GARFIELD & CASSANO
[2018] FCCA 3265
•14 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GARFIELD & CASSANO | [2018] FCCA 3265 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – international relocation – consideration of child’s schooling – best interests of the child. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Heaton v Heaton (2002) 48 Fam LR 349 Mazorski v Albright (2008) 37 FamLR 518 McCall & Clark (2009) FLC 93-405 Morgan & Miles (2007) FLC 93-343 U v U (2002) FLC 93-112 |
| Applicant: | MR GARFIELD |
| Respondent: | MS CASSANO |
| File Number: | MLC 6876 of 2013 |
| Judgment of: | Judge Mercuri |
| Hearing dates: | 22 & 23 August 2018 |
| Date of Last Submission: | 23 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 14 November 2018 |
REPRESENTATION
| Counsel for the applicant: | Mr Thistleton |
| Solicitors for the applicant: | Bowlen Dunstan & Associates |
| Counsel for the respondent: | Mr Schmidt |
| Solicitors for the respondent: | Hargreaves Family Lawyers |
ORDERS
All previous parenting orders be discharged.
The mother have sole parental responsibility for the child [X] born 2011 (“the child”) in relation to medical and education decisions.
The parties otherwise have equal shared parental responsibility for the child.
For the purposes of paragraph 2 herein, in relation to any proposed decision for the child, the mother shall:
(a)advise the father by email of any proposed decision;
(b)seek the father’s opinion;
(c)take the father’s opinion into account in making the decision; and
(d)advise the father of her decision by email, as soon as practicable.
The mother be permitted to relocate the child’s residence to (country omitted) on or after 22 November 2018.
Pending the mother and the child relocating the (country omitted):
(a)the child shall live with the mother; and
(b)the child shall spend time and communicate with the father each alternate week from the conclusion of school (or 3:00pm) on Friday until the commencement of school (or 9:00am) on Tuesday.
The child be permitted to leave the Commonwealth of Australia AND IT IS DIRECTED that the Australian Federal Police remove the name of the child from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
Upon the relocation to the (country omitted), the child spend time with the father as follows:
(a)in Australia:
(i)for a period of 6 weeks during the (country omitted) summer holiday period, during which time the child be returned to the mother’s care for four nights every two weeks; and
(ii)for a period of 2 weeks in 2019 and each alternate year thereafter, during the child’s December/January holidays;
(b)in (country omitted):
(i)for a period of two weeks:
A.in each year during the child’s spring break holiday (March/April); and
B.in 2020 and each alternate year thereafter, during the child’s December/January holidays to commence on 27 December; and
(ii)on any occasion that the father travels to (country omitted) subject to the father providing the mother with not less than 60 days prior written notice prior to his arrival in the (country omitted), during school terms from the conclusion of school (or 3:00pm) on Friday until the commencement of school (or 9:00am) on Tuesday in each alternate week; and
(c)at such further and other times as agreed between the parties in writing.
For the purposes of the child’s travel pursuant to paragraph 8(a) herein, the mother provide the father with the dates of travel no less than 60 days prior to travel.
For the purposes of the child’s time with the father pursuant to paragraph 8(b) herein, the father provide the mother with the dates of travel 60 days prior to travel.
Upon the child’s relocation, the mother do all things required to facilitate the child having Skype and/or FaceTime communication with the father (and if these forms of communication are not reasonably available, by telephone or other electronic communication) at such times as agreed between the parties and, in default of agreement, each Sunday and Wednesday between 5:00pm and 6:00pm (country omitted) time and, for that purpose:
(a)the mother shall provide the child with his own smartphone enabled with Skype/Facetime technology; and
(b)the mother will create a location in her residence where the father and the child can communicate uninterrupted.
In relation to the child’s travel:
(a)the mother shall be responsible for selecting and booking the child’s flights between (country omitted) Airport and Melbourne International Airport pursuant to paragraph 8(a) herein;
(b)the parties shall meet all expenses relating to the child’s travel between the (country omitted) and Australia on an equal basis, with the father to reimburse the mother one half of the cost of the flights to a bank account nominated by her in writing within 7 days of providing evidence of the purchase of the tickets to the father pursuant to paragraph 8(a);
(c)the father shall meet all expenses relating to the child’s time spent with him pursuant to paragraph 8(b);
(d)the child shall be permitted to travel as an unaccompanied minor upon turning 10 years of age (or at such earlier time as may be agreed between the parties in writing); and
(e)the parties shall each otherwise bear their own travel costs.
Unless otherwise expressly agreed between the parties in writing, changeover shall take place as follows:
(a)at Melbourne International Airport for the purposes of paragraph 8(a);
(b)at (country omitted) International Airport for the purposes of paragraph 8(b)(i); and
(c)at the child’s school in the event the father is spending time with the child in (country omitted) pursuant to paragraph 8(b)(ii).
Upon the mother and the child relocating to the (country omitted), the mother shall:
(a)ensure the father is advised at all times of her residential address, telephone number and Skype/Facetime address by which the father can communicate with the child;
(b)authorise any medical practitioner upon whom the child may attend from time to time to communicate with the father in respect of any medical condition the child may have and/or any other requirements for the child;
(c)arrange for the child to be immunised according to the schedule of immunisation directed by the relevant health authority in the (country omitted);
(d)authorise all schools at which the child may attend from time to time to provide the father with copies of all school reports, school notices and school photographs in relation to the child and to authorise any school to communicate with the father, either by telephone or in writing or other electronic means in relation to the child’s progress at school; and
(e)advise the father immediately in the event the child suffers a serious illness or injury.
The child’s Australian passport be:
(a)released by the Federal Circuit Court of Australia to the mother who shall provide a certified copy of the passport to the father;
(b)released by the mother to the father as soon as reasonably practicable to enable the father to travel internationally with the child subject to paragraph 17 of these orders being complied with; and
(c)returned by the father to the mother within 48 hours of the child’s return to the (country omitted).
The father shall do all such acts and things and sign all such documents as may be required to enable the child to obtain a (country omitted) passport, with the mother to meet all associated expenses.
In the event that the mother intends to travel internationally with the child, she notify the father in writing not less than 60 days prior to the date of departure and provide an itinerary of the travel, including:
(a)the countries to which the child will travel and with whom the child will travel;
(b)the airlines/ships (including flight or ship details) upon which the child will travel;
(c)the dates upon which the child will depart from and return to the (country omitted);
(d)the addresses at which the child will reside and a telephone/Skype/Facetime number on which the father can communicate with the child; and
(e)not less than 7 days prior to the date of departure, provide the father with a copy of the child’s return airfare.
