Gordon and Westmead (No. 2)

[2012] FamCA 546

FAMILY COURT OF AUSTRALIA

GORDON & WESTMEAD (NO. 2) [2012] FamCA 546

FAMILY LAW – CHILDREN – RELOCATION - BEST INTERESTS OF THE CHILD – where the child having a meaningful relationship with both parents is the only relevant primary consideration in the proceedings  – where the presumption of equal shared parental responsibility applies - where the Court orders that the child live with the mother and spend substantial and significant time with the father, which can only occur in Australia, despite mother’s desire to relocate with the child to the USA - where the child has a meaningful relationship with both parents – where relocation would deny the child a qualitatively meaningful relationship with the father – where expert evidence indicated the father would encounter difficulty relocating to, and perhaps even visiting, the USA – where child’s views were not taken into account due to young age

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA,62G, 64B , 65AA, 65D, 65DAA, 65DAC and 65DAE

AMS & AIF (1999) 199 CLR 160
Goode & Goode (2006) FLC 93-286
Hepburn & Noble (2010) FLC 93-438
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Sampson v Hartnett (No. 10) (2007) FLC 93-350
Slater & Light (2011) 45 Fam LR 41
Starr & Duggan (2009) FamCACF 115
Taylor v Barker (2007) FLC 93-345
U v U (2002) 211 CLR 238

APPLICANT: Mr Gordon

RESPONDENT: Ms Westmead

FILE NUMBER: SYC 2433 of 2011

DATE DELIVERED: 18 July 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Austin J

HEARING DATE: 18, 19 & 20 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G. Gould

SOLICITOR FOR THE APPLICANT: McDonell Milne Toltz Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr P. Sansom

SOLICITOR FOR THE RESPONDENT: Barkus Doolan Kelly

Orders

1. All former parenting orders and injunctions relating to the child K, born … October 2007 (“the child”), are discharged.

2. The parties shall have equal shared parental responsibility for the child.

3. The child shall live with the mother.

4. Each of the parties shall take all reasonable steps to ensure the child spends time with the father as follows, unless otherwise agreed:

   (a)Until commencement of NSW public school Term 1 in 2013:

   (i)From 6.00 pm Saturday until 6.00 pm on Monday; and

   (ii)From 3.00 pm on 19 December 2012 until 3.00 pm on Christmas Day 2012.

   (b)       Thereafter:

   (i)During NSW public school terms:

   (A)Each alternate weekend from 6.00 pm Friday until 6.00 pm Sunday, commencing on the first Friday of each school term;

   (B)On Thursday each week, from the conclusion of school until 7.00 pm;

   (ii)During the NSW public school holidays at the conclusion of Terms 1 and 3, commencing at 6.00 pm on the last day of school in those terms and concluding at 6.00 pm on the second last day before the first day of school in the following terms;

   (iii)During the NSW public school holidays at Christmas:

   (A)For a period of seven days during the holidays in January 2014, concluding at 6.00 pm on the second last day before the first day of school in the new school year, and every even year thereafter; and

   (B)From 6.00 pm on the last day of school in Term 4 until 3.00 pm on Christmas Day in December 2014, and every even year thereafter; and

   (iv)From 6.00 pm Saturday until 6.00 pm Sunday on the Father’s Day weekend each year.

5. Order 4(a)(i) hereof is suspended for a period of 3 weeks commencing from 3.00 pm on Christmas Day 2012, provided the mother and child travel to the USA during that period.

6. Order 4(b) hereof is suspended from 6.00 pm Saturday until 6.00 pm Sunday on the Mother’s Day weekend each year.

7. For the purpose of implementing Order 4 hereof, with the exception of Order 4(b)(i)(B), the father shall collect the child from the mother at her residence at the commencement of the time the child is to spend with the father and the mother shall collect the child from the father at his residence at the conclusion of the time the child spends with the father.

8. For the purpose of implementing Order 4(b)(i)(B) hereof, the father shall collect the child from school at the commencement of the time the child is to spend time with him and the father shall return the child to the mother at her residence at the conclusion of the time the child spends with him.

9. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by “Skype” internet communication program or telephone with:

   (a)The father each Monday and Thursday when the child is living with the mother, between 6.00 pm and 6.30 pm (Sydney time), and for that purpose the father shall contact the child on the telephone number or internet connection provided to him by the mother, and the mother shall ensure that the child is able to receive the father’s calls on that number or connection at that time;

   (b)The mother each Saturday and Wednesday when the child is spending time with the father (excluding the time spent pursuant to Order 4(a)(i) hereof), between 6.00 pm and 6.30 pm (Sydney time), and for that purpose the mother shall contact the child on the telephone number or internet connection provided to her by the father, and the father shall ensure that the child is able to receive the mother’s calls on that number or connection at that time; and

   (c)The parent with whom the child is not then staying, on the child’s birthdays, between 6.00 pm and 6.30 pm (Sydney time), and for that purpose the parent with whom the child is not staying shall contact the child on the telephone number or internet connection provided by the other parent for that purpose, and the parent with whom the child is staying shall ensure that the child is able to receive the other parent’s calls on that number or connection at that time.

10. The mother shall retain possession of the child’s USA passport and the father shall retain possession of the child’s Australian passport.

11. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

12. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

13. Costs are reserved for 28 days.

14. Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Gordon & Westmead has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2433 of 2011

Mr Gordon

Applicant

And

Ms Westmead

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant father and respondent mother could not agree upon the living arrangements for their child, who is not yet five years of age.

2. Since the parties’ separation over a year ago the child has lived with the mother and spent substantial and significant time with the father. However, the mother, who is an American citizen, now wishes to relocate with the child to live in the United States of America. The father, who is an Australian citizen, opposes such a move and now proposes that the child live with him in Australia.

3. Unfortunately, compromise eluded the parties, who are both competent, caring parents and with each of whom the child has a secure, loving relationship.

Short history

1. The parties met in December 1999 while they were both working as sports  instructors in the USA.

2. The father returned from Australia to the USA for the following winter and the parties became engaged in January 2001. They were married in the USA in mid 2001, following which they moved to Australia. The parties have lived in Australia ever since.

3. The parties hold different views about where they intended to live during their relationship. The father maintained they decided to live in Australia, as evidenced by the fact that they did just that, whereas the mother alleged their stay in Australia was intended to endure only whilst the father faced trial on criminal charges in 2002, after which time they would return to live permanently in the USA.[1] It is unnecessary to decide the controversy since the parties acknowledged any past agreement reached between them on that issue would not bind the Court’s determination of their current dispute, which is governed by statutory considerations, and in particular the principle that the child’s best interests are of paramount importance. Even if an agreement one way or the other had been reached between them it would hardly now be persuasive. It is an unremarkable fact of life that people are prone to change their minds about their living arrangements.

   [1] Mother’s affidavit, par 122

4. The parties’ only child, K, was born in October 2007 (“the child”). At the time of trial he was aged 4 years and 8 months. The child holds dual American and Australian citizenship and passports issued by both countries.[2]

   [2] Mother’s affidavit, par 38

5. Following the child’s birth the mother and child travelled reasonably frequently to the USA to visit the maternal family,[3] about which travel the father was content and supportive.[4] Members of the maternal family also often travelled to Australia to visit the parties and the child.[5]

   [3] Mother’s affidavit, par 38

   [4] Mother’s affidavit, par 39

   [5] Mother’s affidavit, par 48

6. Even before the child’s birth, the parties and the maternal family members travelled reasonably frequently to see one another.[6]

   [6] Mother’s affidavit, pars 77-78

7. The parties’ marriage faltered from about January 2010[7] but ultimately failed in January 2011, although the parties remained living under the same roof.[8] The father vacated the former matrimonial home some months later in April 2011.

