Gareth and Naylor
[2019] FamCA 561
•16 August 2019
FAMILY COURT OF AUSTRALIA
| GARETH & NAYLOR | [2019] FamCA 561 |
| FAMILY LAW – PARENTING – application for international relocation – where the Mother lives in Perth and the Father lives in C Town – where the Mother wants to relocate with the child to the UK – where the Father wants the Mother to move closer to C Town – where the Mother alleges family violence – where family violence is not established – impact of relocation on Mother’s mental health – impact of relocation on relationship with Father and connection to culture. |
| Family Law Act 1975 (Cth) – ss 4AB, 60CC(3)(h), 60CC(6), 60CA, 60B, 60B(2)(e), 60CC, 60CC(3)(h), 60CC(6), 61DA, 65DAA, 65DAC and 61F Hague Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, [1987] ATS 2 (entered into force 1 December 1983). Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) |
| Adamson & Adamson (2014) FLC 93-622 AIF v AMS [1999] HCA 26 B & F [1998] FamCA 239 Davis & Davis and Anor(2008) 38 Fam LR 671 Donnell & Dovey [2010] FamCAFC 15 Hort & Verran (2009) FLC 93-418 Morgan & Miles (2007) FLC 93-343 Taylor and Barker (2007) FLC 93-345 U & U (2002) 211 CLR 238 |
| APPLICANT: | Mr Gareth |
| RESPONDENT: | Ms Naylor |
| FILE NUMBER: | CAC | 1355 | of | 2017 |
| DATE DELIVERED: | 16 August 2019 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 13 - 16 November 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Jackson |
| SOLICITOR FOR THE APPLICANT: | Eden Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Smith |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid, ACT |
Orders
That all previous Orders are discharged.
That Ms Naylor (“the Mother”) and Mr Gareth (“the Father”) have equal shared parental responsibility for the child B, born … 2015.
That B lives with the Mother.
That the Mother is permitted to relocate the residence of B to the UK.
That B's United Kingdom passport, being held in the Family Court of Australia Registry in Canberra, is to be released to the Mother.
That the Mother is entitled to hold B's United Kingdom passport.
The Mother is entitled to remove B from the Commonwealth of Australia.
That following the relocation outlined at Order (4), the Father spend time and communicate with B as agreed between the parties, but failing agreement as follows:
(a) By electronic communication:
(i)The Mother is to make B available for telephone or video communication (such as FaceTime) on at least three occasions each week for a period of no less than fifteen minutes on each occasion, at such times as may be agreed between the parents, but failing agreement each Monday, Wednesday, Friday and Sunday between 7.00am and 8.00am the UK time, with the Father to initiate such communications.
(ii)To facilitate the above communication the Mother is to maintain an operative electronic video communication facility and is to keep the Father advised of the contact details for the use of such facility.
(b) In the UK:
(i)For a period of up to fourteen days on two occasions each year in the UK occurring on dates nominated by the Father, subject to the following:
(ii)Such days are to commence on the first Saturday of a UK school holiday period (whether or not B has commenced attending school);
(iii)The Father’s time is to commence at 9.00am on the first day of the period and is to conclude at 5.00pm on the last day of the period;
(iv)The Father shall collect and return B to the Mother’s residence;
(v)The Father shall notify the Mother in writing of the number of days he shall spend with B no less than 30 days prior to the commencement of his time;
(vi)The Father is solely responsible for the cost of his travel and accommodation for such visits.
(c) In Australia:
(i)For a period of fourteen days on one occasion each year in Australia, during times as agreed between the parties, but failing agreement commencing on the second Saturday of the long UK Summer School Holidays (regardless of whether B has commenced school);
(ii)The Father’s time is to commence at 9.00am on the first day of the period and is to conclude at 5.00pm on the last day of the period;
(iii)The Mother shall deliver B to, and collect B from the Father’s residence at the start and the end of such periods;
(iv)The Mother is solely responsible for the cost of B and the Mother’s travel to and from Australia and accommodation in Australia other than B’s accommodation during the period that B is with the Father;
(v)Should the Mother travel to Australia with B in addition to those times outlined above, the Mother is to provide the Father with no less than 30 days’ notice of her intention to do so and the Father shall be entitled to spend time with B for a period of seven days, with the Mother to deliver and collect B from the Father’s residence.
(vi)For a period of seven days prior to the Mother’s removal of B from Australia pursuant to these Orders, with the Mother to deliver B to, and collect her from the Father’s address at the start and end of the time.
That each party is restrained from speaking about the other in a derogatory manner, either to B or in B’s presence or allowing any other person to do so.
That each party shall notify the other within 7 days of any change of address, telephone number, or email and shall provide the updated contact details to the other party forthwith.
That the Mother shall provide to the Father by email a monthly summary of B’s care, welfare and development with such matters including but not limited to:
(a) Photos of B;
(b) B’s participation in sporting activities and sporting achievements;
(c) B’s academic progress and academic achievements; and
(d) Any medical issues experienced by B.
That the Mother keep the Father informed of the particulars (including name, address and telephone number) of B’s:
(a) Residential address;
(b) Doctor and other treating health professionals;
(c) Day care centre; and
(d) School.
That the Mother ensure that the Father’s name and contact particulars are recorded with B’s:
(a) Doctor and other treating health professionals;
(b) Day care centre; and
(c) School.
Each party shall provide all necessary authorities to enable the other party to receive information about B from B’s school and medical practitioners.
Each party shall notify the other as soon as practicable, in the event of any illness or injury occurring to B whilst in their care and provide full particulars of any medical practitioner, health service provider or health care institution attended by B and provide any authority and direction necessary to enable the other party to obtain all necessary information concerning B or to visit B in any such institution.
It is requested that the Commissioner of the Australian Federal Police remove B’s name from the Airport Watch List.
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 Gareth & Naylor 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 CANBERRA |
FILE NUMBER: CAC 1355 of 2017
| Mr Gareth |
Applicant
And
| Ms Naylor |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to this matter are the Applicant, Mr Gareth (“the Father”) and the Respondent, Ms Naylor (“the Mother”). The parties were married in 2014 and separated in March 2017. There is one child of the relationship, B, born in 2015. These proceedings concern the parenting arrangements for B.
The current proceedings were initiated following the Mother moving with B to the UK without any notice given to the Father. In July 2017, the Mother was ordered by the UK Court of Session to return to Australia with B, under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).[1] As a result of the Hague Proceedings, the Mother and B returned to Perth, Western Australia, whilst the Father was (and still is) residing in C Town, New South Wales.
[1] Hague Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, [1987] ATS 2 (entered into force 1 December 1983).
In September 2017, the Father made an application in this Court to have the Mother and B live closer to where they had been living prior to relocating to the UK. I dismissed the Father’s application for the Mother and B to move interstate, and as such the Mother and B remain living in Perth. At that time, I made several orders putting into place arrangements for the Father to spend time with B.
Orders Sought
The Orders sought by each party are extracted at the end of this judgment in Annexure 1. Both the Mother and the Father incorporated different options depending upon the outcome of where B will live geographically.
The Mother seeks sole parental responsibility. The Mother seeks that B live with her and that she and B be permitted to relocate to the UK. The Mother says that B should travel to Australia yearly, at the Mother’s expense to spend time with the Father, and that the Father should travel twice yearly to the UK to spend time with B, at the Father’s expense. The Father says that this is beyond his resources.
The Father seeks equal shared parental responsibility. The Father seeks that B live with him or, preferably, that B live on an equal basis between him and the Mother if the Mother lives within 150km of C Town. The Father emphasises that he and B share Aboriginal heritage, the Father being a Z man, and C Town being in Z Country.
Material Relied On
The Father relied upon the following:
a)Affidavit of Mr Gareth, filed 12 September 2018;
b)Affidavit of Mr CC Page, filed 12 September 2018;
c)Affidavit of Mr K, filed 11 September 2018;
d)Affidavit of Ms L, filed 12 September 2018;
e)Affidavit of Mr N, filed 12 September 2018;
f)Affidavit of Ms P, filed 12 September 2018;
g)Affidavit of Ms M, filed 12 September 2018; and
h)Affidavit of Ms Q, filed 12 September 2018.
The Mother relied upon the following:
a)Affidavit of Ms Naylor, filed 12 September 2018;
b)Affidavit of Ms R, filed 11 September 2018;
c)Affidavit of Ms S, filed 11 September 2018; and
d)Affidavit of Dr T, filed 18 October 2018.
A Family Report was provided by Ms V, prepared 9 June 2018.
Factual Background
The Father was born in New South Wales, and is presently aged 49 years. The Father has three adult children from a previous marriage: Ms BB, Mr K and Mr CC.
The Mother was born in the United Kingdom and is presently aged 47.
The parties met online while the Mother was living in City EE, working in finance, and the Father was living in Australia, working as a fly in fly out worker in Western Australia. The parties commenced a relationship in 2013 and the Mother decided to move to Australia. They were married in 2014.
The Mother had lived in City EE for approximately 10 years prior to moving to Australia. The Mother enjoyed an extravagant lifestyle during this period, and that lifestyle was in place at the commencement of her relationship with the Father. The Mother suggests that she was preyed upon by the Father, at least partly because of her apparent wealth. However, the evidence did not establish this.