In the event that the father intends to travel internationally with the child, he notify the mother in writing not less than 60 days prior to the date of departure and provide an itinerary of the travel, including:
(a)the countries to which the child will travel and with whom the child will travel;
(b)the airlines/ships (including flight or ship details) upon which the child will travel;
(c)the dates upon which the child will depart from and return to the (country omitted);
(d)the addresses at which the child will reside and a telephone/Skype/Facetime number on which the mother can communicate with the child; and
(e)not less than 7 days prior to the date of departure, provide the mother with a copy of the child’s return airfare.
The costs of the child’s travel to and from the (country omitted) pursuant to these orders will be shared equally between the parties. The parties otherwise each bear their own costs of travel associated with these orders.
Both parties do all acts and things and sign all documents as may be necessary to register in the appropriate court of (country omitted), a sealed copy of these orders including making a written request to both the Registry Manager and the Registrar of this Court pursuant to section 70M(2) of the Family Law Act 1975 (Cth) and regulation 24(2) of the Family Law Regulations.
The parties, their servants and agents are hereby restrained by injunction from:
(a)abusing, rebuking, belittling or otherwise denigrating each other or any member of the other’s household, in the presence or hearing of the child nor permitting any other person to do so; and
(b)discussing these proceedings or any parenting matters in the presence or hearing of the child nor permitting any other person to do so.
All other extant applications be dismissed.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
(A)Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Garfield & Cassano is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6876 of 2013
| MR GARFIELD |
Applicant
And
| MS CASSANO |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders for the child [X] born 2011 (“the child”), the only child of the applicant father and the respondent mother.
For the reasons set out below, I am satisfied that in all of the circumstances, the mother’s application to be permitted to relocate to the (country omitted) with the child should be granted. Consequently, the father’s application with respect to the child’s schooling is dismissed.
I am satisfied that the orders I propose making strike the right balance and are in the child’s ultimate best interests.
Factual background
The respondent mother is a citizen of the (country omitted). The applicant father is an Australian citizen. The parties met in early 2010 when the mother was in Australia on a working holiday. There is some dispute between the parties as to the exact nature of their relationship, however, it is common ground that the mother became pregnant within a couple of months of the parties meeting.
The parties commenced living together in about 2010.
The parties, to their credit, accepted the pregnancy and both love and cherish the child. Indeed, it is a credit to both of them that the child has been consistently described in these proceedings as a well-adjusted boy who is recognised at school for his leadership qualities.
It is common ground that the parents lived together until about January 2013 when the mother finally left the father taking the child with her. It is also common ground that there was an incident at the time of final separation which resulted in the police attending and assisting the mother to leave the home with the child.
The father comes from a tight-knit family and indeed, when they were together, he, the mother and the child lived in a ‘granny flat’ at the rear of his parent’s property, which had been built specifically for them. The father continues to live there and when the child spends time with his father, he lives with his father in the ‘granny flat’ and regularly moves between his father’s home and his paternal grandparents’ home.
Consequently, the child also has a close and loving relationship with the paternal grandparents and the paternal aunt and uncle who, at various times have also lived with the paternal grandparents.
By comparison, the mother’s family is in the (country omitted).
There is some dispute about the exact circumstances surrounding separation. The mother claims that the father cleared out their joint accounts leaving her with no access to funds at that time. The father disputes this.
In any event, and to her credit, post separation, the mother has worked to create a viable business which has been able to provide a living for her and the child. This business requires her to travel to and from the (country omitted) which she has done over the years, at times with the agreement of the father, and at other times by order of this court.
Post separation, the parties were unable to reach an agreement regarding the parenting issues and in August 2013, the father initiated proceedings in this court seeking parenting orders, including that the child be placed on an airport watch list.
In February 2015, final parenting orders were made by consent (“the 2015 final orders”) which provided, among other things:
a)the parents to have equal shared parental responsibility;
b)that the child live with the father for 6 nights per fortnight and the balance of the time with the mother;
c)that the parties be permitted to travel overseas with the child once per year each (unless otherwise agreed), subject to the usual notice requirements and that the child’s passport be held by the Family Court; and
d)if the parties are unable to agree on the issue of the child’s education or extra-curricular activities, they were to attend on Mr V for private mediation, with Mr V’s decision to be followed and the costs of such report to be met by the father.
Both parents have re-partnered. The father commenced a relationship with his partner, Ms A in 2014. His partner, Ms A was employed as (occupation omitted) at (employer omitted). This became an issue of tension with the mother, who alleged that Ms A disclosed personal information about her to the father. Ms A maintains the mother’s allegation was investigated by the (employer omitted) and dismissed. Ms A also stated that she was at no stage the (occupation omitted).
The mother met her current partner, Mr E in 2016. Mr E is a citizen of the (country omitted) and works internationally in the (employment omitted) industry. He gave evidence in these proceedings to the effect that if the mother is permitted to relocate to the (country omitted) with the child, he intends to obtain ongoing employment in (country omitted) to allow him to remain in the (country omitted) rather than continue the somewhat transient life he has had in recent years. He has given evidence that given his experience and reputation, he has good prospects of obtaining such work either in (employment omitted) or in the (omitted) industry in (country omitted).
The child was initially introduced to Mr E in the (country omitted) in 2017. Throughout 2017, Mr E spent time with the mother and child when possible in Australia, including over December 2017. In addition, both the mother and Mr E gave evidence, which I accept, that throughout their relationship, they have been in touch by telephone and Skype almost every day and that the child has also engaged in these conversations, developing his relationship with Mr E.
The child commenced primary school in 2016. It is common ground that there was some discussion between the parents as to an appropriate school throughout 2015. It is the mother’s evidence that the father unilaterally enrolled the child in School A Primary School, as he had attended that school as a child, without her agreement. The mother also alleges that the father’s partner, Ms A, in her capacity as (occupation omitted) with (employer omitted), completed the transition form for the child without discussing it with her.
In her affidavit, Ms A explained the process she undertook in completing these forms. Given her relationship with the child’s father, it may have been inappropriate for her to have been involved in completing his form, or at the very least she should have ensured that the information in the form had been approved by both parents. In any event, nothing of substance turns on this.
I do find, however, on the balance of probabilities, that the father proceeded to enrol the child at School A Primary School without the mother’s consent and that he did not engage with the mother in an open and transparent manner about the child’s schooling.
