FOTILAS & TZIKA
[2020] FamCA 212
•7 April 2020
FAMILY COURT OF AUSTRALIA
| FOTILAS& TZIKA | [2020] FamCA 212 |
| FAMILY LAW – CHILDREN – Parental Responsibility – Best interests of the child – Where the father seeks equal shared parental responsibility – Where the mother seeks sole parental responsibility – Where the mother has been making decisions with respect to major issues affecting the child – Where the father has been excluded from decisions – Orders FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Best interests of the child – Where the mother seeks to relocate with the child to Greece – Where the father opposes the relocation – Where both parties have extended family– Where the child has been living with the mother – Where the mother’s circumstances will be compromised by remaining in Australia – Where the father is concerned that if relocation is permitted he will not spend time with the child – Where there is little evidence as to the child’s education – Orders FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of the child – Where the father seeks a week about arrangement – Where the mother seeks that the child live with her and spend time with the father – Where the child has been living with the mother and spending time with the father – Where the child does not want to alter the current arrangements – Orders |
| Evidence Act 1995 (Cth) s 135 Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 65DAA(1), 69ZN, 69ZT, 69ZT(3) Family Law Rules 2004 (Cth) r 15.13 |
| AMS v AIF (1999) 199 CLR 160 Godfrey & Sanders [2007] FamCA 102 Mazorski & Albright [2007] FamCA 520 Starr & Duggan [2009] FamCAFC 115 Zahawi & Rayne [2016] FamCAFC 90 |
| APPLICANT: | Mr Fotilas |
| RESPONDENT: | Ms Tzika |
| FILE NUMBER: | DNC | 430 | of | 2016 |
| DATE DELIVERED: | 7 April 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Darwin |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 13, 14 and 15 January 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Romeo |
| SOLICITOR FOR THE APPLICANT: | Margaret Orwin Barrister and Solicitor |
| COUNSEL FOR THE RESPONDENT: | Ms Franz |
| SOLICITOR FOR THE RESPONDENT: | Darwin Family Law |
Orders
That the final parenting orders made 26 June 2017 as amended on 18 August 2017 be discharged.
That the parties have equal shared parental responsibility for X born …2009 (“the child”).
That the child shall live with the mother.
That until 1 August 2023 or such later time as the mother may elect to relocate with the child to C Island in Greece the child shall spend time with the father:-
(a) At such times as may be agreed but in default:-
(i)Each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Tuesday;
(ii)For one half of all end of term holidays at such times as are agreed but in default of agreement then:-
1. The child shall live with the mother for the first half of the said holiday period; and
2. The child shall live with the father for the second half of the said holiday period;
AND for the purposes of determining the same, the school holidays (including Christmas school holidays) shall be deemed to commence at the conclusion of school on the last day of term and conclude at 12 noon on the Sunday immediately preceding the new school term;
(iii)For the second half of the Christmas school holidays in 2020 and each alternate year thereafter and the first half of the Christmas school holidays in 2021 and each alternate year thereafter PROVIDED that the child shall live with the mother for the first half of the Christmas school holidays in 2020 and each alternate year thereafter and the second half of the Christmas school holidays in 2021 and in each alternate year thereafter;
(iv)With the father at Christmas as follows:-
1.From 3.00 pm Christmas Eve until 3.00 pm Christmas Day in 2020 and each alternate year thereafter PROVIDED that the child shall be with the mother from 3.00 pm Christmas Day until 3.00 pm Boxing Day in 2020 and each alternate year thereafter;
2.From 3.00 pm Christmas Day until 3.00 pm Boxing Day in 2021 and each alternate year thereafter PROVIDED that the child shall be with the mother from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in 2021 and each alternate year thereafter.
(v)On Greek Easter in 2020 with the father from 5.00 pm Thursday until 5.00 pm Friday and from 5.00 pm Saturday until 5.00 pm Sunday and with the mother from 5.00 pm Friday until 5.00 pm Saturday and each alternate year thereafter;
(vi)On Greek Easter in 2021 with the mother from 5.00 pm Thursday until 5.00 pm Friday and from 5.00 pm Saturday until 5.00 pm Sunday and with the father from 5.00 pm Friday until 5.00 pm Saturday and each alternate year thereafter;
(vii)On Father’s Day from 5.30 pm on the Saturday immediately preceding Father’s Day until 7.00 pm on Father’s Day;
(viii)If the child is with the father on Mother’s Day the father’s time is to be suspended for the child to be returned to the mother from 5.30 pm on the Saturday immediately preceding Mother’s Day until 7.00 pm on Mother’s Day.
(ix)That on the child’s birthday if it falls on a school day from 4.00 pm until 7.00 pm and if the child’s birthday falls on a non-school day from 2.30 pm until 7.30 pm with the father and from 9.00 am until 2.30 pm with the mother;
(x)On … in each year being the father’s birthday from 10.00 am until 10.00 am the following day;
(xi)On … being the mother’s birthday if it falls on a non-school day and should the child be in the father’s care the father’s time is suspended from 12.00 noon until 12.00 noon the following day;
(xii)Such further or other times as the parties may agree.
Upon the mother relocating with the child to Greece the child shall spend time with the father as agreed between the parties or failing agreement as follows:-
(a)For four (4) weeks in the Greek summer school holidays in Darwin or C Island, with the father to give the mother ninety (90) days written notice as to where he wants the child to spend time with him with the mother to pay the costs of her airfare and the parties to share the costs of the child’s airfare if the time is to be spent in Darwin, with each parent to pay the airfare costs in alternate years;
(b)For four (4) weeks in December/January in C Island with the time to include Christmas and New Year in 2023 and then in each alternate year thereafter;
(c)On any occasion should the father travel to C Island:-
(i)For up to seven (7) days on no more than two (2) occasions per year at his cost PROVIDED this time is not co-joined with any other time when the child is spending time with the father pursuant to these orders and the time does not interfere with the child’s schooling or extra-curricular activities;
(ii)For up to five (5) hours on the child’s birthday;
For the time the child spends with the father if the child is in C Island the father shall at his cost collect the child at the commencement of his time and return the child to C Island at the conclusion of his time SUBJECT to the following:-
(a)The parties agree the father may spend time with the child in a location of his choosing:
(b)The father shall provide to the mother no less than sixty (60) days’ notice before the departure date of his intention to travel with the child out of Island; and
(c)That not less than fourteen (14) days prior to the departure date, the father shall provide the mother the child’s general travel itinerary, including return flights, the address at which the child will be staying and the telephone number on which the child can be contacted during the child’s absence from C Island.
