HOFFMAN & IVERSON
[2015] FCCA 961
•17 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOFFMAN & IVERSON | [2015] FCCA 961 |
| Catchwords: FAMILY LAW – Parenting – Mother’s application to relocate to (country omitted) with parties’ 8 year old son. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(2) and (3), 61DA, 65DAA, 69ZW |
| AMS v AIF (1999) 199 CLR 160 MRR v GR [2010] HCA 4 |
| Applicant: | MS HOFFMAN |
| Respondent: | MR IVERSON |
| File Number: | MLC 308 of 2010 |
| Judgment of: | Judge Bender |
| Hearing dates: | 30 March 2015, 31 March 2015, 1 April 2015 |
| Date of Last Submission: | 1 April 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 17 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lovering |
| Solicitors for the Applicant: | Hartleys Lawyers |
| Counsel for the Respondent: | Mr Moore |
| Solicitors for the Respondent: | VM Roccisano |
| Counsel for the Independent Children's Lawyer: | Ms Stavrakakis |
| Solicitors for the Independent Children's Lawyer: | Lampe Family Law |
ORDERS
All previous parenting Orders be discharged.
The Airport Watchlist order made on 17 January 2010 shall be discharged and the Court requests that the Australian Federal Police remove the name of X (‘X’) born (omitted) 2007 from the Airport Watchlist at all points of international arrivals and departures in Australia.
The Mother have sole parental responsibility for X.
X live with the Mother.
The Mother be permitted to relocate with X to (country omitted) as from 30 June 2015.
The Mother provide to the Father all contact details in (country omitted) no less than 14 days prior to the relocation, including her address, contact telephone number and email address.
X be enrolled in (omitted) School to commence in September 2015.
The Father sign all necessary documents to enable X to be enrolled in (omitted) School.
Pending X’s relocation to (country omitted) X spend time with the Father as follows:
(a)
from 10:00am Saturday 18 April 2015 to 5:00pm Sunday
19 April 2015;
(b)
from after school Friday to 5:00pm Sunday commencing
1 May 2015 and each alternate weekend thereafter;
(c)each alternate Wednesday from after school or 3:30pm if not a school day to 7:00pm commencing 22 April 2015;
(d)as otherwise agreed between the parties in writing.
Upon relocation, X spend time with and communicate with the Father as follows:
(a)for half of the (country omitted) long summer vacation each year, with such time to take place in (country omitted) in 2016 and each alternate year thereafter and in Australia in 2017 and each alternate year thereafter;
(b)upon the Father giving to the Mother 28 days written notice of his intention to do so, for half of the (country omitted) school term holidays by agreement, such time to take place in (country omitted);
(c)by Skype/Facetime twice weekly at such times as agreed between the parties and, failing agreement, each Wednesday and Sunday;
(d)by telephone at all reasonable times; and
(e)as otherwise agreed between the parties in writing.
The Mother and Father share X’s cost of travelling to Australia and otherwise be responsible for their own travel and accommodation costs and for the purposes of this order, the Father shall pay X’s air fare to travel to Australia and the Mother shall pay X’s air fare to return to (country omitted).
X be reasonably permitted to contact either parent by telephone at his request.
Both parties keep the other party advised of their current address, mobile telephone number and email address and both parties are to notify the other within 24 hours of any change.
The Father be permitted to liaise with X’s school to obtain information about X’s progress and obtain from the school copies of X’s reports, newsletters, photograph order forms and all other documents ordinarily provided to parents (at the Father’s expense) and that these Orders shall act as an authority for same.
The Father be permitted to liaise with X’s medical practitioners to obtain information about X’s medical care and to obtain copies of any relevant documents (at the Father’s expense) and that these Orders shall act as an authority for same.
The Mother advise the Father of the name and contact details of X’s medical practitioners and inform the Father of any changes to same.
Both parties notify each other forthwith within 24 hours of any serious illness or injury to X, and immediately in the case of any hospitalisation of X.
Both parties be restrained from:
(a)denigrating the other or the other’s family in the presence or hearing of X, or bringing X into contact with another person who is;
(b)discussing parenting disputes and/or issues with or in the presence of X;
(c)passing messages through X; and
(d)involving X in any form of dispute between the parties or otherwise.
IT IS NOTED that publication of this judgment under the pseudonym Hoffman & Iverson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 308 of 2010
| MS HOFFMAN |
Applicant
And
| MR IVERSON |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to the Mother’s application to relocate with the parties’ son X born (omitted) 2007 (“X”) from Melbourne to (country omitted).
The Father opposes the Mother’s application to relocate with X to (country omitted) and seeks Orders that the Mother and X remain living in Melbourne.
Background
The Mother was born in (country omitted) on (omitted) 1980 and is aged 34 years. She is currently employed on a part-time basis in (omitted) working 2-3 days a week between 7:00am and 3:00pm. The Mother has not re-partnered.
The Father was born on (omitted) 1976 and is currently aged 38 years. He is employed full time as a (omitted) working Monday to Friday 6:00am to 3:00pm and on the weekends that X is not spending time with him. The Father has not re-partnered.
The parties first met in Australia in 2003 when the Mother was travelling in Australia. The parties continued a long distance relationship until 2005 when the parties commenced cohabitation in (country omitted) where the Mother was then studying and working.
When the Mother fell pregnant in 2006, the parties decided to return to Australia as a family to raise X.
X was born in Australia in (omitted) 2007. Due to immigration issues, the Mother and X returned to (country omitted) from December 2007 to September 2008 when the Mother’s and X’s application for a visa to reside permanently in Australia was granted.
The parties separated on 8 October 2009 after an incident in which the Mother alleges the Father was verbally and physically violent to her, as a result of which the Mother’s finger was broken.
On 9 October 2009, the police obtained an interim Intervention Order on behalf of the Mother against the Father.
In December 2009, a twelve month Intervention Order was granted against the Father for the Mother’s protection. The Order was made by consent without admission.
On (omitted) 2010, the Father was arrested by police outside the Mother’s then residence and charged with two breaches of the Intervention Order, tampering with a motor vehicle and criminal damage. The latter charges relate to the Father damaging the Mother’s sister’s motor vehicle which was outside the Mother’s residence.
On 13 January 2010, the Mother filed an urgent Initiating Application in the then Federal Magistrates Court seeking orders for a Watch List Order to prevent X being removed from Australia as well as property and parenting orders.
On 15 January 2010, a Watch List Order was made preventing the parties from removing X from Australia.
On 24 March 2010, Interim Orders were made in the Federal Magistrates Court for X to live with the Mother and spend time with the Father each Wednesday and Thursday from 1:00pm to 4:00pm the first two of such times to be supervised by the Home Access Network.
On 31 March 2010 the Father appeared in the Broadmeadows Magistrates’ Court and was convicted of two charges of unlawful assault, two charges of stalking another person and two charges of contravening an Intervention Order arising from incidents on
23 January 2010 where the Father followed and harassed the Mother and friend of the Mother’s in his car.
On 17 July 2010, further Interim Orders were made in the Federal Magistrates Court for X to spend time with the Father each Wednesday from 1:00pm to 4:00pm and each Sunday from 11:00am to 2:00pm.
Pursuant to s 62G of the Family Law Act 1975 (Cth) (‘the Act’) a family report was prepared by Family Consultant Dr K dated 19 October 2010.
On 17 November 2010 final parenting orders were made by consent which provided for the Mother to have sole parental responsibility for X, for X to spend time with the Father each alternate Sunday from 10:30am to 6:00pm and each Wednesday from 10:30am to 5:00pm. The Orders reflected the recommendations contained in the Family Report of Dr K.
Throughout 2010 and 2011 the Father appeared frequently in the State Magistrates’ Court in relation to the offences against the mother previously set out in this judgment and for driving offences. The driving offences primarily related to the Father driving whilst disqualified. The Father also appeared before the Magistrates’ Court for failing to comply with the Community Based Orders he had been placed on for the driving offences and for the offences relating to the Mother.
X spent time with the Father throughout 2011 in accordance with the November 2010 Final Orders, albeit it is the Mother’s evidence the Father did not usually avail himself of the opportunity to spend time with X on Wednesday evenings.
X did not spend any time with the Father in 2012.
It is the Mother’s evidence that X did not spend time with the Father in 2012 because the Father did not wish to spend time with X as he was too busy running his business and because he had a new partner.
It is the Father’s evidence that he did wish to see X in 2012. It is his evidence that he called the Mother weekly to try and arrange to see X and the Mother would not let X see him. During 2012 the father at no time sought to enforce the 2010 Orders by making application to the Court.
In August 2012 the Father was sentenced to three months gaol for again driving whilst disqualified. He lodged an appeal against the sentence imposed on him. His appeal was struck out when he failed to appear. A warrant was issued and he was arrested in May 2013 when he was pulled over by police. The Father spent 100 days in gaol from May to July 2013.
In 2013 and prior to going to gaol, the Father had starting spending time with X. When goaled X was told the Father was in (country omitted).
In 2013 X displayed very concerning behaviour at school. He was reluctant to participate in class, he was withdrawn and crying for no reason and was not socialising with his friends.
The school recommended to the parties that X be referred to a counsellor to address these behaviours. The mother obtained a referral from her then General Practitioner for X to undertake counselling with Ms F.
