FERRANTE & GUILIANI
[2016] FamCA 1042
•5 December 2016
FAMILY COURT OF AUSTRALIA
| FERRANTE & GUILIANI | [2016] FamCA 1042 |
| FAMILY LAW – CHILDREN – Relocation – Contested Application to relocate internationally with the child – Where mother seeks to relocate to New Zealand in order to live with new partner and new partner’s family – Practicality of proposed spend time arrangements where international relocation is contemplated – Where father argues that the nature of his relationship with the child will change at a fundamental level if the relocation is permitted – Meaning of “substantial and significant time” – Relocation permitted. FAMILY LAW – PRACTICE AND PROCEDURE – Application by the father for leave to adduce further evidence – Application refused. | |
| Evidence Act 1995 (Cth), s 140 | |
| AMS v AIF (1999) 199 CLR 160 |
| APPLICANT: | Ms Ferrante |
| RESPONDENT: | Mr Guiliani |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 2031 | of | 2015 |
| DATE DELIVERED: | 5 December 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 8, 9, 12, 13, 14 & 15 September 2016 and 5 December 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Maxwell Grant |
| SOLICITOR FOR THE APPLICANT: | CE Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Olyvia Nikou QC (on 8, 9, 12, 13, 14 & 15 September 2016) and Mr Christopher Arnold (on 5 December 2016) |
| SOLICITOR FOR THE RESPONDENT: | Bentleys Barristers & Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Paul Glass (on 8, 9, 12, 13, 14 & 15 September 2016) and Mr Daniel Piekarski (on 5 December 2016) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
IT IS ORDERED THAT
The father’s Application in a Case filed 1 December 2016 be dismissed.
All previous parenting orders be discharged.
BY CONSENT IT IS ORDERED THAT
The parents have equal shared parental responsibility for the child B born … 2007 (“the child”).
The child live with the mother.
IT IS ORDERED THAT
From 21 December 2016, the mother be permitted to relocate with the child to City C, New Zealand
After the mother and the child relocate to New Zealand, the child spend time with the father:
(a)For one weekend every month alternating between the child travelling to Australia to spend time with the father on Thursday and returning to New Zealand on Sunday, unless otherwise agreed, in one month and the father spending time with the child in City C for no less than from 9.00 am Saturday until 5.00 pm Sunday in the other month;
(b)During the New Zealand school holidays, by agreement but failing agreement:
(i)for the second half of the school holiday period occurring between term one and term two;
(ii)for the entire school holiday period occurring between term two and term three; and
(iii)for the second half of the school holiday period occurring between terms three and term four;
BY CONSENT
(c) In the long-term summer holidays;
(i)for the last three weeks in the 2016/2017 years and each alternate year thereafter; and
(ii)for the first four weeks in the 2017/2018 years and each alternate year thereafter;
with the long-term summer holidays to commence the second day after the school term concludes and to conclude the second day before the school term commences.
IT IS ORDERED THAT
After the mother and the child relocate to New Zealand, the father’s time be suspended by agreement, but failing agreement:
(a)For the first half of the school holiday period occurring between term one and term two;
(b)For the first half of school holiday period occurring between terms three and term four; and
(c)In the long-term summer holidays:
(a) for the first three weeks in the 2016/2017 years and each alternate year thereafter; and
(b) for the last two weeks in the 2017/2018 years and each alternate year thereafter;
with the long-term summer holidays to commence the second day after the school term concludes and to conclude the second day before the school term commences.
For the purposes of paragraphs (6) and (7):
(a)the parties arrange for the child to travel as an unaccompanied minor;
(b)the parties each pay for half of the child’s return airfares between Melbourne and City C airport;
(c)the mother arrange at her expense the child’s transport between her residence and City C airport;
(d)the father arrange at his expense his transport including airfares to and from City C airport;
(e)if either party is not personally transporting the child to or from the airport, they notify the other party in advance who will be doing so.
After the mother and the child relocate to New Zealand:
(a)the child communicate with the father by telephone, FaceTime or Skype three times weekly:
(i)on Monday, Wednesday and Friday at 6.00 pm Australian Eastern Standard Time;
(ii)at any other time the child wishes to communicate with the father; and
(iii)at other times as may be agreed between the parties;
(b)for the purposes of that communication, the mother arrange for the child to telephone the father on a phone number provided by the father, unless the father notifies the mother of his preference to communicate using FaceTime or Skype, in which case the mother will ensure that communication by that means occurs at the specified time.
When the child spends time with the father, the mother may communicate with the child at the same times and in the same way as the father when the child is with the mother pursuant to paragraph (9) of this order.
BY CONSENT IT IS ORDERED THAT
Each of the mother and father be permitted to travel overseas with the child during any period that they are spending time with the child subject to and conditional upon:
(a) the travelling parent providing in writing to the other parent:
(i)not less than 30 days prior to the intended departure date notice of the following:
A.the countries to which the child will travel and with whom the child will travel together with a comprehensive itinerary including the airline;
B.the intended destination being a signatory country to the Hague convention;
C.a contact number upon which the child and the travelling parent may be contacted;
D.the address at which the child shall reside;
(ii)not less than seven days prior to departure provide:
A.a final itinerary for the child and accompanying travellers;
B.the date of the child’s departure and return; and
C.the travelling parent providing the other parent with a copy of the child’s return travel tickets.
IT IS ORDERED THAT
The father and mother do all such acts and things and sign all such documents to ensure the child has a current Australian passport at all times.
The parties provide a copy of these orders to any school which the child may from time to time attend.
The mother do all such acts and things and sign all such documents to request and authorise any school at which the child attends from time to time to provide copies of all reports, notices, information, newsletters, photographs, invitations for parent teacher interviews and other information relating to the child’s education to both parents at the expense of the mother if any.