That should the child travel as an unaccompanied minor:-
(a)If either parent causes the child to miss a flight THEN the parent who is responsible for the missed flight will pay for the next available flight;
(b)The flights are to be booked to arrive and depart from the nearest airport to where the parent lives;
(c)The parent collecting the child is to telephone the other parent as soon as possible after collecting the child from the airport to confirm the child’s arrival;
(d)The parent delivering the child to the airport is to telephone the other parent to confirm the child has boarded the flight within thirty (30) minutes of the child boarding the flight.
That changeover for the child in Darwin and C Island shall be at the front of the mother’s residence or at an airport as may be necessary to facilitate the child’s travel arrangements or at such other place as the parties may agree.
That the child shall have the following communication with the father:-
(a)Telephone and audio-visual calls (Skype/Viber) at times as may be agreed between the parties but failing agreement as follows:-
(i)The father will telephone the child each day between 3.00 pm and 5.00 pm C Island time;
(ii)And to facilitate such communication the mother will have the child available to take the father’s call.
(b)The child can communicate with the father at all reasonable times as he may request and the mother is to facilitate the call.
That for the purposes of communicating information between the parties the mother and the father shall communicate:-
(a) By telephone for matters of an urgent nature and otherwise;
(b)By Text/Viber about day to day matters including arrangements for each party to spend time with the child.
Each of the parties shall advise the other and keep the other advised of:-
(a) Their separate residential address;
(b)Telephone numbers (including landline and mobile) at which they and the child can be contacted;
(c)The name and detail of any person over the age of eighteen (18) who is living with the child and the parent;
(d)Any changes to their residential address and telephone number within ninety six (96) hours.
That each of the parties be entitled to obtain directly from any health or welfare professional, education institution or any other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice relating to the health, education, welfare of the child and for this purpose, each of the parties shall immediately notify the other party of the name and contact details of any relevant health or welfare professional or education institution and keep the other so informed.
That without admission as to liability each party be restrained and an injunction granted restraining each of them from:-
(a)Denigrating the other parent or members of the other parents’ family to the child or in the child’s hearing or presence or allowing any other person to do so;
(b)Entering into or remaining at one another’s residence except with prior written consent.
That the parties shall inform the other as soon as practicable of any medical or other emergency concerning the child and provide to the other parent details of any treating practitioner, hospitalisation and medication.
That each party shall inform the other and follow all reasonable medical directions regarding the medication and treatment for the child as may be recommended by the child’s general practitioner.
That the parent with whom the child is spending time in accordance with these orders shall take all necessary steps to deliver the child to any extra-curricular activities that may fall during the time the child is spending time with the other.
The father agrees that the mother can travel overseas on one (1) occasion per year with the child and the mother agrees that the father can travel overseas on one (1) occasion per year with the child.
The father agrees that should the mother wish to take the child overseas on another occasion she may do so PROVIDING she gives sixty (60) days’ notice and the father is to have makeup time with the child upon the child’s return.
That the mother and father will do all things and sign all documents necessary to obtain an Australian passport for the child within thirty (30) days of a request by either party and that, if either party does not sign the passport or application for the child within thirty (30) days THEN these orders will provide sufficient authority such that either party is hereby authorised to be the sole applicant and sole signatory for any application for a passport to issue for the child X born 2009 and each parent may exercise sole parental responsibility in relation to all necessary procedures associated with such application pursuant to the Australian Passports Act 2005 (Cth), the Australian Passports Determination Act 2015 (Cth) and the requirements of the Commonwealth Department.
That when the child is not travelling overseas his passport is to remain in the possession of the mother.
That the child’s passport must be given to the father within ten (10) days of the father’s written request in connection with the father taking the child overseas for a holiday, and the child’s passport is to be returned to the mother at the same time that the child is returned to the mother.
That if requested the Australian Federal Police give effect to the preceding order by removing the name of the child X born … 2009, also referred to in previous orders as X from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
That no later than 30 March 2023 the parties and the child do attend upon such child psychologist as may be agreed at their joint expense to ascertain and consider the wishes of the child and any change in the child’s circumstance.
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 Fotilas & Tzika 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 430 of 2016
| Mr Fotilas |
Applicant
And
| Ms Tzika |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The proceedings between Mr Fotilas (“the father”) and Ms Tzika (“the mother”) concern the future parenting arrangements for X born 2009 (“the child”).
The proceedings were listed for trial in the Darwin Registry on 13 January 2020 with judgment reserved on 15 January 2020. The litigation commenced with the father filing an Initiating Application on 6 October 2016 following the parties’ separation on 3 July 2016.
The parties were able to agree to parenting arrangements for the child. On 26 June 2017 they entered into a consent order which provided for the parties to have equal shared parental responsibility, for the child to live with the mother and spend significant time with the father each alternate week, from the conclusion of school on Thursday to the commencement of school on the following Tuesday. The orders provided for the child to spend five nights a fortnight with the father. School holidays were effectively shared between the parties.
In 2018 each of the parties considered that the final orders no longer reflected their current position.
The father sought an increase of time, such that the child would spend each alternate week with the parties. The mother considered that the relationship between the parties had become acrimonious and proposed that she relocate with the child to her birthplace of C Island in Greece.
The mother’s basis for the proposed relocation, was that the child would thereby be removed from the risk of psychological harm arising from the aggressive conduct of the father, resulting in overt parental conflict.
The mother also considers that she would be more financially secure in Greece having the advantage of an extended family network. Her “happiness” would result in a higher level of quality parenting for the child. The mother concedes that the child has a strong and established relationship with the father but given the father’s close connection with C Island and the presence of his family, the child’s relocation was not likely to adversely impact upon his relationship with the father.
