Ferris & Midford
[2021] FedCFamC1F 247
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ferris & Midford [2021] FedCFamC1F 247
File number(s): SYC 8729 of 2019 Judgment of: CLEARY J Date of judgment: 2 December 2021 Catchwords: FAMILY LAW – PARENTING – Competing applications for parenting orders for one very young child – Where relocation orders are sought by the mother - Where the child lives with the mother - Where the parties met in Australia – Where the child was born in Australia -Where the mother retained the child in the United Kingdom after a holiday – Where the father made a successful application under the Hague Convention to have the child returned to Australia – Where the mother opted to live in Queensland on return - Where father’s time with the child has been limited by distance – Where the mother contends she is isolated and lacks support in Australia – Where the mother is ordered to remain in Australia and relocate the residence of the child to Region G – Where orders are made for progression to equal shared care – Where overseas travel is provided for both parents with surety imposed for travel by mother with the child. Legislation: Family Law Act (Cth) 1975 Cases cited: MRR v GR (2010) 263 ALR 368
Adamson v Adamson (2014) 51 Fam LR 626
Sampson v Hartnett (2007) 38 Fam LR 315
Franklin v Franklin [2019] FamCAFC 256
Division: Division 1 First Instance Number of paragraphs: 170 Date of hearing: 5-7 October 2021 Place: Newcastle Counsel for the Applicant: Dr Brasch Solicitor for the Applicant: Doyle Wilson Solicitors Counsel for the Respondent: Mr Hogg Solicitor for the Respondent: Joplin Lawyers ORDERS
SYC 8729 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FERRIS
Applicant
AND: MR MIDFORD
Respondent
ORDER MADE BY:
CLEARY J
DATE OF ORDER:
2 DECEMBER 2021
THE COURT ORDERS:
Parental responsibility
1.That the mother and father have equal shared parental responsibility for the long term decisions relating to the care, welfare and development of Z born 2018 (“the child”).
2.That each party have parental responsibility for day to day decisions about the care welfare and development of the child when she is living with, or in the care of, that parent pursuant to these orders.
Residence
3.That the mother shall, within three months of the date of these orders, establish a residence for the child in D Town in Region G and THEREAFTER each parent is restrained from changing the residence of the child from Region G, as defined, without the prior written consent of the other parent.
4.That the father shall contribute to the cost of the mother relocating from Brisbane and establishing a residence in D Town (including airfares, deposit on rental property, transport costs between Brisbane and D Town) in the sum of $10,000.
Shared Care, Time and Communication
5.Commencing within seven days of the mother having established a residence in D Town, the child shall live with the mother and spend time with the father as agreed between the parties and failing agreement as follows:
5.1For three consecutive roster periods (a period of 54 days), during each four and five day block when the father is rostered off:
5.1.1On each of the first two days of each block from 10.00 am to 5.00 pm.
5.2Thereafter for the next three consecutive roster periods (a period of 54 days) during each four and five day block when the father is rostered off:
5.2.1From 10.00 am on the first day to 5.00 pm on the second day of each block.
5.3Thereafter for the next three consecutive roster periods (a period of 54 days) during each four and five day block when the father is rostered off:
5.3.1From 10.00 am on the first day to 5.00 pm on the third day of each block.
5.4Thereafter, and continuing during term time after the child starts school in 2024, the child shall live with each parent on a week about shared care basis with each parent to arrange care for the child during periods when that parent is working, with the following exception:
5.4.1The mother is at liberty to spend one eight (8) week block in the United Kingdom with the child prior to the child commencing school and shall provide the father with twelve (12) weeks notice of proposed travel dates;
5.4.2Time with the father provided for in these orders is suspended during the eight week block.
School holidays commencing from the term holiday at the conclusion of Term One in 2024
6.Z shall spend time with each parent during the Term 1 and 3 school holidays as follows:
(a)Father - from the conclusion of school on the last day of the school term until 5.00 pm on the second Saturday of the holiday period;
(b)Mother – from the second Saturday of the holiday period until 5.00 pm on the last Sunday of the holiday period.
7.Z shall spend time with each parent during the Term 2 school holidays as follows:
(a)In even numbered years – from the conclusion of school or 3.00 pm on the last day of the school term until 4.30 pm on the last Sunday of the holiday period with the mother for the purpose of travelling to the United Kingdom only NOTING that in the event that the mother does not intend to travel with the child to the United Kingdom during this time, time with each parent is in accordance with Order 6 above.
Christmas & Christmas School Holidays
8.Z shall spend time with each parent during the Christmas school holiday period in odd numbered years commencing in 2025 as follows:
(a)Father – from the conclusion of school or 3.00 pm on the last day of the school term until 5.00 pm on 7 January; and
(b)Mother – from 5.00 pm on 7 January until 5.00 pm on the last Sunday of the holiday period.
9.Z shall spend time with each parent during the Christmas school holiday period in even numbered years commencing in 2024 as follows:
(a)Mother – from the conclusion of school or 3.00 pm on the last day of the school term until 5.00 pm on 7 January; and
(b)Father – from 5.00 pm on 7 January until 5.00 pm on the last Sunday of the holiday period.
Easter
10.Z shall spend time with each parent during the Easter long weekend commencing in 2022 as follows:
(a)In even numbered years from 9.00 am on Good Friday until 4.00 pm Easter Monday with the mother; and
(b)In odd numbered years from 9.00 am on Good Friday until 4.00 pm Easter Monday with the father.
