EBSTEIN & HINDLE

[2018] FamCA 993

FAMILY COURT OF AUSTRALIA

EBSTEIN & HINDLE [2018] FamCA 993

FAMILY LAW – CHILDREN – RESIDENCE – where there are competing parenting proposals – where the mother wishes to relocate overseas with the child – where the father opposes the relocation - where the primary issue is whether it is in the best interests of the child to move overseas with the mother – where the child is ordered to live with the mother – where the mother is restrained from relocating internationally with the child – where the child is ordered to spend substantial and significant time with the father – where the child is able to travel overseas with both parents - where there were previous final orders made in the Federal Circuit Court of Australia – where the mother is able to meet the needs of the child and facilitate the child’s relationship with the father – where both parents and their respective partners have agreed to work together for the best interests of the child – where there were issues regarding the immunisation of the child – where the parties had been unable to agree on whether the child should be immunised

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – where the presumption of equal shared parental responsibility applies

Family Law Act 1975 (Cth)

APPLICANT: Mr Ebstein

RESPONDENT: Ms Hindle

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW - Newcastle Family Law

FILE NUMBER: NCC 3105 of 2010

DATE DELIVERED: 27 November 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 15-18 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Graham

SOLICITOR FOR THE APPLICANT: Joplin Lawyers

COUNSEL FOR THE RESPONDENT: Ms Flintoff

SOLICITOR FOR THE RESPONDENT: Denise Clark Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW - Newcastle Family Law

Orders

1. That all prior orders and parenting plans in relation X born … 2008 (“the child”) are discharged.

Parental Responsibility

1. That the mother and the father have equal shared parental responsibility for the long term care, welfare and development of the child.

2. That each party have sole parental responsibility for making decisions about the day to day care, welfare and development of the child during periods when the child is living/spending time with that parent except as otherwise provided in these orders.

Residence

1. That the child live with the mother in Australia.

2. The mother is restrained from establishing a residence for the child in Country B.

Spend time with and communications

1. That the child spend time and communicate with the father as follows, unless otherwise agreed between the parties:

   6.1During school terms:

   6.1.1Each alternate weekend from after school Friday until before school Monday with the father, or his nominee, to be responsible for collecting the child from, and returning the child to, school.

   6.2During holiday periods at the conclusion of Terms One, Three and Four:

   6.2.1Being the first half in odd numbered years; and

   6.2.2The second half in even numbered years.

   6.3During the holiday period at the conclusion of Term Two for the whole of the period in even numbered years and with the child to spend the whole of the period with the mother in odd numbered years.

   6.4For the purpose of these orders, the school holiday time shall commence:

   6.4.1When a parent’s time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5.00 pm on the day calculated to be half of the holidays;

   6.4.2When a parent’s time falls in the second half of the holidays from 5.00 pm on the day calculated to represent half of the holidays when contact shall end at 9.00 am on the day the school term commences;

   6.4.3School holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9.00 am on the day the child returns to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the mother shall retain the additional night;

   6.4.4On the weekend of Father’s Day (if a non-contact weekend) from 6.00 pm on the Saturday preceding to return to school on the morning after Father’s Day;

   6.4.5Time with the father is suspended if it falls on the weekend of Mother’s Day from 6.00 pm on the Saturday prior for the balance of the weekend.

2. That the child shall communicate with each parent when living/staying with the other parent at such reasonable times as the child requests but in any event on Sundays between 6.00 pm and 6.30 pm and in relation to such communication each party shall:

   (a)Ensure that the child is available to receive the telephone call;

   (b)Arrange for the child to telephone the other parent on the following night if, for any unforeseen circumstance, the child misses the call from that parent;

   (c)Ensure that the child have privacy during the conversation.

Changeover

1. In the event that a changeover is due when the child is not at school that changeover shall take place at the home of Ms C in Suburb D (for as long as Ms C is willing and able to facilitate that arrangement).

Immunisation

1. That within 7 days the mother must ensure that the child attends upon a suitably qualified medical general practitioner (“GP”) to obtain advice as to the immunisations recommended by that GP for the child in respect of her living in Australia and staying in Country B.

2. Within 7 days of compliance with Order 9 the mother must inform the father of the advice of the GP and the father is at liberty to discuss that advice with the GP.

3. The mother must, within 6 months, ensure that the child is given all the vaccinations and immunisations recommended by that GP.

