Gronchi & Toyoda
[2024] FedCFamC1F 774
•21 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gronchi & Toyoda [2024] FedCFamC1F 774
File number BRC 2443 of 2021 Judgment of WILSON J Date of judgment 21 November 2024 Catchwords FAMILY LAW – PARENTING – relocation application by the respondent to the Country B – allegations of family violence by the father – allegation made out on the balance of probabilities – relocation in the child’s best interests – application allowed – father’s applications mostly refused. Legislation Family Law Act Part VII, ss 60CA, 60CC(2)(a)-(e) Cases cited Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
AMS v AIF (1999) 199 CLR 160
CDJ v VAJ (1998) 197 CLR 172
Chu Kheng Lim v Minister for Immigration (1992) 172 CLR 1
Commonwealth v Baume (1905) 2 CLR 405
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155
Holloway v McFeeters (1956) 94 CLR 470
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369
Northern Territory v Collins (2008) 235 CLR 619
Project Blue Sky Inc v Australian Broadcasting Commission (1998) 194 CLR 355
Richter v Richter (2019) 63 FamLR 102
Taylor v Public Service Board (1976) 137 CLR 208
U v U (2002) 211 CLR 238
Wagstaff v Wagstaff (2022) 65 FamLR 461
Division Division 1 First Instance Number of paragraphs 164 Date of last submission 30 October 2024 Date of hearing 28, 29 and 30 October 2024 Place Melbourne Counsel for the applicant Mr B. Hatchman Solicitor for the applicant Vantage Law Counsel for the respondent Mr S. Casey Solicitor for the respondent Elsum Family Law Counsel for the independent children’s lawyer Mr P. Marchetti Solicitor for the independent children’s lawyer Victoria Legal Aid ORDERS
BRC 2443 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MR GRONCHI
Applicant
AND MS TOYODA
Respondent
ORDER MADE BY
WILSON J
DATE OF ORDER
21 NOVEMBER 2024
THE COURT ORDERS THAT –
1.All previous parenting orders be discharged.
Decision making
2.The mother have sole responsibility for all decisions with respect to major long-term issues for the child X born in 2017 (“the child”) and before any exercise of parental responsibility –
(a)the mother inform the father of her intention and provide him with sufficient particulars and documents to understand the nature of the decision;
(b)the mother give genuine consideration to any view expressed by the father and, if safe to do so, consult with him about the decision; and
(c)the mother may exercise sole responsibility 14 days after complying with subparagraph (a), or after such shorter period of time as circumstances require.
Live with
3.The child live with the mother.
4.The mother be permitted to relocate the child’s residence outside the Commonwealth of Australia to the Country B until 2031.
5.While the child lives in Country B, the child spend time and communicate with the father as follows –
(a)by Skype or other platform as agreed between the parties in writing on the following days –
(i)Friday between 12.00pm to 1.00pm (Country B time), equivalent to 7.00pm to 8.00pm Brisbane time with the call to be placed by the mother;
(ii)Tuesday between 2.30pm to 3.00pm (Country B time), equivalent to 9.30pm to 10.00pm Brisbane time with the call to be placed by the mother;
(iii)on the child’s birthday, between 2.30pm to 3.00pm (Country B time), equivalent to 9.30pm to 10.00pm Brisbane time with the call to be placed by the father;
(iv)on Father’s Day, between 12.00pm to 1.00pm (Country B time), equivalent to 9.30pm to 10.00pm Brisbane time with the call to be placed by the father;
(v)on Christmas Day, between 10.00am to 11.00am (Country B time), equivalent to 4.00pm to 5.00pm Brisbane time with the call to be placed by the father;
(vi)at all other times reasonably requested by the child; and
(vii)such further and other times as agreed between the parties.
(b)In even years –
(i)for three weeks during the child’s December/January school holidays, to include Christmas Day as follows –
A.such time can take place in either City C or Brisbane at the father’s election no less than 90 days prior to the commencement of the school holiday period;
B.in the event the father does not elect the location for time, time will take place in Brisbane;
C.upon receiving the father’s election as to where time will take place or in default of no election, the mother will provide no less than 60 days’ notice of the dates of travel;
(ii)for three weeks during the child’s June/July school holidays in Brisbane, with the mother to provide no less than 60 days’ notice of the dates of travel.
(c)In odd years –
(i)for two weeks during the child’s March/April school holidays as follows–
A.such time can take place in either City C or Brisbane at the father’s election no less than 90 days prior to the commencement of the school holiday period;
B.in the event the father does not elect the location for time, time will take place in Brisbane;
C.upon receiving the father’s election as to where time will take place or in default of no election, the mother will provide no less than 60 days’ notice of the dates of travel;
(ii)for four weeks during the child’s June/July school holidays in Brisbane, with the mother to provide no less than 60 days’ notice of the dates of travel; and
(d)any such other and further times as agreed between the parties in writing.
6.For the purpose of changeover unless otherwise agreed in writing between the parties–
(a)the father will collect the child from Brisbane International Airport at the commencement of his time and deliver the child to Brisbane International Airport no less than three hours’ prior to her flight departure time, unless otherwise agreed between the parties in writing, with the mother to advise the father who will be collecting the child at Brisbane International Airport or if she will be travelling as an unaccompanied minor no less than 48 hours prior to changeover; or
(b)if time is taking place in City C, the father will collect the child from City C International Airport at the commencement of his time and deliver the child to City C International Airport no less than three hours’ prior to her flight departure times, unless otherwise agreed between the parties in writing, with the mother to advise the father who will be collecting the child at City C International Airport or if she will be travelling as an unaccompanied minor no less than 48 hours prior to changeover.
7.The mother is responsible for the cost of the child’s flights between Country B and Brisbane and any accompanying adult flights.
8.If time takes place in City C the mother is responsible for the cost of the father’s economy class return flights between Brisbane and City C and the father is responsible for all accommodation costs and travel costs in City C.
9.During the child’s time with the father, the child communicates with the mother by Skype or such other platform as agreed between the parties in writing –
(a)every 5th night between 4.00pm and 5.00pm Brisbane time, with the call to be placed by the father;
(b)on the child’s birthday, between 4.00pm and 5.00pm Brisbane time, with the call to be placed by the mother; and
(c)on Christmas Day between 4.00pm and 5.00pm Brisbane time, with the call to be placed by the mother.
Restraints
10.The parties are restrained from recording video calls between the child and the father unless otherwise agreed between the parties in writing.
11.Without admitting necessity for same, the parties, their servants and agents be and are hereby restrained by injunction from –
(a)abusing, insulting, belittling or otherwise denigrating the other party, their partner or family in the presence or hearing of the child or permitting anyone else to do so;
(b)discussing these proceedings with or in the presence or hearing of the child or permitting anyone else to do so; and
(c)allowing the child to view any and all documents filed in or associated with these proceedings.
The child’s passport
12.Each party do all such things and sign all necessary documents to maintain a valid Australian passport for the child at their joint expense.
13.The child’s passport shall be held by the mother and a copy provided to the father.
14.Not less than six months prior to the child’s passport reaching the expiry date, each of the parties do all acts and things and sign all documents necessary to ensure that the passports are renewed and that the child have a valid passport at all times, with the costs of same to be shared equally between the parties.
15.In the event that either of the parties fails to comply with paragraph 14 pursuant to section 11(1)(b) of the Australia Passports Act 2005, the complying party is hereby authorised and permitted to apply for, renew and receive Australian passports for the child without the consent of the other party.
16.The child’s passport is to be released to the father no less than 48 hours prior to the father travelling overseas with the child, save for where not practicable, and the father shall return the child’s passport to the mother upon the child retuning from said travel.
Travel
17.Each party be permitted to travel with the child interstate when she is in their care pursuant to these orders subject to the travelling parent providing the non-travelling parent with 14 days prior notice of their intention to travel, save for in the case of emergency, and the location at which the child shall be residing.
18.Each party be permitted to travel with the child outside the Commonwealth of Australia when she is in their care pursuant to these orders subject to the following –
(a)the travelling parents provides the non-travelling parent with 45 days written notice of their intention to travel;
(b)no less than one month prior to the travel, the travelling parent provides the non-travelling parent with the following –
(i)a copy of the itinerary;
(ii)a copy of the airline/cruise tickets;
(iii)evidence of travel medical insurance;
(iv)the address at which the child shall be residing and a contact telephone number on which the travelling parent can be contacted; and
(v)evidence of visas for both the travelling parent and the child, where required, to enter the destination country.
(c)The parties are restrained from taking the child to any country that is listed as level 4 (“do not travel”) on the Australian Governments Smart Traveller’s website (“Smart Traveller”);
(d)the travelling parent will facilitate the other parent having reasonable electronic communication with the child whilst they are away; and
(e)the travelling parent ensures the child has received all required and recommended vaccinations for travel (if any) and provides proof of same.
Notifications
19.The parties shall communicate via the AppClose parenting App, or such other app as agreed in writing between the parties, save in the case of an emergency.
20.The parties shall inform the other as soon as reasonably practicable of any serious illness or injury sustained by the child while in their care and further provide particulars of any treatment required or received by the child together with the name and address of the treatment provider and/or location at which the child is hospitalised.
21.Both parties do all acts and things to ensure that both parents contact details are listed with any medical practitioner the child attends upon.
22.Upon provision of these orders to all treating medical practitioners and allied health providers of the child, the practitioners or providers are hereby authorised and empowered by this order to provide all medical history, information, reports, diagnoses and any other relevant information about the child’s welfare, development and progress at the request and at the cost of the parent requesting same.
23.Upon provision of these orders to the principal or co-ordinator of any education facilities or third party providing extracurricular activities in which the child is enrolled and any relevant individual or body are hereby authorised and empowered by this order to provide the parties with any information about the child’s progress and related activities and supply the parties with copies of photographs, certificates, awards, reports and any other documents relating to the child at the request and cost of the parent requesting same.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Gronchi & Toyoda has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
In this litigation, the mother seeks court approval for her to relocate to Country B with the child the father of whom opposes such application. The father seeks orders increasing his time with the child while in Australia. This application was referred to me for speedy determination pursuant to orders of Alstergren CJ made on 17 September 2024. I heard the trial over three days in late October 2024.