The mother and father both be permitted to attend all school activities including school concerts, school plays, excursions, parent teacher interviews and events usually attended by parents.
Each parent give all necessary consents and authorities to enable the other parent to obtain information concerning the child’s education, healthcare and extra- curricular activities in Australia or New Zealand.
The parents shall immediately inform the other of any serious illness or injury sustained by the child whilst in their care and further provide any particulars of any treatment received by the child together with the name and address of the treatment provider and/or location at which the child is a patient.
The parents shall each make available to the other any medication prescribed for the child to enable the other parent to administer such medication to the child and the other parent shall thereafter administer the medication as prescribed or required in the medication shall pass between the parents so as to ensure that it is in the possession of the parent with whom the child is living or spending time.
Each parent shall notify the other with no less than seven days prior written notice and particulars of any change of residential address, telephone number, email address or other contact details.
All extant applications be otherwise dismissed and the matter be removed from the list of pending cases.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS DIRECTED THAT
All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
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 Ferrante & Guiliani 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 MELBOURNE |
FILE NUMBER:
| Ms Ferrante |
Applicant
And
| Mr Guiliani |
Respondent
REASONS FOR JUDGMENT
This is a finely balanced case where the parents of nine year old the child are litigating about whether it would be in her best interests to relocate with the applicant mother from Melbourne to New Zealand. There is unchallenged evidence that the child enjoys a close and loving relationship with each of her parents.
The mother’s fiancé is a New Zealand citizen who lives in New Zealand with his three children from a previous marriage. The mother and the child lived with her fiancé and his children in Australia for about 3 months until November 2014 when he moved with his children to New Zealand due to work commitments. Since then the mother and the child have regularly stayed in New Zealand with the mother’s fiancé and his children during weekends and holidays.
The father has re-partnered and was married in 2015. At the time of trial his wife expected to give birth to their first child within the month. He opposes the child’s relocation.
B (the child) has always lived with her mother but spends time with her father for five nights per fortnight and for one half of the 2016 term school holidays under interim consent orders made 29 February 2016. Those orders also provide for the child to travel to New Zealand with the mother for short periods during March, May, July, September and November 2016.
Before those interim orders were made there were no orders because the parents had a good post separation parenting relationship and the child spent regular time with the father. The mother was born in South America and has frequently travelled there with the child to visit her family and it is not in issue between the parties that this will continue.
The parties are in agreement that there should be equal shared parental responsibility for the child, and that the child should live with the mother.
Should the mother be unsuccessful in her proposal to relocate with the child, she conceded that she would continue to live in Melbourne with the child. In that event she proposed that the father spend time with the child in accordance with the current regime. This aspect of the case does not amount to a proposal but represents the reality that the child has lived with the mother since birth and the mother would not abandon the child. The father does not seek a change of residency for the child.
At the outset of the trial the Independent Children’s Lawyer did not have a preliminary view. At the conclusion of the trial the Independent Children’s Lawyer supported the mother’s proposals with some minor changes to which the mother agreed.
In the event that parenting orders should be made to permit the child to relocate, the mother, supported by the Independent Children’s Lawyer, proposed that the child spend time with the father for one weekend every month alternating between the child travelling to Australia to spend time with the father on Thursday and returning to New Zealand on Sunday unless otherwise agreed in one month and the father spending time with the child in City C for no less than from 9.00 am Saturday until 5.00 pm Sunday in the alternate month.
For term holidays the mother supported by the Independent Children’s Lawyer proposed that the child spend time with the father for the second half of the school holiday period occurring between term one and term two, for the entire school holiday period occurring between term two and term three, and for the second half of the school holiday period occurring between terms three and term four.
The proposal for weekends is that the child leave Australia to return to New Zealand about midday on Sunday to allow for travel time. It was ultimately not in dispute that the air travel time is about 3 and a half hours from Australia to New Zealand and about 4 hours from City C airport to Melbourne (Father’s exhibit 2).
The father opposed the relocation of the child and sought that the spend time arrangements under the current interim orders continue.
In the alternative should relocation be permitted, he proposed that the child spend time with him as follows:
·for each of the term holidays such time in Australia;
·for Christmas/long vacation in 2016/2017 and each alternate year thereafter from 15th day after term 4 finishes until 2 days prior to term 1 commencing such time to be in Australia;
·for Christmas/long vacation in 2017/2018 and each alternate year thereafter, from the first day of the holiday until the 28th day of such holidays such time to be in Australia;
·for no less than from 9.00 am Saturday until 5.00 pm Sunday on one weekend in March and November in each year such time to be in New Zealand and the father to travel to New Zealand for this time at a weekend to be nominated by the father 4 weeks in advance; and such other or further times as the parties may agree.
The father sought that the child communicate with him by telephone, FaceTime or Skype three times weekly as follows:
·on Monday, Wednesday and Friday at 6.00 pm Australian Eastern Standard time;
·at any other time the child wishes to communicate with the father;
·at other times as may be agreed between the parties.
The father proposed that the mother be responsible for the cost of the child travelling from New Zealand to Melbourne and returning to New Zealand for all school holiday periods and that the mother accompany the child until the child is 12 years of age. He proposed that the child’s travel expenses be paid by the mother and sought conditions on international travel outside of New Zealand for both parties.
The father sought other orders which were ultimately agreed between the parties.
At the conclusion of the trial, the parties and Independent Children’s Lawyer agreed to the arrangements for the child to spend time with the father over the long summer vacation (for the last three weeks of the 2016/2017 long summer holidays, with those holidays to commence on the second day after the conclusion of the school term and to conclude on the second day before the commencement of the new school term) and for the child to travel to New Zealand with the mother from 7 to 9 October 2016 and from 2 to 4 December 2016. Orders by consent were made to this effect.