4. The mother must, within 7 days of compliance with Order 11, provide the father with a copy of the child’s Certificate of Immunisation.

5. The mother is restrained from travelling to Country B with the child until compliance with Orders 11 and 12.

Airport Watch List

1. The father shall forthwith after he receives the Certificate of Immunisation referred to in Order 12 herein do all acts and things necessary to ensure that the child’s name is removed from the Australian Federal Police Airport Watch List.

Education

1. That each of the parents is restrained from changing the enrolment of the child (other than for progression to high school) from E Public School without the prior written consent of the other parent.

2. That the parties, or either of them, may provide to the principal of the high school which the child attends in due course, a copy of these orders.

International Travel

1. That when the child is spending time with a parent during school holidays, that parent shall be at liberty, during their school holiday time, to travel internationally and in relation to same:

   17.1The travelling parent shall provide the other parent with a copy of their itinerary for the trip including but not limited to departure and return times and dates; a contact telephone number for the travelling parent and the child and the address at which they will predominantly be based (provided that they will not be required to provide details of every address at which the child will stay) at least 28 days prior to scheduled departure;

   17.2Upon receipt of same the other parent shall forthwith release to the travelling parent the passport for the child;

   17.3The travelling parent shall then provide to the other parent a copy of the return air tickets for the child;

   17.4During the trip the travelling parent shall arrange for the child to telephone the other parent on at least one occasion in each week.

Exchange of Information

1. That the mother and father shall:

   18.1Keep the other parent informed at all times of their residential address and landline contact telephone number;

   18.2Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;

   18.3Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This order authorises any treating medical practitioner to release the child’s medical information to the other parent;

   18.4That during the time the child is with either parent, that parent shall:

   a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;

   b)Speak of the other parent respectfully;

   c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other person in the hearing or presence of the child.

Independent Children’s Lawyer (“ICL”)

1. That the ICL provide to the principal of E Public School a copy of these orders.

2. That the ICL, together with the Family Consultant, explain these orders to the child and answer any relevant questions she may have.

3. The ICL is thereafter discharged.

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 Ebstein & Hindle  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 NEWCASTLE

FILE NUMBER: NCC 3105 of 2010

Mr Ebstein

Applicant

And

Ms Hindle

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders in respect of one child, X, a girl aged nine and a half years at date of trial.

2. The parties are the parents of the child. They lived together for about two years between February 2008 and January 2010. The child was born during that period in 2008.

3. Accordingly, when the parties separated and the father moved out of the home, the child was about 15 months old.

The Parties

The Father

1. The Applicant is the father Mr Ebstein, aged 35, (“the father”).

2. The father is a works full-time. He lives in G Town, a town in the Hunter Region of New South Wales. His household consists of himself, his wife of four years Ms Ebstein, aged 36, and his wife’s sister Ms F, a student aged 18 years.

The Mother

1. The Respondent is the mother Ms Hindle, aged 46, (“the mother”).

2. The mother is not in paid employment; she provides care and supervision for the subject child.

3. The mother lives in Suburb J. Her household consists of herself and the child.

4. The mother is engaged to be married to a Country B national, Mr K, aged 25 years.

5. Mr K lives in Country B.

6. The mother is pregnant with the child of this relationship, due to be born in later this year.

7. The mother hopes to join her fiancé and live permanently in Country B if she is granted leave by the Court to establish a residence for the subject child in that country with her.

8. The mother intends to remain living in Australia if her application for relocation of the child is unsuccessful.

The Applications

The Father

1. The application of the father[1] sets out his proposals for:

   a)The child living with the mother in Australia; and

   b)The child living with him in Australia [with the mother living in Country B].

   [1] Amended Initiating Application filed by the father on 6/04/2018, Annexure A

2. The father did not set out his proposals for time and communication in the event that the child was living with the mother in Country B. This was a deficiency in his application being a failure to accept the possibility of the application of the mother succeeding.

3. The proposal if the child is in Australia with the mother:

   ·A restraint on removal from Australia without consent of the father;

   ·Mutual restraint on living more than 50 kms from the school which the child presently attends;

   ·Equal shared parental responsibility;

   ·Residence for the child with the mother;

   ·Time with the father:

   -on alternate weekends (Friday to Monday);

   -in each alternate week from Monday after school until before school Wednesday;

   -half school holidays; and

   -other special times.