By Amended Initiating Application filed 21 October 2019 the father seeks orders summarised as follows:-
(1)That the parties have equal shared parental responsibility;
(2)That the child live week about with each parent, specifically, with the father from 5.00 pm Sunday in the first week until 5.00 pm Sunday in the second week and with the mother from 5.00 pm Sunday in the second week until 5.00 pm Sunday in the following week;
(3)That the week about continue throughout the entire year except for the Christmas holidays which shall be divided equally between the parties, alternating for the first and second half;
(4)That the child spend time with each of the parties on Greek Easter, and on the child’s birthday;
(5)That the child spend time with the mother on Mother’s Day and on the mother’s birthday;
(6)That the child spend time with the father on Father’s Day and on the father’s birthday;
(7)That the child be permitted to travel interstate with each party providing appropriate notice is given.
(8)If the mother should relocate to C Island and the child remain in Darwin then the child should live with the father and spend time with the mother for three weeks during the mid-year school holidays and for four weeks in Darwin during the Christmas school holidays. Should the child travel to C Island during the mid-year and Christmas school holidays, the child should spend time with the mother for a similar period.
The proposed orders are unclear and do not explain whether it is intended that the child would miss some weeks of school by travelling for three weeks over the mid-year holidays to C Island.
It is not the mother’s position, that if the child is not permitted to relocate then she intends to return to C Island in any event.
If the child is permitted to relocate to C Island, then the father seeks that he spends time with the child in Darwin for five weeks during the European summer (mid-year school holidays) and for two weeks during the Christmas school holidays. The father seeks a similar arrangement if he were to spend time with the child in C Island.
By Response filed 8 March 2019 and the Case Outline filed 10 January 2020 the mother seeks orders summarised as follows:-
(1)That the mother have sole parental responsibility for the child;
(2)That the mother be permitted to relocate the residence of the child to C Island by 1 April 2020;
(3)That the child live with the mother;
(4)That the child spend time with the father as may be agreed between the parties but failing agreement:-
(a)From 20 June to 12 July 2020 during the Greek June/July summer school holidays in C Island;
(b)From 20 June to 12 July 2021 and 2022 during the Greek June/July summer school holidays in Darwin or C Island;
(c)From 20 June to 12 July 2023 during the Greek June/July summer school holidays and each subsequent year thereafter;
(d)From 19 to 29 December for the Greek Christmas/New Year school holidays in C Island;
(e)For 10 days during the Greek Easter period in C Island, commencing five days prior to Lazarus Saturday until 3.00 pm on Lazarus Saturday and then from Greek Easter Sunday from 2.00 pm for a further five days;
(f)On any occasion that the father travels to C Island:
(i)For up to seven days on no more than two occasions per year providing that the father’s time does not interfere with the child’s schooling or extra-curricular activities;
(ii)For up to five hours on the child’s birthday;
(iii)From 9.00 am to 5.00 pm on the father’s birthday and Father’s Day.
(5)That the time the child shall spend with the father is subject to various conditions:-
(a)Until the child attains 13 years of age the time the child spends with the father outside of Australia shall be spent in C Island;
(b)The father shall give the mother 90 days written notice of where the child will be spending time with him;
(c)If the father elects to spend time with the child in Darwin then the mother shall accompany the child on the flight from C Island and the mother shall deliver the child to the father in Darwin. The mother shall pay the costs of her return airfares from C Island to Darwin;
(d)That the father will give the mother at least 28 days written notice of the dates he intends to visit C Island;
(e)The father shall pay all of the costs of his airfares and the child’s airfares and associated travel costs when the child spends time with the father;
(f)The child shall be accompanied on all flights by a parent unless agreed between the parties in writing.
(6)That the mother and father shall communicate by telephone or by text messaging and each shall advise the other of the following:-
(a)Their residential address;
(b)Their telephone numbers;
(c)The name and detail of any person over the age of 18 years who is living with the child and the parent.
(7)If the mother and the child are not permitted to relocate to C Island then the child shall live with the mother and spend time with the father as agreed but failing agreement:-
(a)During school terms on each alternate weekend from 2.45 pm on Friday until Sunday at 6.00 pm;
(b)During school holidays:-
(i)For the first half of the end of term 1 school holidays;
(ii)Commencing in 2021 for 14 days of the end of term 2 school holidays;
(iii)For the first half of the end of term 3 school holidays;
(iv)In 2020 and each alternate year thereafter for the school holidays at the end of term 4 for the first 14 days;
(v)In 2021 and each alternate year thereafter for the school holidays at the end of term 4 for the last 14 days.
(8)That the child’s time with the father shall be suspended to enable the mother to travel with the child to C Island as follows:-
(a)From 20 June 2020 to 27 July 2020;
(b)For the first 28 days of the school holidays at the end of term 4 in 2021 and each alternate year thereafter in the school holidays; and
(c)For the last 28 days of the school holidays at the end of term 4 in 2022.
(9)That each of the parties are able to travel with the child in their time with the child within Australia or overseas upon the provision of the following:-
(a)The travelling party provides the other with 14 days notice in advance of interstate travel and 28 days notice in advance for overseas travel;
(b)The travelling party provide the other with a travel itinerary and contact details;
(c)The travelling party takes all necessary steps to facilitate the child communicating with the stay at home parent;
(d)That any time spent will not interfere with the time that the child will spend with the stay at home parent unless agreed.
(e)That for the father to travel overseas with the child, the child must have attained the age of 13 years.
At the conclusion of the proceedings, counsel indicated that they would forward a document setting out the orders agreed and those that are not agreed. That document was received in chambers on 23 January 2020 and represents a summary of the orders agreed and not agreed by the parties. The document will be Exhibit “4” in the proceedings and I propose to incorporate in final orders the agreed position of the parties, where it is necessary and practical to do so.