The Mother says that she was deceived by the Father’s representations as to his living circumstances, his property ownership and his employment. The Father denies this. Again, the evidence did not establish such representations.
Immediately prior to and following their marriage, the parties lived in Perth, Western Australia. Shortly after B’s birth, the parties’ home was the subject of a burglary while the Father was away and B and the Mother were inside the house. As a consequence of this, the Mother felt unsafe in Perth and the parties moved to the F area in New South Wales, where the Father had grown up and where his parents lived. The parties stayed with the Father’s parents for a period of about five weeks, although the Father was away for almost all of this period. The Mother says that Father’s parents had a “very volatile relationship” and that their house was in a poor condition.[2]
[2] Mother’s affidavit, [18]
The parties then secured accommodation by renting a house in D Town, a suburb of Albury, a country town about an hour drive from C Town. The Father continued to work on a fly in fly out basis, generally in a pattern of two weeks away and one week at home. The Mother stated that during this time she felt isolated, and described difficult financial circumstances. The Mother says that there were limited facilities available for her and B.
The Proposed Move to the UK During the Relationship
The Father accepted that during the relationship he understood that being in the UK was important for the Mother’s happiness. The parties discussed the importance of the UK and the Mother’s family there. The Father said that it was a long-term plan to reduce the parties’ debts, reduce the size of their home, sell off household possessions, acquire a truck license, and finance a move to the UK. In furtherance of this the parties held a garage sale in February 2017. These were significant, and long-term steps, taken in pursuit of something of importance for the Mother.
A series of text messages exchanged between the Mother and the Father in November 2016 demonstrated a desire on both their parts to move to the UK. The Father had said that he was “ready to go now” but also that they could not yet do so. The Mother said that she thought the same, and that they may need to wait until she could obtain dual citizenship. The Father followed up with “I just want to go” to which the Mother responded “Me 2 but this gives us something posit to focus on.”
That is, the parties were firm in their joint view that they would together be relocating to the UK. This supports the notion that it was the common understanding of the parties that such a move would be to the benefit of the family, and reinforces the understanding that it would be important for the wellbeing of the Mother to be in the UK.
However, the Father says that this position was in the context of being part of an intact family, and, accordingly, moving to the UK together to be together.
Circumstances Surrounding the End of the Relationship
The parties separated in March 2017 when the Mother travelled to the UK with B, without giving notice to the Father. This involved the Mother obtaining a British passport for B and packing up her and B’s belongings, which were first placed into storage and then ultimately shipped to the UK. The Mother moved with B while the Father was working in Western Australia, and the Father did not know where they had gone. The Mother alleges that at this time she was subjected to coercive and controlling behaviour by the Father. She says that she was broken and could not deal with confrontation with the Father.
In her oral evidence, the Mother asserted that she was not certain that the move to the UK meant a final separation with the Father. However, she had caused her belongings to be packed up, but not the Father’s belongings, and not told him of the move. It was a significant separation whether or not it was regarded as permanent at the time. It has since become permanent.
The Mother informed the Father that she and B were in the UK some time after they arrived. The Father sent Facebook messages until about early April 2017 when the Mother told the Father that she had deactivated her Facebook account. From that point onward, the Father had to communicate with the Mother through her UK telephone or by email.
After the Mother and B were in the UK for about seven weeks, the Father was able to have FaceTime contact with B once each week for about 15 minutes. The Mother also permitted him to send a short 10 second video message each Wednesday. The Father describes this as being given begrudgingly and subject to him paying money. While there were gaps in the Father’s ability to communicate with B, limited time was facilitated by the Mother.
The Mother described to the Family Consultant that she had expected the Father to follow her to the UK (despite her moving there without any notice to him and while he was away in the mine) and had been considering reuniting with him until he commenced Hague Proceedings.
Arrangement Since the Return to Australia
Since the Mother’s return to Australia with B, they having been living in Perth. They have stayed in refuge accommodation, or accommodation attached to refuge services.
Orders made in October 2017 provided for the Father to spend time with B as agreed upon by the parties and for the Father to have FaceTime contact with B no less than three times per week for a period of no less than 15 minutes.
Orders made in May 2018 provided for an increase in the time B spends with the Father. Time has transitioned since May 2018 from day time only, to single overnight time, to consecutive overnight time.
The present arrangement is that the Father has three nights and two further days each month with B in Perth. He also has FaceTime contact with her Monday, Wednesday, Friday and Sunday each week.[3]
[3] Father’s affidavit, [50]
Legal Principles
The paramount consideration in determining what order should be made is, pursuant to s 60CA, the best interests of each child. That is to be determined on consideration of the matters set out at s 60CC of the Family Law Act 1975 (Cth) (“the Act”), but in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.
The objects and principles contained at s 60B provide that:
(1)The objects of this Part are to ensure that the best interests of 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.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
a.children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b.children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c.parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d.parents should agree about the future parenting of their children; and
e.children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In the light of the objects and principles, in order to determine what is in a child’s best interests, the Court is required to consider the two primary considerations and the additional considerations, to the extent that they arise in a case, as set out at s 60CC.
In doing this, the Court is obliged to take proper account of the positions of the parties, the evidence led and the arguments pursued, while remembering that these do not set the boundaries for making a decision as to what is in a child’s best interests, those boundaries being set by the objects and considerations set out in the legislation.[4]
[4]U & U (2002) 211 CLR 238.
The Court is also required, pursuant to s 61DA, to presume that it is in the best interests of the child for the parents to have equal shared parental responsibility unless the presumption is rendered inapplicable, inappropriate (in interim proceedings) or rebutted.
If an order is to be made for equal shared parental responsibility then the Court is to follow the reasoning process set out in s 65DAA and described by Boland J in Morgan v Miles as “the careful exercise of a structured discretion to determine the appropriate order to be made”.[5] That process calls for the sequential consideration of orders for equal time with parents, followed by orders providing for substantial and significant time with a parent prior to a consideration of other options.
[5]Morgan & Miles (2007) FLC 93-343.
Cases that involve an international move for a child pose hard questions with difficult consequences, each in the context of unique circumstances.[6] Often a move will be of great importance to the party who wishes to move. Often the moving party will be the parent who has the primary care of the child. Often a move will result in fundamental changes in the way in which a left behind parent may be involved in a child’s life. The preferred approach is not to deal with the relocation as a discrete issue but, where possible, “as just one of the proposals for the child’s future living arrangements”.[7]
[6]AIF v AMS [1999] HCA 26, [142] (Kirby J).
[7]Taylor and Barker (2007) FLC 93-345.
In considering a relocation as a proposal for a child’s living arrangements Gummow and Callinan JJ in U v U determined that the parties’ positions do not set the boundaries for the determination of the case:
[80] We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties...but the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s68F (now s60CC) and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child's best interests.
In U & U the need for “careful consideration” in a case involving relocation was also emphasised by Gaudron J (although in dissent):
[37] It must be acknowledged that it is likely that, in very many relocation cases, a Mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the Mother or the Father who wishes to relocate. So much was made clear in AMS v AIF.
On the issue of relocation, Morgan & Miles was determined in the context of the Family Law Act being largely in its current form. Justice Boland there observed that:[8]
[80] It follows from my exposition of the legislation, that earlier core principles:
·that the child's best interests remain the paramount but not sole consideration;
·that a parent wishing to move does not need to demonstrate “compelling” reasons;
·that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child's best interests; and
·the child's best interests must be weighed and balanced with the “right” of the proposed relocating parent's freedom of movement,
…remain valid.
[8]Morgan & Miles (2007) FLC 93-343, [79] ff.
Further, on the manner of consideration, in Morgan & Miles Boland J noted that the Court will:
·Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
…
·Carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child's best interests, make such order which may provide:
othat the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
othat the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
othat the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
othe non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
It may also be observed that whether or not a case involves a question of relocation, the structured reasoning process set out in the Family Law Act still has application where an order for equal shared parental responsibility is made. Where such an order is made, proper consideration must be given both to best interests and to reasonable practicability, as the unavailability of either will prevent an order for equal time or substantial and significant time being made.10 Issues of reasonable practicability often become significant in a case involving relocation.
Key Factual Issues and Section 60CC Considerations
The parties concentrated their attention upon a number of key factual issues. These are:
a)The Mother’s mental health and its impact upon her parenting capacity. Closely related to this was the Mother’s allegation that she had been the subject of coercive and controlling conduct on the part of the Father;
b)The Father’s, and B's Aboriginal heritage, and the capacity of the parties to foster her connection to her culture;
c)The effects on the relationship between B and the Father if B is in the UK; and
d)The effect on the Mother if she is to remain in Australia and how that might impact her capacity to parent.
While these might not completely summarise the matters raised by the parties, they formed the central issues in the case, leaving other matters of relatively little significance.
These matters engaged a number of the s 60CC considerations. They raised questions as to the benefits that might flow from meaningful relationship with each of the parents, which inherently required a consideration of the nature of the relationships between B and each of her parents, along with consideration of parenting capacity, the effects of change in B’s circumstances on the nature of the future relationship due to the practical difficulties that may accompany the change. B’s right to enjoy her culture is also connected to the benefits she may receive from meaningful relationship with her Father.