As these reasons reveal, in my judgment orders for the relocation of the child to the Country B are in the best interests of the child. The mother’s application to relocate is granted. Orders propounded by the father for an increase in the father’s time are not in the child’s best interests. The agreement reached between the father, the mother and the independent children’s lawyer in relation to long-term decision making reflects the best interests of the child which orders I make.
FORMAL DETAILS
To better understand these reasons it is necessary to record certain formal details of the child and her parents.
The father is 41 years of age, the mother is 39 and the child was born in 2017, the parents having commenced living together in 2014 at their residence in Brisbane.
By April 2014 the mother had obtained a protection order against the father. In early 2020 the father was incarcerated. A month later the mother wrote to the father while he was in prison telling him their relationship was over. The father commenced a proceeding in what was then the Family Court of Australia seeking orders altering the parties’ property interests. In May 2021 the mother sought parenting orders. In late 2021 the father was released from prison. In February 2022 the father learned that the mother and child had moved permanently from Brisbane to Melbourne. In April 2022 consent orders were made for the child to live with the mother in Melbourne and for the father to communicate with the child by skype on Saturdays and Sundays between 3 and 4pm.
Following a contested interlocutory application conducted in August 2022, orders were made on 12 October 2022 conferring upon the mother sole parental responsibility for the child, for the child to live with the mother, for the father to have supervised time with the child and for the father to communicate with the father by telephone or video link on Saturday and Sunday between 3 and 4pm.
Further criminal proceedings were commenced against the father resulting in the father pleading guilty to those other charges in late August 2023.
In April 2024 the mother applied for orders permitting her to relocate internationally with the child. On 9 April 2024 this proceeding was transferred to Division 1 of this court. On 10 September 2024 orders were made fixing the parenting aspect only of this proceeding for trial to commence on 28 October 2024. The trial of property issues is fixed for February 2025.
THE EVIDENCE OF THESE APPLICATIONS
All counsel agreed that the contents of the court book referred to in the court book index behind tabs 1-14 became an agreed exhibit. Those documents incorporated case outlines, amended applications and responses, affidavits, notices of risk and expert reports. It is necessary to address that evidence in the context of the statutory provisions which I must address. Viva voce evidence on these applications was given by the mother, the father and by Dr D, a forensic psychologist.
THE STATUTORY FRAMEWORK
The father’s application for joint decision making as well as an enlargement of the time he spends with the child is an application for a parenting order, as defined, in the Family Law Act. The mother’s relocation application with the child is also an application for a parenting order under the Family Law Act.
Only if the relevant application for a parenting order is in the best interests of the child will the relevant parenting order be jurisdictionally and jurisprudentially sound.
This proceeding was commenced prior to the operation of the 2024 amendments to the Family Law Act which commenced operation on 6 May 2024. However, the trial of this proceeding was conducted after the commencement of the 2024 amendments rendering the 2024 amendments applicable in lieu of the provisions of Part VII of the Family Law Act that had hitherto incorporated extensive provisions about the manner in which the court ascertains the best interests of the child. In final addresses, Mr Marchetti of counsel for the ICL very helpfully provided written submissions that addressed the 2024 amendments.
Before applying the facts of this case to the law, it is utile to narrate the effect of the new legislative provisions.
Section 60CA of the Family Law Act provides that in deciding whether to make a particular parenting orders in relation to a child, the court (me, in this instance) must regard the best interests of the child as the paramount consideration. Pursuant to s 60CC (1)(a), the court is required (hence “must”) to consider the matters set out in s 60CC(2). Those include –
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of –
(i)the child; and
(ii)each person who has care of the child;
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so; and
(f)anything else that is relevant to the particular circumstances of the child.
Other provisions of the amending legislation prescribe matters which elucidate the considerations in which the court must engage when addressing the subsections of s 60CC(2). To that end, s 60CC(2A) provides that when addressing s 60CC(2)(a), the court must consider the following –
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not that person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or to a member of the child’s family.
So far as s 60CC(2)(b) is concerned, the court is permitted to inform itself of any views expressed by the child –
(a)by taking into consideration anything in a report given under s 62G(2); or
(b)by making an order under s 68L; or
(c)by such other reasons as the court thinks appropriate.
THE RELOCATION APPLICATION
In support of her application in her further amended response (paragraph 8) to relocate the child’s residence to Country B until 2031, the mother deposed to a collection of matters in her affidavit made 16 October 2024. The following is a précis of the more important matters in that affidavit –
(a)she is currently self-employed earning $178,000 per annum;
(b)the father has adopted various surnames, currently using the name set out in the court documentation in this proceeding;
(c)their child, born in 2017, has been diagnosed with level two autism and moderate attention deficit hyperactivity disorder (“ADHD”), she suffers from seizures and she is below the expected level at school, having behavioural issues;
(d)since March 2023 the child has had unsupervised time with the father;
(e)on 20 August 2024 Dr D prepared a family report;
(f)the child spends half Victorian school holiday time with the father when she is in Brisbane;
(g)since May 2022 the child has attended a speech pathologist on a fortnightly basis, she sees a paediatrician up to four times a year and the mother is currently endeavouring to find a new psychologist for the child;
(h)the child requires a teacher’s aide to assist the child in the classroom yet she has exhibited behavioural issues, sometimes running away from the school not returning;
(i)since February 2024 the child has encountered what the mother called “several major behavioural eruptions, resulting in her damaging school equipment and at times being abusive towards teachers and students”;
(j)the child has a specialised timetable to recognise the issues affecting her;
(k)this calendar year the child has engaged in three outbursts during which chairs were thrown and toys pulled from shelves, the child has used scissors to cut her hair and she has spat water at adults; and
(l)the child achieved well below expected levels for English and mathematics at Dibels tests.
The mother addressed episodes of family violence in her 16 October 2024 affidavit. The father denied many of those episodes. In the passages below, in the context of s 60CC considerations I have addressed those allegations.
So far as the detail of the mother’s relocation application was concerned, she addressed it between paragraphs 48 and 70 of her 16 October affidavit. In essence she sought permission of the court to move to City E in Country B until 2031 when the child turns 18. Relevantly synthesised, she deposed to the matters supporting her application to include the following –
(a)she will derive a significantly enhanced salary for her work in Country B;
(b)her salary package incorporates an allowance for the child’s education, private health insurance for the mother and child, flight expenditures and relocation costs, certain accommodation expenditure and an advance payment in respect of rent;
(c)the mother’s work is a short drive from the child’s school;
(d)the mother has requested her new employer to allow her to work from home one day a week;
(e)the father owes debts of over $1.5m;
(f)as a Manager in Melbourne she may generate an income of around AUD $180,000; and
(g)she had actual debts in relation to legal fees of over $130,000 and she estimates she will have spent up to $230,000 by the end of the trial.
The mother deposed to a position being available for the child to commence schooling in Country B in January 2025. The mother proposed enrolling the child at F School, City E (“F School”) following the mother’s visit to that school in September 2024 and meeting teachers. The mother deposed to F School having an extensive programme for children with special education needs which the mother described by the acronym “SEN”, stating that the F School SEN programme caters for autism and it offers a bespoke curriculum that is tailored to each child’s specific needs. As a fallback, the mother deposed to schooling for the child being available at G School, City E (“G School”). The mother deposed to visiting that school in October 2024. She said G School offers additional learning support for children with mild to moderate neurodivergent needs, such support being offered in small groups by specialist teachers. The mother said G School is directly affiliated with H Centre (“H Centre”) where the mother proposes the child’s therapy be conducted.
The mother deposed to having made enquiries with a third school, J School (“J School”) which offers a service, helpful for the child’s neurodivergent needs. She said J School is also affiliated with H Centre.
The mother deposed to having made enquiries about a live-in governess (a qualified teacher) to act as a shadow for the child while at school.
So far as costs were concerned, the mother deposed to the three schools costing between AUD $22,000 to AUD $40,000 or thereabouts such expenses to be met from the child’s educational expenses.
The mother gave evidence of her plans to drop off the child with the governess at one of the schools the mother selects at 7.30am ahead of an 8am school opening. That was to be contrasted with the child being dropped off each school day at 7am before school in care and the child being collected after school at 6pm.
Accommodation for the mother and child in Country B will be at an ex-pat’s residential complex the weekly rental of which is AUD $1,000 to AUD $1,200. The mother said she will require a three bedroom rental. The residential complexes she is considered are equipped with facilities for swimming, gymnasium, restaurants, a café, supermarket, cinema, football court, tennis court, garden and outdoor barbeque facilities.
Medical facilities for the child in Country B were the subject of separate deposition by the mother. She said she met personally with proposed medical people, including those relevant to ADHD, spectrum disorders, seizures, cognitive behaviour, child psychology, behaviour management, speech and educational issues.
The mother deposed to her intention to have the assistance of Ms K between four and six weeks upon first moving to Country B. She said Ms K has assisted with the care of the child since the child’s birth and has a close bond with the child. The mother deposed to having interviewed a proposed governess whose curriculum vitae was exhibited.
The mother stated that having regard to the father’s criminal history, the father will not be permitted to enter Country B. By reason of the father not being able to travel to Country B, the mother proposed that at the mother’s own expense the child travels to Brisbane twice yearly during school holidays to spend time with the father. She pointed out that the child will fly while accompanied by an adult who will be the mother, the governess or her friend Ms K. When the child is 11, the mother deposed to the child being able to travel unaccompanied. The mother gave details of school holiday dates when international travel for the child would be relevant, namely, two weeks in March and April, nine weeks during June to August and three weeks in December and January. The mother proposed a regime pursuant to which the child travelled to Brisbane in alternative years to enable her to spend time with the father around the child’s birthday in one year and at Christmas the other year. She advanced a well-considered proposal for the time the child would spend with each parent in years which were even in number and in years that were uneven in number.
In her 16 October 2024 affidavit the mother deposed to the father’s denial of the child’s neurodivergent needs. She stated that the father has accused the mother of fabricating the child’s seizures, notwithstanding that the mother supplied the father with regular medical updates over the period 2022 to 2024.