Father’s Day
11.In the event that Father’s Day falls on a weekend when Z is not already spending time with the father, and the father is rostered off, Z shall spend time with the father as agreed between the parties but failing agreement from 5.00 pm on the Saturday before Father’s Day until 5.00 pm on Father’s Day.
Mother’s Day
12.In the event that Mother’s Day falls on a weekend when Z is not already spending time with the mother, Z shall spend time with the mother as agreed between the parties but failing agreement from 5.00 pm on the Saturday before Mother’s Day until 5.00 pm on Mother’s Day.
Changeover
13.That changeover will occur by the parties, or their nominees known to Z, by meeting at Handover Location E, at the nominated times, noting that any desired change to the changeover location or time must be agreed by both parties in writing.
Z’s telephone contact
14.That Z have FaceTime or telephone contact with the parent she is not living with at the time (“the absent parent”), at all reasonable times and intervals, but at a minimum each Tuesday and Thursday, with the absent parent to place a call to the mobile of the resident party between 4.30 pm to 5.00 pm.
15.After Z commences high school the mother and father are each at liberty to communicate directly with Z by telephone and through electronic means such as texting, and FaceTime at all reasonable times and intervals.
Current contact details
16.The parties shall keep each other informed of:
(a)Their respective residential address;
(b)Any mobile telephone numbers and/or email addresses that each of them has available from time to time;
(c)At least one telephone number at which they can each be contacted at all hours;
And shall notify the other in writing or by text message of any change of such particulars within 24 hours of change.
Non-Denigration
17.Each party is restrained from denigrating the other in the presence or hearing of Z and from permitting Z to remain in the presence or hearing of another person denigrating the other.
Medical, Education and Welfare
18.This order shall constitute full authority for both parties to obtain directly from any educational, health or welfare agency or professional involved in the care of Z all information regarding the education, health and welfare of Z and for this purpose each of the parents shall keep the other informed of the names and contact details of any education, health or welfare agency or professional so involved in the welfare of Z.
19.In circumstances that Z needs to attend any general medical, allied health professional, specialist medical or educational appointment, the mother and father must inform the other parent of the time and date of the appointment, upon making such appointment, and the other parent will be at liberty to attend each general medical, allied health professional specialist medical or educational appointment unless it is considered impractical, at times, by the parent with whom Z does not otherwise reside.
20.Each party shall notify the other of any medical emergency, illness or injury suffered by Z whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of Z.
21.In circumstances that Z takes prescribed medication, the party who buys Z’s medication will provide the other parent with the medication and instructions for its use, when Z goes into the other parent’s care.
Education
22.That both parties be permitted to liaise directly with Z’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about Z’s progress.
23.That each party is at liberty to attend at the said Z’s school for the purposes of any function or activity normally attended by parents.
24.The parties or either of them shall authorise and request the principal of any school attended by the child to provide to each parent, copies of all school reports newsletters and school photograph order forms relating to the child, and costs, if any, to be shared equally.
Passports
25.Subject to Order 26 herein, that within fourteen (14) days of either parent providing a Passport Application to the other parent for the issue of an Australian and/or British Passport or for the renewal of an Australian and/or British Passport for the child Z born 2018 the other parent shall sign such documents and have their signature witnessed as required in the documents and cause the documents to be returned to the requesting parent.
26.That the requesting parent pays the sole costs of having an Australian and/or British Passport issued and renewed in Z’s name.
27.That the father shall retain Z’s Australian and British Passport in his possession and the father shall provide the nominated Passport for Z to the mother upon receiving notice of the mother’s intention to travel internationally with Z and not less than thirty (30) days prior to departure.
International Travel
28.Each party be permitted to take Z outside the jurisdiction of the Commonwealth of Australia for such period or periods consistent with these orders.
29.To give effect to the aforesaid order and in relation to Z travelling outside of the Commonwealth of Australia, both parties must provide to the other the following:
(a)The party who intends to travel overseas must give to the other parent at least twelve (12) weeks notice of their intention to travel with such notice to include details as to where Z will be travelling to, where Z will be accommodated and any particular details in relation to the transportation of Z;
(b)At least twelve (12) weeks prior to the intended date of departure the travelling parent must provide a full itinerary and copy of tickets evidencing return to Australia, contact details for Z overseas; and
(c)At least thirty (30) days prior to the intended date of departure or at such other time that is reasonably appropriate Z’s passport is to be made available to the travelling parent and the passport is to be returned by the mother to the father for safe keeping within seven (7) days of the return when the mother is travelling.
30.The travelling parent is to ensure that travel insurance is purchased to cover Z’s travel needs for the duration of the international travel.
31.That whilst Z is travelling overseas the travelling parent shall ensure that the non-travelling parent has contact with Z at least weekly via whatever practical means are available including, but not limited to, SMS, text, email, FaceTime, Facebook, Messenger, Skype.
Surety
32.In situations where the mother intends to travel internationally with Z the mother is required, not less than 30 days before departure, to deposit into the father’s nominated solicitor’s Trust Account the sum of fifteen thousand dollars ($15,000) as surety for Z’s return to Australia.
(a)In circumstances that Z is returned to Australia the father shall, as soon as possible and in any event, within twenty-eight (28) days of return , shall provide written notice to his solicitor to release the funds to the mother;
(b)In circumstances that Z is not returned to Australia the father is authorised to utilise these funds to fund his legal costs and out of pocket expenses, including but not limited to, international flights, accommodation, insurance and other such reasonable expenses of having Z returned to Australia.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ferris & Midford has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CLEARY J
INTRODUCTION
These are competing applications for parenting orders by the parents of one child, Z, who had just turned three at date of trial.
