Hollis and Zabala

[2017] FCCA 1481

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLLIS & ZABALA [2017] FCCA 1481

Catchwords:
FAMILY LAW – Parenting – interim hearing – mother seeking order that she be permitted to relocate the child’s residence to Western Australia from Sydney – proposed order made – best interests of child.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA

Cases cited:

Vontek & Vontek [2017] FamCAFC 28

Applicant: MS HOLLIS

Respondent: MR ZABALA

File Number: SYC 4307 of 2011

Judgment of: Judge Newbrun

Hearing date: 9 June 2017

Date of Last Submission: 6 July 2017

Delivered at: Parramatta

Delivered on: 7 July 2017

REPRESENTATION

Solicitors for the Applicant: Voros Lawyers

Solicitors for the Respondent: Self-represented

Solicitors for the Independent Children’s Lawyer: Stephen Bell & Associates

ORDERS

1. All previous parenting orders are discharged.

2. That the child X born (omitted) 2011 (“the child”) live with the Applicant mother.

3. That the parties have equal shared parental responsibility for major decisions relating to the child.

4. That the mother is permitted to relocate the child’s residence to Western Australia.

5. That the Respondent father communicate with the child as follows:

   (a)Via Skype (or similar medium such as Facebook Messenger) or telephone on 2 occasions each week on days and times suitable to the Respondent father.

   (b)At any other such times as agreed between the parties from time to time.

6. That the child communicates with the Respondent father’s sisters, nephews and nieces via Skype (or similar medium such as Facebook Messenger) or telephone on a Wednesday at 6pm Western Australian time.

7. That the Respondent father spend time with the child during school holidays as follows:

   (a)The child is to fly to Canberra or Sydney (at the father’s nomination) each 2 week school holiday period and spend the entirety of the time with the Respondent father, and he shall confirm with the mother at least 14 days prior to the commencement of such holidays his intention to spend such time with the child. The father is to allow the mother to communicate with the child during these times every evening at 6.00pm Western Australia time;

   (b)The child is to fly to Canberra or Sydney (at the father’s nomination) and spend half of the Christmas school holiday period with the father, with the father to nominate which half of such holidays he wishes to spend with the child, and his nomination shall be given to the mother at least 14 days prior to the commencement of such holidays. The Respondent father is to allow the mother to communicate with the child during these times every evening at 6.00pm Western Australia time;

8. That the Applicant mother and the Respondent father shall pay in equal shares the full amount of the return airfares for the child to fly between Western Australia and Canberra or Sydney.

9. Should the Respondent father be unable, by reason of his employment obligations, to spend time with the child pursuant to orders (7) (a) and (7) (b) above, then he shall inform the mother, at least 14 days prior to the commencement of the child’s school holidays, of the times during the child’s school holidays that he wishes to spend time with the child, and the mother shall ensure that she makes the child available to spend such times with the father accordingly, and the otherwise applicable terms of orders (7) (a) and (b) above shall apply.

10. That the Respondent father be permitted to take the child to (country omitted), during each school holiday period that he is entitled to spend with the child pursuant to the above orders, if he so wishes, provided that he pays half of the domestic air fares for the child to travel from Western Australia to Sydney or Canberra (and return), with the mother to pay the other half of such domestic air fares, and that he pay the full cost of air fares between Sydney or Canberra and (country omitted) (and return). The father shall provide to the mother a full itinerary and contact details to enable her to communicate with the child whilst she is away from the mother.

11. Each party is to provide 4 weeks’ notice to the other parent about their intention to take the child overseas. Each party must provide the other parent with a full itinerary and contact details.

12. Each party is to provide to the other party their mobile telephone number and to keep each other advised of any change in contact details.

13. That each party immediately notify the other party if the child is seriously ill or is admitted into hospital at such times as the child is living with that parent.

14. The parties shall not make denigrating remarks about the other parent in the presence of the child.

15. Neither party shall make any contribution to the legal costs of the Independent Children’s Lawyer.

IT IS NOTED that publication of this judgment under the pseudonym Hollis & Zabala is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 4307 of 2011

MS HOLLIS

Applicant

And

MR ZABALA

Respondent

REASONS FOR JUDGMENT

Introduction

1. This was the hearing of the mother’s Initiating Application filed 5 May 2016 regarding the child X born (omitted) 2011 (“the child”), and the father’s Response filed 29 July 2016.

