DENHAM & NEWSHAM
[2020] FamCA 271
•23 April 2020
FAMILY COURT OF AUSTRALIA
| DENHAM & NEWSHAM | [2020] FamCA 271 |
| FAMILY LAW – CHILDREN – With whom a child lives – International relocation – Where the mother seeks to relocate with the child to Belgium in March 2022 and for the child to spend block time with the father during school holidays in Belgium on three occasions each year and on one occasion each alternate year in Australia – Where the father seeks that the child remain living with the mother in Sydney and that he spend gradually increasing time with the child such that the child lives in a shared care arrangement by the time he is 12 – Where the child has meaningful relationships with both parents but the mother is the child’s primary attachment – Where the mother has always fostered the child’s relationship with the father and the paternal family – Where requiring the mother to remain in Australia is likely to affect her parenting capacity – Where the child’s best interests will be met by him being able to live with the mother and, if she elects to do so, for the child to live with her in Belgium from March 2022 – Where the father will spend regular time with the child whilst the child remains living in Australia – Where, upon the mother relocating, the father will have regular telephone time and will spend time with the child on three occasions each year in Belgium and one occasion each alternate year in Australia. FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Presumption of equal shared parental responsibility – Where the parents have demonstrated an ability to communicate and make decisions, including major long term decisions – Where the presumption is not rebutted – Where the parents will have equal shared parental responsibility. |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 Babcock & Waddell [2019] FamCAFC 129 Baghti & Baghti and Ors [2015] FamCAFC 71 Banks & Banks (2015} FLC 93-637 CDJ v VAJ (No 1) (1998) 197 CLR 172 Godfrey & Sanders [2007] FamCA 102 Hepburn & Noble (2010) FLC 93-438 Sigley & Evor (2011) 444 Fam LR 439 M & M (1988) 166 CLR 69 McCall & Clark (2009) 93-405 Taylor & Barker (2007) FLC 93-345 Zahawi & Rayne [2016] FamCAFC 90 |
| APPLICANT: | Mr Denham |
| RESPONDENT: | Ms Newsham |
| FILE NUMBER: | SYC | 5428 | of | 2018 |
| DATE DELIVERED: | 23 April 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 10 - 12 February 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Tovey |
| SOLICITOR FOR THE APPLICANT: | P Williams & Company Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Ford |
| SOLICITOR FOR THE RESPONDENT: | Nolan Lawyers |
IT IS ORDERED THAT:
All previous parenting orders and parenting plans be discharged.
Mr Denham and Ms Newsham (“the parents”) have equal shared parental responsibility for major long terms issues (as that term is defined in s 4(1) of the Family Law Act 1975 (Cth)) in relation to the child, X born … 2016 (“the child”).
Notwithstanding the order for equal shared parental responsibility, and subject to paragraph 4 herein, Ms Newsham (“the mother”) be at liberty to relocate with the child to Belgium.
The mother be restrained from relocating with the child to Belgium before March 2022 unless the mother is unsuccessful, despite her best efforts, in obtaining permanent residency in Australia.
The mother shall take all reasonable steps to obtain a permanent residency visa for Australia.
While the mother lives in Australia with the child
Until the child attains the age of six (6) years
The child shall spend time with Mr Denham (“the father”) at all such times as may be agreed between the parents and failing agreement as follows:
(a) Each Wednesday from 2.00pm (or the conclusion of school if applicable) until 6.00pm; and
(b) Until the father obtains suitable accommodation (see paragraph 18 below), and for a period of not less than three months from the date of this Order, each Saturday from 9.00am to 6.00pm;
(c) Upon the father obtaining suitable accommodation and subject to paragraph 18 below, but not earlier than three months from the date of this Order:
(i)For a period of six months, each alternate weekend from 9.00am Saturday to 9.00am Sunday;
(ii)Thereafter, each alternate weekend from 9.00am Saturday until 6.00pm Sunday.
(d) For the purposes of changeover, and unless otherwise agreed between the parents in writing, the father shall be responsible for collecting the child from day care or school or the mother’s residence (as applicable) at the beginning of his time with the child and returning the child to the mother’s residence at the end of his time with the child.
Upon the child attaining the age of six (6) years and until the child attains the age of thirteen (13) years
The child shall spend time with the father at all such times as may be agreed between the parents and failing agreement as follows:
(a) Each Wednesday from the conclusion of school (or 3.00pm) until 6.00pm;
(b) Each alternate weekend from the conclusion of school (or 3.00pm) on Friday until 6.00pm on Sunday, subject to paragraph 18 below;
(c) During the Autumn school holiday period and subject to paragraph 18 below, commencing at 9.00am on Monday in the second week of the school holiday period until 5.00pm on Wednesday that same week;
(d) During the Spring school holiday period and subject to paragraph 18 below, commencing at 9.00am on Monday in the first week of the school holiday period until 5.00pm on Friday that same week;
(e) During the Summer school holiday period and subject to paragraph 18 below:
(i)Week 2: from 9.00am on Monday until 5.00pm on Friday;
(ii)Week 4: from 9.00am on Monday until 5.00pm on Friday.
(f) For the purposes of changeover, and unless otherwise agreed between the parents in writing, the father shall be responsible for collecting the child from school or the mother’s residence (as applicable) at the beginning of his time with the child and returning the child to the mother’s residence at the end of his time with the child.