The mother was born in England. She arrived in Australia in September 2015 for a working holiday. The parties met in Region F of New South Wales in 2016. The father lived and worked locally.
The parties began living together in B Town in March 2017. They travelled together to the United Kingdom (“UK”) for Christmas holidays at the end of that year.
The subject child was born in 2018.
About four months after the birth of the child the parties separated. They had counselling and the relationship was restored.
In May 2019 the parties travelled with the child to the UK to attend the wedding of the mother’s sister. The father returned to Australia for work on 30 May 2019 in the expectation that the mother and child would follow three weeks later.
The mother chose not to return to Australia and the relationship ended.
The father invoked the Hague Convention in the UK.
On 8 November 2019 an order was made by the High Court of Justice U K (“the UK orders”) for the summary return of the child to Australia no later than 8 January 2020.
The UK orders were registered in Australia on 19 December 2019.
All avenues of appeal were explored by the mother without success. The mother did not return on the nominated date.
In February 2020 the father lodged a successful Application for Enforcement in the UK. The child was ordered to be returned to Australia by 27 March 2020.
By agreement between the parties this date was extended to 4 April 2020 due to the impact of Covid-19 restrictions. Still, the mother did not return the child to Australia.
On 13 March 2020 the mother filed two applications:
(1)An application to the Sydney Registry of this Court for final orders that the mother be permitted to relocate the residence of the child to the UK; and, on an interim basis, that she be permitted to remain living in the UK with the child; but failing that, permission that she be permitted to move with the child to Brisbane pending trial;
(2)An application in the UK seeking a variation of orders to permit the child to stay in England until her application in this Court had been heard.
On 15 April 2020 the father filed a Response in opposition including a restraint on the mother relocating out of the B Town Local Government area after she returned with the child.
The proceedings were transferred to the Newcastle Registry of this Court.
On 10 June 2020 a judge of this Court made an order pending further order, that the child live with the mother, subject to her establishing the child’s residence:
(a)Within 150 kilometres radius of the PO at B Town; or
(b)Within 50 kilometres of the PO at Brisbane QLD.
On 20 July 2020 the mother arrived back in Australia with the child. She chose to establish a residence for herself and the child in South Brisbane.
The father alone, and also with various family members at times, travelled to Brisbane to see the child. The mother agreed to daytime contact only, in Brisbane only, and initially only if she was also present.
The father was frustrated by the failure of the mother to comply in a timely way with the Hague orders. Nevertheless he understood that at less than two years old the child, having seen very little of the father, did not know him.
As an added complication the mother had apparently contemplated reconciliation with the father, although the father had by then formed a new relationship with his current partner.
By date of trial, after more than a year of time and communication, the relationship between the father and the child had been successfully restored.
The Court is asked to exercise its coercive powers to restrain the mother from returning to live in England with the child and to further restrain the mother from continuing to live in Brisbane.
The father asks for orders to compel the mother to establish a residence for the child in the Region F Local Government Area and thereafter that both parties be restrained from moving the child from that area without the written consent of the other.
THE PARTIES
The Applicant Mother
The mother is aged 30 years. She has been living with the subject child in rented accommodation in Brisbane since her return to this country in July 2020. The mother is caring for the child. She receives Commonwealth benefits and also child support from the father. The mother is not in paid employment. She has not sought out work, the future being uncertain for her. Her family has been providing financial support. She is desperately hopeful of being able to return with the child to live in England and is resistant to the idea of remaining in Australia.
The Respondent Father
The father is aged 28 years. He is a tradesperson. He works in B Town in Region F for Company H on a roster of 12 hour shifts in the pattern [5 days on-5 days off/4 days on-4 days off]. It represents an 18 day rolling shift pattern.
When he is off shift the father lives in B Town with his partner of 18 months, Ms J. Ms J is 36 years old. She has sons from a prior marriage. Those children live in a week about arrangement with their own father. Ms J works part time as a professional.
When he is working the father stays in a unit near his work. The unit is owned by the father’s parents who themselves now live in Suburb K, on the south side of D Town. The paternal grandfather too stays in the B Town unit on the days when he is working, in a similar way to the father.
THE TRIAL
Both parties were represented by solicitors and counsel. The trial had been allocated for four days commencing 5 October 2021. The trial was conducted efficiently and was concluded within three days.
THE APPLICATIONS
The parties agree that they should share parental responsibility equally, wherever the child is living. They also agree that the child should continue to live with the mother; graduating to equal time with both parents, if they live in the same city.
Both parties proposed orders, for the period until the child starts school, which would expand after that event.
In England the child would start school in September 2023; in Australia in January 2024. Accordingly, there are two years to consider in the pre-school period.
OF THE MOTHER
The Amended Initiating Application[1] of the mother was premised on one basis, that this Court would permit the mother to establish permanent residence for the child, with her, in England. The proposal for time and communication with the father is set out below.
[1] Amended Initiating Application filed by the mother on 23/07/2021.
Proposal:
The mother put forward an intricate proposal for graduated time:
Before starting school:
In Australia for two occasions of not less than three weeks in each of the two years 2022 and 2023:
·In June 2022 with the child to spend every day from 8.00 am to 5.00 pm with the father, then returning to the mother each night;
·In December (including Christmas) 2022 and April and September 2023 on alternate days including overnight with the father returning to the mother each other night.