2. In the mother’s Initiating Application, she sought a parenting order that she be permitted to relocate the child’s residence to Western Australia, together with related proposed orders.

3. In the father’s Response, he sought final parenting orders, inter alia, that the child live with the parties; the mother not relocate with the child without the written permission of the father; and other orders.

4. Trial directions were made by the court 12 December 2016, including directions for the parties to file and serve one consolidated affidavit of their evidence in chief not less than 21 days before the final hearing. As it transpired, neither party filed such a consolidated trial affidavit. At the final hearing, the father sought to rely upon his previously filed affidavit filed 29 July 2016. He also tendered copious bank statements which became exhibit C. The mother, for her part, sought to file in court with leave, which was granted, an updating affidavit, which to a significant extent, included the material in her earlier affidavit filed 5 May 2016. Following the commencement of the final hearing, the court stood the matter down in the list for a significant period to give the father an opportunity outside court to read the mother’s updating affidavit and consider what oral evidence in chief he might want to give in response to any fresh matter in the mother’s updating affidavit. Later, at the commencement of the final hearing, the father gave oral evidence in chief accordingly. The court notes at all relevant times since the first return date of the mother’s Initiating application filed 5 May 2016 the father was legally unrepresented.

Material relied upon by parties

The Applicant Mother

1. The Applicant mother relies on the following documents:

   a)Initiating Application filed 5 May 2016;

   b)Affidavit of the mother filed 5 May 2016; and

   c)Affidavit of the mother filed on 9 June 2017.

The Respondent Father

1. The Respondent father relies on the following documents:

   a)Response filed 29 July 2016;

   b)Affidavit of the father filed 29 July 2016.

2. The Exhibits in evidence were:

   a)Case Outline of the Independent Children’s Lawyer (ICL) (Exhibit A);

   b)Child Dispute Conference Memorandum dated 18 November 2016 (Exhibit B);

   c)Certain bank statements of the father (only highlighted entries), Child Support Account statements, and Child Support Assessments (Exhibit C).

Evidence

1. Throughout these reasons the court will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.

2. The father was born in (omitted) 1978 and is aged 39 years. The mother was born in (omitted) 1985 and is aged 32 years.

3. The mother has a daughter from a previous relationship, A born (omitted) 2006.

4. In about 2008 the parties commenced a relationship. They were then living together in Western Australia.

5. In about mid 2010 the parties separated. For the first 4 to 5 months of the mother’s pregnancy with the child she lived in Western Australia on her own, and her family and friends supported her.

6. The father moved to Sydney from Western Australia on his own in about November 2010. The mother was hesitant to leave Western Australia, as she did not know anybody in Sydney. The mother travelled to Sydney from Western Australia later in November 2010 with her daughter A. Then in about mid-January 2011 the mother returned to Western Australia and about one month later, in mid-February 2011, returned to Sydney.

7. On (omitted) 2011 the child was born in Sydney. The child, the parents and A commenced to live in (omitted).

8. In about July 2011, the mother left Sydney with the child and A and returned to Western Australia. The father commenced Court proceedings in this Court with a view to having the child returned to live with him in Sydney. The mother agreed, after a month in Western Australia, to return to Sydney. On 11 October 2011, consent interim parenting orders were made in the Court providing, inter alia, that the mother undertakes to reside in Sydney for 12 months commencing 7 October 2011; the parties reside together at (omitted); the parties have joint responsibility for the child; the parties have long term care and responsibility for the child; the parties agree that the mother shall be permitted to travel with the child to visit family in Western Australia upon giving 7 days’ notice to the father and the mother undertakes to return within one calendar month at any one time; that upon the expiration of 12 calendar months, the parties agree to do all such things necessary to implement final parenting orders in relation to the child. The parties, the child and A lived together in Sydney.

9. In about September 2012, the parties separated. The parties, the child and A continued to live under the one roof in the premises at (omitted).

10. In 23 November 2012 there was a physical altercation incident between the parties at their rented home, in the presence of A. A provisional ADVO was made for the protection of the mother, the child and A at this time. This order was revoked on 11 January 2013.

11. In December 2012, the mother, the child and A went to Western Australia for Christmas break. They returned to Sydney in January 2013 and continued living under the one roof with the father.

