the child while in that party’s care and shall provide reasonable particulars as to the name and contact details of the child’s treating doctor and any hospital, medical facility, or healthcare provider to which the child has been taken.
13.The parties’ applications for interim orders are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Davin & Kerrane has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are interim proceedings in relation to the parties’ child X. The proceedings commenced by way of Initiating Application filed by the applicant father (“the father”) on 18 August 2023, where he sought orders that included restraining the respondent mother (“the mother”) from removing the child from Australia, that she surrender the child’s passport, that she be restrained from obtaining a United Kingdom passport for the child and orders for time with the child.
At the hearing on 5 October 2023, the Court allocated final hearing dates for three days commencing 11 March 2024, appointed an Independent Children’s Lawyer and made orders by consent for the appointment of a single expert to prepare a report in anticipation of the final hearing.
Due to the allocation of final hearing dates, the ambit of dispute between the parties significantly narrowed such that it became:
(1)Whether the child should be permitted to travel to the United Kingdom with the mother pending the final hearing;
(2)Whether there existed a risk that the mother would not return the child; and
(3)What the spending time arrangements should be between the child and the father.
There are several matters which were not contentious. They included that:
(1)Pending the final hearing, the child would remain in the primary care of his mother.
(2)The father’s time with the child should occur at least each Saturday and Sunday for at least two hours in the event the parties are in Australia.
(3)The mother would return to Australia by no later than 1 February 2024 if she was permitted to leave Australia; and
(4)Other than the fear harboured by the father that the mother would not return, there were no risk factors.
The father relied upon the following documents:
(1)Amended Initiating Application filed 4 October 2023;
(2)Affidavit of father filed 4 October 2023;
(3)Affidavit of the paternal grandmother Ms C filed 4 October 2023;
(4)Financial Statement of father filed 4 October 2023;
(5)Notice of Child Abuse, Family Violence or Risk filed 18 August 2023; and
(6)Case Outline document.
The mother relied upon the following documents:
(1)Response to Initiating Application filed 8 September 2023;
(2)Affidavit of mother filed 8 September 2023;
(3)Affidavit of the maternal grandmother Ms D filed 3 October 2023;
(4)Affidavit of Dr E filed 4 October 2023;
(5)Affidavit of Mr F filed 4 October 2023;
(6)Financial Statement of mother filed 8 September 2023; and
(7)Case Outline document.
BACKGROUND
The father was born in 1988 and is currently 35 years of age.
The mother was born in 1986 in the United Kingdom and is currently 37 years of age. The mother holds dual citizenship and has lived in Australia since 2011.
According to the mother the parties commenced cohabitation in 2022 and separated on a final basis on 9 August 2023.
The parties have one child, X, born 2023. He is an Australian citizen.
The mother contended that the child is not in good health, having experienced several health issues (mother’s affidavit, paragraph 43.9).
Following the child’s birth, the mother contended that the father provided little support or assistance in caring for the child. She said that her parents remained in Australia until mid‑2023 to help support her. The father contended that the mother did not allow him to actively participate in the child’s care and that she undermined his role as the father.
In mid-2023, the mother and child travelled to the United Kingdom for a period of three months with the consent of the father so that she could receive support from her parents in caring for the child. The mother deposed that during this time she kept the father informed of the child’s progress and regularly facilitated video communication between the father and the child.
For two weeks in mid-2023, the father travelled to the United Kingdom and spent time with the child and the mother.
One month later, the mother and the child returned to Australia.
The mother contended that she told the father on her return that she wanted to separate and that she wished to move back to the United Kingdom with the child. The mother deposed that after multiple discussions, the father was supportive of the mother’s proposed relocation. The mother says that she began selling her furniture and household items.
On 18 August 2023, without notice to the mother, the father commenced proceedings seeking interim orders which included placing the child on the Family Law Watchlist.
On 21 August 2023, the mother said she was informed by the father that he was seeking orders restraining her from removing the child from the country.
On or around 21 August 2023, the father moved out of the home in which the parties had resided. The father did not spend time with the child again until September 2023, following which it appears he has spent time on five occasions for approximately two hours each.
APPLICABLE LAW
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), my reasons are by necessity short.
This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to disputed facts of which there are many.
Parenting proceedings are governed by Pt VII of the Act. Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC. Section 60CC outlines the primary and additional considerations that the Court is required to take into account.
The Full Court in Goode & Goode (2006) FLC 93-286 set out the procedural steps in an interim application.
An order permitting a child to leave the jurisdiction is clearly a parenting order. Authorities such as Kuebler & Kuebler (1978) FLC 90-434, Line v Line (1997) FLC 92-729 and DeLuca & Farnham [2019] FamCAFC 100 (“DeLuca & Farnham”) identify a number of factors that are relevant to the determination that I am required to make in assessing the risk of return of the child to Australia.
