Hill & Weston
[2021] FedCFamC1F 174
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Hill & Weston [2021] FedCFamC1F 174
File number(s): SYC 1939 of 2016 Judgment of: HARPER J Date of judgment: 4 November 2021 Catchwords: FAMILY LAW – PARENTING – Final parenting orders – Relocation – Child aged seven years – Where the mother unilaterally relocated with the child to Sydney five years ago – Father seeks orders for the child to live in Melbourne – Where the father has re-married – Where the child now has step-siblings – Where the parents have a positive co-parenting relationship – Where Covid-19 has limited the time the child spends with the father for eighteen months – Child has maintained a meaningful relationship with the father – No order for relocation – Order made by consent for equal shared responsibility – Substantial and significant time with the father – Discussion of father’s involvement in the child’s daily routine under s 65DAA(3)(b)(i) – Costs of travel where both parties of modest means – Consideration of age at which the child should commence flying as an unaccompanied minor – Question of overseas travel where mother comes from the United Kingdom. Legislation: Evidence Act 1995 (Cth) s 144
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65D(1), 65DAA, 65DAB and 117(4)
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Adamson & Adamson (2014) 51 Fam LR 626; (2014) FLC 93–622; [2014] FamCAFC 232
AMS v AIF (1999) 199 CLR 160; (1999) 163 ALR 501; (1999) 73 ALJR 927; (1999) 12 Leg Rep 11; (1999) 24 Fam LR 756; (1999) FLC 92-852; [1999] HCA 26
Bartz & Manthey (No. 2) [2018] FamCAFC 140
Bondelmonte v Bondelmonte (2017) 259 CLR 662; (2017) 341 ALR 179; (2017) 91 ALJR 402; [2017] HCA 8
Champness v Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Ember & Assadi [2013] FamCAFC 107
Fitzroy and Fitzroy [2009] FamCA 954
Franklyn & Franklyn [2019] FamCAFC 256
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102
M v S (2006) 37 Fam LR 32; (2007) FLC 93-313; [2006] FamCA 1408
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall v Clark (2009) 41 Fam LR 483; (2009) FLC 93-405; [2009] FamCAFC 92
Morgan & Miles (2007) 312 FLR 114; (2007) 38 Fam LR 275; (2007) FLC 93-343; [2007] FamCA 1230
Sampson & Hartnett (No 10) (2007) 215 FLR 155; (2007) 38 Fam LR 315; (2007) FLC 93-350; [2007] FamCA 1365
Sayer & Radcliffe& Anor (2012) 48 Fam LR 298; [2012] FamCAFC 209
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Tibb v Sheean (2018) 337 FLR 149; (2018) 58 Fam LR 351; [2018] FamCAFC 142
U v U (2002) 211 CLR 238; (2002) 191 ALR 289; (2002) 76 ALJR 1416; (2002) 23(15) Leg Rep 19; (2002) 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36
Zahawi & Rayne [2016] FamCAFC 90
Division: Division 1 First Instance Number of paragraphs: 177 Date of hearing: 22 – 24 September 2021 Place: Sydney Counsel for the Applicant: Ms Knight Solicitor for the Applicant: Hamish Cumming Family Lawyers Counsel for the Respondent: Mr Fowler Solicitor for the Respondent: Mills Oakley Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 1939 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HILL
Applicant
AND: MR WESTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
Other
ORDER MADE BY:
HARPER J
DATE OF ORDER:
4 NOVEMBER 2021
THE COURT ORDERS THAT:
1.All existing parenting orders with respect to the child, B born … 2014 (“B”), be discharged.
2.The Applicant Mother (“the mother”) and the Respondent Father (“the father”) shall have equal shared parental responsibility for B.
3.B live with the mother.
4.The mother be restrained from moving B’s residence to a location outside a radius of fifty two (52) kilometres from Sydney Airport at Mascot, unless the father consents in writing.
Spend time with arrangements
5.Unless the mother and the father agree otherwise in writing, B will spend time with the father in Melbourne as follows:
(a)during each school term:
(i)on the third and sixth weekend after the commencement of the school term, from 6.00 pm on Friday to 4.00 pm on Sunday; and
(ii)one additional weekend, provided that the father gives the mother at least two (2) weeks’ notice in writing of his intention to do so, and
A.with such time to be spent in Sydney on Friday from after school or later at the father’s discretion on school days, or such time as the father nominates if Friday is a non-school day, until 6.00pm Sunday or earlier at the father’s discretion; and
B.at the commence of the time B spends with the father, he will collect B from school if it is a school day and from the mother's residence if a non-school day, and at the conclusion of the time he will return B to the mother's residence.
(b)during the school holidays, as follows:
(i)in the school holidays at the end of Term 4 in 2021:
A.for seven (7) nights as agreed between the parties or, failing agreement, from 10.00am on 23 December 2021 to 6.00pm on 30 December 2021; and
(ii)in the school holidays at the end of Terms 1 and 2 in 2022:
A.for five (5) nights as agreed between the parties or, failing agreement, from 10.00am on the first Saturday of the school holidays to 6.00pm on the following Thursday of the school holidays.
(iii)in the school holidays at the end of Term 3 in 2022:
A.for seven (7) nights as agreed between the parties or, failing agreement, from 10.00am on the first Saturday of the school holidays to 6.00pm on the following Saturday of the school holidays.
(iv)in the school holidays at the end of Term 4 in 2022:
A.for seven (7) nights as agreed between the parties or, failing agreement, from 10.00am on 27 December 2022 to 6.00pm on 3 January 2023; and
B.for seven (7) nights as agreed between the parties or, failing agreement, from 10.00am on 18 January 2023 to 6.00pm on 25 January 2023.
(v)in the school holidays at the end of Terms 1, 2, and 3 in 2023:
A.for seven (7) nights as agreed between the parties or, failing agreement, from 10.00am on the first Saturday of the school holidays to 6.00pm on the following Saturday of the school holidays.
(vi)in the school holidays at the end of Term 4 in 2023:
A.for ten (10) nights as agreed between the parties or, failing agreement, from 10.00am on 24 December 2023 to 6.00pm on 3 January 2024; and
B.for ten (10) nights as agreed between the parties or, failing agreement, from 10.00am on 15 January 2024 to 6.00pm on 25 January 2024.
(vii)in the school holidays at the end of Terms 1, 2, and 3 in 2024 and thereafter:
A.for ten (10) nights as agreed between the parties or, failing agreement, from 10.00am on the first Saturday of the school holidays to 6.00pm on the following Tuesday of the school holidays:
(viii)in the school holidays at the end of Term 4 in 2024 and thereafter:
A.for the second half of the school holiday period in each even numbered year; and
B.for the first half of the school holiday period in each odd numbered year.
(c)For the purpose of these orders:
(i)school terms shall commence on the first day pupils are required to attend school according to the school term and vacation dates for the school attended by B; and
(ii)school holidays shall commence on the day immediately following the last day pupils are required to attend school according to the school term and vacation dates for the school attended by B.
Special Occasions
6.Notwithstanding any other order, in the event that B has an end of year performance as part of her extra-curricular activities on a weekend during the school term she is to spend with her father in Melbourne, and the mother informs the father in writing at least eight (8) weeks in advance, these orders are suspended for that weekend and the father, at his discretion, may either attend the end of year performance with B, or change his time with B to the following weekend.
7.In the event that there is a pupil free day during the school term at B's school on a Friday or Monday, and the father provides the mother with eight (8) weeks’ notice in writing, the father may elect to change the date that B travels to Melbourne during the school term to encompass that pupil free day as follows:
(a)If the pupil free day is a Friday, B to spend time in Melbourne from 6.00pm on the Thursday to 4.00pm on the Sunday; and
(b)If the pupil free day is a Monday, B to spend time in Melbourne from 6.00pm on the Friday to 4.00pm on the Monday.
8.Notwithstanding any other order, in the event that Mother's Day falls on a weekend that B is to spend time with the father, then the B’s time with father for that weekend will be changed to the following weekend.
9.Notwithstanding any other order, in the event that Father's Day does not fall on a weekend that B is to spend time with her father, then B is to spend time with her father during the weekend that includes Father's Day in lieu of the time she would spend with him on the weekend closest to the Father’s Day weekend.
Changeover
10.For the purpose of facilitating Orders 5, 6, and 7 above, unless the mother and the father otherwise agree in writing:
(a)The father shall book and meet the costs of B’s air travel to and from Melbourne in accordance with these orders, and otherwise each parent is to meet their own costs of travel, including travel to and from airports, air tickets, and any accommodation;
(b)Until the commencement of Term 4 of 2022, changeovers will occur at the Sydney Airport domestic terminal, and if B will be spending time in Melbourne, then she is to be accompanied on the flights between Sydney and Melbourne, and Melbourne and Sydney; and
(c)From the commencement of Term 4 in 2022, the mother and the father will do all things necessary to facilitate B travelling as an unaccompanied minor:
(i)with the mother to ensure that B is delivered to the departure gate at Sydney Airport in time for her flight to Melbourne, and the father to ensure that B is met at the arrivals gate when she arrives at Melbourne Airport; and
(ii)with the father to ensure that B is delivered to the departure gate at Melbourne Airport in time for her return flight to Sydney, and the mother to ensure that B is met at the arrivals gate when she arrives at Sydney Airport.
Communication
11.The mother and father shall communicate with B by video, Skype, or telephone between 5.00pm and 5.30pm each day when she is residing or spending time with the other parent, and each parent shall ensure that B is available for such communication and shall be responsible for facilitating the call.
Authorisations and provision of information
Health
12.The mother and the father shall:
(a)provide each other with and keep each other advised of the names and addresses of B’s treating doctors;
(b)inform each other in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist (“specialist medical consultant”) in relation to B; and
(c)ensure that the other parent is provided with a copy of any report by any such specialist medical consultant in relation to B, within fourteen (14) days of receipt of the report.