12. In 2012 and 2013, the parties, the child and A holidayed in (country omitted) to visit the father’s family. In August 2014 the father took the child on a holiday to (country omitted) to visit his family for three weeks.

13. The mother attended family domestic violence counselling at the Sydney Women’s Counselling Centre from 29 August 2014 to 5 December 2014 attending for a total of 13 sessions. She had been referred to that counselling by the (omitted) Police following a family violence related incident. In that counselling, the areas addressed included overcoming feelings of depression and isolation.

14. The parties constantly argue with each other and they do not get along. The child is often present during their verbal disagreements. The child cries when this occurs. About 2 months ago, the parties had an argument in a car the father was driving. The mother had asked the father to slow down and the father became angry with the mother. Recently the mother had accidentally put a food ingredient in the bin whilst the father was cooking, and the father yelled at the mother. The mother does not cook for the father. The father cooks his own dinner when he arrives home at about 7:30 PM from work.

15. The father has paid child support since about the time of the separation. The mother receives child support from Centrelink.

16. During the relationship, and since about December 2011, the father was in permanent employment. The father’s work hours have been from 10:30AM to 6:30PM or later, Monday to Friday, with occasional Saturday shifts, and as a result he has been unable to meet the child’s out of school hours care needs himself.

17. During the relationship, the mother was not in paid employment and was and remains the primary carer of the child and A.

18. The parties, since separation, have paid the household rent equally between them. They also pay equal shares of utility bills.

19. In about June 2015, A went to (omitted) in Western Australia to live with the mother’s sister in (omitted). A stayed with the mother’s sister until about December 2015. In about January 2016, A lived with the paternal grandfather in (omitted), Western Australia, being about two hours from (omitted). In about June 2016 A moved back to Sydney to live with the mother and the child. A was in year 4 in 2016. A and the child have a very close relationship.

20. The father was admitted to hospital in August 2016 for three weeks. During this time the mother and the child visited him and took him everything he needed.

21. The mother was diagnosed with depression in 2008. She was prescribed antidepressant medication at this time. Her depression has become significantly worse after she commenced her relationship with the father and having relocated to Sydney. She did not have any friends or family in Sydney to support her. Her antidepressant medication has increased from 25 mg per day to 75 mg per day. The mother had counselling sessions to cope with her depression. Despite her depression, the mother has been able to attend to the regular needs of the child and A.

22. The mother has never felt accepted by the father’s family from (country omitted). They have visited the father in Sydney and the mother felt unwelcome as the father’s family were speaking in their own language.

23. The mother cannot afford to rent premises on her own in Sydney. She finds the cost of living in Sydney too expensive. She is very concerned that if she continues to reside in Sydney, she will not get the support that she needs. In particular, she is concerned that if she becomes unwell she will have no one to look after her or the child and A in Sydney.

24. The mother is unhappy living under the one roof with the father and her emotional health has been compromised accordingly. The mother believes that her state of mind and mental health will significantly improve if the child and herself are able to relocate back to Western Australia. She believes that her depression will lessen living in Western Australia. She is a lot happier if she is not fighting with someone constantly.

25. The mother believes that if she is not permitted to relocate the child’s residence to Western Australia, and she remains living under one the roof with the father, with a continuance of arguments between them, this state of affairs would negatively impact upon the mental health of both herself and the child.

26. Should the mother be permitted to relocate the child’s residence to Western Australia, she proposes to obtain accommodation (and employment) for herself, the child and A in (omitted). Her sister and the maternal grandmother will assist her to obtain accommodation. The child and A would attend school in (omitted). The mother’s sister, aged 28 years, lives on a farm with her fiancé about 20 minutes out from (omitted), and she has two children, aged 1 and 8 years. The mother, despite having a previous disagreement with her sister, is now able to talk to her. The maternal grandmother lives with her new husband about 3 hours’ drive from (omitted) in (omitted). The mother gets on very well with the maternal grandmother. Presently the mother’s relationship with the maternal grandfather is strained. The mother’s aunts and uncles live in Western Australia. The mother is presently studying an (omitted) course through correspondence; she started the course in April 2017 and it is a 12 month course. She hopes to obtain employment in (omitted).

27. The cost of renting a home in (omitted) is about $280-$300 per fortnight and the mother believes she could afford such cost. The mother would receive in excess of $1,200 per fortnight from Centrelink as a result of loans she took out with them and which she repays. The father pays about $270 per month in child support being regular payments.