Upon the child attaining the age of thirteen (13) years
The child shall spend time with the father at all such times as may be agreed between the parents and failing agreement as follows:
(a) From the conclusion of school (or 3.00pm) on alternate Thursdays until the commencement of school (or 8.00am) the following Monday;
(b) From the conclusion of school (or 3.00pm) to 8.00pm on the alternate Thursday;
(c) For one half of the Autumn and Spring school holiday periods, being the first half in odd numbered years and the second half in even numbered years;
(d) For one half of the Summer school holiday period, commencing from the conclusion of the school term to 10.00am on 11 January in all even numbered years and from 10.00am on 11 January to the end of the school holiday period in all odd numbered years;
(e) For the purposes of changeover and unless otherwise agreed between the parents in writing, the father shall be responsible for collecting and returning the child to and from school or the mother’s residence (as applicable).
Overseas and interstate travel while the mother lives in Australia with the child
The mother is at liberty to travel overseas and interstate with the child during her time with the child pursuant to this Order, subject to the mother satisfying the following conditions:
(a) The mother must provide the father no less than seven days’ notice of her intended travel with the child;
(b) The mother must provide the father the following information no less than five days before her intended departure:
(i)details of any flight plans/transport plans, including an itinerary;
(ii)a copy of the return plane tickets/E-ticket for the child (if any);
(iii)contact details of where the child will be staying, including the name and address of the accommodation and contact telephone numbers; and
(iv)details of any other persons that will be accompanying the mother on the trip, including their name and age.
Upon the child attaining the age of seven years, the father is at liberty to travel interstate with the child during his time with the child pursuant to this Order, subject to the father satisfying the following conditions:
(a) The father must provide the mother no less than seven days’ notice of his intended travel with the child;
(b) The father must provide the mother the following information no less than five days before his intended departure:
(i)details of any flight/transport plans, including an itinerary;
(ii)a copy of the return plane tickets/E-ticket for the child (if any);
(iii)contact details of where the child will be staying, including the name and address of the accommodation and contact telephone numbers; and
(iv)details of any other persons that will be accompanying the father on the trip, including their name and age.
Upon the child attaining the age of ten years, the father is at liberty to travel overseas with the child during his time with the child pursuant to this Order, subject to the father satisfying the following conditions:
(a) The father must provide the mother no less than seven days’ notice of his intended travel with the child;
(b) The father must provide the mother the following information no less than five days before his intended departure:
(i)details of any flight plans, including an itinerary;
(ii)a copy of the return plane tickets/E-ticket for the child;
(iii)contact details of where the child will be staying, including the name and address of the accommodation and contact telephone numbers; and
(iv)details of any other persons that will be accompanying the father on the trip, including their name and age.
Special Days while the mother lives in Australia with the child
In the event the child is in the care of the mother on Father’s Day, the child shall spend time with the father from 9.00am on Father’s Day to 5.00pm that evening and, while the child lives in Australia, any provision for time under this Order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
In the event the child is in the care of the father on Mother’s Day, the child shall spend time with the mother from 9.00am on Mother’s Day to 5.00pm that evening and, while the child lives in Australia, any provision for time under this Order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
Unless otherwise agreed between the parents in writing, the child spend time with each parent at Easter as follows:
(a) In all even numbered years, with the father from 11.00am on Good Friday to 3.00pm on Saturday and with the mother from 3.00pm on Saturday to 6.30pm on Easter Sunday;
(b) In all odd numbered years, with the mother from 11.00am on Good Friday to 3.00pm on Saturday and with the father from 3.00pm on Saturday to 6.30pm on Easter Sunday;
(c) And, while the child remains living in Australia, any provision for time under this Order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
Upon the mother relocating with the child to Belgium
Until the child attains the age of six (6) years
The child shall spend time with the father at all such times as may be agreed between the parents and failing agreement as follows:
(a) During the Belgium Summer school holiday period (July to August), the child shall spend time with the father in Belgium over a four week period at the following times:
(i)On Monday, Tuesday and Wednesday from 9.00am until 4.00pm each day;
(ii)From 9.00am on Thursday until 12.00pm on Saturday (two overnights) subject to paragraph 18 below.
(b) The mother shall assist in finding nearby accommodation for the father’s stay in Belgium but the costs associated with the accommodation shall be paid by the father;
(c) The father shall be restrained from removing the child from Belgium during his time with the child pursuant to this Order.
Upon the child attaining the age of six (6) years and until the child attains the age of thirteen (13) years
The child shall spend time with the father at all such times as may be agreed between the parents and failing agreement as follows:
(a) During the Belgium Summer school holiday period (July to August) the child shall spend time with the father in Belgium over a four week period at the following times:
(i)On Monday and Tuesday from 9.00am to 5.00pm each day;
(ii)From 9.00am on Wednesday until 12.00pm on Saturday (three overnights) subject to paragraph 18 below.
(b) During the Belgium Autumn school holiday period (first week of November) the child shall spend time with the father in Belgium over a one week period at the following times:
(i)On Monday and Tuesday from 9.00am to 5.00pm each day;
(ii)From 9.00am on Wednesday until 12.00pm on Saturday (three overnights) subject to paragraph 18 below.
(c) During the Belgium Easter school holiday period the child shall spend time with the father in Belgium over a two week period at the following times:
(i)On Monday and Tuesday from 9.00am to 5.00pm each day;
(ii)From 9.00am on Wednesday until 12.00pm on Saturday (three overnights) subject to paragraph 18 below.
(d) The mother shall assist in finding nearby accommodation for the father’s stay in Belgium but the costs associated with the accommodation shall be paid by the father;
(e) The father shall be restrained from removing the child from Belgium during his time with the child pursuant to this Order;
(f) In all even numbered years, the child shall spend time with the father in Australia over a two week period during the Christmas holiday period at the following times:
(i)On Monday and Tuesday from 9.00am until 5.00pm each day;
(ii)From 9.00am on Wednesday until 12.00pm on Saturday (three overnights), subject to paragraph 18 below.
