FLOROS & FLOROS
[2021] FamCA 13
FAMILY COURT OF AUSTRALIA
| FLOROS & FLOROS | [2021] FamCA 13 |
| FAMILY LAW – CHILDREN – Parental Responsibility – Where the parties agree there should be equal shared parental responsibility – Where there is no reason to deviate from the agreed position – Where the mother shall have the final say in circumstances where the parties are not in agreement – Orders. FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Relocation – Best interests of the child – Where the mother seeks to relocate with the child to B City in Country C – Where the father opposes the relocation – Where both parties have family in B City – Where the child is 13 years of age – Where the child expresses a strong desire to relocate – Where the child is currently living with the mother and spending limited time with the father during the day only – Where the child has a weak attachment to his father – Where the father seeks a continuation of the current time spending arrangements – Where the father is concerned the relocation will further distance his relationship with the child – Where the mother does not oppose the child spending time with the father in Australia or B City – Where the current quality of relationship between the father and child will not be diminished – Where the child suffers from a medical condition requiring day to day management – Where the father has had little involvement in the child’s health management and education – Where there are medical professionals in Country C who can appropriately treat the child’s condition – Where the father is concerned the child will struggle to transition into the Country C education system – Where the child’s level of proficiency in the Country C language will improve over time – Consideration of the impact of COVID-19 – Orders. |
| Evidence Act 1995 (Cth) ss 135, 144. Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 69ZN, 69ZT |
| AMS v AIF (1999) 199 CLR 160 Starr & Duggan [2009] FamCAFC 115 Zahawi & Rayne [2016] FamCAFC 90 |
| APPLICANT: | Mr Floros |
| RESPONDENT: | Ms Floros |
| FILE NUMBER: | DNC | 459 | of | 2017 |
| DATE DELIVERED: | 22 January 2021 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 24, 25 and 26 August 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Livingstone |
| SOLICITOR FOR THE APPLICANT: | Maleys Barristers & Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Farmer |
| SOLICITOR FOR THE RESPONDENT: | Withnalls Lawyers |
Orders
That all previous parenting orders be discharged.
That the parties have equal shared parental responsibility for X born … 2007 (“the child”) with the mother to have sole parental responsibility in the event that the parties cannot come to a joint decision about a major long-term issue.
That the child live with the mother.
That the child be permitted to relocate with the mother to B City, Country C on or after 18 December 2021.
That the child spend time with the father as agreed between the parties but failing agreement as follows:-
(a)In Australia, twice per calendar year for a period of up to two (2) weeks on each occasion PROVIDED that the period shall take place only during the Country C school holidays and any period shall only include Christmas Day in even-numbered years;
(b)In the event the father travels to the child’s place of residence and upon giving the mother twenty eight (28) days’ notice as agreed between the parties but failing agreement up to two (2) weeks twice per calendar year with the father to ensure that the child attends school and engages in his usual extra-curricular activities.
(c)That for the purpose of the child spending time in Australia with the father:-
(i)upon the mother’s election, the mother, the father or a member of either parties’ extended family accompany the child between Country C and Australia;
(ii)the father shall book and pay for all airfares for the child and the person accompanying the child, with the mother to reimburse the father for one half of the costs within twenty one (21) days.
(d)That the father be able to communicate with the child at all reasonable times but failing agreement each Sunday between 6.00 pm and 7.00 pm (Australian CST) with the father to instigate the FaceTime, WhatsApp or Skype call to the mother and the mother to facilitate the call.
That until such time as the child shall relocate to B City:-
(a) That the child live with the mother;
(b)That the child spend time with the father as agreed between the parties taking into account the child’s wishes, but failing agreement each Tuesday and Thursday from 6.00 pm until 8.00 pm and each alternate Sunday from 10.00 am until 4.00 pm;
(c)That the child spend time with the parties during school holidays after consideration of the child’s wishes as follows:-
(i)with the mother for the entire duration of the Term 1 and Term 3 school holidays each year;
(ii)with the father for one half of the Term 2 school holidays each year, during the day only;
(iii)with the mother for the entire duration of the Term 4 school holidays and each even numbered year thereafter; and
(iv)with the father during the second half of the Term 4 school holidays in each odd numbered year during the day only.
(d)That the child spend time with the parties for the Christmas period as follows:-
(i)in even numbered years with the mother from 9.00 am until 12 noon and with the father from 12 noon until 5.00 pm;
(ii)in odd numbered years with the father from 9.00 am until 12 noon and with the mother from 12 noon until 5.00 pm.
(e)That the child spend time with the parties during the Country C Orthodox Easter periods as follows:-
(i)in even numbered years with the father from 8.00 am on Good Friday until 6.00 pm on Easter Saturday and with the mother from 6.00 pm on Easter Saturday until 6.00 pm on Easter Monday;
(ii)in odd numbered years with the mother from 8.00 am on Good Friday until 6.00 pm on Easter Saturday and with the father from 6.00 pm on Easter Saturday until 6.00 pm on Easter Monday;
(f)That the child spend time with the father on Father’s Day from 10.00 am until 6.30 pm and with the mother on Mother’s Day from 10.00 am until 6.30 pm;
(g)That the child spend time with each party on their birthdays as agreed between the parties, but failing agreement for not less than two (2) hours;
(h)That the child spend time with the father on the child’s birthday as agreed between the parties but failing agreement for not less than two (2) hours.
That handovers shall be as agreed between the parties but failing agreement at the mother’s residence with the father to collect and return the child.
That the parties each be permitted to travel with the child interstate, intrastate or overseas provided that the travelling parent provide the non-travelling parent with:-
(a)not less than fourteen (14) days’ notice of their intention to travel; and
(b) a copy of the itinerary and contact details.
The parties sign all documents and do all things necessary to ensure the child maintains a valid passport which is to be retained by the mother.
That not less than seven (7) days prior to any overseas travel, the mother provide the father with the child’s passport and the father shall return the child’s passport to the mother immediately upon the conclusion of travel.
That the parties communicate by text or email except in the event of an emergency when communication will be by telephone.
That the parties keep each other informed of their current contact details and advise the other of any changes within seven (7) days.
That the parties advise each other of any medical or other emergency involving the child whilst in their care.
That the father do all things and sign all documents as may be necessary to enable the child to leave Australia for the purpose of his relocated residence in B City.
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 Floros & Floros 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 ADELAIDE |
FILE NUMBER: DNC 459 of 2017
| Mr Floros |
Applicant
And
| Ms Floros |
Respondent
REASONS FOR JUDGMENT
Introduction
The proceedings between Mr Floros (“the father”) and Ms Floros (“the mother”) concern the future parenting arrangements for X born in 2007 (“the child”). The child is currently 13 years of age.
The proceedings were listed for trial on 24 August 2020 and judgment was reserved on 26 August 2020. The trial was conducted by way of Microsoft Teams video link from Adelaide to N City.
The litigation between the parties commenced with the father filing an Initiating Application on 27 September 2017 in relation to property matters. On 31 May 2019, the parties resolved the property proceedings by way of consent order and the mother filed an Amended Response to Initiating Application seeking parenting orders.
Interim parenting orders were made, also by consent, on 31 May 2019. The orders provided for the child to live with the mother and spend time with the father as agreed, but failing agreement every Tuesday and Wednesday from 6.00 pm to 8.30 pm and each alternate Sunday from 10.00 am to 4.00 pm.
On 12 November 2019, the mother filed a Further Amended Response to Initiating Application seeking parenting orders permitting the child to relocate with the mother to B City, Country C. The father is opposed to the relocation.