28. The mother wishes to spend more time with her extended maternal family in Western Australia. When her niece was born in (omitted) 2017, she was unable to see her. Spending time with the mother’s extended maternal family in Western Australia is very important to her. The child is in Year 1.

29. The mother is happy for the father and the child to continue spending regular time together. The mother is willing to facilitate the father and the child spending time together. The mother is willing to contribute to the costs of the father and the child spending time together.

30. The mother is happy for the child to regularly communicate with the father’s family via Skype. The mother is happy for the child to spend time with the father’s family.

31. The father has secured full-time employment in Canberra with the (employer omitted). The father proposes to relocate to Canberra for work purposes. The mother does not want to relocate to Canberra. The mother does not know anyone in Canberra. It is the mother’s strong view that the child’s relocation to Western Australia will also enable the child to have a good relationship with the mother’s immediate family and her extended family, including her grandparents, parties, uncles and cousins.

32. The mother believes there are better job prospects in Western Australia for herself; she wishes to enter the workforce and secure a good career so that she can financially support the child and A by having a stable job. The mother’s sister secured a well-paying job in a (employer omitted) in (omitted) without having qualifications.

33. The father believes it is not easy to find a good and well-paying job in Western Australia. He believes it would not be likely that he could find a job there. The father believes that the maternal extended family in Western Australia does not like him and he does not get on with them. According to the mother, it would likely not be practicable for the father to visit the child in (omitted) as the cost of staying in hotel accommodation there would be in excess of $1,000 for a week’s accommodation.

34. The mother’s extended family in Western Australia do not denigrate the father and do not talk to the child about the father being bad; the court accepts the mother’s evidence in this context.

35. Both parties attended a Child Dispute Conference on 18 November 2016. Each party reported a current situation where they were unable to communicate or make parenting decisions together for the child. Both parents alleged that the other was emotionally and verbally abusive; the family consultant stated that this sort of ongoing high conflict situation was likely to have an adverse impact on the development, mental health and well-being of the child and A. He stated that separated parents who continue to live in the same premises with ongoing conflict are at risk of escalations to physical violence on occasion. He opined that it was likely that the children were regularly exposed to both active (arguing, yelling, et cetera) and more passive (ignoring) displays of conflict between the parties. The family consultant stated that the parties appear to have a poor parenting relationship with little communication regarding the child. The court accepts the evidence and opinions of the family consultant.

36. The father told the family consultant that should the child be permitted to move to Western Australia with the mother that he would not make an effort to maintain their relationship. In cross examination by the Independent Children’s Lawyer, he clarified that it would be difficult for him to live in Perth by reason of employment issues. He stated that he would be willing to communicate with the child if the child was living in Western Australia.

1. The mother told the family consultant that the child feels stressed by the current situation. She said further to the family consultant that both the child and A want to return to live in Western Australia. The mother clarified with the family consultant that the child has not previously lived in Western Australia, but has visited for school holiday periods.

2. The mother told the family consultant that the child had a positive relationship with the father. The child talks well with the father. However, when the child has been on holidays, away from the father, she has not mentioned the father to the mother. On occasions, the child will not allow the father to hug her.

3. The mother told the family consultant that A’s father had died in early 2007 and that she has no involvement with members of her paternal family.

4. The mother believes that the child would cope spending her entire school holiday period with the father provided that the child could speak to the mother on a daily basis during such period. The mother believes she could afford to share the cost of air flights with the father relating to the child travelling between Western Australia and the father’s residential area, being able to obtain financial support from her extended maternal family.

5. As to the father’s financial position, the father was able to travel to (country omitted) in February 2017. The child support assessment for the assessment period 1 August 2016 to 31 October 2017 indicates that the father’s 2016 taxable income was $63,285. The father’s employment income (before tax) when he moves to Canberra will be about $64,000 per annum. The father has been informed by the child support authorities that should the mother relocate with the child to live in Western Australia, he could apply to decrease the level of child support he usually pays the mother, but that the present level of child support he pays would not significantly reduce. The father’s financial situation could well change significantly on his move to Canberra as he may be able to rent cheaper accommodation in Canberra or share accommodation.