13.Both the father and mother shall be entitled to:
(a)attend any appointments with any treating doctor or specialist medical consultant relating to B; and
(b)discuss B’s condition with such treating doctor or specialist medical consultant,
however such attendance(s) shall be at the discretion of the treating doctor or specialist medical consultant.
14.The mother shall ensure that the father is notified as soon as practicable if B:
(a)is admitted to hospital;
(b)is involved in a medical emergency; or
(c)will be required to take medication when she spends time with the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the first seventy two (72) hours that B is to spend with the father.
15.The father shall ensure that the mother is notified as soon as practicable if B:
(a)is admitted to hospital;
(b)is involved in a medical emergency; or
(c)will be required to take medication when she returns to the mother’s care, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the first seventy two (72) hours following B’s return to the mother’s care.
Education
16.These orders authorise any school which B attends to provide from time to time both the mother and the father with copies of all reports, circulars, notices and documents in relation to B, including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the mother and/or the father in relation to B.
17.Both the mother and the father are permitted to attend:
(a)any school event relating to B to which parents are ordinarily invited; and
(b)any of B’s extracurricular activities which parents are ordinarily permitted to attend.
Contact details
18.The mother and the father notify each other of any change to their telephone contact numbers and email address, such notification to be made in writing and within three (3) days of any change.
19.The mother and the father notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.
20.Each party be refrained from making critical or derogatory remarks in relation to the other party in the presence or the hearing of B, and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of B.
International Travel
21.Subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975 (Cth), each party and their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child B, born … 2014 from the Commonwealth of Australia until 12 April 2026; 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 name on the Watchlist for the said period.
22.That upon B turning twelve (12) years old, the mother be permitted to take B out of Australia for a period of up to three (3) weeks to the United Kingdom, provided that:
(a)the period does not encompass the time the child is to spend with the father in accordance with these orders, including Christmas or Boxing Day if it is a year when B is to spend Christmas with the father;
(b)the mother provides the father with at least three (3) months' written notice of the proposed travel including destination in the United Kingdom, departure, return dates and reason for travel;
(c)no later than twenty eight (28) days prior to the proposed departure date, the mother provides the father with:
(i)a copy of return air tickets for B and herself;
(ii)a detailed travel itinerary; and
(iii)address and contact (including telephone contact) details for B while overseas;
(d)for the period up to the date B turns 16 years old:
(i)no later than twenty eight (28) days prior to her proposed departure from Australia, the mother shall pay a security bond in the amount of $40,000 (“bond”) by way of bank cheque or electronic transfer of cleared funds into the trust account of the father’s solicitors, such sum to be held on trust for both parties by the father’s solicitors;
(ii)proof of payment of the bond may be demonstrated by the mother producing a copy receipt of lodgement of the bond, certified by the father’s solicitors, and IT IS REQUESTED the father’s solicitors provide such certified copy to the mother as soon as practicable after she requests it;
(iii)the bond shall be disbursed as follows:
A.it shall be repaid to the mother in full within five (5) business days of her return to Australia; or
B.it shall be paid as the father directs on account of any legal and other appropriate fees incurred by the father for the return of B in the event that the mother fails to return the child to Australia in accordance with the itinerary specified in Order 22(c)(ii) above; and
(e)the father is to be provided with make-up time if his time with B is impacted by the travel.
23.IT IS REQUESTED that the Australian Federal Police give effect to Order 22 by temporarily removing 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 for the period of travel specified in Order 22(c) upon the mother providing proof of lodgement of the bond as specified in Order 22(d).
24.That upon B turning twelve (12) years old, the father be permitted to take B out of Australia for a period of up to four (4) weeks, provided that:
(a)the period does not encompass the time the child is to spend with the mother in accordance with these orders, including Christmas or Boxing Day if it is a year when B is to spend Christmas with the mother;
(b)the father provides the mother with at least three (3) months' written notice of the proposed travel including destination, departure and return dates and reason for travel;
(c)at least 21 days prior to departure, the father provides the mother with:
(i)a copy of return air tickets for B and himself;
(ii)a detailed travel itinerary; and
(iii)address and contact (including telephone contact) details for B while overseas.
B’s Passport
25.The mother and the father do all acts and things and sign all documents necessary to apply for and maintain a current Australian Passport with respect to B.
26.The mother and the father be permitted to do all acts and things and sign all documents necessary to apply for and maintain a current British Passport with respect to B.
27.B's Australian and British passports be retained by the father.
28.Within twenty-one (21) days of receiving the information required pursuant to Order 22(c) and proof of lodgement of the bond required by Order 22(d) and (e) above, the father provide B’s Australian and UK passports to the mother.
29.Within seven (7) days of returning to Australia, the mother return B’s Australian and UK passports to the father.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonyms Hill & Weston are approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J
INTRODUCTION
These are final parenting proceedings between the Applicant Mother, Ms Hill (“the mother”) and the Respondent Father, Mr Wilson (“the father”), in relation to the child of the relationship, B, born in 2014 (“the child”).
The mother was born in 1985 in the United Kingdom (“UK”) and is presently aged 36. The father was born in 1982 in Australia and is presently aged 38.
The mother filed an Initiating Application on 1 April 2016 in the Federal Circuit Court of Australia (as it then was). The matter ultimately came before me for final hearing on 22-24 September 2021.
Although the mother initially sought a partial order of equal shared parental responsibility, with sole parental responsibility allocated to her in relation to the child’s schooling, by the end of the trial, the parties and the Independent Children’s Lawyer (“ICL”) agreed there should be an order for equal shared parental responsibility in all respects. As the following reasons make clear, there is nothing in the evidence, and no one argued there was, which shows that the statutory presumption of equal shared parental responsibility should not apply. I will make an order for equal shared parental responsibility.
The mother had also initially sought, as part of her orders, permission to relocate with the child to the UK (Further Amended Initiating Application filed 13 August 2021). By the final hearing, she no longer pressed any such relief.
However, the mother lives in Sydney with the child, and the father lives in Melbourne. The father pressed for orders which would see the child relocate to Melbourne, and for the child to live with him if the mother did not follow. The child has been living in Sydney with the mother for the past five and half years. Therefore, interstate relocation was a central area of debate. The determination of the relocation question has a material impact on what orders the Court should make about who the child should live with, where she should live, how she should spend time with the other parent, and the age at which she should be allowed to travel overseas.
Despite some allegations of historical family violence, neither party nor the ICL pointed to any risk factors at the final hearing. The ICL submitted that the child is lucky to be well loved by both parents and they both made proposals with merit. I agree.
BACKGROUND
The mother was born and raised in the UK, although she is now a permanent resident of Australia. Currently, the mother and child reside in Sydney, whilst the father and his extended family reside in Melbourne.
The parties first met in or around 2005 when the mother was on a working holiday. The mother had travelled to Victoria to visit her sister, who was at G University at the time. The parties met through a university function and remained in contact following her return to the UK.
In around December 2011, the parties reconnected in Australia when the mother returned to Australia for work. The parties commenced a relationship in around late 2012 and began residing together in Melbourne in mid-2013.
The mother fell pregnant in mid-2013 and returned to the UK on 31 December 2013. The father joined her in February 2014. Both parents gave opposing accounts regarding their relocation back to the UK. The mother intended it to be a permanent move, alleging that the father applied for and was granted a UK passport that enabled the father to live in the UK indefinitely, sold his house, and sold all his belongings in Australia. The father maintained it to be a short-term move so the mother could be supported by her family during the pregnancy, and despite selling his house, he retained personal items in storage. It is unnecessary to resolve this difference. There was no dispute that the mother has strong connections to the UK, and that her parents and extended family are located there.
As noted, the child was born in 2014. The parties struggled financially and relied on government benefits after the child’s birth.
In the period between the child’s birth and February 2016, there appears to have been conflict on both sides. The mother, for her part, states that the father kicked her in the stomach whilst she was holding the child, and on another occasion, grabbed and squeezed the back of her neck. The father alleges emotional and verbal abuse, as well as several incidents of physical violence. He made allegations that the mother’s extended family was around for hours each day and this stoked conflict. However, since neither party now alleges any unacceptable risk to the child in the care of either parent, it is unnecessary to make any findings about these allegations.
The parties and the child returned to Australia on 2 February 2016, the mother entering on a partner visa. The child is a dual Australian-British citizen. The parties resided together in Suburb H, Melbourne, with the paternal grandparents, Ms I Weston and Mr J Weston, until their final separation on 22 March 2016. The parties were never married.
Separation
During the period the parties resided with the paternal grandparents, the mother expressed concerns regarding the paternal grandfather. She deposed to him committing vulgar acts in their presence, such as simulating sex, groping the paternal grandmother, consuming excessive amounts of alcohol, and using foul language. She advised that the father saw this behaviour as being “just Dad” and did not support her concerns. The father, for his part, denies that any of the paternal grandfather’s actions occurred.
On the evening of 20 March 2016, the mother deposes to an argument between her and the paternal grandfather. Each parent gave a widely divergent version of the facts surrounding the incident, but appeared to agree that at some point, the grandfather told the mother to “fuck off”. Regardless, the mother states that this incident instilled a great amount of fear in her, and that she no longer felt safe for the child’s welfare in the paternal grandparents’ home.
The mother sought help from her sister, who contacted a friend who also lived in Melbourne. This friend offered a place to stay for the mother and child. The mother left the home on 22 March 2016, having waited until the paternal grandparents and the father had left for work. The mother did, however, inform the father of where she and the child had went.
At some point between 22 and 24 March 2016, the parties had a conversation about options for accommodation. They were unable to reach an agreement. On 24 March 2016, the father visited and spent time with the child. The parties were further unable to reach an agreement regarding the mother and child’s accommodation in Melbourne. The mother said she would still feel unsafe if she were to move back in with the paternal grandparents.