CHRONOLOGY
1977
Date of birth of father
1982
Date of birth of mother
2007
The parties commenced relationship
2008
The parties marry in Greece
2009
Date of birth of the child
March 2012
Parties take up residence in Darwin
03/07/2016
Date of separation
2018
Date of divorce
26/07/2017
Final orders, by consent, are made resolving all outstanding matters
18/08/2017
Final consent orders amended
Each of the parties was born in Greece on C Island and have extended families who remain there. The father is a tradesman and owns and operates his own business. The mother assists the maternal grandmother as a hospitality assistant.
The income of each of the parties is modest although the father is likely to be in the stronger financial position.
The parties met in Greece in about 2007. At that time, the father was living in Country B. Following their marriage in 2008, the mother moved to Country B with the father. The parties came to Australia in 2012. It appears uncontroversial that the mother did not intend to remain permanently in Country B. She contends that the parties agreed they would remain in Country B for four years and then return to C Island.
An alternative decision was that the parties would live in Australia and have the advantage of her family in Darwin.
The mother considers that the parties only intended to remain in Australia for two years or for so long as was required for the child and the father to gain citizenship.
Notwithstanding that the mother was keen to return to C Island, the father considered that the interests of the family would be better served in Australia.
Each of the parties place importance on their Greek heritage. The mother is an exponent of traditional Greek dancing and in C Island was a teacher. She is an adherent to the Greek Orthodox Church and observes religious days and festivals.
The father is also proud of his Greek heritage but did not consider that it warranted a return to C Island.
The aftermath of the parties’ separation was acrimonious. Allegations of family violence were made by the mother and denied by the father.
The parties reached final orders by consent on 26 July 2017.
It is not suggested that it is not in the best interests of the child to have a relationship with either of the parties.
Each party recognises the importance of the child spending significant time with the other parent.
Both parties concede that their relationship with each other is poor and that they are not likely to be easily reconciled.
DOCUMENTS RELIED UPON
The father relies upon the following documents:-
·Amended Initiating Application filed 21 October 2019
·Affidavit of father filed 21 October 2019
·Affidavit of Ms D filed 21 October 2019
·Affidavit of the father filed 8 January 2020
The mother relies upon the following documents:-
·Response filed 8 March 2019
·Affidavit of the mother filed 17 December 2019
·Affidavit of Mr G filed 16 December 2019
·Affidavit of Ms E filed 17 December 2019
·Affidavit of Mr F filed 16 December 2019
The family report prepared by the family consultant, Ms H, pursuant to a s 62G(2) order made 2 May 2019 was received and was read into evidence.
EVIDENCE
At the commencement of the trial the Court highlighted the provisions of pt VII div 12A of the Family Law Act1975 (Cth) (“the Act”) and in particular whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Neither party spoke against the application for the provisions 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 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 denied that he had ever been charged with any offence involving sexual abuse or assault.
The father accepted that each party had a strong connection with C Island.
The child had visited C Island in 2014 for two months and for a little over two months in 2016.
When the parties were living in Country B, the mother visited C Island two to three times per year.
The father supports the child’s retention of his Greek heritage and immersion in the Greek language and culture. He acknowledges that both parties support the child’s language lessons.
The father speaks English as his second language but is proficient and was able to give his evidence without the assistance of an interpreter.
The mother is not proficient in English and she converses with the child almost entirely in the Greek language.
The father considers that whilst the child can converse in Greek he is not fluent. He is learning to read and write in the Greek language but is not proficient.
At home, the father tries to speak Greek but the child prefers to speak in English. In the mother’s home, the common language is Greek.
The father was challenged as to his income which was projected to be in excess of $46,000 for the 2019/2020 financial year.
The focus of the cross examination on the topic was to highlight a concern of the mother, that the father may not be declaring all of his income but that in any event, the resultant Child Support Assessment was modest at best.
The mother’s taxable income from her employment as a hospitality assistant with the maternal grandmother was $19,473 for the same period. The mother is also in receipt of a Parenting Payment from Centrelink.
The mother currently resides with the maternal grandparents. The maternal grandfather is intending to soon retire and the father acknowledged that there was a reasonable prospect of the maternal grandparents retiring to C Island. If that occurred, and taking into account the mother’s limited income and the modest level of child support being paid, the father conceded that the mother’s financial circumstances would be compromised.
The mother contends that the family moving to Australia on 14 March 2012 was predicated upon an agreement, that the family would stay in Australia for two years or until after the child gained Australian citizenship, with the possibility of staying for four years to enable the father to obtain citizenship. After that, the mother contends that the family always intended to move back to C Island to live permanently. She considered that the family never planned on remaining permanently in Australia.
The father rejects any assertion that the parties at all times had an intention to return to C Island. The father considers that the family came to Australia to start a new life. The father has no intention of returning to live on C Island.
The father concedes that the child may well be adversely affected by the conflict. The father remains upset that the allegations of child abuse continue. He denies all allegations.
It could not be said that the father was pressed in relation to allegations of sexual abuse and assault.
At [90] of the mother’s trial affidavit filed 17 December 2019, she relates a recent complaint by the child that he had a stomach ache. The mother considers that the child’s condition is in some way connected to him having spent the recent weekend with his father.
For reasons that were not made clear, a notification was made to Child Protection Services (“CPS”). The nature of the notification was not able to be explored.
The father knows little of what has been occurring. He has not been included or advised of any concerns affecting the child. The parties have had nothing to do with each other for one and a half years and he considers that there is no basis for the mother to link any recurring medical condition of the child with the time that the child spends with the father.
The father was asked to consider the mother’s allegation, that in the father’s home the child is told that the mother drinks alcohol and has sex with other men. The mother alleges that the child reported the father referring to the mother as “a putana” which means “a slut” in the English language.
The father denied that he refers to the mother inappropriately, although he did admit that he had a problem with the mother wearing red lipstick.
The father agreed that at a time prior to separation he is likely to have accused the mother of wanting to have sex with one of her students.
The father’s evidence in support of his denial, that he promotes a negative attitude towards the mother, was unimpressive.
The father holds a poor view of the mother and it is unlikely that he places much weight on the need to insulate the child from the parental conflict.