Whether the Father engaged in family violence toward the Mother impacts the assessment of risk of exposure to family violence, as well as a consideration of the limitations in the benefits that a meaningful relationship with him might bring. However, the conclusion that I have reached (to be explained further in the judgment) that the Father did not engage in family violence removes the need to further consider the risk of exposure to family violence, or that family violence brings a reduction in the benefits that meaningful relationship with him might bring.
Family Violence
The Mother alleges that she was the subject of family violence. The Father denies exposing B or the Mother to family violence. [9]
[9] Affidavit of Mr Gareth, filed 12 September 2018 at [56]-[57].
The issue of family violence primarily goes to whether B is likely to be exposed family violence in the future, and how the different orders sought by the parties may impact upon B.
Section 4AB of the Act defines family violence as follows:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The Mother made several allegations of family violence against the Father.
Firstly, the Mother says that the Father was abusive towards her in relation to finances. It was evident that the parties lived in impoverished conditions in rural New South Wales. The Mother says that they often did not have enough money to get petrol or other necessities. The parties’ difficult circumstances even meant the Mother was unable to fund dental work, leaving her with a missing front tooth.
The Mother evidently suffered under the parties’ difficult financial circumstances. However, the evidence is not sufficient to establish that those financial circumstances were not shared by the parties, or that Father was using those circumstances as an instrument of control or coercion or as a means of threat.
The Mother’s counsel properly conceded at the closing of the Father’s cross-examination that the evidence did not demonstrate that the Father had engaged in financially coercive or controlling behaviour towards the Mother or B. Therefore, no finding of family violence can be made with respect to finances.
Secondly, the Mother complains of the manner in which the Father used electronic contact with her. For example, the Mother describes constant messaging from him when he was away working, and that he monitored her expenditure.
The Father agrees that when he was away for work he used various forms of electronic communication to contact the Mother. The Father says that this was on a daily basis, including the start of each day, at the end of each day and whenever they could at other times. The Father accepts that following separation he frantically sent messages to the Mother to try and find her and B. The Father says that the Mother never communicated to him that she was upset or concerned by the parties’ use of electronic communication.
Despite thousands of messages being produced in evidence, the Mother could not identify any instance of her raising with the Father that she did not like or was uncomfortable with the extent of their communications (noting that they communicated with each other at about the same frequency). Under cross-examination the Mother accepted that she raised it with the Father orally.
The Mother’s allegations were contradicted by documents produced on subpoena from the Department of Home Affairs in which the Mother was recorded as representing the many phone calls and messages from the Father as proof of the loving and committed relationship. When challenged about this, the Mother asserted that she had been forced to write this as the Father was standing over her. I am unable to accept this explanation, which was not contained in her affidavit material, and which did not appear to reflect her other complaints about the Father.
Accepting that many messages were exchanged, I cannot conclude that they constituted a means of the Father controlling or coercing the Mother. Despite the complexion that she now places on those messages, I am unable to find, in the face of the representation to the Department of Home Affairs and taking into account the mutual manner of communication, that the Mother during the relationship experienced the messages as coercive or controlling either.
Ultimately, no finding of family violence can be made with respect to the means of communication between the parties.
The Mother made a series of other allegations about family violence. The Father denies all allegations of family violence. The Mother’s allegations include:
a)That the Father was threatening towards her, that he confronted her with clenched fists, would walk away and slam doors after conversations, and that in January 2016 he punched a hole in the wall of the parties’ D Town property;
b)That the Father threatened to “get rid” of the parties’ dog, “shoot the dog” and “put the dog down”. The Father stated he could not remember making statements of these kinds, that they were not part of his nature, but that he could not be certain that he had not said these things in a “joking manner”. The Mother accepted that the comments about shooting the dog or giving the dog away may have been said in humour;
c)That the Mother asked the Father to stay away from the Perth airport when she and B returned from the UK. Despite this request, he arranged for her to be served Family Court documents on her arrival. Under the circumstances of this case, such a step should not be construed as controlling or coercive. The Father was faced with circumstances where the Mother was returned by legal proceedings in the UK and the commencement of legal proceedings in Australia had to be dealt with expeditiously;
d)That the Father has repeatedly asked her to identify where she is living, in the knowledge that she is living in a refuge which has rules against disclosure of its whereabouts. There is no clear evidence to establish this as controlling or coercive, or that the enquires were other than reasonable enquires about B; and
e)That on two occasions during the short periods of time that the Father spends with B, he has taken upon himself to cut B’s hair. This is potentially provocative conduct by the Father, unlikely to establish good will. However, the evidence was not tested to establish this as controlling or coercive.
In considering the Mother’s allegations, it is noted that the Mother’s account to the Department of Home Affairs for the purposes of a visa application (discussed above) cast the relationship in a markedly different manner to the relationship the Mother described at hearing. For example, the Mother asserted that no decisions were taken by the parties other than jointly (contrasting with the Mother’s assertions of control) and she described the parties as best friends as well as husband and wife as late as December 2016.[10]
[10] Exhibit F13
Further, Ms P, who has been in a relationship with the Father’s son, and has known the Father for over 12 years, says that the allegation that the Father has a threatening and controlling disposition conflicts with what she has known of him. She says that he is “quite the opposite” and that she has not seen him exhibit such traits.
I do not accept that the Father acted in a coercive or controlling manner against the Mother. In particular, the allegation of financial control fell well short of proof. The characterisation now made by the Mother of the parties’ communication conflicts with her description at the time. B is not at risk of exposure to family violence by the Father.
The Mother’s Mental Health
The Mother’s mental health, its impact on her parenting capacity, and the implications of each of the alternative living arrangements on her mental health were key matters in these proceedings.
Both the Family Consultant and an expert engaged by the Mother, Dr T (psychologist), dealt with the issue of the Mother’s mental health. The Mother’s treating practitioner, Ms W, did not provide affidavit evidence, nor was she called to give oral evidence.
Dr T conducted an assessment of the Mother’s mental health and prepared a corresponding Report. Dr T understood that his duty under the Expert Guidelines was to the Court, and he noted that a limitation in his Report was that his access to information from the Father was limited to the Father’s affidavits.
Dr T assessed the Mother by means of a four hour interview and the administration of the Personality Assessment Inventory, which is a standardised psychological questionnaire.
In terms of presentation, Dr T thought that the Mother’s emotional presentation “was one of quite high anxiety.”[11] He assessed the Mother as “somebody who is likely to be characterised as being warm, friendly and sympathetic, but is exceptionally highly-stressed, suffering moderate to severe symptoms of depression, is exceptionally fearful in terms of distrust of others, and suffers from some mild levels of anxiety.”[12]
[11] Report of Dr T, dated 7 August 2018, [7].
[12] Report of Dr T, dated 7 August 2018, [14].
Dr T assessed the Mother “as someone who is still able to function…highly-stressed to clinical levels of anxiety and miserable in her life at this time due to marked depressive symptoms.”[13]
[13] Report of Dr T, dated 7 August 2018, [33].
Dr T thought that the Mother’s mental health issues were situational, as opposed to an ongoing biological mental illness. He identified the situational factors impacting the Mother as including: the current proceedings; the abrupt removal from the UK via the Hague Proceedings; her inability to form a social network in Perth; uncertainty regarding where she will be in the future; being in a place that she does not want to be; the breakdown of the relationship; and her perception of how she has been treated.
Dr T, referring to relevant research, thought that the Mother’s feeling of a general lack of control contributes to her anxiety. He observed that while certainty reduces anxiety (for example, by resolving where the Mother will live), the lack of control as to the outcome elevates anxiety. That is, a resolution of the matter does not necessarily resolve anxiety, if it resolves in a manner adverse to the Mother.
Dr T thought that there was no reason to doubt that the Mother is a very capable person. He assessed that the Mother had good communication skills, and if she set her mind to it, the Mother was capable of social interaction and had the ability to form relationships. However, the Mother’s anxiety and depression means that the Mother’s capabilities do not come easily or naturally. She would, he assessed and she agreed, make the most of the circumstances if she had to remain in Australia. However, the inability to control her circumstances would impact adversely upon her and Dr T thought that the Mother’s mental health issues would not resolve while she was living in Australia.
The formation of support networks in Australia would assist to alleviate the mental health issues for the Mother. However, while the Mother is capable of forming such relationships, Dr T was not sure how engaged she is. He thought that she had made no real effort to make friends in Perth because she did not know if she would be staying.
During the assessment with Dr T, the Mother made a number of claims about the Father and their relationship that are relevant to understanding her current mental health. In particular, the Mother raised the disparity between who the Mother thought the Father was and what their shared lifestyle would be, and the reality. To Dr T the Mother described the Father in a contemptuous manner as “just a bloody skivvy,” a “nobody.” As discussed above, the Mother says that the Father painted a fake picture, in particular as to the nature of his employment. The Father denies this.
Dr T described this disillusionment as having shattered the Mother psychologically. It was unclear what this meant. The Mother perceived that she had been deceived and betrayed by the Father and that this experience undermined her belief system as to possibilities for the future. Dr T thought that when the Mother thought about her perceived betrayal by the Father it caused anxiety and distress, which in turn undermined her positive thoughts about being in Australia. It may be accepted that the Mother was disillusioned with Australia and distressed at the prospect of remaining here at the time of her move to the UK, and continues to be now.
Dr T assessed that the issue of family violence was central to the Mother’s mental health issues. He did not specifically assess whether there had been family violence, but rather focussed on the impact of that issue on her mental health.