Upon the child attaining the age of thirteen (13) years
The child shall spend time with the father at all such times as may be agreed between the parents and failing agreement as follows:
(a) During the Belgium Summer school holiday period (July to August) the child shall spend time with the father in Belgium over a five week period at the following times:
(i)For two blocks of 12 overnights.
(b) During the Belgium Autumn school holiday period (first week of November) the child shall spend time with the father in Belgium over a one week period at the following times:
(i)For one block of five overnights.
(c) During the Belgium Easter school holiday period the child shall spend time with the father in Belgium over a two week period at the following times:
(i)For two blocks of five overnights.
(d) The mother shall assist in finding nearby accommodation for the father’s stay in Belgium but the costs associated with the accommodation shall be paid by the father;
(e) The father shall be restrained from removing the child from Belgium during his time with the child pursuant to this Order;
(f) In all even numbered years, the child shall spend one block of eight overnights with the father in Australia during the Christmas holiday period.
it is further ordered
The father’s time with the child pursuant to paragraphs 6(c), 7 (b), (c), (d), (e), and 15 (a)(ii), and 16 (a)(ii), (b)(ii), (c)(ii), (f)(ii) above is subject to the father satisfying the following conditions:
(a) The father having his own accommodation that is suitable and safe for the child and the mother to be provided with proof by way of current signed lease agreement or such other legal document (or booking confirmation for accommodation in Belgium) within 24 hours of written request;
(b) Suitable sleeping arrangements for the child which the mother will be granted access to inspect upon 24 hours of her written request to the father; and
(c) If the father has secured rental accommodation, the father must provide the mother a letter from the Real Estate Agent confirming the lease agreement is in existence and confirming the rental bond and rental payments have been paid up to date and the father shall produce to the mother payment receipts or bank statements verifying the payments made.
For the purposes of clarity, suitable accommodation does not include shared accommodation with friends, a boat, a barge or the father’s work premises but until the child attains the age of 8 years can include a one bedroom unit.
In relation to the child’s time with the father in Australia if the mother lives in Belgium with the child
For the purposes of facilitating the child’s time with the father pursuant to paragraph 16(f) and 17(f) above:
(a) Until the child attains the age of 13 years, the mother shall travel with the child to Australia;
(b) Upon the child attaining the age of 13 years, the mother may elect to travel with the child to Australia or alternatively she may elect to take the child to City B International Airport in Belgium and ensure that the child is placed on the aircraft for travel to the Sydney International Airport in Australia, and the Father shall ensure that he is at the Sydney International Airport in Australia to collect the child;
(c) In the event the mother does not travel to Australia with the child, the father shall take the child to the Sydney International Airport in Australia at the conclusion of all visits and ensure that he is placed on the aircraft for travel to the City B International Airport in Belgium, and the mother shall ensure that she is at the City B International Airport in Belgium to collect the child;
(d) The mother shall pay the cost of the child’s return plane ticket to and from Australia;
(e) The father shall cover the cost of the child’s accommodation and living expenses during the time the child is in his care in Australia.
Father’s travel costs if the mother lives in Belgium with the child
For the purposes of facilitating the child’s time with the father pursuant to paragraphs 15(a), 16 (a), (b), (c) and 17 (a), (b), (c) above, the mother and father shall equally share the cost of the father’s return plane tickets to and from Belgium for the purposes of the father spending time with the child in Belgium and the father shall cover the child’s accommodation and living expenses during the time the child is in his care in Belgium.
For the purposes of paragraph 21 above, the father shall pay the cost of his return plane ticket in the first instance and within 7 days of making payment, the father shall provide the mother with a copy of the receipt in relation to the said payment, and the mother shall deposit her 50% share into the father’s nominated bank account within 7 days of provision of such receipt.
Father’s communication with the child if the mother lives in Belgium with the child
When the mother and child live in Belgium, the father and child shall communicate with each other by telephone or Skype at all times as may be agreed in writing between the parents, and failing agreement at the following times:
(a) Each alternate Wednesday between 3.00pm and 5.00pm AEST and the father shall initiate the call;
(b) At any other reasonable time when the child wishes to communicate with the father.
For the purposes of paragraph 23 above:
(a) The mother will ensure that the father is informed of the number on which the child can be reached, and ensure the child is available to receive the call; and
(b) The mother will let the child take such calls in private and without interruption.
When the child spends time with the father pursuant to paragraphs 7(c), (d), (e), 8(c), (d), (e), 10, 11 and 17 above, the mother and child shall communicate with each other by telephone or Skype at all times as may be agreed in writing between the parents, and failing agreement at the following times:
(a) On Monday, Wednesday and Friday between 3.00pm and 5.00pm AEST; and
(b) At any other reasonable time when the child wishes to contact the mother;
(c) The mother will initiate the telephone or Skype contact;
(d) The father will ensure the mother is informed of the number on which the child can be reached, and ensure he is available to receive the call; and
(e) The father will let the child take such calls in private and without interruption.
Passports
The father shall sign all documents, give all consents and do all necessary things requested by the mother to enable the child to be issued with an Australian passport and a Belgium passport within seven days of being provided with the necessary documents by the mother, in default of which a Registrar of this Court be authorised under s 106A of the Family Law Act 1975 (Cth) to sign all documents and give all consents and do all necessary things to cause the passports to issue.
The mother shall maintain possession of the child’s Australian passport and Belgium passport.
Communication
The parents shall communicate through SMS messages, emails or other electronic means only (save for circumstances of emergency) and such communications shall be confined to arrangements concerning the child and related parenting matters.