The mother deposed to the father having blocked her attempts to transmit documents to him. She said the father has refused to communicate using an application that is different to AppClose. The mother deposed to the father refusing to allow the child to be seen by a psychologist unless he had a conversation with the proposed psychologist before the child and the psychologist’s appointment.
The mother deposed to the father’s attitude to the child attending her present school. The mother gave evidence that the child should be removed from her current school. She stated that the child’s behaviour called for attention. She deposed to the father falsely asserting that the mother had not provided authority for the father to access the child’s medical professionals and school information, despite the mother having done so. The unmistakable tenor of the mother’s evidence about the father’s cooperation and participation with medical professionals is that the father is unhelpful, uncooperative and at times obstructive. She said in paragraph 88 of her affidavit that if she is permitted to relocate to the Country B, the husband will have fewer opportunities to provide his input into medical issues and schooling issues.
The mother said she has been the child’s primary carer since the child’s birth. She said she and the father were separated when the child was born. After the child’s birth, the father spent time with the child for a few hours up to three times a week. The child was breastfeeding at the time. She deposed to living with the father again in December 2017. However, she said the father was not significantly involved in the child’s daily routine. The mother deposed to leaving the child at day care in Brisbane city then collecting her. The mother said she prepared meals for the child and prepared and packed the child’s daily requirements. She said that the father went to his gymnasium immediately after work. She said that from April 2019, after the father sold his car and up to the commencement of his incarceration in 2020, the father did not collect the child from day care.
The father and mother separated in October 2019. The mother deposed to the day-to-day routine being largely unchanged. She moved to nearby rented accommodation.
The father’s criminal trial commenced when the child’s third birthday was approaching. He was convicted and sentenced to a term of imprisonment the commencement date of which was early 2020. When in prison, the mother said the child communicated with the father by videolink or telephone facilitated by the father’s mother.
The mother deposed to the father being released from prison in late 2021 following a successful appeal. Prior to his release, the mother said she had made arrangements to move to Melbourne to pursue work opportunities on an industrial project. The mother said she did not disclose her address because she feared the father may have attempted to make good his threat that upon his release he would find the child and that the child would live with him. The mother said she became concerned for the child’s safety.
Orders were made on 16 March 2023 which governed the time the father spent with the child. The mother deposed to the father’s spending time with the child largely in accordance with those orders.
The mother deposed to the father’s appeal being successful yet he was not acquitted and instead he was ordered to be retried. The mother stated that his retrial was conducted and he was convicted. The mother deposed to the father’s debts escalating to more than $1,200,000 when he was sentenced for the second time and that the father discussed presenting his own petition for bankruptcy. The mother stated that as at the date of her affidavit, the father’s debts were around $1.5m.
The mother’s allegations about the father’s denigration of her (detailed below) was taken from paragraphs 109-116 of her affidavit.
The mother said that the father has paid no child support and has given as the reason for such non-payment that the mother moved to Melbourne. She said he has been assessed at $43.35 per week. She said he is in arrears.
THE FATHER’S OPPOSITION TO THE MOTHER’S RELOCATION APPLICATION
In his affidavit made 2 October 2024, the father advanced his evidence not only in support of his application for an increase in his time with the child but also in opposition to the mother’s relocation application. Logically, if the mother’s relocation application is approved, the father’s time with the child will need to be considered under the rubric of a factual scenario where the child lives overseas, her time with the father likely being by electronic means and her face‑to‑face time with the father being during school holidays. In those circumstances, it seemed to me to be correct to first address the father’s opposition to the mother’s relocation application.
The father deposed to being two years older than the mother, he being 41 and she being 39. He said in his affidavit that he was a contractor in the construction industry. He deposed to meeting the mother in 2014, they moved in together in mid-2014 in Brisbane, the child was born in 2017 and that the mother wrote to him when he was in prison in early 2020 stating that their relationship was over. He said that letter accurately reflected their relationship ending, making it a six year relationship (2014 to 2020).
Factual discrepancies emerged in the version of events given by the father when compared against the version of the same event as given by the mother. Among those discrepancies were the respective versions concerning –
(a)the time each spent each day when the mother returned from work;
(b)who performed household activities such as cooking;
(c)who delivered the child to day care;
(d)that he asserted he worked from home and cared for the child thereby reducing household outgoings;
(e)who readied the child each day for day care; and
(f)how he asserted that he attended to his own personal matters only after the child’s needs had been attended to on a daily basis.
He deposed to his jail term commencing in early 2020. He admitted separating in early 2020. He deposed to the mother facilitating communications with the child during the father’s incarceration.
He said he lodged a caveat on the L Street property “to preserve that asset” after which he commenced a financial proceeding in this court. He said that the mother’s behaviour towards him changed once he lodged the caveat.
He deposed to the mother’s relocation to Victoria with the child which he characterised as being unilateral. He said that after his release from prison he instructed his solicitors to communicate with the mother to record his desire to reunite with the child. He said he had no face-to-face contact with the child from the date of his imprisonment in early 2020 until mid‑2022.
Between paragraphs 61 and 75 of his affidavit the father deposed to the circumstances of his conviction. Three charges were involved, he was indicted on each and each involved his dishonestly obtaining bank credits. He deposed to successfully appealing against his convictions, being retried and entering a plea of guilty in 2023 with no further prison time being ordered.
In his affidavit the father deposed to his current living arrangements. He did not state where his residence was. He did not say whether he owned it, rented it or was a mere licensee of it. Yet he deposed in his affidavit that the child has her own bedroom and bed in his residence. In cross-examination (canvassed below) his accommodation arrangements were revealed in greater detail.
At all events he deposed to what he construed as difficulties created by the mother in his communication with the child. He said the mother “interferes” with skype communications. She interrupts calls between the father and the child, she requires the child to address the father by his given name rather than “dad” and she terminates calls he said. The father went to considerable lengths in his affidavit to portray the mother as damaging the relationship between the father and daughter in the period April 2022 to April 2023. The episodes to which he referred were assertions, unsupported by corroborating documents or verification, revealing to me that the father was endeavouring to portray the mother in a manner most advantageous to the applications he made in this litigation. For example, the father devoted considerable effort to narrating an episode in July 2023 when the child was injured while partaking in sport. He deposed to the steps the mother took to have the child seen by an array of medical practitioners. Yet he deposed to taking no steps of any description to immerse himself in the child’s care and treatment. He deposed to reading certain medical information then becoming confused. Yet he made no effort to contact doctors until his confusion caused him in late February 2024 to contact the rooms of a particular doctor. That was nine months after the sport episode.
The father deposed to attending a parent teacher interview in April 2023.
It is fair to say that as a father he did not involve himself in the day-to-day life or welfare of the child.
However, he said he enjoys a relationship of “high level of trusting” (his words). He said that the child travels to Brisbane where she saw her the paternal relatives. He said he is focused on fostering a positive relationship with the child. He said he has observed a close loving relationship between the child and the mother.
The father deposed to intending to relocate to Melbourne during late 2024. At this juncture it is relevant to observe that the father has frequently previously expressed his intention to relocate to Melbourne yet he has taken no step to give effect to that intention.
He gave evidence of certain job opportunities and changes to his working regime so that he could spend what he called “more meaningful time” with the child. He was cross-examined about his evidence on that issue. The responses he gave are detailed below.
The father deposed to his unsuccessful endeavours to lodge information relevant to child support.
In an affidavit he made on 23 October 2024, the father disputed allegations made by the wife in relation to family violence. He admitted to having an affair with a work colleague.
In his case outline, the father addressed parental responsibility and joint decision making responsibility on major long term issues. He asserted that prior to the commencement of this litigation he and the mother were able to communicate directly on issues concerning the child. He further asserted that he fears the mother will not consult with him if she travels to Country B with the child. He stated that the mother unilaterally relocated from Brisbane to Melbourne.
In her outline of case, the mother stated that pursuant to orders made on 12 October 2022 she has sole parental responsibility for the child. She stated that she has provided weekly updates to the father about the child’s education, social and medical progress as well as photographs.
Very helpfully, the mother’s case outline addressed each subsection of s 60CC(2). The ICL did likewise. The father did not.
A family report dated 20 August 2024 prepared by Dr D went into evidence. Dr D gave viva voce evidence, the more important matters to emerge from which are addressed below.
THE MOTHER’S RELOCATION APPLICATION
Gone are the days when an applicant for a relocation order was required to demonstrate compelling circumstances for the making of the relevant order.[1] A relocation order is a “parenting order”[2] to which considerations of the best interests of the child apply.
[1] AMS v AIF (1999) 199 CLR 160, U v U (2002) 211 CLR 238 and CDJ v VAJ (1998) 197 CLR 172.
[2] Richter v Richter (2019) 63 FamLR 102.
Taking first s 60CC(2)(a) of the Family Law Act, that is to say, the amending provisions, I am required to consider the arrangements that best promote the safety of the child and each person who has care of the child.
Consonant with principles of statutory construction pronounced by the High Court,[3] and applied by the Full Court of this court,[4] every word of legislation must be given effect.[5]
[3] Project Blue Sky Inc v Australian Broadcasting Commission (1998) 194 CLR 355, Taylor v Public Service Board (1976) 137 CLR 208, Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, Northern Territory v Collins (2008) 235 CLR 619 to name but a few.
[4] Wagstaff v Wagstaff (2022) 65 FamLR 461 for example.
[5] Commonwealth v Baume (1905) 2 CLR 405 and Chu Kheng Lim v Minister for Immigration (1992) 172 CLR 1.
The terms of amending legislation in respect of which provision is made for the determination of what is in the child’s best interests are recorded in section 60CC. It provides as follows –
FAMILY LAW ACT 1975 - SECT 60CC
How a court determines what is in a child's best interests
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child - -also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
Additional considerations -- right to enjoy Aboriginal or Torres Strait Islander culture
(3)For the purposes of paragraph 1(b), the court must consider the following matters:
(a)the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i) to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(iii) to develop a positive appreciation of that culture; and
(b) the likely impact any proposed parenting order under this Part will have on that right.