   [7] Father’s affidavit, par 54; Mother’s affidavit, pars 9, 191

   [8] Father’s affidavit, par 68; Mother’s affidavit, par 10

8. The father initially lived on a boat moored on a waterway close to the former matrimonial home in the southern suburbs of Sydney, after which he moved to live with the paternal grandmother and then into other accommodation alone in the Illawarra region.[9] He intends to stay in the Illawarra region, having recently committed to a fresh lease over new rental accommodation, which is close to another residential property recently acquired by the paternal grandmother.

   [9] Mother’s affidavit, par 175

9. The mother and child remained living in the former matrimonial home for about a year until April 2012 when they moved into rental accommodation in the northern suburbs of Sydney.[10]

   [10] Father’s affidavit, par 153; Mother’s affidavit, par 79

10. The father commenced these proceedings on 19 April 2011, within days of his departure from the former matrimonial home.

11. A short time later, on 23 May 2011, the parties reached agreement over interim orders dictating parenting arrangements for the child. The orders provided for the child to live with the mother and spend time with the father for two days/nights of each week. That arrangement has prevailed ever since,[11] notwithstanding the residential moves by each party and subsequent interim parenting orders modifying details of the arrangement.

    [11] Mother’s affidavit, par 209; Ms O’s report, pars 3, 7

12. Further interim orders were made with the parties’ consent on 4 July 2011, which made provision for the child to live or spend time with the parties on special days and during holiday periods.

13. Following an interim hearing on 16 December 2011 further interim parenting orders were made (later rectified under the slip rule), but they largely replicated the pre-existing orders. The parties were allocated equal shared parental responsibility for the child and provision was made for the child to live with the mother and spend time with the father for two days/nights each week. Numerous other orders dictated parenting arrangements over the Christmas period, which enabled the mother to take the child to the USA for a period of weeks.

14. While the mother remained resolute in her proposal to relocate with the child to the USA, she acknowledged she would remain resident in Australia with the child if the Court rejected her primary proposal. Similarly, the father adhered to his proposal to assume the residential care of the child.

Proposal and primary evidence of father

1. The father abandoned the orders proposed in his Further Amended Initiating Application filed on 30 March 2012 and instead pressed for the orders set out in a Further Amended Proposed Minute of Orders, which he tendered at the commencement of the trial.[12]

   [12] Exhibit F4

2. The orders proposed by the father provided generally for:

   a)The parties to have equal shared parental responsibility for the child (Order 5);

   b)The child to live with the mother in Sydney and spend increasing amounts of time with the father until January 2013 (Orders 6, 7);

   c)The child to live with the father from January 2013 and then spend time with the mother on weekends, during school holidays, and on other special occasions (Orders 8-16); and

   d)The child to be permitted to travel with the mother to the USA for occasional holidays, but only if the father can successfully obtain visa entry to the USA (Order 17), and subject to the father having “make-up time” with the child (Order 18), with the child not otherwise permitted to leave Australia (Orders 1-4).

3. In support of his proposal the father relied upon his affidavit filed on 4 May 2012.

Proposal and primary evidence of mother

1. The mother pressed for the orders set out in her Amended Response filed on 11 April 2012, which proposed different parenting outcomes depending upon whether or not the Court was persuaded to make orders permitting the child to live with the mother in the USA.

2. Preferentially, the mother proposed generally that:

   a)The child live with her in the USA (Orders 1-2);

   b)The child spend time with the father in Australia under a complicated regime, which may be summarised as:

   i)a number of occasions in the period between late December 2012 and January 2013 (Order 2.1);

   ii)a number of occasions in June 2013 (Orders 2.2, 2.3);

   iii)from the child’s commencement of school until age 11 years, on three occasions each year for several weeks at a time during school holidays (Order 3);

   iv)following the child’s attainment of 11 years, on two occasions each year during school holidays (Order 4);

   for which purpose the parties would be equally responsible for the costs of the child’s travel (Order 7.1) and the mother would accompany the child on flights to Australia until he attains 12 years of age and she would bear the costs of her own air fares (Order 7.2); and

c)The child spend extra time with the father in the USA, in the event the father is able to successfully secure a visa entitling his entry to the USA (Order 5) and pay his own air fares (Order 7.2);

1. There was a variance between the mother’s stated proposal and her evidence about the issue of responsibility for travel costs in order to implement her preferred parenting regime. The mother contended in her affidavit that she would meet the entirety of the child’s travel costs for “approximately 2 or 3 years” if necessary,[13] but following agitation of the issue with her in cross-examination she revised her evidence and instead proposed that:

   a)She would meet the entirety of the child’s travel costs between the USA and Australia for the next five years, and

   b)She would meet the entirety of the father’s travel costs between Australia and the USA on two occasions each year for the next five years provided, of course, the father could acquire a visa permitting his entry to the USA. The evidence was not finessed any further but it was implicit the father would travel by airline economy class on those occasions. The costs of travel and accommodation incurred by the father within the USA would remain his own responsibility.

   [13] Mother’s affidavit, par 63

2. In the event the Court does not permit the mother’s relocation with the child to live in the USA, she alternatively proposed:

   a)The child still live with her (Order 8.1);

   b)The child spend time with the father:

   i)for two days/nights per week until he commences school (Order 8.2.1);

   ii)on each alternate weekend until Sunday afternoon and for several hours on one evening each week until the child commences Year 4 at school (Order 8.2.2), together with block periods during school holidays (Orders 8.3, 11);

   iii)and thereafter, each alternate weekend until Monday morning and for several hours on one evening each week (Order 8.2.3), together with block periods during school holidays (Orders 8.3, 11); and

   iv)always on Father’s Day (Order 9.1) and the child’s birthday (Orders 9.2, 10.2); and

c)The mother be permitted to take the child to the USA for several weeks on two occasions each year, during the mid-year and Christmas school holidays, subject to adequate notice of arrangements being provided by her to the father (Orders 11, 12).

1. The mother made no proposal as to the allocation of parental responsibility for the child. However, in answer to a specific inquiry during the course of the trial, the mother’s counsel announced she proposed the allocation of equal shared parental responsibility for the child to the parties, irrespective of the residential arrangements for the child.

2. In support of her proposals the mother relied upon her affidavit filed on 4 May 2012 and the affidavit of her psychologist, Ms N, also filed on 4 May 2012.

3. Ms N was not required for cross-examination on her affidavit.

Single expert evidence

1. The parties jointly relied upon the evidence provided by two single experts, each of whom was cross-examined.

2. Ms O, clinical psychologist, provided a report dated 29 May 2012 to the Court about the parties and child. The report was intended to supplant the need for a Family Report pursuant to s 62G of the Family Law Act (“the Act”), with the ambit of the single expert’s report explained at its commencement.[14] The contents of the report were adopted in evidence by Ms O and the report was tendered as an exhibit.[15]

   [14] Ms O’s report, pages 2-3

   [15] Exhibit B

3. Orders were made on 20 March 2012 appointing a single expert for the purpose of providing an opinion about the prospect of the father being able to procure a visa entitling him to future entries into the USA to visit the child.[16] Pursuant to those orders the parties jointly engaged Ms G of Law Firm X to provide such an opinion. A report dated 13 June 2012 was later provided to the Court by Law Firm X, purportedly signed by or on behalf of a person named Ms H. The parties informed the Court that the opinions expressed within the report were a compilation of the opinions of both Ms G and Ms H. It was later agreed between the parties that Ms G could attest to the accuracy and reliability of the opinions expressed in the report and thereby assume the role of the “single expert”. Consequently, the parties invited the Court to read the affidavit of Ms G filed on 18 June 2012.