By Amended Initiating Application filed 20 December 2019 the father seeks orders summarised as follows:-
(1)That the parties have equal shared parental responsibility for the child.
(2)If the child resides in N City:-
(a)That the child live with the mother;
(b)That the child spend time with the father as agreed between the parties, but failing agreement every Tuesday and Wednesday from 6.00 pm to 8.30 pm and each alternate Sunday from 10.00 am to 4.00 pm;
(c)
That the child spend time with the parties on Christmas
Day as follows:
(i)in even numbered years with the mother from 9.00 am until 12 noon and with the father from 12 noon until 5.00 pm;
(ii)in odd numbered years with the father from 9.00 am until 12 noon and with the mother from 12 noon until 5.00 pm;
(d)That the child spend time with the parties during the Country C Orthodox Easter as follows:
(i)in even numbered years with the father from 8.00 am on Good Friday until 6.00 pm on Easter Saturday and with the mother from 6.00 pm on Easter Saturday until 6.00 pm on Easter Monday;
(ii)in odd numbered years with the mother from 8.00 am on Good Friday until 6.00 pm on Easter Saturday and with the father from 6.00 pm on Easter Saturday until 6.00 pm on Easter Monday.
(e)That the child spend time with the father on Father’s Day from 10.00 am to 6.30 pm and with the mother on Mother’s Day from 10.00 am to 6.30 pm.
(f)That the child spend time with each party on their birthday as agreed between the parties, but failing agreement for no less than two hours.
(g)That the child spend time with the father on the child’s birthday as agreed between the parties, but failing agreement for no less than two hours.
(h)That in the event the mother is unable to care for the child for a period of more than 12 hours, the father be given the opportunity to care for the child in the first instance.
(i)Handover shall be as agreed between the parties but failing agreement, at the mother’s residence with the father to collect and return the child.
(j)That the father be able to communicate with the child at all reasonable times by telephone and via Skype/FaceTime as agreed between the parties, but failing agreement every Monday, Wednesday and Thursday between 5.00 pm and 6.00 pm.
(k)That the mother be able to communicate with the child via Skype/FaceTime each Sunday that the child is not in her care.
(l)That each party be able to take the child interstate or intrastate up to four times per year, for no more than two weeks each time, provided that the travelling parent provides the non-travelling parent:
(i)with at least 14 days’ notice of their intention to travel with the child or if there is a family emergency as much notice as possible; and
(ii)with a copy of the travel itinerary and the return air tickets.
(m)That each party be able to take the child overseas up to two times per year, for no more than eight weeks each time, provided that the non-travelling parent agrees in writing and the travelling parent provides the non-travelling parent:
(i)with at least 21 days’ notice of their intention to travel with the child or if there is a family emergency as much notice as possible;
(ii)with a copy of the travel itinerary, return air tickets and travel insurance; and
(iii)with a copy of the verification that the overseas travel details are registered online with smartraveller.
(n)That the parties do all things and sign all documents relevant to the entry requirements for any country to which the child is travelling to.
(o)That the parties are restrained and an injunction is granted restraining them from travelling with the child, either directly or indirectly, to a non-Hague Convention country or to a country where the current travel warning issued by the Australian Government Department of Foreign Affairs and Trade is ‘exercise a high degree of caution’ or above.
(p)That the child remain enrolled at K School with the father to pay the mother one half of all the costs and expenses for the child.
(3)If the child is permitted to relocate to B City, Country C:-
(a)That the child live with the mother.
(b)That the child spend time with the father as agreed between the parties, but failing agreement as follows:
(i)in Australia, twice per year, for a period of up to 3 weeks each time, provided that the period shall only include Christmas day in even numbered years;
(ii)in the event the father travels to the child’s place of residence and upon giving the mother 14 days’ notice, as agreed between the parties, but failing agreement up to 4 weeks, twice per calendar year with the father to ensure the child attends school and engages in his usual extracurricular activities during that period.
(c)For the purpose of the child spending time with the father, the parties shall equally share the cost of the child’s airfare, as agreed between the parties, but failing agreement with the mother to pay for the cost of the child’s airfare from Country C to N City and the father to pay for the cost of the child’s airfare from N City to Country C.
(d)That the father be able to communicate with the child at all reasonable times by telephone and via Skype/FaceTime as agreed between the parties, but failing agreement every Monday, Wednesday and Thursday between 5.00 pm and 6.00 pm.
(4)That the parties shall keep each other informed of their current contact details and will inform the other of any change within 7 days.
(5)That the parties will advise each other of any medical or other emergency involving the child whilst the child is in their care.
(6)That the parties be restrained from denigrating the other in the presence of the child.
(7)That the child’s school and medical practitioners be authorised to provide each of the parties with information pertaining to the child.
By Further Amended Response to Initiating Application (“Further Amended Response”) filed 12 November 2019 and as amended in the Case Outline filed 21 August 2020, the mother seeks orders summarised as follows:-
(1)That the parties have equal shared parental responsibility for the child with the mother to have sole parental responsibility in the event the parties cannot come to a joint decision about a major long-term issue;
(2)That the child be permitted to relocate with the mother to B City, Country C.
(3)If the child is permitted to relocate to B City:-
(a)That the child live with the mother.
(b)That the child spend time with the father as follows:-
(i)if the father travels to B City, upon providing the mother with not less than 28 days’ written notice, then at all reasonable times during the day provided the child attends all school and extra-curricular activities;
(ii)if the father has not travelled to Country C and spent time with the child between June to October, then in Australia for a period of not less than two weeks during the Christmas holidays, to include Christmas Day in even numbered years and the time to be during the day only; and
(iii)in Australia at such other times as the parties may agree.
(c)That for the purpose of the child spending time in Australia with the father:-
(i)Upon the mother’s election, the mother, the father or a member of either parties’ extended family accompany the child between Country C and Australia.
(ii)The father shall book and pay for all airfares for the child and person accompanying the child with the mother to reimburse the father for one half of the costs within 21 days.
(d)That the father be able to communicate with the child at all reasonable times but failing agreement, each Sunday between 6.00 pm and 7.00 pm Australian EST, with the father to instigate the FaceTime, WhatsApp or Skype call to the mother and the mother to facilitate the call.
(4)If the child is not permitted to relocate to B City:-
(a)That the child live with the mother.
(b)That the child spend time with the father as agreed between the parties, but failing agreement and upon consideration of the child’s wishes each Tuesday and Thursday from 6.00 pm until 8.00 pm and each alternate Sunday from 10.00 am until 4.00 pm.
(c)That the child spend time with the parties during the school holidays after consideration of the child’s wishes as follows:-
(i)with the mother for the entire duration of the Term 1 and Term 3 school holidays each year;
(ii)with the father for one half of the Term 2 school holidays each year, during the day only;
(iii)with the mother for the entire duration of the Term 4 school holidays in each odd numbered year; and
(iv)with the father during the second half of the Term 4 school holidays in each even numbered year, during the day only.
(d)That the child spend time with each of the parties during the Christmas period as follows:-
(i)In odd numbered years, the mother may spend time with the child from 12.00pm Christmas Eve to 2:00pm Christmas Day, and in even numbered years, with the mother from 2:00pm Christmas Day to 2:00pm Boxing Day;
(ii)In even numbered years, the mother may spend time with the child from 12:00pm Christmas Eve to 2:00pm Christmas Day, and in odd numbered years, with the father from 2.00pm Christmas Day to 2:00pm Boxing Day.
(e)That the child spend time with each of the parties during the Country C Orthodox Easter period as set out in the Further Amended Response as follows:-
(i)In even numbered years with the father from 8.00 am on Good Friday until 6.00 pm on Easter Saturday and with the mother from 6.00 pm on Easter Saturday until 6.00 pm on Easter Monday.