Consent orders
(4)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
As is evident from s 60CC(1)(a), that section prescribes the matters which a court such as me must (and this is mandatory, not permissive or discretionary) consider so as to determine what is in a child’s best interests. Subsection 60CC(1)(b) was not relevant because the child in this case is not aboriginal or a Torres Strait Islander. Accordingly, each subsection of s 60CC(2) fell for consideration including, where relevant, subsections where multiple concepts are incorporated in the single subsection. Certain subsections incorporate defined terms, that is to say, terms defined by other section of the Family Law Act.
Commencing with s 60CC(2)(a), I am required to “consider” (as that word was held to mean in Wagstaff v Wagstaff)[6] what arrangements would promote the safety of the child and each person having care of the child (whether or not that person has parental responsibility for the child) including safety from being subjected to or exposed to family violence, abuse, neglect or other harm.
[6] (2022) 65 FamLR 461, 479 (Wilson J).
Several concepts and terms (including defined terms) are embedded in the wording of s 60CC(2)(b). As was held in Commonwealth v Baume[7]and Chu Kheng Lim v Minister for Immigration,[8] every word of a section or subsection of legislation must be construed so as to give meaning to the relevant statutory provision.
[7] (1905) 2 CLR 405.
[8] (1992) 172 CLR 1.
The “arrangements” that would promote the safety of the child and the mother are relevant and must be considered. Those arrangements are found in the father’s proposed orders and in the orders proposed by the mother and the ICL. The ICL supported the orders proposed by the wife. Yet the word “arrangements” is not defined so it cannot be sensibly argued that the only matters to be considered by me are those in the proposed orders of the father, the mother and the ICL. In this case the family consultant prepared a very detailed report in which she too offered proposals for the arrangements for the child into the future. Section 60CC(2)(a) should be taken to include the proposals of the family consultant.
Subsumed in the mother’s relocation application was her application for orders that she has sole responsibility for all decisions with respect to major long-term issues for the child. Also subsumed in the mother’s relocation application was her application for the child to live with the mother in Country B if the mother were successful in her relocation application. She proposed the father’s time with the child to be in accordance with a formula set out in paragraphs 9 to 13 of the mother’s further amended response to the father’s initiating application. It is utile to record the precise terms of the arrangements proposed by the mother. They were –
If the Mother is permitted to relocate the child’s residence to [Country B]
9.While the child lives in [Country B], the child spend time and communicate with the Father as follows:
a.By Skype, or other platform as agreed between the parties in writing, on the following days:
i.Friday between 12pm to 1pm ([Country B] time), equivalent to 7pm to 8pm Brisbane time with the call to be placed by the Mother;
ii.Tuesday between 2.30pm to 3.00pm ([Country B] time), equivalent to 9.30pm to 10pm Brisbane time with the call to be placed by the Mother;
iii.On this child’s birthday, between 2.30pm to 3.00pm ([Country B] time), equivalent to 9.30pm to 10pm Brisbane time with the call to be placed by the Father;
iv.On Father’s Day, between 12pm to 1pm ([Country B] time), equivalent to 9.30pm to 10pm Brisbane time with the call to be placed by the father;
v.On Christmas Day, between 10am to 11am ([Country B] time), equivalent to 4pm to 5pm Brisbane time with the call to be placed by the Father;
vi.At all other times reasonably requested by the child; and
vii.Such further and other times as agreed between the parties;
b.In even years:
i.For 3 weeks during the child’s December/January school holidays, to include Christmas Day as follows:
1.Such time can take place in either [City C] or Brisbane, at the Father’s election no less than 90 day prior to the commencement of the school holiday period;
2.In the event the Father does not elect the location for time, time will take place in Brisbane:
3.Upon receiving the Father’s election as to where time will take place or in default of no election, the Mother will provide no less than 60 days’ notice of the dates of travel;
ii.For 3 weeks during the child’s June/July school holidays in Brisbane, with the Mother to provide no less than 60 day’s notice of the dates of travel;
c. In odd years;
i.For 2 weeks during the child’s March/April school holidays as follows;
1.Such time can take place in either [City C] or Brisbane, at the Father’s election no less than 90 days prior to the commencement of the school holiday period;
2.In the event the Father does not elect the location for time, time will take place in Brisbane;
3.Upon receiving the Father’s election as to where time will take place or in default of no election, the Mother will provide no less than 60 days’ notice of the dates of travel;
ii.For 4 weeks during the child’s June/July school holidays in Brisbane, with the Mother to provide no less than 60 days’ notice of the dates of travel;
d.At such other and further times as agreed between the parties in writing.
10.For the purpose of changeover, unless otherwise agreed in writing between the parties;
a.the Father will collect the child from Brisbane International Airport at the commencement of his time and deliver the child to Brisbane International Airport no less than 3 hours’ prior to her flight departure time, unless otherwise agreed between the parties in writing, with the Mother to advise the Father who will be collecting the child at Brisbane International Airport or if she will be travelling as an unaccompanied minor no less than 48 hours prior to changeover.
b.If time is taking place in Dubai, the Father will collect the child from [City C] International Airport at the commencement of his time and deliver the child to [City C] International Airport no less than 3 hours’ prior to her flight departure time, unless otherwise agreed between the parties in writing, with the Mother to advise the Father who will be collecting the child at [City C] International Airport or if she will be travelling as an unaccompanied minor no less than 48 hours prior to changeover.
11.The Mother is responsible for the cost of the child’s flights between [Country B] and Brisbane, and any accompanying adult flights.
12.If time takes place in [City C], the Mother is responsible for the cost of the Father’s economy class return flights between Brisbane and [City C], and the Father is responsible for all accommodation costs and travel costs in [City C].
13.During the child’s time with the Father, the child communicate with the Mother by Skype or such other platform as agreed between the parties in writing:
a.Every 5th night between 4pm and 5pm Brisbane time, with the call to be placed by the Father;
b.On the child’s birthday, between 4pm and 5pm Brisbane time, with the call to be placed by the Mother;
c.On Christmas Day, between 4pm and 5pm Brisbane time, with the call to be placed by the Mother.”
It was readily apparent that those proposals were well thought out and were the product of deep consideration by the mother and her legal representatives. They expressly incorporated the inclusion of the father, for example, before the exercise of sole parental responsibility by the mother. They also incorporated the father’s time with the child while the child was in Country B.
The issue raised by s 60CC(2)(a) for my consideration is whether the mother’s proposal as set out immediately above adequately addressed the whole of the separate matters raised by s 60CC(2)(a).
Section 60CC(2)(b) requires me to consider each arrangement’s likelihood of promoting the safety of the child and the mother. The word “safety” includes safety from being subjected to or exposed to (a defined term) family violence (another defined term), abuse (another defined term) neglect or other harm.
The mother gave evidence that the husband physically beat her. A photograph of her immediately after that physical act was put in evidence. The husband denied that he committed family violence. He also denied that he took the photograph depicting the wife in a state that she appeared to have been beaten.
The wife’s version of family violence was recorded at paragraph 45 of her affidavit in which she set out details of six episodes of family violence, as that expression is defined in s 4AB of the Family Law Act. They spanned the period from February 2017 to December 2021 and are narrated below. Evidence of a physical assault was given by the wife in paragraph 45(b) of her 16 October 2024 affidavit. She deposed to the following –
“In [early] 2017, I received a call from a woman who worked with [Mr Gronchi] who admitted to having an affair with him. I told [Mr Gronchi] our relationship was over and asked him to move out. That night, [Mr Gronchi] hit my face with a closed fist. My head hit the wall behind me in the main bedroom. I was 8 months pregnant at the time, and when I fell to the ground, the weight of my stomach pushed on my bladder causing me to urinate on the floor, where I sat crying. [Mr Gronchi] laughed, stood over me and took a photo and video recording of me in distress. Annexed and marked “[MT]-5” is one of the photos taken by [Mr Gronchi].”
She exhibited a photograph of her which she said was taken immediately after the father struck the mother. The electronic version of that exhibit was displayed on screen in court. It revealed significant redness near the mother’s mouth. The mother deposed to the photograph having been taken by the father. The depiction in the photograph is of the mother very close to the photographer. She deposed to the assault taking place in the main bedroom. The mother is depicted as being naked with aspects of the photograph redacted.
No suggestion was made by the mother during the trial that the photograph was other than genuine. The father said it was photo-shopped. It depicted the mother in a state of significant distress, and seemingly injured. In paragraph 4(b) of his affidavit made 23 October 2024, the father denied ever hitting or assaulting the mother and he denied taking any photographs of the mother. He maintained that denial in his cross-examination. The depiction in the photograph of the mother is very close. It is difficult to see how the photograph could have been taken by anyone other than a person very proximate to the mother immediately after the mother sustained the injury described by her in paragraph 45(b) of her affidavit. Put differently, on the father’s hypothesis of denying taking the photograph, precisely how the photograph came into existence at all went unexplained. The mother did not take the photograph, at least not using her hands, as both of her hands are depicted in the photograph draped in her lap.
It became important in this case to make a finding on the mother’s case about whether family violence was committed by the father in early 2017.
The relevant evidentiary standard to be applied is the civil standard, namely, the balance of probabilities. In applying that evidentiary standard, it was necessary for me to be persuaded that it was more probable than not that the version of the incident as given by the mother occurred as the mother said and that I preferred her version over the denial given by the father. For a recent illustration of the application of principle of the evidentiary rule of balance of probabilities, the decision of Lee J in Lehrmann v Network Ten Pty Limited (Trial Judgment)[9] is instructive.
[9] [2024] FCA 369.
Relevant in any assessment of conflicting evidence are well known indicia. They include but are not limited to the following –
(a)the detail of the version of events as given by each witness about the relevant episode;
(b)whether corroborative evidence exists supportive of one version or the other;
(c)the internal consistency of the competing versions of events; and
(d)the likelihood of the event having occurred in the manner asserted by each party.
The father’s denial of the occurrence of the event is to be contrasted with the considerable detail given by the mother of the event. She deposed to being pregnant at the time. According to the mother, on an unspecified date in early 2017 she received a call (I infer, a telephone call) from a woman who worked with the father during which conversation the woman who called the mother admitted to having an affair with the father. The mother deposed to then informing the father that the relationship between the mother and father was at an end and that the father was required to leave their place of residence.