   [16] Orders 10-15

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Act, which defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

1. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

2. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

3. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

4. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

5. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

6. As was recognised by the Full Court in Goode & Goode (at [72]), there is now a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with the children. Such principles apply in all parenting cases, including those in which a proposed relocation of the child’s residence is the focal point of the litigation.

7. Prospective relocation of a child’s residence highlights a conflict between the best interests of the child to know and have regular interaction with each parent and the interests of parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 at 196, 206, 207-208, 210).

8. In Taylor v Barker (2007) FLC 93-345 the Full Court confirmed (at [53]) that the proposed relocation of a child to a geographically distant place should be considered as just one of the proposals for the children’s future living arrangements, rather than as a discrete issue. The Full Court also held (at [60]) that a relocation proposal must be evaluated not only in the context of findings about what is in the children’s best interests under s.60CC of the Act, but also in the context of s.65DAA of the Act, which mandates consideration of the children spending equal, or alternatively substantial and significant, time with the other parent in the event of allocation of equal shared parental responsibility. To avoid devaluing the imperatives of the legislative provisions as they now stand, the Full Court recognised (at [81]-[83]) that the Court must balance the advantages and disadvantages of the relocation proposal with the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. But it was observed (at [81]) that the Court must firstly give separate and real consideration to the options of “equal time” and “substantial and significant time” without regard to the relocation proposal.

9. The parent wishing to relocate with the child bears no onus of proving the existence of compelling reasons for the proposed relocation. The reasons for the place of residence of the non-residential parent remaining unchanged ought to be explored at hearing, just as the reasons for the proposed relocation of the residential parent are explored. It must not be assumed that the residential parent must subordinate his or her wish to relocate to the wish of the non-residential parent to remain and pursue his or her life in a place of his or her choosing (see U v U (2002) 211 CLR 238 at 261, 285-286).

Best interests of the child – primary considerations

1. Despite a litany of minor complaints about one another in their affidavits, neither party contended that issues of “abuse”, “neglect”, or “family violence” were relevant to the outcome of these proceedings and so it is unnecessary to consider s 60CC(2)(b) of the Act.

2. Consequently, the only primary consideration motivating the Court’s decision is the benefit to be derived by the child from having meaningful relationships with both of his parents. That inquiry under s 60CC(2)(a) of the Act is a prospective one (see McCall v Clark (2009) FLC 93-405 at [118]-[122]).

3. There is no doubt the child presently has meaningful relationships with both parents. Both parties admit that to be so and it is readily apparent from the observations and opinions of Ms O.[17] Irrespective of the parties’ argument about who had primary responsibility for the child’s care in the past, the child now enjoys close and secure attachments with them both.

   [17] Ms O’s report, pars 93-98, 100, 102

4. If the child continued to reside with the parties under circumstances in which their households were in relatively close proximity he would be able to maintain his meaningful relationships with both parties because he would continue to enjoy both routine and frequent interaction with each of them.

5. Such routine and frequent interaction with both parties is impossible if, as the mother proposed, the parties live on different continents. As Ms O logically observed, if the child lived with the mother in the USA and the father remained resident in Australia:

   …the relationship between [the child] and his father will suffer. [The child’s] current experience of weekly contact with his father will cease and he will only see his father during designated holiday periods. Whilst [the child] has the requisite cognitive, language, and memory capacities to retain an image or idea of his father in the absence of his actual presence, there is no doubt that for a young child of his age, the absence of regular contact would significantly and deleteriously impact on the quality of the relationship…it is clear that [the child] currently benefits from regular and ongoing contact from his father.[18]

   and

   …there would be significant and negative effects for [the child] should he be separated on a permanent basis from either of his parents.[19]

   [18] Ms O’s report, par 113

   [19] Ms O’s report, par 120

6. Ms O elaborated her evidence during cross-examination, explaining the proposed relocation would compromise, and perhaps even sever, the child’s relationship with the father. Although now beyond the critical phase for development of emotional attachments with both parents, thereby permitting the child to retain a thread of memory about the father despite physical separation from him, the child was still at such a tender age he would not likely be able to consolidate his psychological bond with the father if geographically separated.

7. Naturally, the adverse effects for the child of separation from one of the parties would be neutralised if both parties continued to live in or around Sydney or in or around the same city in the USA. Both parents could then be regularly involved in the child’s education, sport, extra-curricular activities and friendship network.

8. For her part, the mother has proven her capacity to continue living with the child in Australia. Although that is not her preferred option, by her own admission, she would prefer that outcome to the alternative of the child living primarily with the father.

9. Conversely, the ability of the father to obtain permission from American authorities to live permanently in the USA was not an issue upon which the single expert, Ms G, was instructed to offer an opinion. That is because the father had never expressed any intention or willingness during the litigation to consider that option. It was, however, raised with him in cross-examination and the father said his “first thoughts” were that he would like to live near the child in the USA if the mother’s application to relocate there with the child was successful.

10. Self-evidently, possessing the initial inclination to live in the USA must be distinguished from the probability or actuality of doing so. Even if the father’s initial inclination developed into a committed desire, his ability to reside permanently in the USA would be wholly dependent upon the grant of permission by American authorities. Ms G was cross-examined about the prospect of the father securing permission to live permanently in the USA in circumstances where the mother and child were also living there. The parties agreed the tenor of her evidence was that such an outcome was improbable.

11. The father previously solicited advice in 2007 about the prospect of his entitlement to enter and remain in the USA.[20] He was advised, by letter dated 8 June 2007 authored by Mr A, that he had no entitlement to do so and would need to procure permission from the American authorities, which would be difficult. Ms G was furnished with a copy of that letter as part of her retainer and in cross-examination she endorsed the opinions set out within that letter.

    [20] Mother’s affidavit, pars 127-129

12. Even if the father could obtain permission to live permanently in the USA, his practicable ability to do so indefinitely would be influenced by his ability to secure reliable employment and sustain himself. That prospect is far from encouraging for a number of reasons, not the least of which are the father’s present lack of qualifications, his lack of anything other than short-term employment history, the confinement of his working history to sports instruction and in the property industry, his past conviction for a serious offence of violence, and what the parties acknowledged to be the dispirited state of the American economy.

13. Given the improbability of the father being able to live permanently in the USA so as to facilitate the mother’s fervent desire to relocate there with the child, the likelihood of the father being able to travel reasonably frequently to the USA to visit with the child emerged as an important component of the mother’s case. She reasoned that more frequent interaction between the child and the father would overcome, or at least substantially ameliorate, the perceived disadvantage of the impingement of the child’s relationship with the father by reason of prolonged separation.

14. Presently, according to the evidence of Ms G, the father has no automatic right to enter the USA even for short visits on a non-immigrant visa or waiver. That is principally due to his conviction for a serious offence of violence, which the American authorities regard as a “crime involving moral turpitude”. The commission of such an offence disqualifies the offender from entry to the USA without special dispensation. An additional disqualifying feature could be the father’s potential failure to have disclosed to the American authorities his arrest on the charge underlying the conviction when he returned to the USA just prior to his engagement to the mother in January 2001.