It is clear from the evidence given by both parents that there is a significant amount of general acrimony and conflict between them. They appear to have been unable to put that conflict aside and it increased throughout 2017.
For example, although both parents agree that the child is doing well at school, the mother has had reservations about School A Primary School and expressed a desire to consider an alternative school for the child which may have been somewhat closer to her home.
Whilst distance was an issue, having heard evidence from the mother about the schooling issue, I have formed the view that her real concern about School A Primary School was a perception that the school somehow preferred the father’s family to her given their historical association with it and that this perception was somewhat accentuated following the issues around the child’s first transition day.[1]
[1] See paragraph [48] and [50] of Ms Cassano’s trial affidavit
Be that as it may, the question of the child’s schooling became an increasing source of tension between the parents throughout 2017.
It was in this context that in January 2017, the mother had arranged to attend on Mr V as contemplated by the February 2015 final orders to discuss, among other things, schooling for the child going forward.
The mother also gave evidence, which I accept, that in late 2017 she approached the father to discuss travelling with the child to the (country omitted) in February 2018 to attend the wedding of a friend of hers. The mother states that the father agreed at this time. However, once she started raising concerns about the child remaining at School A Primary School in 2018, the father withdrew his consent for her to take the child with her on this trip.
The mother had made an appointment to discuss the child’s schooling with Mr V on 31 January 2018. On that day, the father indicated that he could not afford to pay Mr V’s fees. Moreover, he served an urgent application on the mother which he had filed in this court seeking, among other things that the child be placed on the airport watch list.
On 1 February 2018, the urgent application was returnable before this court. An interim order was made that the mother deliver the child’s passport to the Registry of the Federal Circuit Court of Australia by 4:30pm that day. Orders were also made for the parties to file material relating to the child’s schooling issues which appeared to be the key issues in dispute at that time.
The mother gave evidence, which I accept that the following day, namely 2018, she found out that she was pregnant to Mr E and was due to give birth in 2018.
The parties returned to court on 2 May 2018 at which time, among other things, consent orders were made (“the May 2018 interim orders”) providing for the mother to travel to the (country omitted) with the child from 22 November to 28 December 2018. Various consequential orders were also made at that time.
On 15 August 2018, the mother filed an amended response in which she sought orders, among other things, permitting her to relocate to (country omitted) with the child on or after 22 November 2018. The father opposes the mother’s application and presses his application for the child to remain enrolled at School A Primary School.
In opposing the mother’s application for relocation, the father points to:
a)comments made by the family consultant in the initial parenting proceedings in 2015 about the strength of the relationship between the child, the father and the paternal family;
b)a relocation to the (country omitted) would destroy his relationship with the child as he has no faith that the mother would facilitate a relationship between the child and him overseas;
c)his concern about the mother’s comments in her trial affidavit that she does not wish to continue to communicate with him as the parents are unable to reach agreement. The father points to this as evidence that she would not support the child’s relationship with him if she were to be permitted to relocate to the (country omitted); and
d)the disruption to the child’s stable environment at home, school and in his extra-curricular activities.
Both parents have given evidence about the difficulties in their co-parenting relationship, although they each blame the other for these difficulties. On the basis of the evidence before me, I find that each parent has, at times, acted in an immature and hostile manner in their communications with each other.
The 2015 final orders permit each parent to travel once per year with the child provided the requisite notice in writing is given to the other parent. It appears that although the mother deposes that she discussed the proposed trip with the father in late 2017, there is no evidence to suggest the requisite notice was provided in accordance with the February 2015 final orders. Moreover, the father’s evidence is that whilst he concedes that the mother told him about the proposed trip at some point in about December 2017, he did not understand from that that she proposed to take the child with her until January 2018.[2]
[2] Paragraph 72 of the father’s trial affidavit affirmed 23 June 2018 and filed 25 June 2018.
The mother and Mr E have both given evidence about their relationship to date, their commitment to each other and to their family and Mr E’s employment prospects in both Australia and in the (country omitted).
I accept the mother’s evidence that she would have significantly more support if she were to be permitted to relocate to the (country omitted). This is particularly so given the added pressures that she has acknowledged she will have once the baby is born to care for both the child and a newborn. The mother has demonstrated her capacity to create a life for herself and her child in Australia over the last 8 years which has facilitated the establishment of the child’s relationship with his father. I am satisfied that this was done with limited financial or other support from the father. I accept the mother’s evidence that it will be difficult for her to continue running her business and providing an income for herself whilst caring for a new infant and for the child.
Whilst the mother conceded that she had formed supportive friendships in Australia, she gave evidence, which I accept, that this does not equate to the support that she will receive from Mr E with whom she is in a committed relationship, producing a sibling for the child.
The father has given evidence that the child is progressing well at School A Primary School; in fact, he is ‘progressing above the level expected for his age.’[3]
[3] Paragraph 62 of the father’s trial affidavit affirmed 23 June 2018 and filed 25 June 2018.
The father has also given evidence that he is seeing a clinical psychologist to assist with communication between himself and the mother. He also stated that he has asked her for ‘strategies to stop our communications escalating into arguments’.[4]
[4] Paragraph 84 of the father’s trial affidavit affirmed 23 June 2018 and filed 25 June 2018.
The mother has attended upon a clinical psychologist, Dr N who has filed an affidavit in these proceedings, relevant aspects of which are discussed below.
Issues
The two key issues for determination are:
a)whether an order permitting the mother to relocate to the (country omitted) with the child should be made and if so, what consequential orders should be made, including with respect to parental responsibility and time with the father; and
b)if the child is not permitted to relocate with the mother, whether it is in the child’s best interests to live with the father and spend time with the mother and continue to attend School A Primary School.
There was initially an issue between the parties as to the child’s immunisation status; however the parties, to their credit, reached an agreed position prior to the conclusion of the hearing whereby the child would be immunised in Australia if he is to remain here or in (country omitted) if permitted to relocate to the (country omitted).
Proposals of the parties
Applicant’s father’s proposal
The father proposes that if the mother is not living in Australia:
a)he have sole parental responsibility for the child;
b)he notify the mother in writing of any significant long term decisions and request the mother’s input and take into account the mother’s views although the ultimate decision on such matters rests with him; and
c)the child live with him and spend time and communicate with the mother as follows:
i)if the mother is visiting Australia, by agreement and failing agreement four nights per fortnight during school term for up to four weeks or for a two week period if during school holidays;
ii)in the mother’s country of residence, provided that it is a signatory to the Hague Convention, as agreed and failing agreement during the Easter and September school holidays with the costs of such travel to be borne by the mother; and
iii)by Facetime by agreement and failing agreement each Tuesday and Thursday with the father and paternal family to facilitate same.