After his release from gaol, the Father found out X was receiving counselling. He contacted Ms F seeking to meet with her to discuss X’s counselling. As X’s counselling had been organised in conjunction with X’s school any meeting between Ms F and X’s parents required the attendance of X’s school principal. When advised that the principal was to attend the meeting, the Father became very agitated and advised Ms F that she was to immediately stop X’s counselling. The Father threatened Ms F with legal action if she continued with X’s counselling. Due to the threatening nature of the Father’s interactions with Ms F, she terminated X’s sessions on 31 October 2013.
On 30 October 2013 the Mother suffered a breakdown and was voluntarily admitted to (omitted) Hospital where she remained as an in-patient for 5 days. On admission her presentation was described as:
“…likely consistent with first episode psychosis of approximately one month duration prior to admission.”
X was in the Father’s care whilst the Mother was in hospital and returned to live with the Mother upon her release from hospital.
The Mother was placed on medication and after her release attended at an outpatient clinic seeing a case worker weekly and a psychologist monthly for a further 12 months.
After the Mother was released from hospital in November 2013, X spent time with the Father from Saturday afternoon to 10:00am Sunday in each alternate week.
It is the Mother’s evidence that in July 2014, after spending time with the Father, X was very distressed and complained the Father had licked the side of his face and when asked by X to stop, refused to do so. After this incident X did not want to spend time with the Father and time between X and the Father again ceased.
On 8 October 2014 the Mother filed an Initiating Application seeking orders to relocate with X to (country omitted).
On 22 October 2014 Interim Orders were made for X to spend specified daytime only with the Father between October 2014 and February 2015. The Orders provided for X’s time with the Father to increase to 10:00am Saturday to 5:00pm Sunday commencing 7 February 2015 and each alternate weekend thereafter. The Interim Orders also provided for X to spend time with the Father each alternate Wednesday from after school, or 3:30pm if not a school day, to 7:00pm.
Since October 2014, X has been spending time with the Father in accordance with Orders made on 22 October 2014.
The Evidence
The Mother
The Mother relies on her affidavits sworn 6 October 2014 and
13 March 2015. The Mother also gave viva voce evidence at the final hearing.
The mother is seeking orders in the following terms: -
1.All previous parenting Orders be discharged;
2.The Mother have sole parental responsibility for X born (omitted) 2007;
3.The child live with the Mother;
4.The mother be permitted to relocate with the child to (country omitted);
5.The mother provide to the Father her contact details in (country omitted) prior to the relocation;
6.The child be enrolled in (omitted) School;
7.The Father sign all necessary documents to enable such enrolment;
8.The child spend time with and communicate with the Father as follows:
i)for half of the (country omitted) long summer vacation each year, with such time to take place in Australia in 2016 and each alternate year thereafter and in (country omitted) in 2017 and each alternate year thereafter;
ii)for half of the (country omitted) term holidays by agreement, such time to take place in (country omitted);
iii)by Skype and Facetime once each week at such times as agreed between the parties;
iv)by telephone at all reasonable times; and
v)as otherwise agreed between the parties.
9.The mother and Father share X’s cost of travelling to Australia and otherwise be responsible for their own travel and accommodation costs.
10.The child be reasonably permitted to contact either parent by telephone at his request.
11.Both parties keep the other party advised of their address, mobile telephone number and email address and both parties are to notify the other within 24 hours of any such change.
12.The Father be permitted to liaise with the child’s child care, day care, kindergarten or school(s) to obtain information about the child’s progress and obtain from the child care, day care, kindergarten or school copies of the child’s reports, newsletters and other documents ordinarily provided to parents (at the father’s expense) and that these Orders shall act as an authority for same.
13.The Father be permitted to liaise with the child’s medical practitioners to obtain information about the child’s medical care and to obtain copies of any relevant documents (at the father’s expense) and that these Orders shall act as an authority for same
14.The Mother advises the Father of the child’s medical practitioners and informs the Father of any changes to same.
15.Both parties notify each other forthwith and in any case within 24 hours of any serious illness or injury to the child, and immediately in the case of any hospitalisation to the child.
16.Both parties be restrained from:
a. Denigrating the other or the other’s family in the presence or hearing of the child, or bringing the child into contact with another person who is;
b. Discussing parenting disputes and/or issues with or in the presence of the child;
c. Passing messages through the child;
d. Involving the child in any form of dispute between the parties or otherwise.
17.Any such further or other orders that this Honourable Court deems appropriate.
It is the Mother’s evidence that she first raised with the Father the possibility of relocating to (country omitted) in early 2013. It is her evidence that the Father initially agreed to the relocation and that he signed an Application for Consent Orders which would have allowed the relocation to take place.
It is the Mother’s evidence that the Application for Consent Orders was requisitioned by the Court and that the Father subsequently withdrew his consent to the relocation.
The Father refutes that he ever consented to X relocating to (country omitted). It is his evidence that the only consent orders signed by him was for the Airport Watch List order to be suspended between November 2011 and January 2012 so that X and the Mother could travel to (country omitted) on holiday.
It is the Mother’s evidence that she is emotionally, physically and financially isolated in Australia and that whilst she has good friends who are supportive of her, particularly within her Church community, she seeks the support of her family who will be able to provide her with emotional and practical support so that she is able to better parent X and bring him up the best of her ability.
It is the Mother’s evidence that if permitted to relocate she will initially live with her parents on their farm just out of (omitted).
It is the Mother’s evidence that she is one of ten children, four of whom are still living with her parents.
It is the Mother’s evidence that her parents’ home has sufficient room such that she and X would each have their own bedroom.
It is the Mother’s evidence that two of her sisters live within very close proximity to (omitted) and that they both have children of their own who are of a similar age to X.
It is the Mother’s evidence that if permitted to relocate, X would attend (omitted) School, the local (religion omitted) school. (omitted) School caters for students from infants to grade six. Two of X’s cousins attend the school. It is the Mother’s evidence that she has made enquiries with (omitted) School and X would be able to start at the school in September 2015, which is the beginning of the school year in (country omitted).
It is the Mother’s evidence that if she is able to relocate, she will be able to readily obtain employment in the (omitted) area in (omitted). It is her evidence that she would be able to work more regularly in (omitted) than she is able to in Australia as her family will be available to assist in X’s care. This would enable her to achieve greater financial security than that which she currently has in Australia.
It is the Mother’s evidence that the Father was emotionally and physically violent to her during the relationship and that when the parties separated the Father broke her finger.
It is the Mother’s evidence that she feels intimidated by the Father and the paternal family who are continually critical of her parenting of X.
It is the Mother’s evidence that the Father has been inconsistent in the time he has spent with X. It is her evidence that in 2012, X did not see his Father at all because the Father was working 7 days a week running his business and was in a new relationship and was not available to see X.
It is the Mother’s evidence X did not see the Father for 5 months in 2013 because the Father was incarcerated for 3 months and then did not seek to spend any time with X for 2 months after his release.
It is the Mother’s evidence that in July 2014, X was very distressed when he returned from a weekend with his Father because his Father had licked him on the face and would not stop when X asked him to. It is the Mother’s evidence X strongly resisted returning to his Father’s care and that she accordingly stopped X’s time with the Father at this time.
It is the Mother’s evidence that despite the lengthy periods of time X has not spent with the Father since separation, X has a loving relationship with the Father and that he is enjoying the regular and consistent time that he is now spending with the Father in accordance with the Orders made in October 2014.
It is Mother’s evidence that X also has a very good relationship with his paternal grandmother who he sees very regularly as the Father currently lives with his Mother. It is the Mother’s evidence that it is the paternal grandmother who collects X from school on Wednesday afternoons and that X has reported to her many enjoyable activities he undertakes with his grandmother such as walking in the park, going to the movies and watching DVD’s on the couch with her.
The Mother readily concedes that if relocation is allowed, X will miss his Father and paternal grandmother. The Mother acknowledges that relocation will have an impact on X’s relationship with his Father and extended paternal family given the distance between Australia and (country omitted) and the considerable reduction in the face to face time that X will be able to spend with his father and paternal family.
It is the Mother’s evidence however that if relocation is allowed, she believes X will be able to maintain a meaningful relationship with the Father and the paternal family through regular electronic communication, by his visits to Australia to spend time with the Father and the paternal family. It is her evidence that she will always ensure that X spends time with the Father whenever he is able to travel to (country omitted).
It is the Mother’s evidence that when she first became pregnant, she and the Father agreed X would be brought up in Australia as part of a loving family. However the breakdown of the relationship with the Father and the lack of practical and financial support provided by the Father and the paternal family since separation means she now wishes to return to (country omitted) and to her family as this move will give her the support she needs and X the opportunity to grow up as part of a large supportive family.
It is the Mother’s evidence that whilst she has recovered from the breakdown that she suffered in November 2013, she continues to struggle with feelings of anxiety and depression as a result of her isolation and the ongoing financial and practical struggle that she faces in bringing X up alone in Australia.
Whilst it is the Mother’s evidence that if X is not permitted to relocate to (country omitted), she will continue to live here and to carry on parenting X to the best of her ability, she believes that being able to relocate with X to (country omitted) will alleviate a great deal of her anxiety and distress and therefore enable her to be the best possible parent she can to X as he grows up.
In relation to her proposal to travel with X to Australia every two years, it is the mother’s evidence that she will be financially able to facilitate that travel as she will be much more financially secure in (country omitted) and because she is by nature someone who is able to carefully budget. It is her evidence that she will therefore be able to save sufficient funds to ensure that X has the opportunity to spend time in Australia with his father and the paternal family every second year.
The Father
The Father relies on his Affidavits sworn 17 October 2014 and
27 March 2015. The Father also gave viva voce evidence at the final hearing.
The Father opposes the Mother’s application that X be permitted to relocate to (country omitted). The Father proposes that there should be Orders made for the parties to have equal shared parental responsibility for X and for X to live with each of the parties on a week about basis.