In DeLuca & Farnham, the Full Court observed as follows:
35.In Line & Line (1997) FLC 92-729 (“Line”), the Full Court set out at [4.49]–[4.51] relevant matters when considering the authorisation of international travel as follows:
4.49 The next matter is obviously the degree of risk that the departing parent, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return. In assessing that degree of risk, obvious considerations are the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there).
4.50We think it will also be relevant, in exercising this discretion, to consider whether the country to which the departing parent intends to travel with the children is or is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on the 25 October, 1980 (“the Convention”). However, in considering and deciding what weight to give to this factor, the Court would have to bear in mind that, even if the designated destination is a convention country, once the departing parent has left Australia there may be little to prevent him or her deviating from that designated destination to another destination in a non-convention country or, after going to the designated destination, from then travelling on to a non-convention country.
4.51Finally, we think that a relevant consideration in the exercise of this discretion is the financial circumstances of both parties, and in that context the relative hardship which the departing parent would suffer by the imposition of security at a particular level as compared with the hardship which the non-departing parent would suffer if the security were fixed at a lower level. In each case, questions of hardship to the children flowing from any hardship experienced by the relevant parent would also come into consideration.
…
39.In Line, the Full Court said at [4.48] that the two-fold purpose of security was to provide a sum:
a)Which would realistically entice the person removing the children to return; and
b)To adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.
DISCUSSION
The father contended that there is a risk that the mother will not return for the final hearing. His counsel contended that the mother had a plan prior to returning to Australia that she intended to return to the United Kingdom and that the Court should act cautiously in circumstances where, so it was submitted, she has clearly indicated an intention that she wishes to reside in the United Kingdom permanently. Part of that is evidenced by her selling her possessions here and negotiating the purchase of a property in the United Kingdom.
The mother’s counsel submitted that there is not a scintilla of evidence upon which the Court could conclude that the mother will not return. He submitted that the mother in fact returned to Australia consistent with the parties’ agreement and that she then informed the father that she wished to separate. He also submitted that the father initially agreed that the mother could return to the United Kingdom albeit he subsequently changed his mind. Any evidence about the selling of possessions and/or items of property by the mother post her return to Australia needs to therefore be seen within the context of an agreement between the parties that she could in fact move back to the United Kingdom. Counsel for the mother also submitted that the mother has offered a bond in the sum of $20,000. The father contended that a bond in the sum of $20,000 is not sufficient and that a bond of $50,000 should be imposed instead.
I accept that beyond employment the mother has no ties to the jurisdiction. It is also arguable that the mother may not return given her limited ties to the jurisdiction and her stated desire to live permanently in the United Kingdom. While there always exists a possibility of an event occurring, that possibility needs to be assessed by taking into account the evidence.
There is no evidence of any threat by the mother to leave the jurisdiction without the consent of the father. Indeed, all the evidence establishes that the mother retuned to Australia in accordance with the parties’ agreement. Her decision to return to the United Kingdom was one made with the consent of the father. The mother has always been open with the father about her intentions about travel and has acted consistently with the joint agreement of the parties. There is no evidence that she has communicated to the father that she would return without his consent.
The father subsequently changed his mind about the child leaving Australia. The father is quite entitled to change his mind but that does not detract from the fact that the mother’s selling of possessions and steps taken to return to the United Kingdom were part of what had been an agreement.
The United Kingdom is a Hague Convention country, and the mother proposes to reside there pending the hearing with her parents. I note that the mother has offered to pay a bond.
I am satisfied that the bond the mother offers is a sufficient inducement for her to return for a final hearing. I also note that the father has investments of approximately $820,000. Accordingly, this is not one of those cases where the quantum of the bond is apposite to the capacity or not of the party seeking to obtain the return of the child where they otherwise would not be able to do so.
On all the material before me, acknowledging that I am unable to make findings of fact, I am not satisfied that there is evidence that I could find that the mother will not do that which she says she will do, namely return for the final hearing should an order be made permitting her to travel to the United Kingdom with the child. I am not satisfied that the mother poses the risk that the father contends.
Accordingly, I am not satisfied that the injunctions the father seeks as to travel or passports are necessary for the child’s welfare or in the child’s best interests. I will now consider what arrangements should be made for time between the father and child and whether it is in the child’s best interests to leave Australia.
PRIMARY AND SECOND CONSIDERATIONS
In applying the primary considerations, the benefit to the child of having a meaningful relationship with both parents is subservient to the need to protect the child from the risks and harms identified in the subsection.
A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 Fam LR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 Fam LR 439).
Both parties are of the view that it is important the child have a meaningful relationship with the other parent. In that respect, the quantum of time that each party proposed for the child to spend time with the other parent is not markedly different. For example, in the case of the father, he sought orders that he spend time with the child on each Saturday and Sunday for a period of four hours. For the mother’s part, her orders contemplated that the child spend time with the father each Wednesday and Thursday from 6.00 am to 8.00 am at the mother’s residence and each Saturday and Sunday from 10.00 am to 12.00 pm.