Background
On all the evidence I am satisfied on the balance of probabilities of the following background facts.
The parties were married in 2003, separated on 24 December 2009 and divorced on 24 May 2015. The child is the only child of the marriage and was born in 2007.
The mother was born in South America and arrived in Australia in July 2001. The father was born in Australia. The parties began a relationship in October 2001.
The parties separated around December 2009 and lived separated under one roof in Australia until around July 2010 when the mother left with the child to live in a separate home. The child lived primarily with the mother.
The parents lived in close proximity, living next door post separation for about two years.
Final property orders were made by consent on 2 May 2016.
The father remarried in 2015 and at the time of trial was anticipating the birth of the first child of that marriage. The child has a good relationship with the father’s new wife Ms D.
The mother began a relationship with her fiancé Mr E in June 2013 and lived in Melbourne with him and his three children from a previous marriage from August until November 2014 when he moved to New Zealand because of work commitments. Since then, the mother and the child have been travelling regularly to New Zealand on weekends to stay with Mr E and his children, with whom the child has a good relationship.
Post separation, the child spent regular time approximately one or two nights per week with the father. She also spent longer periods of time with the father from time to time.
There had been no formal parenting orders since separation until interim orders were made by consent on 29 February 2016 when the child began to spend 5 nights per fortnight with the father.
Interim orders made in February 2016 provided for the child to spend time with the father for half of the school holidays at times to be agreed, and failing agreement, at the following times:
·From 3.30 pm 1 April 2016 to 3.30 pm 8 April 2016;
·From 3.30 pm 24 June 2016 to 3.30 pm 1 July 2016; and
·From 3.30 pm 16 September 2016 to 3.30 pm 23 September 2016.
Evidence
The documents relied upon by each party are listed in Annexure A. A number of Exhibits were tendered by each party. The parents, the mother’s partner, the mother’s psychoanalytical psychotherapist, the father’s partner and the family consultant were cross-examined. The expertise of the psychotherapist was not challenged; nor was the expertise of the family consultant.
Standard of Proof
The relevant standard of proof is the balance of probabilities. Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.[1]
[1] Evidence Act 1995 (Cth) s 140.
Evidence of the family consultant
A family report was prepared by clinical psychologist Mr F and dated 9 November 2015.
Each parent was interviewed with their partner. The child was interviewed individually and in the company of her parents and their respective partners on 21 October 2015.
The writer noted that the parents previously had a solid post-separation parenting relationship and both parents emphasised a general history of co-parenting well, which has contributed positively to the child’s wellbeing. The relocation application has introduced tension into this relationship as the father believes the proposed move is not in the child’s best interests. The reality of the post-separation relationship was evident in the waiting room behaviour between the parties, which was polite, respectful, courteous and mindful of the child.
The report writer noted that the father conveyed a sense of fear, even panic, at the idea of the child moving to New Zealand and saw it as an unnecessary risk given how well the child is doing in general and the current positivity of their relationship. The father mentioned that if the child remained in Australia he hoped to see her for six nights of a fourteen night cycle, but was unable to consider the possibility of what should happen if the child was permitted to relocate.
B presented as bright, articulate and personable and related warmly, easily and effortlessly with the father, his wife, and equally affectionately, warmly and cooperatively with the mother, interactions that were “every bit as impressive and reassuring” as those with the father.
The mother’s partner moved to New Zealand for career reasons and the mother told the report writer that she wished to build a future for herself and the child with her partner and his children. The mother emphasised that after the parties separated she had returned from South America to Australia with the child to facilitate the child’s relationship with the father. The mother referred to her own experiences as the child of divorced parents who lived a distance from each other and noted that she had maintained a positive relationship with her father despite him living a distance from herself and her mother. The mother told the report writer that she had struggled with the issue of possible relocation with the child for six months before reaching the decision to pursue relocation. She told the report writer that she and her fiancé would welcome the father and his wife staying with them in New Zealand if necessary, to use their car, and noted that they had spoken to a neighbour in New Zealand who owns a guest lodge and who might be able to offer reduced accommodation rates to the father.
The mother acknowledged the importance of the child’s relationship with the father but regarded herself as the child’s primary carer. She noted that she would remain in Melbourne if the Court determined that the child could not relocate. She emphasised the importance to the child of relationships within a more traditional family unit including Mr E and his children as well as financial security, and believed she was not able to provide the child with the same quality of life and experience here as she would in New Zealand. In New Zealand the mother hoped to obtain part-time work in order to be more available to the child after school and in her curricular and extra-curricular activities.
The mother had spoken to the child and believed the child would like to move to New Zealand. The mother acknowledged that the child wishes to be sure that her father remains present in her life. The report writer noted that the mother’s intentions seemed genuine, although she probably underestimated the significance and influence of her own strongly held feelings.
The child described her reason for meeting with the report writer as that she “would be moving to New Zealand” with the mother and the parents thought it was important to discuss how she felt about things and ensure it was the right decision. She was ambivalent about the move but saw positives in living in a family with Mr E and his children and expected that the mother would work reduced hours and be more available for her after school. She said it would be sad not to see the father but was sure she would maintain a close relationship with him through frequent phone and Skype conversations and visiting as regularly as possible. Psychological assessment of the child was unequivocally positive. She saw good and bad points to the move and said it was something that worried and confused her. She was aware the father did not want her to go and she would also experience sadness if she moved. When asked about the best solution, she said it would be for the mother’s partner to return to Australia or for the father and his wife to come to New Zealand. Despite spending more time with the mother, it was the report writer’s impression that the child has an equally strong and significant relationship with both parents and that in different circumstances either parent could fulfil the primary role of carer with her psychological health continuing unaffected.