It is the Father’s evidence that he does not believe it to be in X’s best interest that he be permitted to relocate to (country omitted).
It is the Father’s evidence that X should have both of his parents actively involved in his life, something that would not be possible if X were not living in Melbourne.
The Father denies the Mother’s allegation that he was emotionally and physically violent to her during the relationship or that he broke her finger in the incident that led to the parties final separation.
The Father had put to him a case note taken from the Department of Human Services subpoenaed documents that was a record of a telephone conversation that took place between Department of Human Services’ case worker, Ms E, and the Father on 23 February 2010. That case note read as follows:
“The Father was asked about the violence in the relationship between the Mother and the Father when they were together…….he acknowledged that on one occasion he fractured her finger. When asked to discuss how this had happened the Father stated that he had been working all day to help a friend restore a restaurant and was tired when he arrived home. He stated that the Mother ‘started at me’ and was ‘hounding’ him about money. He asked if they could discuss this later as he was tired. The Mother pulled her hair and the Father grabbed her and threw her against the couch causing her to fracture her finger. He reported that he fully acknowledges that he injured her in this manner.”
It is the Father’s evidence that he has no recollection of any telephone discussions between himself and the Department of Human Services in February 2010 or of making any admissions to the breaking of the Mother’s finger. He repeated his evidence that at no time did he physically assault or injure the mother.
In subsequent cross examination by Counsel for the Independent Children’s Lawyer, the Father had put to him the following matters that were contained in the case note of 23 February 2010 in the Department of Human Services subpoenaed documents:
“Father stated that he wanted 50/50 shared care of X. The Mother has indicated to the Father via letter that she cannot afford to support X financially. The Mather is concerned about this. He wants X to have a roof over his head and stated that he had the financial means to provide this. He stated that he wanted X to maintain his relationship with his Mother and did not have concerns for his safety while he was with the Mother. He does not want X to be cared for by strangers in child care and would prefer that the Mother cared for him than strangers. He then stated that he ‘would like the Mother out of the picture’ so that he can care for X full time.”
In contrast to the Father’s earlier evidence that he could not recall having telephone discussion with the Department of Human Services on 23 February 2010, the Father confirmed that he made these statements to the Department on this occasion.
The Father was questioned about the Mother’s evidence that he did not see X for most of 2012 because he chose not to as he was working seven days a week in his business and was in a new relationship.
It is the Father’s evidence that he did try to see X in 2012. He would ring the Mother weekly, if not twice weekly, to try and make arrangements to be able to see X but the Mother did not facilitate X spending any time with him.
It is the Father’s evidence that in 2012 he spoke to both the Victorian Police and the Federal Police about enforcing the orders for him to spend time with X and that they advised him they could not do anything to assist him. The Father’s evidence is that he did not seek legal advice or at any time contemplate returning to Court to try to enforce the Orders so that he could resume spending time with X.
In relation to X’s counselling in 2013 with Ms F, it is the Father’s evidence that he and the Mother both met X’s school principal where the difficult behaviour that X was displaying was discussed. It is the Father’s evidence that the school recommended X receive counselling to assist him. It is the Father’s evidence that this discussion took place before he went to gaol in May 2013.
It is the Father’s evidence that whilst he was in gaol and shortly after his release in July, the Mother “let slip” that X was attending a counsellor, something he was not aware of and that she had organised without his knowledge.
It is the Father’s evidence that he did not immediately attempt to contact the counsellor on his release from gaol as his brother had recently been diagnosed with cancer and he was dealing with this shocking news.
It is the Father’s evidence that having ascertained the name and contact details of the counsellor, he contacted Ms F to make an appointment to see her so that he could ascertain what he could do to assist X. It is the Father’s evidence that when Ms F advised him that the school principal would also attend their meeting he was most unhappy as he wanted to speak to the psychologist on his own. The Father explained his annoyance that the principal was attending the meeting on the basis that whenever he had dealings with the school, the principal would have someone else attend who would take notes to accurately record their conversation.
It is the Father’s evidence that because Ms F would not see him on her own, he told her that he did not wish X to have any further counselling with her and that if she continued to see X he would consult his lawyers to take action against her.
In the Family Report prepared by Ms O, she sets out that the Father expressed concern that the Mother does not buy X enough clothes or school shoes when he needs them. In his oral evidence, the Father confirmed his concerns that the Mother did not provide adequate clothing and shoes for X. The Father was asked why he did not buy clothes and shoes for X. It is the Father’s evidence that he did not buy clothes and shoes for X because the Mother didn’t ask him to and that when he had bought clothes for X the Mother had rejected them as being inappropriate for X.
The Father was asked about the level of child support he pays the Mother for X. It is Father’s evidence that he is currently paying the Mother child support of $215.00 a fortnight which is being taken directly out of his wages and that he has been doing so either from July 2014 or at least for most of 2015. It is noted that the Father’s evidence vacillated between these two dates.
The Father was asked to produce a copy of his payslip to confirm that child support was being deducted directly from his pay. He did not do so.
It was put to the Father that it was the Mother’s instructions that she had received no child support from him since August 2014 and that prior to that date, the child support that the Father has paid had been $45.00 per month.
The Father was shown a document from the Child Support Agency evidencing his payment history between 31 March 2014 and
31 March 2015. That document evidenced eight payments of $45.87 from 13 April 2014 to 31 August 2014 and no subsequent payments thereafter.
The Father was also shown a child support document which stated that the Father’s arrears of child support as at 31 March 2015 was $4,868.31.
When shown these documents, the Father concedes that he does have $4,868.31 arrears of child support. The Father also became somewhat “ambivalent” about his claim of paying child support by way of direct debit from his pay as had been his previous evidence.
The Father was cross examined as to what he would do in the event the Court allowed X to relocate to (country omitted). His initial response was one of incredulity that any Court would take a son away from his Father and he therefore indicated that he would appeal any decision that allowed relocation.
During cross examination the Father struggled to answer the questions put to him in relation to what he would do in order to ensure that X was able to maintain a relationship with him if X were living in (country omitted). The Father was able to eventually answer these questions and was clear in his evidence that he would travel to (country omitted) to spend time with X. He did, however, raise concerns about the costs associated with such travel, particularly the costs of accommodation in (country omitted).
The Father was asked whether he would contemplate moving to (country omitted) or possibly (country omitted) given he had worked in (country omitted) for two years previously, in the event X was allowed to relocate. It is the Father’s evidence that it would not be financially viable for him to move to (country omitted) or (country omitted) as he would not be able to obtain employment that would enable him to financially support himself.
The Father also indicated that he is not permitted to leave Australia until he has complied with the most recent penalties that were imposed upon him in the state Magistrates’ Court on 10 June 2014 which related to further offences for driving whilst disqualified and other traffic offences.
The Father expresses real concern about the level of support the Mother will receive from the maternal family if she returns to (country omitted). It is the Father’s evidence that he believes the maternal grandparents live in relative poverty. It is his evidence that when he and the Mother were living together in (country omitted) in 2005 and 2006 and when the Mother was living with her parents for 8 months in 2008 when immigration matters were being resolved, the maternal family were unable to provide any financial support to the Mother or X.
The Father also expresses concern about X living with the maternal grandparents on the basis that it is his evidence the Mother disclosed to him whilst they were in their relationship that the maternal grandfather had behaved inappropriately towards her and her sisters in their youth. It is the Father’s evidence that the Mother and her sisters confronted the maternal grandfather about this abuse when they were adults. The Father raised these allegations with the report writer but did not raise them in any of his affidavit material.
The Mother adamantly denies this allegation both in terms of ever having been sexually abused by her Father or that she ever told the Father that such abuse had taken place. It is her evidence that she and her sister did confront the maternal grandfather but that related to the relative poverty in which they lived as children. She described this action as she and her sisters being very selfishly focused on what they perceived they had missed out on in their youth.
It is the Father’s evidence that he believes that part of the behavioural difficulties exhibited by X in 2013 were as a result of X being unable to spend time with him when he was gaoled for 100 days. The Father is therefore concerned about the emotional impact on X if he were to relocate to (country omitted) and have his regular time with the Father once again interrupted.
It is the Father’s evidence that he is concerned that the Mother will not support X having a relationship with him if she is permitted to relocate to (country omitted). The Father questions whether the Mother would comply with the Court Orders to bring X to Australia every two years or ensure that X had regular weekly electronic communication with him.
The Father is also concerned about the quality of electronic communication with X if he is living in (country omitted). It is the Father’s evidence that when the Mother and X were living with the maternal grandparents whilst their immigration matters were being resolved, the reception and quality of electronic communication between (country omitted) and Australia was not good.
Ms O
Ms O is a Regulation 7 Family Consultant with the Federal Circuit Court. Ms O prepared a Family Report dated 2 March 2015 and also gave vivo voce evidence at the final hearing.
In paragraph 39 of her Family Report, Ms O in discussing the mother states the following:
39.Although the mother demonstrates a level of vulnerability because of her isolation, financial constraints and mental health problems she has showed resilience and capabilities as a parent which have provided X with a secure, stable and loving home life. It was evident that X has formed a secure attachment with his mother and their bond seemed close and connected. Despite her experience of the father as violent and the ongoing conflict between them, she appears to currently support X’s relationship with his father and his ongoing presence whether they relocate to (country omitted) or not. Ms Hoffman did not present with any obvious negative intent regarding the father rather her concerns related to her experience of his behaviour in the past ie family violence and uncommitted relationship with the child.
