FAMILY COURT OF AUSTRALIA
| HUTCHESON & MELI | [2016] FamCA 400 |
| FAMILY LAW – CHILDREN – relocation – where the mother seeks an order that she be permitted to relocate – where the father opposes the mother’s application – where the Court finds that the mother would suffer emotionally and psychologically if not permitted to relocate – where consideration is given to the benefit to the child of maintaining a meaningful relationship with both parents – where it is found that it is not in the child’s best interests for the parents to have equal shared parental responsibility – where the mother is permitted to relocate but is required to remain in Australia for a short period to enable the establishment of a relationship between the child and father – where the mother is required to provide security for the father’s travel to spend time with the child. |
| Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 60DAA |
| APPLICANT: | Mr Hutcheson |
| RESPONDENT: | Ms Meli |
| FILE NUMBER: | ADC | 2177 | of | 2014 |
| DATE DELIVERED: | 25 May 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 1-5 Feb 2016, 8-10 Feb 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Anderson |
| SOLICITOR FOR THE APPLICANT: | Duncan Basheer Hannon |
| COUNSEL FOR THE RESPONDENT: | Ms Lewis |
| SOLICITOR FOR THE RESPONDENT: | Clelands |
Orders
The mother MS MELI have the sole parental responsibility of the child B born in 2011 (“the child”).
The child live with the mother.
Subject to paragraph 28 hereof after the 17 August 2016 the mother be at liberty to relocate the child’s residence to the United Kingdom (“UK”).
Pending the mother and child relocating to the UK the child spend time with the father MS HUTCHESON (“the father”) in accordance with paragraphs 3(d) and 4 of the orders of 10 February 2016.
All handovers for the purposes of paragraph 4 take place at the Suburb C Children’s Contact Centre or if not available Hungry Jacks, Suburb D.
All communication between the parties prior to the relocation of the mother and child take place via the communication book or by text message in the case of an emergency and following relocation by email and in an emergency by text message.
Upon the child commencing to reside in the UK the child shall spend time with the father as follows:
(a)During the 2017 year:
(i)for up to two [2] weeks during the child’s UK term break in February/March 2017 being in each week from 5.00 pm Monday until 5.00 pm Wednesday and from 5.00 pm Friday until 5.00 pm Sunday;
(ii)for up to four [4] weeks during the child’s UK summer holidays commencing in July 2017 being in each week from 5.00 pm Monday until 5.00 pm Wednesday and from 5.00 pm Friday until 5.00 pm Sunday;
(iii)during the UK December 2017/January 2018 term break in Adelaide, Australia from 5.00 pm on 24 December 2017 until 5.00 pm on 27 December 2017 and from 5.00 pm on 29 December 2017 until 5.00 pm on 1 January 2018;
(b)During the 2018 year:
(i)for up to two [2] weeks during the child’s UK term break in February/March 2018 being in each week from 5.00 pm on Tuesday until 5.00 pm on Sunday;
(ii)for up to four [4] weeks during the child’s UK summer holidays each year commencing in July 2018 being in each week from 5.00 pm on Monday until 5.00 pm Sunday;
(c)During the 2019 year and each year thereafter:
(i)for up to two [2] weeks during the child’s UK term break each year in February/March from 5.00 pm on the first Monday in the holiday time until 5.00 pm on the second Friday in the holiday time;
(ii)for up to four [4] weeks during the child’s UK summer holidays each year commencing in July 2019 from 5.00 pm on Monday in the first week until 5.00 pm Sunday in the fourth week;
(d)During the UK December 2019/January 2020 term break in Adelaide, Australia and in each alternate year thereafter from 5.00 pm on 24 December until 5.00 pm on 1 January.
The father spend time with the child at such other times as may be agreed between the parties in writing by email.
For the purposes of all handovers that are to take place following the mother’s relocation for such time to occur in the UK shall take place with the mother to deliver and collect the child to and from the father’s accommodation in the UK unless otherwise agreed in writing by email or text message and for time in Australia at an address in Adelaide nominated by the mother with the father to collect and deliver the child to and from the mother.