The father acknowledged the view of the child, as expressed to the family consultant, that he wanted the parenting arrangements to remain as they currently are namely, nine days with the mother and five days with the father. The father places little weight on the child’s view because he contends that the mother has told the child to convey to the family consultant that the arrangements should remain as they are.
The father strongly opposes the child’s return to C Island. He considers that Greece in general, but C Island in particular, is a corrupt society, that education opportunities are poor and C Island is unlikely to provide other than limited employment.
If the Court permits the mother to relocate the child’s residence to C Island, the father will stay in Australia.
The father does not accept that the mother’s proposals for the child to spend time with him both in C Island and in Australia are genuine. He refers to an incident in September 2016 between the mother and the paternal grandparents whilst the mother and child were in C Island.
The mother reported to the police that the paternal grandparents were abusive and threatening, calling her a “witch” and a “slut” and blamed her for “their son’s destruction”.
The father was not directly involved but considers that the false allegations made against his parents is an indicator of what may occur if he was required to spend his time with the child in C Island.
The father considers that if the child is permitted to relocate to C Island then it is likely he will spend little or no time with the child.
The father’s evidence was reliable without being impressive. It is likely that he is unable to refer to the mother other than in derogatory terms.
The father was not challenged in respect of his assertion that he had not sexually abused or assaulted the child. The absence of effective cross examination leads to a finding that the father does not present as a physical risk to the child.
The father sought leave to rely upon the evidence of his mother to provide evidence as to the 2016 incident on C Island.
The paternal grandparents were able to spend some limited time with the child but they considered that it was inadequate. They did not see the child at all for one month and then when time resumed it was only for one or two hours.
At one point, they came into contact with the mother and the child at a supermarket. An argument ensued and the paternal grandmother alleges that the mother had pushed her and created an emotional and highly charged scene in public. The altercation came to an end with the mother telling the paternal grandparents to kiss the child and “go to hell”. The police were involved, however, nothing eventuated.
I am not sure what should be made of the incident between the paternal grandparents and the mother. It is reasonable to find that the emotions between the parties and their respective families are high.
The mother
The mother was asked to set out the basis upon which she sought a Domestic Violence Order in October 2016. The allegation was that the father had assaulted the mother and caused her personal injury.
The mother holds to the belief that the father did assault her, not by hitting her but rather, that he touched her whilst they were at the J Club.
Whilst she was frightened of the father’s anger and jealousy, she agreed that he had never physically assaulted her.
Exhibit “3” is a Statutory Declaration signed by the mother in support of a Partner’s Visa. The mother concedes that her signature appears on the declaration document dated 8 April 2014, but denies the content of the document.
The relevance of the document is that in support of the partner’s visa, the mother was required to complete a Statutory Declaration and did so. The document sets out that the parties commenced their relationship in 2006, and as at the date of the application was of six years duration.
In particular, the document expressed in detail the committed nature of the relationship to each other and that as a family they were happy. The declaration highlighted that the mother considered her commitment to the husband was “genuine and real” and that as the relationship has progressed, it has become stronger and one redolent with love, respect and trust.
There is no suggestion in the declaration that the parties’ intention was to remain in Australia only for so long as was required to gain citizenship for the child and possibly the father.
The contents of the declaration does not assist the mother in terms of her proposition, that the parties only intended to remain in Australia on a temporary basis, and is at odds with the mother’s contention that in 2014 the parties’ relationship was poor.
The mother was pressed as to her knowledge of the providence of her Statutory Declaration.
She accepts that the signature on the document is likely to be hers but she cannot remember signing it. She denies that the contents of the document are true and does not know who filled in the declaration. It is her recollection that it was presented to her and she did not read the document.
The declaration was witnessed by a Justice of the Peace.
The mother’s evidence on her involvement with the Statutory Declaration was unimpressive. If the mother’s contention is correct, then she has made a false declaration. The mother makes no assertion or allegation that in some way the Justice of the Peace who witnessed the declaration acted in concert with the father.
The other alternative to a false declaration, is a finding that the content of the document is likely to reflect the circumstance of the parties at the time.
I reject the mother’s evidence that she did not know of the contents of the declaration she was being asked to sign.
In January to April 2017 the mother returned to C Island for personal and family reasons. It was her intention to take the child with her, however, the father refused to allow the child to travel with the mother.
Nonetheless, the mother left the child with the father and travelled to C Island.
She was clearly distraught and upset and upon her arrival was taken straight from the airport to a hospital, suffering from anxiety. The mother’s evidence is that she was emotional because of the separation from the child.
At the time that the mother booked the tickets to C Island for herself and the child, she was aware of the father’s refusal to consent.
The mother sought to rely upon a psychologist’s report, dated 11 November 2019,[1] setting out the basis of the mother’s adverse emotional presentation upon her arrival in C Island.
[1] … “2”.
I am not able to accept without question the mother’s evidence as to her mental health when she arrived in C Island, but the real issue is the likely relationship between the mother and the paternal grandparents if she is able to relocate with the child.
I find that there would likely be hostility and aggression. There is mistrust between the parties and members of their extended families. The mother alleges that the paternal grandparents stalked and followed her.
The mother considered that the parties’ relationship remains poor.
The parties were able to speak about the child’s academic performance but only with the assistance of a third person such as the school principal.
Neither parent is satisfied with the child’s academic record. The child has received a C and a D for Maths and English. No attempt was made to present any school reports for the child, and it is surprising that evidence was not called from the child’s school principal or class teacher.
The Court was not assisted by the paucity of evidence on the topic of the child’s academic performance in particular, but his involvement with the school in general.
The notification made in late 2019 resulted in the mother seeing a counsellor at K Service. The mother conceded that she did not tell the father about the notification made by the school psychologist because she did not want him to know what was going on.
The mother did not impress as having any understanding as to the purpose of the notification or why there was any need for counselling.
The mother’s evidence was not impressive. I do not accept that the mother knew nothing of the 2014 Statutory Declaration in support of a partner’s visa for the father.
To the extent that the mother had made allegations that the father presented as a risk of sexual abuse to the child, I consider that they were without substance at all material times.