(ii)In odd numbered years with the mother from 8.00 am on Good Friday until 6.00 pm on Easter Saturday and with the father from 6.00 pm on Easter Saturday until 6.00 pm on Easter Monday;
(f)That the child spend time with the father on Father’s Day from 10.00 am to 6.30 pm and with the mother on Mother’s Day from 10.00 am to 6.30 pm.
(g)That the child spend time with the father on the child’s birthday as agreed between the parties, but failing agreement, for no less than two hours.
(h)That the child spend time with the each of the parties on their birthdays, as set out in the Further Amended Response, as agreed between the parties, but failing agreement for no less than two hours.
(i)That handover occur at the mother’s residence, with the father to collect and return the child.
(5)That the parties each be permitted to travel with the child interstate, intrastate and/or overseas provided that the travelling parent provides the non-travelling parent with:
(a)not less than 14 days’ written notice of their intention to travel; and
(b)a copy of the itinerary and contact details.
(6)That the parties sign all documents and do all things necessary to ensure the child maintains a valid passport which is to be retained by the mother.
(7)That not less than 7 days prior to any overseas travel, the mother provide the father with the child’s passport and the father shall return the child’s passport to the mother immediately upon the conclusion of the travel.
(8)That the parties communicate by text or email except in the event of an emergency when communication will be by telephone.
(9)That the parties keep each other informed of their current contact details and advise the other of any change within 7 days.
(10)That the parties advise each other of any medical or other emergency involving the child whilst the child is in their care.
The mother also seeks various injunctions including but not limited to, the consumption of alcohol prior to any time spending with the child, the physical disciplining of the child and the use of social media.
During final submissions, counsel for the mother also indicated that should relocation be permitted, the mother seeks an ancillary order that the father do all things and sign all documents necessary for the child to travel and in relation to the child’s residency.
Chronology
1976
Date of birth of the father
1977
Date of birth of the mother
1987
The mother and her family move to Country C
1994
The father and his family moved to Australia from B City, Country C
1996
The mother returned to Australia with her father
1996
The parties meet
1998
The parties marry
1999
Date of birth of the parties’ first child, Mr J
2000
Date of birth of the parties’ second child, Ms M
2007
Date of birth of the parties’ third child, X
24/08/2016
Date of separation
27/09/2017
The father files an Initiating Application seeking settlement of property
31/05/2019
Final orders, by consent, are made resolving the property proceedings
31/05/2019
The mother files an Amended Response to Initiating Application seeking parenting orders
12/11/2019
The mother files a Further Amended Response to Initiating Application seeking orders that the child be able to relocate with her to B City, Country C
Background
The father is 44 years of age and is a tradesperson. The mother is 43 years of age and is a casual worker.
The father was born on B City, Country C and moved to Australia with his parents and siblings in 1994. The father still has family ties in B City, with his parents and some of his extended family residing there.
The mother was born in N City and moved to Country C with her family in 1987.
In or about 1996, the mother returned to N City with her father. The mother also has family ties in B City.
Both parties are Country C citizens and registered as residents of B City.
The parties met in 1996 in N City. They married in1998 and separated on 24 August 2016. There are three children of the relationship, two of whom are adults and therefore not the subject of these proceedings.
During the marriage, the father was the primary financial provider whilst the mother was the primary carer for the children and homemaker.
In or about 2002, the mother commenced some casual work at night. The father cared for the children on these evenings.
From about 2005, when the two older children attended primary school the mother secured casual work during school hours, five days per week.
Upon the birth of the child in 2007, the mother remained at home on a full time basis. In or about 2012, once the child had commenced pre-school, the mother returned to casual work during school hours.
The parties separated upon the return of the mother and two of the children from a trip to Country C.
In August 2016, the mother and the child left the former matrimonial home following the attendance of the police due to the mother reporting an incident between the father and herself. The father remained in the former matrimonial home with the two older children.
Pursuant to orders made by consent on 31 May 2019, the child is living with the mother and spending time with the father as agreed, but every Tuesday and Wednesday from 6.00 pm until 8.30 pm and each alternate Sunday from 10.00 am until 4.00 pm.
The father considers that the time spending arrangements have been going well and although he would like to spend some additional time with the child he acknowledges that the child has not expressed a clear desire to do so and he does not wish to place any pressure on the child.
Both parties have re-partnered which together with the parties’ separation appears to have been the cause of much animosity amongst the parties, their partners, their families, the two older children and the wider Country C community in N City.
The mother met her partner Mr H whilst in Country C in or about August 2016. Mr H relocated from B City to N City in September 2016 and currently lives with the mother and the child.
The father met his partner Ms G on 26 November 2016 and they commenced a relationship in January 2017. The father and Ms G currently live together and the father considers that the relationship is going well and they intend to marry.
After the parties’ separation, the two older children remained living with the father, having little to no contact with the mother. Their relationship with the mother has been on and off since separation. At times they have lived with the mother, but they now both live independently of the parties.
The mother wishes to relocate with the child to B City to enjoy a fresh start with her partner and the child. The mother considers that she is not socially isolated in B City as she is in N City and that the cost of living is cheaper in B City. Both the mother and her partner have an employment opportunity in a café in B City, which the mother considers would be less labour intensive than her current work. The mother wants to “return to engage in the Country C culture, language and way of life”.[1] She would like the child to have an opportunity to also experience that life.
[1] Affidavit of the mother filed 31 July 2020, paragraph 176.
The father is strongly opposed to the child relocating with the mother to B City. The father is particularly concerned for the child’s wellbeing, education, the relationship he has with the child and the relationship the child has with his family in N City.
The child currently attends K School in N City and completed year 7 last year. He is a Country C citizen but is not registered as a resident of B City.
The child is currently engaged in Country C tutoring three to four times per week. However, the father is not confident in the child’s ability to read, write and comprehend the Country C language at a level sufficient for schooling in Country C.
In 2012, the child was diagnosed with Wilson’s disease. Wilson’s disease is a genetic lifelong disorder where copper builds up in the body and is not properly eliminated. Several medical professionals have been involved in the care of the child with respect to his condition. In particular, the child has personally attended upon Professor F, who is a paediatric gastroenterologist and hepatologist and a Director of a Department at L Hospital in P City.
The child’s condition is treated and managed by dietary restrictions and a strict medication regime involving medication being administered at specific times throughout the day. The medication requires refrigeration and its purpose is to try and actively remove the copper from the body.
The child has regularly travelled to P City for procedures and assessments of his condition. The father is concerned that the child will not receive the same specialist care he currently receives should he be permitted to relocate to B City. The mother considers that the child’s condition can be managed by the appropriate medical professionals in Country C and is financially viable.
Covid-19
An issue which further complicates these proceedings is the COVID-19 pandemic and the impact of travel restrictions on the child and time spending arrangements should the child be permitted to relocate with the mother to B City.
During the proceedings, I raised with counsel the possibility of the matter being adjourned until the end of 2020 to see whether travel restrictions, as a result of the pandemic, had changed or become clearer. Counsel for the mother indicated that the mother was not seeking to relocate until at least after the 2020 school year in N City had concluded. During final submissions, counsel for the father submitted that a temporary adjournment could enable the situation with respect to the COVID-19 pandemic to become clearer but would also prevent the child from preparing himself for the next academic year. Counsel also submitted that such an adjournment would prolong the litigation, which in itself is not in the best interests of the child. Neither party made an application to adjourn the proceedings.