The Mother referred to 64,000 WhatsApp communications occurring between the parties. Dr T thought that the significance of this was that if the Mother thought she was being bombarded it could significantly impact her coping. Again, he thought that part of the issue was that what the Mother encountered was not the relationship that she expected. He thought that combining intense questioning by the Father and the mismatch between the relationship and her expectations led to the mental state that she encountered.
In characterising the communications, Dr T saw the important question as being who initiated the communications rather than who responded. He thought that the Mother’s perception of the communications could have changed over time, from interpreting the early ones as caring to the later as controlling.
Dr T also thought that the Mother’s reaction to the messages was not reliant upon the intent of the messages. Rather, interpretation can come from what is thought is meant. That is, it was open that there was a mismatch between the Father’s intent (potentially supportive) to the Mother’s experience (controlling). Potentially, once the Mother started to see the Father’s behaviour as being controlling, her experience of it could snowball.
Noting the robust nature of some of the exchanges by the Mother with the Father, Dr T was unsure whether this was inconsistent with the Mother being subject to coercion and control.
Dr T thought that if the Mother’s response was merely disproportionate then it was revealing as to an aspect of her personality. It could be assisted by appropriate therapy. Dr T noted that emotion is not always logical and that people do not think in a linear manner.
In relation to whether the Mother fears the Father, Dr T identified that the Mother experienced a high fear of being harassed or controlled and not having her own life (in the sense of the life that she desired), but not a high fear for her physical safety.
While Dr T said that the Court would need to make findings as to whether or not the Mother’s fears and reactions were justified. He also said that “the practical reality is that the Mother was extremely fearful of the Father and feels controlled by him.”[14]
[14] Report of Dr T, dated 7 August 2018, [31].
As noted earlier in the judgment, the Father did not behave in a controlling or coercive manner and, at least as late as December 2016, the Mother did not regard him as behaving in such a manner. The Mother’s evidence was that she did not form a view that the Father’s behaviour was controlling until it was suggested to her by a doctor following her arrival in the UK. That the Father was controlling is now a settled view held by the Mother, even if not reflective of the reality. It is reinforced by the Mother not having control of her life, in the sense of currently being retained in Australia following the Father’s application.
On the issue of the impact of the Mother’s mental health upon B, Dr T thought that if the Mother was very depressed then she may not respond with the same visual cues to B’s approaches as those she would otherwise provide. This could cause distress to B and also mean that B cannot use the Mother as effectively to emotionally regulate her. Dr T explained that children rely on adults for comfort and emotional regulation as they interact with the world at large. A further issue is that if a parent is anxious it can lead to the child having to walk on eggshells. These matters do not equate to the Mother being incapable, but rather less available to provide emotional regulation. This aspect is more significant to a younger child.
The Family Consultant agreed in general terms with this description, noting that the impact depends to some degree on the child. She agreed that where a parent is depressed, and is less likely to respond or to respond promptly to a child, the child learns that his or her needs will not be met. This leads to a child learning not to seek to have those needs met from that parent because of that experience. The Family Consultant thought that if the depression and anxiety persisted the Mother may not be present emotionally for B.
According to the Family Consultant, this leads to a greater likelihood of emotional dysregulation and to the compromising of the child learning to manage their emotions. It is the parent who teaches the child how to emotionally regulate and a severely depressed parent is less likely to.
Agreeing with Dr T, the Family Consultant saw this is impacting on the child’s ability to interact with the world at large.
Against these outcomes the Family Consultant observed that the Mother managed her emotions in front of B during the assessment process. When not with B the Mother’s emotions were apparent. The Family Consultant identified the question as to how long the Mother would be able to manage her emotions in front of B. The Family Consultant thought that if the Mother’s mental health deteriorated the Family Consultant would be concerned that the Mother may not be able to provide an optimal level of care for B.
The Family Consultant observed that at present the Mother appears “to be managing currently under very difficult circumstances and reports that her anxiety has reduced to some mild range. This is a positive sign that Ms Naylor may recover sufficiently.” The Family Consultant indicated that the Mother’s treating practitioner may be able provide further information regarding prognosis.
Dr T thought that the Mother’s condition is unlikely to resolve while the Mother is living in Australia. He thought that if the Mother was able to return to the UK, particularly if the Mother obtained appropriate therapy, and if the Court process was finished, it was likely to resolve over a period of about twelve to eighteen months.
If the Mother was to remain in Australia permanently, Dr T was not confident that she would be able to pick up her life, and thought that she would continue to struggle with anxiety and depression. Even if the stay in Australia was to be temporary, although the stress levels would reduce, the Mother’s high levels of stress and anxiety may not abate. Under these circumstances the Mother would have poor prospects for recovery.
The Mother had a treating psychologist, Ms W. The Mother annexed a report from Ms W, but she was not called to give evidence. Ms W’s report was heavily reliant upon a history of family violence that I have not accepted in the proceedings. Her report is not one that I place any weight upon under the circumstances that she was not called to give evidence and the foundational part of her reasoning was found not to be established. Although Ms W’s report was referred to by Dr T, that does not undermine Dr T’ reasoning which was heavily reliant upon his interview with the Mother and psychological testing, rather than on Ms W’s opinions.
Family Report
The Family Consultant considered that “B used both parents as a secure base during the observations.” The Family Consultant thought that the Mother was B’s “most secure attachment figure” and that “B does use Mr Gareth as a secure base and appears to feel comfortable in his care.” She thought that B was “likely to have a stronger, or more secure relationship with her mother because Ms Naylor has been her primary carer and because she has often not seen Mr Gareth for extended periods of time”.
The Family Consultant thought that at B’s stage of development, having been cared for mostly by her Mother she was likely to feel most comfortable in the Mother’s care. This she thought “will support B to focus on developmental tasks as she grows and help her to reach her potential in all areas.”
B had her first overnight time with her Father at about the time of the interviews and the parents told the Family Consultant that B had managed this first overnight visit well.
The Family Consultant thought that the Mother’s decision to remove B from Australia without notice to the Father indicated poor judgement and a lack of focus on B’s needs.
Although it was not a proposal advanced by either of the parties, the Family Consultant floated the idea of B and the Mother remaining in Australia for a period of time before returning to the UK. This would have the advantage of strengthening the relationship between the Father and B, giving B greater exposure to her Aboriginal heritage, and leaving B with greater capacity to sustain a relationship with the Father by virtue of being older when moving to the UK. Ideally, the Family Consultant thought that the move would take place about the time B entered high school, suggesting age 11 or 12. The longer B is able to stay the greater the capacity to develop relationships.
The Family Consultant, absent having spoken to the Mother about this matter, was unable to comment as to the potential mental health impact on the Mother.
The Family Consultant also identified that the arrangements for B in the short term should be shaped according to the longer term arrangements. That is, if B was to remain permanently in Australia, a transition towards shared care should take place. If B was to return to the UK, such a transition would make it harder for B.
For B, consequences of moving include the experience of grief and loss at not being able to spend time with the Father. The loss of relationship with the Father could include outcomes such as depression or anxiety. It can also impact upon her sense of identity and knowing who she is. This in turn could have a significantly negative impact upon her, particularly at adolescence, including an adverse impact on B’s mental health.
The Family Consultant did not think that online communication would be sufficient to maintain the relationship between B and the Father. The relationship would not have the depth of relationship that comes with spending time together and experiencing life together. Such a limited relationship was thought by the Family Consultant not to be in B’s best interests. She considered that it was important for B to be in Australia to give her the opportunity to develop a stronger relationship with the Father. This, she thought, was dependent upon how the Mother coped with remaining in Australia.
The Family Consultant observed B to be a strong, feisty two year old, presenting as a child who was very well loved, showing that the Mother has done well with B. This has potential to change, because at present the Mother still hopes to return to the UK. The Family Consultant could not say the impact of the loss of hope, which would be a significant change in circumstances.
B's Enjoyment of her Aboriginal Culture
The Father identified the relevance of ss 60B(2)(e), 60CC(3)(h), 60CC(6) and 61F to these proceedings, on the basis that B has Aboriginal heritage. Section 61F and ss 60CC(3)(h) and 60CC(6) were inserted into the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). In Hort & Verran (2009) FLC 93-418 the Full Court approved the statements of Young J in Davis & Davis (2007) 38 Fam LR 671 explaining the 2006 Amendments, as follows:
The 2006 amendments strengthened the language of the provisions in relation to the cultural needs of indigenous children. They introduced a specific right of the child to, inter alia, “explore the full extent” of his or her culture and “to have the support, opportunity and encouragement necessary” to do so. A child of Aboriginal heritage also has the right to “develop a positive appreciation of that culture”. The previous legislation required the Court to consider “the need” of an indigenous child to maintain a connection with his or her culture. By comparison, the new language creates a far greater imperative for the Court to give consideration to issues of culture. Certainly, the 2006 amendments imbued the notion of “connection” with a stronger and more active meaning.