In relation to the Father, in paragraph 41 Ms O states:
41.Mr Iverson has moderated his behaviour toward Ms Hoffman and it appears he wants to co-parent in a more collaborative way even though there are tensions and past hostilities between them. In recent times he has shown commitment to X and a desire to be a consistent and available father. Mr Iverson and X’s relationship is developing well and X appears to gain much pleasure being with the father and having his father involved in his life.
In relation to the question of the impact on X if relocation to (country omitted) is allowed, Ms O states the following in paragraphs 43-45:
43.In the event that the Court supports the mother's move to (country omitted), X will be distressed about leaving Mr Iverson and this relationship will not have the opportunity to continue to develop as it has more recently. X will miss the opportunity to develop further his relationships with the paternal extended family and have his father's involvement in his daily life and routine. At best X's relationship with his father will be reliant on telephone and internet and extended holidays.
44.Fortunately they have resumed having regular contact and have become more familiar with each other which will help X hold a memory of his father and a familiarity whilst they are apart. X is at an age and sufficient developmental maturity to retain a memory of his father regardless of the amount of time they spend together and regardless of where the child lives. Reunifying with the father has been a positive experience for X which will assist them to continue, albeit more slowly, to build on this relationship if relocation occurs. X is also at an age where he can tolerate longer periods away from his primary carer, his mother, which will assist X and his father to spend extended time together on holidays should they live in different countries.
45.Denying X of spending significant time with his father on a daily or weekly schedule is not ideal, but he has never had this level of involvement with his father and is therefore likely to recover and adapt to the their separation without compromising his long-term mental health. The strength of their relationship will rely on how much communication and contact they have via email, Skype and telephone. Direct contact with X will be very important to maintain and this will depend on the commitment of both parents to ensure this occurs.
In paragraph 46 Ms O states the following:
46.Ms Hoffman appears to be committed to ensuring that X's relationship with Mr Iverson continues which is very important as restrictive gate keeping by her will be detrimental for X's wellbeing. It is reassuring that Ms Hoffman did not present as having any negative intent concerning the father/child relationship. If X and Ms Hoffman move to (country omitted), the mother's mental health and financial situation will most likely improve and as such she will have a greater capacity to be an available and effective parent to X. Given she is the primary attachment figure, it is important that she is mentally stable and strong which is more likely if she is well supported by family. Following separation from Mr Iverson, she has not had a strong support network which has most likely contributed to her fragile mental health. A move to (country omitted) would assist her financially as she has her parents to assist with child minding so she can increase her work commitments and she will have more appropriate housing if she builds a house on her parent’s property. X also appears happy to live in close proximity to the maternal family based on meeting them when he returned to (country omitted) for a holiday.
In the event the Court does not allow the Mother to relocate to (country omitted), Ms O states the following in paragraph 48:
48....X will have the benefit of receiving support and active involvement from his father and paternal extended family. It appears that the father is committed to this and as this relationship progresses, X will enjoy and benefit from having his father's close involvement in his upbringing. Fortunately the mother and father recognise the benefits of co-parenting in a collaborative way but they may need to undertake a parenting after separation course to ensure they understand and are committed to continuing a strong co-parent relationship.
In relation to the Father’s proposal that X live week about with each of the parties, Ms O at paragraph 50 states the following:
50.In terms of the father’s involvement, X would benefit from increasing his time with the father and spending alternate weekends with him and a night in between if the mother and child are ordered to remain in Australia. The father appears to have appropriate values regarding child rearing and presented as having the potential to be child focused and sensitive to X's needs. X will also be well supported by the paternal extended family with whom he is forming a bond and have significant and positive input from his father, a relationship he values greatly. The father's proposal that X live with him on a week about basis or full time (if the mother returns to (country omitted)) would cause emotional distress for X as his relationship with the father is in the building phase and as they have not yet formed a strong attachment bond, X may feel insecure and fearful being away from his mother who is the closest attachment figure. Forcing X to live with the father beyond what he is ready for would be detrimental to their relationship as this needs to build at a pace that X can tolerate and feel confident about. As time progresses and this time is positive more time could be allocated to the father but at a pace that is gradual and comfortable for X. A more positive co parent relationship will assist with this transition as X may feel anxious if his mother is also anxious. Both parents need to take responsibility to ensure this does not occur so X feels confident about incrementally increasing his time with the father.
Finally, under the heading “Recommendation” in paragraphs 52 and 53 of her report Ms O states:
52. If the mother and X relocate to (country omitted):
• Sole parenting responsibility to the mother be upheld
• X lives with the mother
• X communicates with the father at least twice a week by telephone or Skype and that X spends time with the father at least once a year for an extended holiday for which both parents share the cost. Other times as agreed between the parents.
53. If the mother and X remain in Melbourne:
• Shared parenting responsibility is considered
• X spend time with the father every alternate weekend from Friday to Monday and every second Wednesday with half the school holidays and other special days
• The parents undertake a parenting after separation course
When giving her vivo voce evidence, Ms O was asked what would be the impact on X if the Mother’s mental health was again compromised as it had been in November 2013. It is Ms O’s evidence as follows:
“I think that if Ms Hoffman - she has an episode of a fairly significant mental health issue and she said that she had anxiety and depression last year. So there is – certainly her mental state is vulnerable. Mental health can get in the way of a parent being emotionally available and in tune to a child, can absolutely compromise the capacity to, you know, care for that child, in the way that the child will need. Given her lack of support here that would be very difficult because she does not really have a lot of people that she can turn to other than the Father, and that comes with its own difficulties…….so I think short term there can be a great impact on X and long term as well if his primary carer is not available to him……he could possibly become parentified and feel he needs to care for his Mother, and take on that responsibility, which is huge burden, of course, for any child, and it would create anxiety for X as well as if he had that burden of care in terms of his Mother.”
Ms O was asked if she has a view as to the capacity of the Mother to support a relationship between the Father and X if permitted to relocate to (country omitted), particularly given the Father’s concerns that she would not do so. It is Ms O’s evidence as follows:
“My impression was that she was very supportive of it. In fact, she talked a lot about how much X spends, likes spending time with the Father. She said that the father is a good father and someone that she does trust as a parent with X…”
Ms O was then asked whether she had formed a view as to the genuineness of the Mother’s commitment to X’s relationship with the Father and in particular whether the Mother was only saying what she thought she needed to say in order to have her application to relocate supported rather than what she truly felt. It is Ms O’s evidence as follows:
“I thought she was really genuine. She was crying at one point when she said, ‘I think X will really miss his dad.’ I felt she was very honest and genuine.”
The Mother’s proposal for the time that X would spend with his Father and the communication arrangements in the event of relocation were put to Ms O. Ms O was asked whether X would be able to maintain a meaningful relationship with the Father within the constraints of that proposal. It is Ms O’s evidence that she believes X could maintain a meaningful relationship with his Father if such arrangements were put in place. It is her evidence however that for a meaningful relationship between X and the Father to be maintained it will rely on the Father to be really proactive in being involved in any way he can.
There was a brief adjournment immediately after Ms O gave her evidence as to the importance of the Father being proactive in order for X to maintain a meaningful relationship with the Father in the event of relocation. When Court resumed, Ms O asked to say something more in relation to that evidence. Ms O’s evidence then was:
“The question was about sustaining a relationship if X went to (country omitted) and I talked about the father…I think I did leave out that it’s very important that the Mother facilitate and encourage the father’s involvement. That’s probably more crucial than anything to sustain a good relationship between X and his father.”
Ms O was then asked whether she was of the view that the Mother has the capacity to facilitate the relationship between X and the Father if permitted to relocate. It is Ms O’s evidence as follows:
“Yes. She appeared to have that capacity. I thought she was quite genuine in wanting to facilitate that.”
In her family report, Ms O described the relationship between X and his Father, given its historical inconsistency, as one that is “repairing”. Ms O was therefore asked whether it would be better for X that if relocation is allowed, the relocation be delayed to enable X’s relationship with his Father further consolidation.
It is Ms O’s evidence that to delay relocation presents something of a “catch 22” in that it would be very good for X to have some extra time with the Father to really solidify their relationship, but the downside would be that when X does go to (country omitted) he could be even more distressed than he might otherwise be if relocation was to take place relatively quickly.
The Father’s concern that X would develop similar behavioural problems to those he had in 2013 if relocation was allowed as his regular time with his Father would again be disputed was put to Ms O. It is Ms O’s evidence as follows:
“Well, I think that will be very much up to his parents. If Mr Iverson can accept the decision and communicate that to X that will absolutely protect X from becoming upset – if he knows that his Father is accepting of that situation and that he will have an ongoing relationship – ongoing contact with Mr Iverson.”
Ms O also opined that whilst the Father, and to some degree the Mother attributed X’s behavioural problems in 2013 to his not spending time with the Father, there were many things happening for X at that time that were not related to the Father’s absences that could have been the cause of X’s behavioural difficulties. It is Ms O’s evidence that the deterioration of the Mother’s mental health would have had a greater impact on X’s wellbeing than the continuation of what up until then was the pattern of the Father having an intermittent involvement in his life.
Ms O was asked whether it would be in X’s best interest, in the event of relocation, that X travel back to Australia from (country omitted) more often in the first two years of that relocation. It is Ms O’s evidence that she thought that this would be potentially very disruptive for X given that he would need time to settle and adjust to his new home. It is Ms O’s evidence that it would be better for X if the Father initially spent time with X in (country omitted).