Pursuant to s 144 of the Evidence Act 1995 (Cth) (“the Evidence Act”) I can take judicial notice of the difficulties likely to be experienced travelling between Country C and Australia. Any orders that I make will need to take into consideration the practicalities of travel against the backdrop of the COVID-19 pandemic.
Documents relied upon
The father relies upon the following documents:
·Amended Initiating Application filed 20 December 2019;
·Affidavit of the father filed 4 August 2020;
·Affidavit of Ms G filed 4 August 2020;
·Affidavit of Mr J filed 4 August 2020;
·Affidavit of Ms M filed 4 August 2020; and
·Case Outline filed 13 August 2020.
The mother relies upon the following documents:
·Further Amended Response to Initiating Application filed 12 November 2019;
·Affidavit of the mother filed 31 July 2020;
·Affidavit of Mr H filed 31 July 2020;
·Affidavit of Professor F filed 4 August 2020; and
·Case Outline filed 21 August 2020.
Pursuant to a s 62G(2) order made 31 October 2019, a Family Assessment Report dated 27 March 2020 was prepared by Family Consultant Ms D. The report was received and read into evidence.
Evidence
At the commencement of the trial the Court highlighted the provisions of Pt VII Div 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act.
Neither party spoke against the application of the provision of s 69ZT of the Act.
I considered that the principles as set out in s 69ZN of the Act would be better served by receiving the evidence that each of the parties relied upon, but exercising my discretion under s 69ZT(3) of the Act as to the weight which would be given to the evidence, particularly if it is contentious.
Consideration was given to the objections to affidavits of evidence by the application of r 15.13 of the Family Law Rules 2004 (Cth) (“the Rules”) and s 135 of the Evidence Act.
The father
The father acknowledges that he has extended family who live in B City, in particular comprising his parents, uncles and cousins.
The father came to Australia in 1994 and took up residence in N City. From time to time the father has returned to visit his family but has no intention or interest in returning to B City to live.
The father acknowledged that the child currently spends no overnight time with him and whilst he seeks overnight time, he accepts that at least for the present, the child has expressed clear opposition to spending extended time with him.
The father remains opposed to the mother’s proposal for the child to relocate to B City and doubts that the mother’s proposal for the child to spend a period of not less than two weeks with the father in Australia is viable.
The father concedes that the orders he seeks for either parent to be able to travel with the child interstate or overseas would have to be subject to the child’s wishes. The father agreed that he would not and in all probability could not force the child to spend extensive periods of time in his care.
A further difficulty is that the father’s proposal for overseas travel for up to two periods of no more than eight weeks each time would have a detrimental impact upon the child’s education. Any proposal that involves extensive interstate or overseas travel would have to be limited to school holiday periods.
If the child is permitted to relocate the father offered to share equally in the costs of the child’s travel and if an adult is required to accompany the child then the father would be prepared to contribute to those costs.
The father was challenged as to his ability to fulfil the generous level of contribution offered by him given that his taxable income was in the sum of $35,964.
The father is currently the subject of a Child Support Assessment of $108 per month. He is in arrears of about $1,600.
When challenged as to his ability to contribute to one half of the costs of travel for the child and an accompanying adult the father’s response was unconvincing.
The financial circumstances of the father was only briefly touched upon and it may be that he has other financial resources not reflected by his taxable income.
The level of emotion between the parties runs high. The father was not easily able to accept the breakdown of the relationship and concedes that in the first few days following separation he and the mother engaged in regrettable and offensive language to each other.
He admits that there was a physical tussle between them which resulted in the mother sustaining a minor injury to her arm. The mother contacted the police.
Whilst denying the mother’s allegation that he had referred to her as a “slut”, and a “whore” in the presence of the child, he does agree that he described the mother in those terms to others.
It is notable that at no time did the father raise a complaint or speak against the mother’s ability to parent the child.
The father stated that when the marriage ended in 2016 he was angry and upset. He sent abusive messages to the mother although he now considers that he has reconciled his differences with her and is no longer angry.
A regrettable feature of the proceedings is the involvement of the adult children of the parties namely, Ms M and Mr J. The children appear to strongly support the father.
The mother alleges that prior to separation the father administered stern and physical discipline of the adult children. The mother alleges that the child witnessed the father’s aggression.
From August 2016 to early 2018 neither adult children communicated with the mother.
The father acknowledged that the adult children had a dysfunctional and fractured relationship with the mother but denied that it was as a result of any overt behaviour on his part.
The father does admit sending a text message to the mother on 29 September 2016 in the following terms:-
Go fuck yourself bitch.
It is likely the father also posted the following remark on Facebook on 7 October 2016:-
My wife is the fakest person and the worst mother of my children.
The mother asserts that she tries to deal with the father in a positive manner and in particular keeps him informed of matters affecting the child. The father did not disagree with the mother’s assertion and was frank in his acknowledgment that problems persist in the abilities of the parties to communicate. The father’s position is that if he does not know why the mother is attempting to communicate with him, he will not answer.
The father accepts that he is kept up to date with the child’s medical condition and is advised of medication, appointments and ongoing treatment.
The father agreed that he had not actively participated in significant aspects of the child’s life, in particular the management of his medical condition.
The father has not been involved in the child’s education and has not been to visit the school whilst in Australia. He was frank in his concession that he left the child’s education up to the mother.
It is uncontroversial that the child’s primary care was almost exclusively undertaken by the mother. Both parties appear to support the child’s retention of his Country C heritage. The child has been attending Country C language classes and the father acknowledged that his command of the Country C language has improved. The father contributes one half of the ongoing expenses.
Whilst the father agrees that there has been improvement in the child’s Country C language skills, he considers that his proficiency is limited to less complex vocabulary.
The parties have been able to agree to share the school fees for the child’s curricular and extra-curricular activities.
The father was asked to reflect upon the observations of the family consultant that the child did not have a good relationship with the father’s partner Ms G. It appears that the child observed Ms G to physically attack the mother in March 2017. Whilst the father was not present at the time of the physical altercation, he agreed that if witnessed by the child it was likely to exacerbate the child’s underlying reluctance to spend significant time with him, particularly if Ms G is present.
The father demonstrated some frustration when describing the efforts he had undertaken to restore and develop his relationship with the child. Despite the father’s best endeavours, he agreed that the child remains very resistant to spending more time with him.
The father was asked to reflect upon the child’s observation of the father engaging in a physical altercation with both of the adult children. The father admitted the various incidents but was dismissive of the potential for his family violence to explain why the child may feel alienated from him.
The father now considers that his relationship with the adult children and in particular Mr J is good.
The child suffers from Wilson’s disease. As discussed, the father admitted that the child’s medical management had been undertaken almost exclusively by the mother. The father has not spoken to any of the child’s current medical specialists, nor has he spoken to any doctors or specialists in Country C.
To date the parties have complied with court orders.
Ms M
Ms M is the adult daughter of the parties. Ms M does not hold the mother and her current partner Mr H in high regard.
She asserts that she has heard Mr H and the child talk about the father in derogatory terms. Mr H has allegedly described the father to the child as a compulsive liar, having an old school mentality and uses the promise of gifts as an inducement for others to do his bidding.
Ms M has never heard Mr H say anything nice or positive about the father.
Ms M travelled with the mother and Mr H on holidays to Country C.
She observed Mr H being verbally aggressive towards the mother and remembers that he called the mother a “pathetic cunt”.[2] She remains concerned as to the extent to which Mr H abuses alcohol.
[2] Affidavit of Ms M filed 4 August 2020, paragraph 6.
Ms M did concede that Mr H has put in place house rules which whilst not to her liking, should not necessarily be considered as unreasonable. Ms M was asked why she had left the mother’s home. She attributes her decision to live with the father because she did not like Mr H. She alleged that he called her a “user”.[3]
[3] Affidavit of Ms M, filed 4 August 2020, paragraph 12.