On the same day, the mother contacted another close friend she had in Australia, Ms K, who resides in Suburb L, NSW. The mother stated Ms K was her only other close friend in Australia. Ms K offered a place for the mother and child to stay, as well as paying for their flights from Melbourne to Sydney. Before leaving, the mother contacted the local police station to ensure she was able to legally leave Victoria. She was informed she could, and was also encouraged to make a statement regarding her safety concerns. She did so on the same evening.
On 26 March 2016, the mother relocated from Melbourne to Sydney with the child. Upon her arrival in Sydney, she informed the father of what she had done. As outlined above, she filed an Initiating Application on 1 April 2016, seeking interim orders on an ex-parte basis, and final orders permitting her to relocate to the United Kingdom with the child. The father had retained the child’s Australian and British passports, deposing to fears about, and threats from the mother that she would abscond with the child.
On around 18 April 2016, the father was served with a domestic violence intervention order by the Victorian Police, which had been filed by the mother. This application had been made on 23 or 24 March 2016 and included a range of conditions, the most important of which included prohibitions on contacting or approaching the mother and the child. The father consented to the order, without admission, on 23 May 2016. As part of this consent, the father undertook 44 hours of compulsory domestic violence counselling, which he completed in May 2017.
PROCEDURAL HISTORY
On 15 April 2016, the parties made interim orders by consent for the child to spend time with the father. These orders were limited and only lasted, effectively, until July 2016. On this date, Judge Kemp in the Federal Circuit Court (as it then was) also made orders for the parties to attend a Child Inclusive Conference, and for the appointment of an ICL.
The matter was transferred to the Family Court of Australia (as it then was) on 28 July 2016. It was allocated priority due to the mother’s unilateral relocation to Sydney, as well as her intention to return to the UK.
Interim orders were then made by Senior Registrar Campbell on 26 August 2016. These provided for the child to live with the mother, but to relocate back to Melbourne within eight weeks. The child was to spend time with the father twice per week, and orders were also made for urgent spousal maintenance.
Upon application for review of Senior Registrar Campbell’s interim orders, Rees J made fresh orders on 8 November 2016. These interim parenting orders meant that the mother and child were no longer required to move back to Melbourne. They also provided for a staggered increase in time with the father, leading ultimately to the child spending one weekend per month with the father. Her Honour also made ancillary orders, including those regarding payment of airfares and accommodation, and time with the child via Skype.
In around October 2018, prior to the child commencing school, the father attempted to negotiate increased time with the child. The parties undertook mediation in July 2019. Although the parties could not reach agreement as to the variation of interim orders, they agreed on orders for time during the 2019 July school holidays.
The father filed an Application in a Proceeding on 27 August 2019. The father sought the discharge of Orders 4, 5, 6 and 8 which contained the above mentioned staggered increase of time with the father, as made by Rees J on 8 November 2016. The father proposed new orders for the child to spend time with him in Melbourne during 2019, and ultimately sought that from the commencement of Term 1 of 2020, the child spend time with him on the third and sixth weekends of school term, for eight days over the July school holiday period and two weeks over the Christmas school holiday period. He also sought orders concerning payment for the child’s flights to and from Melbourne, that the child should travel unaccompanied from the date of her seventh birthday, and additional time with the child in Sydney.
On 5 November 2019, Senior Registrar Campbell discharged all previous orders to the extent necessary to give effect to new orders. These provided for the child to spend time with the father during the school term on the third weekend in Melbourne, and the seventh weekend in Sydney. During each of the school holidays, the child was to spend time with the father for a five night block, save for the Christmas holidays, which provided for two five night blocks.
The nature of the Covid-19 pandemic meant that for a period of eight months from March to November 2020, the child spent no time with the father. It did not seem to be in dispute that she then spent two nights with him in Sydney, followed by another period of four months of no time, from November 2020 to March 2021. The child then spent two nights with the father in Sydney from 12-14 March 2021, followed by a five-night block of time with the father in Melbourne from 10 April 2021. The mother and child travelled to Melbourne from 7-9 May 2021 for the child to spend time with the father.
During the Summer Callover on 2 March 2020, Wilson J appointed a Family Consultant, Ms M, and allocated the matter to myself for a final hearing date.
The parties spoke to Ms M on 12 October 2020, and the child on 15 October 2020. The final report was delivered on 10 December 2020.
On 2 March 2021, the parties made consent orders placing the child on the airport watch list, restraints on removing the child from Australia, restraints on applying for any passport for the child, and for the child’s passport to be surrendered to the Court.
The final hearing took place from 22-24 September 2021, conducted via Microsoft Teams. Both parents and the ICL appeared with counsel.
CURRENT CIRCUMSTANCES
The mother and child currently reside in Suburb N, NSW in a two-bedroom apartment. The child is in Year Two at O School. She attends school four days per week whilst the mother is at work, and is home-schooled one day per week.
The mother has worked in administration and as an educator since 2018. She presently works at both P School and Q School. Her hours are 9.20am-1.30pm on Mondays and Tuesday, and 8.30am-3.15pm on Wednesdays and Thursday. The mother’s income is around $28,000 per annum and she also receives a variable amount of Centrelink depending on her income.
The father has re-partnered. He married Ms R Weston (“Ms R”) in 2019 and they have one son together, T born in 2020 (“T”). Ms R also has a child from a previous relationship, V, born in 2011 (“V”). The father, Ms R, T, and V reside together in a four-bedroom home in S Town, Victoria. The child has met, and spent time with Ms R, V, and T.
The father is currently employed as a public servant with the Victorian Government. He works a nine-day fortnight, generally finishing work at 4.00pm.
As pointed out, but worth emphasising, as a result of the current Covid-19 pandemic, the father has only spent time with the child on four occasions between February 2020 and now. Two of these occasions were in Sydney, and two in Melbourne. Of note is that one of these occasions was for a five night block, and the evidence from both parents is that this time went well, although the mother claimed the child was slightly more clingy upon her return.
PROPOSALS AND ISSUES IN DISPUTE
In her Minute of Order filed on 20 September 2021, the mother seeks the following:
(a)Equal shared parental responsibility, with the exception of schooling, for which the mother is to have sole parental responsibility;
(b)The child to live with the mother and spend time with the father on the weekend of Week 3 of the school term in Melbourne, and Week 7 of the school term in Sydney;
(c)A staggered increase in time with the father during the school holidays;
(d)For the child to be removed from the airport watch list;
(e)Permission to apply for an Australian and British passport for the child, and for the father to do all things necessary for this to occur; and
(f)Permission to take the child overseas, with notice to the father.
In his Amended Minute of Order dated 24 September 2021, the father seeks the following:
(a)Equal shared parental responsibility;
(b)For the child to be placed on the airport watch list;
(c)Restraints on both parents applying for any passport for the child without the other’s consent;
(d)The child’s current passport to be surrendered to the Court, pending further order; and
(e)Two alternatives as to who the child should live with, and how time should be spent with the other parent:
(i)For the mother and child to relocate back to Melbourne within six months, live with the mother, and spend time with the father with a staggered increase in time; or
(ii)For the mother and child to be restrained from moving outside a 52km radius of Sydney Airport at Mascot without the father’s consent, live with the mother, and spend time with the father with a staggered increase in time.
During the course of the trial, the ICL provided a Proposed Minute of Order. Both the mother and the father made certain concessions as to the orders they would agree to. It is unnecessary to set these out in detail. The orders set forth at the commencement of these reasons incorporate the agreement of the parties, as far as possible.
Accordingly, what remains to be determined is the following:
(a)Where the child should live;
(b)Who the child should live with;
(c)How the child should spend time with the other parent;
(d)Whether the child should be allowed to travel overseas (and associated conditions surrounding her passports); and
(e)The age at which she may commence flying unaccompanied between Sydney and Melbourne.
EVIDENCE
The mother relied on the following documents:
(a)Financial Statement, filed 3 September 2021;
(b)Affidavit with annexures, filed 14 September 2021;
(c)Affidavit of Ms EE, filed 5 September 2021;
(d)Notice of Risk filed 1 April 2016;
(e)Family Report of Ms M dated 10 December 2020;
(f)Child Dispute Conference Memorandum dated 27 July 2016;
(g)Tender Bundle;
(h)Case Outline; and
(i)Minute of Order.
The father relied on the following documents:
(a)Amended Response to Final Orders, filed 13 August 2021;
(b)Affidavit with annexures, filed 3 September 2021;
(c)Financial Statement, filed 3 September 2021;
(d)Affidavit of Ms R Weston, filed 3 September 2021;
(e)Affidavit of Ms DD, filed 3 September 2021;
(f)Affidavit of Ms U filed 24 August 2016;
(g)Tender Bundle;
(h)Case Outline; and
(i)Minute of Order.
Both parties were cross-examined. No other witnesses were required for cross-examination.
The following documents were received into evidence:
Exhibit Label Document Tendered by A Updated Tender Bundle A/M B Letter to A/M regarding private rental subsidy A/M 1 Amended Tender Bundle R/F 2 Amended Minute of Order dated 24.9.21 R/F ICL1 Court Book ICL ICL2 Family Report of Ms M dated 10.12.20 ICL ICL3 Minute of Order dated 24.9.21 ICL
Expert evidence
The Family Report, marked Exhibit “ICL2”, was based, as described by Ms M, on the material filed by the parties so far in the proceedings, two Child Dispute Conference Memoranda of Ms W, some documents produced on subpoena and the interviews conducted, as set out at the commencement of her report. Ms M recorded the observations made by her following the interviews with the parents, the child, and the child’s school principal, Ms X. I will refer to the content of the report as necessary during the course of these reasons.