That evidence set in context the events that followed.
The mother deposed to the father striking her face with a closed fist. She said the striking to the mother’s face occurred “that night”, suggesting that the conversation between the mother and the female caller and the discussion between the mother and father during which the mother required the father to leave took place earlier in the same day. No times for either anterior event were given, however.
The mother deposed to hitting her head against a wall in the main bedroom in consequence of the father striking her. She deposed to falling to the ground which I infer[10] was causally linked to the father striking her. Upon falling to the ground, the mother deposed to wetting herself as she sat crying. She deposed to the father laughing at her, standing over her and that he took a photograph of her in her distressed state. The photograph (exhibit MT-5 to her affidavit) was one of the photographs taken by the father.
[10] Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155, Holloway v McFeeters (1956) 94 CLR 470.
That narrative given by the mother was logical, well ordered and detailed. The photograph depicted the mother immediately following the father striking her. The fact of there being a photograph at all, taken from the angle it was taken, depicting the mother in a state of distress is consistent with the mother’s version of events. So far as the likelihood of the events occurring in the manner asserted by the mother was concerned, it seemed to me that there was a high likelihood of that. The father had just been told to leave the home hitherto occupied by the mother and father. The mother had told the father that their the relationship was at an end. The mother had been contacted by a woman who told of that woman’s affair with the father. That was the factual context of the alleged assault. The mother gave evidence that the father struck her to the face. The photograph depicted redness to the mother’s face, consistent with the version given by the mother that the father stuck the mother to her face.
Against that stood the father’s denial. It was a blanket denial of the whole of the contents of paragraph 45(b) of the mother’s affidavit. Yet that paragraph contained a number of allegations, and in other evidence he admitted at least one, namely, having an affair with a work colleague. He denied striking the mother. This was not a criminal trial where proof beyond reasonable doubt was required of the assault. In this civil case, I needed persuasion on the balance of probabilities that the assault occurred as alleged. I am persuaded on the balance of probabilities that the father’s denial of the assault was false. It is improbable that the photograph (exhibit MT-5) was taken by anyone other than the father. The photograph depicts redness to the face of the mother, which in the absence of any other explanation, is consistent with a blow having been rendered to the mother’s face. The mother said the father struck her. No other evidence existed that anyone else was present capable of physically contacting the mother. The mother is most unlikely to have injured herself.
I find on the balance of probabilities that the father assaulted the mother on a date in early 2017 causing her to strike her head on a wall then to fall. I also find on the balance of probabilities that the father thereafter photographed the mother in a distressed state. I further find that the father’s denial of striking the mother on that occasion is false with the consequence that his denial should be rejected.
In paragraph 45(c) the mother deposed to an incident in early 2017 during which, according to the mother, the father stole her car and her belongings in the car. The father admitted to taking the mother’s car yet he said he “swapped” her car for his and he deposed to the swap being with the mother’s consent.
In his cross-examination, the father gave evidence that he suffered from a poor memory.[11] However, he was not cross-examined about the episode in early 2017. He was cross-examined about the event to which the mother deposed at paragraph 45(d) of her 16 October 2024 affidavit that involved the father allegedly throwing the mother’s mobile telephone at a wall.[12] She deposed to him attempting to forcibly take the child from the mother’s arms while she breastfed the child. The mother deposed to the father being ordered in early 2017 to be of good behaviour for the period between early 2017 until early 2019 pursuant to the terms of an order made by the Magistrates Court at Brisbane under the provisions of s 37 of the Queensland Domestic and Family Violence Protection Act 2012. That order was among the papers in the court book which became an agreed exhibit.
[11] T 53 and T 63.
[12] T 92, which incident he admitted having occurred resulting in police attending.
In view of the orders made by the court on 4 April 2017, I am persuaded that consent orders were made without admission that the father was to be of good behaviour for a period of two years until April 2019.
The mother deposed to an episode in or around early 2020 when the father pushed the mother into a wall. He was not cross-examined on the episode. The mother gave evidence that the father applied for a protection order against the mother in late 2021 resulting in the two giving undertakings to the court not to commit family violence. Those undertakings expired in mid‑2024.
The event depicted in the photograph (exhibit MT-5) was an assault of considerable force and violence. The mother was injured by the father’s physical beating. While a little in the past it revealed to me the hostility the father felt for the mother and the lengths to which he would go to harm her. I was not persuaded that the father will never commit family violence against the mother in the future. While it cannot be said with certainty that the father is likely to assault the child, the safety of the mother must be promoted by rendering her free from actual or threatened violence against her by the father. Her safety is best promoted by being removed from the presence of the father. To that end, her proposed relocation to Country B promotes her safety as it removes the physical interaction between the mother and father.
Prior to the commencement of the amendments to s 60CC(2) of the Family Law Act, family consultant Ms M produced a family report on 26 September 2023. On the specific issue of family violence, Ms M reported that during her interviews with the mother and father each reported many examples of family violence consisting of behaviour by which one was denigrated resulting in police intervention. She reported that both parents have no concerns about family violence and that they did not feel unsafe or have safety concerns for the child. The family consultant expressed the view that no current indicators existed of family violence. The history of it may impact current communications between the mother and father, however.
Ms M did not give viva voce evidence. The family consultant, Dr D was cross-examined on her report made 20 August 2024. Dr D placed little reliance upon historical episodes of family violence, instead reciting in over six paragraphs of her report her construction of information obtained by subpoena, what she called “collateral information” and other issues that she fleetingly recorded without expressing a view as to their relevance or significance. For example, in a single sentence in paragraph 76 of her report she mentioned the assault in early 2017 which I have addressed in detail above yet this witness’s version of the event was as follows –
“In [early] 2017, (the mother) alleged that (the father) hit her face with his fist, providing a photo of the reported injuries.”
That seemed to slough off entirely or to relegate to marginal what I regarded as a significant event in this litigation, albeit some years in the past.
Dr D recorded the father’s admitting to breaking the mother’s telephone during an argument. She also recorded the father’s failure to reveal an intervention order against the father taken out by the father’s former business partner. Dr D reported that she regarded the mother as presenting a low parental risk whereas the father presented a low to moderate parental risk.
Dr D’s opinion about the mother’s proposal to relocate to Country B incorporated her conception of the benefits to the child, the mother and the father as well as the downsides to the child, the mother and the father yet she made no firm recommendation. For example, Dr D reported on the obvious consequence of any relocation by the mother and child to Country B being a reduction in the father’s time with the child, even though she said any such relocation primarily would benefit the mother financially and professionally. Insofar as the child was concerned, Dr D reported that the proposed relocation could contribute to a better quality of life for the child even though any such relocation may affect the child’s existing relationships and educational stability. In the upshot, Dr D expressed her overall recommendations as being premised upon whether a relocation was refused. Dr D offered the opinion that both parents should reside proximate to one another.
That seemed to me to wholly miss the point of the mother’s proposal.
Perfectly appropriately and with commendable prescience, Mr Marchetti of counsel for the ICL cross-examined Dr D with an invitation to her to change her views if informed that the mother and father distrust one another, such distrust being unlikely to change. Dr D gave evidence that her view did change, especially how that the mother’s proposal for relocation had firmed up considerably about schools for the child, support for the child and for the implementation of those plans. Dr D gave evidence to the effect that the proposal for the father to have two periods of three weeks plus telephone or video contact promotes the father’s relationship with the child. She said she did not endorse an alternative week regime as advanced by the father. Dr D focused on the father’s failure to move closer to the child despite telling Dr D up to 18 months earlier that he would. She said that caused her to question whether the father understand and supports the child’s ASD diagnoses. Dr D gave evidence about relocation generally. With the greater detail the mother had provided, Dr D said she was more confident that the child’s needs would be met if the mother relocated.[13]
[13] T 172.
It seemed to me to be a fair distillation of Dr D’s evidence that having factored in the parental mistrust as well as evidence of historic episodes of family violence, together with the depth and sophistication of the mother’s proposals for the education, care and support for the child in the place of relocation, Dr D supported the mother’s proposal to relocate.
Independently of Dr D’s evidence, it seemed to me to be significant that the father’s proposal was predicated on his relocating to Melbourne, something he had spoken about for very many months but he had done nothing to give effect to it. He still lives in Brisbane.
In my judgment, the provisions of s 60CC(2)(a) favour the mother’s relocation proposal. I take the view that her schooling proposal is detailed, sophisticated and child focused. Against that, the child’s educational prospects at N School have run their course, requiring the child to be schooled elsewhere in any event. No challenge was made to that. The mother has posited several schools in Country B which will suit the child. She proposed to pay for the child’s schooling and for a governess to assist. The father’s opposition to the mother’s proposal is premised on the reduction of his time with the child. Yet he has failed to move closer to the child for a long time. To my mind, it ill-behoves him to attempt to thwart the mother’s proposal by asserting a desire to be proximate to the child which he says will be denied if she moves overseas yet even when in Australia the father took no steps to move closer to the child.
It must not be overlooked that the relationship between the mother and father is saturated with mistrust. It is also peppered with episodes of family violence. Whatever safety concerns exist for the mother or the child are ameliorated by the proposed relocation.
For the purposes of s 60CC(2)(b) of the Family Law Act, the views expressed by the child were in favour of the mother’s proposed relocation. The father did not raise any particular issue in respect of this relocation in his case outline, opening or final address. The mother advanced a submission in respect of s 60CC(2)(b) that incorporated a recognition that the child is young so her expressed view carries little weight. However, the mother submitted that the child’s autism and ADHD diagnosis meant that any views expressed by the child were likely to be influenced by the child’s need for routine and predictability. It goes without saying that the child’s views need to be tempered by each parent’s willingness to meet the child’s developmental needs. Stability of routine is a repeat theme of the report writer. The mother’s proposal provides that, in my view. Dr D was ultimately supportive of the relocation proposed. The ICL supported the proposed relocation.
Section 60CC(2)(c) requires me to specifically consider the developmental, psychological, emotional and cultural needs of the child.
The child is seven. She has been diagnosed with ADHD, autism, she had undergone testing for other medical conditions and she has been prescribed medication.