After starting school:
In Australia for two periods of two weeks each year, commencing in 2024, with the child to spend five nights with the father then one with the mother, until age seven, after which she would progress to fortnights of unbroken time:
·Each year at Easter;
·In alternating years in August or December (including Christmas).
The mother also proposed that the father could spend three periods of up to three weeks each year with the child in England, on notice and at his own cost.
Although not explicitly stated, the Court infers from the orders proposed that the mother would be staying in Australia for all spending time periods and in close proximity to the residence/accommodation of the father for the orders to be workable.
Of significance, is the proposal (Order 7) that the mother would be responsible for all costs of travel to Australia for the child and by inference for her own travel and accommodation.
Submission in the event of leave to relocate not being granted:
On the day prior to trial commencing, the mother put forward a document titled “Addendum to Mother’s Case Outline: If [Z] is to stay in Australia” being her “contentions should [Z’s] relocation not be allowed”.[2]
[2] Exhibit 3.
From the stress which counsel placed on the contentions not being proposals, the Court infers that the mother had been reluctant to give those instructions, for fear of being taken by the Court to be willing to remain.
Had there been no alternate proposal the Court would have been at large on the parenting orders to be made if the child was to live in Australia. This could have led to an impractical and detrimental outcome for the parties and the child. The mother was undoubtedly well advised to put forward the document.
The contentions were that:
·The child continue to live with the mother in the Brisbane area;
·That the father would provide his roster to the mother for the upcoming 28 day period. The mother would elect two weekends in the roster period for the father to spend time with the child in Brisbane; or
·If the father changed employment, each alternate weekend from Thursday after school until Monday before school;
·That the father would notify the mother of his annual leave entitlements;
·That school holidays would be shared equally with the mother advising the father as to when the child would be with him.
Further submissions in the event of leave to relocate not being granted:
There was a third document “Updated Addendum to Mother’s Case Outline: If [Z] is to stay in Australia”[3] containing some changes and amendments referred to in closing submissions and subsequently forwarded to the Court after the trial concluded.
[3] Updated Addendum to the mother’s Case Outline: If [Z] is to stay in Australia, forwarded to the Court on 11/10/2021 and made Exhibit 6.
The additional contentions were that:
·Adoption of the father’s proposal for the mother to have an eight week block of time in the UK with 12 weeks notice;
·The father provide his annual roster for 2022 to the mother marked up with the dates of two visits [two days/one night] per calendar month (not confined to weekends);
·The father provide his annual roster for 2023 to the mother similarly marked up [but for three days/two nights] (not confined to weekends);
·Thereafter (from 2024) the father provide his annual roster with two rostered weekends- off per month;
·Adoption of Orders 6-9 inclusive (about holidays in D Town) of the father’s Minute of Order.
OF THE FATHER
In his Amended Response[4] the father proposed orders in the alternative:
If the Child lived in Australia:
·That both parties should be restrained from living outside the Region G Local Government Area;
·Equal time on a week about shared care basis with changeover on Sundays;
·That prior to Z starting school the mother be able to spend an eight week block in England on 12 weeks notice;
·Otherwise, in summary, equal sharing of school holidays provision for special events, specific issues in relation to education and welfare and the provision of a surety by the mother for overseas travel.
If the child lived in England with the mother:
·Periods of time for the child with the father in Australia and with the father in England, cost of travel to be borne by the mother.
[4] Amended Response filed by the father on 5/03/2021.
Further Proposed Minute of Order (Respondent Father)
The father put forward another Minute of Order.[5]
·Rather than immediately moving to week about the father had devised a graduating program of time over four stages working around his roster.
[5] Exhibit 4.
ISSUES
The main issue before the Court is whether:
·The mother should be able to return to England with the child and establish a permanent residence for her there; or
·The mother should be compelled by the Court to remain living in Australia, and if so, whether that should be in Brisbane or specifically in the area where the father lives.
If the orders were made as the mother proposes, the issues would be how often the father would spend time with the child, in both countries, and who would be responsible for the cost of travel and associated accommodation.
In the event that the mother is compelled to live in Australia the internal issue arises as to which city the mother and child should live in. The mother proposes that she remain living in Brisbane. The father asks the Court to order the mother to move with the child to live in the Region G area.
If the mother remains in Brisbane, the issues would be how often the child would spend time with the father, in which city and who would be responsible for the cost of travel.
In the event that the mother was ordered to establish a residence in D Town for the child the parents agree that equal shared time or something close to it would be in the best interests of the child.
EVIDENCE
The documents relied on were as follows:
The Applicant Mother – [Ms Ferris]
(a)Amended Initiating Application filed 23/07/2021;
(b)Document titled “Addendum to Mother’s Case Outline: If [Z] is to Stay in Australia”;[6]
[6] Exhibit 3.
(c)Document titled “Updated Addendum to Mother’s Case Outline: If [Z] is to stay in Australia;[7]
[7] Exhibit 6.
(d)Affidavit of [Ms Ferris] filed 23/07/2021;
(e)Affidavit of [Ms L], the maternal grandmother, filed 23/07/2021;
(f)Affidavit of [Mr M], the maternal grandfather, filed 23/07/2021;
The Respondent Father – [Mr Midford]
(g)Amended Response to Initiating Application filed 5/03/2021;
(h)Further Proposed Minute of Order (Respondent Father);[8]
(i)Affidavit of [Mr Midford] filed 23/07/2021;
(j)Affidavit of [Ms J], the father’s partner, filed 23/07/2021;
(k)Affidavit of [Ms N], the paternal grandmother, filed 23/07/2021;
ORAL EVIDENCE
[8] Exhibit 4.