The mother admitted that she deliberately did not keep the father informed as to the notification by the school psychologist and her involvement with a K Service counsellor. The overarching consideration that arises from the mother’s evidence is to reinforce the ongoing parental conflict and the seeming inability of the parties to reconcile their differences.
Ms E
Ms E is the maternal grandmother. The maternal grandfather, her husband, was already working and living in Australia when she came to Australia in October 2013. The maternal grandparents have returned to C Island on three occasions.
She commenced her employment in hospitality towards the end of 2017.
The maternal grandmother was impressive in her understanding of the dispute between the parties. She did not consider that the grandparents should get involved and it was necessary for the parties to resolve their differences.
The maternal grandmother did confirm that she provides ongoing support for the mother comprising clothing, toys, parenting support and money.
The evidence supports a finding that the mother is heavily reliant upon the largesse of her parents. The maternal grandmother is entirely supportive of the mother and the child.
The evidence does not support a finding that the maternal grandparents are to abandon the mother and child and return to C Island.
It is likely however that they will spend increasingly longer periods of time in C Island.
Family Consultant
The family consultant interviewed the parties, the child and observed interaction between each parent and the child in October 2019.
The family consultant is an experienced practitioner. She holds the qualification of a Bachelor of Social Work (Honours) obtained in 1995 and thereafter has been involved in child protection and domestic violence until her appointment as a Regulation 7 Consultant in 2016 and an in-house appointment in August 2018.
The family consultant identified the issues likely to impact the child as follows:-
a)The child’s exposure to parental conflict;
b)The parent’s attitude towards each other;
c)The nature of the relationship of the child with each of the parties and their ability to support the child and facilitate a relationship with the other parent;
d)The capacity of the parties to develop a co-parenting relationship; and
e)The child’s age and stage of development.
At the time of the assessment the child was aged 10 years. He presented as “robust and well-groomed”[2] and his language and communication skills were appropriate.
[2] Family Assessment Report dated 29 November 2019 at [74].
The child expressed a view that he would wish his current living arrangements to remain the same. He did not want to increase time with his father to equal time because “if I go to 50/50 I do not know what’s going to happen”.[3]
[3] Ibid [77].
Equally, he recognised that his mother really wants to return to C Island but he considered that it was “a hard question”[4] and whilst he would go, he would miss his father.
[4] Ibid [78].
The child did recognise the potential benefit of an extended family in C Island and said that he enjoyed the food and the lifestyle.
Equally, the child enjoyed living in Darwin, his school and his many friends. He considered Darwin to be his home. It is an aspect of the child’s presentation that he was categorical in his denial to the family consultant that there was anything at either parent’s home that caused him concern. He was forthright in his presentation to the family consultant that “I feel safe and good at both homes”.[5]
[5] Ibid [82].
It is not surprising that on observation the child interacted with each of the parties in a happy and relaxed manner. He was excited to see his father and confident in his interaction with the mother. The family consultant summarised the child’s interaction with the father as “loving and affectionate”[6] and with the mother as “a loving, positive and strong relationship…”[7]
[6] Ibid [92].
[7] Ibid [96].
The most influential consideration for the family consultant was the “ongoing and endemic parental acrimony, a limited and dysfunctional co-parenting relationship”[8] between the parties which is understood and recognised by the child.
[8] Ibid [97].
The family consultant considered that the mother was emotionally vulnerable and was demonstrably anxious and distressed by the conflict with the father and her belief that he was stopping her from returning to C Island, thereby denying the mother and the child an ability to participate in the Greek religion, culture and heritage.
The mother remaining in Darwin is likely to exacerbate or at least continue the current parental conflict.
The mother expressed a strong view to the family consultant that the father was “pervasively grooming [the child] against her”[9] and placing him under pressure to choose one parent over the other.
[9] Ibid [110].
There is little doubt that the mother believes that assertion, but there is scant evidence arising from the observations of the family consultant of each party with the child that supports that pessimistic view.
The child presented as having a strong and loving relationship with each party. There was nothing to suggest that the child had been groomed by the father to express a view adverse to the mother’s desire to return to C Island. The high conflict between the parties caused the child to be distressed and anxious.
The family consultant considered that the child had spent adequate time with each party necessary to consolidate an appropriate level of emotional attachment. The child would be able to spend extended time from the father without it necessarily impacting upon their relationship.
In C Island, it is likely that the child would be well looked after and have the benefit of the mother’s extended family.
If the child remained in Darwin then his life would continue in the same way that it has over the past eight years.
The only potential for significant change would be if the maternal grandparents returned to C Island and the mother was left without their physical, emotional and financial support.
The family consultant was not confident of the mother’s preparedness to support the child’s relationship with the father, particularly if she relocates to C Island. The parties were not able to give any confidence that they could afford the costs of the mother’s proposal that the child return to Australia, requiring four flights per year.
The family consultant considered that the mother views C Island as her true home. Her desire to return to C Island was not a disingenuous attempt to alienate the child from the father but rather, she would wish to participate in her Greek culture and the C Island lifestyle.
If the Court considered that it was appropriate for the mother to relocate with the child to C Island then this should be conditional upon the child spending time with the father either in C Island or in Darwin, as often as is practicable. If relocation is not permitted then the current arrangements should remain.
The family consultant confirmed that the child was not adversely affected by the conduct of the parties. The conflict observed by the child was readily apparent to him but each of the parties have provided an entirely appropriate home environment.
The family consultant did obtain some information from the child’s school principal. The report was that the child does his work appropriately and is gaining momentum with his grades.
There was little evidence presented that would enable the Court to compare the Greek and Australian school systems. The parties did not present evidence as to whether the child’s proficiency in reading and writing in Greek would have a detrimental impact on his education.
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 seeks an order for equal shared parental responsibility, whereas the mother seeks sole parental responsibility. Given that her parenting proposal is that the child be permitted to relocate to C Island, she does not consider that equal shared care would be practicable.