15. The contents of Ms Graham’s report suggested the husband could still probably procure permission to visit the USA temporarily, by the grant of a non-immigrant visa or waiver, but her evidence in cross-examination bore a different complexion.

16. In her report, Ms G posited the father’s temporary visits to the USA pursuant to either a “Waiver of Inadmissibility”, based upon his asserted reformation since his criminal conviction and penal sentence imposed in 2002, or “Advance Parole”, based on humanitarian grounds related to the child’s separation from him.

17. Ms G expressed the opinion in her report that “there is a strong likelihood for the US Consulate to favourably recommend that [US Citizenship and Immigration Services (“USCIS”)] issue a Waiver of Inadmissibility to [the father]”. She then explained in cross-examination how that process was time consuming, taking between three and five months for the waiver to issue. None of that evidence was the subject of direct challenge.

18. Ms G also expressed the view in her report that the father would be “better served” by applying for “humanitarian parole”, which I presume to be a synonym for the “Advance Parole” mentioned earlier in her report. It was implicit from her oral evidence in cross-examination that she considered “humanitarian parole” to be the better option for the father because the approval process was swifter.

19. In respect of that latter option, although Ms G equivocally opined “it may be likely that USCIS would approve a humanitarian parole for [the father]”, that is not an opinion to which she adhered during cross-examination. She in fact finally conceded it was unlikely such humanitarian parole would be granted to the father.

20. The ultimate inference properly drawn from the evidence of Ms G, both written and oral, is that the father will probably only secure the grant of a “Waiver of Inadmissibility” to permit his temporary visits to the USA in order to visit with the child, but that probability is tempered by the broad discretion vested in the functionaries of the USCIS and the lack of any judicial review of, or appeal against, unfavourable administrative decisions. Moreover, the father will encounter considerable delay in pursuit of approval.

21. It necessarily follows from those findings that it is likely the child could spend block periods of time with the father periodically in both Australia and the USA and maintain communication with him between times.

22. The submission of the mother was that, while it might be optimal for the child to live in the same geographical area as both parents and thereby maintain meaningful relationships with each of them, the arrangements proposed by her would still enable the child to maintain a meaningful relationship with the father who would remain resident in Australia. I reject that submission, which is repudiated by Ms O’s evidence.

23. The mother’s strategies for the maintenance of international interaction between the child and father, including them spending block holiday periods together periodically and communicating with one another by telephone and Skype, are unlikely to be a satisfactory salve for the physical absence of the father from the child’s life for prolonged periods of time.[21] I accept Ms O’s evidence to that effect, to which she credibly held fast in the face of courteous but forceful challenge during cross-examination. Ms O was an impressive witness and her evidence was persuasive because it was measured, reasoned, and logical.

    [21] Ms O’s report, par 113

24. The father acknowledged communicative tools like Skype and the telephone would aid the child’s adjustment to a new residence in the USA,[22] but that is more a reflection of the father’s capacity for introspection and logic than it is proof that the mother’s parenting proposal for the child would be successful or beneficial.

    [22] Ms O’s report, par 87

25. True it is the Act only aspires to the promotion and retention of a “meaningful” relationship between the child and the father – not an “optimal” relationship – but I accept the child’s removal to a residence with the mother in the USA would preclude the child from continuing to enjoy the benefit he derives from a flourishing relationship with the father. The relationship would cease to be meaningful in the manner it now is to the child. It would no longer be qualitatively important, significant and valuable to him, as a child’s relationship with a parent should desirably be (see McCall v Clark at [108]-[122]).

26. The likely impingement of the child’s meaningful relationship with the father in the event of his relocation with the mother to the USA would probably have long-term adverse implications for the child’s emotional health, quite apart from his short-term distress at physical separation from the father. Ms O summarised some likely long-term repercussions during her cross-examination, which included the child’s development of a sense of abandonment or rejection by the father, no doubt with concomitant effects upon his self-esteem and confidence.

27. The mother conceded to Ms O that the child already sometimes tells her he misses the father.[23] That sense of separation experienced by the child would likely be exacerbated if the current frequency with which the child spends time with the father is so dramatically abated in the manner the mother suggests. Even though the father regards the child as resilient,[24] and notwithstanding the child has previously coped with absences from the father for weeks at a time when he and the mother travelled to the USA for visits with the maternal family,[25] it is an altogether different proposition to permanently emasculate the child’s connection with the father in Australia.

    [23] Ms O’s report, par 75

    [24] Ms O’s report, pars 86, 104

    [25] Ms O’s report, par 74

28. It is improbable the adverse consequences for the child could be nullified either by the father also relocating to live nearby in the USA on an indefinite basis or by the child spending time and communicating with the father internationally as the mother proposed. The child’s need for the benefit derived from a meaningful relationship with the father suggests that he should continue to live with one party or the other and that the parties’ households remain in relatively close proximity in Australia.

29. Those findings carry considerable weight in any event, but they are particularly influential in this instance because the ability of the child to derive benefit from meaningful relationships with both parents is the only stipulated “primary” consideration applicable in the circumstances of this case.

30. The “additional” considerations under s 60CC(3) of the Act may outweigh the “primary” considerations under s 60CC(2) of the Act (see Slater & Light (2011) 45 Fam LR 41 at [45]), but the primary considerations attract the epithet “primary” for an intended purpose.

Best interests of the child - additional considerations

1. Either expressly or inferentially, the parties acknowledged that the additional considerations prescribed by ss 60CC(3)(a), (g), (h), (j), and (k) of the Act were irrelevant to the outcome of the proceedings. Consequently I do not consider them.

2. The principal feature of the case that counteracts the likely impingement of the child’s relationship with the father caused by the proposed relocation to the USA is the disturbance of the mother’s emotional equilibrium if the relocation application is refused.

3. The mother’s application was premised upon her dire need for emotional succour from her family and friends in the USA, without which she would not be able to fulfil her potential as a caring parent for the child. Her belief in that regard was a focal point of her discussion with Ms O, during which she explained her closeness to and the frequency of her contact with maternal family members, her reliance upon them for support, and her feelings of loneliness in Australia.[26] Her affidavit was also replete with evidence about her connection with the USA and her friends and family living there.[27]

   [26] Ms O’s report, pars 16, 17, 34, 36

   [27] Mother’s affidavit, pars 29-37, 64-75, 103-108, 245-256

1. There could be little doubt about the depth of the mother’s feelings on the issue. She was observed by Ms O to be distressed when discussing the topic,[28] with there being no suggestion such distress was feigned, and the mother felt sufficiently troubled to seek out therapy from a psychologist shortly following the marital separation in mid 2011.[29]

   [28] Ms O’s report, pars 16, 36

   [29] Mother’s affidavit, par 247; Ms O’s report, par 34

2. Even the father acknowledged the extent of the mother’s anguish. He told Ms O he believed the mother’s parenting skills would deteriorate and cause detriment to the child if she is not permitted to relocate to the USA, but he also expressed his belief the detriment would be ephemeral and the mother would recover her parenting capacity.[30] The father does not possess the expertise or qualifications to express such an opinion reliably, but it is nevertheless corroborative evidence that the mother’s distress is not a ruse.

   [30] Ms O’s report, par 82

3. It seems readily apparent the mother would be sorely disappointed by the Court’s refusal to allow her to relocate with the child to the USA. As I understood her counsel’s submission, the mother contended the Court could and should find that she would be a better and more fulfilled parent if she were permitted to relocate with the child, and further, such finding alone permits the Court to conclude the relocation would be in the child’s best interests. If that be a faithful summary of the submission, I do not accept it in totality.