The Full Court in Hort & Verran [2009] FLC 93-418 considered how the factors applicable to Aboriginal children in the new statutory context should be applied, and particularly the comments of Young J in Davis in relation to the notion of ‘connection’, as follows:
In Davis & Davis and Anor(2008) 38 Fam LR 671; [2007] FamCA 1149 Young J said:
In B & F [1998] FamCA 239, Moore J considered the scope and meaning of the term "connection". At 29–30 her Honour stated:
As I see it, the requirement to maintain a connection to their lifestyle, culture and traditions involves an active view of the child's need to participate in the lifestyle, culture and traditions of the community to which they belong. This need, in my opinion, goes beyond a child being simply provided with information and knowledge about their heritage but encompasses an active experience of their lifestyle, culture and traditions. This can only come from spending time with family members and community. Through participation in the everyday lifestyle of family and community the child comes to know their place within the community, to know who they are and what their obligations are and by that means gain their identity and sense of belonging.
In Donnell & Dovey [2010] FamCAFC 15 the Full Court stated:
[W]e consider that an Australian court exercising family law jurisdiction in the twenty first century must take judicial notice of the fact that there are marked differences between indigenous and nonindigenous people relating to the concept of family. This is not to say that the practices and beliefs of indigenous people are uniform, since it is well known that they are not. However, it cannot ever be safely assumed that research findings based on studies of European/white Australian children apply with equal force to indigenous children, even those who may have been raised in an urban setting.
In our view, judicial officers dealing with cases involving an indigenous child should be expected to have a basic level of understanding of indigenous culture, at least to the extent that this can be found in what the Full Court in B and R (supra) called ‘readily accessible public information’. It should not be expected that parties must approach the Court on the basis that the presiding judicial officer comes to the case with a ‘blank canvas’.
It is also to be expected, in our view, that judicial officers will be familiar with the reported decisions of the Full Court dealing with indigenous children, as well as the policy considerations that have informed the significant changes made to the legislation pertaining to indigenous children.
The Father is a Z man. The Father says that he only became fully aware of, and acknowledged, his Aboriginal heritage approximately 20 years ago, following the passing of his grandmother. In her affidavit material, Ms Q, the Father’s maternal aunt, sets out the disconnection and subsequent connection between the family and their Aboriginal heritage.
It was put to the Father that he did not engage with his Aboriginal heritage throughout his childhood or as a young man. The Father stated that this was not correct, and that he experienced aspects of Aboriginal culture through friends growing up. However, the Father also accepted that his connection was limited until the death of his grandmother.
The Father accepted that he likely informed the Mother of his Aboriginal heritage around the time she became pregnant with B.
It was put to the Father that there was no evidence in his affidavit regarding any steps taken by him to involve B in the Aboriginal community whilst the parties were living in D Town. He disagreed with this, but also stated that at the time B would have only been 18 months old.
The Father stated he gave his adult children the opportunity to be involved with their Z heritage, but they chose not to. Mr K and Mr CC, his adult children, have not had either any, or any significant exposure to their father’s culture and heritage.
The Father called several witnesses to give evidence about his own Aboriginal heritage and the importance of passing this on to B.
Of particular note was the evidence given by Ms L, the most senior Z elder within the F area. She stated that she had known the Gareth family for more than 38 years, having been a close friend of the Father’s mother. She stated that she did not believe the Father to have had any exposure to his Aboriginality until the late 1990’s, following the death of his grandmother. Ms L stated that the Father acknowledges and embraces his Aboriginality, and is a known and accepted member of the Z community.
Ms L identified the potential impacts upon B of being separated from the Father. Ms L stated that Aboriginal history, culture and heritage are only passed down orally within the community, and that this could only be achieved for B through her ongoing direct involvement with her Father and the extended family and community in Z land.
Ms L stated that ongoing, face-to-face contact is important as B grows, for her to gain an understanding of her heritage, culture, sense of belonging and women’s business. Ms L noted how hard it can be for a person to return ‘home’ to try and discover their true identity from strangers.
The Mother alleges the Father demonstrated no interest in his Aboriginal heritage until the Hague Proceedings were commenced to have her return with B from the UK. In contrast to this, Mr N, who has known the Father since 1977, says that the Father identifies as an Aboriginal and is accepted by the community as Aboriginal. The context of this assertion is that he says that being Aboriginal is not something that “you can just take or leave as a matter of convenience” but involves a person identifying as and accepting their Aboriginality and being accepted by the community as such.
The Father was cross-examined in relation to his and the Mother’s discussions regarding their long-term plans to move to the UK. The Father accepted that at this time, he did not bring up any concerns about moving away from Z land. He stated that it was a concern he held, but that this would have been ameliorated by his constant presence in B’s life.
The Father expresses concern that the removal of B from Australia and from Z land, along with separation from the Father, will result in “the link between her, her country, her Aboriginal community and her Aboriginal heritage” to be “completely severed.” He says that the passing down of her identity and cultural awareness is dependent upon her being in reasonable proximity to C Town, allowing her to be exposed to the Aboriginal community there. This includes the ability to have “secret women’s business” passed down to her by the women of the community. The Father says he has no knowledge of the content of “secret women’s business”.
Ms M has offered, along with the Father, to “ensure that B has the appropriate involvement with an understanding of her Aboriginal heritage, culture and traditions, and pass on to her as she grows up the vital elements of being an Aboriginal woman and of Aboriginal/Z women’s business (which business we only passed down by word-of-mouth from woman to woman when the time is right).”
Ms M speaks of awareness of Aboriginal persons needing to “live through growing up from a young child in regular contact and with involvement within their Aboriginal community, to adulthood.”
The Mother asserts that she will support B in learning of her Aboriginal culture. By way of example she says that she took B to NAIDOC week events in 2018 and has commissioned some Aboriginal art for B. She also says that she has been involved in making damper with Aboriginal women in the refuge. She says that she will conduct research to support B in learning about her culture.
The Family Consultant was asked about the capacity and willingness of the parties to support B’s experience of her Aboriginal heritage and culture.
It was pointed out to the Family Consultant that although the Father had discovered his Aboriginal heritage when the children of his previous marriage was still children, he did not imbue them with a sense of Aboriginal identity. He also did not raise the issue of his Aboriginal heritage with the Mother until approximately year into their relationship.
The Family Consultant did not consider these to be particularly negative indicators about the Father’s capacity and willingness. She noted that he had grown up in a time when there was stigma attached to a person embracing their Aboriginality.
Being near where the Father lives would involve B being exposed to country, which the Family Consultant identified as an essential component of connection to her heritage. The Family Consultant agreed that B’s presence in Australia is critical to her connection to custom, culture and country. Absence from the country would give her extremely limited opportunities to connect to this heritage.
The Family Consultant thought that the failure to connect to this heritage has potential consequences for B particularly as she grows into her adolescent years, in terms of her sense of identity and in terms of her reaction at being denied a connection to this aspect of her identity.
The Mother identified a number of approaches to supporting B's Aboriginal identity, as outlined above. This was seen by the Family Consultant as being a very good step, but that it did not in itself indicate a capacity to foster that identity. The Family Consultant identified that the Mother appeared to have limited understanding of what it would involve to connect B to her Aboriginal heritage, despite the Mother’s representations that she had commissioned artefacts and artwork related to B’s heritage. She questioned whether the Mother had sufficient understanding to give her capacity to foster this heritage. The Mother’s proposed solution of finding information through the internet had limited capacity to connect B with this heritage.
This important issue was seen by the Mother as being primarily the responsibility of the Father. Although she has taken some steps to expose B to her Aboriginal heritage, the Mother accepted that it was to be primarily the Father’s responsibility. This accords with common sense. Although the Mother questioned the emphasis placed upon it by the Father since the start of the proceedings, she did not dispute that he is the one with connections to community and knowledge of his heritage to place him at a distinct advantage with respect to the Mother in relation to this issue.
The Family Consultant was also taken to criticism of the Father that had used the term “abo.” The Family Consultant thought that this would be significant if it was used in front of B. There is no evidence to suggest that B has been exposed to the use of such a term.
B's Living Arrangements if with the Mother in either Australia or the UK
The Mother is currently living in accommodation attached to a refuge service in Perth. She describes that this is a temporary arrangement, meaning that she will be unable to live there indefinitely.
The Mother expressed uncertainty about her visa status in Australia and her ability to obtain a visa. The Mother says that she has advised the Australian migration authorities that she and the Father have separated. The Mother has indicated that the process is currently underway for the ending of her particular visa status, as it is contingent upon the relationship with the Father. She does not indicate what enquiries, if any, have been made otherwise as to her ability to obtain a different visa in Australia.
Despite this, there was limited evidence regarding the Mother’s visa status or any incapacity on the part of the Mother to obtain a different visa. If there was a serious impediment to the Mother obtaining a visa, it may be expected that evidence of such would have been placed before the Court.
Further, the Mother has not provided clarity as to the impediments of her securing work in Australia other than implicitly due to her current care of B and her desire to return to the UK.
The Mother says that if she is able to relocate to the UK with B she will be entitled to government housing. The Mother also says that her employment prospects are better in the UK than in Australia. The Mother intends to enrol in university study in the UK and as a result she will entitled to additional study benefits. While the Mother alleges that her financial status will be better in the the UK, her proposal is to attend university and so it is unclear as to how her financial position will improve.
The Mother says that she has a large extended family in the UK and that her parents would be available to assist with B’s care. The Mother says that B met, and got along well with, many members of her extended family members when she was in the UK, before the Hague Proceedings.
Living Arrangements if with the Father
The Father proposes that if B lives with him he will function as a “full-time” Father on an initial basis. The Father says that he will have the support of his family, friends and the Aboriginal community. He says that if the Mother lives within 150km of C Town there should be a week about parenting arrangement.