I approach the matter from the perspective that the Court should now focus on the practical reality of each parties’ proposal, bringing 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 am cognisant of the primary considerations and additional considerations in respect of the matters as set out in ss 60CC(2) and (3) of the Act. Whilst I am mindful of the directions contained in s 60CC(2A) of the Act and in particular, the focus by the father on what he considers is the detriment likely to be caused to the child by the mother not supporting the child’s relationship with him, I do not consider that it is a significant factor in the proceedings.
The mother proposes that upon a relocation the father would spend extensive time with the child either in Australia or on C Island during the child’s school holidays. The mother rejects the father’s assertion that she has tried to alienate the child from the father, or that she would do so in the future if given the opportunity to relocate.
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.
In Mazorski & Albright [2007] FamCA 520 at [26], Brown J considered the definition of “meaningful” to be synonymous with “significant”, “important” or “of consequence”.
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 family consultant considered the nature of the relationship between the child and the parties. At age 10, the family consultant considered that the relationship between the child and the father would remain intact even if the mother relocated with the child. It is also not suggested that extended periods over school holidays would not be sufficient to reinforce the child’s relationship with the father.
The father intends to remain in Darwin. There is little doubt that the father maintains a close connection both familial and cultural with the C Island, but I accept his assertion that Darwin is now where he intends to live and work. I am not critical of the mother in seeking to relocate to C Island. Whilst she has the advantage of her parents living in Darwin, albeit for what might be a limited time, the evidence supports a finding that she is closely connected to C Island. Her English language skills are poor and without her parents her ability to remain in Australia is problematic.
I do not necessarily accept that the mother has established her ability to obtain employment in C Island, but I can find that she would have the benefit of significant family support.
The father argues that he would not be able to participate in the full suite of curricular and extra-curricular activities undertaken by the child, should the mother and child be permitted to relocate.
In Godfrey & Sanders [2007] FamCA 102 at [36] Kay J considered the requirements of the legislation in relation to the promotion of a meaningful relationship in the following terms:-
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
The evidence of the family consultant strongly supports a finding that the child is closely bonded to each of the parties. It is not surprising, given the current parenting arrangements, that the child is comfortable in the home of each of the parties.
Whilst at different levels, each of the parties are consistent in their desire to ensure the child is immersed in the Greek culture. The mother’s application means that the father would spend time with the child during the northern hemisphere school holidays. The issue for the father is not just that he would not be able to engage in the broad range of activities with the child that is currently enjoyed, but also he does not believe that the mother will facilitate his relationship with the child and he considers that the financial circumstances of the parties will make it difficult for the child to travel to Australia or for the father to travel to C Island to spend time with each other.
I am to approach the parenting considerations from a perspective that the child’s interests are served by maintaining a relationship with each of the parties.
Is the child at risk?
As discussed, I do not consider that the child is at risk, in the sense that at present, the observations of the family consultant was that the child had a close, loving and affectionate relationship with each of the parties.
The issue for the child is not his separate relationship with the parties but rather, the inability of the parties to reconcile their differences.
I do not find that the father has embarked upon a campaign to denigrate the mother to the child. That is not to say that the child is not cognisant of his parents dislike for each other, but to note that the family consultant did not consider that the child’s benign presentation was indicative of either of the parties attempting to impose their will on him.
Wishes of the child
At the date of the assessment the child was 10 years of age. The child was able to engage fulsomely with the family consultant and despite the mother’s misgivings, satisfied the family consultant that his preferred position was to remain in Australia but to keep the current arrangements as they are.
The child was open to a relocation to C Island and could see the benefits of culture, food and lifestyle. The child has a developed sense of family that each of the parties supported.
Unlike the mother, the child is happy living in Darwin and despite some uncertainty as to his academic progress, there are no adverse reports as to his enthusiasm for learning and his ability to develop a wide social network with his peers.
The nature of the relationship of the child with the parties and others
The child is closely attached to the parties but also to the paternal and maternal grandparents. The family consultant reported the child’s interest in the mother’s family in C Island.
The child is likely to be supported whether in Darwin or in C Island. A factor is the extent to which the maternal grandparents would remain in Australia and support the mother and thereby the child.
I have considered their involvement to be important. They provide emotional and financial support for the mother, in circumstances where it would be difficult for her to manage if she was alone.
I do not accept the mother’s evidence that her parents are ready to move to C Island, irrespective of her circumstances. The maternal grandmother was impressive and forthright. I accept that it would be the wish of the maternal grandparents to retire to C Island, but I also find that they would not abandon the mother if she and the child were not permitted to go.
The extent to which each of the child’s parents have taken or failed to take parenting opportunities
The child lives in the primary care of the mother, with the father having significant and substantial time. The arrangements enable each of the parties to enjoy and participate in the totality of the child’s activities.
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 tradesman. His income is modest, and accordingly his ability to financially support the child by way of child support is limited. The mother is employed as a hospitality assistant. Without the assistance of the maternal grandparents the mother would not be able to financially provide for the child, as is currently the case.
I was not impressed with the level of enthusiasm exhibited by the father to financially assist the mother.
The likely effect of any changes in the child’s circumstances
It is not controversial that the mother’s parenting proposal would see the child living on C Island and spending time with the father, only during school holidays and subject to the financial resources of the parties, to enable travel either by the child to Australia or by the father to C Island.
I am satisfied that whether it be in Australia or on C Island, each of the parties are able to adequately provide for the child’s needs.
At present, each of the parties are able to engage in the child’s activities. If the relocation occurs, the father will not be able to participate.
There was scant evidence presented as to the child’s current academic performance other than via the conversation between the family consultant and the child’s school principal.
I am able to find that the child is likely to be an average student with an appropriate level of peer support and friendship. The child is comfortable living in Darwin but recognises that there may be advantages in terms of heritage and lifestyle if he lived on C Island.
A lacuna in the evidence was as to the ability of the child to integrate easily into the Greek school system. The child can converse in Greek but is not proficient in either reading or writing in the Greek language. Whilst no evidence was presented, I am entitled to find that it may be difficult for the child to easily enter into the Greek education system. It is not explained why no evidence was presented.