6. Presently the father, through his employment, has the equivalent of about 20 working days for his annual holidays. If he was to spend time with the child during the child’s school holidays he would have to give his employer notice of his intention to take his work holidays during such period. The father’s employer, the (employer omitted), gives consideration to compassionate family grounds in this context.

7. Should the child’s residence be relocated to Western Australia, and the child was to fly from Western Australia to Canberra or Sydney to spend time with the father, the father would be happy for the child to fly unaccompanied if the relevant airline was to take care of the child. The father would be able to afford payment of half of the child’s airfares with the mother on such flights to and from Western Australia.

Relevant legal principles

1. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

2. In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

3. Section 60CC of the Act provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

4. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA (3).

5. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

6. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60 CC, the court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60 CC, or impracticable.

7. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the court may make such orders in the discretion of the court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

8. As to relevant legal principle relating to relocation related applications, the Court refers to the recent decision of the Full Court of the Family Court of Australia in Vontek & Vontek [2017] FamCAFC 28 and the case-law referred to therein.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration.

1. The mother has been the primary carer of the child since birth to date. The child has a meaningful relationship with the mother and the child would benefit from a continuance of that relationship.

2. The child has a meaningful relationship with the father and the child would benefit from a continuance of that relationship. In this context, the Court notes that the parties and the child have lived under the one roof since separation in about September 2012. It would appear that the child’s relationship with the father is not as strong as her relationship with the mother.

3. Should the mother be permitted to relocate the child’s residence to Western Australia, with the father living in Canberra, there will be a not insignificant reduction in the child’s time spent with the father. Nevertheless, there is a significant prospect that the child’s meaningful relationship with the father will be able to be maintained despite such reduction, particularly if the father is able to spend the full extent of his annual leave with the child, and maintain regular Skype or telephone communication with the child.

4. Should the mother not be permitted to relocate the child’s residence to Western Australia, and the mother and child are effectively required to remain living under one roof with the father for financial reasons, there is a significant risk that the mother’s emotional well-being will be further adversely affected, in particular having to endure continuing conflict with the father, with adverse consequences to her parenting capacity. Further there is a significant risk that the child’s meaningful relationship with the father, (and quite possibly the mother) would be adversely affected through being exposed to continuing conflict between the parents.

5. The Court gives significant weight to this meaningful relationship consideration.

Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The parties’ conflict with each other whilst living under one roof with the child continues unabated. The Court refers to the evidence and opinions of the family consultant that, inter alia, separated parents who continue to live in the same home with ongoing conflict are at risk of escalation to physical violence on occasion. The court refers to his opinion that it was likely that the children (the subject child and A) were regularly exposed to both active (arguing, yelling, etc) and more passive (ignoring) displays of conflict between the parties.

2. The Court notes that historically there was a physical altercation between the parties in about November 2012 which led to an interim Apprehended Domestic Violence Order taken out for the protection of the mother, child and A. The Court also notes the mother’s past counselling with the Sydney Women’s Counselling Centre.

3. The court refers to its discussion above under the meaningful relationship primary consideration. In the view of the court, should the mother and child continue to live under the one roof with the father, with continuing conflict between the parents occurring, including in the presence of the child, there is a significant risk of the mother’s parenting capacity being adversely affected with adverse flow on effects to the child, and/or for the child to experience adverse emotional effects from exposure to such conflict.

4. The court gives significant weight to this need to protect primary consideration.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The child is too young to express a relevant view.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The child has a close relationship with the mother’s daughter A and a warm relationship with her cousins and other members of the maternal extended family in Western Australia.

2. The child appears to have warm relationships with members of the father’s extended paternal family, although she has had limited opportunities to date to further develop such relationships.

3. The Court refers to its discussion above under the meaningful relationship primary consideration.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. Both parents would appear to have taken such opportunities.

(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

1. The father pays weekly child support. The Exhibit C bank statements in evidence appear to indicate that both before and after the parties’ separation the father intermittently assisted the mother financially for the payment of various expenses.

(d)  The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The Court refers to its discussion above under the meaningful relationship primary consideration.

(e) The practical difficulty and expense of a child spending time with and communicating with the 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

1. See the discussion below under the s60CC (3)(m) additional consideration.

(f) The capacity of each of the child’s parents; and 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

1. Both parents would appear to have such capacities.

(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

1. The child is 6 years of age. She attends school and is in Year 1. The father hails from (country omitted) and is of the (religion omitted) faith.