The child has a complex array of needs. The mother has been assiduous in meeting those needs be ensuring punctual, timely and appropriate treatment by all relevant medical practitioners. In Country B, the mother has exhaustively undertaken investigations into appropriately qualified medical and allied health professionals.
The child was born and raised in Australia. She had no particular cultural needs, as the ICL submitted.
The child’s developmental needs are ever present. The mother has conscientiously addressed those. The same cannot be said for the father.
Similarly, the child’s psychological needs have historically been addressed by the mother. The father has exhibited reluctance in acknowledging the child’s psychological circumstances, a matter specifically mentioned by Dr D. The father’s position on this issue concerned me because he was unlikely to recognise or appropriately address psychological issues in the child if he was resistant to the notion that the child had any.
Emotional needs of the child have been well met thus far by the mother. Her relocation proposal embeds in it professional care that will address and meet the child’s psychological needs including the child’s past disruptive behaviour in school. So will the proposed governess.
Subsection 60CC(2)(d) requires me to consider the capacity of each parent having or proposing to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs.
The father has not availed himself of time with the child. He has been talking about moving to Melbourne for more than a year yet has done nothing to give effect to that concept. In the process he has lost the opportunity of spending time with the child. Having heard his evidence it is apparent that the father and the child enjoy a favourable relationship with one another. However, his resistance in accepting the child’s diagnosis with ADHD and autism indicated to me that the father lacked the capacity to receive information of a medical nature, to absorb and process that information and to modify his own behaviour and personal wishes to accommodate and adequately react to the child’s circumstances. Put differently, the father’s resistance to the child’s diagnosis with autism and ADHD tod me that he was impaired in his capacity to provide for the child’s developmental, psychological and emotional needs. That was for the simple reason that the father cannot and will not fully accept that his child has autism and ADHD. He can scarcely provide for the child’s needs that may arise in consequence of those conditions if he is unwilling to accept that the child has those conditions.
The mother relied in her case outline on a collection of factors she said bore upon the matters canvassed in s 60CC(2)(d). Those included the following –
(a)when the child was young, she cried often leading to the father blaming the mother;
(b)in 2018 the father stayed at home periodically but irregularly and merely assisted with the child’s care;
(c)the father was busily engaged throughout 2019 in the preparation of the defence of his criminal trial;
(d)for nearly two years the father was imprisoned;
(e)in the period January 2020 to September 2022 the father spent no face-to-face time with the child;
(f)the father has not undertaken any training about neurodivergent children and does not attend medical appointments;
(g)the father’s relationship with the child is centred around fun activities with minimal focus on the child’s developmental issues;
(h)the mother has the financial capacity to meet the child’s developmental, psychological and emotional needs whereas the father’s modest income will not permit him to do so; and
(i)the mother is financially able to pay medical outgoings in Country B.
The ICL submitted that the ongoing disputation between the child’s parents impedes the child’s development.
The ICL is correct in that submission.
The mother is correct in submitting that the father provides for the child’s fun times yet he has historically been absent in the child’s life for sustained periods, he has chosen not to educate himself on the child’s psychological issues and he has not been immersed in the child’s medical treatment.
Section 60CC(2)(e) requires consideration of the benefit to the child of her having a relationship with the child’s parents. The mother’s relocation proposal contemplates the child being in the mother’s care for most of the time.
The child will have a relationship with the father albeit face-to-face when the child visits Brisbane and electronically when the child is in [Country B]. In paragraph 20 of her case outline, the mother submitted as follows –
“If the Mother is permitted to relocate to [Country B], she proposes that [X] communicate with the Father by videocall at least twice per week and otherwise in accordance with her wishes. She also proposes that [X] spend significant time with the Father during school holiday periods, as follows:
a.[X] would travel to Brisbane each alternate year to spend time with the Father on or around her birthday in one year and for Christmas the other year.
b.In odd years, [X] would spend time with the Father for three weeks during the June/August school holidays and a further three weeks during the December – January holidays, including Christmas.
c.In even years, [X] would spend time with the Father for two weeks in the March – April school holidays, which will allow her to spend time with the Father for her birthday, and four weeks during the June/August holidays.”
Further the family report writer cautioned against increasing time between the child and the father –
“The Family Reports cautions against an increase in the time [X] spends with the Father, given the Father’s attitude towards [X]’s neurodivergent needs. For example:
a.The father’s dismissal of her needs as exclusionary tactics contributes to a cycle of mistrust and conflict, making it difficult for them to establish a cooperative coparenting relationship. If this continues, should time between her and the father increase, [X] may experience inconsistencies in her care and support, which could further complicate her behavioural and emotional regulation, and negatively affect her overall well-being” (at [168]).
b.“…the father’s current approach may exacerbate existing conflicts and potentially disrupt [X]’s routine, which is crucial given her ASD and ADHD…it is essential that any increase in time is accompanied by a full commitment to [X]’s well-being and effective parenting practices. This would include the father following all professional recommendations” (at [180]).”
The ICL put to Dr D the time the father would have.
In my view the father will retain a relationship with the child even if the relocation is ordered.
Section 60CC(2)(a) required me to consider anything else of relevance to the particular circumstances of the child.
The mother relied on the benefits to the child in relocating to Country B because of the enhancement of the educational and cultural experience and that the reduction of parental conflict could create a more stable and less stressful home environment for the child.
The mother also relied on the father’s state of indebtedness at the date of incarceration in the sum of $1,200,000 which has increased to $1,500,000. She said the father does not pay any financial contribution to the child’s expenses.
It is relevant to point out that the father gave evidence of the manner in which he priorities his disposable income. He gave evidence he carries on business as a contractor[14] for which he derives an income akin to fees rather than wages or a salary. He point blank refused to divulge the name and identity of the person or entity with whom he enjoys a contractual relationship for the provision of services.[15] The father refused to tell the court the identity of the other contracting party, despite several requests and the father produced a redacted version of the retainer between him and the party retaining him. The father deposed to paying for his current accommodation arrangements in Brisbane on a weekly basis pursuant to a week-to-week occupation of premises owned by his father.[16]
[14] T75, T 79.
[15] T 74.
[16] T 69.
The father deposed to being self-employed.[17] The father gave evidence that he requested redactions to be made to the retainer between him and his client.[18] He said he made that request because the retainer contained, so he asserted, confidential information. He was pressed about why he was so reluctant for details to be revealed and required redaction. The following exchange took place –
“Why is it that you’re so sensitive about the identity of the other party?‑‑‑Because [Ms Toyoda] has made contact with previous employees before to sabotage my employment.
So you’re giving disclosure in this case with an eye to whether the mother might do something with the information. Is that right?‑‑‑That’s correct.
Has that been your approach throughout?‑‑‑Yes, it has.
Okay. Thank you?‑‑‑Thank you.”
[17] T 75.
[18] T 103.
To my mind, that reflected the father’s view of the distrust the father had for the mother.
The father deposed in cross-examination to earning $40,000 a year.
The father gave evidence that he preferred to pay amounts that gave him tax deductions prior to paying sums due by way of child support.[19]
[19] T 114.
He said he pays rent of about $30,000 a year.[20]
[20] T 113.
The father gave what I regarded as peculiar evidence about the adequacy of the schools the mother investigated in Country B. He said that F School was not “fully catering to (the child’s) ASD.[21] When pressed, he admitted that his criticism that F School did not fully cater for the child’s ASD was due to there being no information on the school’s website on the issue. The following exchange emerged –
“Yes. And what is it in particular that you say represents your conclusion that there is no support for [X]’s ‑ ‑ ‑?‑‑‑ASD. Because there’s no information on it.
‑ ‑ ‑ issues? Let’s keep it neutral?‑‑‑There’s no information on it.
Well, that doesn’t mean that there’s no support; it just means you haven’t found the answer to the questions you’re looking for?‑‑‑That’s correct.
You conclude from that that there’s no support, do you?‑‑‑I conclude that I couldn’t – I couldn’t find anything on a support for ASD from [F School].
Well, that’s not what I asked you. And based on the fact that you can’t find certain information ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ you conclude that there’s no support; is that right?‑‑‑On the ASD? Yes.
That’s all I’m asking you about?‑‑‑Yes. Yes.
So let’s just make sure we understand one another. In respect of [F School], you take the view that it’s inadequate, and you say there’s no support for [X]’s issues because you can’t find information about it?‑‑‑That’s correct.”[22]
[21] T 117.
[22] T 117, T 118.
I regarded his answer on that issue as being peculiar for several reason. First, the father had expressed little interest in familiarising himself with the child’s neurodivergent issues since birth. Second, the father performed an internet search of the relevant grammar school and concluded that by reason of the webpage not specifically addressing neurodivergent issues, the school provided no support in the way of neurodivergent support. That did not follow. The school may well have provided detailed services of a neurodivergent nature yet it did not publish that on the internet. Put differently, the fact of the webpage being silent on point did not mean no services were provided. He said he did not bother contacting any school to make the enquiry.[23] He said he did not enquire whether the [Country B] school taught or communicated in the English language, the exchange unfolded in the following manner –
[23] T 119.
HIS HONOUR: Wait a second. I have to absorb what you’re saying here, [Mr Gronchi], and do the best I can to process the information you’re giving me, and I must say, I’m finding it pretty tricky at the moment. I’m trying to understand your basic – wait – your basic opposition to all the inquiries that you’ve made of the adequacy of the schools proposed, and at the moment, we’re focusing on [J School]?‑‑‑Yes.
You’ve said you regard it as being inadequate because of your concerns about cultural issues, yes?‑‑‑Yes, cultural ..... language.
And as evidence of that, you say it’s – your concern is for languages, yes?‑‑‑Yes.
Now, you just said to me a minute ago that you have researched that they speak English?‑‑‑Yes.
Now, no doubt that dispels your concern?‑‑‑With the teachers, yes. It says the teachers speak English.
Just a moment. I asked you not to qualify the question I’m putting to you. Does it not dispel your concerns to know that they speak English at that school?‑‑‑It’s not entirely, no.
Well, who’s to suggest that you need to be 100 per cent satisfied about all issues?‑‑‑No one.