To facilitate the time provided for in paragraph 7 hereof which is to occur in the UK the mother shall pay for the father to travel between Adelaide and UK (economy return airfares) PROVIDED THAT the father provides to the mother no less than three [3] months’ notice in writing to the mother’s email address of the father’s intention to travel to the UK to spend time with the child.
On the father providing notice to the mother in accordance with paragraph 10 hereof the mother shall provide to the father by email confirmation of the father’s paid air travel with such confirmation being provided not less than two [2] months prior to the father’s travel.
To facilitate the time provided for in paragraph 8 hereof the father be responsible for his own travel costs and that the father provides to the mother no less than three [3] months’ notice in writing to the mother’s email address of the father’s intention to travel to the UK to spend time with the child.
After the mother and child have moved to the UK the mother shall facilitate the child communicating with the father by Skype and by telephone and/or any other type of electronic communication with such communication to be instigated by the father as follows:
(a)each Sunday between 10.00 am and 12 Noon (UK time);
(b)at any other time the parties agree;
(c)at any other reasonable time the child expresses the wish to do so;
(d)on Christmas Day each year if the child is not with the father between 10.00 am and 12 Noon (UK time);
(e)on the father’s birthday each year between 10.00 am and 12 Noon (UK time);
(f)on the child’s birthday each year between 10.00 am and 12 Noon (UK time) or if a school day between 7.30 am and 8.00 am (UK time).
When the child is in Adelaide, Australia the father facilitate communication between the child and the mother on Christmas Day.
During the overnight period of time the child spends with the father in Australia, the mother be at liberty to have telephone communication with the child between 6.00 pm and 7.00 pm (Australian Central Summer Time) at least twice each week and when the child is with the father in the UK between 6.00 pm and 7.00 pm (UK time) at least twice each week.
The child be at liberty to communicate with the other parent at any reasonable time the child expresses the wish to do so.
At any time the chid is unreasonably distressed during the periods of time she spends with the father she be permitted to return to the care of the mother for such period as is necessary to resolve her distress.
The mother inform and keep the father informed of the following:
(a)the address, contact telephone number and email address at the child’s residence;
(b)the name, address and contact telephone number of the school attended by the child;
(c)any emergency affecting the child;
(d)any extra-curricular activities the child participates in.
The mother shall provide to the father photographs of the child not less than twice per year.
The father inform and keep the mother informed of the following details in respect of all periods the child is spending time with him:
(a)a contact mobile telephone number at all times;
(b)the address of his accommodation in the UK and Australia at all times; and
(c)any emergency affecting the child.
Not less than three [3] weeks before arriving in the UK to spend time with the child pursuant to these orders, the father provide written notice to the mother by email and that the written notice contain the following:
(a)a proposed itinerary; and
(b)his address in the UK and contact telephone number(s).
The father ensure that his accommodation in the UK is not more than 10 miles (16 kilometres) from the child’s normal residence at all times.
The mother is authorised to make an application for the child to obtain a passport from time to time and that the father is to do all such things and sign all such documents as may be necessary for the periodic renewal of the child’s passport.
The father be restrained and an injunction is granted restraining him from:
(a)removing the child from the UK during any period he is to spend time with her in the UK; and
(b)using illicit substances or alcohol for twenty-four [24] hours prior to and for the duration of all periods he spends with the child.
Both the mother and father are restrained and an injunction is granted restraining them from:
(a)denigrating the other party or their family or allowing any other person to denigrate the other party to the child or in the presence of the child;
(b)abusing or threatening either party or any members of either of their family; and
(c)disseminating derogatory or defamatory material about the other party or any members of the other party’s family via any method including but not limited to social media, telephone or email.
The mother keep the father informed at all times as to the name and address of the child’s school and that the mother do all such things and sign all such documents (if necessary) to enable the father to receive direct from the child’s school any school reports, memorandums or notices.
The child be removed from the Airport Watch List forthwith.