4. If the child is in Australia living with the father:

   a)For the child to spend time with the mother as agreed between the parties but failing agreement on a minimum of four occasions per year for a minimum of two weeks on each occasion;

   b)Child to have telephone or FaceTime communication with the other parent at all reasonable times but at a minimum each Tuesday, Thursday and Saturday between 6.30 pm and 7.30 pm;

   c)Other restraints on conduct and specific issues, including provision of information regarding the health of the child and proposed travel.

The Mother

1. The mother put forward proposals only on the basis that the child would be living with her in Country B. Perhaps the mother anticipated that if the child could not move to Country B, current interim orders would become final. However, the mother did not set out proposals, and this, as for the father, represents failure to accept the possibility of the father succeeding in his application to restrain the mother from establishing a residence for the child in Country B.

Issues

1. The primary issue is whether it is in the best interests of the child to move with her mother from Australia to live in Country B with her mother, her mother’s partner and members of his extended family.

2. Other issues arising are:

   a)   Whether the parties or, either of them, has the capacity to support and encourage a relationship for the child with the other parent;

   b)     Whether the father has taken all available opportunities to spend time and communicate with the child;

   c)     Whether travel between the parents is practicable if the child does live in Country B;

   d)     Whether the child is exposed to a risk to her health if she remains unvaccinated as is presently the case.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant Father

   (a)Amended Initiating Application filed 19/01/2018;

   (b)Affidavit of the father Mr Ebstein filed 6/04/2018;

   (c)Affidavit of the father’s wife Ms Ebstein filed 6/04/2018;

   The Respondent Mother

   (d)Amended Response filed 6/04/2018;

   (e)Affidavit of the mother Ms Hindle filed 6/04/2018;

   (f)Affidavit of the mother’s fiancé Mr K filed 6/04/2018;

   Reports

   (g)Family Report of Ms L dated 20/11/2017;

   (h)Children and Parents Issues Assessment (“CAPIA”) dated 2/06/2017.

History of Relevant Events

1. The parties met in 2006 at the mother’s workplace. They began a romantic relationship in late 2007. Within three months the mother was pregnant with the subject child. On learning of the pregnancy early in 2008 the parties began living together and the child was born eight months later.

2. The father describes an unhappy relationship where he felt overborn and isolated.

3. The mother too describes an unhappy relationship characterised by family violence perpetrated by the father which the father denies.

4. In March 2010 the father moved to M Town in northern Queensland for work. The mother and child also moved to M Town for a few months.

5. The parties disagree about the reason for the mother’s decision to move to M Town. The mother says she was hopeful of reconciliation. The father, with reservations, accepted that the move would make it easier for him to maintain a good relationship with the child.

6. The father had already commenced a relationship with his current wife.

7. There were bitter accusations between the parties about whether or not the father’s partner was aware that the mother and child were living in M Town and whether or not the mother knew of the father’s new relationship.

8. I am unable to make a finding about that however the mother returned to Newcastle where she says she undertook counselling “which brought out the domestic violence that I had suffered.”[2]

   [2] Affidavit of the mother filed 6/04/2018, par 13

9. The mother later received a small payout from Victims Services as a result of psychological injury which she asserts she suffered arising from the relationship with the father.

10. On 24 April 2012 final parenting orders were made by consent in the Federal Circuit Court. Those orders provided for the child to live with the mother, the parties to share parental responsibility and for the child to spend time with the father in incrementally increasing periods culminating in two night weekends each third weekend of the month if the father returned to live in New South Wales and every second month if he remained living in Queensland.

11. By then the father was living in Western Australia where he had again moved for work.

12. Later that year in July 2012 the father moved from Western Australia back to Queensland, again for work.

13. In 2014 the father married his current wife.

14. In June 2015 the mother met her now fiancé on-line and subsequently travelled to Country B to meet him in person.

15. In February 2016 the father moved back to the Newcastle area to work.

16. In January 2017 the mother became engaged to Mr K.

17. On 10 March 2017 the father filed an Initiating Application in this Court on the alternative basis of either the child living with the mother if she remain living in Australia or living with him if the mother chose to live in Country B.

18. On 24 May 2017 the mother filed her Response seeking approval for the relocation of the child’s residence to Country B and for there to be block periods each year for the child with the father. The mother at that time filed a Notice of Risk alleging that the father had struck the child when she was an infant in 2009 and that she, the mother, had been the victim of family violence in 2010.