In relation to the frequency of Skype and other electronic communication between X and the Father in the event of relocation, it is Ms O’s clear evidence that she believes that twice weekly Skype communication would be the ideal.
Finally, Ms O was asked whether she had any views in relation to whether relocation should be allowed in this matter. It is her evidence as follows:
“I don’t have a strong a view regarding relocation. I guess I would say is that I think Ms Hoffman’s mental health is strongly related to her capacity as a parent and that it is very important that he has one primary carer that is responsive and committed to him and parents effectively – warmly, with authority and so on. If she is compromised in her mental health she won’t be able to do that. So I guess I would say if (country omitted) was going to support her and going to be positive for her in the long run, and her mental health would be more stable, then that is very important.”
The Legal Approach
It is the Mother’s application in this matter that she be permitted to relocate with the parties’ son X to her country of birth, (country omitted).
Relocation cases are often discussed as if they form a discrete subset of parenting cases that are to be determined differently to other parenting matters. The jurisprudence makes it clear however that this is not so and that a relocation matter is to be determined in the same way that all parenting matters are determined, that is by following the legislative framework prescribed under the Act to determine what order is in a child’s best interests.
In Taylor v Barker (2007) 37 Fam FLR 461 at 475, their Honours Bryant CJ and Finn J said:
When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74;
(2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.In Cowley & Mendoza [2010] FamCA 597, His Honour Murphy J succinctly stated as follows:
A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
A relocation case falls to be determined like any other parenting case.[1]
[1] At paragraph 31.
Best Interests of the Child
Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
To determine what is in the best interests of the child, the Court must consider the matters set out in Section 60CC(2) and Section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties proposals, or such other arrangements as the Court determines given the Court is not bound by the parties’ proposals (see AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238), is in the children’s best interests.
Section 60CC(2)
Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests. They are as follows:
Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents
X has a close loving relationship with his Mother who has been his primary carer since his birth. In her family report, Ms O at paragraph 39 describes the Mother as having shown resilience and capability as a parent and as providing X with a secure, stable and loving home life. Ms O states that it is evident that X has formed a secure attachment with his Mother and their bond is close and connected.
X has a loving relationship with his Father and enjoys spending time with him, particularly more so since orders were made in October 2014 and the interaction has been consistent and regular.
Since separation, X’s time with his Father has been intermittent and there were lengthy periods during which X spent no time with his Father at all, particularly during all of 2012 and half of 2013.
It is the Mother’s evidence that X’s interrupted time with the Father was because the Father chose not to avail himself of the opportunity to spend time with X. It is the Father’s evidence that the Mother would not allow that time to take place.
In 2012 the Father’s life was somewhat chaotic. He was consistently facing police charges, firstly as a result of his breaches of the Intervention Order that the Mother had taken out against him when the parties separated and also because of multiple traffic offences and in particular, several charges for driving whilst disqualified.
In 2013 the Father was gaoled for three months because of his traffic offences.
In 2014, X’s time with the Father was interrupted when the Mother stopped time because X became very distressed about his Father licking his face and continuing to do so when he asked him not to and because X was complaining to the Mother that he was scared of the Father.
In 2012, and again in 2014 the Father did not make application to the Court for his time with X to resume.
The matter came before the Court in October 2014 in relation to the Mother’s current application to relocate to (country omitted) with X. At that time Orders were made for X to recommence spending time with his Father and he has been spending regular time with the Father in accordance with those Orders since they were made.
Ms O describes the relationship between X and his Father as “repairing” and observes their interaction to reflect a positive relationship that is developing and building and one that X enjoys.
In Heath v Hemming(No.2) [2011] FamCA 749, Justice Kent in paragraph 104 reviewed the authorities relating to parenting cases involving proposed relocation. In subsection (a) of paragraph 104
His Honour considered Section 60CC(2)(a) and summarised the case law in relation to the benefit of the child having a meaningful relationship with both of the child’s parents as follows:
(a)s60CC(2)(a) expresses the primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents. Similarly, s60CC(3)(b) requires the Court to consider the nature of the relationship of the child with, inter alia both parents and the objects and principles expressed in s60B also contain various references to the involvement of both parents in the life of their child.
In Sigley & Evor (2011) 44 Fam LR 439 the Full Court recently considered what is required by the term “meaningful relationship” in s60CC(2)(a). The Full Court:
(i)approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 per Brown J and McCall v Clark [2009] FamCAFC 92; (2009) FLC 93-405 per the Full Court);
(ii)concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in
s60CC(2)(a) is that the Court should 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 (referred to by the Full Court as “the prospective approach”). However, the Full Court noted that s60CC(3)(b) requires a Court to explore existing relationships between a child and the child’s parents and other persons and thus, depending upon the factual circumstances, examination of the evidence as to the nature of the child’s relationships at the date of hearing (referred to by the Full Court as “the present relationship approach”) may also be relevant, for example where a significant relationship had not been established between a child and a parent at the date of trial;(iii)confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship. (Citing M v S [2006] FamCA 1408; (2007) FLC 93-313 per Dessau J at [38]-[39]; Godfrey v Sanders [2007] FamCA 102 per Kay J at [33]-[36] and Champness v Hanson [2009] FamCAFC 96; (2009) FLC 93-407 per the Full Court at [103]);
(iv)concluded that “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a meaningful relationship;
Clearly, if it is determined that a meaningful relationship with both parents is in the child’s best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child’s age and level of maturity (s60CC(3)(g)) may assume particular importance. This may also lead a Court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a “meaningful relationship” with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable.
It is the evidence of Ms O that if X is permitted to relocate to (country omitted), he is at an age and has sufficient developmental maturity to retain a memory of his Father regardless of the amount of time they spend together and regardless of where he lives.
It is Ms O’s further evidence that the Mother’s proposal for the time X spends with his Father and the level of communication if relocation is allowed will be sufficient for X to maintain a meaningful relationship with the Father albeit it will not be at the same level as it would be if X were to remain in Australia and spend regular ongoing time with his Father.
Given the repairing or developing relationship between X and his Father, Ms O was asked whether it would be in X’s best interests that if relocation is allowed, the relocation be delayed to enable X’s relationship with his Father to further consolidate.
It is Ms O’s evidence that delaying relocation is something of a “catch 22” in that whilst further regular face to face time with his Father would enable X’s relationship with the father to be consolidated, X may become more distressed if relocation was delayed as a closer relationship with his Father would make it more difficult for him to move away from him.
Section 60CC(2)(b) The need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
X has not been exposed to any psychological or physical harm in his Mother’s care.
In October 2013 the Mother suffered a mental and emotional breakdown as a result of which she was hospitalised for five days and thereafter received ongoing psychiatric care for a further twelve months.
It is the Mother’s evidence that she has recovered from this episode although at times she suffers feelings of depression and anxiety particularly when contemplating her physical, emotional and financial isolation living away from her family and support base in (country omitted).
It is the Mother’s evidence that if she is not permitted to relocate to (country omitted) she will continue to carry on in Australia as she has to date and will parent X to the best of her ability. However, the Mother became visibly distressed when giving this evidence as she contemplated continuing to have to parent X in Australia absent the close support from her family and friends that she would receive if she were able to return to (country omitted).
It is the evidence of Ms O that the Mother’s mental state is vulnerable and that poor mental health can get in the way of a parent being emotionally available and attuned to a child. This in turn compromises the parent’s capacity to care for that child in the way that the child needs.
It is Ms O’s evidence that given the Mother’s lack of support in Australia, if she were to again suffer from any mental health issues the Mother would not have the necessary support she would need to assist her during this time. This would in turn impact on her parenting capacity and in the long term could severely impact X given that the Mother is his primary carer.
It is Ms O’s evidence that the Mother’s mental health is strongly related to her capacity as a parent and that it is in X’s best interest that he have a primary carer that is responsive and committed to him and one who can parent warmly and with authority.
It is Ms O’s evidence that if (country omitted) provides the Mother with the necessary support so that her mental health is more stable, then that is a factor that the Court must give considerable weight to.
Section 60CC(3)
Section 60CC (3) of the act sets out the additional consideration the Court must consider when determining what is in the child’s best interest.
Each of the matters set out under that section will be considered in turn where applicable in this matter.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
When speaking to the report writer, X indicated he was supportive of he and his Mother moving to (country omitted). He told Ms O that he would miss his Father if he went to live in (country omitted) but he ‘really wants to live there.’
Given X’s age it is questionable whether he fully understands the impact of a permanent move to (country omitted) and the reality of the relatively limited face to face time with the Father and extended paternal family that such a move would mean.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child).
X has a close and loving relationship with his Mother who has been his primary carer since birth. It was observed by Ms O that X has formed a secure attachment with his Mother and their bond is close and connected.
X loves his father and has been enjoying spending regular time with him since October 2014. From separation until October 2014, X’s time with his Father has been intermittent with lengthy periods when he did not see his Father. X did not spend any time with his Father at all in 2012. He did not see the Father for five months in 2013 when the Father was in gaol. X did not see the Father for three months in 2014 when the Mother stopped time because of concerns about X’s response to the Father licking his face and to feeling unsafe with the Father.
Whilst the Father holds the Mother entirely responsible for the breakdown of the arrangements for him to spend time with X in 2012, 2013 and 2014, I am satisfied that the Father was primarily responsible for that time not taking place.
In 2012, the Father was occupied with ongoing police and Court matters, heavy work commitments and a new relationship. It is the Father’s evidence that he travelled overseas for five weeks at the end of 2012 to attend to his own affairs. At no time did the Father institute Court proceedings throughout this twelve month period to ensure that his time with X recommenced. It is apparent the Father did not prioritise his time with X ahead of his own needs.