4. The mother is performing perfectly well as a parent in Australia currently – at least at a level of competence equivalent to that of the father. If it were otherwise the mother would be bound to accept the child would be better served by the father assuming his primary residential care in Australia, and she rejected that proposition as not being in the child’s best interests. It is only if the mother’s parenting capacity would be appreciably diminished by the Court’s refusal of the proposed relocation that it would be an influential consideration in the Court’s determination (see McCall v Clark at [84], [131]-[135]; Hepburn & Noble (2010) FLC 93-438 at [43], [49]-[64]). It must be remembered that it is the advantages and disadvantages of the proposed relocation to the child, not the parents, which are relevant (see McCall & Clark at [88]). It is therefore necessary to analyse the evidence in relation to the mother’s emotional health and the likely standard of her parenting capacity in the event of the Court refusing her application to relocate with the child.

5. The mother’s treating psychologist, Ms N, reported various unchallenged facts and opinions of significance, which are as follows.

6. Firstly, when the mother was first assessed by Ms N in July 2011 her symptoms were consistent with a diagnosis of “Mixed Anxiety-Depression”.[31]

   [31] Ms N’s report, par 3

7. Secondly, over the 16 sessions Ms N has afforded therapy to the mother there has been improvement in the mother’s mood, her confidence, and her assertiveness. The mother is currently managing reasonably well with her support.[32]

   [32] Ms N’s report, par 5

8. Thirdly, the outcome of this litigation is “likely to impact on [the mother’s] future health and well-being”.[33]

   [33] Ms N’s report, par 7

9. Fourthly, if not permitted to relocate to the USA with the child on either a temporary or permanent basis the mother is “likely to suffer deep disappointment and grief, making her vulnerable to a Major Depressive Episode”.[34]

   [34] Ms N’s report, par 8

10. Fifthly, the mother plans to build a new life for herself and the child in Australia if not permitted to relocate to the USA, however in those circumstances “her sense of loss and helplessness, and the ongoing stress of parenting alone in a situation not of her choice are likely to make her vulnerable to depressive relapse with subsequent negative impact on aspects of her parenting capacity”.[35]

    [35] Ms N’s report, par 9

11. Lastly, if the mother is permitted to relocate with the child to the USA her parenting capacity will be enhanced and her mental health will likely be more robust.[36]

    [36] Ms N’s report, par 10

12. It will be evident from recitation of those facts and opinions that the mother would be gravely disappointed by the refusal of her relocation application, leaving her vulnerable to depressive relapse. Fairly read, the height of that evidence is that the mother might possibly experience emotional relapse, in which event her parenting capacity would be diminished to some extent. But that of itself does not vindicate the mother’s application.

13. The evidence falls short of establishing on the balance of probabilities that the mother’s vulnerability to depressive relapse would be realised, particularly in light of her improved condition over the last 12 months and her current satisfactory level of functioning. She is apparently already making alternate plans to build a new life for herself and the child in Australia, even though she would prefer not to have to implement them.

14. Even if the mother did fall victim to depressive relapse, the evidence is silent as to how and why there would be “negative impact on aspects of her parenting capacity”. There is no evidence about the manner in which the mother’s current parenting capacity would be diminished, no evidence to quantify the diminution, and no evidence as to how permanent or transient the diminution would be. There is no evidence about the way in which the diminution in the mother’s parenting capacity would affect the child, nor evidence to quantify the adverse effects upon the child. They are important practical matters about which the Court cannot speculate. There is a potentially vast spectrum of repercussions for the mother and child. Perhaps the mother would suffer a depressive condition that renders her utterly unable to care for the child physically and emotionally, but equally, her disappointment may perhaps only manifest itself in transitory distress which upsets the child momentarily if he happens to observe the mother weeping.

15. The opinions of Ms N are not the only evidence that bears upon the issue. Ms O also expressed opinions on the matter.

16. Although Ms N is the mother’s treating psychologist and may therefore have greater insight about her condition, her opinions are shaped by both the history provided by the mother and her knowledge that the value to the mother of their therapeutic relationship depends upon her continuing support of the mother.

17. By comparison, although Ms O’s meeting with the mother was brief, she has had access to a wider scope of source material to inform her opinions and she therefore offers evidence from a more detached and perhaps critical perspective. Moreover, the evidence of Ms O directs itself to the question of how the child might be affected by the mother’s emotional condition, unlike the evidence of Ms O which is directed to the mother’s emotional stability and only tangentially mentions her parenting capacity in that context.

18. I do not repose more weight in the views of Ms O than Ms N, but I repose no less weight in her views.

19. Ms O acknowledged the mother’s parenting capacity would be impaired if she suffered a major depressive episode and also conceded the likelihood of the mother experiencing more elevated mood living in the USA. But she also noted the mother’s current mood living in Australia had improved and she does not meet diagnostic criteria for a major depressive episode or other psychiatric disorder.[37] Furthermore, despite the mother reporting feeling “homesick and highly stressed”, Ms O found the mother’s asserted emotional condition “has not significantly impacted on her care for [the child]”.[38] Ms O was not challenged on that evidence, just as Ms N was not challenged on her evidence.

    [37] Ms O’s report, par 111

    [38] Ms O’s report, par 118

20. The ultimate opinion of Ms O, to which she adhered during cross-examination, was stated in the following terms in her report:[39]

    I am of the view that [the mother] is a resourceful parent and although her mental state and parenting would be strongest in the USA, remaining in Australia will not cause a dramatic psychological decomposition or a psychological state which will substantially undermine her parenting ability, provided there is not ongoing serious disputation with [the father].”

    [39] Ms O’s report, par 124

21. Her opinion about the mother’s emotional stability was reasoned from the evidence of Ms N about the mother’s improved condition and her proven past history of being able to cope with stressful events in the lives of the parties.[40]

    [40] Ms O’s report, pars 22, 23, 111, 123

22. Ms O was only seriously challenged about the caveat she expressed to that opinion, namely, the proviso that there is no continuing serious conflict between the parties. The mother suggested continuing conflict between the parties was likely, given the conflict which has existed since separation. Ms O did not accept that suggestion. In her view the conflict was likely to abate upon finalisation of these proceedings and the passage of more time following the parties’ separation. Ms O explained that her opinion about reduced conflict relied in part upon accepted research, not just her impression of the parties’ capacity to communicate courteously and intelligently.

23. It is abundantly plain from the evidence that the parties have rarely been prepared to give one another any quarter, either in the litigation or in their day-to-day interaction concerning the affairs of the child, but I impute their respective siege mentalities have been induced by their perceptions of how much is at stake in the litigation. Once the litigation is concluded by final orders I infer their conflict will probably abate. I accept Ms O’s evidence to that effect. Similarly, their emotions are still raw following the failure of their marriage little more than a year ago. I also accept Ms O’s evidence that the passage of time will probably ameliorate the conflict generated by the grief of their separation.

24. In those circumstances I conclude “ongoing serious disputation” is unlikely and I therefore accept Ms O’s opinion that if the mother is to remain resident in Australia she will not suffer psychological disturbance of such magnitude as would curtail her parenting capacity and cause adverse consequences for the child.