In the event that the mother resides in Australia, the father proposes:
a)the parties have equal shared parental responsibility;
b)the child live with the father and spend time with and communicate with the mother:
i)from each alternate Thursday until the commencement of school the following Wednesday;
ii)for half of school holidays; and
iii)on special occasions in accordance with the February 2015 final orders.
The father also proposes that the child:
a)remain enrolled at (country omitted) Primary School; and
b)continue to attend (sports) at Suburb P Oval until such time as the parties agree that he will no longer participate in (sport) or agree to transfer him to a different (sports) club, provided that if the mother cannot facilitate the child’s attendance, the father will take the child to (sports).
The father’s proposal also provides:
a)for the mother to continue to attending on D N until so directed by Dr N;
b)for the father to continue attending on Ms S until so directed by Ms S; and
c)Dr N and Ms S be permitted to discuss this matter and make joint recommendations, where appropriate, in relation to any joint counselling for the parties.
Respondent mother’s proposal
The mother proposes:
a)she have sole parental responsibility for [X] in relation to educational and medical decisions and otherwise the parents have equal shared parental responsibility;
b)in relation to educational and medical decisions, the mother advise the father of any proposed decision, seek input from the father, take the father’s opinion into account and then advise the father of her decision;
c)she be permitted to relocate to (country omitted) on or after 22 November 2018;
d)pending any such relocation, the child continue living with the mother and spend time with the father four nights per fortnight;
e)on relocation, the child live with her and spend time with the father:
i)in Australia:
(1)for 10 nights each fortnight over a six week period during the (country omitted) summer holidays, with the remaining four nights per fortnight with the mother; and
(2)for a period of two weeks each alternate Christmas commencing 2019 during the child’s (country omitted) December/January holidays;
ii)in the (country omitted):
(1)for two weeks each year during the child’s spring break holiday (March/April);
(2)for a further two weeks each alternate Christmas commencing 2020 from 27 December during the child’s (country omitted) December/January holidays; and
(3)on any other occasion that the father travels to the (country omitted), subject to the father providing the mother not less than 60 days’ prior written notice, during school terms each alternate week from the conclusion of school on Friday until the commencement of school on Tuesday; and
iii)at such other times as agreed in writing by the parties;
f)the child will communicate with the father by Skype/Facetime/telephone or other electronic means at such times as agreed and failing agreement each Sunday and Wednesday between 5:00pm and 6:00pm (country omitted) time with the mother to facilitate such communication;
g)the parents meet the costs of the child’s travel between Australia and the (country omitted) equally;
h)the child be permitted to travel as an unaccompanied minor upon turning 10 years of age (unless an earlier time is agreed in writing); and
i)unless otherwise agreed in writing, changeover is to occur at Melbourne airport (when time is spent in Australia), (country omitted) airport (when time is spent in the (country omitted)), or at the child’s school if the father is spending time in the (country omitted) during school term.
The mother also proposes:
a)the child’s passport to be released by the court registry and held by the mother and released to the father if required for the father to travel internationally with the child;
b)the father to take all necessary steps to enable the child to obtain a (country omitted) passport;
c)if either party wishes to travel internationally with the child, they are to provide the usual details to the other not less than 60 days prior to any proposed departure date;
d)an order pursuant to section 106A of the Family Law Act 1975 (Cth) (“the Act”); and
e)registering a copy of the final orders in the appropriate court in (country omitted).
The mother also conceded that if she is not permitted to relocate with the child, she will remain in Melbourne, although she has indicated that she would seek to move to the suburbs of Melbourne where she has a greater support network and where accommodation is more affordable. Counsel for the mother explained that this concession is not to be confused with an alternate proposal by the mother, and I therefore do not consider it one for the purposes of the parties’ competing proposals.[5]
[5] U v U (2002) FLC 93-112 per Gaudron J and Heaton v Heaton (2002) 48 Fam LR 349.
Evidence
I find that both the mother and father gave truthful evidence to the best of their ability. I also find that there is significant level of acrimony between the parents which continues to impede their ability to communicate effectively in respect of the child’s needs.
I also find that each of the other witnesses who gave oral evidence and were subject to cross examination gave truthful answers to questions they were asked. I make no adverse credibility findings in relation to any of the witnesses in this matter.
Indeed, as noted above, there are no significant factual disputes which need to be resolved in this matter. There is significant agreement as to the facts in this case. The difference often lies in the motivation attributed by one of them to the actions of the other.
For example, it is not in dispute that the father enrolled the child in School A Primary School without first obtaining the mother’s consent. However, the mother says that he did this intentionally even though he knew that she did not agree. She further says that once the child was enrolled, it was essentially presented to her as a fait accompli. On the other hand, the father says that the mother was prevaricating over which school the child should be enrolled in and he therefore took the initiative.
This is simply one example of the poor communication between these parties and how such a lack of trust and tension between them has manifested.
Family report
The court was assisted in this matter by a family report prepared by Ms C, family consultant pursuant to section 62G(2) of the Act.
In her report, Ms C noted that both parties agreed that communication between them was poor and conflict was high. Relevantly, she made the following comments about [X]:
[X] was confident about being interviewed. He had a reasonable understanding of the reason for the interview and did not appear to have been inappropriately counselled about it or coached by his mother as Mr Garfield alleged.
…
[X]’s comments about what was good about his father sounded like an adult’s perspective on how his father provides for him He did not seem free to state what he objected to about his father … [X] also used unusual language about his mother, saying he is ‘grateful’ that she is having another ‘sibling’ for him. …
[X] said everything is good about Mr E and he was spontaneous in his responses compared with the way he answered about his parents. …
…
[X] denied his mother talking to him about making friends, but he said that he believed he would easily make new friends in the (country omitted) if he moved there and that while he has friends here he would not miss them much. He said he has travelled to ‘(country omitted)’ before and that he looks forward to meeting all his cousins there.
[X] indicated that he feels ‘mostly’ comfortable in Australia and there would be mixed feelings in the (country omitted), such as some comfort and some unknowns. He was confident he would adjust to the unknowns. It appeared that [X] would like to live in the [country omitted] but he was being careful not to express too much excitement about the idea.