It is further ordered by consent
The child shall live with the mother.
The mother hereby authorises the child’s school to provide the father with copies of school reports, notices, other publications and any information he may request about the child.
Each party shall inform the other as soon as practicable of any medical emergency involving the child.
The mother hereby authorises any medical practitioner, psychologist or other health care professional seen by the child to contact the father so as to provide him at his expense with any information about the child that he should seek.
The parents shall keep each other informed of their current residential addresses, mobile telephone numbers and email addresses and shall advise the other of any change to these details within 48 hours of such change occurring.
Without admitting the necessity for such an Order, each parent is restrained from:
(a) Denigrating the other parent or a person with whom the other parent has a relationship in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence;
(b) Discussing the proceedings or any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence;
(c) Permitting the child to have access to any of the documents filed in these proceedings;
(d) Communicating any information intended for the other parent through the child; and
(e) Causing the child to be a medium in any way to adult matters between the mother and father or between the mother and father and any other person.
In the event of any dispute as to the interpretation, implementation or enforcement of this Order (including any claim by a party that it should be varied) the parents shall first attend family dispute resolution (“FDR”) with an FDR practitioner appointed by the parents and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment, the party raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other party within 14 days.
notation
A.It is noted that the father agrees to reimburse the mother for one half of the child’s ongoing day care fees within 24 hours of receipt of the invoice from the mother for so long as the mother lives in Australia. There is currently nearly $4,000 owing. The current arrears have been accruing since October 2019.
B.It is further noted that the mother consented to remain in Australia (subject to her residency entitlements) until March 2022.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Denham & Newsham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: SYC 5428 of 2018
| Mr Denham |
Applicant
And
| Ms Newsham |
Respondent
REASONS FOR JUDGMENT
Mr Denham and Ms Newsham had a short relationship which ended finally in early 2017. They have a child together, X, who is 3 years of age. It is common ground that the child will continue to live with the mother and spend time with the father. In particular, the father concedes that the mother is a dedicated and committed parent and that the child’s primary attachment is to the mother.
The substantial dispute between the parents arises because the mother wishes to relocate with the child to Belgium. The mother was born in Belgium and spent most of her life there before moving to Australia in July 2013.
For the reasons which follow, the mother will be at liberty to relocate with the child to Belgium as proposed by her i.e. in March 2022.
Brief background
The father and mother commenced a relationship in January 2014. They have one child together, X, born on … 2016. Neither of them have any other children. After a number of separations they separated on a final basis in April 2017.
The father is 35 years of age and self-employed as a craftsman. He lives and works in a property at Suburb C, Sydney. According to the father’s most recent Financial Statement filed 10 January 2020, his annual taxable income is $78,000.
The mother is 35 years of age and employed as a manager with D Company and receives an annual salary of $125,000. She lives with the child in rented accommodation in Suburb E, Sydney. The mother was born in Belgium and completed her undergraduate studies in commercial and business engineering there before moving to Country G to complete her Master’s degree. The mother worked in Country F for six months and then Country H and Country J for several years. During this time, her employer paid for her return visits to Belgium every two to three months. Before moving to Australia in July 2013, for what was intended to be a one year contract, the mother had been living and working again in Belgium for about a year. The mother owns a unit in City B, Belgium.
The mother is currently in a relationship with Mr N but they do not live together. They first met in 2014 and their relationship commenced in October 2018. Mr N plans to move to Belgium with the mother. He is employed as a professional with M Pty Ltd. Mr N was born in Country L and moved to Australia from New Zealand in 2014.
The parents had a somewhat tense relationship after the birth of the child. The mother’s parents and sister lived with them in their unit for about three months shortly after the child’s birth. The father did not spend a lot of time at home during that time. He worked at the premises which was only about 300 metres from the unit.
After final separation in April 2017, the parents were able to agree on arrangements for the father to spend time with the child. In early 2018, the mother sought to replace the ad hoc arrangements with a more structured routine. While the mother is critical of the father’s failure to adhere to the regular arrangements, it is common ground that he continued to see the child each week.
The father commenced proceedings in the Federal Circuit Court of Australia on 24 August 2018 as a result of his concerns about the mother’s intentions to relocate with the child to Belgium. The matter was transferred to this Court on 17 October 2018.
An order was made by consent on 17 October 2018 (“the 2018 order”) that provided, among other things, for the child live with the mother and spend time with the father as follows:
a)Each Wednesday from 3.00pm until 5.30pm and each Saturday from 9.00am until 12.30pm;
b)From 1 March 2019 until 1 May 2019, in addition to each Wednesday and Saturday (as set out above) for a full day from 9:00am until 6.00pm on a Saturday every third week with a view to transition into overnight stays subject to:
i)The father having his own accommodation and the mother being provided a copy of the lease; and
ii)The father having suitable sleeping arrangements for the child which the mother will inspect.
The 2018 order also enabled the mother to travel to Belgium for up to four weeks over the Christmas period that year and made provision for the father to spend a full day with the child prior to the child’s departure on condition that the father had a safe and adequate place for the child to have his midday sleep, with the mother to inspect beforehand.
On 5 February 2019 a further order (“the 2019 order”), was made by consent clarifying that the 2018 order made the father’s full day time with the child subject to the two conditions outlined above.
Under the 2018 order, the father agreed to reimburse the mother for one half of the child care fees and to apply for “the child care benefit”. This is a reference it seems to a rebate that is paid by the Australian Government which subsidises the cost of day care for a parent. The mother was unable to apply for the rebate herself because she does not hold permanent residency.