THE MOTHER
The mother presented as a loving mother, concerned to do all she could to properly care for the child.
She said she had found reading the affidavit of the father upsetting and “I’m biased because I want to live full time with my family so it’s hard to read that”. For that reason the mother did not read the Amended Response of the father which contained his proposed orders. She appeared to be pleased to find out that the father was not proposing restraint on overseas travel for the mother with the child, especially the eight week block before she started school.
There was another element. The move from Brisbane to D Town proposed by the father was confronting to the mother, she asked rhetorically:
Are me and [Z] supposed to follow [Mr Midford] round when he gets a new girlfriend?
Why hasn’t he moved to Brisbane? Why isn’t he here?
He made an effort to get [Z] back here to Australia, why wouldn’t he do day trips [to Brisbane]. He should.
The mother appeared to be implying that if the father was serious about caring for the child he would have moved to live in Brisbane where she was, or at least be willing to regularly fly up for the day and spend a few hours.
The mother was well aware that the father had worked in his present occupation in the mines at B Town for many years and that such work did not exist in Brisbane. She also knew that the father had no connection to Brisbane other than with the child and herself, and further that he had a partner with her own children living with him in D Town.
The Court infers that the mother was protesting about the father being able to live and work as he chose, whereas she could not. Her protest was heartfelt and in terms of her own human right to live where she wishes, understandable. However freedom of movement for the mother, although a factor for consideration, cannot be determinative because of the interests of the child.
The mother agreed in her oral evidence that “if she had to stay” there would be a benefit being close to the father, “Yes I’d call on [Mr Midford] to come and look after [Z]. I’m in prison here.”
The Maternal Grandmother
The maternal grandmother gave evidence in which she was warmly supportive of the mother.
The maternal grandmother works full time to support herself. She has provided substantial financial support to the mother in England and Australia. In addition she has been paying GBP £1000 per month for the apartment in Brisbane in which the mother and the child have lived since return to Australia in July 2020.
Those funds were taken by the maternal grandmother as additional income from her business. She freely acknowledged that she could not continue to pay that amount. “I have no further funds to do so”.[9] She would be in a position to assist the mother in paying for the father to visit the UK or for the mother to fly to Australia with the child to visit him.
[9] Affidavit of the maternal grandmother filed 23/07/2021, para 165.
The maternal grandmother would willingly have the mother and child live with her if they were able to return to England. Further, she is in a position as the manager of a social programme to employ the mother and train her to become a care professional. Once trained the income of the mother would be GBP £18,000 per annum.
The maternal grandmother visited Australia in 2018 after the child was born. The Court infers that if the mother and the child were living in Australia the maternal grandmother would be able to visit them in this country or assist in the cost of their travel to England from time to time.
The Maternal Grandfather
The maternal grandfather is a tradesperson and works 6-7 days per week “to keep my head above water.”
He has provided financial support to the mother in Australia and the UK. He has enjoyed a good relationship with the father.
The maternal grandfather has given the mother several thousand pounds. He works full time to support himself. He set up a fundraiser to encourage friends and family to contribute to the cost of the Hague proceedings in 2019.
To further quote the maternal grandfather’s oral evidence, “I don’t have a bottomless pit of money. This has been hugely expensive”.
The maternal grandfather has not travelled to Australia and is less likely to do so given his work practices. He agreed that if the mother was obliged to remain in Australia he could and would meet airfares once a year for her to return to England.
THE FATHER
The father was a frank and straightforward witness. He readily conceded that the situation was difficult for the mother and that she might be miserable.
The father has been disappointed about the unwillingness of the mother to travel with the child to D Town and her insistence that he should always come to Brisbane to see the child.
To his credit, and the mother’s, they have nevertheless developed a constructive parenting relationship. Neither doubts the commitment of the other to the child.
The father was tested on his proposal that there be no restraints on the mother travelling to the UK with the child to visit, despite her tardiness in complying with the Hague orders. His response was “[Ms Ferris] [the mother] has a right to see her family”. The Court accepts that evidence as his genuine view.
When pressed about it the father also said “I’m massively anxious about [Ms Ferris] taking [Z] back to the UK”. He conceded fear of the child again being retained.
He was questioned about his expressed concerns about the child staying in the home of the maternal grandfather, based on an abusive incident in her childhood that the mother had told him about.
His responses were both protective and balanced: “As a father the slightest inkling of it [abuse] being true is a worry”; and “There was a doubt in my belief”.
I formed the impression that the father accepts that he must live with his concerns and fears for the sake of the child, her relationship with the mother and the mother’s relationship with each of her parents and other family members.
The father has had significant expense, mainly legal costs. He has incurred costs to date of $150,000 which he has been repaying at the rate of $385 per week, and will be for some years. He had thought ahead to the mother’s costs of relocation from Brisbane to NSW if she did move and has budgeted for a loan of $10,000 to meet those expenses.
He has had the cost of travel and accommodation for trips to Brisbane and pays child support of about $300 per week.
The father earns $120,000 gross plus superannuation per annum. He works an 18 day shift pattern recurring throughout the year with two weeks leave. He is not in a position financially to give up the job which delivers that income.