The report writer was of the view that if the relocation did not occur, the strained nature of the relationship between the parties might escalate for a period, although he hoped that it would repair in time. However he opined that it is a real possibility that it will become difficult and strained and that the previous protective flexibility will no longer exist for the child, which could result in a substantial negative impact on the child.
Conversely the family consultant considered that if the move proceeded, the psychological impact upon the father, as well as the resultant strained relationship between the parents, might have an equally negative effect.
Mr F’s conclusion was that both parents’ positions have merit and the child has an equally very strong relationship with both parents. The father believes that the move would herald the first step in a growing distance between himself and his daughter and cannot see how such a move could be in her best interests, as well as being concerned about disrupting her current happy and well-adjusted state with her network of friends, family and activities. The mother believes the move offers both herself and the child the best opportunities, and the mother’s partner is a positive and significant figure in the child’s life and she relates well to him, has a good relationship with his children and looks forward to living in a more traditional nuclear family situation. The report writer found the mother’s actions to be true to her words in terms of maintaining the relationship between the child and the father and returning with the child to Australia when she could have remained in South America. The report writer thought it extremely likely that in the event of relocation, the mother would continue to support and encourage the child’s relationship with the father and ensure it progresses as well as possible, although the move would significantly and fundamentally affect that relationship.
Mr F concluded: “The inevitable conclusions that can be drawn in relation to this matter are that the child is old enough to make the relocation and still maintain a strong psychological connection to her father. She is old enough to be able to have regular and meaningful communication with him, she is old enough to be able to travel to and from New Zealand on her own and she is old enough to be able to hold her father in her psychological world in a manner that maintains his equal prominence.”
Mr F continued:
It is also unequivocally and equally true that the move … will have a significant and indelible impact on [the child’s] relationship with her father. [The father] has been actively and intimately involved. He is close and connected to his daughter in an intimate manner. They have an excellent relationship. He recognises that [the child’s] welfare has to a very large extent been influenced by the positive relationship that he and [the mother] have been able to maintain but also in part, her welfare is a function of both he and [the mother] having been intimately involved in her life. He cannot understand how [the child’s] best interests could be served if she was allowed to move and he does not consider himself to be any less important in the child’s life than her mother.
The report writer says there is some basis to the father’s arguments and notes that the mother’s assurance that she will not move without the child reflects her awareness at some level of the enormity of the grief that she would experience, which mirrors what the father anticipates experiencing.
“Regardless of the decision”, the report writer was of the opinion that it is likely that the child’s relationship with the parents will remain strong and with the passage of time the parental relationship will heal, albeit that either parent will no doubt harbour some resentment depending on the outcome.
Mr F stated at [41]-[42]:
It could reasonably be argued that a move to New Zealand could not be in [the child’s] best interest because it disconnects her from her father with whom she is clearly extremely close and who is prominent in her life. It could also be very reasonably argued that there is nothing about the child’s life that should change and that the introduction of a change of such magnitude could not advance her welfare, albeit that at best it would mean that things remain the same for her in terms of her psychological functioning. The counter argument … is that [the mother] should be allowed to get on with her life, pursue a relationship with [Mr E] and continue in her role as [the child’s] primary carer. Regardless of what else might be concluded, it is unequivocally clear that [the child’s] psychological health and welfare and overall development, including her relationship with her father, has scaffolded from her relationship with her mother. I am certain that if [the child] were to travel to New Zealand that [the mother] would make every effort to ensure that [the child’s] relationship with her father remained as strong and secure as possible.
[The child] is at an age that a move of such magnitude would be possible and not in a manner that would make continuing the emotional bond to her father impossible. Inescapably, the practical and inevitable reality is that a move of such magnitude will significantly change her relationship with her father and cause a redirection in the trajectory of that relationship in a manner that would not be imposed should the child not move. Obviously from the child’s perspective, her best interests would be served if [the mother’s partner] returned to Australia or if [the father and his now-wife] moved to New Zealand. Her simple and unrealistic solution brings very closely into focus what is important to the child.
Cross-examination
In cross-examination, Mr F confirmed his opinion that the mother has actively supported and encouraged the child’s positive relationship with the father to a remarkably high level. He was confident that the mother would continue to promote that relationship.
He maintained his position that the child’s fundamental attachments are secure at age 9 and that the importance of her relationship with her father would not change in the event of the relocation. He stated that the reality of the relationship and the nature of the relationship will change but that the child will maintain the “psychological prominence of the father in her world.” He confirmed that this psychological prominence would not change because it is now established.
He acknowledged that the child might miss her father but that “dealing with that will be in her stride” and that it would not be catastrophic or irreparable. He stated that she “will be okay no matter what decision is made.”
He expressed the view that the child would accept whatever decision was made and that she would not have any difficulty travelling between New Zealand and Australia. He was not concerned about the child missing a number of school days per year in order to spend time with her father in Australia in the next two year period if the mother’s proposal for weekend time was accepted. However he was of the view that this would not be sustainable into the future when the child matures and has her own views. He emphasised that school will become increasingly important regardless of where the child is living.
He was clear in his view that the child has an intrinsic resilience and that she would adapt to the proposal of either parent. He stated that the reality is that the child will manage well regardless and that in all likelihood “she will be fine” with whatever decision is made, meaning whether she lives in New Zealand or Australia. In response to concerns about the change of environment being from urban to semi-rural, the family consultant stated that there will be a significant difference for the child but “home is where her parents are.”
He agreed with the proposition that the child’s relationship with the unborn child of the father was potentially a more important relationship than her relationship with the E children. He stated that this was because “who you are and where you fit in the family are important – those people related to you are pivotal”. However he did not agree with the proposition that because the child only has “blood relatives” in Australia and not in New Zealand that this should elevate her relationships in Australia further. He said that it is complicated and this is just a “piece of the cake”. He agreed that the relationship with the new baby would be different if the child relocated but did not agree that there would be any sense of loss if she was not geographically living close to her half-sister.