Ms M also gave oral evidence. I will also refer to her evidence as necessary in the course of these reasons.
Family Report Recommendations
The Family Report writer made recommendations at [82]-[94] of her report to the following effect:
(a)The child should continue to live with the mother and be permitted to remain in Sydney;
(b)The current orders for the child to spend time with the father should continue, although with the father given the additional option of coming to Sydney more often with notice;
(c)The child should not finish school early on the weekends/school holidays that she spends with the father. Any flights should be scheduled after school;
(d)The child’s school holiday time with the father should gradually increase to half of the holidays over the next two years;
(e)The child should begin to fly unaccompanied from the age of eight;
(f)The child should spend alternate Christmases with each parent and be permitted to attend special occasions with each parent where possible;
(g)Video calls should be flexible;
(h)The mother and child should be permitted to travel to the UK, albeit with certain conditions;
(i)The child’s passport should be renewed and the mother should retain it in her possession; and
(j)The parties should engage in a parenting orders program and mediation, failing which they should attend a Parenting Dispute Resolution Conference.
The child
As noted above, the child is currently aged seven and in Year Two at school. She has a close friendship network in Sydney and also maintains a good relationship with T and V, her step-siblings, and her cousin Z, who resides in the UK. I am told that she is very active, and prior to lockdown was involved in swimming, gymnastics, netball, cheerleading, dancing, and was learning how to play piano and the guitar.
The child previously suffered a speech sound delay before commencing school, although this has now resolved with the assistance of a speech pathologist. She has also been diagnosed with a ligament laxity in her hands and is currently seeing an Occupational Therapist. The child also suffers from separation anxiety, and has done so since commencing school in 2019. This is of note, because a key point of contention between the parties is the age at which she should begin to fly between Sydney and Melbourne as an unaccompanied minor, if she remains living in Sydney. She is currently seeing Ms Y at the CC Centre for play therapy to assist with managing this anxiety.
Ms M interviewed the child on one occasion in October 2020, describing her as “a bright, articulate and energetic young girl.” This interview occurred via Microsoft Teams due to limitations imposed by the Covid-19 pandemic. Throughout the interview, the child “appeared to prefer to engage in doing demonstrations as opposed to talking about school and her family situation.”
Ms M also spoke to Ms X, the child’s school principal. She advised that:
B has progressed and settled extremely well into school considering the separation anxiety that she initially experienced upon commencement. Ms X said that B is achieving academically and is very good socially, both amongst her peers and older children. She confirmed that B’s teacher and Ms Hill have been following up on the hypermobility issues. Ms X said that Ms Hill is very appropriate to engage with and always communicates regarding any absenteeism or appointments. She said that she finds Mr Weston to be respectful and polite and that they have arranged to send him reports and school photos directly.
LEGISLATIVE FRAMEWORK
Section 65D(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions under s 61DA and s 65DAB.
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child's parents to have equal shared parental responsibility for the child. As already noted, I see nothing in the evidence which suggests the presumption should not apply. I will make such an order.
This means that s 65DAA of the Act is engaged. I will return to this provision later in these reasons.
The best interests of a child are the paramount consideration (s 60CA of the Act). They are to be determined by an examination of the considerations as set out in s 60CC of the Act. In Tibb v Sheean (2018) 337 FLR 149 (“Tibb”)at [68], the Full Court made clear that while the Court must “consider” each of the primary and additional considerations in s 60CC, express discussion is not necessary.
I turn then to the best interests of the child.
PRIMARY CONSIDERATIONS
In order to determine the child's best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act which are:
(a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying these considerations, the Court is to give greater weight to the consideration in subsection 2(b) (see s 60CC(2A) of the Act), although there are no risk factors in this matter.
Section 60CC(2)(a), "meaningful relationship"
There was no dispute that the child would benefit from a meaningful relationship with both parents. The central question under this consideration was, rather, the father’s argument that the child should be relocated to Melbourne because such a move would maintain and enhance his prospective meaningful relationship with the child. The corollary of this would be some impact on the child’s relationship with the mother, if she remained living in Sydney.
The Full Court of the Family Court of Australia in Sigley & Evor (2011) 44 Fam LR 439 endorsed the following propositions concerning s 60CC(2)(a):
(a)A “meaningful relationship” is one which is “important, significant and valuable to the child”: (citing Mazorski v Albright (2007) 37 Fam LR 518 and McCall v Clark (2009) 41 Fam LR 483 (“McCall”));
(b)A “prospective approach” is the preferred approach to s 60CC(2)(a), requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall (supra) at [118]-[119]; and
(c)The legislation aspires to promote a meaningful relationship, not an optimal relationship: M v S (2006) 37 Fam LR 32; Godfrey v Sanders (2007) 208 FLR 287; Champness v Hanson (2009) FLC 93-407.
The connection between the risk of impairment to maintenance of a meaningful relationship with a non-custodial parent and a great distance between households is well recognised. For example, in Franklyn & Franklyn [2019] FamCAFC 256 (“Franklyn”), the Full Court observed at [27] that:
There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children.
(Citations omitted)
I will return to the issue of relocation in more detail later in these reasons.
However, it should be pointed out here that the child has been living in the suburb of Suburb N in Sydney for some five and half years, while the father has lived in Melbourne. Despite this geographic separation, there was no dispute that the child has a strong, positive and loving relationship with the father. She also has a positive relationship with her step and half siblings in the father’s household. This has come about, in part at least, because the mother has been supportive of the child’s relationship with her father. I am not satisfied that the evidence demonstrates that the prospective benefit of a meaningful relationship requires the child to live in Melbourne, or that such a relationship would clearly be undermined if she continues to live in Sydney. The co-operation between the parents has, so far, allowed the child to benefit from a meaningful relationship with both.
If the child moved to live with the father in Melbourne, and the mother remained in Sydney, there is likely to be some undermining of the child’s relationship with her mother, who has been, and presently is, the primary carer. However, the mother was clear in her oral evidence that she would be highly likely to move to Melbourne if the Court ordered the child to live there.
Section 60CC(2)(b), “abuse” and “family violence”
Neither party contended there was any risk of harm to the child in the other’s care. It is true that each made allegations of historical behaviour which could amount to family violence, but these allegations were denied. Ms M expresses concern at [78] of her report that “this may indicate a lack of insight and could potentially place the other parent and B at risk of physical or psychological harm.” She also notes that neither parent has raised family violence concerns since they initially separated. Both parties conceded that they now have, for the most part, a positive co-parenting relationship. That was apparent in the evidence generally and during cross-examination.
The father also claimed that the mother made numerous threats to take B and return to the UK. These allegations are relevant to the question of international travel and are discussed later in this judgment.
ADDITIONAL CONSIDERATIONS
The Court must have regard to each of the “additional considerations” under s 60CC(3) of the Act, separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child's best interests. These are as are set out below:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the High Court stated at [34]:
In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
and at [35]:
... whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed.
I have received very limited evidence about the child’s views. In her report, Ms M notes that during her interview with the child, she expressed, unprompted, that her father should “give back my passport” as he took it because he does not want her going to England, because “he is scared that Mummy won’t bring me back”. She also described a good relationship with the father and Ms R, but that she is a little disappointed that she doesn’t get to do much with her father that is “just the two of them” alone.
As a result of the comment about the passport, Ms M stated it was unclear whether the mother had prepared the child for her interview, or whether she discusses the court proceedings with her. As it is unclear how the child would otherwise have become aware of the issue surrounding her passport, I approach any views expressed by the child to Ms M with reserve.
The views expressed by the child, in light of her age, are of limited utility in determining what orders I should make. It can be implied that she wishes to spend more time with the father, however this is not surprising given the current circumstances where they reside in different capital cities, and have only spent limited time together over the last 21 months.
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
It is clear from the evidence of both parties, the ICL, and Ms M, that the child has an ongoing positive and loving relationship with each of her parents. Each parent agreed that the other has a loving relationship with the child. In her affidavit, the mother notes several times that when spending time with the father, the child seems to have a good time and always speaks positively of their time together.
At [71] of her report, Ms M commented that “It was very encouraging to hear that neither parent questioned the validity of B’s relationship with the other and both in fact spoke about the positive and important relationship that she has with the other parent.”
(ii) other persons (including any grandparent or other relative of the child);
The child has no other relatives in Sydney beyond the mother. The position is different in Melbourne. The father has remarried and, as pointed out, the child has a half-brother, T and a step-sister, V. There are also other members of the father’s extended family.
The evidence showed that the child has a positive relationship with both T and V. Although she has not spent much time with T, they regularly video call. The father said in his oral evidence that they are beginning to interact more as T grows older. The child’s relationship with V is close. They are of similar ages. They often play games on the phone together and have referred to each other as ‘sister’ for a while, although the mother objects to the use of the term. They share a room when the child is in Melbourne, and, according to Ms R, are “inseparable.” Furthermore, they have been observed as saying “I love you” to each other.
During cross-examination, the ICL raised with Ms M the role of sibling relationships as one of the most important relationships for a child, and one which persists into adulthood. This is particularly so because siblings will typically outlive ones’ parents. Ms M agreed that siblings bonds are made strong by the shared experience of growing up, and time with each other is vital to ensure such bonds are fully developed. Furthermore, these relationships need to be prioritised, particularly around the age prior to the child commencing high school.
The child has also established a relationship with Ms R. The two were introduced in November 2017 when Ms R, the father, and the child went to a movie together. Since then, the evidence shows that they have developed a positive relationship. Ms R is now referred to as the child’s step-mother, with the child occasionally calling her “mumma.” The mother objects to this term as well. In his affidavit, the father states that the child and Ms R get on very well and show lots of affection.