3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

1. Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The parties are in dispute in relation to how the other parent discharged their parental responsibilities to the child during the relationship. Post-separation, each party would appear to be endeavouring to discharge their parental responsibilities towards the child in a responsible manner.

(j) Any family violence involving the child or a member of the child's family.

1. The Court refers to the physical altercation between the parties in about November 2012 resulting in an interim Apprehended Domestic Violence Order being made for the protection of the mother, the child and A. The Court observes that this altercation occurred shortly after the parties’ separation in about September 2012.

2. The Court also refers to its discussion above under the need to protect primary consideration.

(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: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

1. The interim Apprehended Domestic Violence Order, referred to above, was revoked in January 2013.

(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.

1. Should the Court accede to the father’s parenting proposals, the Court has concerns that there will be a significant risk of increased conflict occurring between the parties in the presence of the child with the significant prospect of further proceedings.

m) Any other fact or circumstance that the court thinks is relevant.

1. The mother’s mental health has deteriorated whilst living under the one roof in Sydney with the father having no friends and family support in Sydney; her depression levels have increased and she has been required to increase the dosage of her antidepressant medication.

2. There is a significant prospect that the mother’s mental health will improve if she is permitted to relocate the child’s residence to Western Australia by reason of no longer being exposed to conflict whilst living in the same house as the father, having the support and closeness of an extensive maternal extended family in Western Australia, and having reduced financial obligations and greater opportunities for financial independence.

3. There is a significant prospect accordingly that the mother’s happiness will be enhanced living with the child in Western Australia, and in these circumstances there is a significant prospect that her parental capacity will be enhanced.

4. There is a likelihood that the child will not be exposed to conflict between the parents should the mother be permitted to relocate the child’s residence to Western Australia, and this will minimise the significant risk of the child’s meaningful relationship with the father being detrimentally affected through exposure to such conflict, and minimise the child experiencing adverse emotional effects herself.

5. The child, should the mother be permitted to relocate her residence to Western Australia, will have the benefit of forming closer relationships with members of the maternal extended family in Western Australia.

6. The mother is willing to facilitate the child spending her school holidays with the father. The father is likely to be able to afford to share equally with the mother the payment of airfares for the child to travel from Western Australia to spend time with him. The father is employed with the (employer omitted), and his financial circumstances may well improve living in Canberra. The mother is willing to facilitate regular Skype communication between the child and the father.

7. On the other hand, by reason of the limited extent of the father’s annual holidays with his employer, the (employer omitted), it is unlikely that the father would be able to spend time with the child for all of the child’s school holidays. The father previously has been given the equivalent of about 20 working days for his annual vacation. The father may be able to obtain permission from his employer to take his annual holidays at times when the child is on school holiday vacation on compassionate grounds.

8. In any event, it is reasonably apparent that the father’s time with the child will be significantly reduced should the mother be permitted to relocate the child’s residence to Western Australia. Nevertheless, as discussed previously under the meaningful relationship primary consideration, there is a significant prospect that the child’s meaningful relationship with the father will be able to be maintained despite such reduction, particularly if the father is able to spend the full extent of his annual leave with the child, and maintain regular Skype or telephone communication with the child.

9. On balance, the Court is of the view, evaluating the above considerations under s60CC of the Act, and having regard to relevant legal principles relating to relocation cases (see Vontek & Vontek [2017] FamCAFC 28 and the case-law referred to therein), that it will be in the best interests of the child to permit the mother to relocate the child’s residence to Western Australia.

10. The Court notes the father’s proposed parenting orders relating to relocation; it will not be in the best interests of the child to make such orders, and the Court refers to its discussion above in relation to relocation of the child’s residence to Western Australia.

11. It is noted that the mother does not seek any parenting order restricting the ability of the child to spend time with the father’s paternal extended family, whether in Australia or overseas, subject to her proposal to limit the father’s travel time with the child to (country omitted) for one week during each school holiday period. In the view of the Court, such a one week restriction is unreasonable and impractical, and the Court is of the view that it will be in the best interests of the child to make a parenting order enabling the father to take the child to (country omitted) during any school holiday period that he is entitled spend with the child (see the Court’s proposed orders below).