The family consultant stated, when questioned about the impact upon the father of the child relocating, that there would be a really significant impact on the father and he would feel very sad. However he stated that it would not have an impact on his parenting.
He agreed in response to questions that he had the impression that the child saw the move to New Zealand as a “bit of a fait accompli”. He agreed that it was likely that this impression had been conveyed by the mother. He stated that it would be hard to shield the child from this and in “a pristine world this could be a criticism of the mother.”
Evidence of the child’s living circumstances in New Zealand
The evidence of the mother and her fiancé was that the child would live in Mr E’s five bedroom home with her own bedroom in New Zealand. The mother had made enquiries about two schools in close proximity to Mr E’s home and she believed that the school finishing time was 2.45 pm at one school and 3.00 pm at the other school. This was relevant for considerations around travelling time to City C airport which is about 45 minutes’ drive.
The mother gave evidence about extracurricular activities which the child could continue to engage in should she relocate to New Zealand. These included gymnastics and swimming.
The mother of Mr E’s children now lives in America. It was conceded that the New Zealand orders made in relation to Mr E’s children provided for them to spend all the school holidays with their mother for a period of about 13 weeks annually. The mother conceded that Mr E’s children would not be available to play with the child during school holidays if their mother exercised her entitlement to spend time with them under the New Zealand court orders.
The mother’s financial circumstances
The mother is currently employed in Melbourne with an income of $55,000AUD per annum. She gave evidence that she believed that she could earn approximately $45,000 in New Zealand when she obtained part-time work and that this amounted to a net income of $37,125 NZD per annum.
In cross-examination the mother maintained that her financial circumstances would improve if she relocated to New Zealand. She proposed to be supported by her fiancé for about six months after relocating and then to obtain part-time work so that she would be available to care for the child after school.
She explained that her living expenses would be reduced because she would no longer have to pay for after-school care, health insurance, life insurance, accommodation or motor vehicle expenses. She believed that the New Zealand school fees would be cheaper than the school fees in Melbourne.
When challenged by counsel for the father to calculate her expenses in New Zealand, the mother provided detailed evidence of the cost of the expenses that she considered were necessary for herself and the child in New Zealand which amounted to a modest $1,595 monthly. She conceded that this did not include expenses for clothes, shoes or hairdressing. She explained that she is provided with “hand me down” clothes from friends and that her fiancé would subsidise her other expenses.
The mother gave evidence that ideally she would wish to travel to South America for about four weeks every second year and that the cost of travel for herself and the child would be about $7,000. She did not anticipate any accommodation costs because she proposed to stay with her family. She gave evidence that the time spent travelling to and from New Zealand to South America would amount to about four days allowing for time differences. She deposed to the child having travelled to South America over the Christmas holiday period in 2007, 2008, 2009, 2012 and after Christmas in 2015.
The mother conceded that if the child was unhappy and the relocation to New Zealand was not successful that she would return to Australia. The mother also conceded that if her application to relocate was unsuccessful, that she would remain living with the child in Melbourne.
Cross-examined about the area where Mr E lives with his children in New Zealand, the mother conceded that it is very different from where the child lives now. When asked if it would be an adjustment from suburban Melbourne for the child, the mother stated that the “scenery will change but not the amenities.” The mother maintained that the home of her fiancé was about five minutes from a town with a population of about 4,000.
Mother’s proposals for the child spending time with the father
The mother confirmed that, after she had consulted a child psychologist, she proposed that the child travel every second month from City C to Melbourne to spend time with the father on weekends. Cross-examined about the practicality of the child travelling to City C airport on Friday after school, the mother maintained that this would not cause the child any difficulty because she had undertaken the journey previously on a weekday. The mother conceded that she had not undertaken the journey from the child’s school to the City C airport on a Friday afternoon but that she had undertaken this journey on another weekday.
The mother gave evidence that she had researched the travelling proposals for the child and that there were a number of flights available but that the schedules changed. The mother accepted that the travel time to the airport from school in New Zealand would add a dimension of difficulty for the child on a Friday afternoon.
Ultimately taking into account the father’s misgivings about the travel after school on a Friday the mother and the Independent Children’s Lawyer jointly proposed that the child spend time with the father for one weekend every alternate month with the child leaving City C on a Thursday after school to spend time with the father in Melbourne and returning Sunday afternoon. They jointly proposed that, unless it was agreed otherwise between the parents, the father travel to New Zealand in each alternate month to spend time with the child in City C for no less than from 9.00 am on Saturday until 5.00 pm on Sunday.
Evidence of the mother’s partner
Mr E, the mother’s partner deposed that he is aged 44 and was born in New Zealand. He lived in the UK from July 2003 with his ex-wife and relocated to Australia with his then company in September 2011. He deposed to having three children from his previous marriage: G aged 15 years, H aged 13 years and J aged 11 years. He deposed to having met the mother in June 2013, with the couple consistently seeing each other from August 2013. He deposed to living with the mother and the child and his children from August 2014 until November 2014 when he relocated to New Zealand to live in K Town with his three children.
Mr E deposed to an income of $290,000 NZD per annum, in addition to receiving health insurance for himself, his children, the mother and the child as well as life insurance for himself as part of his package. He deposed that he intends to support the mother financially when she first arrives in New Zealand, which will allow her to take time to find work she wishes to undertake and to allow her to become comfortable in the new surroundings and help the child settle in.