The child’s paternal grandparents reside in Melbourne. Despite some evidence of friction in the past between the mother and the paternal grandfather, the mother did not press any argument that he was a source of risk directly to the child. The father deposed that prior to separation, the paternal grandparents and the child would often play together and go on walks. When the child is in Melbourne, they often visit and bring presents, do craft, cook, and play games. I accept the child has a positive relationship with the paternal grandparents.
The evidence showed that the child is embedded in her community in Sydney. At [90] of the mother’s affidavit, she notes that the child has a close network of friends in Sydney, with whom she often has playdates. The mother has also formed friendships with the parents of the child’s friends.
There is a tension between the development of child’s future relationship with her siblings, who live in Melbourne, and that with her friends, who live in Sydney. Although Ms M noted the importance of sibling relationships, particularly due to their longevity, as opposed to friendships, she also believed that as the child moves into adolescence, friendships will typically become more important. I accept both are important and must be considered, particularly in making orders for school holiday time.
Finally, the child also maintains a close relationship to her family in the UK, particularly her cousin Z, who is around her age. The mother gives evidence that they video call approximately once per week. I take this into account. Although the mother no longer presses an order permitting relocation back to the UK, she does seek permission for travel to the UK with the child. I will return to this later in these reasons.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
I am satisfied both parents have taken the opportunity to participate in making decisions about major long-term issues.
Each parent made allegations about the uncooperative approach of the other in respect of long-term issues. The mother told Ms M that the father argued with her about selecting a school for the child, and assisting with private occupational therapy sessions and medical costs. She said she is happy to continue to consult the father, but that all decisions and follow up, including financial, have always been left to her.
The father states in his affidavit that he had a discussion with the mother about the child care centre’s notations and advice from an occupational therapist that the child would benefit from another year at pre-school, during which she agreed not to enrol the child into primary school for another twelve months. However, he said the mother unilaterally enrolled the child into O School without his knowledge or consent. The mother, in her oral evidence, denied this, and claimed the advice about schooling was given in relation to a larger school group, and the child’s present school has far smaller classes.
The parties also depose to conflict as to whether the child should attend a religious or secular school. The mother is a practicing Anglican Christian, the child presently attends a Catholic primary school, and the mother and child are actively involved in the church community. The mother expresses at [105] of her affidavit that “I think that Mr Weston and I can make decisions together about long term issues in relation to B. I know that we both have B’s best interests at heart and we can sort out most issues.” She did, however, maintain concerns that they would not be able to agree on a high school for the child.
By the end of the trial, there was no order sought by the mother relating to schooling, which seems to have gone away as an issue requiring any judicial intervention. However, the evidence just discussed shows the extent to which both parents have been engaged in making long term decisions for the child, even if they have disagreed about the child’s schooling in particular. As already pointed out, both parents now consent to an order for equal shared parental responsibility. I am satisfied both have participated regularly in making decisions about major long-term issues in relation to the child and both are engaged as parents in doing so.
(ii) to spend time with the child; and
The orders of November 2019 provide for the child to spend time with the father twice during the school term, a five night block during the Terms 1-3 school holidays, and two five night blocks during the Christmas holidays. However, the father has spent only four occasions of time with the child since February 2020. There was no dispute that this has arisen because of the Covid-19 pandemic. There was no dispute that both parents want to spend time with the child.
(iii) to communicate with the child;
Since the child lives with the mother, there is no doubt the mother communicates with the child regularly.
Since March 2020, communication with the father has taken place primarily through electronic means because of distance and the pandemic. The November 2019 orders allow each parent to communicate with the child between 5.00pm and 5.30pm each day whilst in the other’s care. On the few occasions that the child has been in Melbourne, there is evidence that she regularly spoke to the mother.
The child’s communication with father has been more problematic. The father contended that the mother does not facilitate his electronic communication with the child. At [162] of his affidavit, the father states that the child is rarely ready at 5.00pm when he calls, and that he will usually be told by the mother a few hours later that she was asleep, at a playdate, or that they were out. He asserted that many of his requests to speak to the child go ignored, although he will occasionally receive a call back.
It is difficult to make any finding about these assertions. There may well have been occasions when the child was unable to receive a call from the father. On other occasions, it may be that the mother was not helpful. However, the evidence does show that the father makes significant attempts to communicate with the child on a regular basis.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
There are no suggestions that either parent has failed to maintain the child.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
The father proposes an order for the child to relocate to Melbourne. In cross-examination, the mother stated unequivocally that were I to make such an order, she too would move to Melbourne. The child has been physically separated from the father for some time now. It is acknowledged that she misses him and wishes they could spend more time together.
I note here that there was evidence of the child suffering ongoing separation anxiety. This becomes important because the parents diverge on their views as to the appropriate age for the child to commence unaccompanied travel. The mother states that her anxiety commenced around 2019 when the child started primary school, and she exhibited behaviour such as clinging during drop-off and having trouble falling asleep. She continues to co-sleep with the mother at times, however her anxiety has improved since she commenced seeing Ms Y for play therapy at the CC Centre. I return to travel later in these reasons.
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The child presently lives with only the mother in Sydney. In Melbourne, to the limited extent the child has been there, she lives with the father, her step mother and step and half siblings. I have nothing to add under this consideration.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
In a situation where the mother lives in Sydney with the child, and the father lives in Melbourne, there are obvious practical difficulties in the child spending time with the father. The pandemic has, in the last two years, exacerbated these difficulties.
There are obvious practical difficulties and expense involved in the child spending time with the father if she remains living in Sydney. These difficulties have been present for some time. The November 2019 orders provided for the father to pay the costs of the mother and the child’s flights to Melbourne and his own travel and accommodation when the time was to be spent in Sydney. For time in Melbourne, the mother was responsible for her accommodation costs.
There remains an ongoing dispute between the parties as to who should be responsible for the costs of the child’s plane flights to Melbourne, and, until she begins to fly unaccompanied, who should bear the costs of the accompanying adult’s flights. I will return to this discussion later in these reasons, but the evidence was clear that neither parent is in a strong financial position. Both have found the costs of travel between Sydney and Melbourne onerous. In his submissions, the father pointed out that the cost of flights had a material impact on his proposal for school holiday time with the child in particular.
(f) the capacity of:
(i) each of the child's parents, to provide for the needs of the child, including emotional and intellectual needs
Neither party has made allegations that the other is unable to provide for the child’s needs. Similarly, there is no evidence to suggest otherwise. The parties engage the child in a variety of activities aimed at supporting her growth and development, and also support her relationships with each other, extended family, and her own friendship group.
At [20] of his affidavit, the father deposes to some activities that he and the child engage in, including going to the park and beach, watching movies, playing on the computer, and other children’s activities. The mother explains that prior to the lockdown, she involved the child in swimming, gymnastics, netball, cheerleading, dancing, and she has been learning how to play the piano and guitar.
As for the child’s emotional needs, it is of course important that she be kept away from these proceedings. At [71] and [72] above, I referred to concerns that the mother may have disclosed some details to the child regarding the father’s retention of her passport. There is insufficient evidence to conclude whether this did or did not occur, however, Ms M did state at [71] of her report that “It is likely that B’s bright and happy presentation, and her positive progress in school and with peers, can be credited in part to the parents not allowing B to be exposed ongoing hostility and conflict.”
I am satisfied that both parents are capable of providing for the child’s needs.
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
This factor is not relevant. The child’s primary carer is the mother. In Melbourne, she will be cared for by the father and Ms R. There is no evidence that they would be unable to provide for the child’s needs.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
There are no other factors asides from the ones already set out above which are relevant.
Section 60 CC(3)(h) then deals with factors to consider for Aboriginal and Torres Strait Islander children. These are not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child's parents;
I am satisfied that, generally speaking, both parents are supportive of each other, of the child, and their relationships with the child.
At [102] of her affidavit, the mother states that “Mr Weston and I have co-parented B well in the past. Despite our feelings for each other we have managed to place B first and she has a positive relationship with each of us.” Similarly, the father said, particularly in relation to schooling, that “I’m sure we can come to an agreement or close enough.” This is confirmed by Ms M’s assessment of the parents, where at [71] she found that
Ms Hill and Mr Weston have established a relatively positive co-parenting relationship to support B in maintaining her relationship with Mr Weston, despite the parents living in two different states…It was very encouraging to hear that neither parent questioned the validity of B’s relationship with the other and both in fact spoke about the positive and important relationship that she has with the other parent.
I am satisfied that both parties have a good understanding of the responsibilities of parenthood, despite their separation.
(j) any family violence involving the child or a member of the child's family;
I have nothing further to add beyond the discussion above in connection with s 60CC(2)(b). I have made no findings of family violence. In light of this, s 60CC(3)(k) is irrelevant.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is preferable to make orders which are least likely to lead to the institution of further proceedings. The positive co-parenting of the parties provides a sound basis for litigation to be avoided in the future. I am satisfied the proposed orders are least likely to lead to further litigation.
(m) any other fact or circumstance that the court thinks is relevant.
Pursuant to s 144 of the Evidence Act1995 (Cth), I raised with the parties taking judicial notice of facts relating to the Covid-19 pandemic. The parties made submissions as to the restrictions in place at the time at the end of the trial. The approach of the state governments in NSW and Victoria have changed since the trial completed.
After hearing submissions, and taking a pragmatic approach, I take judicial notice of the following facts. Travel restrictions and lockdowns have been caused by outbreaks of Covid-19 in NSW and Victoria. The Victorian Government has eased restrictions on interstate travel, where the fully vaccinated must only isolate upon arrival until they receive a negative result. The NSW Government has removed all travel restrictions as of 1 November 2021. However, the future impact of Covid-19 cannot be known with certainty, including whether lockdowns or travel restrictions would return. I accept that I should make order on the basis on the evidence and known facts at the date of judgment.