19. On 14 July 2017 the parties reached agreement on interim orders suspending the 2012 final orders and providing for the child to live with the mother and spend alternate weekends, half school holidays and special occasions with the father. Those orders have operated to date subject to amendments made on 12 September 2017.

20. On 13 November 2017 the parties attended on a Family Consultant for interviews and the report was released one week later.

21. The recommendations of that report were that the parties share parental responsibility, that the child live with the mother, that in the event the child lived in Country B she spend at least half the school holidays with the father and have scheduled telephone calls. In the event that the child lived with the mother in Newcastle it was recommended that the child spend a minimum of alternate weekends with the father and half school holidays. The child’s school was recommended as the handover point.

22. On 18 December 2017 the matter was listed for a four day trial in May 2018.

23. Between the dates of directions for trial and the commencement of trial the mother became pregnant with the child of her fiancé. The mother decided to give birth to the child in Australia.

24. The trial commenced on 15 May 2018 and was concluded within the allocated days.

Oral Evidence

The Father

1. The father presented as a committed father to the child.

2. He was responsive to questions but gave short answers in a terse tone.

3. He did not demonstrate an understanding of how difficult life had been for the mother as a sole parent for prolonged periods after separation when he was working interstate in Queensland and Western Australia.

1. He was quite critical of what he perceived to be her needy dependence during  their relationship but apparently had not turned his mind to what it would mean to the mother to be part of a family again, perhaps even with another child.

2. It is legitimate that he opposes the child moving away to live in Country B. However he did not appear to appreciate that the child was enthusiastic about going to live in Country B because she knew her mother was happy about going there.

3. The father made no effort to learn about Country B with particular reference to the affordability of travel and what his daughter’s life would look like if she did go. When he was asked if he had looked into flights between Sydney and Country B his answer was “No, I don’t want to go to Country B.”

4. This attitude of uninformed opposition extended to future travel for the child for visits if the mother was unable to relocate with her. “No I don’t agree, safety concerns.”

5. The proposition was put to him that the mother had taken the child to Country B five times before a restraint on overseas travel was imposed, on his application. He conceded that the mother had notified him of two trips but thought she could be lying about more trips than two.

6. The father also conceded that he had agreed to travel for the child in 2016 and had had no safety concerns then.

7. Early in the following year, 2017, two things happened. There was an earthquake/tsunami warning in Country B and the father was unable to make immediate contact with the mother for reassurance about the safety of the child. There is no doubt he was genuinely fearful.

8. The second thing was that the father learned that the mother had become engaged to a Country B man. He clearly feared that the mother would want to live in that country.

9. Unfortunately the relationship between the parties was not healthy enough for direct discussion between the parties of this development in the mother’s life and its implications for the child.

Proceedings commence

1. On 10 March 2017 the father filed an Initiating Application proposing that the child live with him if the mother moved to live in Country B.

2. It is apparent that the mother was offended by the inference in the application that the mother would leave her daughter in Australia if the child was not permitted to go with her.

3. The relationship between the parties deteriorated further as a result.

4. During the trial the father was trenchantly critical of the mother.

5. He had expressed himself in June 2017 to a Family Consultant in strong terms. He was highly concerned for the child’s emotional well-being. He described the mother as a pathological liar and a narcissist, an irrational “unhinged” person who had ruined his life. There was more in the same vein, some of which he resiled from during cross-examination.

6. When challenged about the 2012 orders by consent for the child to live with her mother, the father said his legal advice compelled him to agree although he did not believe the child would be safe and had not genuinely consented.

7. This evidence is inconsistent with the father then moving far away and also with a period of four years, until 2016, when he did not see the child very often at all, certainly less often than the orders provided.

8. Finally, in his Amended Initiating Application the father proposes that the child live with the mother if the mother remains in Australia.

9. I infer that the father considers that the mother will be able to meet the child’s needs even in a state of feeling emotionally thwarted in her wish to live in Country B with her fiancé, the father of her child to be born.

10. The father has an immature side. He conceded that he had told the child that the mother had been unkind to him in the past and excused himself by saying he was “just being honest”.

11. The father agreed that he had a positive relationship with the child but firmly denied that any credit was due to the mother on that account.