The child is currently engaged in private tuition, learning to improve his proficiency in reading and writing in the Greek language. There is some way to go.
The financial position of each of the parties is poor and I consider that there is some question as to whether the parties are able to take the advantage of the mother’s proposal that the father spend time with the child during the northern hemisphere school holidays.
The father’s proposal involves the parties sharing the child’s care. That is problematic in terms of the parties’ ability to communicate at any reasonable level.
Moreover, the family consultant considers that weight should be placed on the child’s wishes not to increase his time with the father but rather, to keep matters as they are even though he understands his father’s depth of feeling.
The primary focus of the mother is that without support, her ability to continue to parent the child at the current high level, may be compromised. Her ability to communicate in English is low and whilst currently employed, the work is unskilled and of modest remuneration. It is also likely that the mother’s employment is integrally linked to the maternal grandmother’s employment.
As discussed, whilst there is little or no evidence as to the employment opportunities for the mother on C Island, she would have the advantage of a supportive family environment.
The disadvantage that arises from the mother’s proposal is that it puts at risk the father’s relationship with the child. The family consultant considered that the child’s relationship with the father was well established. I accept that observation, but also consider that it is conditional on the parties being able to facilitate the child spending time with the father.
The mother did not impress as to her preparedness to keep the father informed of significant events. The mother was quite deliberate in her decision not to inform the father that the child had been the subject of a notification and that counselling was being arranged for the child.
The evidence that would support a finding that the parties have the financial resources to ensure that the child spends time with the father was not presented.
The father’s proposal is to seek an extension of the time that he currently spends with the child, from five nights a fortnight to equal time. No evidence was presented as to how this would beneficially impact upon the child. The child’s expressed view is that, if relocation to C Island does not occur then the current arrangements should remain as they are. The family consultant considers that in this case weight should be given to the child’s expressed views.
Any other relevant matters
There is a tension between the apparent distress of the mother having to remain in Australia, feeling isolated and compromised in her ability to easily converse and obtain meaningful employment, and the adverse consequences of the father not being able to engage with the child in terms of his curricular and extra-curricular activities.
I do not consider that at this stage the child would be well served by the mother’s proposal which involves a relocation to C Island. The child’s best interests must be the paramount consideration. Whilst the child may express some ambivalence about remaining in Darwin or relocating to C Island, the reality is that his circumstances in Australia are settled. He is performing adequately at school, has good social skills and has a wide network of friends. He currently has the advantage of spending significant time in the care of each of the parties.
The child has not lived on C Island. He has visited the island and has noted the benefits that might arise from mixing with the extended maternal family and the preparedness to engage in his Greek culture and heritage. The child did not explore the school system and no evidence was presented as to the child’s position in entering the Greek education system given that whilst he can verbally communicate, he cannot read or write the Greek language.
At present the mother is supported by the maternal grandparents. The child demonstrates the advantage of apparent stability in each of his parents’ homes.
Should the maternal grandparents decide to leave Australia, I suspect that the mother’s circumstances might be compromised.
PARENTAL RESPONSIBILITY
Parental responsibility is to be informed by what is in the best interests of the child.
To the present time the mother has taken on the obligations for decisions in respect of major issues affecting the child.
There is evidence that supports a finding that the father has been deliberately excluded.
An example is the mother’s decision not to inform the father of the notification that the child may be at risk.
The parties are not kindly disposed to each other and they continue to be mistrustful. I suspect that they are of volatile disposition and prone to emotional outburst.
It is hoped that once the litigation is concluded the parties will be able to communicate, at least in respect of major issues that impact upon the child.
I consider that the parties should each have equal shared parental responsibility.
I must have regard to s 65DAA(1) of the Act and consider the question of equal time and whether it is reasonably practicable.
If the mother is permitted to relocate the child to C Island, then clearly equal time would not be practicable. The father concedes that if relocation is permitted then his time with the child will have to occur during the northern hemisphere school holidays.
If however relocation is not permitted, then the father would argue that equal time would be reasonably practicable.
For the reasons given, I do not consider that equal time is in the child’s best interests. The child does not want to alter the current arrangements and his views are supported by the family consultant.
I find that for the next three years there would be significant detriment occasioned to the child if the mother and child were permitted to relocate. The child is likely to be compromised in his ability to easily transition into the Greek education system and I am not convinced that the mother is able to properly support the child’s relationship with the father if there is significant distance between the parties.
There is a history of the mother making allegations that are not capable of substantiation, alleging the father presents as a risk to the child. The evidence does not support a contention but rather, the converse is apparent. The child’s relationship with the father is loving and affectionate and not one based on fear or reluctance to engage.
The mother’s personal circumstances are however significantly compromised by remaining in Australia, in particular, in circumstances where her parents would rather retire to C Island. I am concerned as to the viability of the mother remaining in Darwin on her own.
The father does not provide any significant financial support to the mother and it is likely that she would struggle to provide for the needs of the child in the absence of her parents.
A balance must be struck. I consider that the mother should be required to remain in Australia for three years. This will provide the child with an opportunity to improve his Greek language skills and will limit the time that the mother is required to remain in Australia, should she continue with her intention to relocate to C Island.
The child will be almost 14 years of age at the expiration of the proposed period. The parties may have reached a different position and the child may be more or less prepared to relocate.
CONCLUSION
I propose to order that the mother is able to relocate to C Island on or after 1 August 2023. Whilst not conditional on the child being able to relocate, I propose that the family re-attend upon a family consultant or such other psychologist as may be agreed between them, to properly ascertain the wishes of the child and any changed circumstance that should be considered. A report is not warranted.
Accordingly, I propose to order that the relocation of the child be deferred until August 2023 but thereafter the mother and the child be permitted to leave the Commonwealth of Australia.
Until that time, I propose that the child will spend time with the father as is currently enjoyed under the current arrangements but will also incorporate the agreed orders as set out in the draft minute presented by counsel.
Upon a relocation, the child will spend time with the father during the northern hemisphere school holidays.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and thirteen (213) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 7 April 2020.
Associate:
Date: 7 April 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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