When pressed, she conceded that she needed some financial help concerning her car and her lack of money.
She agreed that her relationship with the mother was difficult and that there had been no communication between them for some time.
It is apparent that following separation Ms M was upset and angry with her mother and blamed her for the separation. She agreed that she had called her a “bitch” and her attitude towards her mother was well-known by members of the family.
She agreed that at separation her father had called the mother a “whore”, “slut” and a “bitch”.
Ms M was not complimentary of the father’s current partner.
I find Ms M to be an unimpressive witness who presented as ready to disparage the mother for reasons that are not easily understood.
Ms G
Ms G is the father’s current de facto partner. She is supportive of the father’s proposal to spend time with the child and considers she has a reasonable relationship with him.
Ms G did concede that she had engaged in a nasty and physically aggressive incident with the mother in 2017.
The incident was observed by the child and she accepted that it may well be the basis for the child’s reluctance to spend overnight time with the father. Ms G was not complimentary of the mother and was prepared to become involved in the dispute between the parties.
Like the father and the adult children, Ms G had florid emotional outbursts.
Mr J
Mr J is the adult son of the parties. Similar to his sister, he lived with the mother, Mr H and the child for some time.
He left his mother’s home as a result of the alleged aggressive conduct of the mother’s partner.
He allegedly made observations of Mr H drinking alcohol each night and was uncomfortable engaging in conversation where the father was denigrated.
There were occasions when Mr J allegedly engaged in physical interaction with Mr H. It is his opinion that the relationship between the mother and Mr H is fragile, evidenced by threats that Mr H will leave the home.
It was put to Mr J that prior to separation he had attempted to assault the mother. He now cannot remember whether such an incident occurred but did understand that the father has stated he attempted to intervene in order to stop the physical altercation escalating.
Whilst he did not speak to the mother for about 12 months after separation he ultimately decided to try and reconcile their differences and lived with her for some time in 2018. It is noted that the mother says the period in which he resided in her home was between May and November 2019.
Mr J was questioned as to his physical interaction with his parents. He agreed that there was an altercation with his father on Christmas Day in 2016. He punched the door and agreed that he wanted the incident to escalate to a physical fight with his father. The child was present and observed the distressing incident.
Mr J was questioned as to his drug use involving marijuana and whether this was a source of argument with the mother. He agreed that he had consumed marijuana and that his mother objected to his drug use.
Mr J acknowledged that he had probably read the court documents in circumstances where they were shown to him by the father. He and his sister have discussed the separation at length.
In circumstances similar to his sister, Mr J agreed that on 18 November 2019 he was angry with the mother because she was to get $108,000 by way of settlement of property. He accused the mother of having stolen the father’s money and demanded of her that he should receive a share.
He justified his remarks to the mother on the basis that he just wanted a contribution from the mother to be able to purchase a motor vehicle.
Mr J genuinely believed that the mother was not entitled to receive any property settlement because it was the father who had worked. He considered any money or property held by the parties should have been retained by the father with no entitlement to his mother.
The concern of Mr J as to the financial circumstances of the parties appeared to be further exacerbated by a recent conversation with the mother concerning the father’s legal fees and that the money being expended by the father on the litigation meant that the father was not able to provide financial benefit to him.
Mr J agreed that he has a temper.
Of some note was his concession that the mother had provided the primary care for the child.
Mr J was an unimpressive witness.
The mother
The mother contends that she has parented the child almost without input from the father. He does not involve himself in social commitments or the child’s curricular or extra-curricular activities. Whilst providing for the family financially he has not engaged in any significant decision in respect of the child and in particular, in terms of the child suffering from Wilson’s disease.
She considers that she will have a greater level of financial security in B City and whilst the financial circumstances of the parties are limited, appropriate arrangements can be made for the child to maintain a relationship with the father by the father spending time with the child both in Australia and in B City.
At the time of the hearing there were significant travel restrictions arising from the COVID-19 pandemic.
The mother had undertaken some preliminary investigation and found that as and from January 2021, providing that an exemption is granted, the cost of one way travel from Australia to B City for three people is about $4,000.
At the time it was probable that any person travelling to B City would need to home isolate.
The mother acknowledged that the child has a need for lifelong medical treatment. At present the principal medication is subsidised with a cost to the mother of $200 for each three month period.
The mother was shown Department of Foreign Affairs and Trade (‘DFAT’) documents which suggest that the Country C health system is compromised and that by necessary implication the ability of the mother to secure the appropriate care for the child is necessarily compromised.
The mother did not agree with the DFAT warning and she considered that following inquiries she had made, the child’s treatment in B City would not be compromised.
Her evidence was that in 2019 the child had seen both a general practitioner and a specialist couple who have satisfied the mother that the child can receive high level treatment.
The mother was asked to reflect on the poor school attendance of the child in 2014. The mother agreed that the child’s attendance amounted to 53 percent of the academic year but considered that any significant level of absenteeism could be explained either by the need for medical treatment or travel to B City.
The mother agreed that the father pays for medical health insurance. She acknowledged that she has not told the child that his father does care for him and that he pays for the child’s health insurance and contributes one half of the child’s attendance at school.
Whilst a rare disease, there appears to have been significant research into developing new treatments for the child that assist in normalising his day to day activities. To that end, the mother was asked whether she was aware that there was another drug which could assist the child in regularising his food intake. The mother was aware of the medication but understood that it was difficult to store. It must be refrigerated and there is the potential for some side effects.
Apparently the child has spoken to a girl in Country C about the drug and its potential benefits and side effects.
The mother was pressed on the child’s medication. In the family report the child is reported to hold a negative view about his father’s support for his education and medical development.
The child also expressed a positive view of the Country C medical system in circumstances where it is likely any level of confidence has been engendered by the mother.
The mother was asked to concede that she had not enquired of any specialist paediatrician in N City as to whether the child’s care would be compromised in Country C, or in particular in B City.
The mother understood that B City was an island and isolated from the mainland requiring a 12 hour ferry ride.
Whilst there is a hospital in B City, the mother was asked to concede that it is unlikely to have the same medical standard as that which is available in Australia in general and in N City in particular.
The mother did not agree that the management of the child’s medical health would be compromised in B City. She considered that she had managed the child’s medical health for many years and it was not credible that she would in any way comprise the child’s health simply because she would wish to return to B City.
The mother holds a more optimistic view of the child’s proficiency in the Country C language than does the father. She does concede that Country C is very much the child’s second language and his written Country C is poor, although with continued enrolment at Country C School there is ongoing improvement in his ability to write and speak in Country C.
The mother did not consider that the child would miss anything about N City. She considered he would be disappointed if he cannot live in B City and it is her opinion that he loves the language, culture and extended family. On each occasion that the child has visited B City he has very much enjoyed his time.
The mother conceded that the separation was difficult for everyone. She held the view that the father’s behaviour was less than ideal but agreed that she had expressed angry words towards the father and his current partner. She acknowledged telling her son that she does not think much of Ms G and believes that the child thinks she is a bad lady.
In what might be considered a startling admission, she admitted describing Ms G as “the biggest whore in N City” based upon her view that she would have indiscriminate sex with anyone.
Without much conviction, the mother acknowledged that there was no advantage or benefit to the child in knowing what the mother thinks of Ms G.
Professor F
Professor F is a paediatric gastroenterologist and hepetologist. She is the Director of one of the Departments at L Hospital in P City.
It is agreed that she has extensive clinical experience in looking after children who present with various forms of liver disease and in particular Wilson’s disease.