[X] seemed confident that his relationship with his father would remain good if he spoke with him on skype and spent time on school holidays.[6]
[6] Family report prepared by Ms C dated 2 August 2018 at paragraphs [56], [59], [60] and [62]-[64].
The family consultant then made the following comments about each parent:
Mr Garfield impressed as focussed on impression management to the extent that he attempted to influence the Family Consultant’s opinion by making allegations about Ms Cassano the day before the interviews. He appeared to struggle to remain focussed on [X]’s needs during the interview repeatedly spontaneously refocussing on negative criticism of Ms Cassano.
…
It was apparent from Mr Garfield’s description of his family living circumstances whereby all three adult children live at the paternal grandparent’s home suggests a particular family dynamic and system. Ms Cassano’s family system appeared different in so far as individuals in her family seem to live more independently. He was unable to appreciate the value of the differences and instead characterised Ms Cassano’s family disparagingly. …
There is little confidence that if [X] lived with his father primarily, Mr Garfield would facilitate [X]’s relationship with his mother. [7] …
Ms Cassano impressed as having struggled to establish herself in Australia without family support. Despite that difficulty she had developed a business and housed herself and [X] within the vicinity of Mr Garfield’s home. She had not moved significantly outside the area. She appeared to have focussed on [X]’s needs and was able to do so during the interview. She did not make negative comments about Mr Garfield unless she was asked to explain the dynamic between them with examples.[8]
…
[X] impressed as barely able to contain his wish to live with his mother in the (country omitted). He appeared to want to convey a neutral approach in relation to his parents and although he did not need to answer questions if he did not wish to do so, he answered in a manner that suggested he is highly aware of the conflict between the parties and does not wish to be responsible for fuelling it. He was not free to openly express his wishes.[9]
…
[X]’s positive spontaneity about Mr E is possibly partially related to his role as a (occupation omitted). However, it also appeared that he felt attuned to by Mr E.
[X]’s relationship with his father is formed. In my opinion he would benefit from being primarily in his mother’s care. She is reportedly struggling financially due to the need to attend Court and the personal toll her work, which is quite physical, has taken on her. She will not be able to easily manage having a baby and another child while living on the suburbs of Melbourne and especially if she does not have her partner living with her continuously.[10]
…
[X] appeared to be a confident child who seemed excited by the possibilities of living in the (country omitted). While he is only seven years old, children vary in their resilience and ability to cope with change. Some children who are more curious than others and who may have a higher novelty seeking trait, can thrive on challenges and new or novel experiences more than others. The notion that children need routine and stability is true only up to a point. They can also benefit from opportunities to manage changes and children do of course. The transition from home to school is one such challenge they usually successfully negotiate. The security of most import to children is the strength of their bond with at least one parent, and preferably with both parents. However, where there is high conflict children of [X]’s age can benefit from being primarily in there (sic) care of one parent whereby the opportunity for conflict is reduced. Anything which reduces the opportunity for one parent to act unilaterally in parenting decisions will also benefit [X].
At this stage of [X]’s life the question remains of how he can maintain a relationship with his father if he lived in the (country omitted) or indeed if he lives primarily with his mother. Communicating by Skype would provide opportunities to update. Some children whose parents relocate interstate in Australia maintain their relationship with the non-residential parent by spending holiday periods with that parent and remaining in contact by skype or messenger. Once a relationship is established the maintenance of the relationship is what matters.[11]
[7] Family report prepared by Ms C dated 2 August 2018 at paragraphs [70], [73] and [74].
[8] Family report prepared by Ms C dated 2 August 2018 at paragraph [75].
[9] Family report prepared by Ms C dated 2 August 2018 at paragraph [79].
[10] Family report prepared by Ms C dated 2 August 2018 at paragraphs [81] and [82].
[11] Family report prepared by Ms C dated 2 August 2018 at paragraphs [84] and [85].
Relevant statutory provisions and legal principles
In considering the issues arising in this proceeding, the court must have regard to Part VII of the Act which deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:
(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).
…
Section 61DA of the Act provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if 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:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of section 65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of section 65DAA relevantly provide as follows, excluding notes:
Equal time
(1)… if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)… if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Relocation cases
The jurisprudence is clear that ‘relocation cases’ are to be dealt with in the same way as any other parenting application. The court is required to follow the statutory pathway outlined above and give primary consideration to the child’s best interests. The comments of Boland J in Morgan & Miles (2007) FLC 93-343 aptly summarise the approach to be taken in circumstances where a parent seeks to relocate with their child. Relevantly, her Honour said:
[79] In considering whether the child should live with the parent who proposes to relocate a court:
·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
·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 interest of the child.
·If making a parenting order, or proposing to make an order, apply the presumption unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
·In making an order for equal shared parental responsibility, have regard to the fact that there is no distinction drawn under the Act between interim and final hearing although such an order may not, in specific cases be made on an interim hearing.
·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases need to be exercised solely by the relocating parent if the orders sought are made.
·Will careful (sic) weigh and balance the primary 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, made 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 spends 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 follows from my exposition of the legislation, that earlier core principles:
oThat the child’s best interests remain the paramount but not sole consideration;
oThat a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
oThe child’s best interests must be weighed and balanced with the ‘right’ of the proposed relocating parent’s freedom of movement;
remain valid.
[81] What the legislation now requires is:
·consideration of the competing proposals against the criteria now in s60CC informed by s.60B;
·if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s60CC factors and then applying those findings to a consideration of the criteria of s65DAA to craft appropriate orders.[12]
[12] Morgan & Miles (2007) FLC 93-343 at [79]–[81].
Before turning to address the relevant considerations of the Act, I deal with the following general issues.
Family violence and parental relationship
Whilst there was some evidence about the acrimonious circumstances of the parties’ separation, in particular, the fact that the police were called to assist the mother to leave the family home with the child, there are no current family violence concerns raised in this case.
It is also clear however, from the evidence that both parents cherish the child and that he has a close and loving relationship with each of them and with the paternal family with whom he has spent extended time since birth.
It is apparent that communication between the parents is at best, poor. I am satisfied that they have not been able to jointly make decisions about the child’s education and medical issues. Rather, I accept that the father has taken action and presented the mother with a fait accompli, particularly in relation to the child’s enrolment at School A Primary School and the father’s continued refusal to discuss any alternative. Even as recently as this year, the father conceded that he unilaterally enrolled the child in (sport) without discussing this with the mother, despite acknowledging that she would be required to take him on a Saturday morning.