While I accept that in the past 21 months, lockdowns and travel restrictions in NSW or Victoria or both have raised significant impediments to the father travelling to spend time with the child, I am unable to be satisfied that even if a move to Melbourne was ordered, this would necessarily mean the child could spend more time with the father in spite of the virus, although I accept that it might. Lockdowns and restrictions within greater Melbourne or Victoria may prevent this in any event in the future. However, I also take judicial notice of the facts, which I consider notorious now, that state governments in NSW and Victoria have indicated, since judgment was reserved, that they will avoid further lockdowns as a method to manage the pandemic. It cannot be known at present whether that will be adhered to into the future.
LIVE WITH
Relocation
It is convenient to deal with relocation at this point. Cases involving relocation are always difficult, particularly where the proposed relocation is to another state or country.
As pointed out, the father’s first position is that the mother should be compelled by Court order to cause the child to move to live in Melbourne. In his Amended Minute of Order, which became Exhibit 2, the father proposed orders that in the event that the child were to relocate to Melbourne, but the mother remained in Sydney, the child is to live with him.
I find it is unlikely the mother would remain in Sydney if such orders were made. The child has lived primarily with the mother for over five years. The mother was clear in her oral evidence, and stated unequivocally in cross-examination that “I would never be without her. I would absolutely move wherever we have to move together.” Accordingly, any such order for the child to relocate would, effectively, be one which is likely to result in the mother moving as well. I should also note here that the mother’s concession alone is not a sufficient basis for me to make an order compelling the mother to relocate to Melbourne: Franklyn at [43]. Alternatively, the father seeks an order restraining the child from moving outside of a 52 kilometre radius from Sydney Airport at Mascot. The ICL supports orders allowing the child to remain living in Sydney.
The Full Court (by majority, Bryant CJ and Warnick J) has held that there is nothing in the authorities that establishes that the Court lacks power within the Act to directly restrain a parent from relocation or to directly require relocation: Sampson & Hartnett (No 10) (2007) 215 FLR 155 at [33] (“Sampson”) at [33]. However, such a move would be extremely rare and “at the extreme end of the discretionary range”: Sampson at [58] and [83]. In Sampson, Kay J at [121] expressed “severe doubts” that there is power to make an order requiring a parent to move “from a well established place of residence to a different location so as to place the children in closer proximity to the other parent”, or, if the power exists, it would not be exercised other than in the most exceptional circumstances. The majority in Sampson concluded as follows at [58], [59]:
58. However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
(i) the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.
59. The prospect of ordering a parent to relocate and in effect “parent” in a situation not of that parent’s choosing, legitimately gives rise to concerns, particularly in respect of enforcement. What if the parent, in response to such an order, simply hands the child to the other parent, perhaps in circumstances such as in the instant case, where for whatever reason, there is not a well-established relationship between the child and the other parent? Will the primary parent be punished? The fact that such vexing questions arise does not mean that the power does not exist and may be rightly exercised at times. Enforcement is discretionary and may be rare in the situation exemplified. On the other hand, enforcement may be appropriate if a primary parent ordered to relocate, simply did not do so.
A parent is entitled to live where they choose, and need not demonstrate “compelling reasons” to live where they propose to live: AMS v AIF (1999) 199 CLR 160; U v U (2002) 211 CLR 238 (“U v U”); Adamson & Adamson (2014) 51 Fam LR 626 at [65] and [66]. However, since the best interests of the children are paramount, and whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the paramount consideration: U v U at [89].
However, parental responsibilities can inherently restrict choices made by a parent. In Zahawi & Rayne [2016] FamCAFC 90, at [47] the Full Court noted:
All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U [(2002) 211 CLR 238 [92]]:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred. [footnote omitted]
In Franklyn at [27] to [28], the Full Court has explained the applicable law as follows:
27. There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207–208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
28. While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223 –224, 231 –232; Sampson and Hartnett (No.10) (2007) FLC 93–350; Zanda & Zanda (2014) FLC 93–607 at [132]–[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262 ).
The form of the order is important. In Ember & Assadi [2013] FamCAFC 107 (“Ember”) at [60], after citing the passage from Sampson at [58] and [59] (set out above) the Full Court said:
We consider that these pronouncements are as definitive as they need to be to be relied on as identifying the source of power, although we consider that it may well be more appropriate to invoke s 65D and s 68B than s 114(3). In any event, what is overlooked in this appeal is that there was no order made by the Federal Magistrate specifically requiring the mother to relocate. The relevant orders are Orders 2, 3 and 4, and plainly they were made in the context of where the children should live, not the parents. They require that the mother ensure the children relocate to New South Wales within eight weeks, and that the children live with the mother. Understandably these orders would not be workable if the mother did not move, but it is readily apparent that they do not direct her to move. In that format at least we are satisfied that the Court has the power under s 65D and s 68B of the Act to make those orders.
Parenting proceedings involving relocation must follow the legislative pathway. It is clear that relocation cases are to be determined as any other parenting case: Fitzroy and Fitzroy [2009] FamCA 954 at [16]; Morgan & Miles (2007) 312 FLR 114 at [72]; Sayer & Radcliffe& Anor (2012) 48 Fam LR 298 at [47] and [48]. Any exercise of a power to restrain the mother from relocating is governed by the considerations applicable in any parenting case.
This is not a case where the mother is now seeking to establish a new home after leaving Melbourne in 2016. She has already done so in Sydney, where both she and the child have been residing for approximately the last five and a half years. Indeed, the oral evidence of the parties was to the effect that they are both settled in their present domestic circumstances in Sydney and Melbourne. In Sydney, there is evidence that both the mother and the child have established routines, are part of a community, and have support. In Sampson at [74] and [75] the Full Court said:
74. Where the court may be ordering the return of a parent to a location in which they have lived for some time, but from which they have moved without the consent of the other party and in circumstances in which existing orders or arrangements for the other parent to spend time with the children will be rendered ineffective, there will usually be arrangements in the original location for the practicalities of life, such as accommodation, schooling and employment if relevant, which can readily be identified by the Court. If there are not, that fact would normally be a relevant consideration.
75. To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.
As already noted, the father connected the question of relocation to the prospective maintenance, nurturing and enhancement of the child’s relationship with him. He argued that if the child remained in Sydney, the child’s sense of connection to the father may be lost or diminished. I do not accept that submission. The evidence is to the contrary. There was no dispute that the child has a positive warm and loving relationship with each parent, and clearly benefits from this. It is important to note that the child has developed and maintained such a relationship with the father despite the parents living in different states, and despite the restrictions on her time with the father brought about by the Covid-19 pandemic in the last 21 months.
The father accepted that a move to Melbourne would result in a major disruption to the child’s life, leaving Sydney, and Suburb N, after five and half years. There was no dispute that she is well settled in and does well at school. She has a network of friends. Ms M expressed the view that as the child becomes older, her friendship group will be perhaps more important than her sibling attachments. If she moved to Melbourne, the child would have to find a new school and would be suddenly removed from the social and school context where she is presently thriving. She would be separated from her current friendship group and school community. The father accepted the child needs stability and consistency. The father submitted however that children of her age were adaptable, and if she moved to Melbourne now or in the near future, she would have time to settle and form a new friendship group, as well as having the benefit of integration with her step and half siblings, and her extended paternal family.
It is also clear the mother would have to find new accommodation in a different state and new employment. Although the father offered some modest financial assistance, it was clear he would be unable to provide significant assistance, and the mother would have to work. The father relied on evidence that the mother has glowing references from former workplaces and a range of skills to argue she would find work easily. He pointed out that the mother has friends in Melbourne and implicitly argued she would be able to adjust to life in Melbourne.
The expert gave evidence that the child would certainly suffer distress at first in a move to Melbourne, but could adapt. However, this view was, quite reasonably, expressed cautiously, because although the positive co-parenting between the parties would support a positive response in the child to a move, this would be something that would require constant monitoring. In the absence of a detailed set of proposed arrangements in Melbourne, no firm conclusion can be reached about the impact on the child. Ms M was concerned too that the mother would suffer psychological distress, and this would affect her parenting abilities. I accept this is a real concern, especially because of the mother’s modest earning track record in Sydney. On the evidence provided by the parties about their financial circumstances, I find there is a risk the mother would be financially stressed by a move to Melbourne.
At [72] of her report, which she adhered to at the trial, Ms M also expressed the concern that requiring the mother to relocate to Melbourne “could lead to B being exposed to more parental conflict and hostility and also impact various aspects of her emotional, behavioural, educational and social development.” Ms M agreed that the positive co-parenting, now evident between the parents, was likely to have been helped by living in separate cities: “lack of very intense face-to-face communication, especially early on in the separation, probably has helped them be able to reach a point where they’re at today”. In other words, if the mother was to relocate to Melbourne, the current positive co-parenting between the parties may be compromised, to the detriment of the child.
The father argued that despite short term negative impacts on the child and the mother, they would adapt. He contended that any short term problems should be weighed against numerous long term benefits to the child. She would be able to spend more, if not equal time with him, spend more time with her step and half siblings, and more time with her extended paternal family.
The father has offered, in his Minute of Order, to “do all things where possible to assist the Mother and child to relocate to the Melbourne Metropolitan area.” This is so broadly expressed as to be of little utility. Some concrete content was given to his perception of “all things possible” by his proposal to contribute $2000 towards relocation costs. The father also indicated that he may be able to provide $150 to $200 per week for six to twelve months as maintenance. However, he concedes that he currently only has $2000 in savings, compared to $12,000 in 2016. This evidence does not persuade me that the father could assist the mother financially in a relocation to any sufficient degree, although his financial position seems marginally stronger than that of the mother.