Reasonable Practicability of Arrangements
The Mother says that she will support FaceTime contact between the Father and B and also will pay for her and B’s travel to Australia. She does not indicate where she would travel to in Australia (noting that following the return under the Hague Proceedings she started living in Perth while the Father lived in the New South Wales F region). It is unclear how the Mother proposes to fund such travel.
The Father alleges a lack in his capacity for the travel proposed by the Mother.
The Father says that if B moves to the UK then the difficulties and cost of travel will mean that he will not be spending face-to-face time with her in the foreseeable future. It is not accepted that FaceTime could be expected to be the basis of an appropriate relationship between himself and B.
The Father stated that should B live with him, her relationship with the Mother could be sustained by electronic communication, and that the Mother would be at liberty to visit. It was put to the Father that this was an arrangement equally as applicable to maintaining B’s relationship with him, and to her Z culture. He stated that this would not be sufficient to sustain his relationship with B.
Discussion
Parental Responsibility
As identified at the start of the judgment, the paramount consideration is the best interests of B. Those best interests are the focus of the Objects and Principles of Part VII of the Act. The objects emphasise the involvement of both parents in a child’s life, insofar as it supports the best interests. The Principles that support the Objects in turn emphasise the combined involvement of the parents and place a priority on future parenting of a child being by agreement.
The Act commences the consideration of making parenting orders in a child’s best interests by a consideration of parental responsibility which, in turn, commences with a presumption in favour of making an order for equally shared parental responsibility. The presumption is reflective of the Objects and Principles and, as the Objects are expressed subject to best interests, so too the presumption is able to be rebutted on the basis of best interests.
Similarly, as the Objects place emphasis on the need to protect children from harm caused by abuse, neglect or family violence, the presumption is rendered inapplicable where there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse or family violence.
In this case there are not reasonable grounds to believe that the Father has engaged in either abuse or family violence, despite the allegations made by the Mother.
That leaves the presumption in favour of equally shared parental responsibility applicable and determinative unless it is rebutted as not being in B’s best interests.
The effect of an order for equally shared parental responsibility is that, when it comes to making major long term decisions in a child’s life, the parents are required to consult each other and make a genuine effort to come to a joint decision[15]. Such decisions can only be made together. If they are unable to be resolved then the deadlock will require resolution by application to the Court.
[15] Section 65DAC
There are only a limited range of decisions that will fall within the description of major long-term issues. Although the categories are not closed, typically the range of issues may involve matters of religious upbringing, whether a child will live a significant distance from a parent, the management of major long term health issues or responses to serious medical matters and overarching decisions about schooling such as which school a child might attend. Each of these matters may also necessitate subsidiary decisions being made on a day to day basis that are not major long term decisions, but which need to be taken in the light of what is major and long term. For example, while the decision as to which school is a major long term, decisions in relation to homework are in the realm of day to day decision making which will not be the subject of the requirements of s 65DAC.
In this case there is a further matter falling within the description of a major long term decision. That matter is the exposure to and involvement of B to her Aboriginal culture. It is a major long term issue as it impacts upon B’s long term sense of who she is. Although it involves day to day decisions about who B might spend time with, or events that she might attend, or how she might learn about her heritage, the nature of her overall exposure to her heritage has major long term consequences for who she is and how she sees herself.
There are a number of matters that go to whether equally shared parental responsibility is in B’s best interests.
Each parent expressed significant mistrust of the other. This undermines the capacity of the parents to engage in the cooperative decision making required by s 65DAC. However, this does not equate to an incapacity to communicate.
Dr T did not think that the parties could communicate face-to-face. He thought communication by emails and the like could be possible in the future. The Mother’s current suspicion of the Father meant, at the moment, that they would not communicate “at all well.” The Mother’s distrust, he thought, is a negative factor for interaction. He did not think that the parents will be able to communicate on easy terms.
The Family Consultant noted the practical impediments of engaging in long term decision making in the event that B lives in the UK and the Father in Australia. Given what would then be the limitations in the nature of the relationship between B and the Father there would be limitations in his capacity to engage in the decision making process, particularly in the context of a relationship of mistrust. While this might hamper the Father’s participation in some decision making, it does not remove the benefits that B that both parents (with their different backgrounds and culture) may jointly bring to long term decision making, being benefits that B may not receive if one parent alone was to make the decisions.
This is particularly emphasised in one realm where it would be important to have the Father engaged in the decision making, on the basis that the Mother is ill equipped to make decisions in that realm without the involvement of the Father. That area of decision making is in relation to the nature of B’s exposure to her Aboriginal culture. Although the Mother has taken some steps to expose B to her Aboriginal culture, this important issue was seen by her as being primarily the responsibility of the Father. This accords with common sense. The Mother did not dispute that the Father is the one with connections to community and knowledge of his heritage and culture.
Although these factors to some extent pull in different directions, when seen in combination, they are insufficient to displace the presumption in favour of equally shared parental responsibility.
Accordingly an order ought to be made to such an effect.
The consequence of this determination is that it is necessary to follow the structured path for decision making, commencing with a consideration of equal time, followed by a consideration of substantial and significant time, prior to a consideration of other outcomes. These, in this case, are best considered in the light of the proposals made by the parties, and their positions in the event that their proposals are not accepted as being in B’s best interests.
It should be noted, in doing so, that the only proposal in respect of equal time was made by the Father in the event that the Mother lived proximate to him, and the only option in respect of substantial and significant time was identified by the Mother if the Father moved to Perth in the event that she was unable to move to the UK.
The Alternative Living Arrangements
The parties each set out their primary orders sought, along with alternatives dependent upon where each of the parties lives following the making of the orders. In describing these as alternatives it should not be thought that these have been elevated to the level of proposals, particularly where the Mother sets out regimes to put into place in the event that she cannot relocate B to the UK. The alternative in such an instance arises where the primary proposal is not in B’s best interests.
Although I am not bound by the parties’ proposals, I do not consider that the evidence allows some other resolution to be identified as workable or in B’s best interests.
B Living Proximate to C Town
The Father seeks orders for equally shared parental responsibility and that B live with him, unless the Mother moves to live within 150km of the C Town post office, in which case he says that B should live with each of them equally.
The effects of these order would be that, if the Mother did not move, B would experience a change in her primary carer. Even during the relationship, given the nature of the Father’s work, the Mother played the dominant role in B’s life. Instead of this position continuing B would have an ill-defined relationship with her Mother and have her Father as her primary carer. This is not a role that he has previously played. His recent relationship with B has been conducted in a limited manner as he has lived in C Town and B in Perth.
Such a change would be a severe disruption in B’s life, including the displacement of what is currently the most significant relationship in her life. This carries with it the risk of a strong adverse impact upon B as she experiences, to a large extent, the loss of her Mother.
It may also be reasonably thought that such a change would be unlikely to see an improvement in the Mother’s strained mental health, potentially impacting upon the qualities of what would then be a much more limited relationship between B and the Mother.
Alternatively, if the Mother moved to the C Town region, there would still be a significant change faced by B in the change to week about time. This would again be a severe disruption in B’s circumstances, as she would spend significantly less time with her Mother than previously, and with a sudden increase in time with her Father. The Family Consultant did not support such an option, pointing to B’s need for consistency in her care which would be achieved by spending more time in a primary residence with her primary carer, which is the Mother. She thought that B would benefit from a period of stability once the Final Orders were made.
This would happen in the context of very difficult circumstances for the Mother. Not only would her hopes of a move to the UK be dashed, a matter which is likely to impact adversely upon her health, but she would, in a practical sense be forced into circumstances worse than those she currently faces in Perth, being forced back to a region with ill-defined prospects for her in terms of work, or living conditions, and to a place that she previously experienced as difficult and isolating. The Mother described such an option as her “worst nightmare” to the Family Consultant.
Under those circumstances, despite the assessment that the Mother will make the best of her circumstances, it is likely that the Mother will experience ongoing adverse mental health consequences that are at risk of impacting her parenting of B. These risks would likely have the effect of B experiencing her Mother as less accessible and less available to help to regulate B’s own emotional state.
These factors also lead to the conclusion that such a result would not be reasonably practicable. Imposing country living on the Mother, where her prospects of employment and support are unidentified and in circumstances where she is likely to be miserable and isolated, is not a reasonable practicable resolution. This conclusion means that such a result is not available.[16]
[16] MRR v GR
The benefit of such an arrangement is that B would have relationships with each of her parents supported by regular and copious amounts of time, such that each could be involved in the day to day reality of B’s life and B could experience the full range of each of their inputs into her life. As a part of this B would also have the best access to connect with her Aboriginal heritage and culture, having available not only her Father, but also ready access to the local Aboriginal community, including access to women who could share her culture with her in ways that the Father concedes he cannot.
Despite these benefits, neither B living full time with the Father, nor an equally shared time in C Town are in B’s best interests, given the negative effects that flow from either.
B Living in the UK
The Mother seeks that she be at liberty to move B to the UK. Despite the parties’ plans while part of an intact relationship to move to the UK, the evidence at trial supports no likelihood of the Father moving to the UK under the circumstances of the relationship having come to an end.