The mother pays day care fees of $1,340 per fortnight ($34,840 per annum). It is common ground that the father has been irregular in his reimbursement of child care fees to the mother and at the commencement of the trial owed the mother about $7,000 (which he reduced to about $4,000 by a payment to the mother during the trial). It is also common ground that the father has not completed the application process for the child care rebate, despite him being required to do so by the 2018 order.
It is common ground that despite the father not having fulfilled the two conditions set out in the 2018 order, he has nevertheless spent 10 full days from 9.00am until 4.00pm with the child, but no overnight time.
While the mother is confident of obtaining a permanent residency visa, she does not currently have the right to reside permanently in Australia. Her current visa expires in April 2020 and she is in the process of applying for permanent residency, having lodged her application and paid a fee of $8,548 in November 2019.
The father’s parents live in O Town, Queensland and the mother’s parents live in City B, Belgium. The mother’s parents are both retired and receive a government pension. They receive further income from renting out rooms in what is described as a large house. They have provided significant financial assistance to the mother.
Since the mother’s arrival in Australia she has travelled back to City B each year and on two occasions, twice a year. The child has been to Belgium and the mother’s parents and her sister have each travelled to Australia since the birth of the child. The child has also travelled to Asia with the mother for an eleven day holiday in May 2019 and to O Town to visit the father’s parents in April 2019. The father was also present at O Town.
It is common ground that the mother has facilitated additional time for the father and child to spend time together as identified in exhibit 6 and that the mother has always facilitated time between the child and the paternal family.
Proposals
The father proposes that the child live with the mother in Sydney and that he spend gradually increasing time with the child such that by the time he is 12 years of age he live in a week about arrangement. The father also proposes he and the mother have equal shared parental responsibility for major long term issues.
The mother proposes that she and the child live in Belgium from March 2022[1] and that the child spend gradually increasing time with the father in Australia and upon her relocation, she proposes that the father spend time with the child on three occasions each year in Belgium and on one occasion each alternate year in Australia, and that there be weekly electronic communication between the child and the father. The mother proposes that she have sole parental responsibility for major long term issues.
[1] The mother’s initial position was that she and the child would relocate in March 2021 but her proposal changed in response to the opinions expressed by the family report writer.
Issues
With the assistance of the parents the following issues have been identified as significant issues requiring determination:
(1)How has each parent demonstrated their attitude to the child, and to the responsibilities of parenthood?
a)Has the mother failed to promote the child’s relationship with the father?
b)Has the father failed to take the opportunity to spend time with the child?
c)Has the father failed to fulfil his obligations to maintain the child?
(2)Is relocation in the best interests of the child?
a)What is the nature of the father’s relationship with the child and his capacity to provide overnight time and significant and substantial time with the child?
b)What is the likely effect on the child of being separated from the father?
c)What is the practical difficulty and expense of the child spending time with and communicating with the father?
d)What is the likely impact on the mother of having to remain in Australia contrary to her wishes?
e)Can the mother remain in Australia long term?
f)Can the Court determine now whether or not it is in the child’s best interests to relocate when the mother does not propose to relocate until March 2022?
(3)Do the parents have the capacity to make major long term decisions for the child jointly?
An additional issue, namely, whether the mother actively prevented the father making decisions that affect the child, was not pressed by the father.
Applicable legal principles
A parenting case involving relocation is just another parenting case.[2] There are no special tests that apply. For instance the mother does not have to establish a compelling reason for wishing to relocate.[3] Nor is the enquiry one that is directed to whether or not the mother should be ‘permitted’ to relocate.[4] The best interests of the children remain the paramount though not the sole consideration.[5] Where the legitimate interests of an adult conflict with the best interests of children, the former must give way.[6]
[2]Zahawi & Rayne [2016] FamCAFC 90 at [48].
[3]AMS v AIF (1999) 199 CLR 160.
[4] Babcock & Waddell [2019] FamCAFC 129 at [141] – [142] per Aldridge J quoting AMS v AIF (1999) 199 CLR 160 per Kirby J at 223, [188] and Hayne J at 231–232, [217]–[218].
[5]AMS v AIF (1999) 199 CLR 160 at 225, [193].
[6] Ibid.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[7]
[7]Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
a)The person or persons with whom a child is to live;
b)The time a child is to spend with another person or other persons;
c)The communication a child is to have with another person or persons; and
d)The allocation of parental responsibility for a child.
The objects and principles of Part VII of the Act are set out in s 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).
In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
The Court is not required to make findings of fact on every factual dispute raised by the parties.[8] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[9]
[8]Baghti & Baghtiand Ors [2015] FamCAFC 71.
[9]M & M (1988) 166 CLR 69.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[10]
How has each parent demonstrated their attitude to the child, and to the responsibilities of parenthood?
[10]Banks & Banks (2015) FLC 93-637.
Has the mother failed to promote the child’s relationship with the father?
In the first year or thereabouts after the parents’ separation there was an ad hoc arrangement for the father to see the child but, nevertheless, the father saw the child regularly, at least once or twice per week. The father often stayed the night at the mother’s home during this time. The mother contends that this arrangement was very stressful.
Perhaps as a consequence, the mother sought to put in place a routine for the father’s time with the child. The mother is critical of the father failing to take every opportunity to spend time with the child. The father contends that his work commitments prevented him spending time with the child on occasions. He concedes that the mother was often accommodating of his requests to re-schedule his time with the child and also facilitate additional time.
Proceedings only commenced when the father became concerned that the mother may relocate to Belgium with the child.