25. Ms N opined that the mother’s emotional distress would be alleviated by even “temporary” relocation to the USA,[41] which could only conceivably mean extended holidays to the USA. The mother and child have often visited family in the USA in the past and the maternal grandparents have visited Australia frequently.[42] There is no reason to infer such arrangements cannot continue, which will help assuage the mother’s discontent.

    [41] Ms N’s report, par 8

    [42] Mother’s affidavit, pars 48, 78; Father’s affidavit, par 102

26. Unfortunately, because the parties have perceived the stakes to be so high in the litigation they have not performed to their parenting potential. They have allowed conflict and recriminations to infect their parental interaction. For example, they have each moved residence probably without telling the other in advance, they have each enrolled the child in extra-curricular activities without telling the other, they have each formulated schooling proposals for the child without consulting the other, they have pursued their vindictive argument about who was the primary carer for the child when it is obvious he has loving relationships with them both, and despite their intelligence they both acknowledge the existence of their communication difficulties without either being prepared to initiate moves to improve it.

27. Even more unfortunately, the parties’ petulance and conflict has made them both unhappy and, more importantly, caused the child to suffer emotional distress. It is common ground the child has exhibited behavioural problems since the parties separated. Although the mother apparently reported to Ms O that the child’s behaviour changed noticeably for the worse in about September 2011,[43] and the father reported to Ms O that the child’s behaviour deteriorated only lately,[44] the mother said in cross-examination the child’s errant behaviour had “ebbed and flowed” ever since their separation some 15 months ago in April 2011.

    [43] Ms O’s report, par 67

    [44] Ms O’s report, par 81

28. Although the father insightlessly attributes the child’s errant behaviour to some deficiency he perceives on the mother’s part and the child missing him,[45] I am satisfied on the balance of probabilities that the child’s behaviour is caused by his distress over changed circumstances and the family disharmony, for reasons given by both the mother and Ms O.

    [45] Ms O’s report, pars 81, 106

29. The mother consulted a psychologist to assist her deal with the child’s challenging behaviour, about which she told Ms O.[46] The mother’s unchallenged evidence was to the effect she was advised by the psychologist the child was still young and “things were still fresh for him” – which I impute to be a reference to the child’s difficulty coping with the fresh circumstances of separated parents, his frequent exchanges between them, the parties’ moves into new households, and their ongoing conflict. It is logical and unsurprising for a child to be emotionally disturbed by such factors. The mother said the child’s “acting-out” is just as it was when he first started pre-school at age two years, at which time the parties were still cohabiting.

    [46] Ms O’s report, par 69

30. In cross-examination Ms O conceded the mother’s anxiety could have been a contributing factor in the child’s manifestation of errant behaviour, but she pitched the concession as only a possibility rather than a probability. Ms O considered the explanation to be “multi-factorial”, but posited one reason for the child’s behaviour to be his anxiety about events at his changeovers between the parties, which she had already mentioned in her report.[47] Her overall view, which I accept, is that the child’s behaviour is an indication he is “struggling psychologically” and he is therefore “expressing his inability to cope”.[48]

    [47] Ms O’s report, par 68

    [48] Ms O’s report, par 101

31. The conflict between the parties has spilled over into their families of origin. Despite the mother’s failure to acknowledge the fact, it seems reasonably plain the maternal grandfather holds a dim view of the father. The emails exchanged between the mother and maternal grandfather at or about the time of the parties’ separation betray the maternal grandfather’s feelings about the father.[49] I accept the submission that if the child lived with the mother in the household of the maternal grandparents, or at least close by, the child would be raised in an atmosphere of general antipathy towards the father. That would clearly not be in the child’s best interests.

    [49] Father’s affidavit, Annexure A

32. That potential problem is compounded by the mother’s apparent resistance to embrace the father as an important continuing influence in the child’s life. As with the father in reverse, Ms O found the mother’s willingness and ability to facilitate and encourage a continuing relationship between the child and the father was “not very well developed”. The mother minimised the importance of the father in the child’s life and minimised the effects upon the child of his separation from the father through relocation to the USA.[50]

    [50] Ms O’s report, par 107

33. Ms O was even more trenchant in her criticism of the father’s willingness and ability to facilitate and encourage a continuing relationship between the child and the mother. Ms O was not seriously challenged about her observations concerning the father’s “tirade” of criticism about the mother’s parenting capacity,[51] the father’s “flagrant denigration” of the mother,[52] the father’s asserted belief the child was not “close” to the mother,[53] and the father’s allegation the mother formerly had no “connection” with the child.[54] Nor was Ms O seriously challenged about her ultimate opinion that the father’s parenting capacity was tainted by those asserted beliefs.[55] I accept her observations and opinion, supported as it was by a surfeit of other evidence about the loving bond between the child and mother. The father was impelled to admit in cross-examination that the child and mother do have a close and loving relationship. He could not satisfactorily account for the inconsistency between that admission and the comments he had earlier made to Ms O.

    [51] Ms O’s report, par 82

    [52] Ms O’s report, par 119

    [53] Ms O’s report, par 83

    [54] Ms O’s report, par 86

    [55] Ms O’s report, pars 104, 107, 108

34. In final submissions the mother’s counsel contended that the willingness and ability of parents to promote the relationship between the child and the other parent, relevant as a consideration under s 60CC(3)(c) of the Act, was particularly important in relocation cases. I accept that submission. A child’s relationships with both parents can more easily be fostered if the child enjoys regular and meaningful interaction with both parents. It is easier for a relationship with a parent to atrophy if the child is isolated from that parent for prolonged periods and the residential parent is not particularly interested in promoting the child’s relationship with the geographically separated parent.

35. The close and loving relationships the child enjoys with both parents is also characteristic of the relationships he enjoys with the grandparents. It is common ground the child is close to the maternal grandparents and other members of the maternal family[56] and also the paternal grandmother and members of the paternal family.[57] The paternal grandfather died over two years ago.[58]

    [56] Mother’s affidavit, pars 44, 46; Ms O’s report, pars 88, 112

    [57] Mother’s affidavit, par 49; Father’s affidavit, par 155; Ms O’s report, pars 43, 77

    [58] Ms O’s report, par 41

36. Relocation to the USA would also gravely compromise the child’s relationship with the paternal grandmother, but his continued residence in Australia would not affect his relationship with members of the maternal family in the USA. Despite the geographical separation between them, the child has already forged strong relationships with them, no doubt assisted by the frequency of the visits between the USA and Australia by the maternal family.

37. Another issue which was the subject of debate was the parties’ respective financial circumstances, which issue bore upon the mother’s financial stability if compelled to continue living in Australia with the child. The mother was unchallenged about the evidence she adduced of the favourable fiscal opportunities available to her in the USA. She would clearly enjoy superior financial circumstances in the USA working as a professional with reasonably modest accommodation costs.[59]

    [59] Mother’s affidavit, pars 36, 64-69, 75

38. Her financial circumstances in Australia could not, however, be fairly described as so desperate to necessitate relocation for that reason. The mother has a laudable employment history as a professional in Australia, which began in 2002 and has continued largely uninterrupted ever since, allowing for maternity leave and part-time work to accommodate her parental responsibilities. Currently she is in stable and flexible part-time employment.[60] The mother deposed to her periodic income being approximately $2,700 net per fortnight, but she conceded in cross-examination her annual gross income is $106,000 inclusive of superannuation contributions. The mother has historically been able to rely upon the maternal grandparents for financial support if necessary,[61] but that should not be necessary if the father shoulders his share of the child support burden.