Correct?‑‑‑That’s correct.
So why are you taking issue with the fact of English being spoken by some, but not all, of the people who attend that school?‑‑‑Why?
Yes, why?‑‑‑because there would be communication barriers.
But you don’t know for a fact whether the entirety of the school speaks in the English language, do you?‑‑‑No, I don’t.
You don’t know whether the majority of the people speak in the English language, do you?‑‑‑No, I don’t.
In fact, you know precious little about the method of communication in the English language?‑‑‑That’s correct.
But yet you say that [J School] is inadequate?‑‑‑Because there’s a possibility there’s still a barrier.
It’s a possibility that causes you concern; is that right?‑‑‑Yes, yes.[24]
[24] T 121.
The father said he needed proof positive as to 100% on those issues before he was willing to accept the situation.[25] That was set against a backdrop in which the father had concerned himself very little, if at all in the child’s neurodivergent issues. Why the father needed proof positive as to 100% on schooling, educational and language issues went unexplained. He then added that he was concerned that the child may not get along with the governess.[26]
[25] T 119.
[26] T 123.
It seemed to me that the father was attempting to create reasons (mostly unmaintainable) why the mother’s relocation proposal would not work.
In my view, the father did not approach the mother’s relocation application with the best interests of the child uppermost in mind. To the contrary – he was unwilling to favourably consider the mother’s relocation application.
WITNESS VERACITY
On matters where the evidence of the mother was inconsistent with the evidence on the same matter as was given by the father, it was necessary for me to make a factual finding of the persons whose evidence I preferred for being more likely to be correct.
As an overview, I am of the view that the father did not faithfully discharge his duty to tell the truth, the whole truth and nothing but the truth. That is a witness’s duty, according to the High Court in Kuhl v Zurich Financial Services Australia Ltd.[27]
[27] (2011) 243 CLR 361.
The father deposed to having a poor memory.
On several issues he only told so much of the evidence as he considered to be relevant and therefore he did not tell the whole truth on the relevant issue. An illustration was the manner in which the evidence unfolded of the father’s retainer with the contractor the identity of which he redacted. Counsel for the ICL specifically informed the father when cross-examining him that the father had refused to tell the whole truth.[28] In the end I asked the father the following question –
And on three occasions, you have deliberately said to me that you choose not to give the whole truth?‑‑‑That’s correct.[29]
[28] T 106, T 107.
[29] T108 L 14.
The father asserted that the mother was a prostitute yet despite making such a disgraceful allegation about his own child’s mother, he produced no evidence to support the allegation. The father’s asserted that the mother made fraudulent insurance claims.[30] He produced no evidence to support that assertion. The father denied ever posting an advertisement seeking casual sex[31] yet he denied being the author of emails of an email address that contained offers for casual sex.
[30] T 45.
[31] T 49.
He admitted two infidelities, as he said.[32] When questioned about sending a text message of a suggestive sexual nature about his looking for a woman, he gave evidence that he did not remember sending such a message yet he accepted that his inability to remember was not the same as denying that the event (relevantly, sending a text message) actually occurred. He then admitted sending a message in similar terms to a work colleague in 2017.
[32] T 50.
The father denied striking the mother. As has been set out above, I have rejected his denial on point.
As a matter of style when answering questions, the father frequently answered only so much of a question as he was willing to answer. I did not form the view that he was being forthright and frank in his evidence, nor truthful.
Conversely, I regulated the mother as being open, honest and frank when giving viva voce evidence. Her affidavit was exhaustive, detailed and accurate. On key issues I formed the view that the mother told the truth, the whole truth and nothing but the truth and thereby she discharged the duties imposed on her by force of the High Court’s decision in Kuhl v Zurich Financial Services Australia Ltd.[33] Her statements, whether verbal or written, were supported in large measure by documentary records. She made appropriate concessions.
[33] (2011) 243 CLR 361.
DISPOSITION OF THE RELOCATION APPLICATION
In my view the relocation application brought by the mother must succeed. It is in the child’s best interests.
The fact of the mother and child residing in the Country B means that the father’s time with the child will be curtailed to some extent. The proposal advanced by the father must be tailored to recognise that the father’s time will be mostly by electronic means otherwise than during visits by the child to Brisbane. Dr D has endorsed the time to be spent by the father with the child as postulated by the mother.
PARENTAL RESPONSBILITY
All parties agreed to orders that the mother is to have sole parental responsibility and be solely responsible for making major long term decisions for the child regarding health and education issues. All parties agreed to orders that the parents would otherwise have equal shared parental responsibility and be jointly responsible for decision making in relation to all major long term decisions for the child (change of name and decisions regarding religion).
All parties also agreed to orders that the mother will keep the father informed of any decision taken by her regarding the child with respect to health and educational issues relating to the child.
All parties agreed to orders that the mother will follow all reasonable medical and allied health professionals’ advice.
Paragraphs 14 to 21 of the mother’s proposed orders were irrelevant as the mother’s relocation application has been granted.
The orders proposed by the mother in paragraphs 22 and 23 of her further amended response (concerning restraints) should be made. The passport orders (paragraphs 24 to 29 of the mother’s amended response) are necessary and must be made. The orders for travel proposed in paragraphs 29 and 30 of the mother’s further amended response benefit the child and apply to both parents so they should be made. The orders concerning notifications embedded in paragraphs 31 to 35 of the mother’s further amended response are likewise appropriate and should be made.
The father’s proposals for orders were recorded in his amended initiating application sealed 3 October 2024. So far as parenting orders were concerned, the following were the orders he sought –
Parenting
8. That all previous Orders and Parenting Plans be discharged.
9.That the following parenting orders shall apply for the child, [X] (DOB: […] 2017) (“the child”) unless the Mother and Father agree in writing to alter all or some of them either temporarily or permanently.
10.That until further order each party, [MS TOYODA] (DOB: […] 1985) AND [MR GRONCHI] (DOB: […] 1983) their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child [X] (DOB: […] 2017) from the Commonwealth of Australia for a period of eight (8) years; AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's/children's name/names on the Watchlist for the said period, or until the Court orders its removal on the Watchlist for the said period, or until the Court orders its removal.
Parental Responsibility
11.That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for decision making in relation to the major long term issues of the child.
12.That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision. They are not, however, required to consult with each other about the daily care of the child. The types of decisions about which parents are required to inform and consult include but are not limited to changing the name of the child; relocating the residence of the child so that existing parenting arrangement become impracticable; changing the school of the child; a significant medical intervention for the child.
13.That the parties do all acts and things and sign all documents as may be necessary to the give effect to the child’s name being changed legally from [X] to [X] at the cost to the father, and the child shall thereafter be known as [X].
Living Arrangements for the Child
14. The child shall live with the Mother.
15.The child shall spend time with the Father at all times as may be agreed, and failing any agreement, as follows:-
(a)Each alternate weekend from after school Friday (or 3:00pm if a non‑school day) until before school Monday (or before school Tuesday if the Monday is a public holiday) with such time to take place in Melbourne; and
(b)That for the following Melbourne public holidays, the child spend the long weekend with the Father, with such time to occur in Brisbane:-
(i)The Melbourne Labour Day weekend (ordinarily occurring in March); and
(ii) The Kings Birthday weekend (ordinarily occurring in June).
(a)this Order shall be suspended for the weekends during any school holiday period (which shall be deemed to include the first weekend after the school term ends and the weekend before school recommences) and to recommence on the weekend after the school term recommences determined as if the sequence had not been interrupted.
16.In the event the Father and Mother each live within 30km of the child’s school, then the child shall spend time with the Father each alternate week from after school Friday until before school the following Friday.
17. In the event that the Mother is unable to care for the child overnight during the school-term or holidays, the Father shall be given the first opportunity to care for the child.
18.In the event the Mother relocates interstate or overseas, the child shall live with the Father and the Father shall have sole parental responsibility for decision making in relation to the major long term issues of the child.
School Holidays
19. That the child shall live with her parents for school holiday periods as follows:
(a)being the first half of the Autumn, Winter, Spring and Summer school holidays in even numbered years with the Father and in odd numbered years with the Mother; and
(b)the second half of the Autumn, Winter, Spring and Summer school holidays in odd numbered years with the Father and in even numbered years with the Mother;
(c)for the purpose of these Orders, the school holiday time shall commence:
(i)when a parent’s time falls in the first half of the holidays (except for the Summer school holiday period) from 9:00am on the day immediately after the school term concludes and conclude at 5:00pm on the day calculated to be half of the holidays;
(ii)when a parent’s time falls in the second half of the holidays (except for the Summer school holiday period) from 5:00pm on the day calculated to represent half of the holidays when contact shall end at 5:00pm on the day immediately prior to the school term recommencing;
(iii)school holidays shall be deemed to commence at 9:00am the day immediately after the close of school and conclude at 5:00pm on the day immediately prior to the child returning to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the parent with whom the child is spending the second half of the school holiday period shall retain the additional night.
(iv)Notwithstanding the above Orders, for the Summer (Christmas) school holiday period, the first half of the school holiday period shall be deemed to commence at 9:00am on the day immediately following the end of the school term and conclude at 5:00pm on 29 December; and the second half of the Summer (Christmas) school holiday period shall commence at 5:00pm on 29 December and conclude at 5:00pm the day before the school term re-commences.
20.That notwithstanding any previous Orders, the children shall spend time with their parents on special occasions as follows:
(a)for Christmas Day, in even numbered years with the Father and in odd numbered years with the Mother, on even numbered years, the child shall spend time with the Mother from 2.00pm Christmas day and return 5.00pm Boxing day. On odd numbered years, the child shall spend time with the Father from 2.00pm Christmas day and return 5.00pm Boxing day..
(b)The parent with whom the child is spending time with on the child’s birthday shall arrange for the child to Facetime, Skype or telephone the other parent on the child’s birthday between 5:00pm and 6:00pm;
(c)with the Father on the Father’s Day weekend, from 9:00am Saturday until 5:00pm Sunday with such time to occur in Melbourne;
(d)with the Mother on the Mother’s Day weekend from 9:00am Saturday until 5:00pm Sunday.