The 2018 order made specific provision for the father’s time with the child to extend to overnight time when the father located suitable accommodation. Unfortunately, the father misled the mother about having obtained a unit. He also misrepresented in his affidavit that the mother had avoided or refused to inspect his accommodation. The father’s actions were ultimately self-defeating as they detrimentally affected the mother’s confidence and trust in him.
In my view, the mother was understandably concerned about the father having overnight time. The father suggests that the mother was overly protective and anxious but in my view, as a first time mother whose experience of the father when they were together was as a parent who demonstrated minimal capacity or inclination to parent, I consider her reticence to be entirely understandable. The father made matters worse when, on the first occasion that the child spent a day with him, the father missed the changeover time and did not answer his phone. The father had fallen asleep. The mother was frantic and called the police. The mother found the father and the child at the premises where there are numerous items of machinery and tools potentially hazardous to a child.
On occasions when the mother has travelled overseas with the child she facilitated phone calls between the father and child.
The father’s submissions that the mother has failed to promote the father/child relationship were not persuasive, e.g. that the mother did not involve the father in her decision to enrol the child in soccer, and contrary to the evidence as a whole.
Notwithstanding the mother’s reservations about extending the father’s time with the child, in my view, the evidence overwhelmingly supports the finding that the mother has facilitated and promoted the father’s relationship with the child while remaining child focussed at all times.
Has the father failed to take the opportunity to spend time with the child?
Whatever the father’s historical attitude to becoming a parent for the first time, and the mother is critical of him on a number of levels, I am satisfied that he has demonstrated consistent commitment to maintaining his relationship with the child at least over the last year.
There were occasions in the past when it is more likely than not that the father prioritised his own enjoyment of life ahead of his relationship with the child but in my view, as the child has grown, the father’s capacity to relate to the child has improved and thus his commitment to spending time with the child has improved.
Has the father failed to fulfil his obligations to maintain the child?
The father has not paid any child support and despite agreeing to reimburse the mother for one half of the costs of day care, the father has consistently been in arrears. At the commencement of the trial the father owed the mother about $7,000. He reduced that debt by paying the mother $3,000 during the trial.
The father’s Financial Statement discloses a weekly income of $1,500, which the father confirmed during cross-examination was net of business expenses. Even allowing for the understatement of the father’s disclosed personal expenses of $400 (which did not include food, electricity etc.) the father’s claimed surplus (during cross-examination) of $20 per week is not supported by his Financial Statement.
Further, the father failed to alleviate the mother’s significant financial burden by simply applying for the child care rebate which would have reduced her child care costs. The mother could not complete the application herself because she is not a permanent resident. The father’s failure to do what was required of him appears to be directly related to his reluctance to file tax returns, which he has not done for 14 years. I do not accept the father’s assurances that he has done all he is required to do to file the outstanding tax returns. As recently as 12 January 2020, he was requested by his accountant to provide necessary documents. There is no evidence he has complied with her request.
Having regard to the history of this matter, i.e. the father has failed to fulfil his obligations to maintain the child, there does not seem to be a realistic prospect of the mother being able to rely on the father contributing any reliable financial support for the child in the future.
Is relocation in the best interests of the child?
What is the nature of the father’s relationship with the child and his capacity to provide overnight time and significant and substantial time with the child?
The father has a secure and loving relationship with the child according to the observations made by the family report writer. The child was observed to be delighted to see the father and their interaction was noted to be warm and affectionate. I accept the assessment of the family report writer as to the nature of the father/son relationship. Indeed, the mother concedes that the father and child have a loving relationship.
The father spends regular day time with the child each week.
The father could have been having overnight time with the child if he had complied with the 2018 order. Not only did he not comply, he misled the mother about having rented suitable accommodation. He maintained the misrepresentation for months, even inveigling his friend Mr P to misrepresent the facts to assist him. This has caused a significant breach of trust with the mother and was ultimately self-defeating for the father.
The father suggests that his workspace is suitable for a small child. The tendered photographs and description of the workspace persuade me that it is not a suitable place for the child to spend overnights. It has no kitchen, is close to the water and is a workspace where there are tools and machinery within easy reach of the child. While I am sure the father would do his best to appropriately supervise the child for shorter periods, the risk of harm increases the longer the period of supervision is required and obviously overnight time involves the father being asleep.
The mother contends that a one bedroom unit is not suitable for ongoing overnight time however, given the cost of accommodation in Sydney and the age of the child, I consider that a one bedroom unit, if that is the best the father can reasonably afford, would not be unsuitable for that reason alone, at least while the child is so young.
What is the likely effect on the child of being separated from the father?
If the mother relocates with the child to Belgium in March 2022, as she now proposes, there is no doubt that the separation from the father will be a wrench for the child. The question though is whether it will be possible for the child to maintain a meaningful relationship with the father given the tyranny of distance.
If the child relocates he will lose the opportunity for weekly physical contact with the father and the father will not be able to be involved in school or sporting activities that parents would normally attend. However, what the Act requires the Court to consider is the benefit to the child of having a meaningful relationship with both parents not an optimal relationship.[11] The mother’s proposal would enable the child to spend time with the father during three extended periods each year and an additional extended period each other year as well as engage each week by electronic video means. If the father travels to Belgium at other times, e.g. as a result of his occupation, I am confident the mother would agree to additional time given her propensity to do so in the past.
[11] Godfrey & Sanders [2007] FamCA 102 at [33]–[36] Sigley & Evor(2011) 44 Fam LR 439 at [182].
The child already has a secure attachment to the father and he will be 5 ½ by the time the mother proposes to relocate. While the opportunities for physical interaction will be severely reduced, I am satisfied that the proposal of the mother for the child and father to spend time together and communicate at other times will enable the child to maintain a meaningful relationship with the father.