12. On those bases I discount the evidence of the father that the child is at risk in the care of the mother.

The Father’s Wife – Ms Ebstein

1. Ms Ebstein presented as a sensible and straightforward witness.

2. In the early stages of her relationship with the father she moved to North Queensland to be with him.

3. An accidental meeting with the mother lead to escalating trouble until an interim Apprehended Violence Order was put in place. The order did not become final because the two women sensibly agreed to stay away from each other.

4. They are now often both present at changeovers.

5. I accept as genuine the expressed wish of Ms Ebstein to be on good terms with the mother:

   I’m her daughter’s step-mother. We should get on, be able to attend events together. It would be better for the child.

6. I had the impression that Ms Ebstein understood that the child played down her enjoyment of weekends with the father to the mother, and more importantly why she might do that that.

The Mother

1. The mother presented as a responsive witness capable of passionate stances.

2. She is whole hearted in her feelings and actions and is probably considered unconventional.

3. Post-separation from the father the mother attended his workplace in an attempt to woo him back with statements from the heart on a placard and flowers.

4. She was shocked by events in Northern Queensland in 2010 when she unexpectedly encountered the father’s now wife and realised that reconciliation between herself and the father was out of the question.

5. In cross-examination she adhered to her then statement to police that she was “scared for her life and the life of the child...that she had a security guard...he [the father] could come and take my child at any time.”

6. I conclude that emotional distress for the mother leads to her making dramatic and sometimes hyperbolic statements.

7. The mother experienced Post-Natal Depression after the birth of the child. She is averse to taking prescribed medication, so struggled with depression relying on Triptophan (an amino acid) and exercise.

8. There is no doubt that the mother was conflicted about the relationship between the child and the father. She resented the father’s absence from New South Wales and his erratic attendance for time with the child. She wanted him to live closer, to comply with the orders, to be on time and attentive. When he did come to see the child she was angry with him and chipped him about minor issues.

9. From 2011 there was a scratchy relationship between the parties. Only since 2016 has it improved. To the credit of the mother the child enjoys her relationship and time with her father.

Vaccination

1. One clear example of how the parties relate as parents is the issue of immunisation of the child. The father was not immunised as a child, although he became so in 2011. The mother asserts, and I accept, that she did not have strong views about it when the child was born but came to an agreement with the father that the child would not be immunised.

2. The father now has a different view, strongly held, that immunisation is essential for the child particularly if she lives in or visits Country B. The father pointed to documented outbreaks of meningococcal disease in Country B.[3]

   [3] Exhibit 8 & Exhibit 9

3. The mother has fiercely adhered to the agreement not to vaccinate. She has also become concerned about vaccination aggravating allergies for the child.

4. A doctor was consulted by the mother in 2015 for Exemption from Vaccination.[4] The doctor advised that there were no contra-indications and that on balance, benefits of immunisation outweighed risk. The mother was at that time unpersuaded.

   [4] Exhibit 17

5. The father proposed an order for sole responsibility for himself on this issue.[5] The issue does require resolution.

   [5] Exhibit 23

6. However the mother revealed she is now more open to the benefits of protection from illness through vaccination. She should have the opportunity to arrange a vaccination program so it does not become contentious and unpleasant for the child. That way the child will understand that her parents have agreed on that course of action.

The Mother’s Fiancé - Mr K

1. Mr K presented as an honest and upright man, committed to the mother and her daughter the subject child.

2. He was asked about his willingness to move to Australia to live. It was obvious that he had considered the possibility but rejected it for the reasons he gave. Those reasons were that he had no qualifications to work in Australia, “I couldn’t work here, I’d like to support [Ms Hindle] and the family.”

3. Further he lives with his parents, always has, and works full time in the family business in Country B.

4. I had the impression that for Mr K, leaving Country B to come to Australia to live, even if he could find suitable work here, would be letting his parents and extended family down.

5. I also had the impression that the mother understood his sense of family loyalty and appreciated it.

6. Ultimately, Mr K stated that if the mother the subject child and his child, yet to be born, had to stay in Australia “I’ll have to come here too”. Of course, his clear preference was for the mother to live in Country B.

The Family Consultant

1. During her cross-examination the Family Consultant identified areas of concern about the child moving to live in Country B.

2. This was in the context of having assessed the child to be confident, intelligent and quite willing to talk about her family, but also heavily reliant upon the mother’s opinion.[6]

   [6] Family Report dated 20/11/2017, par 138

3. The nominated areas of concern represented a realistic summary of risks and benefits for the relocation of the child.

4. First, the Family Consultant noted that if the relationship between the mother and Mr K struggled or failed, the child would be vulnerable.