After eight weeks, the mother proposed that the father spend time each alternate weekend on a Saturday and Sunday from 9.00 am to 1.00 pm as well as continuing the time each Wednesday and Thursday between 6.00 am and 8.00 am.
The real contest about meaningful relationship is the disruption to the father’s relationship with the child that would be occasioned if the mother were permitted to travel to the United Kingdom with the child pending the final hearing.
I have no expert evidence that would enable me to make any informed decision but accept that there would obviously be some disruption to the child’s relationship with his father if the mother were permitted to travel.
I note, however, that the mother proposed that she would return to Australia by 1 February 2024 and that she does not propose to leave until October 2023. In those circumstances, therefore, any disruption is for a period of approximately three months. Nevertheless, in the life of a small child and in circumstances where there has already been some disruption to the child’s relationship with his father by virtue of the mother returning to the United Kingdom with the father’s consent in mid-2023, there will be further disruption to that relationship.
Fortunately, in this matter there are no matters of risk or harm raised by either party other than the father’s fear that the mother will not return.
In determining what is in the best interests of the child, I will now consider the additional considerations as far as they are relevant.
The child is of an age where he is unable to express a view. I am satisfied that the child has a close and nurturing relationship with his mother and a developing relationship with his father. I also accept that he has a relationship with the maternal grandparents and the potential to develop a relationship with the paternal grandparents.
The mother contended that the father has not taken up every available opportunity to spend time with the child (s 60CC(3)(c) of the Act). In that respect, she contended that between 21 August and 16 September 2023 she was offering the father the opportunity to spend time with the child and that he did not take up her offers. From the correspondence attached to the parties’ affidavits and the contents of their affidavits, the parties were simply unable to reach agreement about what the appropriate arrangements were for the child and each for a period insisted upon the rightness of their position. Be that as it may, it is not in issue that the father has according to his affidavit spent time with the child as follows:
105. …
105.1. Saturday 16 September 2023 from 11am to 1pm;
105.2. Saturday 23 September 2023 from 11am to 1pm;
105.3. Wednesday 27 September 2023 from 4.45pm to 6pm;
105.4. Saturday 30 September 2023 from 11am to 1pm; and
105.5. Sunday 1 October 2023 from 11am to 1pm.
…
108. [Ms Kerrane] has since agreed for me to collect [X] from the [Suburb B] property and take him out for a couple of hours for walks close by, which I have done on the dates and times to which I refer in the paragraph above.
The father is currently paying child support to the mother and proposed to pay spousal maintenance to the mother if she is compelled to remain in Australia.
I am required to consider pursuant to s 60CC(3)(d) the likely effect on the child of any separation from either of his parents or any other person with whom he has been living. This consideration draws sharply into focus the mother’s application to travel to the United Kingdom between October 2023 and February 2024. I recognise that the child has a developing relationship with his father but has only spent limited periods of time with him after his birth, particularly in circumstances where in mid-2023 he resided with his mother in the United Kingdom and has only recommenced spending time with his father in September 2023. Therefore, if the mother’s application were granted, there would be a further separation of the child from his father and paternal grandparents.
I accept there is no practical difficulty and expense of the child spending time with each of the parents if the mother remains in Australia. There is a practical difficulty and expense if the mother moves to the United Kingdom. I am satisfied the father has the financial means to travel and spend time with the child in the United Kingdom. The difficulty is that I am informed from the Bar table that the father does not have any leave available to him, having used all his leave to spend time with the child in the United Kingdom.
There is insufficient evidence for me to be able to conclude that either parent does not have the capacity to provide for the emotional and intellectual needs of the child. I am unable at this stage to make any findings in relation to the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents. I am satisfied, however, that each parent is genuinely interested in the welfare of the child and each genuinely believes that the orders they promote are ones that are in the best interests of the child.
I regard as significant in the determination of this application the undisputed evidence that the mother in the period following the child’s birth has relied heavily upon the support of her mother and father who reside in the United Kingdom. In that respect, with the father’s consent, the mother returned to the United Kingdom mid-2023 where she lived with her parents for three months until returning to Australia. Such travel to the United Kingdom occurred with the consent of the father and in the context of the mother finding being a parent for the first time difficult, particularly dealing with a young child who has some health difficulties.
The mother contended that in the period between now and the final hearing, her capacity to care for the child would be significantly enhanced if she were able to have the assistance of her mother and father. The mother contended that she does not have any other family in Australia who are able to provide her with that assistance. This matter was not put in issue by the father, who did not contend that other than him and his family the mother has other family members to whom she can turn for support.