The Father’s Partner – Ms J
Ms J was not required for cross-examination. Her evidence is accordingly unchallenged.
The mother spoke warmly of Ms J as a person she liked, which was also true of Ms J’s sons to the limited extent the mother had spent time with them.
Likewise Ms J was complimentary about the mother, “[Ms Ferris] and I get along well and I say we have a positive relationship based on some mutual understandings about motherhood.”[10] She described experiencing [Z] as “a delightful young girl”.[11]
[10] Affidavit of [Ms J] filed 23/07/2021 para 27.
[11] Affidavit of [Ms J] filed 23/07/2021 para 14.
I conclude that Ms J would promote and support the relationship between the father and the subject child. I also conclude that Ms J would, as stated, communicate often with the mother if she came to live in D Town and make her feel welcome and part of the community.
The Paternal Grandmother
The paternal grandmother has been critical of the conduct of the mother in Australia and her retention of the child in England.
She acknowledged that the mother may not be receptive to her offers of support.
Despite that, the Court accepts that the paternal grandmother does consider the mother to be part of the paternal family and will continue to do so even if their previously good relationship is not restored. Also, that she would provide whatever practical help and support that the mother was willing to accept.
THE LAW
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
(1)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;
(2)Children are protected from physical and psychological harm;
(3)Children receive adequate and proper parenting to help them achieve their full potential; and
(4)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
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.
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 does not apply in circumstances which are not relevant here and may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child .
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.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.
Parental Responsibility
The parties want to share parental responsibility equally. Despite the depth of dispute over which country the child should live in, the parties have demonstrated an ability to discuss the child’s needs, consult each other on steps to be taken and implement them.
It is in the best interests of the child for the order for equal shared parental responsibility to be made consistent with the parents’ wishes.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
The child now has a meaningful relationship with both parents. There is undoubtedly a benefit to those relationships being maintained. The parents concede that it is so.
This aspect is central to the parental dispute and its resolution.
At age three the child has formed, or restored in the case of the father, attachment to each of her parents. The parents agree that week about shared care would work well if the two households were close by and able to be flexible. It would be in her best interests for that to occur.
This is a case where a coercive order which constrains the ability of the mother to live as she wishes is required if the child is to maintain her bond with the father.
Stability is crucial for the child after so much disruption. The parents were originally united in their wish to raise the child in B Town together. As events have occurred since separation of the parties the father has moved to D Town to live with his partner and no longer wishes to live in B Town although he still works there. The mother retained the child in England as a reaction to the souring of the parties’ relationship after events in B Town made return to that city repellent to the mother.
Although the mother has no real connection to Brisbane she does not wish to move to D Town.
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)
The child is likely to have a primary attachment to her mother. The mother has cared for her and met her needs all her life.
The child has a relationship with her father, which was disrupted for 12 months after she was retained in England between May 2019 and July 2020. Despite the distance between the parties’ current residences and the impact of Covid-19 health restrictions, the child has spent enough time with her father for that relationship to have been restored and to be developing well. The child is also coming to know and enjoy being with the father’s partner and her sons.
At different times in her short life the child has had close affectionate relationships with members of her extended family in both England and Australia.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
The father has provided from income, financial support to the child, at first by the provision of a home and after separation by the payment of child support currently $290.10 per week. That sum may decrease after there is an increase of time for the father with the child.
With the financial assistance of the maternal grandmother the mother has provided accommodation for the child in Brisbane and applies her Commonwealth benefits to the needs of the child as well as her own.
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
This factor is at the heart of the dispute.
The child spent the first year of her life together with the two parents in B Town. She spent the next year of her life in England with the mother living in the homes of the maternal grandfather, the maternal grandmother and perhaps other relatives. For the third year of her life the child has lived with the mother in Brisbane and has spent time with her father and grandparents when they have visited her there.
If, as the mother proposes, the child returns with her to live in England they will live with one or more of her maternal relatives. The father might be able to visit there once or twice per year. The mother may or may not be able to bring her to Australia on occasions. If the contact was maintained and the parents could afford it, she would travel to Australia for school holidays.
There is no Family Report in this matter, no input as to the impact on the child of the reduction of her relationship with the father. However it is clear that he would become a distant relative for her, no matter how well loved if she does not very regularly spend time with him.
There is a real probability that the mother, dependent as she is on her parents and family, will not be able to afford to travel to Australia with the child nor able to contribute to the father’s trips to the UK to see the child as she has committed herself to doing. In that event, the father is likely to fade out of importance for the child, even if telephone calls and gifts continued.
If, as the father proposes, the child remains in Australia, she will have the opportunity to spend time with both her parents growing up. Developmentally this will be the best outcome for her.
The mother will most probably be immensely disappointed and disheartened by this outcome and to use the words of her counsel will likely be “miserable”.
If the criteria for this decision were the best interests of the mother, the Court would likely make an order for relocation of the child’s residence as sought. That is not the case. The mother herself acknowledged that a child, especially this three year old child, needs both her parents. To her credit the mother wants that for the child, but is herself desperate to go home.
The practical difficulty and expense of a child spending time with and communicating with a parent
The cost of overseas travel and associated expenses is a substantial factor to take into account if the child lives in England and there are orders for her to spend time with the father.
It is the expressed intention of the mother to travel with the child for trips to Australia until she is old enough to travel comfortably alone, perhaps until she is 16 years in the mother’s view. The mother said she would wait and stay in accommodation until the end of the visit and the return trip.