5. That must be the case. It is an agreed fact that the child has only experienced holidays in Country B, staying with her mother in resort style hotels. Unsurprisingly, she has enjoyed that experience.

6. However she has not lived in the village of Mr K. There are many members of his family living there, which would likely be a good source of company and support for the child which may or may not continue if the relationship between the adults soured.

7. The Family Consultant reported that both the mother and her partner had idealised views of the mother and child coming to live in Country B. Neither were able to engage with the possible challenges.

8. The evidence supports that assessment. In particular the mother glossed over the cost of travel proposed by her, for the child and herself in order to maintain the relationship for the child with her father.

9. Mr K had no knowledge of the cost of the international school which the mother was proposing for the child although he wanted her to go there “We’ll afford to get the child to international school.”

10. Further that the child had an idealised view of Country B based on her experiences. If reality did not live up to her ideas she might feel let down by her mother.

11. The child was described as naïve about her expectation that her friends from school would come to visit in Country B.

12. Given that the Family Consultant assessed the mother to be “desperate to go to [Country B]” I accept that the mother has influenced the child to share that desire.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Parental Responsibility

1. All of the parties, including the ICL, hold the view that it is in the best interests of the child for the parties to share parental responsibility.

2. I agree that the parties are competent parents who have over the last two years begun to work together.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. The child has a meaningful relationship with both her parents and will benefit from maintaining those most important relationships.

2. I accept the opinion of the Family Consultant that the child had a limited relationship with the father in her early years which has developed since he has spent more time and moved to her local area. I also her accept that the relationship will continue to strengthen if the child remains in Australia.[7]

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

[7] Family Report dated 20/11/2017, par 151

1. As a very young infant the child was probably exposed to angry arguments and verbal slurs between her parents. She was conceived before her parents had had sufficient time to understand that they were incompatible partners. They began living together for the sake of the child to be, and stayed together for two years for the same reason.

2. The mother experienced Post-Natal Depression and felt unsupported by the father. She describes the father punching, kicking, pushing and choking her. The father denies that he did so. The mother pressed the father to return to the relationship when he withdrew from it, moving to North Queensland when the father did in the hope of reconciliation. That she did so does not rule out the possibility of physical violence having occurred. Rather I am simply unable to make a finding. The mother did not make any complaint or report until after the relationship was definitely defunct.

3. The father experienced an emotionally unpredictable partner who wanted him to stay home more but could be demanding and emotionally aggressive when he was there. The father felt isolated and overwhelmed. When he found a new partner he alleges that the mother threatened her.[8]

   [8] Affidavit of the father filed 5/4/2018, par 16

4. Now both parties and the father’s wife have recovered and wish to work in a pragmatic way to make good decisions for the child.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. When the child was seen by the Family Consultant she was nine years old, in Year 3 of Primary School.

2. She was assessed as a confident intelligent child enjoying both the academic and social aspects of school.

3. As to her views the Family Consultant was clear to say that the child was heavily reliant on her mother’s opinion and would wish to take up her mother’s suggestions.

4. The mother genuinely wants to go to Country B and has been full of happy anticipation about a new life there. Naturally the child is affected by not only her mother’s wishes but her positive mood.

5. The child has accepted the view of the mother that the father moved closer to the child to prevent the mother going away.

6. The child stated that she would be “very upset” if she was not permitted to move to Country B.

7. It is quite clear that the child is contented with her life, has friends at school, enjoys playing netball, loves her family, including both her parents.

8. Accordingly, I conclude that the child believes that she will be upset, but if her mother copes with not moving away the child will continue to be happy and settled in the life she has. I give little weight to the expressed view of the child about moving to Country B which I attribute to the close loving relationship she has to her mother and not to an informed independent wish.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The child has strong relationships with both sides of her extended family. Her maternal grandmother would spend time with her wherever she lived. She strongly supports what she characterises as the freedom of her daughter [the mother] to move.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The mother has been the primary carer of the child all her life and has made decisions about her long term interests with or without input from the father.

2. Between 2012 and 2016 the father withdrew from co-parenting which he could not see ever working well. Rather than persisting with  fractious encounters with the mother he stepped back. That was detrimental to building a relationship with the child but did protect her from parental conflict.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The father pays substantial child support of $400 per week.[9]

   [9] Affidavit of the father filed 5/4/2018 par 116

2. The mother proposed at one point giving up child support if the father would agree to relocation. To his credit the father did not take up the offer.