At least ten [10] days prior to the mother and child departing to live in the UK the mother provide to the father’s solicitors the sum of ONE HUNDRED THOUSAND DOLLARS [$100,000.00] to be held in an interest bearing trust account and not to be released to the father SAVE AND EXCEPT for travel costs for the father and child upon written proof of the failure of the mother to abide by the orders for payment of travel costs or upon further orders of this Court relating to any application for enforcement of these orders with the balance and accrued interest to be returned to the mother by the solicitors on 30 June 2025.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hutcheson & Meli has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 2177 of 2014
| Mr Hutcheson |
Applicant
And
| Ms Meli |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Initiating Application filed 12 January 2015 Mr Hutcheson (“the father”) sought final orders for the parenting arrangements of B born in 2011 (“the child”). The orders sought stipulate that the mother shall not relocate from Australia to the United Kingdom until 2020.
By Amended Response to Initiating Application filed 19 November 2015 Ms Meli (“the mother”) also sought final orders for the parenting arrangements of the child, in particular that she be at liberty to relocate the child’s residence to the United Kingdom forthwith.
Background
The father was born in Australia in 1980 and was 35 years of age at the time of trial. The mother was born in Asia in 1973 and was 42 years of age at the time of trial.
The father was born and remains living in Adelaide. His family are traditionally European and it is his evidence that he maintains his language, tradition and culture. The father has continued to work in the family business since completing high school.
The mother was born in Asia. Her father is a British National of North Asian descent. Her mother is a European National . The mother lived in Asia until she was 13 years of age. Her family then relocated where she completed her secondary school education. Following completion of year 12 the mother relocated to the UK where she completed a course in business and hotel management. After working for many years in the UK the mother returned to Asia to live closer to her extended family. The mother then travelled between UK, Asia and the Middle East before moving to Asia in early 2010.
The parties met in Asia in September 2010. They had a short sexual relationship for a total of 10 days. In October 2010 the mother discovered she was pregnant. The parties decided to pursue a relationship and on 4 April 2011 the mother moved to Adelaide.
The parties married in 2011.
In 2011 the child was born.
The parties initially lived on a farm in E Town, South Australia before moving to G Town, South Australia not long after the child was born. The parties lived in G Town temporarily before moving into a rental property in H Town.
After the child was born the father continued his employment at a farm in E Town. In late 2011 he ceased employment with on the farm and worked with his father at I Pty Ltd. The father resigned from I Pty Ltd in February 2012 returning to agricultural employment.
In April 2012 the mother purchased the property at J Street, Suburb K (“the Suburb K property”). The property was purchased in the mother’s sole name using funds advanced to her by her father. The mother understood that the money would need to be repaid, while the father considered the money a gift from the mother’s father. The property was run down and required considerable renovating and development.
The father ceased his employment from about April 2012 to oversee development of the Suburb K property. Following some renovations the parties moved into the property in June 2012.
The father commenced employment at L Pty Ltd in Suburb M in late 2012 and worked sporadically until early 2013.
On 11 February 2013 the parties separated following significant disputes and disagreement.
In February 2013 the mother travelled to Asia with the child to renew her residency. The mother and child remained overseas until December 2013. The mother and the child also spent time in South Asia, the United Kingdom and parts of Europe. While overseas the father visited the mother and child in the UK for 10 days. The mother maintains that during this time the parties maintained regular communication. The father disputes this.
In October 2013 the father leased a venue in Suburb M with the intention of opening a business. The business opened in February 2014. The business was unsuccessful and shut down after approximately 12 months.
The mother and child returned to Adelaide on 24 December 2013 after approximately 10 months living overseas. The parties remained separated.
While the mother was overseas limited renovation and development had been completed on the Suburb K property. It is the mother’s position that the property was not in a condition that was adequate for habitation. While the mother was overseas the father had remained living at the home.
On 11 March 2014 the father moved out at the request of the mother. After the father left the mother alleges she found four marijuana plants and hydroponic equipment in the basement of the Suburb K property. The mother discovered what she considered to be a room that had been established for the purpose of growing a larger quantity of cannabis. The mother dismantled the set up and changed the locks of the Suburb K property.
The mother asked the father to remove the plants however upon him failing to do so she telephoned the police in April 2014.