21.The child shall be permitted to communicate with their parents on the telephone or by Facetime or Skype at such times as a child reasonably requests and the parent with whom the child is living with at that time shall facilitate the call.
22.The Father is at liberty to call the child between 5:00pm and 6:00pm by telephone, Facetime or Skype on Sunday and 7:00pm and 7:30pm Wednesday when the child is not spending time with him.
23.The Mother is at liberty, during school holidays or long weekends when the child is spending time with the Father in Queensland, to call the child between 5:00pm and 6:00pm by telephone, Facetime or Skype on Wednesday and Sunday when the child is not spending time with her.
24. In relation to the above communication each parent shall:
(a)ensure that the child is available to receive the telephone, Facetime or Skype call;
(b)arrange for the child to telephone the other parent as soon as practicable and within twenty-four (24) hours if, for any unforeseen circumstance, the child misses the telephone, Facetime or Skype call from that parent;
(c) ensure that the child has privacy during the conversation.
Collection and Delivery
25.That except as otherwise ordered, the changeover point for the transition for the child between the households shall occur as follows:-
(a)When the child’s time occurs in Melbourne, the Father shall collect the child from the Mother in the foyer of the [Suburb P] McDonalds ([O Street, Suburb P] VIC) unless the Father is residing in Melbourne then in such circumstances the changeover point is to the Child’s school, and the parties shall remain at least 1.5 metres apart at all times.
(b) When the child’s time occurs in Queensland:-
(i)The Mother shall meet the cost of the child’s travel to Queensland, unless otherwise specified in these Orders or agreed in writing between the parties;
(ii)The Mother shall ensure the child is delivered to the Melbourne Airport (Tullamarine) at least one (1) hour prior to her boarding time and ensure the child boards the plane at the commencement of the child’s time with the Father;
(iii)The Father shall collect the child from the arrival Gate and ensure he arrives at least thirty minutes prior to the scheduled landing time at the Brisbane Airport at the commencement of the child’s time with him;
(iv)The Father shall ensure the child is delivered to the Brisbane Airport at least one (1) hour prior to her boarding time and ensure the child boards the plane at the conclusion of the child’s time with the Father;
(v)The Mother shall collect the child from the arrival Gate and ensure she arrives at least thirty minutes prior to the scheduled landing time at the Melbourne Airport (Tullamarine) at the conclusion of the child’s time with the Father.
Travel Out of The Country
26.That when the child is spending time with a parent during school holidays, that parent shall be at liberty, during their school holiday time, to take the child overseas, provided the travel is to a Hague Convention Country, that the Country does not hold a level 3 or higher travel warning with the Australian smartraveller, for the purposes of a holiday only and in relation to same:
(a)the travelling parent shall provide the other parent with a copy of their itinerary for the trip including but not limited to departure and return times and dates; a contact telephone number for the travelling parent and the children and the address at which they will predominantly be based (provided that they will not be required to provide details of every address at which the children will stay) at least 28 days prior to scheduled departure;
(b)upon receipt of same the other parent shall forthwith release to the travelling parent the passports for the child;
(c)the travelling parent shall then provide to the other parent a copy of the return air tickets for the child;
(d)during the trip the travelling parent shall arrange for the child to telephone, Facetime or Skype call the other parent on at least two (2) occasions in each week;
27.At all other times the passports of the child shall be held by the Father and shall be released to a parent only upon satisfaction of the custodian of the passports that both parents have agreed to their release to that parent or by order of a Court and the Father undertakes not to use the child’s passport for overseas travel unless the Mother has given genuine consent in writing to the Father proposed travel in accordance with the provisions of Order 22 above.
28.That each parent may, on one occasion per year, nominate a period of extended consecutive time (‘the Holiday Period’) for the purpose of overseas travel, with the following to apply;
(a)the travelling parent must provide the non-travelling parent with a minimum of sixty (60) days’ notice pursuant to Order 25 above;
(b)the Holiday period may be for the up to four (4) consecutive weeks in duration;
(c)the Holiday Period must commence within six (6) months of the date that notice is provided;
(d)the Holiday Period must not fall during a period which would conflict with the child’s time with each parent for special occasions pursuant to these Orders or Christmas day, unless agreed in writing between parties.
(e)that, unless otherwise agreed in writing between the parties, for the purpose of make-up time:
(i)the child will have make-up time with the non-travelling parent on the next occasion that the child spend time with them, for the equivalent amount of overnights that they would have had but for the Holiday Period, with the non-travelling parent’s time pursuant to Order 12 and 13 to be extended until the conclusion of that make-up time; and
(ii)in the event of a conflict between make-up time and order 24 of these orders, Order 25 shall prevail.
(f)In the event that both the Mother and father elect to take the same period of time, or an overlapping period of time as the Holiday Period, then;
(i)The parties will, in the first instance, use their best endeavours to reach an agreement by negotiation in relation their respective Holiday Period; and
(ii)In the event that they are unable to reach agreement, then if one of the parties nominated the same period (or part of this period) in the immediately preceding year, then the party who did not nominate this period (or part of this period) in the immediately preceding year will have priority and will be permitted to take the Holiday Period elected by them; and
(iii)In the event that neither party nominated the period (or part of this period) in the immediately preceding year, then the party who first provided notice to the other party will have priority and will be permitted to take the Nominated Holiday Period elected by them.
29.That for the purpose of Order 24 above, either parent is at liberty to opt out of the child spending make-up time with them upon the giving of notice in writing to the other parent no later than 7 days prior to the child’s scheduled return from overseas.
Exchange of Information
30.The parties shall use the AppClose Application in respect to all and any communications about all arrangements for the child and her welfare.
31. That the Mother and Father shall:
(a)keep the other parent informed at all times of their residential address and contact telephone number and to notify the other parent at least 7 days prior to relocating their residence beyond a 20 kilometre radius from where they currently reside;
(b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner to release the children’s medical information to the other parent.
32.That the parents authorise the schools or day care centres attended by the children to give each parent information about the children’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at that parent’s cost).
33.The Parties shall as soon as reasonably practical inform the other Parent of any non-urgent medical condition, health issue or illness or illness suffered by the Child whilst the child is in their care.
34.Each Party keeps the other informed as to any serious illness, accident, hospitalisation, or medical condition (other than minor childhood ailments) with respect to the Child while they are in that Parent’s care immediately via the AppClose Application and by telephone in the case of an emergency and keep the other informed of any medication to be taken by the Child as soon as practicable and within twenty-four (24) hours.
35.Each Party shall keep the other informed in writing via the AppClose Application or such other communication application as may be agreed by the parties of:
(a)The details of any medical professional or qualified person that they consult in relation to the Child; and
(b)Any occasion when the Child is to be taken to a new medical practitioner
36. That during the time the children are with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b) speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
Other
37. The parents, their agents and/or servants be and are hereby restrained from:
(a)Denigrating, belittling, abusing, intimidating, harassing and/or rebuking the other parent or members of their respective families to and/or within the hearing of the child;
(b)Discussing these proceedings or any documents prepared in relation to these proceedings save for explaining the spend time provisions of these orders, to and/or within the hearing of the child; and
(c)Knowingly permitting the child having access to any document prepared in relation to these proceedings or any associated proceedings.
38.Pursuant to ss68Q and 68P of the Family Law Act 1975 (Cth) the Court declares that, to the extent that any of these orders conflict with an extant Family Violence Intervention Order, then the Family Violence Intervention Order is invalid but only to the extent of the inconsistency.
Dispute Resolution
39.That in the event that there is a dispute about the children or about the interpretation, implementation or enforcement of these orders, the parents before making any further application to a Court shall:
(a)either attend counselling or mediation with an organisation recognised under the Family Law Act1975 (as amended) or by the Commonwealth Attorney- General; or
(b)participate in family dispute resolution with a Family Relationship Centre or a person authorised under s.10G of the Family Law Act 1975 (as amended).
Costs
40. That the Mother pay the Father’s costs of and incidental to these proceedings.
41. Such other Order as the Court deems meet.
It is necessary to go to go each paragraph of his proposal to understand and address the father’s suggestions.
Paragraph 9 is to otiose as is paragraph 10 having regard to my conclusions about the mother’s international relocation. I refuse to make orders in terms of those paraphrase 8, 9 and 10 of the father’s amended initiating application.
Paragraph 11 involves the father’s suggestion for orders to be made that the mother and father have equal shared parental responsibility for decision making in relation to major long term issues in respect of the child. The parties’ agreement on parental responsibility, canvassed above, addresses this issue rendering paragraphs 11, 12 and 13 of the father’s proposal overtaken by agreement.
Paragraph 14 is agreed. The child will live with the mother.
The father’s spend time proposals between paragraphs 15 and 18 were propounded on his living in Melbourne and the child remaining in Melbourne. The father still does not live in Melbourne and the child will soon live in Country B. The proposals in paragraphs 15 to 18 are not suitable because they are not in the child’s best interests. I refuse to make them.
The proposals advanced by the father for school holidays are likewise predicated on the father and child being in Australia. While the father will, the child will not. I prefer the orders proposed by the mother, as supported by Dr D for school holiday time. I refuse to make the orders proposed by the father in paragraphs 19 to 24 of his proposed orders and in lieu thereof I make the orders advanced by the mother.
Collection arrangements proposed by the father in paragraph 25 of his orders are not relevant as the child will live in the middle east.
Paragraph 26 has been overtaken by events. Orders in those terms are not presently applicable in the form proposed by the father.
Passport orders as proposed by the mother have been made. Accordingly, the form of orders for passports will be made as put forward by the mother and not in the manner recorded in paragraph 27 of the father’s proposal.
Paragraphs 28 and 29 of the father’s proposal has been overtaken by the mother’s proposal which will apply in line of the father’s proposal.
The information exchange proposed by the mother is preferable to the version proposed by the father in paragraphs 30 to 36 of the father’s proposal.
The restraints proposed by the mother apply so I decline to make the orders the father proposes in paragraph 37 and 38 of his proposal. I refuse to make the order proposed in paragraph 39 of his suggested orders. I dismiss paragraph 40.
I make an order discharging the ICL.
I certify that the preceding one hundred and sixty-four (164) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 21 November 2024
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