I also note the evidence of Dr E, the mother’s treating general practitioner in her report dated October 2023. In that report, Dr E observed as follows:
Diagnosis & Prognosis: [Ms Kerrane] has been diagnosed with what is likely an Adjustment Disorder with Mixed Anxiety and Depressed Mood. The uncertainty of her prognosis is intricately tied to the continuous psychosocial stress she faces, a significant portion of which is due to the legal restrictions imposed on her son's ability to leave Australia.
Current Mental Health & Ability to Work: It is evident from our sessions that the mounting pressure has rendered [Ms Kerrane] unable to work. She grapples with severe anxiety, disrupted sleep patterns, and the responsibility of caring for […] [X].
Support System: Although her parents have made the journey from the UK to assist her, this support is temporary. While going through a stressful legal process in Australia, [Ms Kerrane] finds herself socially isolated with limited support network to lean on.
Treatment Recommendations: We have advised [Ms Kerrane] to persist with psychological therapy. While introducing antidepressants could be beneficial, the decision weighs heavily on the fact that she currently breastfeeds [X]. The bond between mother and child at this critical period of infancy, along with [X’s] health, requires that she continue this natural feeding. This situation, however, demands consistent reevaluation based on [Ms Kerrane's] mental health trajectory.
Any further treatment plans will be formulated with input from her psychologist as well.
[X's] Medical Condition: [X's] health adds another layer of complexity. After experiencing a seizure, he has undergone tests such as EEG, urine metabolic screening, and brain imaging.
He has also been found to have [a medical condition] and a follow-up with a paediatric neurologist is imminent.
This assessment was originally scheduled in the UK, aligning with their planned return. Yet, the current legal predicament has disrupted this crucial care coordination.
My concern is the undeniable strain that the legal restriction on [X's] departure has placed on both [Ms Kerrane's] mental well-being and [X's] medical care. It is with utmost respect and urgency that I ask the court to consider an expedited resolution, allowing [X] to remain with his mother and travel to UK where her support system is.
(Affidavit of [Dr E] filed […] October 2023, Annexure C)
It was not submitted to me by counsel for the father that I should not place any weight on this medical evidence.
I accept the father has not had the opportunity to cross-examine the mother or the doctor on the contents of the report. However, the report is to an extent consistent with what the mother said in her affidavit and what was clearly recognised by the father (quite appropriately) that the mother and, by clear inference, the child, would benefit from the support of her extended family which is only available in the United Kingdom. The father has quite appropriately recognised this on two separate occasions, once prior to May 2023 and again after separation.
I am satisfied, based on the evidence of her treating general practitioner, that the mother’s health in Australia is compromised and that it would be enhanced and improved if she was permitted to travel to the United Kingdom. In circumstances where she is the child’s undisputed primary carer, then it is an imperative that she be provided with the best environment in which to care for this very young child. I am satisfied that on balance that is met by permitting her to travel to the United Kingdom, notwithstanding the impact that might have on the child’s developing relationship with the father.
The mother sought to return to the United Kingdom by October 2023. However, according to her mother’s affidavit, her father will remain in Australia until November 2023 as his visa expires in late 2023.
In resolving this matter, there is a tension between ensuring that the child spends as much time as possible with his father as well as permitting the mother to travel to the United Kingdom to obtain the support and assistance of her family.
I am satisfied that that balance is struck by permitting the mother to travel no earlier than November 2023, about a week after her father must leave, and requiring her to return to Australia by no later than 1 February 2024. That would enable the child to spend about another five weeks with his father between now and November 2023.
In the interim period until she leaves, I am satisfied generally that the orders that the mother proposed for time (subject to some amendments) with the father during the week and on the weekends are appropriate. It is consistent with the routine that the child is used to.
Whilst the father contended that he is not able to travel to the United Kingdom, things happen and circumstances change and, if he is able to travel, then upon giving not less than fourteen days’ notice of any intention to travel, the orders the mother proposed are appropriate. Upon the child’s return to Australia, I am satisfied that the child should initially spend some short periods in the presence of the mother before moving to time alone with the father. This is appropriate as it is likely on the father’s evidence that the child may not have seen the father since leaving Australia. The mother’s time orders upon the child’s return with a modest increase are in my view appropriate given the child’s age and state of development.
Whilst there were no submissions made by either counsel as to the appropriateness of Orders 7, 8 and 9 of the orders sought by the father, I am satisfied that they are orders that are in the child’s best interests and consistent with the orders that I otherwise propose to make.
The mother sought spousal maintenance if she were compelled to remain, and the father agreed if she was to remain, that he would pay spousal maintenance. As that eventuality will not occur, I will dismiss the mother’s application for spousal maintenance, but such dismissal is without prejudice to any orders for spousal maintenance she may seek at the final hearing.
I am satisfied that these are arrangements are in the best interests of the child and I will make orders accordingly.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 11 October 2023