Both parties agree that Professor F is an expert in her field of study and that her evidence should be received as expert evidence.
Professor F diagnosed the child with Wilson’s disease on 7 November 2012. From that time she and other medical specialists have had the ongoing care of the child’s medical management. By reference to Professor F’s report annexed to her affidavit filed 4 August 2020, she described the child’s current diagnosis as being consistent with Wilson’s disease with evidence of “bridging fibrosis but not cirrhosis.”[4]
[4] Report of Professor F dated 29 June 2020, page 2.
The child’s prognosis is favourable and to date there is no medical evidence of irreversible liver damage.
The main focus in the treatment of Wilson’s disease is to limit or reduce the copper content in the liver.
Whilst recording that the child’s growth “has faltered over the last 2 - 3 years”,[5] Professor F considers that it is necessary for the child to receive treatment by a person with experience of Wilson’s disease.
[5] Ibid.
Looking forward, if the child can be “successfully de-coppered”[6] then a normal lifespan is a reasonable expectation.
[6] Ibid.
The broad parameters of the child’s future medical needs are summarised as follows:-
·Regular clinical review by a paediatric gastroenterologist 2 to 3 times per year;
·Aggressive de-coppering management;
·A low copper diet;
·Regular blood and urine tests to measure liver function, copper loss and compliance with medication;
·Liver biopsies to measure copper content and any progress of fibrosis and steatosis; and
·MRI imaging to check the progress of bile ducts.
Professor F was asked whether she knew of any suitably appropriate specialists in Country C who would be able to manage the child’s medical condition. Whilst not having any personal relationship, Professor F was aware of a Paediatric Gastroenterology Society in Country C whose membership comprised suitably qualified specialists.
Despite indications to the contrary, Professor F explained that Wilson’s disease is not in and of itself an area of specialty medicine but rather a rare but well understood disease able to be managed by a paediatric gastroenterologist.
Depending upon the severity of the condition, children suffering from Wilson’s disease can get sick very quickly even though they may appear to be asymptomatic. In those circumstances various serological tests need to be undertaken expeditiously to identify any early sign of liver damage.
Professor F was aware of medication currently on trial that enables a person suffering from Wilson’s disease to consume a more expansive range of food.
The evidence of Professor F should be considered as both highly reliable and expert. An important aspect in the treatment and management of the child’s medical condition is dependent upon the diligence of the child’s primary caregiver.
I am satisfied that there are specialists in Country C who hold the necessary skill and training to be able to appropriately treat the child.
Mr H
Mr H is the mother’s current partner. He and the mother met in B City in 2016 and he relocated to N City in that same year to commence a relationship with the mother.
Similar to the evidence given by the adult children, Mr H recollects various conversations with Mr Floros referring to the mother as a bitch and a person who had taken the father’s money.
Mr H denied that there was any uncertainty as to the strength of his relationship with the mother. He considered their relationship to be permanent.
He also referred to the relationship that the child has with Mr H’s mother describing it as a “strong bond”.
Of recent date Mr H considers that his relationship with the father is now civil but an ongoing source of conflict arises from the inability of the mother and the father’s partner to refer to each other in any other manner than in the most derogatory and offensive terms. Mr H conceded that he had heard the mother refer to the father’s partner as “the biggest whore in N City”.
Mr H was generally optimistic about employment and accommodation opportunities in B City. He has not made enquiries as to the availability and suitability of any school in which the child could be enrolled.
He was aware of some aspects of the Country C education system in that if the child relocated in early 2021 he would be in grade 7. He understood the mother’s position was that the child should complete 2020 in Australia and then relocate to B City during the Australian summer holidays.
Mr H considered that the child’s proficiency in the Country C language is well short of a native born speaker of his age, but that there was ongoing improvement.
Mr H impressed with his understanding of the current concerns regarding the child’s education and was proactive in seeking advice so that he could provide some tuition to the child each day. He considered that the child’s grades had improved and whilst at times the child appeared to struggle, he presents as determined to complete his work.
Mr H also appeared well versed in the medical management of the child’s Wilson’s disease and impressed as to what was required for the day to day management of the condition.
The evidence does not support any reticence or reluctance by the child to engage with Mr H and it appears that he has taken an active role in the day to day issues affecting the child.
Ms D – Family Consultant
Ms D was asked to prepare a family report pursuant to an order made on 31 October 2019. Interviews were conducted variously between the parties, the child and the mother’s partner.
In interview with the father, Ms D records that:-
[the child] ‘never’ makes an effort to communicate with him outside of their time together. [The father] said he rang [the child] ‘every day’. According to [the father], his time with [the child] has been occurring without any significant issue or impediment, and he did not feel that [the mother] had been interfering with his time with [the child], nor attempting to restrict his relationship with [the child]. …[7]
[7] Family Report dated 27 March 2020, paragraph 27
The father also conceded in interview that he had been verbally abusive towards the mother but that this had not occurred now for a significant period of time. He indicated that the relationship with the mother was “not friendly”[8] but again reiterated that he did not think the mother would in any way attempt to restrict his relationship with the child. Moreover, he was satisfied with the level of information being provided by the mother concerning the child generally but in particular with respect to the child’s medical issues.
[8] Ibid, paragraph 32.
The father has spoken to the child about his wish to relocate to B City. The father reported to the family consultant that he understood why the child wanted to live in B City as set out in the following paragraph:-
[The father] reported that [the child] had expressed to him that he wanted to relocate to B City with [the mother] and Mr H. [The father] said on a number of levels he understood why [the child] would want to live in B City, and that if he was able to live in B City, he would also choose to do so. [The father] said he could not move back to B City because he had little prospect of finding employment there.[9]
[9] Ibid, paragraph 34.
It is reasonably clear that the father’s concern was not related to the child’s genuine desire to live in B City but rather the father’s concern that the child:-
would be educationally disadvantaged, and would be greatly challenged by the adjustment he would have to make to a different school environment, including the curriculum and reading, writing and speaking Country C. According to [the father], [the child] was able to understand the Country C language, but was not fluent and could not speak Country C very well. He was aware that [the child] was participating in Country C tutoring via ‘Skype’ 3 to 4 times a week with a tutor based in B City.[10]
[10] Ibid, paragraph 35.
The child presented to the family consultant as being aware of the purpose of the interview and the focus of the litigation being his father’s opposition to the mother’s proposal that the child be permitted to relocate to B City.
The family consultant recorded that the child was unambiguous about the relocation prospect and was strongly in favour of that aspect of the mother’s parenting proposal.
Consistent with the evidence of Mr H and the mother, the child was highly complimentary of the mother’s current partner and in particular his family. The child compared and contrasted the interest that he considered was shown by Mr H’s mother and family with his view that his father and family were not interested in him.
He summarised his relationship with the father in the following manner:-
About spending time with his father, [the child] reported that [the father] collected him, and they went to his cousin’s home, where he played with his cousins and [the father] ‘plays cards’. He said, ‘it’s been the same thing for three years straight … Dad doesn’t do anything with me’. About his relationship with [the father], [the child] said, ‘dad and I have no connection. He lies, promises me stuff but never does it and he doesn’t take me anywhere. He has never collected me from school or takes me to school. He didn’t even come to my biopsy in P City because he said he had too much work … he could have come but he doesn’t care’. At this point [the child] became emotional and cried.[11]
[11] Ibid, paragraph 72.
The child also confirmed that notwithstanding he did not wish to spend time with his father, his mother was insistent that he go with him.