Mr E gave evidence that he works in a technical profession, that he was formerly a public servant but his experience in his profession is “considered valuable.” He conceded that there would be other less remunerative work available in Australia but that there were a number of reasons why he was not in a position to return to live in Australia. He explained that he has court orders in New Zealand which require him to live there with the children and that they cannot be changed for about two years and his ex-wife was unlikely to agree to any such change. When he canvassed with his children the possibility of returning to Australia the children told him “It’s not going to happen Dad”. He referred to the fact that his older children aged 15 and 13 need more stability and are happy now and settled at school in New Zealand.
Mr E explained that, since the orders have been in place in New Zealand, his children have visited their mother in the United States during school holidays. However he explained that G did not spend time with his mother over Christmas 2015 because he wanted to spend time at a school camp at his new school. He noted that G has since spent time with his mother travelling to the United States in April 2016.
He explained that his ex-wife and the mother of his children currently resides in the United States, and that no court orders were in place until about June 2016 in relation to his children because they had not been necessary but that he had come to an agreement with his ex-wife to formalise parenting orders for their children because of the distance.
Mr E produced exhibit B which was a description of K Town which he had compiled from Internet sources. In cross-examination he conceded that he had substituted his own experience of the time it would take to drive from K Town to the airport in City C. He agreed that he had substituted 40 minutes to undertake the trip for what was generally described as 45 minutes on Internet sites. He gave evidence about road traffic improvements being constructed in New Zealand which would reduce the trip to the airport by 15 minutes (Exhibit E). His evidence was that the construction is due to be completed at the end of 2016 and the connection to the airport would be opened in early 2017.
Cross-examined by counsel for the father about what would happen if the mother was not permitted to relocate to New Zealand and the difficulties of conducting a long-distance relationship, he agreed that it would be challenging and that the relationship “may be difficult to continue”. He gave evidence that he travels to Melbourne approximately once every three months to see his manager for work but that this situation would be changing.
Mr E was not challenged in cross-examination about his financial capacity to support the mother and the child in New Zealand.
Evidence of the mother’s psychotherapist
The mother’s psychotherapist, Ms L, prepared a report dated 11 July 2016. In her report, she wrote in her capacity as an adult psychoanalytic psychotherapist and accredited mental health social worker.
She has been treating the mother since August 2012 when the mother was referred by her general practitioner because she was diagnosed with a “stress reaction/adjustment disorder”. The report of the psychotherapist noted that the mother was initially suffering from this condition as a consequence of her separation from the father, and the focus of their initial sessions was upon working through the mother’s feelings of anxiety and anger attributable to the breakdown of the marriage. The mother’s psychotherapist was of the belief that the remoteness of the mother’s family, living in South America, further exacerbated her circumstances as it left her feeling “isolated and unsupported”.
The psychotherapist gave evidence that the mother specifically consulted her about the separation from the father and her anxiety because she wanted to shield her daughter from the effects of her anxiety. The psychotherapist saw the mother fortnightly and sometimes monthly depending on her availability.
Her evidence was that the mother is making good progress and that she has been provided with skills to respond to life and that she is prepared to continue fortnightly sessions through Skype should the mother relocate to New Zealand.
The mother’s psychotherapist stated that the mother has responded well to the process and that six months after she met Mr E in January 2014, she mentioned that he wanted her to move to New Zealand because of his work. She explained that the mother had “something huge to think about” her daughter and her relationship with the father being disrupted should she relocate to New Zealand. She agreed that this was a matter of discussion with the mother between January and August 2014 and a significant issue for the mother. She was clear in her evidence that the mother was at pains to ensure that she could do everything within her power to provide the child with the same amount of time that she currently had with the father. She noted that the mother was concerned that the child would miss her father and knew that the child would be disappointed. In her report, the psychotherapist described the decision that relocation would be beneficial as having come “subsequent to endless discussion and reflection” on the part of the mother, and noted that the mother “explored and reflected upon numerous possibilities to ensure that the father/daughter bond be maintained”. She noted that throughout their discussions, the mother reiterated the importance of the child maintaining a close relationship with the father, considering it “an imperative”, and described the mother’s parenting as “loving and caring”, never displaying malice and never maligning the father to the child.
In her report, the psychotherapist noted that for the mother, the idea of remaining in Australia “fills [her] with profound sadness” as the mother felt isolated with no family in Australia. The mother saw a move to New Zealand as providing the child with an opportunity for a “stable loving family environment”. It was the psychotherapist’s professional opinion that the proposed relocation would offer the mother and the child “an opportunity to experience emotional wellbeing and financial stability and security within a loving family environment, that is not readily available to them here”. She noted that “[d]espite the challenges of integrating into a new family, [the mother] has gradually worked towards establishing a bond with [Mr E’s] children and there seems to already be a sense of family”. In the psychotherapist’s view, in light of the mother’s acceptance of Mr E’s marriage proposal, “relocating to New Zealand means that [the mother’s] current circumstances as a single mother of long working hours, financial hardship and limited support, would certainly be alleviated”.
Her conversations with the mother focused on how she might mitigate the child’s disappointment by allowing the father to have additional time through Skype and phone and non-face-to-face time.
In the psychotherapist’s view, the mother has described a stable and secure relationship with Mr E after experiencing the “normal” fluctuations in relationships and reflecting about herself at the beginning of the relationship because of her past experience in the breakup of her marriage to the father.
It was her opinion that the mother has thought about the relocation “very seriously”.
Cross-examined by the Independent Children’s Lawyer about how the mother’s anxiety was manifested, Ms L responded that the mother is quite hypervigilant, ruminates and “can see things more negatively”. In responding as to how the child is exposed to the mother’s anxiety, the psychotherapist stated that the mother was aware that she was tired when she comes home from work and a bit short with the child which is “an ordinary experience of a single Mum”. She expanded to explain that the mother has done extraordinarily well regulating her emotions and handling stress.