What is the practical difficulty and expense of the child spending time with and communicating with the father?
It is a long journey of about 25 hours between Sydney and Belgium including a 2 to 3 hour stopover in Dubai. During the Australian summer (when the mother proposes the child return to Australia each alternate year) air fares range from $2,000 to $2,500 return. The mother proposes to pay for the child and herself (until the child is at least 13 years of age) to travel to Australia. The mother also proposes to pay one half of the father’s return air fares to Belgium on three occasions each year.
The mother has worked for her current employer for about four years. It is an international firm and the mother anticipates that she would transfer her employment to Belgium. Given the mother’s income and earning capacity, it seems likely that she would be able to fund the air fares as proposed by her, particularly as she will no longer have child care costs in circumstances where public schooling is free in Belgium from the age of 3 and the maternal grandparents will be available to care for the child outside of school hours when the mother is working.
Despite the father’s historical failure to financially support the child I am satisfied, given the content of his Financial Statement and his history of making some contribution towards the child care costs, that he would be able to afford to travel to Belgium as proposed by the mother and to meet the cost of accommodation while he is in Belgium.
In addition, I note that the father has travelled to the Northern Hemisphere for work purposes in 2014, 2015, 2017 and 2018. His expenses were largely paid by third parties. Accordingly, there may be an opportunity for the father to travel to Belgium at times other than as proposed by the mother.
What is the likely impact on the mother of having to remain in Australia contrary to her wishes?
The mother first sought the father’s consent to her relocating with the child to Belgium in August 2018. She describes her then circumstances as follows:
208.… I was depressed, financially struggling and quite isolated from my friends and family. I made changes to my life in order to overcome some of these issues such as sell my car, finding a cheaper daycare centre for X, cancelling my subscription to the internet at home and my membership to the gym, limiting my other expenses on food, clothes and activities and asking my parents for financial support during these difficult times. Starting a new relationship with Mr N has helped a lot, but I still struggle significantly away from my friends and family. …
It is evident that the mother continues to struggle. She broke down during her evidence when describing the limitations that would inevitably be placed upon her financial ability to even visit her homeland and family in future, if she were unable to relocate. I accept that her presentation was genuine. It is certainly understandable. It is the mother’s expectation, given the history of this matter, that she will be largely responsible for meeting the financial needs of the child. I consider that expectation to be reasonable in the circumstances of this case. Indeed, the father conceded that his cash flow was either “feast or famine” and as such unreliable. In this context, I note that the father chose to repay his parents $15,000 rather than reimburse the mother for the child care costs he owed her. It seems, therefore, that even in times of “feast” the mother cannot rely on the father for financial assistance.
It is common ground that the cost of living in Sydney is high and the mother has struggled financially despite assistance from her family. Given her parent’s limited financial means, it seems unlikely that the level of support she has received to date will be able to continue indefinitely. Her financial struggles are only likely to exacerbate her feelings of unhappiness and desolation.
The mother has friends and a partner in Australia and is confident of obtaining permanent residency, but her long held desire has been to return to her homeland where she has family and close friends available to offer practical and emotional support that is unavailable in Australia. The fact that the mother maintains her wish to return home despite being in a relationship and having a good job and friends in Sydney demonstrates the strength of her attachment to her family and homeland.
The fact that the mother lived in places other than her homeland for significant periods of her adult life does not diminish her desire to live among family and friends as a first time mother.
Of course, the mother does not need to demonstrate any compelling reasons for wishing to relocate[12] but her reasons are relevant and her right to live where she chooses is a factor to consider, particularly where she is the unchallenged primary carer.[13] The mother’s wishes do not, of course, dictate the outcome of this case.
[12]AMS & AIF at 224, [190]–[192]
[13] Ibid
While I am confident that the mother would cope, to a degree, if she were required to remain in Australia, as she is clearly a high functioning and resourceful woman, it was clear from her presentation during the trial that her happiness will certainly be impacted if she is required to put aside her wish to return home.
As Dr Q, the family report writer, opined, if the mother is unable to relocate in accordance with her long held wishes she is likely to feel disappointed about how she perceives she has been treated (by the father) which in turn may create tension in the parental relationship which the child may well detect. Dr Q said in particular - “children are conduits to their parent’s anxiety so a parent who is anxious, sad, disappointed, a child will pick up on those emotions”.
In my view, even doing her absolute best to protect the child from her feelings of desolation, her emotional reactions are likely to have a detrimental impact on her parenting capacity, whether that is because of the child being exposed to her sadness or a deterioration in the relationship between the parents.
It is well recognised that the impact of a primary carer’s happiness, where there is sufficient evidence, may be a significant, if not determinative factor in deciding the ultimate question, i.e. what parenting order is proper, although it must be stressed that such a factor must be considered in the context of the paramountcy of the child’s overall best interests.[14]
[14] AMS & AIF at 208, [145] per Kirby J; Taylor & Barker (2007) FLC 93-345 at 81,922; McCall & Clark (2009) 93-405 at [132] – [135]; Hepburn & Noble (2010) FLC 93-438 at 84,848 – 84,853, [49] – [64].
Can the mother remain in Australia long term?
The mother moved to Australia in 2013 and her current visa is what is commonly referred to as a ‘457 visa’ which permits her to reside and work in Australia while she is sponsored by her employer. The mother has applied for and is confident of attaining permanent residency but there can be no guarantee.
Can the Court determine now whether or not it is in the child’s best interests to relocate when the mother does not propose to relocate until March 2022?
The mother’s original application proposed to relocate in March 2021 but after considering the opinion of the family report writer, the mother made a concession to delay her departure for a further year to further enhance the development of the relationship between the child and the father.