Whilst it is to his credit that the father is seeking some assistance to develop better strategies in his communication with the mother and the mother is seeing a counsellor, it is unclear whether this will result in any actual improvement in their communication. It is apparent from the text message correspondence between the parties (which were provided to the court in the course of the hearing) that they have both, at times, engaged in inappropriate communications with each other. I do not lay this solely at the feet of the father.
The fact remains however, that the parties have been thus far unable to effectively navigate their way towards jointly making these long terms decisions in the child’s best interests. This is unlikely to improve if the mother is to remain in Australia without support from her family and Mr E.
I will address the relevant section 60CC considerations in order.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Both parents concede the importance of the child maintaining a meaningful relationship with both parents. I find on the basis of the evidence before me that the child currently has a meaningful relationship with both parents.
The Act does not define what ‘meaningful’ means, nor does it provide any criteria by which the nature of the child’s relationship with each parent can be assessed.
In considering the benefit to a child of a meaningful relationship with both parents, the court should have regard to the comments of Brown J in Mazorski v Albright (2008) 37 FamLR 518 (“Mazorski”), in which her Honour said:
I proceed on the basis that when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible in their best interests, substantial and significant.[13]
[13] Mazorski v Albright (2008) 37 Fam LR 518 at [26]; see also McCall & Clark (2009) FLC 93-405 at [108]-[129].
In McCall & Clark (2009) FLC 93-405 the Full Court of the Family Court, after referring to Mazorski and a number of other cases concluded:
… that the preferred interpretation of benefit to a child of a meaningful relationship in s60(CC)(2)(a) is “the prospective approach” although, depending upon the factual circumstances, the present relationship may also be relevant.
…
In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by brown J in Mazorski. Consistently with our conclusions we also agree with the reasons of Bennett J in G & C.[14]
[14] McCall & Clark (2009) FLC 93-405 at [119].
The mother properly concedes that if she were permitted to relocate to the (country omitted), it would limit the child’s ability to spend time on a regular basis with the father. As noted above, the father submits that if the mother were permitted to relocate to the (country omitted) with the child, this will have a devastating impact on his relationship with his father and paternal family.
The mother seeks to address this in her proposal by suggesting that the child spend time and communicate with his father:
a)in Australia for 10 out of 14 nights a fortnight over a six week period and for an additional two weeks in 2019 during school holidays;
b)in the (country omitted), for two weeks during March/April school holidays, two weeks (alternate years) during December/January school holidays and on alternate weekends (5 nights) in the event the father travels to the (country omitted) during the child’s school term; and
c)communicating with the father by Skype/Facetime/telephone or other electronic communication approximately two times a week.
The father’s proposal would allow the parties to continue to spend significant and substantial time with the child, provided the mother remains living in Australia.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Subsection 60CC(2A) relevantly provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
As stated above, although there was some dispute surrounding the circumstances of the parties’ separation, I am not satisfied that there are any current family violence issues to which the child is being exposed.
Having said that, I am satisfied that the child is aware of the conflict between his parents.
Both parties appropriately conceded that the terms in which they have communicated with each other, particularly in recent times, is less than ideal.
The father gave evidence that he is seeking assistance from Ms S to develop some strategies to improve his co-parenting relationship. It is his case that given this, together with the mother’s recent attendance upon Dr N, the parties have some prospect of minimising ongoing conflict in their co-parenting going forward.
Having had the benefit of observing each of the parties in the witness box, I am not convinced that the father’s positive outlook is warranted.
Having regard to the history of this matter and the manner in which the parties have engaged with each other to date, I find that if the mother is not permitted to relocate and remains in Melbourne, it is likely that the conflict between the parents will increase, with a consequential adverse impact on the child.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child’s views as expressed through the family report are clear. However, given his age and the fact that he is not likely to have a realistic appreciation of the impact of a relocation on his day-to-day relationship with his father, I have been cautious about giving too much weight to those views.
I have also had regard to the consistent description of the child as well-adjusted, mature and resilient for his age. So much is evident from the comments he made to Ms C about the fact that he understands that each of his parents will be disappointed if the court does not grant them what they seek. His comments aptly describe the very difficult decision that needs to be made in this case.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
As stated, the child has a positive and loving relationship with both parents. I have had regard to Ms C’s comments in relation to her observations of the child with his father and her conclusions that the father is not necessarily as attuned to the child’s needs as his mother. On balance, in this case, I am satisfied that this is at the margin. I accept that the child’s primary attachment is to his mother, however given the almost equal shared care arrangements which have existed since separation, the child clearly has a well-established relationship with his father.
In addition, given the father’s living arrangements (namely that the father lives in a granny flat on the paternal grandparents’ property), the child has had the benefit of developing a deep relationship with his paternal grandparents and paternal aunt and uncle. This has, undoubtedly, greatly enriched his childhood.
The child has had a much more limited ability to develop a relationship with the maternal family.
I am satisfied on the basis of the evidence before me that the child has developed a positive relationship with Mr E and that Mr E is considerate and inclusive of the child.
The father submitted that although the mother has been in a relationship with Mr E for over 18 months, in reality, the child has only spent five weeks in the same physical location as Mr E. Whilst this is the case in terms of physically being present in the same location, I accept the mother and Mr E’s evidence that they communicate almost daily by telephone, Skype and the like and that when the child is with the mother, he also participates in these communications. Therefore, the amount of time spent in the physical presence of Mr E is not necessarily an appropriate measure of the depth of the relationship Mr E has with the child. I find that they have a positive relationship whilst acknowledging that it is in its early stages.
To the extent that the father attests to the depth of the relationship the child has with his family, these relationships have been in part, nurtured because the mother has remained in Australia with the child, specifically, remained living close to the father’s residence post separation and has not sought to relocate at some earlier point in time. I find that the mother has supported the child maintaining a meaningful relationship with the father.
The father’s submission that the mother has not facilitated a relationship between the child and her own family is somewhat disingenuous in circumstances where:
a)he refused the mother permission to take the child with her to the (country omitted) when her father was ill and dying; and
b)the father refused to allow the mother to take the child to the (country omitted) to attend the wedding of a close friend earlier this year.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
There was some suggestion by the mother that the father did not participate in the child’s parent-teacher interviews at school and did not provide appropriate financial support to her for the child. Both allegations are denied by the father.