On 30 March 2014 the mother’s father arrived in Australia. The mother’s sister arrived a few weeks later. Together the mother’s family carried out work on the Suburb K property. The mother continues to reside at the Suburb K property with the child. She says she continues the renovation and development work.
The mother sought an intervention order in May 2014 following the father threatening her life during a telephone conversation. The interim intervention order was granted on 22 July 2014 initially naming the mother and child as protected persons. The final order, made on 20 November 2014 names only the mother.
Since separation the child has remained in the mother’s care spending some time with the father. The mother has not facilitated overnight time between the father and child as she had concerns regarding the father’s drug use. The father denies consuming illicit substances now but he admits he has done so in the past.
The father commenced proceedings on 20 June 2014. Since 19 February 2015 the father continued to spend time with the child each Wednesday from 3.30 pm to 6.30 pm. That time was to take place “substantially” in the presence of his family members.
The orders of 10 February 2016 made at the conclusion of the trial provided that from 16 April 2016 the child is to spend alternate weekends with the father.
Order Sought
A summary of the orders sought by the father at the conclusion of the trial are as follows:
1.That the parties have equal shared parental responsibility until the mother is permitted to relocate;
2.That the father have sole parental responsibility for the child’s vaccinations;
3.That the child live with the mother in Australia until December 2020 or at such later time as the child shall relocate from Australia to the United Kingdom;
4.That the child spend time with the father on a weekly basis providing for a graduated approach to the child re-establishing a relationship with the father;
5.Detailed orders regarding holidays and special occasions;
6.That upon the child taking up residence in the United Kingdom the child shall live with the mother and spend time with the father for four weeks during the United Kingdom school holidays in the United Kingdom and for two weeks in the United Kingdom Christmas holidays in Australia with expenses in respect of travel to be paid by the mother;
7.That the mother provides security to the father in the amount of $150,000 in relation to the mother’s obligations to meet travel expenses.
A summary of the orders sought by the mother are as follows:-
1.That the mother have sole parental responsibility;
2.That the child live with the mother;
3.That the mother be at liberty to relocate the child’s residence to the United Kingdom after 17 August 2016;
4.That during the 2017 year and thereafter upon the child commencing to reside in the United Kingdom the father spend time with the child for varying times including in the United Kingdom during the term school holidays (including some overnight times) increasing to substantial holiday times in the United Kingdom in 2019 and alternate December/January holidays in Australia;
5.Should the father fail to spend time with the child in any year then the father’s time in subsequent years shall be suspended pending the father spending the missed periods of time with the child, such that the gradual extension of time between the child and father can be maintained;
6.That the mother shall pay for the father’s air travel between Adelaide and UK but that the father shall pay all other reasonable travel costs.
7.That the mother facilitates the child regularly communicating with the father;
8.That the parties keep each other informed of updated contact details and residence as well as emergencies affecting the child’s welfare;
9.That 4 weeks prior to the father arriving in the United Kingdom to spend time with the child he provides to the mother a proposed itinerary and his address and contact number in the United Kingdom;
10.That the mother have sole responsibility for the child’s passport;
11.Various injunctions restraining the father from taking the child out of the United Kingdom unless agreed and from denigrating the mother in the presence of the child or from discussing the proceedings with the child, and further restraining him from consuming illicit substances or alcohol for 24 hours prior to and during all periods he spends with the child;
12.That the parties obtain from a court of competent jurisdiction in the United Kingdom recognition pursuant to Article 24 and a declaration of enforceability in the United Kingdom pursuant to Article 26 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children signed at the Hague on 19 October 1996 (“the Child Protection Convention”) of the orders of the Family Court of Australia made in these proceedings;
13.That the father pay the mother’s costs of and incidental to these proceedings.
The Law
Part VII of the Family Law Act 1975 (Cth) (“the Act”) relates to children’s matters. Sections 60B, 60CA, 60CC and 65DAA are significant in this matter.
Section 60B
Object of Part and principles underlying it
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.
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).