The form of order sought by the father is consistent with the type of order approved in Ember. Overall, while I accept the force of the father’s arguments up to a point, ultimately I am not persuaded they should prevail. While it may be true the child would have greater exposure to her father, step mother, and siblings, as the expert pointed out, the child would only adapt if both parents supported and were positive about the move. This relies upon positive co-parenting which has itself been, partly at least, underpinned by the very fact of the parties living in different cities, although the parties themselves also deserve credit for working successfully on their co-parenting. The mother gave evidence that she would move to Melbourne if the child lived there. However, I could not be satisfied on the evidence that the mother would be able to obtain appropriate work or accommodation equal to that enjoyed by her and the child in Sydney, or anything otherwise adequate. In other words, I cannot be satisfied on the available evidence that for the mother, “the practicalities of life equally or sufficiently exist” in Melbourne (Sampson at [75]). The mother is the child’s primary carer, and the father accepted that if there was a move to Melbourne, the child should live primarily with the mother, subject to a move to equal time.
Although Ms M accepted this might work, the reality is that without more concrete information about the particular arrangements for the child in Melbourne, a clear view cannot be formed. There is an obvious and real risk that the mother would feel isolated in Melbourne and possibly overborne by the fact that the father’s extended family would be regularly present in the child’s life and hers. If she struggled to find sufficiently well paid employment, any sense of isolation would be exacerbated, and I infer, would likely affect her mental health, which would have an adverse impact on the child. The evidence was clear that the father was in no financial position to provide ongoing meaningful support to the mother. I could not be satisfied this would not adversely affect the mother, and if so, this is likely to impair her parenting capacity.
The father emphasised that by reason of the Covid-19 pandemic and restrictions on travel, despite existing court orders, he has seen the child on only four occasions in the last 21 months. The father argued that a move to Melbourne would lessen at least the scope for government health directives to interfere with his time with the child.
However, as noted above, I take judicial notice of the facts and circumstances surrounding Covid 19 at the date of judgment. What we know, from NSW Government health advice, is that Sydney has made its way out of lockdown from mid-October. We also know that the NSW and Victoria double vaccination rate has surpassed the 80% requirement that the NSW and Victorian Governments had set for a resumption of interstate travel. At the date of judgment, I take judicial notice of government announcements lifting travel restrictions and other restrictions designed to allow Australian communities to resume more normal patterns of life.
In any event, lockdowns have prevented travel within metropolitan areas in Sydney and Melbourne. A relocation to Melbourne would not necessarily avoid constraints in travel between the father and the mother for the child, if lockdowns are reimposed. If lockdowns are largely a thing of the past because of vaccination, travel between states will also remain much more free.
I agree that orders should be made for the child to spend as much time as practicable with the father and his family. I accept that there are reasons which militate in favour of the child living in Melbourne. But taking account of the matters discussed above at [117]-[134], but in particular, the following factors: the great disruption in the present life; familiarity with her social and community environment, and the need for consistency and routine for the child; the risk of a descent into greater parental conflict undermining the child’s development; the risk to the mother’s mental health and parenting capacity; the mother’s modest financial resources and her unknown likelihood of finding work or suitable accommodation in Melbourne; and the father’s inability to provide any material financial support, on balance, I am not satisfied a coerced relocation to Melbourne would be in the child’s best interests.
If the child was to remain in Sydney, the ICL proposed an order that the mother be restrained from moving the child’s residence outside a radius of 52 kilometres from Sydney Airport. The parents agreed to such an order if the child remained in Sydney. I will make such an order.
Unaccompanied travel
It will be necessary to reach a conclusion about the outstanding issue of who is to bear the costs of the child’s travel to and from Melbourne. The cost of flights is clearly an issue for both parents. Under s 60CC(3)(e), the Court is required to consider the expense incurred in the course of a child spending time with the parent. The age at which the child should begin to fly unaccompanied has a material bearing on cost to the parents of travel between Sydney and Melbourne, and I will express a view about this issue at this point.
Ms M was of the opinion that the child could begin flying unaccompanied from the age of 8; that is, from April 2022 or the commencement of Term 2 of 2022. The father also seeks such an order. The mother argues that the child should continue to fly with either parent until she is 12. The ICL suggests that unaccompanied travel should begin in Term 2 of 2023, when the child is approximately 9 years old.
The mother’s proposal is based upon her own recollections of when she first flew alone, at the age of 12. In her oral evidence, she described it as “overwhelming” and also made references to comments made by the child on numerous occasions, in which she expressed fear of the plane crashing and of being on a plane alone. This was voiced not just to the mother, but also to Ms Y at the CC Centre. However, whilst notes from the CC Centre in Exhibit 1 recorded the child as stating “I’m scared on a plane in case they crash,” it is not at all clear that this was specifically in relation to the possibility of flying unaccompanied. Rather, it appears to be a general comment towards flying as a whole.
Prior to the restrictions imposed by the pandemic, the child had some familiarity with plane travel. Because of the pandemic, it has been some time since the child has flown, meaning that she will likely not be as familiar with air travel as she had been in preceding years. However, the issue here is at what age the Court’s orders should cease to require a parent to accompany the child on flights to Melbourne. After that date, either parent is at liberty to fly with the child if they so choose, but will not be compelled by Court order to do so.
If accompanied flights continued until Term 2 of 2023, this would provide approximately twelve opportunities for the child to become re-familiarised with the process of flying, whilst supported by one of her parents. Ms M considered this to be the ideal option, however did not express a view as to how many flights would be necessary. Furthermore, she expressed the belief that once the child becomes familiarised again, is supported by her parents, and brought to the gate to an identified person who is going to look after her, the child would be reassured enough to travel by herself.
The evidence does not support a clear date on which unaccompanied travel may commence. While any date is somewhat arbitrary, I consider the beginning of Term 4 of 2022 as a reasonable compromise between the differing proposals. It will give the child time to become familiarised with air travel again, and allow sufficient time for air travel by her to take place, even if there are some further disruptions. By then, the child should have become more comfortable with air travel, and if the mother remains concerned, she can travel to Melbourne with the child if she chooses.
TIME WITH THE FATHER
Substantial and significant time
Given that an order will be made for equal shared parental responsibility, s 65DAA(1) of the Act, requires me to consider whether equal time or substantial and significant time with each of the parents would be reasonably practicable and in the child’s best interests.
In Tibb at [68], the Court made clear that s 65DAA “does not demand the making of any parenting order for any type of time”, and that the section is driven by findings as to the best interests of the child.
In determining the question of reasonable practicality, s 65DAA(5) provides that the Court must regard to factors including
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
If the child remains in Sydney, equal time would clearly be impractical. On the father’s proposal, if the child relocated to Melbourne, her time with him would progress to equal time twenty four months from the date of relocation. However, as made clear, I am not persuaded relocation should take place. While the prospect of equal time could be seen as a factor militating in favour of relocation to Melbourne, as Ms M opined, it cannot be known that equal time would work for the child, in light of the other factors weighing against relocation discussed above at [127]-[131].
The factual difficulty is that even if a relocation to Melbourne was ordered, there is no sufficient evidence to allow me to form a view about whether equal time would be reasonably practicable. The Court can only form a view about this question by reference to fundamental factors such as where the mother lives and where the child attends school. The father’s proposal is simply predicated upon the mother obtaining accommodation in the “Melbourne Metropolitan area” with the child.
If equal time will not be reasonably practicable, s 65DAA(2) requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child, as well as reasonably practicable.
A child is taken to spend “substantial and significant time” with a parent in accordance with s 65DAA(3) “only if”:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Section 65DAA(4) then provides that “Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.”
The Full Court in Bartz & Manthey (No. 2) [2018] FamCAFC 140 at [20]-[22] explained the operation of these subsections, with reference to earlier authority, as follows:
20. In Eddington & Eddington (No. 2) (2007) FLC 93-349, the Full Court determined the manner in which these provisions operate. The Full Court said (at 81,997):
54. It is evident that, although orders for time to be spent with a parent fall literally within the provisions of section 65DAA(3)(a)(b) and (c), that does not mean that the orders thereby provide for substantial and significant time within the terms of the legislation. It is equally evident that orders made for time spent cannot satisfy the requirements of substantial and significant time unless they literally meet all of the requirements of those provisions. What constitutes substantial and significant time will vary from case to case. What is substantial and significant time in one factual context may well not be in another. Whatever their terms, orders for substantial and significant time will have in common that they literally comply with each of the requirements created by s 65DAA(3).
21. These provisions were also considered in Ulster & Viney (2016) FLC 93-772 in relation to which Ainslie-Wallace and Ryan JJ said (with Strickland J agreeing on the point):
88. Thus the test as to whether orders make provision for substantial and significant time is in two parts. The first is mandatory and requires compliance with each element of s 65DAA(3). The second requires the exercise of discretion in accordance with s 65DAA(4). If the first question is answered in the negative, the orders cannot be for substantial and significant time. However, if that question is answered in the affirmative, it is necessary to consider whether in the factual context of the case the time is both substantial and significant. It follows that a finding pursuant to s 65DAA(4) in one case is likely to be irrelevant to the resolution of that issue in a different case (see Eddington (No 2) at [66]).
22. Although the primary judge made orders predicated on the child starting school in 2018, it was common ground before him that the child was not ready to start school in 2018 and he would start school in 2019. Thus, the relevant question becomes whether the combined effect of the balance of the operative orders, namely Orders 4(a) and 4(c) satisfy the mandatory aspects of the definition. It will be immediately apparent that the orders do not make specific provision for holiday time and prima facie offend s 65DAA(3)(a)(i). However, senior counsel for the mother argued that as on occasion there will be a public holiday on a Monday, s 65DAA(3)(a)(i) was satisfied. I agree. Thus, the qualitative elements of “substantial and significant time” as per s 65DAA(4) must be considered.
In circumstances where the child is to remain living in Sydney, all proposals for time include holiday time and special occasions. Both parents agree that the child should spend time with the father on two weekends during the school term. There is divergence as to where this time should be spent and at what time this time should conclude.