The consequences of such a move include the likely improvement of the Mother’s mental condition, as she is able to exercise control over her own living arrangements, as she experiences better financial support, and has the support of her family. The prognosis for the Mother’s improvement over a reasonably short period of time is markedly better in the UK, and bodes well for her capacity to care for B and provide her with the emotional support to help her regulate her own emotions and develop.
The other consequences include a significant diminution of the relationship between B and her Father. The relationship could only take place on limited face to face occasions each year, for a short period of time in Australia and, if the Father is able (which, despite his assertion he could not afford the travel, his travel to date to Perth indicates that he does have some capacity) for short periods of time in the UK. Added to this, regular electronic communication would also be available. This would result in a limited relationship with the Father. The limitation in the face to face time would mean a relationship of lesser quality and benefit than even the limited relationship B currently experiences.
The Family Consultant thought that a relationship based on FaceTime and occasional face to face visits would lead to a relationship that was “likely to be somewhat superficial.” While she accepted that FaceTime was a “very good resource” it could not replace meaningful time with a person. The Family Consultant was also concerned that B was likely to feel anxious during block periods of time with the Father under those circumstances.
While the Father sees such a move as the complete loss of the relationship, this should not be accepted to be so. However, the benefits of the relationship with the Father can be anticipated to be limited in the extreme. Allied to this, B’s experience of her Aboriginal culture would also be extremely limited, by virtue of little access to her Father, to her country, and to the women who can mediate aspects of her culture that the Father cannot. There remains the prospect of some such access, but largely restricted to yearly visits to Australia, and to taking place in the absence of ongoing relationships with the local community.
The effect of these limitations includes likely long term adverse impacts on the development of B’s identity, both generally in respect of having relationship with her Father, and specifically in terms of her identity as an Aboriginal Australian.
This proposal bears strong negative consequences for B, which point away from it being in B’s best interests to move to the UK. Whether they point so far as to lead to a definitive conclusion that it is counter to B’s best interests depends on whether there is another outcome that is better able to support B’s best interests.
B in Perth
If the Mother is unable to move B to the UK, she seeks to remain with B in Perth. Under those circumstances the nature of the relationship with the Father would vary dependent upon whether or not he chose to also live in Perth.
The Father has not indicated to the Court that he will make such a move. While it may be considered to be a possibility, it cannot be assessed as a likelihood, and the case should be assessed on the basis that he will not move.
If the Father does not move, then the relationship remains to be conducted largely on a monthly basis, consisting of short visits and electronic communication. When B commences school the Mother proposes that there also be school holiday time. The frequency of such is significantly greater than if B lives in the UK, leaving greater scope for a developing relationship with the Father, and greater benefits flowing from that relationship, both in terms of her general identity and her identity as an Aboriginal person. There would also be greater scope for access to country and to the C Town Aboriginal community during school holiday times. Under the circumstances, B’s relationship with the Aboriginal community could be expected to be better than if she lives in the UK, allowing her to exercise her right to access to her culture. However, even with the increase in frequency, the relationship with her Father would be limited.
What would accompany this would be the strong potential of the Mother’s mental health degrading. While the Mother accepts that she will make the best of her situation, and while she appears to have buffered B from her own difficulties to date, such orders would remove the hope she has in relocating. It is likely that the consequences would not be as great as a move to the C Town region, at least in part because the Mother will have been able to exercise control over where in Australia she might live, and noting that she has now been resident in Perth for an extended period. Despite this, the Mother has not developed supportive relationships while in Perth. This seems to be connected to her unwillingness to remain in Perth.
While over time her position may improve, it is at risk both of degrading and of failing to improve from where it is now, once the hope of return to her family is frustrated. Again, this has negative consequences for her capacity to emotionally care for B over the long term, reducing the benefits of relationship that B obtains from her.
Assessment
At its most reductionist level, the best interests of B are to be derived from the contest between the benefits to B of having her Mother mentally well, available emotionally, and deriving the benefits of that meaningful relationship, as against the benefits of meaningful relationship with her Father and the connected benefits of connection to her Aboriginal culture.
From another perspective, it is a discretionary weighing of the effects of the Mother’s ongoing poor mental health upon B as against a better relationship with her Father and a better connection to her culture, as against her loss of connection and a minimal relationship with her Father, but in the context of a mentally healthier, happier and better supported primary carer.
Each has long term consequences for how B develops, and develops her identity.
The options identified by the parties as available each carry with them poor outcomes for B. Each, while providing benefits for B carries with it significant detriments. In this case B’s best interests involve a weighing of benefits against poor outcomes in other respects. No proposal bodes well for B’s long term prospects.
It may be concluded that, in terms of best interests the options of B moving to the UK, or B remaining in Perth are in fine balance. They each carry different benefits and detriments for B, the detriments in each case being serious for B in the long term.
Potentially tipping the matter in favour of the move to the UK is that this may prevent further litigation on the matter, which, if the Mother was to remain in Perth and her condition was to worsen, could become a likelihood.
There is however another matter, which is not conditioned upon B’s best interests which bears weight in the current circumstances of such a finely balanced matter. That matter relates to what was referred to in Adamson & Adamson as the “right of freedom of mobility of a parent”.[17] There the Full Court said;
These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
[17]Adamson & Adamson (2014) FLC 93-622.
This approach is consistent with the approach of Gaudron J in AMS v AIF at [95] where she noted that
A decision then had to be made as to which of those possibilities was preferable, the welfare of J being the paramount but not the only consideration to which regard was to be had in making that decision.
The consequence of these passages is that the position of the Mother, and her general right of freedom of mobility is a matter to be taken into account, but in a manner subservient to the best interests of B. In this finely balanced case, it is a consideration that is capable of weighing the balance in favour of the Mother.
Even though the impact upon the Mother of not being free to move is a matter already taken into account in considering the best interests question, it is a consideration that also has work to do outside of the resolution of the best interests of B. That is, it is a consideration that has an effect beyond the consideration of best interests. It is not a double counting of the one consideration, but is a recognition of the significance of the same factual matters in relation to different aspects of the exercise of the discretion.
In what is otherwise a finely balanced case in relation to what is in B’s best interests, the comments made in Adamson tip the balance in favour of B moving with her Mother to the UK.
Conclusion and Orders
In fashioning the appropriate Orders it is useful to start with the orders proposed by the Mother, given that the Father did not address this particular eventuality.
While the Father indicated that he could not travel to the UK due to a lack of capacity, his regular visits to Perth indicate some, although not a precise level of capacity and provision should be made to cater for time with B if the Father is able to travel. While the Mother proposed seven day periods should the Father visit, this appears an unduly restrictive approach, particularly given that by her proposal the Mother appears to accept that a period of fourteen days is appropriate for when B visits Australia. While it may take adjustment for B, the Orders need to be fashioned to work for the longer term. It is always the case that the parties may agree to a different way of doing it.
The Orders will also provide for a default starting day for the Father’s time with B to deal with the possibility that they will not be able to agree.
In relation to the time in Australia, while the parties may agree to a different handover place, the default will be the Father’s home. It would impose an unfair burden on the Father if the Mother was to choose to stay in a place remote from him (say Perth) and he was then required to collect and return B from there. Such an arrangement mirrors the arrangement the Mother seeks for herself in the UK.
While the Mother proposed a regime should the Father otherwise visit the UK, there is no indication that he will be able to over and above what may be directly provided for in the Orders. It is appropriate that if the Mother visits Australia with B on other occasions that B should spend time with her father and provision will be made for such. That will provide for a longer period than that proposed by the Mother to increase the benefit to B.
While the Mother proposed two occasions of electronic communication each week, there seems no good reason at present to decrease the frequency from that currently enjoyed by B (three times per week) while in Perth. While electronic communication is a poor substitute for face to face time, it should be used as a frequent and normal part of B’s life. Again, if it does not work at such a frequency the parties are at liberty to vary the arrangement.
A default time for electronic communication in the morning in the UK should be used, as the UK evening time would appear to require calls to be made in the early hours of the Australian morning. B will be forming a new morning routine in the UK as she transitions into school and morning communication with her Father can be incorporated into that.
Although the parties did not address it, it is appropriate that B have some time with her Father, on his and her country if he so chooses, prior to leaving for the UK in accordance with these Orders. It will mean that the Father’s home will have familiarity for her as she anticipates returning next year, and will provide an introductory experience of a block period of time. A period of seven days will be provided for as an incremental increase from what B has experienced to date.
I certify that the preceding one hundred and ninety-nine (199) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 16 August 2019.
Associate:
Date: 16 August 2019
Annexure 1: Orders Sought
Orders Sought by the Father:[18]
[18] Case Information filed by the Father on 12 November 2018
That all previous Orders be discharged.
That the Mother and the Father have equal shared parental responsibility for the child of the marriage B born … 2015 (the child).
That B live with the Father save that should the Mother live within a 150km radius of the C Town Australia Post Office, C Town in the State of New South Wales then:
a)B live with the Father from 9:00am on the first Saturday following these Orders to 9:00am on the second Saturday following these Orders (the Father to collect B from the Mother’s home at the commencement of such time), and alternate weeks thereafter;
b)B live with the Mother from 9:00am on the second Saturday following these Orders to 9:00am on the third Saturday following these Orders (the Mother to collect the child from the Father’s home at the commencement of such time) and alternate weeks thereafter;
unless otherwise agreed between the parties from time to time.