For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Note: The text of the Convention is set out in Australian Treaty Series 1991 No. 4 ([1991] ATS 4). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website ( 60CA
Child's best interests paramount consideration in making a parenting order
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 60CC
How a court determines what is in a child’s best interests
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
Additional considerations are:
(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;
(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);
(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; and
(iii)to communicate with the child;
(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;
(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;
(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 person relations and direct contact with both parents on a regular basis;
(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;
(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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)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
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(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;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
Consent orders
If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
For the purposes of paragraph (3)(h), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
Section 61DA
Presumption of equal shared parental responsibility when making parenting orders
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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b)family violence.
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.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Section 65DAA
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Consent orders
If:
(a)the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b)the order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
Note: Section 60CA requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order.
Procedural history
The trial commenced before me on 1 February 2016 with final submissions being heard and judgment reserved on 10 February 2016. The parties were represented by counsel.
The father relied upon the following documents:
a)Amended Initiating Application filed 12 January 2015
b)Affidavit of Ms N filed 18 December 2015
c)Affidavit of Ms O filed 18 December 2015
d)Affidavit of Ms P filed 18 December 2015
e)Affidavits of the father filed 21 December 2015 and 1 February 2016.
In addition the father relied upon his case outline document filed 27 January 2016.
The mother relied upon the following documents:
a)Amended Response to Initiating Application filed 19 November 2015
b)Affidavit of Ms Q filed 1 December 2015
c)Affidavit of Mr R Meli filed 12 January 2016
d)Affidavit of Ms S filed 12 January 2016
e)Affidavit of Ms T Meli filed 12 January 2016
f)Affidavit of the mother filed 12 January 2016
In addition the mother relied upon her case outline document and orders sought as well as an aide memoire to closing submissions received on 10 February 2016.
On the first day of trial counsel for the mother tendered an agreed list of objections. The objections related to the affidavit of the mother, the affidavit of Ms T Meli and the affidavit of Mr R Meli each filed on 12 January 2016. A number of paragraphs were struck out by agreement between the parties.
On 10 February 2016 orders were made that provided pending delivery of final judgment:
1.The child [B] (“the child”) born on … 2011 live with the mother.
2.That the name of the female child [B] born on … 2011 be placed upon the Watch List maintained by the Australian Federal Police and that the Australian Federal Police be directed to place the said child on the Watch List for a period of two years.
3.The child spend time with the father as follows:
(a)SAVE AND EXCEPT that which will occur on the weekends of Sunday 13 March 2016 and Saturday 19 March 2016 each Saturday from 10.00 am until 5.00 pm;
(b)on Sunday 13 March 2016 from 10.00 am to 5.00 pm with handover at the McDonalds Restaurant, [Suburb U] with [Ms O] attending;
(c)on Saturday 19 March 2016 from 11.00 am to 7.00 pm with handover at the McDonalds Restaurant, Suburb U by a person agreed between the parties’ solicitors in writing prior to 1 March 2016 otherwise by the father;
(d)on Wednesday 22 June 2016 from 3.30 pm to 6.30 pm with handover to take place at Hungry Jacks, [Suburb D];
4.Thereafter commencing on Saturday 16 April 2016 each alternate weekend from 9.00 am Saturday until 5.00 pm on Sunday with handovers save as otherwise specified at the [Suburb C] Children’s Contact Centre and pending acceptance into that programme to be at Hungry Jacks, [Suburb D].
5.The parties do all things required of them to enrol in the [Suburb C] Children’s Contact Centre within seven [7] days.
6.The parties communicate with the other in relation to the child’s health, welfare and care via the communication book to be exchanged between the parties at the commencement and conclusion of time and in the event of an emergency by text message.
7.The child be at liberty to communicate by telephone with the other party at any reasonable time the child expresses the wish to do so.
8.The mother and father keep the other of them informed at all times of their residential address and contact telephone number and any change thereto.
9.Each parent shall advise the other of them as soon as is practicable of any serious accident or medical emergency involving the child by text message.
10.The mother and father are restrained and an injunction is granted restraining each of them from:
(a)denigrating the other party or members of their family or allowing any other person to do so in the presence or hearing of the child;
(b)abusing or threatening the other party or members of their respective family or allowing any other person to do so;
(c)using any illicit substances prior to or during any periods of time they spend with the child.