    [60] Ms O’s report, pars 22-23

    [61] Mother’s affidavit, pars 101-108

39. The father’s history of child support payments is lamentable. There is no evidence the mother ever sought a child support assessment, but her solicitors wrote to the father requesting financial contribution towards the child’s support.[62] The father did not reply until he deposited, without explanation, the sum of $720 into the mother’s bank account in May 2012. In the period between separation in April 2011 and May 2012 the father only made contributions towards the costs associated with the child’s private health insurance and his attendance at pre-school.

    [62] Mother’s affidavit, par 99

1. The father’s financial circumstances were unknown to the mother,[63] but revealed by the evidence to be less secure than her own. His past qualifications as a sports instructor are now obsolete, his studies at university were interrupted and remain incomplete, and his past efforts to start a business came to nothing.[64] His wish to invigorate that business venture seems but a forlorn hope. The father recently secured employment in the property industry, which work he intends to retain.[65] Although he deposed in his affidavit to earning an income of $630 per week,[66] in cross-examination he admitted receiving net income of about $750 per week.

   [63] Mother’s affidavit, pars 63, 99

   [64] Ms O’s report, pars 48-50

   [65] Ms O’s report, par 51

   [66] Father’s affidavit, par 109

2. The mother believed the child would benefit from superior educational and recreational activities in the USA,[67] but there is no reliable basis to conclude that is so. Just because the mother genuinely believes it does not render the fact objectively correct. It could hardly be reasonably asserted that educational and recreational pursuits available to children in Australia are qualitatively inferior to those available in the USA.

   [67] Mother’s affidavit, pars 19-28, 60, 70-75; Ms O’s report, par 75

3. In final submissions the father’s counsel contended that relocation of the mother and child to the USA would more likely lead to the institution of further proceedings for variation or enforcement of the orders made in these proceedings. It was submitted the Court should factor into its deliberations the prospect of future litigation concerning the child in the USA and the difficulty the father would then confront in participating in any such litigation as reasons why the mother’s relocation with the child to the USA should be refused. I reject the submissions, which were only bare propositions, for a number of reasons. Firstly, no authority could be cited for the proposition, secondly, the potentiality of future litigation was purely speculative, and thirdly, there was no evidence adduced about what practical difficulties would confront the father in participating in any such litigation. Even if the father could not secure entry to the USA one wonders why he could not act through American attorneys, either as principal or agent legal representatives, and appear at court remotely by telephone or audio/visual link. Throughout the trial the parties proceeded on the premise that this Court’s orders would be binding upon them and would be enforceable in both Australia and the USA.

4. The child’s views were not sought due to his young age and immaturity.[68]

   [68] Ms O’s report, par 92

5. No other factors were addressed by the parties as being relevant considerations under s 60CC(3) of the Act.

Parenting orders

1. Notwithstanding the difficulty encountered by the parties in communicating constructively with one another, they each contended for the allocation of equal shared parental responsibility for the child.

2. The presumption of equal shared parental responsibility applies because there are no reasonable grounds to believe that either parent engaged in abuse or family violence (s 61DA(2)) and the evidence does not suggest the best interests of the child would be served by displacement of the presumption (s 61DA(4)).

3. The parties are both intelligent people who are temporarily bereft of their normal capacity for face-to-face constructive dialogue because of their heightened emotions. Their current difficulties may be overcome by them communicating in writing, either by letter, email, or text message, if they are unable to yet bring themselves to converse civilly.

4. The allocation of equal shared parental responsibility obliges the Court to consider residential options involving the child living for equal time with both parents, or alternatively, living primarily with one parent and spending substantial and significant time with the other. Those options must be considered successively by reference, in each instance, to both reasonable practicability and the best interests of the child. For the purpose of that evaluative exercise there are certain criteria to which the Court must have regard (s 65DAA(5)), even though the exercise may entail referral back to the evidence influencing determination of the child’s best interests under s 60CC of the Act (see Starr & Duggan [2009] FamCAFC 115 at [36]-[39]).

5. None of the parenting regimes promulgated by the parties involve the child living with them for equal time. The failure of the parties to proffer such a residential solution militates against its imposition. They must mutually regard it as either impracticable or not in the best interests of the child.

6. It is easy to see why. The father intends remaining resident in the Illawarra region and the mother intends moving to the USA or alternatively remaining resident in the northern suburbs of Sydney. The parties’ households are presently 78.5 kilometres apart, separated by a road journey of 78 minutes.[69] The former matrimonial home was located on the southern fringe of Sydney. After separation the father moved 51.7 kilometres south and 50 minutes driving time from the locality of the former matrimonial home and the mother moved 37.5 kilometres north and 49 minutes driving time from the locality of the former matrimonial home.[70] Even if the mother remains resident in Australia, she intends to remain living near to her current home. It is not reasonably practicable for the child to live with the parties for equal time when their homes are such a distance apart.

   [69] Exhibit A

   [70] Exhibit A

7. I turn then to consider the child living primarily with one parent and spending substantial and significant time with the other.

8. The preponderance of evidence favours the child living primarily with the mother. That residential model has prevailed since the parties separated because of orders to which the father consented in both May 2011 and July 2011. The father must therefore recognise the suitability of such an arrangement.

9. The father’s decision to amend his application during the course of the litigation to seek an order that the child live with him rather than merely spend time with him may have been a retaliatory step against the mother’s proposed international relocation with the child, as Ms O speculated,[71] but it is unnecessary to decide the father’s motivations. The evidence as to the child’s best interests ultimately dictates the outcome. The father could point to no aspect of the evidence which sensibly suggested the child’s best interests were promoted by reversal of his current residential arrangements.

   [71] Os report, par 103

10. The father conceded in final submissions that Ms O did not embrace the idea of the child living primarily with him. Although the child is closely attached to both parents, the clear preference of Ms O was for the child to remain living with the mother, but in Australia.[72]

    [72] O’s report, par 116-117

11. Consistently with the evidence of Ms O, the evidence requires a determination that the child’s primary residence with the mother be conditional upon her maintaining a residence in Australia in relative proximity to the father.

12. The features of the evidence which militate in favour of that outcome, in no particular order of priority, are:

    a)The probable impingement of the child’s relationship with the father without regular and frequent personal interaction between them;

    b)The improbability of the father securing permission to live in the USA;

    c)Some degree of uncertainty that attends the father’s ability to obtain a non-immigrant “Waiver of Inadmissibility” visa in order to periodically visit the child in the USA;

    d)The probable impingement of the child’s relationship with the paternal grandmother;

    e)The improbability of the mother suffering such pronounced psychological disturbance as to impair her parenting capacity if her relocation application is refused;

    f)The ability of the mother to continue visiting her family in the USA with the child and to receive visits in Australia from members of her family;

    g)The fact the child has already been able to build strong relationships with members of the maternal family in the USA despite living in Australia and the expectation he will continue to develop those relationships without interruption under the same circumstances;

    h)The financial support she will likely continue to receive from her family, if needed, whilst she remains living in Australia; and

    i)The antipathy towards the father in which the child may be immersed if he lived amongst the maternal family in the USA.

13. The features of the evidence which militate against that outcome, again in no particular order of priority, are:

    a)The mother’s deep disappointment at not being permitted to relocate to the USA with the child and the fact she would be more fulfilled and contended if the relocation was permitted;

    b)The likelihood the father would secure a visa permitting his periodic visits to the USA to enable the child to spend time with him there;

    c)The mother’s willingness to fund, for a period of years, the international travel of both the father and child between Australia and the USA to enable them to spend time together;

    d)The necessity for the mother’s continued frequent interaction with the father in Australia in the face of his demeaning criticisms of her capacity to cope and properly parent the child; and

    e)The father’s past failure to bear any real or tangible share of the financial burden of maintaining the child and the likelihood of his continued modest financial contribution.