In the present circumstances where the child spends 6 nights a fortnight with his father and 8 nights a fortnight with his mother, I find that both parents have taken the opportunity to both spend time and communicate with the child as well as participate in major long-term decisions in relation to his care, welfare and development.
Whilst on the one hand, the mother suggests that the father has not actively participated in all aspects of the child’s schooling, one of her greatest criticisms of the father is that he in fact made decisions about the child’s schooling and extra-curricular activities unilaterally.
I find that this factor is evenly balanced with respect to both parents.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
I refer to my comments in paragraphs 95 to 96 above which apply equally to this consideration.
Again, I find that both parents have relatively equally fulfilled their obligations to maintain the child.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
It is accepted that if the mother is permitted to relocate to the (country omitted), this will have an impact on the child’s ability to maintain his day to day involvement with his father and the paternal family more broadly.
The mother’s proposal however, seeks to address this to provide significant block time with the father (and by association, the paternal family) over holiday periods both in Australia and in the (country omitted). In addition, it provides for liberal contact via Skype/Facetime and the like.
In his submissions, the father suggests that the mother may not comply with orders of this court and the father would have limited funds to commence enforcement proceedings in another jurisdiction.
The mother’s past conduct indicates that she has complied with court orders and supported the child maintaining a meaningful relationship with his father and there is no basis on which to suggest that she will not continue to do so.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
If the father’s proposal were accepted, there would be limited practical difficulty and expense in the child spending time with both parents, in light of the mother’s concession that she would remain in Australia if not permitted to relocate with the child. The mother’s proposal inherently involves greater practical difficulty and expense.
The father’s own proposal, to the extent that the mother were to relocate to the (country omitted) without the child, provides for him (or another member of his family) to accompany the child to the (country omitted) during the Easter and September school holidays each year to facilitate time with the mother. This suggests that on his own case, the father would be able to meet the costs of some travel should the court accept the mother’s proposal.
The father’s evidence was also that he earned between $1,500 and $2,000 per week and was currently living rent free. He further conceded that he could afford to go to the (country omitted) for a couple of weeks each year. [15]
[15] Transcript pages 18 to 19.
In addition, the mother’s evidence was that it was her intention to be a ‘stay-at-home’ mother if she were able to relocate to the (country omitted) and live with Mr E. This would allow her to care both for the child and her newborn. It would also allow her the flexibility to return to Australia with the child to facilitate time with his father as per her proposal.
For his part, Mr E has stated that he views his relationship with the mother as a committed one. He has already demonstrated his support for her financially in terms of paying her legal costs associated with this litigation, and more generally.
I am satisfied that the costs and practicalities of the mother’s proposal would not unduly impact upon the father’s ability to maintain a meaningful relationship with the child. This is particularly so having regard to the fact that the child’s relationship with the father is already well-established. As noted above, a meaningful relationship must be assessed on a qualitative and not purely quantitative basis.
The practicality and costs associated with the father’s proposal are not significant, as they would essentially be a continuation of the current circumstances.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
I am satisfied on the basis of the evidence before me that both parents have the capacity to provide for the child’s needs, both emotional and intellectual. In coming to this view, I have had regard to Ms C’s comments regarding the father’s ability to remain child focused.
Having had the benefit of observing both parents in the witness box over the course of the hearing, I am also satisfied that the mother would facilitate the child’s relationship with his father, even if she were permitted to relocate.
This finding is not only based on my assessment of the mother’s evidence but also considering her actions since the child was born.
She came to Australia on a temporary visa and unexpectedly found that she was pregnant. In the time that she has been in Australia, she has remained living close to the father’s residence despite not having a positive relationship with the paternal family and being unhappy about the father’s choice of school for the child. She tried to discuss her concerns regarding school with the father and when agreement could not be reached, she tried to utilise the process as outlined in the 2015 final orders. Notwithstanding the concerns that the father expressed that the mother would unilaterally remove the child from school, home-school him or take him to the (country omitted), she has not done any of those things.
Given her relationship with Mr E and now the birth of another child with him, it is not surprising that the mother has reassessed where she would ideally like to live. The mother has stated that she accepts that any relocation on her part with the child will have an impact on his relationship with the father but her proposal genuinely does provide the best opportunity for the child to continue to have a meaningful relationship with his father, irrespective of the geographical distance.
By comparison, the father’s primary proposal is for the child to live with him and spend time with the mother, the amount of which would depend on where she chooses to live.
The father correctly notes that neither parent trusts the other. He points to therapeutic counselling as potentially providing a means of addressing this lack of trust. Unfortunately, this may well be a case of ‘too little, too late’. Moreover, the change in the mother’s circumstances facilitating her express desire to return to the (country omitted) is unlikely to improve the trust between her and the father if she is not permitted to do so.
The mother has given evidence, which I accept, that her time in Australia has been difficult. She has attempted to make a life here for herself and the child notwithstanding having no family support and a difficult relationship with the father and his family post-separation.
The mother’s treating psychologist, Dr N, filed an affidavit in which she attests that the mother has attended six sessions with her for assessment and therapy.
In her report, Dr N states that in her opinion:
In terms of Ms Cassano’s current mental health, it is evident that while managing capably to meet the parenting needs of her son, she is suffering high anxiety and a severe level of depressive symptomatology secondary to the situational stressors brought about by her acrimonious co-parenting relationship with Mr Garfield, her isolation as a single mother in a foreign country without familial supports, her dire financial status (which is projected to worsen should she remain in Australia with current scenario of no financial support from Mr Garfield), her extremely limited social supports, and her current pregnancy to a partner whom is not resident in Australia…
In terms of the impact on Ms Cassano’s mental health should she be required to remain in Australia, it is most likely that she will decompensate such that her anxiety and depressive state will worsen. Given that her mental health is inextricably linked to her capacity to parent, the impact of this restriction will likely be dire for [X] and her unborn/newly born child.
This evidence was not challenged by the father. I accept that the mother’s mental health would continue to be at risk if she were not permitted to relocate with the child to the (country omitted).
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Other than the comments made at paragraphs 87 and 88 above which I refer to and repeat, this factor is not otherwise relevant in this case.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I refer to and repeat my comments in paragraphs 89 to 99 above.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
I have dealt with family violence issues above.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
This factor does not apply in this case.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In my view, the father’s proposal, if granted, is likely to lead to further litigation.