11.The father be restrained and an injunction is granted restraining him from consuming any alcohol for 12 hours prior to or during any times he spends with the child.
Evidence
The father
The father’s affidavit filed on 21 December 2015 provided a detailed history of the relationship between the parties and the difficulties they have experienced during the time that they resided together. The affidavit also sets out detailed evidence in relation to the properties at which the parties resided and the work the father claimed he carried out in relation to the properties. He dealt briefly with the role that he played in caring for the child prior to the separation of the parties.
The affidavit also contains detailed information concerning the litigation and steps taken by the parties in attempting to make arrangements for the care of the child since the litigation commenced.
During the cross-examination the father agreed that the mother had from time to time been upset about living in Australia and that there had been discussions about her living elsewhere, either in Asia or the United Kingdom.
The father was specifically asked about the threat he had made to “kill the mother”. He originally denied it. When he was provided with the affidavit of the mother showing the transcript of the conversations, he then said that he recalled that day. When asked if he recalled threatening to “kill her” he then said “Yes” and said words to the effect that “at times he becomes over-emotional and did not recall some things”.
He was questioned at length about his employment changes. He also conceded in cross-examination that the mother was unhappy from time to time and had indicated that she missed her family.
The father denied the allegations that he had grabbed the mother by the hair or that there had been an occasion when he had screamed at the mother close to her face. He conceded that there had been occasions when he and the mother had argued and yelled at each other. He denied that any of the behaviour was scary for the child.
After I ruled that the Court could receive the transcript and audio of the telephone conversation, the father agreed that it was an accurate recording.
When asked whether he would consider living overseas, if the mother were permitted to move overseas, the father said that he would never live in the UK and that he had no need to live there. He said initially that he would visit her but not live there. Later this evidence changed.
When asked about his current relationship with his girlfriend, Ms P, he said that he stays with her from time to time but that they are not engaged.
During cross-examination he admitted that the child was now intelligent and that he supported her attendance at the W School. He also agreed that if the child were living in the UK he would be able to communicate with her using Facebook and have other online correspondence.
The father was cross-examined at length about the room in which the mother had asserted that he had been growing marijuana. He said it was growing there before the separation.
The father agreed that he had sent emails to the mother in August 2013 asking her if she would agree to him growing marijuana in their home. This was the email which referred to “Scooby doo in the dungeon”. He conceded that he had sent these emails to the mother with a view to getting her to agree to him growing marijuana in their matrimonial home. He also agreed that she did not consent to this.
The father also gave evidence about his sister and her husband and confirmed that he knew they were growing marijuana in one of their houses. He conceded in the past that he had smoked marijuana regularly, but denied that he had continued to do this. He also maintained that the mother consumed marijuana at the same time.
During further cross-examination the father denied that he consumed alcohol to excess. When he was cross-examined about the offence for which he was charged in relation to driving with excess alcohol reading, his evidence was that on a day that he was due to collect the child and spend time with her, he had told the mother that he had had a car accident on the way. He did not however tell the mother that his alcohol reading had been .107 on that occasion. His attitude towards the offence did not disclose that he understood and accepted the mother’s subsequent concern that he had such a high alcohol reading at a time shortly before he was due to collect the child.
Further cross-examination continued on Thursday 4 February 2016. The father then said that he would be happy to meet the mother with the child in a neutral place, but not UK. He conceded that he was asking the mother to pay for his travel costs and accommodation costs, and that if the arrangements to meet with the child were some distance from UK, the mother would also have to pay for the mother and child’s costs of travel.
The father conceded that he had not made any enquiries about the schooling arrangements the mother was proposing.
During this cross-examination he also conceded that he had previously in 2013 told the mother that he would not stand in the way of the mother living overseas with the child. He had said this both in person and in emails to the mother. He said that this was irrelevant now because that was something that they had discussed when there were amicable arrangements.
During the cross-examination the father conceded that he had no criticism of the mother’s parenting of the child. He said that she was a great mother. He agreed that the child was polite. He conceded that he had positive interaction with the child and said that she was a “fantastic little angel”.