14. In aggregation, the former considerations carry greater weight than the latter considerations. Their numerical superiority is of little moment.

15. There is no need to make any specific order compelling the mother to live within certain geographical boundaries because the parties will need to live sufficiently close to one another to enable the parenting orders to be properly implemented. As already mentioned, parents enjoy as much freedom as is compatible with their obligations pertaining to the child (see AMS v AIF at 223-224, 231-232; Sampson v Hartnett (No.10) (2007) FLC 93-350).

16. Having determined the child should live with the mother in Australia it is necessary to consider an arrangement under which the child would spend substantial and significant time with the father.

17. That aspect of the parenting orders was the subject of very little evidence or argument since the parties devoted their energy to the debate over with whom the child would live and in which country that would occur.

18. The distance and travel time between the parties’ households is troublesome for the child. I accept that his frequent subjection to such demanding travel must be avoided.[73]

    [73] Ms O’s report, pars 86, 116

19. The orders therefore distinguish between the time the child spends with the father before and after he commences school in or about late January 2013.

20. Before the child commences school in about six months time he will continue to spend two days/nights per week with the father, as he has done since separation, but the two days/nights will be consolidated rather than broken into two separate periods. That arrangement coincides with the evidence of Ms O, with which neither party took exception.

21. The period of two consecutive days/nights begins on Saturday evening and ends on Monday evening. That is to accommodate the parties’ employment commitments. The father said in cross-examination he does not work on Sundays and only works half-days on Mondays, contrary to the evidence to which he deposed in his affidavit.[74] The mother works part-time on weekdays, but she deposed to her work arrangements being flexible and since she starts work earlier so she can finish earlier on Mondays[75] there seems reasonable prospects of her being able to collect the child from the father on Monday evenings.

    [74] Father’s affidavit, par 109

    [75] Mother’s affidavit, par 98

22. There is no utility in acclimatising the child to spending escalating amounts of time with the father over the next six months before his commencement of school because the time will abate again once the child begins school.

23. Special provision is made for the Christmas period in 2012. The child will spend a full week with the father up to and including Christmas Day. For the next three weeks thereafter the child’s time with the father will be suspended if, and so as to enable, the mother and child to travel to the USA for a visit to the maternal family.

24. After the child commences school the orders provide for him to spend each alternate weekend with the father, commencing on Friday evening and concluding on Sunday evening, and for a period of several hours each Thursday after school.

25. Thursday is the most appropriate day for mid-week interaction between the child and the father because the father said he did not work on Thursdays.

26. Alternate Saturdays may cause problems for the father’s employment because he works on Saturdays, but he will have the next six months to make alternate work arrangements in readiness for the changed parenting regime. Obviously, weekends are the most suitable time for the child to spend elongated time with the father during school terms. The paternal grandmother, who lives close by the father, will probably be able to help out. She has done so frequently in the past.

27. The parties conceded that, given the distance between their households and the need for the child to attend a school in the locality of his primary residence, it would not be reasonably practicable for the child to spend any more time with the non-residential parent. In any event, such a regime meets the definition of “substantial and significant time”.

28. Provision is also made for the child to spend his school holiday periods with the parties equitably. The child will spend the entirety of the Spring and Autumn school holidays with the father, together with approximately a week during the Christmas school holidays. The week in the Christmas school holidays will alternate between the beginning and end of the holidays so as to enable the child to share Christmas Day alternately with the parties.

29. The child will remain with the mother for the remainder of the Christmas school holidays and also the entirety of the mid-year holidays. That will permit the child to have some holiday time with the mother and enable them to travel to the USA for several weeks on up to two occasions each year – during the mid-year holidays and at Christmas. The Christmas holidays are longer than the other holidays and are therefore more conducive to international travel. If she chooses, the mother will be able to spend each alternate Christmas with the child in the USA.

30. Such orders are generally consistent with the mother’s proposal and the evidence she adduced in support of it,[76] which is reasonable. The father said in cross-examination he would not seek to prevent the mother from travelling, saying he was an “advocate” of her doing so.

    [76] Amended Response filed 11 April 2012, Orders 11-12; Mother’s affidavit, par 84

31. The orders also provide for the child to spend Mother’s Day with the mother and Father’s Day with the father. Both parties desired that outcome.

32. No provision is made for the child to see both parties on his birthday. The child may communicate frequently with both parties by telephone and Skype, including on his birthday, but any birthday celebrations planned by the parties will have to be co-ordinated around the time the child is ordinarily with them. Both parents proposed orders providing for liberal telephone and/or Skype communication.

33. To date, changeovers have occurred at a public venue in the southern suburbs of Sydney or at the child’s pre-school. Those venues are no longer suitable, or will shortly become unsuitable. Both parties proposed the continued use of a venue in the southern suburbs of Sydney equidistant between their homes for changeovers,[77] but it is too unreliable to expect both parties to meet at a distant venue at a specific time when both parties need to travel to the venue at times when traffic will likely be heavy and delays inevitable. Although they may agree otherwise if they choose, the child will be exchanged between the parties at their respective homes, other than on Thursdays during school terms when the father will collect the child from school and return him to the mother’s home.

    [77] Amended Response filed 11 April 2012, Order 8.2.1; Exhibit F4, Orders 7, 9

34. The father contended for an order restraining the mother from taking the child to the USA unless he could successfully secure a visa entitling his own entry to the USA and the mother deposited $100,000 into a bank account as security.[78] The reason behind that proposal was never explained so it must be imputed. It seems the father must entertain some suspicion that the mother, if allowed to relocate with the child to the USA, would not honour any orders providing for the child to travel to Australia to spend time with him, or if required to live with the child in Australia, would abduct the child and flee to the USA.[79]

    [78] Exhibit F4, Order 17

    [79] Ms O’s report, pars 88, 103

35. Such histrionic fear is indicative of the level of distrust that has crept into the parties’ relationship. There is no valid basis for the father’s fear, genuine though it could be. Tellingly, the mother was not challenged in cross-examination with the proposition that she may react as the father fears. Since separation the parties have a mutual history of general compliance with Court orders and, as the mother ably points out, she is a professional whose obligations of good faith pervade her professional practice in both Australia and the USA.[80] I expect both parties will comply with the orders made by the Court.

    [80] Mother’s affidavit, pars 289-294

36. The child has two passports – one American and the other Australian. The mother proposed an order that she retain the child’s passports, but adduced no evidence as to why. The father made no proposal about the child’s passports at all. The issue was not addressed either in cross-examination or submissions. An order is made for the mother to retain the child’s American passport and for the father to retain the child’s Australian passport. Former orders restricting the child’s removal from Australia are discharged.

37. The father’s counsel cross-examined the mother and Ms O about the prospect of the child being referred to a psychologist for counselling in respect of his errant behaviour. Neither the mother nor Ms O opposed the idea. Nonetheless, no order to that effect was proposed and I refrain from making any such order in the absence of an express proposal. That is a matter on which the parties may reach agreement through exercise of their equal shared parental responsibility for the child.

38. I am satisfied that the best interests of the child are served by the orders set out at the commencement of these reasons.

I certify that the preceding one hundred and fifty seven (157) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 18 July 2012.

Associate: 

Date:  18 July 2012