12. Such an order will, for example, enable the father and child to travel to (country omitted) in December/January school holidays. Noting the mother’s agreement to pay half of the costs for domestic fare travel between Western Australia and Sydney or Canberra, and the father’s desire to travel to (country omitted) with the child for up to 4 weeks, it will be in the best interests of the child to order that the mother pay half of the domestic air fares between Western Australia and Sydney or Canberra (and return) on such trips that the father and child take to (country omitted).

13. As to Skype (or similar medium such as Facebook Messenger) or telephone communication between the child and the father should the child be living in Western Australia, the mother’s proposal for there to be Skype communication only once per fortnight is, in the view of the Court, too limiting in the circumstances, and the Court is of the view that it will be in the best interests of the child for the father to have Skype or telephone communication with the child on two occasions each week on days and times suitable to the Respondent father. The father sought Skype communication “at any time” but in the view of the Court, such proposal would carry the real risk of conflict between the parties and would be too intrusive in all the circumstances noting the state of the parties’ relationship involving constant arguments.

1. As to Skype (or similar medium such as Facebook Messenger) or telephone communication between the child and the father’s extended family (who usually reside in (country omitted)) should the child be living in Western Australia, the mother’s proposal for there to be Skype communication only once per fortnight is, in the view of the Court, too limiting in the circumstances, and the Court is of the view that it will be in the best interests of the child for the father’s extended family to have Skype (or similar medium such as Facebook Messenger) or telephone communication with the child on a Wednesday at 6pm Western Australian time. The father’s proposal for such communication “minimum 4 times a week” would carry the real risk of conflict between the parties and would be too intrusive in all the circumstances noting the state of the parties’ relationship involving constant arguments.

2. As to the court’s orders as to the paying of air fares for the child’s travel to spend time with the father (and his extended family in (country omitted)), the court has noted the father’s superior financial position to the mother, with the mother presently on Centrelink benefits and yet to secure employment.

3. The ICL seeks costs of $1182.50 being half “of total costs.” The mother is legally aided. The father seeks to be released from any obligation to pay such costs. He submits that he recently borrowed some money from a friend to pay certain house deposits in Canberra and for a removal van. He states that due to high loan repayments, he is not financially capable to pay the ICL’s costs. Noting the father’s employment income, and the above financial matters he has raised, the court is of the view that the father would suffer financial hardship if he was ordered to pay any part of the ICL’s proposed costs, and the court will make an order that neither party make any contribution to the ICL’s costs.

4. The Court is of the view that the father’s proposed parenting orders 15-19 and 21 are not in the best interests of the child; there is some force in the submission of the Independent Children’s Lawyer that these proposed orders appear to evince an intention on the part of the father to control the mother unreasonably. As to the father’s proposed order 20 and 22, the evidence presently before the Court would not justify the making of these orders and they would not be in the best interests of the child.

5. In the final written submissions of the father, which written submissions had been forwarded by the father to both the mother’s solicitors and the ICL, the father sought to raise additional facts relating to his proposed move to Canberra from Sydney. He alleged that he had just signed a 12 month lease at residential premises in (omitted) in the ACT, with the weekly rent being $390.

6. The father asserted that the mother could live in this leased property with the child and A by themselves. He asserted that he could move out of the premises within one month’s time, once he had found himself a shared accommodation “to the adjacent postcodes in ACT”. The father asserted that he was willing to contribute to share half of the Internet connections and utility bills on top of his child support. He stated he was “willing to assist (the mother) to find a suitable accommodation. She has the option to share the property with someone else other than me or her mother can provide her financial assistance. The mother can use my furniture (at the least property).”

7. At no time did the father seek leave to reopen his case with a view to introducing such above alleged fresh factual material, and the court pays no regard to it. Apart from the fact of the alleged new lease, it was perfectly open to the father to have made such proposals in principle prior to or at the final hearing, which he failed to do. Further, and in any event, the court notes the evidence of the mother at the final hearing that she does not know anyone in Canberra, and she does not want to relocate to Canberra, and it is her strong desire to relocate to Western Australia to be close to her family there. Finally, the court notes that the mother had been sent the father’s written submissions, and her own written submissions do not express any wish to accept the father’s alleged fresh Canberra proposals.

8. The father also annexed to his final written submissions some copy medical certificates, and an annual leave document (the latter document merely confirming the father’s evidence at trial) which could have been tendered in evidence at the final hearing. The court pays no regard to these documents. In any event, even if tendered in evidence at that time, they would not have caused the court to alter its conclusions in this case.