In 2013 the Father was incarcerated for three months as a direct result of his breaking the law. It is the Father’s evidence that other than the day of his release, he chose not to spend time with X for two months after his release because of his brother’s health issues and because he was putting his life in order.
In 2014, when the Mother stopped X’s time with the Father, he did not institute any proceedings to ensure that X’s time with him recommenced.
The Mother is one of ten children and her parents and many of her siblings are still resident in (country omitted).
It is the Mother’s evidence that X has a positive relationship with her family having visited them on several occasions in (country omitted) as well as speaking to them weekly.
When speaking to Ms O, X told her that one of the reasons he wants to move to (country omitted) is because he would see lots of family members and that he likes the maternal family and remembers them well from his holidays and talking to them on the phone.
The Father lives with the paternal grandmother and it is common ground between the parties that X has a very good relationship with his ‘Nonna Ms R.’
It is the paternal grandmother who picks X up from school each alternate Wednesday when X is to spend time with the Father. The paternal grandmother attended X’s share and shine day on the last day of first term in 2014, something that X was particularly pleased and proud of.
The paternal grandmother takes X to the movies, takes him for walks and X speaks happily of sitting on the couch with Nonna watching DVD’s when he is spending alternate weekend time with the Father.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child;
(iii) to communicate with the child.
The Mother has had sole parental responsibility for the decisions in relation to X’s long term care and welfare pursuant to the Orders that were made by consent in November 2010.
As has been set out in this judgement, there has been lengthy periods of time since the parties’ separation in October 2009 when X has not spent time with his Father. Whilst the Father blames the Mother for this, the Court is satisfied that the main reason that X was unable to spend regular time with his Father during these periods is as a result of the Father’s own actions and his failure to prioritise his relationship with X over his own needs.
Section 60CC (3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
The mother has borne almost all of the financial responsibility for the care of X since the parties separated.
Whilst the Father gave evidence that he is currently paying the Mother $215.00 per fortnight by way of child support and had been doing so for some months, it became apparent under cross examination and with the production of accurate records from the Child Support Agency that the Father had not paid child support to the Mother for X since August 2014 and that prior to that date he was only paying $45.00 per month.
The Father confirms he is currently in arrears child support in the sum of $4,868.3.
The Father gave evidence that he pays X’s school fees at (omitted) Primary School in (omitted).
In cross examination the Father conceded that rather than paying all X’s school fees, the parties had an agreement that they would each pay half of X’s school fees.
The Father further conceded that it was not he but his Father who paid his share of the school fees for 2012 and 2013.
The Father also conceded that he has not paid his share of the school fees for 2014 or 2015.
In paragraph 32 of the Family Report, Ms O reports the Father as expressing concern that the Mother does not buy X enough clothes or school shoes when he needs them.
When cross examined as to why he did not buy X clothes or shoes if this was a concern, the Father’s response is to blame the Mother for not asking him for help or of her rejecting purchases he had made for X as she did not think they were appropriate for X as they were black or covered with skulls and other violent images.
The Court notes that the Mother denies that she does not provide adequate clothing or shoes for X.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
In the event X is permitted to relocate to (country omitted) with the Mother, he will not be able to spend regular weekly time with his Father and extended paternal family, particularly the paternal grandmother.
In her family report at paragraphs 43 and 44, Ms O notes that X will be distressed about leaving the Father and his relationship with the Father will not have the opportunity to continue to develop as it has more recently. She notes that X will also miss the opportunity to further develop his relationships with the paternal extended family as well as having his Father’s involvement in his daily life and routine.
Ms O states that reunifying with the Father has been a positive experience for X and that this will assist them to continue, albeit more slowly, to build on their relationship if relocation occurs.
Whilst Ms O states in her report at paragraph 45 that X not spending significant time with his Father on a daily or weekly schedule is not ideal, she notes that X has never had this level of involvement with his Father on a regular basis since separation and is therefore likely to recover and adapt to their separation without compromising his long term mental health.
It is Ms O’s evidence that X will be able to maintain a meaningful relationship with his Father and the extended paternal family if permitted to relocate if both the Father and particularly the mother are committed to ensuring that X is afforded the opportunity to communicate regularly via email, Skype and telephone and to spend, at a minimum, the face to face time that is proposed by the Mother.
Section 60CC (3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
If the Mother is permitted to relocate to (country omitted) with X there are considerable practical difficulties associated with ensuring that X spends time with the Father and the extended paternal family.
The distance between (country omitted) and Australia and the long and expensive transatlantic flights are all practical difficulties that would have to be addressed in order for X to maintain relationships with those who remain in Australia.
It is the Mother’s proposal that X spend half of the (country omitted) long summer vacation with the Father, one year in (country omitted) and the next year in Australia and that each of the parties be responsible to pay for their own travel but otherwise share the costs of X’s travel.
It is the Mother’s further proposal that X spend time with the Father during any of the (country omitted) term holidays in (country omitted) upon the Father giving her reasonable notice of his intention to travel to (country omitted) for that purpose.
It is the Mother’s evidence that with her improved financial security arising from living with her family in (country omitted), she will be able to save to ensure that she does travel to Australia every second year. The Court accepts the Mother’s evidence in this regard.
Whilst the Father struggles with the concept of relocation being allowed, it is his evidence that if relocation does take place, he is able to afford to travel to (country omitted) and that he will do so albeit he was concerned about the expense of accommodation in (country omitted) during such visits.
Section 60CC (3)(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
There is no doubt that the Mother has and will continue to provide for X’s physical, emotional and intellectual needs.
There must however be some concern about the Mother’s capacity to meet X’s needs if she were to remain in Australia in the current circumstances of her emotional, physical and financial isolation.
In October 2013 the Mother suffered an emotional and mental breakdown which required 5 days hospitalisation and subsequent ongoing psychiatric and case worker support.
Whilst she reports she has recovered from this episode, it is the Mother’s evidence that she at times suffers from depression and anxiety arising from her feelings of isolation in Australia.
It is the evidence of Ms O that if the Mother’s mental health were to be compromised in the future this will impact on her parental capacity which will then impact on X as the Mother, who is X’s primary carer, will not be emotionally available to provide appropriate care for him.
In paragraph 46 of her Family Report Ms O states the following:
“If X and Ms Hoffman move to (country omitted), the Mother’s mental health and financial situation will most likely improve and as such she will have a greater capacity to be an available and effective parent to X. Given she is the primary attachment figure, it is important that she is mentally stable and strong which is more likely if she is well supported by her family. Following separation from Mr Iverson, she has not had a strong support network which has most likely contributed to her fragile mental health. A move to (country omitted) would assist her financially as she has her parents to assist with child minding so she can increase her work commitments and she will have more appropriate housing if she builds a house on her parent’s property.”
The capacity of the Father to consistently meet X’s needs, particularly his emotional needs is questionable.
In 2013, X was demonstrating disturbing behaviour. On the recommendation of X’s school, X began seeing a psychologist.
It is the Father’s evidence that he met with X’s principal who discussed with he and the Mother the difficulties X was facing and the necessity for this counselling.
Given the Mother has sole parental responsibility for X she had, with the guidance of the school, put in place the appropriate arrangements for X to commence counselling.
It is the Father’s evidence that after he was released from gaol, the Mother ‘let slip’ that X was undergoing counselling. The Father then made enquiries as to the name and contact details of the counsellor and proceeded to contact the counsellor to arrange a meeting to discuss with her X’s counselling and in particular to ascertain what he could do to assist X further.
When the counsellor advised the Father that she would meet with him and discuss X’s counselling, but that the school principal would need be present given the counselling was arranged through the school, the Father became extremely irate that the principal would be in attendance. The father demanded that X’s counselling immediately cease and threatened the counsellor with legal action if she continued counselling against his wishes. Because of these threats, X’s counsellor discontinued her treatment of him.
When cross examined at length as to why he had demanded X’s counselling cease in circumstances where he knew that X needed counselling, the Father was unable to offer any explanation other than the school principal should not have been present when he met the counsellor as he had some issues with her. It was his further evidence that he had been told that he:
“…had rights to speak to a counsellor to find out what was happening in relation to X’s counselling.”
The cessation of X’s counselling also coincided with the Mother’s mental breakdown and her hospitalisation. This was an incredibly worrying and distressing time for X and he would have been greatly assisted with counselling during this difficult period.
The Father’s total self-focus and need to pursue what he perceived as “his rights” over X’s emotional and psychological well-being at this time must give rise to concerns about the Father’s capacity to place X’s needs over his own priorities and expectations.
Section 60CC (3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant
The Mother was born in (country omitted), grew up in (country omitted) and is wishing to return to (country omitted) to live with her family so that she have her family’s practical, emotional and financial support in order to better parent X.
If permitted to relocate to (country omitted) clearly X will be afforded the opportunity to experience his (country omitted) ancestry.
The Father is of (country omitted) origin and he wants X to have the opportunity to develop an understanding of that aspect of his heritage.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
The Mother has at all times fulfilled her responsibilities as a parent. She provides X with a safe and loving home, appropriate schooling, an involvement in her church and encourages the relationship between X and the Father.
There is absolutely no doubt that the Father loves X and his distress at the thought of X being able to relocate to (country omitted) and therefore moving away from him is genuine and a possibility that he struggles to accept.
However, it is apparent that at times the Father has not been able to place his relationship with X ahead of his own life priorities.