3. The mother herself described such a plan as a “desperate act”.

4. Financial support is a very real issue in this case. If the child was living in Country B Child support would be used up for air fares. The mother would not be working in Country B although she has worked in that country in the past. She will have a new baby in November. Her husband-to-be cannot support the family, pay for travel to Australia for mother and children and for the attendance of the subject child at an international school proposed by the mother.

5. The mother and Mr K do not yet have a house to live in although are welcome to stay with Mr K’s family. He himself lived in a home other than that of his parents briefly as a student and was overwhelmed by missing them.

6. The mother cannot afford to do all that she proposes.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. This is a most significant matter. A move to Country B would disconnect the child from her father and stepmother, her school, her friends and her sporting and other activities.

2. She would be living in Mr K’s village. He would be working. Her mother would be caring for the new baby. Where exactly she would be living and with whom is uncertain.

3. Where she would go to school and how she would get there are quite uncertain.

4. Even more uncertain is how often she would be able to travel back to Australia to visit. That would be determined by what the mother and her partner could afford.

5. I have no reason to doubt that the child enjoys the company of the mother’s partner and looks forward to trips to Country B. She does not yet speak Country B but could probably learn quite quickly.

6. In the event of stress or conflict between her mother and Mr K the child would have no obvious person to turn to.

The practical difficulty and expense of a child spending time with and communicating with a parent

1. This too is a significant matter. School holiday times are peak times for travel. The child is too young to travel unaccompanied. The mother has minimised the significance of the practical aspects of relocation.

2. Even communication is somewhat uncertain. If the mother was living with her partner’s family she would be constrained by what was practical and affordable in that household.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. Each has the capacity to make long term decisions about matters such as her education, health and religious instruction.

2. The proposal of the mother is that if the child is unable to live with her in Country B then the mother will remain living in Australia. At considerable emotional cost to herself the mother has acknowledged by that position that as the lifelong primary carer of the child, emotional harm to the child would result from significant separation from the mother.

3. The father stayed away from the child for several years, visiting just enough to sustain the relationship. I accept that this was not through lack of interest or affection as happily for the child, since the return of the father in 2016 that relationship has deepened and developed.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. The mother has provided unfailing care for the child.

2. The father has had the child in mind and hoped for a deeper relationship in time.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. In retrospect the mother came to see her relationship with the father as one fitting within the definition of family violence.

2. The mother alleged that the father grabbed her by the throat, choking her and punching her on the arms. The father denies those allegations.

3. The mother herself in 2010, defended the father vehemently in a written statement retracting a complaint made by her which gave rise to a provisional Apprehended Domestic Violence Order being made.[10]

   [10] Exhibit 13

4. She described herself as set out in some excerpts below, referring to the time after separation when she gave the statement to police:

   I suffer from having become angry due to my hormones being out of wack (sic) since I got pregnant.

   Had been suffering PND and anxiety panic attacks over the last 16 months.

   I was the aggressor on the day not allowing [Mr Ebstein] to leave the premises.

   The report also stated that he picked up the child and pushed her into me and that the child at this time cried hysterically. This also isn’t true she was crying and he picked her up, kissed her gave her to me I was still crying hysterically and he said you stupid fucking bitch just let me go, if you don’t you will never see me again.

5. There is no doubt that the mother did not want the relationship to end and did everything she could to stop the father leaving.

6. The child was an infant. She was exposed to physical restraint and resistance between her parents with loud, angry, abusive language. That conduct was reactive to separation and the pressures of separation under the one roof. It has not continued.

Conclusion

1. The orders provide for the parents to equally share parental responsibility for long term issues and for the father to have substantial and significant time with the child.

2. The structure is there for the relationship to deepen and be fully restored.

3. Significantly the orders also provide for international travel for the child with each parent.

4. In the event that the mother’s partner does come to Australia to live the mother and child can travel back with him to visit his family as often as they can afford to go.

5. In the event that the mother’s partner remains living in Country B, the mother and child can travel to visit him there during school holiday periods and the mother, with her new baby, can travel to Country B while the subject child is spending holiday time with her father. In addition of course to Mr K coming to stay in Australia when he can.

6. Orders are made accordingly.

I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 27 November 2018.

Associate:

Date:  27 November 2018