The parties both formally proposed that the mother would be responsible for the bulk of travel costs for the child and the father whichever country the child was living in.
On the face of it this represents an important concession by the mother.
However, the evidence before me is that the mother herself cannot presently afford the relevant travel and accommodation expenses to any extent whatsoever.
The mother has no assets and is presently not in the paid workforce, pending the outcome of these proceedings. She does not have qualifications in any particular occupation.
The mother in her oral evidence said that she would live rent free with one of her parents, perhaps both at different times, and take up the free child care which would be available to her in England.
Further, she would get a job, perhaps two or three jobs, in order to fund annual travel and accommodation for herself, the child and the father. This plan is unrealistic. Even if the mother could earn sufficient funds to cover flights and expenses, maintaining that level of employment would be inconsistent with travel overseas for periods of several weeks each year.
The mother also expressed a hope that her parents would assist with the costs. The evidence of both her parents was that they wish to assist the mother, have each done so extensively, but cannot continue indefinitely.
There were no costings in the mother’s material such as airfares and accommodation for peak and low seasons. Either the mother has not thought through the implications of her own proposal, or she has, and is unconcerned about future inability to comply with orders.
I conclude that the mother has been so focused on her goal of going home that she has been unwilling or unable to face the impracticability of what she is proposing. She would use all her holidays and most of her earnings travelling. She would remain dependent on her family for accommodation and care of the child when she was not in day care or later at school.
The ongoing cost of trips to and from Brisbane to D Town and associated accommodation is also impracticable in the same way as overseas travel, although on a lesser scale of cost.
The mother’s proposal is for the father to fly to Brisbane to visit the child on two occasions per month; two weekends per month after the child starts school. When the child starts school the father would share school holidays flying to Brisbane to collect and to return her.
The father may be able to fund this level of travel and accommodation.
It is however barely practicable, given the vagaries of the father’s roster which does not acknowledge weekends as special days. Effectively, he would be flying to Brisbane on each weekend in a rostered off period, inconsistent with spending any weekend time with his partner and her children.
The mother is willing for the father to spend four day weekends (Thursday to Monday) with the father if he gives up “roster based employment.”[12] The father earns a solid salary for working the way he does. A less demanding job is unlikely to pay at the same rate which would likely see an assessment down in child support, a reduction in his ability to pay for extras for the child and for travel costs.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
[12] Exhibit 6.
The mother is an adventurous young woman who came to Australia on a working holiday. She worked as a professional and she also worked on a farm.
The parties met and they had fun together with some risk taking associated. They began living together. In early 2018 when the mother learned she was pregnant with the subject child she records in her affidavit[13] “[Mr Midford] and I were both pleased”. Until that time the parties had both enjoyed a lifestyle involving drinking in pubs, going to parties and taking what young people who use them call “party drugs”. The father sometimes stayed home to avoid mandatory drug testing at work. Both parties conceded past recreational drug use, “going on benders”.
[13] Affidavit of the mother filed 23/07/2021, para 67.
The mother took parenthood very seriously and changed the way she lived her life. She wanted the father to swiftly change to a man who stayed at home when he was not working. She came to resent his shift work and his inclination to have nights out drinking with friends.
The mother wanted to go home, to her family, to her own country of origin. However there is no evidence of the mother coming to terms then, or even now, with the fact that the child has her own independent emotional needs which cannot be fully met for the whole of her childhood by the loving care of one parent only.
The family of the child is primarily her two parents. She is an only child and loves them both. She will thrive with the loving care of both. At three years, audio visual links and telephone calls cannot be adequate substitutes for fun and games, hugs and kisses.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The subject child is a three year old girl. She had some difficulties gaining weight as a younger child but is now healthy and active. The father described her as resilient. The mother was concerned about the child’s distress on separation from her which has now, after careful management, and the engagement of both parents settled.
The child is a well-loved member of two big extended families.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
The Court cannot know whether the mother intended to remain in England with the child after the family wedding in May 2019 or formed that intention during the time the parents were there together. It is not material to the outcome.
When asked whether she had expected the father to simply accept her decision to remain in England with the child the mother said she did, and further, that she considered “He didn’t care enough to bring us back.”
That response indicates that the mother regarded the relationship between the parties as being over and believed the father thought so too. That may be correct.
The response also reveals a failure to understand the separate and entirely different considerations about the relationship between the child and the father.
The child was eight months old when she was retained in England. Even after the order was made for return in the Hague proceedings the mother resisted return for another eight months. When she did return in July 2020 the child was almost two years old. It is unsurprising that considerable time and effort, including professional therapeutic assistances, was needed to enable the child to be separated from her mother to spend time with her father.
The mother has now been back in Australia for 14 months and during that time the child has had plenty of visits from the father in the Brisbane area where she lives but not one visit to the area where the father lives. She has not been able to enjoy the natural experience of staying overnight in the father’s home, being put to bed by him, eating together, having paternal grandparents come to visit and going to visit them.
In this respect the father asserts that the mother has been coercive and controlling of his time with the child. Although the father may have experienced the mother’s demands that way the Court sees the matter differently. The mother is likely to have been open to the father travelling up with his partner for more visits in Brisbane if he had been able to take time off work to do that. The Court concludes that she was clinging on to her position, not wanting to succumb to familiarity with Region G. She does not want to be drawn in to the father’s proposal that she move to live there.