When questioned about to what extent the mother’s proposal to relocate might be motivated to create a distance between the child and the father, the psychotherapist responded “I don’t believe that is the case at all.” She described the mother as being sincere about wanting the child to have a relationship with the father.
When cross-examined by the Independent Children’s Lawyer, the psychotherapist was of the view that, although the mother had developed some capacity for emotional coping, if she was not permitted to move to New Zealand with the child, this would be “initially devastating” and “profoundly disappointing”. She was unable to predict the impact of such a decision on the mother’s anxiety, but stated that this result would be “traumatic” and “a shock”. Noting that the mother has in the past managed to work through her anxiety, the psychotherapist theorised that she would most likely work through the issues and anxiety associated with being unable to relocate.
When asked what impact a refusal of the mother’s application to move with the child might have on her parenting ability, the psychotherapist commented that she considered the mother “sound” as a parent. She speculated that the mother would be “preoccupied, like anybody”, but would “do her best” due to the child’s paramount importance to the mother. The psychotherapist noted that, as far as she could determine from her conversations with the mother, the mother has previously managed well in terms of avoiding the expression of anger toward the father with consistent maintenance of clear boundaries in that regard.
The psychotherapist maintained that the benefit of relocation for the mother would be the positive benefits of an intimate relationship, a reduction in her anxiety and mitigation of her financial hardship, providing her companionship and family support in the context of the mother’s cultural background where family support is particularly important. She did not believe that the mother’s parenting capacity would change on relocation but stated that the mother would be more relaxed and patient and this would be a benefit for the child.
Evidence of the father
The father gave evidence that he has had a very close relationship with the child and has been an actively involved parent since she was born. He emphasised that since separation he has lived geographically close to the child, so it was easy for her to spend regular informal time with him. He referred to his history of cooperating with the mother to ensure that the child spent time with him on a regular and frequent basis. He noted that during the time following separation when the parties lived next door to each other, the child frequently called him “over the fence” to arrange to spend time with him. He referred to a history of active involvement in her school and extracurricular activities and the child also spending time with his wife, Ms D. The father gave evidence of the child’s involvement in the family unit comprised of himself and his wife. He deposed to his wife expecting a child in September, that the child was involved in discussions about naming the child, and that he and his wife intended to name the child M, which was the name suggested by the child. The father was particularly concerned that the child would miss out on spending a great deal of meaningful time with M.
The father deposed that as per the consent orders made in this Court on 29 February 2016, the child currently spends time with him for four overnights in one week and then one in the following week on an alternating basis. He deposed that he attends her school events and has obtained a working with children certification in order to comply with volunteering criteria at her school, and that his current regular time with the child has allowed him to provide input into her educational and social progress. He deposed that he was concerned that the proposed move would render “any realistic input into the child’s educational development” impossible.
The father gave evidence that the child was thriving academically and socially at her current school, and noted his concern that removing her from her environment would be contrary to her best interests. He also deposed that she has strong relationships with her paternal family, and in particular with her paternal grandmother, whom she sees on a regular basis at family dinners and other events, as well as the paternal grandfather, the father’s sister and other members of the extended family, the child’s godmother and family friends. The father deposed that he was concerned that maintaining and furthering these family relationships would be difficult for the child if the relocation were permitted, and that the loss of these relationships would be significant.
The father deposed that he was concerned the mother had involved the child in the conflict. He noted that the mother had taken the child to view New Zealand schools.
The father deposed that the proposals of the mother in the event of her relocation were a poor substitute for the current arrangements, and he was concerned about the issues associated with electronic communication being exacerbated by the time differences between Australia and New Zealand, noting that any contact after Australian business hours would likely cause difficulty with the child’s bedtimes.
The father deposed that the costs of travel to New Zealand in order to spend time with the child would be onerous. He deposed that according to his research, a two day stay in New Zealand would amount to approximately $742 in airfares, accommodation expenses and car hire, and that this amount would rise to $1,160 if M and Ms D travelled with him, and a three day stay with M and Ms D would cost $1,322. The father contended that weekend time arrangements proposed by the mother were impractical as they would necessarily be consumed by travel, which would be tiring for the child. The father noted that the flight time between City C and Melbourne was approximately three hours and forty minutes, which did not account for additional travel to and from the airport and airport procedures at either end. He noted that if the child were to travel to Melbourne for a weekend, she would spend approximately thirty seven hours in Melbourne, and that when sleeping time was excluded there would be approximately seventeen hours of quality time per weekend. The father was concerned that this would be draining for the child, and was also concerned by the notion of the child travelling as an unaccompanied minor.
The father deposed that he is currently employed as a consultant within a company in which his mother is the sole director. He earns $80,000 per annum plus superannuation and works a forty hour week on average, with flexible hours. He deposed that his wife is currently employed but will shortly take a six month maternity salary package and will be made redundant in December of 2017.
The father deposed that he and his wife pay rent of $2,825 per month and he has a loan repayment commitment of $824 per month. He deposed that in addition to paying the usual outgoings for food, supplies and services, he has after school care expenses of $38 per week, and pays a monthly variable amount to the mother by way of child support. He deposed that pursuant to the financial settlement entered into between the parties, the mother is entitled to receive the net proceeds of the sale of the two properties at 1 and 2 N Street, Suburb O, after allowing for the loss incurred upon the sale of another property at Q Street, meaning that the mother is entitled to an amount of approximately $221,343. The father deposed that in contrast, he will receive nothing in the way of cash settlement from the sale of those properties.
Cross-examined about his employment, the father maintained that he was employed by the company of which his mother is a director and shareholder. He produced an unsigned employment contract disclosing an income of $40,000 per annum in addition to $40,000 in commissions per annum. He maintained that his income was $80,000 per annum. In cross-examination he conceded that he had neglected to include $40,000 of that income in his financial statement filed for other proceedings. He maintained that this was not deliberate and accepted the proposition of counsel for the mother that it was an oversight.