The family consultant remarked upon the paucity of interaction between the father and the child. There was an awkward physical interaction and during the balance of the observed period the child and the father did not engage with each other. The family consultant did not observe any “genuine affection, warmth or playful interaction”[12], nor was there “any bantering or laughter…”.[13]
[12] Ibid, paragraph 84.
[13] Ibid.
The observations of interaction between the child and the father are to be compared to the interaction with the mother and Mr H. The child was excited to engage with the mother and Mr H.
The family consultant summarised her observations as demonstrating that “[the child] has a strong and loving connection to his mother and to Mr H, and [the mother] and Mr H appeared to be highly attuned to [the child.]”[14]
[14] Ibid, paragraph 91.
The family consultant recommended that if the child is permitted to relocate to B City then he should spend as much time with the father, either in B City and/or N City, as is practicable and to retain and maintain regular contact with the father via multimedia.
If the child is not permitted to relocate then the family consultant recommends that the current orders are likely to best serve the interests of the child.
Principles applicable to relocation cases
In AMS v AIF (1999) 199 CLR 160, Hayne J highlighted that the focus of the Court must be on how a child or children would be affected either to their detriment or their benefit by the separate proposals of the parties:-
216.An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the Court to decide where the custodial parent may live: that decision is to be made by the parent.
…
218.To translate the question into this form – has the mother shown a good, or good enough, reason for wanting to move – focuses attention upon the reason and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child – to be in the custody of the father … or to be in the custody of the mother … That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother’s custody …
The Full Court in Starr & Duggan [2009] FamCAFC 115 gave clear direction as to the coexistent principle that the best interests of the child is the paramount consideration and the legislative framework will of necessity involve some overlap of a consideration of similar factors pursuant to s 60CC of the Act. The approach is not meant to be rigid such that:-
38.… it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
The relocating party is not required to justify why they seek to relocate. It is how well the best interests of the child will be served against the setting of each of the parties’ respective proposals.
Whilst there is no specific principle or procedure that is required to be brought to account when relocation is either overseas or involves a substantial distance between the relocating parties, the child and the remaining parent, nonetheless a tyranny of distance is likely to reduce the options available to the parties.
In the decision of Zahawi & Rayne [2016] FamCAFC 90 the Full Court considered a number of authorities, both international and domestic, and summarised the position as follows:-
47.All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48.“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
(Footnotes omitted)
In considering the authorities, I do not bring to account any abstract concept that suggests a party has a right of freedom of movement.
As discussed, the focus is to consider the separate parenting proposals of the parties, have regard to the benefits and detriments that the child will experience and ultimately determine the matter on the basis of the best interests of the child.
Parenting considerations
The father effectively seeks a continuation of the current parenting arrangements. At present, the child lives primarily with the mother and spends regular but no overnight time with the father.
Whilst the father does not agree that there is any good reason for the child only spending limited time with him, he remains prepared to respect the child’s wishes.
The father seeks that the parties have equal shared parental responsibility. The mother does not oppose same and seeks that she be permitted to relocate the child to B City.
The mother does not oppose the child spending time with the father either in Country C or more particularly B City.
The parties are not agreed as to the mechanics and likely cost of the child travelling from B City to N City.
I have regard to the practical reality of each parties’ proposal and in doing so, bring to account the considerations of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests test is to be considered by application of the objects of s 60B(1) of the Act and the underlying principles of s 60B(2) of the Act.
I give weight to the primary considerations and additional considerations in respect of the factors as set out in ss 60CC(2) and (3) of the Act.
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to the additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation and comment.
Meaningful relationship
Section 60B(1) of the Act provides that the aims and objects of the Act are to ensure that the best interests of a child or children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
A meaningful relationship does not connote an optimal relationship. It could never be said that the tyranny of distance provides the foundation for an optimal relationship between a child and a parent. However, what is required is that the relationship be meaningful.
The father will remain in N City. He has re-partnered and whilst his income is modest, he considers that his employment prospects are superior to those which might be available in B City. The father maintains a close familial and cultural relationship with the island of B City but does not consider that he would be able to replicate his current financial circumstances and prospects for advancement that are currently available to him.
The father is not critical of the underlying reasons given by the mother for her wish to relocate with her partner to B City. The father’s concern is that move will further distance his relationship with the child.
Each of the parties intend to promote the child’s involvement with the Country C and more particular Country C culture. The child currently attends Country C school and whilst the parties have a level of disagreement as to the child’s linguistic progress, both parents are supportive of the child’s continued improvement in his Country C language skills and proficiency.
The orders sought by each of the parties recognise that it is important for the child to maintain a meaningful relationship with the father.
The father recognises that the mother continues to parent the child to a high level.
The mother considers that there is at present only a limited relationship between the child and the father and any relocation of the child to B City will not necessarily diminish the extent of their current relationship.
The father’s opposition is primarily based upon his concern that the child would not receive high quality medical care and would struggle to engage with the Country C education system.
The family consultant considered that the father had not been an involved or hands on parent.
The evidence supports a finding that the father did not participate in major issues concerning the child, in particular his health management and his education. The father was content to take a back seat approach and the ongoing care, management and welfare of the child evolved to the mother.
The observations of the family consultant during the observed interaction led the family consultant to categorise the interaction between the father and the child as “unusual”.[15] The family consultant did not observe any genuine affection or spontaneous interaction and was left with the impression that the father was not interested in engaging with the child.
[15] Ibid, paragraph 81.
The contrast between the observations of the father’s interest in the child and the child’s engagement with the mother and her partner were stark.
If permitted to relocate, on the proposals of either of the parties, I consider that the current level and quality of relationship with the father would not be diminished.
Wishes of the child
At the date of hearing the child was almost 13 years of age.
The child had experienced life in B City albeit by way of a holiday.
The family consultant recorded that the child “unambiguously expressed a strong wish to relocate to B City”.[16] It should be remembered that the family were also assessed by the family consultant for the purposes of a Child Inclusive Conference in August 2019 and the child’s position remains unchanged.
[16] Ibid, paragraph 68.
With perhaps an element of bravado, the child was confident that he would easily integrate into the Country C education system and would receive appropriate medical care.
The child is acutely aware of the privations arising from his medical condition. His day to day experience centres upon a strict and highly regulated diet. He is aware of a new medication which may give some relief and expand the range of food that he is able to consume and the regularity of his meal times. I am satisfied that significant weight should be given to the child’s expressed wish to relocate to B City.
The nature of the relationship of the child with the parties and others
The child remains closely attached to the mother, her partner and his mother. The child has only a weak attachment to his father.
The relationship between the child and his adult siblings is more problematic.
Whilst the child would wish to maintain some relationship with his brother and sister, their relationship is not a significant consideration. The adult children did not impress in their evidence. They did not express significant interest in the child but were rather more focused on the conflict between their parents. Their support for one party or the other was dependent upon what benefit either might be gained or lost by each of them.
It is likely that the father would travel to B City irrespective of the child’s presence. The child is likely to maintain a relationship with the extended families of each of the parties, in particular given the close knit nature of the Country C society.
The extent to which each of the child’s parents have taken or failed to take parenting opportunities
The evidence supports a finding that the mother has undertaken the role of primary carer in respect of all major issues affecting the child and also the majority of day to day issues.
The father does provide some financial support in respect of the payment of private health cover and a contribution to the child’s Country C language tuition.
Given the modest income declared by the father, the assessment of child support is minimal.
The extent to which each of the child’s parents have fulfilled or failed to fulfil the parent’s obligation to maintain the child
The father is a self-employed tradesperson, his income is modest and his ability to support the child by way of the provision of child support is limited. The father does contribute towards the child’s private health cover and he also makes a significant contribution towards the child’s Country C language tuition.