The mother chose Brisbane over B Town after interim orders allowed her that choice. She openly and fairly conceded in cross-examination that she did not see very much of relatives, cousins, who live in Brisbane and surrounds. Once a month in one case, every couple of months in the other. Close family ties mean a great deal to the mother. Whilst it was some comfort to her to know that relatives lived locally it has not created the family connection that the mother wished.
I conclude that the mother is refusing to acknowledge that the child is too young to be separated from her father for extended periods although she does understand the issue. The mother has the capacity to meet the child’s needs but her personal needs and homesickness have created a limitation on her willingness to meet the child’s needs in this respect.
Any other fact or circumstance that the Court thinks is relevant
The mother was lonely as a new mother and dependent on the father for help. Her mother came out from England to stay, but that was not the help the mother wanted at that time. The maternal grandmother kindly and tactfully went home again.
Underestimating the size and connectedness of the place she was living in, the mother joined a mother’s group and unleashed her thoughts and criticism of the father and his friends and family within the group. As a result she lost recently acquired friends and offended the paternal family.
The mother felt betrayed by the people in B Town she had counted as friends.
ANALYSIS
Impracticability
Section 65AA of the Act requires the Court to consider the reality of the situation of the parents and the feasibility of their proposals.
The mother wants to live in England but it is simply impracticable. Neither party can afford to pay for all the travel and accommodation costs of what would be needed to maintain the close loving bond that the child presently has with her father.
The impracticability goes beyond money. Such a young child cannot be expected to be regularly disrupted in her day to day life for long haul travel and intensive periods of time with the father which would, mysteriously from the child’s perspective, then cease for weeks or months only to be repeated.
On an interim basis the mother did not so much choose Brisbane as a place to live as she rejected the prospect of returning to B Town. The mother has not had significant family support in Brisbane although she does see her cousins who live in Queensland from time to time. She has not developed connections, friends, or sought employment. It is entirely understandable that her life has been constrained in that way. She has been on tenterhooks waiting for the ultimate decision about return to England or not.
The coercive nature of the power of the Court must properly extend to the mother moving from Brisbane to Region G. It is not the case that the mother wishes to be free to live wherever she chooses in Australia. She does not wish to live in this country at all. She cannot afford to remain living in her present apartment and would have to move elsewhere in Brisbane.
On that basis, with reasonable latitude, the mother should live where the child is best able to spend time with her father and to have both parents involved to the maximum extent in her young life. That place is D Town and its immediate region.
Thereafter, both parents will be restrained from changing the location of the child’s residence without the written consent of the other.
The Court has concluded that the orders proposed by the mother are fundamentally impracticable and not in the best interests of the child.
Over the opposition of the mother a further move will be ordered. It is an imposition and a constraint on the mother for the sake of the best interests of the child.
Practicality
The father receives a roster for the year ahead in November/December prior. The mother is familiar with the father’s work patterns. She annexed the 2021 roster of the father to her affidavit.
The father is granted two weeks annual leave only. He uses best efforts to start that two week period at the end of a “five day off” shift in order to maximise the break. There is competition for annual leave at Christmas. It is more likely to be granted every second year.
CONCLUSION
Remaining in Australia will represent a loss for the mother of her ability to live in her country of origin and to raise the child there. For the child it will represent a gain. She will have both her parents with her as she grows up.
By extension, being in Region G, rather than interstate, will be an even greater gain for the child. She will, after a period of adjustment and gradual increase of time, live between her parents on a week about basis. Both parents identified that arrangement would be in her best interests in the event relocation of the child to England by the mother was not permitted.
If the child is sick, either or both parent can respond. When there is a pre-school or school event either or both parents can attend.
The mother may prefer not to call on them, in the short term or ever, but the paternal grandparents are willing and able to assist with the care of the child when either parent is working or has other commitments.
THE ORDERS
As both parents proposed, orders are made for the parties to equally share parental responsibility for long term decisions. Given the confidence of each parent in the other, as parents, day to day decisions will be made by the parent with whom the child is living at the time.
The mother is required to establish and maintain a residence for the child in Australia and specifically in a defined region around D Town. Once that residence has been established both parents are restrained from establishing a residence for the child outside the region without the consent of the other.
After a period of graduated time introducing overnight stays and blocks of time the child will move to equal shared time, week about.
It is impracticable, and unreasonably onerous for the child and the mother, to make orders maximising the father’s time with the child consistent with his roster after equal shared care begins.
The parties of course have the option of making changes to suit themselves but otherwise each parent is responsible for the care of the child for a week, for getting her to school/preschool, caring for her or arranging for her care. As all parents do when one or both the parties are working paid care or family assistance will be called for.
There is provision for the mother to travel with the child to the UK for a block period of eight weeks before she starts school in 2024 and thereafter for both parents to travel overseas with her. Taking into account past conduct of the mother retaining the child it is appropriate, unless the parties agree otherwise, for the father to hold the passport of the child other than when the mother is travelling with her.
The mother responded to a question in cross-examination about the procedural orders proposed by the father for international travel. She said that she had “no issues” with them. Against the possibility that the mother had not turned her mind to the proposal for a surety when she gave that answer I note the following matters. An order is made for payment by the mother of a surety to enable the father to act swiftly in the now less likely event that the mother failed to return to Australia with the child. It is probable that the mother’s family will be called on to provide those funds by the mother. The Court is confident given the evidence of each of her parents that there would be an ability and willingness to provide such a sum on a short term basis.
Orders are made accordingly.
I certify that the preceding one hundred and seventy (170) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary. Associate:
Dated: 2 December 2021
0
3
0