While I understand that predicting what may or may not be in the child’s best interests in March 2022 is not without some difficulty, the Court is constantly called upon to make decisions which involve prediction about future matters. As the High Court of Australia observed in CDJ v VAJ (No 1):[15]
Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order.
[15] (1998) 197 CLR 172 at 218, [151] per McHugh, Gummow, Callinan JJ
The child is very young at this stage and will only just have commenced formal schooling by the time the mother proposes to relocate to Belgium. I do not expect that the changes in the child’s life are likely to be so significant between now and March 2022 that they are impossible to anticipate. It is not in dispute that the child currently has a close and secure attachment to the father. However, while he has met his developmental milestones as described by the family report writer, his ability to retain his memory of the father during significant interruptions will be enhanced by a further period of two years of regular and frequent time together.
I do not consider that it is in the best interests of the child to leave the parents in limbo by making an interim order, as sought by the father (in the event that his proposal was not accepted). The parents need certainty, as does the child, in order to move on with their lives.
Do the parents have the capacity to make major long term decisions for the child jointly?
It is common ground that the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility applies.
The mother seeks to displace the presumption on the ground that it is not in the child’s best interests.
In circumstances where the parents have already demonstrated an ability to communicate and make decisions, including a major long term decision about the choice of school for the child, I struggle to see why the presumption would be rebutted.
It seems the mother’s case at its highest is that the father will not be present i.e. in the same country as the child, if she and the child relocate after March 2022, however, with the easy accessibility of electronic communication available to them I do not regard this as a sufficient reason to displace the presumption.
Accordingly, the parents will have equal shared parental responsibility for major long term issues as that term is defined in s 4(1) of the Act.
Conclusion – what parenting order is proper?
The child in this case is fortunate to have two parents who love him and want what is best for him. Despite the father being slow to adapt to parenthood and failing to meet his obligations as a parent at times, I am satisfied that the child will benefit from maintaining a meaningful relationship with both parents. Indeed, it is common ground that he should do so.
It is not in dispute that the child should continue to live primarily with the mother and spend gradually increasing time with the father.
In my view, requiring the mother to remain in Australia against her long held wishes is likely to cause her unhappiness and in turn affect her parenting capacity which would be detrimental to the child.
If the child relocates to Belgium, it will of course have a significant impact on the relationship he is able to have with the father, however, as the parents and the family report writer agree, the child is resilient and this augurs well for the ability of the child to maintain a meaningful relationship with the father despite relocation and reduction in frequency of face to face time. Further, the more time the child is able to spend with the father before he relocates, the greater the prospect of him being able to retain an image and memory of the father despite the inevitable reduction in face to face time. While electronic means of communication can be no real substitute for face to face time, regular communication by video link, e.g. Skype and the like, can at least enhance the prospects of the father/child relationship remaining meaningful.
While I acknowledge the family report writer’s reticence to support a proposal involving the child relocating, I gained the distinct impression that her focus, perhaps quite understandably, remained on the child retaining an optimal rather than a meaningful relationship with the father should the child relocate with the mother. It is well settled that what the Court is required to consider is the benefit to the child of maintaining a meaningful rather than optimal relationship with both parents.[16]
[16]Godfrey & Sanders [2007] FamCA 102; Sigley & Evor (2011) 44 Fam LR 439.
When assessing the prospects of the child maintaining a meaningful relationship with the father, if the child relocates, it is important to recognise that the mother has always fostered the child’s relationship with the father and the paternal family. I am also confident that the mother will ensure there is regular mention of the father in her household and that she will provide reminders for the child about the father, e.g. photographs, and that she will involve the father in the child’s life as far as possible e.g. share drawings and milestones with the father.
In my view, the child’s best interests will be met by him being able to live with the mother and, if she elects to do so, for the child to live with her in Belgium. A key factor in my decision is the impact on the mother, both emotional and financial, if she is unable to relocate, but coupled with that, is my satisfaction that the child will be able to maintain a meaningful relationship with the father should the mother relocate. It is to the mother’s credit that she now proposes to delay her departure to enable more time for the father and child relationship to develop. The next two years will enable the relationship to further strengthen and enhance the prospects of the child adjusting to extended periods of separation but, should the mother’s application for permanent residency fail and should she be required to leave Australia earlier than expected, the child’s best interests will nevertheless be served by remaining with the mother. As already noted, it is not in contention that the child should live primarily with the mother.
Although the mother intends to relocate in March 2022, I will make provision in the order for the child spending time with the father in the event that the mother ultimately elects not to relocate. In fashioning a proper parenting order in such circumstances I have taken into account the requirement to consider making an order for equal time or substantial and significant time. Given the father’s often unpredictable working patterns and the history of the mother’s primary care for the child I have determined that substantial and significant care would be in the child’s best interests if the child does not relocate.
As to the precise terms of the final parenting order, I have had regard to the various provisions of each party’s proposed orders and ultimately fashioned detailed orders incorporating parts from each party’s proposals which I consider to be in the best interests of the child. Neither party made submissions, of any substantial kind, about the benefits or detriments of adopting any particular provision in their respective proposed orders (other than as related to the significant issues for determination in this case).
Miscellaneous
The parties agreed that a notation should be included in any parenting order made by this Court, recording the father’s agreement and intention to pay one half of the child care costs while the child lives in Australia. Although the father was previously ordered to do so, it was conceded by both parties that the Court did not have power to make such an order in the absence of any application pursuant to Div 4 and Div 5 of Pt 7 of the Child Support (Assessment) Act 1989 (Cth).
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 23 April 2020.
Associate:
Date: 23.04.2020
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