For her part, the mother relies heavily upon the financial support of her partner.
The likely effect of any changes in the child’s circumstances
If the child remains in Australia then there is little effective change to the current parenting arrangements which are very much dictated by the child’s wishes.
If the Court makes orders in terms of the mother’s parenting proposal, the child would be permitted to relocate to B City. In those circumstances the father seeks that the child spend time with him as agreed between the parties but failing agreement, in Australia twice per year for a period of up to three weeks each time (with one period to coincide with Christmas Day in each even-numbered year) and in B City for up to four weeks twice per calendar year upon the father giving the mother 14 days’ notice.
If the child is permitted to relocate with the mother to B City, the mother proposes that if the father has not spent extended time with the child in B City between June to October that the father spend time with the child, in Australia, for a period of not less than two weeks during the Christmas school holidays (including Christmas Day in even-numbered years) provided that the time the child is to spend with the father is not to include overnight time.
The parties are not in complete agreement as to the extent to which each will contribute to the travel costs for the child to travel from Country C to Australia and return. Initially, the mother proposed that she would book and pay the airfares with the father to reimburse her a sum equivalent to one half of the airfare costs within 21 days.
The orders sought by the mother in her Case Outline document were that the father should book and pay for all airfares for the child and a person accompanying the child, with the mother to reimburse the father for one half of the costs within 21 days.
The father seeks that the child attend for two extended periods in Australia at the joint cost of the parties.
A further difficulty arises if the child refuses to spend overnight time with the father.
The uncontested evidence as to the child’s wishes is that he would be keen to relocate to B City. His relationship with the father is limited and I find that whilst there is a high level of volatility between the parties which now involves their partners, there is no evidence that the mother has sought to undermine the child’s relationship with the father. The various interim orders have been the subject of general compliance and any issue that has arisen appears to be a reflection of the child’s decision.
Significant weight is attached to the child’s observations of his time with the father and the corroboration of his position by the family consultant following the observed interaction.
It is difficult to find that the relocation will have a detrimental effect on the relationship between the child and the father.
A significant consideration is the extent to which the child’s congenital condition of Wilson’s disease is able to be properly treated in Country C.
There is substantial evidence that in Australia the child has received the highest quality of care. At present the child has been treated by experts at L Hospital in P City and in particular by Professor F who is a qualified and renowned paediatric gastroenterologist and hepatologist.
At the heart of the father’s contention is the proposition that the child’s medical needs are both complex and expensive. Professor F has no personal experience with the Country C health system and the broad contention is that whilst there is uncertainty as to the level of treatment that can be received by the child in Country C, no such uncertainty exists under the Australian health system.
Professor F placed the day to day regime of the treatment for the child into perspective. Whilst Wilson’s disease is rare and uncommon, it is not unknown. More particularly, it could not be said that it can only be managed by a specialist who has significant experience in the treatment of Wilson’s disease. It is a condition, whilst uncommon, that is within the range of knowledge and treatment of a paediatric gastroenterologist.
In Australia, the day to day treatment is undertaken in N City, whereas assessment and check-ups occur in P City. The evidence supports a finding that the mother has been entirely responsible for the child’s medical care. The father does not cavil with the high level of care and parenting exercised by the mother. There is no evidence that suggests the mother would put the child at risk simply because of her desire to relocate to B City.
The Court is entitled to assess the presentation of the mother in respect of the child’s care.
Professor F was also aware of appropriately qualified specialists practising within the Country C medical system that would be able to manage the child’s medical needs.
At present the child’s condition is well managed and stable. That is a reflection not just of the extent of the medical care that the child receives, but also the day to day management by the mother.
The evidence does not support a finding that the mother would be cavalier with the child’s health needs or take any action which would place the child at risk.
A second concern of the father is the extent to which the child will easily integrate into the Country C education system given that his proficiency in terms of reading and writing the Country C language is developing.
Little evidence was presented on the topic other than the consensus of the parties that the child’s interests are well served by him developing a better proficiency in Country C and to reinforce his Country C heritage.
There is however something in the father’s concern. The child is developing in a way that is satisfactory to the parties, but is not yet at a level of proficiency that would invite a finding of seamless transition into the Country C education system. That situation is likely to improve as time passes.
The impact of the COVID-19 pandemic cannot be ignored. I am entitled to take judicial notice of the current prohibition against international travel and whilst the mother may be able to arrange a travel exemption that does not answer the father’s concern that COVID-19 is rampant in Europe including Country C as opposed to the more benign circumstances in Australia.
The threat is real and cannot be easily overlooked.
It is conceded by the parties that overseas travel is not likely to be permitted until the middle of 2021.
Since the trial, there have been developments of a vaccine that may enable some normalisation of some international travel.
Any other relevant matters
The mother remains isolated in the Northern Territory and whilst her relationship with her partner appears to be committed, there remains considerable hostility between the parties, their current partners and the wider Country C community in N City.
The mother and her partner are convinced that the opportunity to run and operate the café in B City will provide them with a higher level of financial security than if they remain in the Northern Territory. For the father the converse is the case.
The child is strongly of the view that he would wish to reside in B City. His position has been constant and it appears to be based on mature reflection by the child as to environment and culture.
It is a regrettable aspect of the proceedings that the child does not appear to have a close relationship with the father and that he lacks emotional attunement. Morever, it appears that the adult children have little to offer the child and their relationship with him is such that it would not in and of itself speak against a relocation.
The child’s best interests must be the paramount consideration. The child expresses a clear preference to relocate to B City and subject to his health being able to be managed and a reasonable transition into the Country C education system, the child’s interest would be served by the mother’s proposal which involves a relocation to B City.
I consider that the mother’s presentation as a person with the child’s wellbeing at the forefront of her mind is such that there can be a high level of confidence the mother would not place the child at risk.
The complication of COVID-19 and its detrimental impact upon the ability of the parties to travel overseas freely and the child’s developing language skills are such that I consider a cautious approach should be adopted notwithstanding that I have made a finding of merit in the mother’s proposal to relocate.
The child will not be able to travel to B City for a number of months. By that time, the child will be well into the 2021 academic year.
I propose to order that the mother is able to relocate with the child to B City at the conclusion of the 2021 academic year. That will enable the parties to better assess the extent to which international travel may well harbor a risk to the child and will also allow for any rollout of a COVID-19 vaccination to be considered, assessed and ultimately administered.
A further 11 months will also enable the child’s language skills to develop to a level that assists in the better integration into the Country C education system.
Parental responsibility
The parties are agreed that there should be equal shared parental responsibility. Whilst I have some misgivings as to whether such an order reflects the current arrangement as between the parties and would be difficult to implement in circumstances where the child may reside in B City, nonetheless I see no good reason to deviate from the agreed position.
Consistent with the lack of involvement by the father in major issues affecting the child, there seems to be good sense in giving the mother the final say in circumstances where the parties are not able to reach a clear and ready consensus.
Conclusion
I propose to make orders that will enable the mother to relocate the child to Country C but in particular B City at the conclusion of the 2021 academic year.
The father should have the ability to spend time with the child both in B City and in Australia.
It is likely that the father will travel to B City and if so then there should be reasonable opportunity offered to him to spend time with the child.
The child travelling to Australia is problematic from the point of the likely costs involved, in particular if the child requires to be accompanied. It seems to me that in addition to whatever time the father may be able to spend with the child in B City, the child should spend time with the father in Australia for a period of up to two weeks provided that the period shall include Christmas Day in even-numbered years.
The parties are generally agreed as to overseas travel and the exchange of information as to the child’s education and in particular his health.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and sixty four (264) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 22 January 2021
Associate:
Date: 22 January 2021
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