As has been set our previously in this judgement, X did not spend time with the Father in 2012, primarily as a result of the Father placing his needs ahead of his relationship with his son.
The inability of the Father to prioritise the need for X to spend time with him is summarised by his own evidence in relation to what happened after he was released from gaol in 2013. The Father emphasised that on the day that he was released from gaol the first thing he did was go and see X. This was in July. The Father did not again spend time with X until September. When questioned why he did not see X between July and September 2012, it is the Father’s evidence that he needed to make arrangements to get a job, come to terms with the news his brother had cancer and “put himself in a better place” before he started seeing X again.
The Father knew that at this time X was struggling emotionally and had missed him terribly whilst he had been in gaol. Despite this, the Father was unable to put X’s needs ahead of his own at this time.
The Father’s failure to pay regular child support to the Mother in circumstances where he knows the Mother has limited financial resources and where he himself complains that the Mother does not adequately provide X with appropriate clothing and shoes is also not indicative of someone fulfilling the responsibilities of parenthood.
The Father’s actions in relation to terminating X’s counselling, as set out in detail previously in this judgement, is also not indicative of someone fulfilling the responsibilities of parenthood.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
It is the Mother’s evidence that the Father was emotionally, verbally and physically violent to her during their relationship.
The parties separated on 8 October 2009 after an incident during which the Mother alleges the Father was verbally and physically violent to her and broke her finger.
The Father concedes that he and the Mother were engaged in verbal altercations but denies any physical abuse by him.
During the hearing of the matter the case note from the Department of Human Services dated 23 February 2010 was placed into evidence. Those notes record a telephone conversation between a department case worker and the Father on 23 February 2010, in which the Father concedes that he broke the Mother’s finger. The Father was unable to recall that component of his conversation with the Department of Human Services when giving his viva voce evidence.
Subsequent to this incident the Mother obtained an Intervention Order against the Father for her and X’s protection. The Father was charged with and convicted of six breaches of that Order.
The Father does not accept any responsibility for the breaches of the Intervention Order and blames the Mother for the breaches which occurred on (omitted) 2010. It is the Father’s evidence that on (omitted) 2010 the Mother asked him to bring some food to her home as it was X’s birthday and that when he did so she rang the police. What happened however is that when the Father attended the Mother’s home he became aggressive and damaged the Mother’s sister’s car. It was this behaviour that caused the police to be called and resulted in him being charged and convicted for breaching the Intervention Order.
It is noted that these incidents of violence are now historical and are somewhat situational as they primarily relate to the period immediately surrounding the parties’ separation.
Since the making of the October 2014 Orders, the parties have been able to deal relatively sensibly with each other to the extent that they have been able to reach agreement to allow X to spend slightly longer time with his Father so that X could attend celebrations.
Section 60CC (3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Orders were initially made by consent in relation to the X’s living arrangements in November 2010.
Despite X regularly not spending time with the father in accordance with those Orders, neither party had sought to return to the Court to seek to enforce or vary those Orders until the Mother’s current application seeking to relocate to (country omitted).
It would be hoped that with the resolution of the relocation issue, neither party will have need to have recourse to the Court in the future.
Section 60CC (3)(m) any other fact or circumstance that the Court thinks is relevant.
The Independent Children’s Lawyer supports the Mother’s application to be able to relocate to (country omitted).
It is the Independent Children’s Lawyer’s position that the risk to X if the Mother’s mental health is compromised as a result of her ongoing financial emotional and practical isolation in Australia is greater than the risk to X that his relationship with his Father will be impacted by his inability to spend regular face to face time with him because of the tyranny of distance.
The Independent Children’s Lawyer proposes that Orders be made for the Mother to have sole parental responsibility for X, for X to live with Mother, for the Mother to be permitted to relocate to (country omitted) with X and for X to spend time with the Father in accordance with the Mother’s proposal.
It is the Independent Children’s Lawyer view that X should continue to spend time with the Father in accordance with the Orders made in October 2014 until such time as X relocates to (country omitted) and that such relocation should take place in or around June 2014 to enable X to settle in (country omitted) before he starts the school year in September 2014.
Presumption of Equal Shared Responsibility
Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for the child.
In this matter the Mother is seeking that the order that she have sole parental responsibility for X that was made in November 2010 continue. The Independent Children’s Lawyer supports an order being made in these terms.
It is submitted on behalf of the Mother that in the event relocation is allowed, it would not be practical for the parties to share equal parental responsibility because of the tyranny of distance.
It is also submitted on behalf of the Mother that she and the Father have real difficulty in communicating and have done so since their separation in 2009.
It is the Mother’s evidence that she feels that the Father does not respect her decisions as a parent and will not work with her co-operatively to further X’s best interest. She points to the Father’s cancellation of X’s counselling in 2013 as a prime example of the Father failing to work cooperatively in X’s best interest.
The Father is seeking an Order that he and the Mother have equal shared parental responsibility for X, whether he remains in Australia or goes to (country omitted).
It is the Father’s evidence that whilst he and the Mother have had difficulty in communicating in the past and that there is a significant lack of trust and commonality in relation to their aspirations for X, it is in X’s best interest that they both put those difficulties behind them and work together in X’s best interest going forward.
The Mother has had sole parental responsibility for X since Orders were made in November 2010.
In that period the Father has regularly failed to participate in X’s life or to contribute practically or financially to his care in any way.
Further, the Father’s action in causing X’s counselling to be terminated at a time when such counselling was desperately needed by X raises real concerns about his ability to make decisions for X that are in his best interest.
The parties have a chequered history of communication and trust and despite the Father’s protestations that these things can improve into the future, there has to be real doubt that this well ever occur, particularly when the Father feels that his rights or wishes are being overborne.
Further, in the event of relocation there would be real practical difficulties about the exercise of equal shared parental responsibility by parents with such a limited capacity to communicate.
There was also considerable violence by the Father to the Mother prior to at the time of the break-up of the relationship and in the period immediately following separation.
In all these circumstances, I am satisfied that the presumption that it is in the best interest of X for his parents to have equal shared parental responsibility is rebutted and an order will be made that the Mother continue to have sole parental responsibility for him into the future.
Consideration of Equal Time or Substantial and Significant Time
Where parents have equal shared parental responsibility for a child, section 65DAA of the Act requires a Court to consider the child spending equal time, or substantial and significant time with each parent. Where an order is made for a parent to have sole parental responsibility, the Full Court in the matter of Goode & Goode (2006) 206 FLR 212 held that the Court must still consider whether a child spending equal time or significant or substantial time is in that child’s best interest.
In this matter, the Father proposes that in the event X is not permitted to relocate that he live week about with each of the parties.
The Mother is opposed to such an arrangement and would seek that the existing arrangements continue although she is not opposed in principle to that time extending to an additional night each fortnight in the future.
It is the Father’s evidence that he believes that it is in X’s best interests that he be afforded the opportunity to spend equal time with both of his parents so that he has an opportunity to be parented equally by both of his parents and have the benefit of both parents being fully involved his life.
When questioned as to what the impact would be on X if he did not spend time with his Mother for an entire week, given that he has never spent more than one day away from her other than when she was hospitalised, it is the Father’s evidence that X would initially miss his Mother but he was sure that X would soon adjust.
It is the clear evidence of the report writer Ms O that a shared care arrangement would not be in X’s best interest.
In paragraph 50 of her family report Ms O states that the Father’s proposal for equal time would cause emotional distress for X as his relationship with the Father is in the building phase and they have not yet formed a strong attachment bond. Ms O states that in these circumstances X would feel insecure and fearful being away from his Mother who is his closest attachment figure. Ms O states that forcing X to live with the Father beyond what he is ready for would be detrimental to their relationship as that relationship needs to build at a pace that X can tolerate and feel confident about.
In paragraph 53 of her recommendations Ms O states that if X and the Mother remain in Melbourne, X should spend time with the Father each alternate weekend from Friday to Monday, every second Wednesday, half school holidays and other special days. When questioned in relation to this proposal, Ms O confirmed that she was not recommending this arrangement immediately be put in place but rather there should be gradual build-up of time between X and his Father in accordance with X’s capacity to be comfortable spending further time away with his Mother and on the basis that the father continue to show his commitment to spending regular time with X.
The High Court in the matter of MRR v GR [2010] HCA 4 considered the interrelationship between section 60CA, section 61DA (1) and section 65DAA of the Act.
Whilst in that matter an order was being made that there be equal shared parental responsibility, the observations of the High Court in relation to the interrelationship of those sections of the Act is of relevance in the consideration of this matter.
Their Honours held that the presumption in section 61DA (1) is not determinative of the questions arising under section 65DAA (1). Their Honours held that section 65 DAA (1)(b) requires a practical assessment of whether equal time parenting or significant and substantial time parenting is feasible.
In this matter, if a decision is made that it is in X’s best interest to relocate to (country omitted), then an Order that makes provision for equal time or even significant and substantial time is not practicable given the distance between Australia and (country omitted).
Conclusion
This is the Mother’s application to relocate with the parties’ son X to (country omitted).
It is the Mother’s evidence that she is emotionally, financially and practically isolated in Australia and she is seeking to return to (country omitted) where she will have the support of her family who will provide her with the practical and emotional support that will enable her to best provide for X.
The Father is adamantly opposed to X relocating to (country omitted) as he believes that X is entitled to be brought up by both his parents and that this can only take place if he remains in Australia.
The Father is concerned that the Mother will not support X to maintain his relationship with the Father in the event of relocation.