Equal shared parental responsibility: section 61DA(1) and (2)

1. Both parties seek an order for equal shared parental responsibility.

2. Whilst the parties have had difficulties agreeing on minor matters relating to the child, the Court anticipates that the parties will probably be able to reach agreement on major decisions affecting the child in the future. In this context the Court refers to the father’s oral evidence that, for example, he would likely abide by the mother’s decisions on schooling and health as affecting the child in the future.

3. In the view of the Court, it will be in the best interests of the child for the parents to have equal shared parental responsibility for major decisions relating to the child.

4. The presumption of equal shared parental responsibility does not apply by reason of past family violence. In any event, an equal time order or orders for substantial and significant time would not be in the best interests of the child from a practicality perspective.

Summary

1. Evaluating the above discussed considerations under section 60CC of the Act, and again applying relevant legal principles in relation to relocation cases (Vontek & Vontek, above, and the cases referred to therein), the Court is of the view that it will be in the best interests of the child to make the following orders:

   (1)    All previous parenting orders are discharged.

   (2)That the child X born (omitted) 2011 (“the child”) live with the Applicant mother.

   (3)That the parties have equal shared parental responsibility for major decisions relating to the child.

   (4)That the Applicant mother is permitted to relocate the child’s residence to Western Australia.

   (5)That the Respondent father communicate with the child as follows:

   (a)Via Skype (or similar medium such as Facebook Messenger) or telephone on two occasions each week on days and times suitable to the Respondent father.

   (b)At any other such times as agreed between the parties from time to time.

   (6)That the child communicates with the Respondent father’s sisters, nephews and nieces via Skype (or similar medium such as Facebook Messenger) or telephone on a Wednesday at 6pm Western Australian time.

   (7)That the Respondent father spend time with the child during school holidays as follows:

   (a)The child is to fly to Canberra or Sydney (at the father’s nomination) each 2 week school holiday period and spend the entirety of the time with the Respondent father, and he shall confirm with the mother at least 14 days prior to the commencement of such holidays his intention to spend such time with the child. The father is to allow the mother to communicate with the child during these times every evening at 6.00pm Western Australia time;

   (b)The child is to fly to Canberra or Sydney (at the father’s nomination) and spend half of the Christmas school holiday period with the father, with the father to nominate which half of such holidays he wishes to spend with the child, and his nomination shall be given to the mother at least 14 days prior to the commencement of such holidays. The Respondent father is to allow the mother to communicate with the child during these times every evening at 6.00pm Western Australia time;

   (8)That the Applicant mother and the Respondent father shall pay in equal shares the full amount of the return airfares for the child to fly between Western Australia and Canberra or Sydney.

   (9)Should the Respondent father be unable, by reason of his employment obligations, to spend time with the child pursuant to orders (7) (a) and (7) (b) above, then he shall inform the mother, at least 14 days prior to the commencement of the child’s school holidays, of the times during the child’s school holidays that he wishes to spend time with the child, and the mother shall ensure that she makes the child available to spend such times with the father accordingly, and the otherwise applicable terms of orders (7) (a) and (b) above shall apply.

   (10)That the Respondent father be permitted to take the child to (country omitted), during each school holiday period that he is entitled to spend with the child pursuant to the above orders, if he so wishes, provided that he pays half of the domestic air fares for the child to travel from Western Australia to Sydney or Canberra (and return), with the mother to pay the other half of such domestic air fares, and that he pay the full cost of air fares between Sydney or Canberra and (country omitted) (and return). The father shall provide to the mother a full itinerary and contact details to enable her to communicate with the child whilst she is away from the mother.

   (11)Each party is to provide 4 weeks’ notice to the other parent about their intention to take the child overseas. Each party must provide the other parent with a full itinerary and contact details.

   (12)Each party is to provide to the other party their mobile telephone number and to keep each other advised of any change in contact details.

   (13)That each party immediately notify the other party if the child is seriously ill or is admitted into hospital at such times as the child is living with that parent.

   (14)The parties shall not make denigrating remarks about the other parent in the presence of the child.

   (15)Neither party shall make any contribution to the legal costs of the Independent Children’s Lawyer.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  7 July 2017