To recap, the mother proposes:
(a)The third weekend in Melbourne from 6.00pm Friday to 2.00pm Sunday; and
(b)The seventh weekend in Sydney from 3.00pm or after school Friday, to 5.00pm Sunday.
In his final proposal, the father seeks, until the commencement of Term 2 of 2022:
(a)The third weekend in Melbourne from 6.00pm Friday to 4.00pm Sunday; and
(b)The seventh in Sydney from 10.00am Friday to 5.00pm Sunday
From Term 2 of 2022 onwards, the father seeks:
(a)The third and sixth weekends in Melbourne from 6.00pm Friday to 4.00pm Sunday.
The ICL proposes the following:
(a)The third and seventh weekends from 6.00pm Friday to 6.00pm Sunday in Melbourne; and
(b)One additional weekend in Sydney at the discretion of the father, with two weeks’ notice to the mother.
In submissions, the father agreed to the ICL’s proposal, subject to noting that he thought the sixth weekend gave a better spacing between visits and the length of school holidays.
Although s 65DAA(3) seems to be otherwise satisfied on the proposals of either party and the ICL, it is not immediately clear how s 65DAA(3)(b)(i) could be satisfied, in respect of time spent with the father, with the child remaining in Sydney. This subparagraph requires the father to be involved in the child’s daily routine. However, her “daily routine” would include being collected from school on Fridays, and she may have a “daily” routine on weekends. In support of her proposal, the mother stated that the child enjoys having her father pick her up from school, as well as showing him around the local area in which they live. According to her, this was the main reason for her proposed orders. To this extent, it can be concluded that if father spent time with the child in Sydney, he would be involved in her daily routine. As a result, all the statutory criteria in s 65DAA(3) would be satisfied. Accordingly, I can exercise the discretion in accordance with s 65DAA(4).
I should say that I have given consideration to the fact that if the child relocated to Melbourne, it is possible that orders could be made which provided for substantial and significant time with the father, subject again to questions such as where the mother and child live, and where the child attends school. This is the same factual limitation in the evidence referred to at [133] and [134] above. As already made clear, I have concluded that no orders should be made requiring the child to relocate to Melbourne, and the possibility of substantial and significant time with the father in Melbourne does not change that conclusion.
Since the child will remain in Sydney, I will order that the child spend two weekends per school term in Melbourne. The ICL and the mother proposed the third and seventh weekends, while the father proposed the third and sixth. Since it is time with the father, I will accede to his proposal. This time should end at 4.00pm on the Sunday afternoon. This will allow sufficient time for the child to be back in Sydney to enable her to complete her evening routine and prepare for school the following morning.
However, I will also order, according to the ICL’s minute, that the father has a discretion to spend one additional weekend with the child in Sydney with notice to the mother. This time can finish at 6.00 pm on Sundays, or earlier, at the father’s discretion. This will allow an opportunity for the child to enjoy time with her father in Sydney and have the opportunity to be picked up from school by him.
School holiday time
School holiday time raises some discrete issues. For the long holidays at the end of Term 4, 2021, the ICL proposes two blocks of five days, including the first block over Christmas. The mother’s proposal appears to be the same. If the child remained in Sydney, the father submitted it was his preference for one block of seven nights, because two blocks would double the cost of flights for him. There is no proposal for the child to travel to Melbourne unaccompanied by the Term 4 school holidays. Ms M gave evidence that one block of seven nights with the father would be positive for the child. I will therefore order one block of seven nights from 23 to 30 December 2021.
The father originally proposed that the child spend the whole of the Term 1 of 2022 school holidays with him, but in submissions, agreed with the ICL’s proposal for school holiday time at the end of Terms 1 and 2 of 2022 if the child remained in Sydney. This would be five nights from 10.00am on the first Saturday of the school holidays, to 6.00pm on the following Thursday of the school holidays. The mother proposed six nights, but I will adopt the ICL’s proposal, since the father supports it, and there is no meaningful way to differentiate the impact on the child of five or six nights. As for the school holidays at the end of Term 3 of 2022, the mother proposed six nights with the father, and the ICL seven nights, with which the father agreed. Again, and for the same reasons, I will accept the father’s position.
I have concluded that the child may fly unaccompanied from Term 4 of 2022.
The father agreed with the ICL’s proposal for two blocks of seven nights with the father during the Term 4 of 2022 school holidays, so long as the child can fly unaccompanied. The mother proposed two blocks of six nights. There is little difference between the proposals. I will make such an order in accordance with the ICL’s proposal.
When the child turns nine, on 12 April 2023, the father proposed in submissions that she spend the whole of the Term 1 school holidays with him, then half the Terms 2 and 3 school holidays for 2023 and thereafter. His fall-back position appeared to be acceptance of the ICL’s proposal of seven nights during the school holidays following each of Terms 1, 2, and 3 of 2023. The mother seeks a much more gradual increase, with the child not spending a seven night block in Terms 1, 2, and 3, and half of school holidays with the father, until 2027. I am not persuaded that it serves the best interests of the child for her to be in Melbourne with the father for any entire school holiday period. As Ms M pointed out, as the child matures, her circle of friends in Sydney will grow more important. Time should be allowed each school holidays for the child to socialise in Sydney. Again, I will adopt the proposal of the ICL for Terms 1, 2, and 3 of the 2023 school holidays.
I will adopt the ICL’s proposal for school holidays at the end of Term 4 of 2024 and thereafter, that is, the first half in even numbered years and the second half in odd numbered years.
Other special occasions
All parties made similar proposals for Father’s Day and Mother’s Day. The mother also made sensible suggestions for make-up time with the father if the child had an end of year performance, and additional time if the child had a pupil free day. I will make orders for these occasions.
Costs of travel
I return then, to the questions of who bears the costs of travel between Melbourne and Sydney. The ICL proposed an order for the father to pay for the child’s flights to and from Melbourne, and the tickets of the accompanying adult until B travels unaccompanied. Both parents made more complicated proposals, with the mother seeking an order for the father to pay for her flights while the child is accompanied, while the father proposed he pay for term flights for the child, and the mother pay for school holiday flights.
In my view, the ICL’s proposal has the virtue of greater simplicity. However, I consider it would be even simpler if the father paid for B’s flights and each parent covered their own costs of travel. It also gives the father control over booking flights and their timing, for example. This is most likely to minimise the chance of disputes arising between the parents over such arrangements. I propose to order that until the commencement of Term 4 of 2022, at which point B can travel unaccompanied, changeovers will occur at the Sydney Airport domestic terminal, as suggested by the ICL. This means the mother does not have to accompany B on her flights to Melbourne. It also, of course, imposes a greater financial burden on the father, but according to his own evidence he is in a stronger financial position than the mother, and the money he offered to provide to help the mother move to Melbourne can be redirected to the cost of the child’s air tickets, and his own. I have acceded to most of the father’s proposals which have the effect of reducing the number of trips by the child between Melbourne and Sydney, which assists the father with cost.
Otherwise, the parties should responsible for the other costs, such as getting the child to the airport, their own airfares, and accommodation in the other parent’s city. This seems least likely to lead to further argument or litigation.
OVERSEAS TRAVEL
The remaining issue of contention is whether the mother should be permitted to travel to the UK with the child. The mother pressed for such permission. Her family lives there and she would like the child to have contact with them in person. The child has a warm, but electronically based relationship with them. The mother stated, and I accept, that it would be good for her mental health to spend time with her family in the UK. I accept the child would benefit from such interaction.
The father resisted any permission from the Court for the mother to travel outside Australia with the child. He pointed to her past threats to take the child and not return. I accept the mother probably made such threats after separation and at a time when the parties were not co-parenting as well as they are now. He also pointed to the mother’s unilateral relocation from Melbourne to Sydney. He argued that the mother’s evidence was not reliable and she had a demonstrated record of being mendacious. Consequently, the father asserted that her evidence and assurances about overseas travel, to the effect that she would return to Australia if permitted to travel to the UK with the child, could not be believed.
I accept that the mother has acted in a devious fashion in the past. But I do not consider it necessary to make a finding of mendacity. The simple, undisputed truth is that the mother’s family lives in the UK. She will want to travel there to spend time with them. The child would benefit from such travel to meet her extended maternal family. Although there is some evidence of the mother being a flight risk, I accept her evidence as genuine; that is, that the child is embedded in her life in Suburb N, and the mother has employment in the area, although it is casual and not permanent employment.
The ICL proposed orders permitting the child to travel with the mother to the UK once she turns 12 years old. I consider this a reasonable proposal. The father should also be able to travel outside Australia with the child from the same age.
The UK is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. Although I accept the mother’s present assurances about returning to Australia are genuine, things may change and there may continue to be an emotional pull to the UK which could undermine the mother’s willingness to return to Australia if she is permitted to travel to the UK. I consider that if the mother wishes to travel with the child between the ages of 12 and 16 years she should be required to post a bond to secure the return of the child, if she was irresponsible enough to fail to return to Australia. Once the child reaches 16 years of age, she will be old enough to express her own views about overseas travel and return to Australia. I have taken account of the father’s view that a bond would not suffice, but the best interests of the child are paramount. The mother proffered no security for travel outside Australia, but, despite her present financial circumstances, things may be different by the time the child is 12, and in my view security should be offered by her for international travel. The bond will be set at $40,000, to be paid if the mother wishes to travel to the UK with B between the ages of 12 and 16.
ICL’S COSTS
The ICL applied for costs against the father. The father resisted this on the basis he has limited means. I accept that evidence. His counsel relied on s 117(4) of the Act. I do not propose to order costs against the father. Although not intending to foreclose any application for costs, my initial view is that each party should pay their own costs.
CONCLUSION
For all the foregoing reasons I am satisfied the orders set out at the commencement of these reasons should be made.
I certify that the preceding one hundred and seventy-seven (177) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 4 November 2021
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