The Father is also concerned that X’s mental health will be compromised in the event of relocation as he believes that in 2013 when X became very withdrawn and distressed it was as a result of him being unable to spend time with the Father because the Father was incarcerated for a period of three months.
The Father is therefore seeking orders that X not be permitted to relocate and that the parties put in place arrangements for X to live week about with each of his parents.
The parties separated in October 2009 after an incident where the Father was physically and verbally abusive of the Mother.
The mother instituted proceedings in the Federal Magistrates Court, as it then was, in January 2010 and in November 2010 final consent orders were made which provided for the Mother to have sole parental responsibility for X, for X to live with her and for the Father to spend regular day time only with X.
Since the making of those Orders, X’s time with his Father has not been regular. X spent no time with his Father for the whole of 2012. As has been set out in this judgment, the Court is satisfied that this was primarily as a result of the Father failing to prioritise his relationship with X over his own needs at that time.
In 2013 X’s time with the Father was again disrupted as a result of the Father’s incarceration and his choice to place his own needs ahead of his relationship with X after his release from gaol.
In 2014 X’s time with his Father was again disrupted as a result of the Mother’s concerns about X’s distress after spending time with the Father during which time he reported his Father kept licking him on his face and that he was scared of his Father.
The Mother instituted the current proceedings in October 2014 seeking orders allowing her to relocate to (country omitted). On 22 October 2014 Interim Orders were made which provided for X to recommence spending time with the Father. Initially X spent day time only with the Father. The time extended to alternate weekends from Saturday morning to Sunday afternoon from February 2015.
It is common ground between the parties that the Mother first raised the possibility of returning to (country omitted) with the Father in early 2013. It is the Mother’s evidence that initially the Father agreed to that relocation but later changed his mind. It is the Father’s evidence that he has never agreed to X moving to (country omitted).
In October 2013 the Mother suffered an emotional and mental breakdown which resulted in her being hospitalised for five days and receiving counselling and psychological support for twelve months thereafter.
It is the Mother’s evidence that those mental health issues have now resolved but that she does continue at times to suffer from anxiety and depression because of her isolation and lack of financial, practical and emotional support in Australia.
It is the Mother’s proposal that if permitted to relocate to (country omitted), X spend face to face time with the Father for half of each of the (country omitted) long summer vacations, one year in (country omitted) and the other in Australia. She also proposes that X spend time with the Father during any of the (country omitted) term holidays in (country omitted) upon the Father giving her reasonable notice that he is travelling to (country omitted).
The Mother also proposes that there be regular weekly electronic communication between X and his Father utilising Skype, email and telephone.
The Mother proposes that in relation to the costs of travel, each of the parties be responsible for their costs of travelling and share the costs of X’s travel.
The Independent Children’s Lawyer supports orders being made that enable the Mother and X to relocate to (country omitted) and also supports the Mother’s proposal in relation to X spending time and communicating with the Father.
It is the evidence of the report writer Ms O that in the event X is permitted to relocate to (country omitted) with the Mother, he would be able to maintain a meaningful relationship with the Father if time and communication were to take place in accordance with the Mother’s proposal.
It is Ms O’s evidence that X, having resumed regular contact with the Father, is of an age and sufficient developmental maturity to retain a memory of his Father regardless of the amount of time they spend together and regardless of where he lives.
It is Ms O’s evidence that she believes the Mother will support X having a relationship with his Father in the event of relocation and that the Mother genuinely understands the importance to X of being able to maintain that relationship and that she will do everything that is required of her to facilitate that relationship.
It is Ms O’s evidence that for X to maintain a meaningful relationship with the Father if he were to relocate it will require both the Mother and the Father to be committed to doing all things necessary for that relationship to flourish. This includes the Father committing to regular telephone and Skype communication and to spending as much face to face time with X as is practically and financially viable.
It is the evidence of Ms O that if X and the Mother relocate to (country omitted), the Mother’s mental health and financial situation will improve and she will therefore have a greater capacity to be an available and effective parent to X.
It's Ms O evidence that as X’s primary attachment figure it is vitally important that the Mother is mentally stable and strong and that this is more likely if she is supported by her family.
Ms O expressed the view that if the Mother’s mental health, which she describes as vulnerable, were to deteriorate that would impact on her capacity to be emotionally available to and in tune with X and this in turn compromises her capacity to parent X. This cannot be seen to be in X’s best interests.
Ms O was asked whether she had any views in relation to whether relocation should or should not take place. It is Ms O’s evidence that whilst she does not have a strong view on whether or not relocation should be allowed, the Mother’s mental health is strongly related to her capacity as a parent and it is very important that X has a primary carer who is responsive and committed to him and parents him effectively and warmly. It is Ms O’s evidence that if the Mother’s mental health is compromised she will not be able to effectively parent X. It is Ms O’s evidence that if (country omitted) will support the Mother and be positive for her in the long run and her mental health therefore more stable this is a very important factor for the Court to consider on the question of relocation.
The tension between a parent’s right to pursue their own life and happiness post-separation and the entitlement of a child to have a meaningful relationship with both his or her parents lies at the very heart of the real difficulty the Court faces when determining an application for a parent to relocate. This tension becomes even more pronounced the greater the distance of the proposed relocation because of the practical difficulties of putting in place arrangements that enable a child to spend regular time with both his or her parents and to enable both parents to have an active involvement in the child’s day to day life.
Ultimately however, the living arrangements for, in this case X, must be determined in accordance with the provisions of the legislation and on the basis of what is in his best interests.
X has lived in the primary care of his Mother for all of his life, and particularly since separation.
Whilst there can be no doubt that the Father loves X and genuinely wants what is best for him, he has been an intermittent presence in X’s life since separation in October 2009.
Whilst the Father holds the Mother responsible for the disruptions in the time he has spent with X, it is apparent from the evidence that the cause of the disruptions rest primarily with the Father and are reflective of his inability to at times prioritise his relationship with X ahead of the demands of his own life.
The Mother is financially, emotionally and practically isolated in Australia. Whilst she has formed good friendships in Australia and has a supportive church community, she does not have the practical and emotional support that her family can offer her in (country omitted).
It is the Mother’s evidence, which is accepted, that if she were to return to (country omitted) she has available to her immediate employment in (occupation omitted) and that she will be able to avail herself of more employment than she is currently able to in Australia as a result of her having family available to assist in child care.
It is the Mother’s evidence that she currently works part time in Australia because of her responsibilities as X’s primary carer. This limits her income and sense of financial security.
The Father is very critical of the Mother working part time and is of the opinion that like many single parents, the Mother could assume full time work which would make her more financially secure. The Father works full time and is not available to assist the Mother to care for X if she were to work full time.
The Father has not paid the Mother child support since August 2014 and prior to that date was only paying her $45.00 per week. This is in circumstances where on his own evidence he has been earning $1,800 per week for at least the last six months.
Having considered all the relevant factors in this matter, I am of the view that it is in X’s best interest that the Mother be permitted to relocate to (country omitted) with him.
I am of the view that the Mother’s emotional and mental health and well-being will be greatly enhanced if she is able to return to (country omitted) where she will have the practical and emotional support of her family. The Mother will also be able to achieve greater financial security and will be better able to support X and to parent him to the best of her ability.
I am also satisfied that in the event of relocation X will be able to maintain a meaningful relationship with his Father if arrangements are put in place that accords with the Mother’s proposal.
I am also satisfied that the Mother will do everything in her power to support X’s relationship with his Father into the future.
The Mother is seeking to relocate with X to (country omitted) in June this year to enable time for she and X to settle before X starts his school in (country omitted) at the beginning of the (country omitted) school year in September 2014.
The Mother and X relocating to (country omitted) in June/July 2014 is supported by Ms O the report writer.
It is Ms O’s evidence that it might be in X’s best interest that he spend slightly more time with the Father between now and his departure so that when X returns to Australia to spend time with the Father he will be more comfortable with spending extended time with him.
Accordingly, orders will be made that the Mother be permitted to relocate to (country omitted) with X at the end of June 2015. This will enable X to complete term two at his current school and to arrive in (country omitted) in plenty of time to settle before he starts the new school year in (country omitted) in September 2014.
Pending relocation, orders will be made for X to spend time with his Father in accordance with the current regime, save and except his time each alternate weekend shall be extended to two nights and shall be from after school Friday to 5:00pm Sunday.
Upon relocation, orders will be made for X to spend time with the Father in the terms proposed by the Mother.
Orders will also be made that there be electronic communication either by Skype or telephone on a twice weekly basis.
There is no doubt that the Father is going to be extremely distressed by this decision and will struggle to come to terms with the reality that X will not be living in Australia. In the giving of his evidence he describes such a decision as “tearing his heart out” and used phrases like “you may as well be giving me a rope to hang myself.”
It is the evidence of Ms O that it will be vitally important for X that both parents put aside how they feel about this decision and support X’s move and that in particular, the Father reassures X that he loves him and that he will always be there for him.
It will also be very important that the Father is fully committed to spending as much face to face time as is practically and financially feasible and to communicating with X in accordance with the orders as in so doing he will ensure X’s well-being and the continuation of their relationship.
Of equal, if not more, importance is the Mother’s commitment to make sure that X understands she fully supports his relationship with the Father. She must put in place all the necessary arrangements so that X can communicate regularly with the Father and spend face-to-face time with the Father as often as is practically possible.
I certify that the preceding three hundred and five (305) paragraphs are a true copy of the reasons for judgment of Judge Bender
Associate:
Date: 17 April 2015
Key Legal Topics
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Family Law
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