The father conceded that his taxation returns did not reflect the commission of $40,000 (Exhibit K Taxation returns 2012 to 2015).
Questioned about the liability of each parent for the payment of the child’s travel expenses to New Zealand in the event that she relocated, he insisted that the mother should pay and accepted that he did not have a reason for that proposition. When it was suggested that his reason was because she proposed the relocation that she should pay he refused to adopt that proposition and responded to counsel for the mother that “those are your words”.
Evidence of the father’s wife
In her affidavit, the father’s wife, Ms D, deposed that she and the father commenced their relationship in April 2014, have cohabited since late July of 2014 and were married in 2015. She deposed that they were expecting their first child, M, this year. She deposed that she has been employed by a multinational company since May 2008 and her current salary is $76,302 per annum, but she will be commencing maternity leave on 1 October 2016 and would be on half pay for six months. She deposed that following the expiration of that leave she will be retrenched in December 2017.
The father’s wife deposed that she first met the child in June 2014 and they formed an “immediate friendship which very quickly developed into a close bond”. She deposed to the child’s direct involvement in her life with the father, including the child’s involvement in the selection of their current home. Ms D deposed that the child is a “central and active” part of her life with the father and Ms D’s extended family. The father’s wife deposed to helping the child with her homework and participating in various activities together. She deposed that in her observation of the father and the child they have a close bond between them. She described the father’s parenting as “hands on” and as having a high level of engagement in the child’s education and activities, including her swimming lessons, gymnastics and tennis.
When the evidence of Mr E was outlined to the father’s wife and in particular the New Zealand court orders which required him to live in New Zealand with his children for two years, she was not prepared to accept that Mr E reasons for remaining in New Zealand were reasonable. When specifically asked about the orders requiring Mr E to live in New Zealand she pointed out that he had moved to New Zealand before the court orders were made. She was initially not prepared to concede that the same reasons that she provided for not wanting to relocate to New Zealand which were “family, a steady job and I wouldn’t move” might apply to Mr E. She reluctantly conceded that it was reasonable for Mr E to consider that his children were reaching an age when he did not want to disrupt their education by relocating to Australia.
She supported the father in his views that there would be little benefit to the child in the relocation. When asked about whether she had thought about any benefits to the child in relocating to New Zealand she responded “I’m sure there’s some. Not many. Can’t think of any.”
Murphy J considered the principles in the context of Division 12A of the Act in Suell & Suell (Re-Opening) [2009] FamCA 55 and at [10] pointed out (referring to the High Court decision of Smith v New South Wales Bar Association) that in cases where reasons for judgment have not been delivered, the High Court has held that the primary consideration should be embarrassment or prejudice to the other side.
In expanding on prejudice or embarrassment as a broad concept Murphy J referred to the significant stress imposed upon litigants particularly where the prior litigation history has been lengthy, as being a recognised element of prejudice. He also referred to the right of litigants to expect finality in litigation.
At [27] after a consideration of the authorities, Murphy J distilled the factors relevant to the exercise of the discretion to re-open that parenting case. I have applied those same factors to the exercise of my discretion in this application. The discretion to admit further evidence needs to be exercised with much care in parenting cases. It is in the child’s best interests and the parents that this litigation be finalised as soon as possible.
For the purpose of the exercise I have taken the father’s new untested evidence at its highest and I am not satisfied that the interests of justice require its admission. Even if accepted and the evidence is true, I do not accept that it would most probably affect the result of the case. The further evidence is not likely to affect the ultimate findings that would otherwise have been available on the evidence at the hearing. This is particularly so where the father’s application is for parenting orders where the parties have equal shared parental responsibility. At the hearing on 5 December 2016, through his counsel the father acknowledged that the mother had advised him about the blood tests in March 2016 but he maintained that the mother had not mentioned anything about “leukaemia” (Exhibit A from 5 December 2016).
The late admission of the further evidence would prejudice the mother in the delay inherent in any reopening of the evidence. More importantly the significant delay in responding to the father’s evidence, testing and considering the further evidence will delay the settlement of the living arrangements for the child and more particularly her schooling for next year.
Despite the apparent unreasonable disagreement about Christmas caused by the father on his own evidence pending delivery of judgment, I am satisfied on the evidence of the family consultant that the post-parenting relationship between the parties, although strained as a result of this litigation, will heal and that on all the evidence the parents have the capacity to responsibly share equal parental responsibility for the child.
I certify that the preceding two-hundred and seventy (270) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 5 December 2016.
Associate:
Date: 5 December 2016
Annexure A
The applicant mother relied upon the following documents:
· Mother’s Further Further Amended Initiating Application filed 21 July 2016;
· Mother’s Outline of Case filed 31 August 2016;
· Affidavit of the mother originally sworn and filed 21 July 2016, uplifted and re-sworn and filed 1 September 2016;
· Affidavit of the mother filed 11 August 2016;
· Affidavit of Mr E originally sworn and filed 21 July 2016, uplifted and re-sworn 31 August 2016 and filed 1 September 2016;
· Affidavit of Ms L filed 21 July 2016; and
· Affidavit of Mr F filed 18 May 2016.
The respondent father relied upon the following documents:
· Father’s Response to Further Further Amended Initiating Application filed 9 September 2016;
· Affidavit of the father filed 3 August 2016 and re-sworn 29 August 2016; and
· Affidavit of Ms D filed 3 August 2016.
The Independent Children’s Lawyer relied upon the following documents:
· Affidavit of Mr F filed 18 May 2016.
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
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Evidence
Legal Concepts
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Appeal
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Jurisdiction
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Procedural Fairness
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Remedies
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Standing
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Statutory Construction