That should the Mother not live within 150kms radius of the C Town Australia Post Office, C Town, then the Mother:
a)spend such time with B as may be agreed between the parties from time to time;
b)have telephone contact with B at any reasonable time;
c)have FaceTime with B not more than four times each week on such days and at such times as may be agreed between the parties from time to time.
That each party keep the other informed of the particulars (including name, address and telephone number) of B’s:
a)Residential address;
b)Doctor and other treating health professionals;
c)Day Care Centre.
That the parties forthwith ensure that the other party’s name and contact particulars are recorded with B’s:
a)Doctor and other treating health professionals;
b)Day Care Centre.
That both parties be at liberty to attend any Day Care event or other activity or event relating to B.
That each party shall provide all authorities necessary to enable the other party to receive copies of any reports, circulars, notices of events, and the like, to which parents are invited, medical reports and activity reports.
That each party notify the other as soon as practicable, in the event of any illness or injury occurring to B whilst in their care and provide full particulars of any medical practitioner, health service provider or institution attended by B and provide any authority and direction necessary to enable the other party to obtain all necessary information concerning B or to visit B in any such institution.
That each parent be and hereby is restrained from making any disparaging or negative remarks or comments about the other either to B or in the presence of B, or within B’s hearing, or permitting B to remain within hearing of any other person making such comments.
That the Mother surrender immediately all Passports for B to the Registrar of this Court and be and is hereby restrained from applying for any further Passports for B.
That the Registrar holds the Passport/s of B pending further Order of the Court.
That the parties are restrained from removing or causing or allowing the removal of B from the Commonwealth of Australia.
AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing B born … 2015, Female, on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth Of Australia and maintain her name on the Watchlist for a period of five (5) years.
Such further and other Orders as this Honourable Court thinks fit.
Orders Sought by the Mother:[19]
[19] Outline of Case Document filed 12 November 2018.
That all previous parenting Orders be discharged.
That Ms Naylor (“the Mother”) have sole parental responsibility for B born … 2015 (“the child”).
That the child live with the Mother.
The Mother be permitted forthwith to relocate the residence of the child to the UK and for this purpose the child’s UK passport being held in the Family Court Registry (Canberra) be released to the Mother.
That following the relocation outlined in Order 4 above the Father spend time and communicate with the child as agreed between the parties but failing agreement as follows:
a.By telephone or video communication on two occasions in each week at 6pm the UK time on Tuesday and Saturday (as those days fall in the UK) with the Mother to initiate the call;
b.For a period of 7 days on 2 occasions each year in the UK with the first occasion to occur in the UK end of year term holiday and the second occasion to occur in the UK mid year term holiday period. The Father’s time is to commence at 9am on the first day of the period and is to conclude at 5pm on the last day of the period. The Father shall notify the Mother in writing of the days he shall spend with the child no less than 30 days prior to the commencement of his time. The Father is solely responsible for the cost of his travel and accommodation in the UK;
c.For a period of 14 days on 1 occasion each year in Australia, during times as agreed between the parties. The Father’s time is to commence at 9am on the first day of the period and is to conclude at 5pm on the last day of the period. The Father shall notify the Mother in writing of the days he shall spend with the child no less than 30 days prior to the commencement of his time. The Mother is solely responsible for the cost of the child and the Mother’s travel and accommodation in Australia;
d.Should the Mother travel to Australia in addition to those times outlined in Orders 6c above the Mother is to provide the Father with no less than 30 days’ notice of her intention to do so and should the Father be within 50 kilometres of the child he shall spend time with the child for a period of 2 consecutive days. This time is to commence at 9am on the first day and is to conclude at 5pm on the second day. The Father shall notify the Mother in writing of the days he shall spend the child no less than 30 days prior to the commencement of his time; and
e.Should the Father travel to the UK at times in addition to those times outlined in order 6b above the Father is to provide the Mother with no less than 30 days’ notice of his intention to do so and should the Father be within 50 kilometres of the child he shall spend time with the child for a period of 2 consecutive days. This time is to commence at 9am on the first day and is to conclude at 5pm on the second day. The Father shall notify the Mother in writing of the days he shall spend with the child no less than 30 days prior to the commencement of his time.
That changeovers that occur pursuant to orders 5b and 5e above occur with the Father collecting the child from the Mother’s residence at the commencement of his time and returning the child to the Mother’s residence at the conclusion of his time.
That changeovers that occur pursuant to order 5c and 5d occur as agreed but failing agreement at the McDonald’s location closest to the Mother’s place of accommodation.
The each of the parties is restrained from speaking about the other in a derogatory manner, either to the child or in the child’s presence or allowing any other person to do so.
That each party shall advise the other within 48 hours of any medical or dental appointment which the child attends and advise the other party of the name and address of any medical or other practitioner who examines or provides treatment or diagnosis in regards to the child and authorise that practitioner to give all the information in relation to the child to the other party.
That each party will notify the other as soon as practicable of any medical emergency in which the child requires medical treatment. Should any such emergency arise, each parent will inform the other of the name and address of any treating medical practitioner and authorise that practitioner to speak to the other parent.
That the Mother authorise any day-care or early childhood centre or school which the child attends to provide information to the Father in relation to the child’s academic and co-curricular activities, including copies of school reports.
That each parent shall notify the other within 7 days of any change of address, telephone number or email and shall provide the updated contact details to the other parent forthwith.
That the Mother shall hold the child’s passport.
That the Mother shall provide to the Father by email a monthly summary of the child’s care, welfare and development with such matters including but not limited to:
a.Photos of the child;
b.The child’s participation in sporting activities and sporting achievements;
c.The child’s academic progress and academic achievements; and
d.Any medical issues experienced by the child.
IN THE EVENT THAT THE MOTHER IS NOT PERMITTED TO RELOCATE TO THE UK AND THE PARTIES LIVE WITHIN 100KMS OF EACH OTHER
That all previous parenting orders be discharged.
That Ms Naylor (“the Mother”) have sole parental responsibility for B born in 2015 (“the child”).
That the child live with the Mother in Perth, Western Australia.
That the child spend time and communicate with the Father as agreed between the parties but failing agreement as follows:
a.3 nights per fortnight, each alternate weekend from 6pm Friday to 6pm Monday;
b.From the child’s fourth birthday onwards, 4 nights per fortnight from 6pm Friday to 6pm Tuesday;
c.From the child’s fifth birthday onwards, 5 nights per fortnight from 6pm Friday to 6pm Wednesday;
d.When the child commences school, for half of all school holiday periods;
e.By telephone or video communication on two occasions in each week at 6pm on Tuesday and Saturday with the Mother to initiate the call.
That changeover shall occur at a McDonald’s location closest to the Mother’s accommodation.
The each of the parties is restrained from speaking about the other in a derogatory manner, either to the child or in the child’s presence or allowing any other person to do so.
That each party shall advise the other within 48 hours of any medical or dental appointment which the child attends and advise the other party of the name and address of any medical or other practitioner who examines or provides treatment or diagnosis in regards to the child and authorise that practitioner to give all information in relation to the child to the other party.
That each party will notify the other as soon as practicable of any medical emergency in which the child requires medical treatment. Should any such emergency arise, each parent will inform the other of the name and address of any treating medical practitioner and authorise that practitioner to speak to the other parent.
That the Mother authorise any day-care or early childhood centre or school which the child attends to provide information to the Father in relation to the child’s academic and co-curricular activities, including copies of school reports.
That each parent shall notify the other within 7 days of any change of address, telephone number or email and shall provide the updated contact details to the other parent forthwith.
That the Mother shall hold the child’s passport.
IN THE EVENT THAT THE MOTHER IS NOT PERMITTED TO RELOCATE TO THE UK AND THE PARTIES LIVE FURTHER THAN 100KMS A PART
That all previous parenting orders be discharged.
That Ms Naylor (“the Mother”) have sole parental responsibility for B born in 2015 (“the child”).
That the child live with the Mother in Perth, Western Australia.
That the child spend time and communicate with the Father as agreed between the parties but failing agreement as follows:
a.3 nights per month in Perth Western Australia or as and when the Father is able to travel to Perth Western Australia;
b.When the child commences school, for half of all school holiday periods;
c.By telephone or video communication on two occasions in each week at 6pm on Tuesday and Saturday with the Mother to initiate the call.
That changeover shall occur at a McDonald’s location closest to the Mother’s accommodation.
The each of the parties is restrained from speaking about the other in a derogatory manner, either to the child or in the child’s presence or allowing any other person to do so.
That each party shall advise the other within 48 hours of any medical or dental appointment which the child attends and advise the other party of the name and address of any medical or other practitioner who examines or provides treatment or diagnoses in regards to the child and authorise that practitioner to give all the information in relation to the child to the other party.
That each party will notify the other as soon as practicable of any medical emergency in which the child requires medical treatment. Should any such emergency arise, each parent will inform the other of the name and address of any treating medical practitioner and authorise that practitioner to speak to the other parent.
That the Mother authorise any day-care or early childhood centre or school which the child attends to provide information to the Father in relation to the child’s academic and co-curricular activities, including copies of school reports.
That each parent shall notify the other within 7 days of any change of address, telephone number or email and shall provide the updated contact details to the other parent forthwith.
That the Mother shall hold the child’s passport.
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