First of all, the mother has indicated that if she is not permitted to relocate to the (country omitted), she would consider moving to the (omitted) side of Melbourne where she has more social support and the possibility of cheaper accommodation. It is likely that if that were to happen, there is the potential for further litigation about time spent and related issues such as schooling and the like.
The orders I propose making are least likely to lead to ongoing litigation. It will provide the mother with the ability to start a new life with her partner, whilst at the same time provide for the child to spend significant holiday time with his father and the paternal family both in Australia and in the (country omitted).
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
Whilst these proceedings relate to the child, and the court is required to give primary consideration to what is in his best interests, a relevant and related issue is the mother’s desire to relocate back to her home country with her partner and their newborn child.
Mr E has given evidence about his ability to secure work in the (country omitted) which would allow him to support the mother and child as well as the new baby. There is no evidence as to what work would be available to Mr E if he were to relocate to Melbourne however, the father conceded in cross examination that when he sponsored the mother for a partner visa, the process took over two years. The mother gave evidence that any application for Mr E to obtain residency in Australia would be equally time consuming and would not guarantee work for him in his industry.
Both parties concede that it is in the child’s best interests to develop a positive relationship with his new sibling.
It was submitted on behalf of the mother that the mother’s new family unit, consisting of the mother, Mr E, the child and the new baby would best be provided for if they lived in the (country omitted) where Mr E is able to work freely in his chosen field with the benefit of contacts developed over more than a decade.
For his part, the father points to the fact that:
a)no firm plans have been made as to where the mother and Mr E might live if they were permitted to relocate or where the child would go to school;
b)the relative newness of the mother’s relationship with Mr E and the possibility that it may not endure notwithstanding that they are having a baby together; and
c)the limited time that the mother and Mr E actually spend together over the duration of their relationship given Mr E’s international work commitments.
It was submitted on behalf of the father that the prospect of this relationship not lasting is a relevant factor for the court to take into account.
In response, the mother conceded that although theirs had been a long distance relationship, she and Mr E had been together since 2016 shortly after first meeting. When they are not physically in the same location, they communicate every day by telephone or Skype and that the child also regularly speaks to Mr E.
Whilst there are never any guarantees in any relationship, I accept Mr E’s evidence that he is committed to the mother and making a life together with her and the child and their newborn. Not only are they having a child together, but Mr E has assisted the mother with the legal costs incurred and has actively participated in the proceedings as a witness.
Equal shared parental responsibility
I am not satisfied that any family violence in this case, such as it is, warrants the rebuttal of the presumption of equal shared parental responsibility.
However, I am satisfied in the circumstances that equal shared parental responsibility in relation to education and medical issues is not in the child’s best interests. As stated, the 2015 final orders, which were made by consent, provided for equal shared parental responsibility.
Section 65DAC of the Act relevantly provides that where a parenting order is made under which two or more persons share parental responsibility for a child, and the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child, “the order is taken to require the decision to be made jointly by those persons”.
Importantly, section 65DAC(3) is in the following terms:
The order is taken to require each of those persons:
To consult the other person in relation to the decision to be made about that issue; and
To make a genuine effort to come to a joint decision about that issue.
In this case, the parents have confronted having to make major long-term decisions in relation to education and immunisation. Although the immunisation issue appears to have been a live one for some time, the parties were only able to reach agreement in the course of this litigation. In relation to the child’s education, I am satisfied that the father unilaterally enrolled him in School A Primary School notwithstanding the mother’s desire to explore a range of options before deciding. Moreover, as outlined above, when she sought to engage with him over the possible change in school early this year (and exercise the mechanism provided for in the 2015 final orders), the father refused.
The father alleges that the mother did not give him sufficient time to attend the interview and that he was unable to pay for the appointment. This appears somewhat disingenuous when he had time to bring an urgent application to this court in respect of the mother’s proposed overseas travel.
I am satisfied that the level of conflict between the parents is such that it is not in the child’s best interests for them to have joint parental responsibility, at least in relation to education and medical issues. The parties were able to reach agreement regarding the child’s immunisation, although such agreement was only reached at the eleventh hour. In the circumstances and having regard to my conclusions regarding relocation, I am satisfied it is in the child’s best interests for the mother to also have sole parental responsibility for the child’s education and medical issues.
Conclusions
The key issues in this case are:
a)whether the child ought to be permitted to relocate to the (country omitted) with the mother; and
b)if not, whether to make an order requiring the child to remain enrolled at School A Primary School.
As stated above, in considering whether to grant an order permitting the mother to relocate to the (country omitted) with the child, the court needs to balance a range of competing considerations, noting that the best interests of the child is the paramount consideration.
On the one hand and weighing against granting the mother’s application, is the fact that a relocation in the terms sought will inevitably involve some diminution in the quality of the relationship between the child, his father and the paternal family. However, this needs to be balanced against the likely reduction in stress and anxiety of the mother, who would be free to commence a life with her new partner, their new child and the child in the country of her birth.
I have also had regard to the following additional factors which also weigh in favour of granting the mother’s application to relocate:
a)the mother will likely have greater level of emotional support in the (country omitted) from family and friends, including her partner, Mr E;
b)the tension between the parents will likely reduce given the need not to have ongoing interactions with one another on a day to day basis;
c)the mother will be able, at least in the short term to be a ‘stay-at-home’ mother to her two children, an opportunity she says she did not have when the child was born; and
d)I am satisfied that the mother will foster the child’s relationship with the father and having regard to the child’s age and disposition, that he will be able to maintain and continue to build on his close and loving relationship with his father and the paternal family.
I have also had regard to the following factors which weigh against making an order in the terms sought by the mother:
a)the father will inevitably miss out on the day-to-day interactions both at home and at school which he has enjoyed with the child as a result of his regular time and the consequential familiarity with the child’s world which flows from that; and
b)despite all the best intentions, the mother’s life in the (country omitted) may not prove to be as positive as she envisages.
On balance, I find that it is in the child’s best interests to make orders in the terms sought by the mother.
Also as stated above, the parties have consented to an order dealing with immunisation. Given my conclusions regarding relocation, the order agreed to is that the child will be immunised according to the schedule of immunisation directed by the health authority in the state of (country omitted).
Having come to this view, it follows that I do not propose making the orders sought by the father in relation to the child’s enrolment at School A Primary School and the father’s application in this regard should be dismissed.
I propose making orders in the terms set out at the beginning of these reasons for judgment.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 14 November 2018
Key Legal Topics
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Family Law
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Injunction
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