During re-examination the father indicated that he would agree to an order that restrained him from consuming alcohol 12 hours prior to or when he has the child in his care.
He also confirmed during re-examination that he said there was no prospect of him relocating to the UK to work and that he did not have any business or family contacts in the UK.
A further affidavit of the father which was received on 1 February 2016 referred to the father’s evidence and response to the mother’s affidavit. In that affidavit he denied the mother’s allegations of physical violence. He referred to the recording in which he made threats of violence and said at the time he was “suffering mentally” (paragraph 77 of affidavit filed on 1 February 2016). He said that during the recorded telephone conversation he was quite emotional and “beside myself and had become very upset”.
The father referred to the mother throwing things at him, hitting him and damaging property. He also alleged that she fabricated stories. He alleged that the mother had threatened to shoot him if he did not let her relocate to live in another country (paragraph 78).
In paragraph 86 of that affidavit he says:
I am ashamed to say that this was my worst outburst and after reading this transcript I am disgusted with what I was reduced to while living with her and I am so glad that I decided to separate from her after her return to Australia.
Assessment of the father’s evidence
The father did not present as understanding the consequences of his past behaviour, including the threats to the mother. He did not give reliable evidence about being unwilling or concerned about his ability to visit UK to spend time with the child.
His evidence confirmed the ongoing poor relationship between him and the mother.
Ms O
The father’s sister, Ms O (document 42) gave evidence. Her affidavit describes the relationship she had with the father when they were children and separated. When their parents divorced she lived with her mother, whilst the father lived with his father. They shared some weekends and school holidays. Her affidavit referred to “Uncle X”. It was at his home in Asia that the mother and father met in 2010.
The affidavit sets out the observations of the mother and father at that time in Asia and subsequently in Australia. It also refers to the consumption of marijuana by the mother and father in Asia.
The evidence continues to describe the relationship and interaction between the witness and the mother and the child. This evidence included evidence about incidents when the mother and father were arguing and also arguments between the witness and the mother herself.
The affidavit contains many supportive opinions suggesting that the difficulties in the relationship were caused primarily by the mother. The affidavit also suggests that the father has an excellent relationship with the child.
When cross-examined by counsel for the mother, the witness confirmed that their Uncle X (the uncle of the witness and the father) lived in Asia. She also confirmed that he used drugs, cocaine and amphetamines and that this was his lifestyle. She admitted that she had used cocaine in Asia in 2009 and 2010. She also confirmed that in the past her husband had grown marijuana in a room of their home, but this had been confiscated.
In cross-examination she also alleged that she had seen the mother smoking marijuana whenever she visited the house.
The witness was aware of the transcript in which the father had threatened to kill the mother. She said that this was said out of anger. She admitted that the father would break down and cry on a few occasions.
During cross-examination the witness conceded that the mother was a great mother to the child and that the mother had been the primary carer for the child when the father was at work.
Her evidence was given in a way to support the father as a close family member.
Ms N
The father’s cousin Ms N filed an affidavit on 18 December 2015 setting out her close relationship with the father and his family. She set out her interaction with the father and the child since the separation. Her opinion was that the father acts appropriately and has a strong relationship with the child.
During cross-examination she was not significantly challenged.
Ms P
The father’s girlfriend, Ms P, then gave evidence. Her affidavit filed on 18 December 2015 set out the background to her relationship with the father and her experience with the father and his family, including the time she has spent with the child. She has recently joined the father on most of the times he spends with the child every Wednesday.
Ms P set out her observations of the child as a polite child. She referred to the conversations she has had with the child. She gave her opinion about the relationship between the father and the child.
She maintained that the father is “incredibly calm” (paragraph 58 of her affidavit). Overall her evidence should be assessed as that of someone keen to support the father in these proceedings.
During cross-examination she continued to be supportive of the father. She also denied that there had been any risk to the child during the time she spent swimming in the father’s care.
The mother
The mother was then called to give her evidence. She relied on the affidavit material which set out the mother’s family background and her relationship with the father and his family, together with the mother’s allegation concerning the threats and abuse of the father and her fears as a result.
The mother gave oral evidence-in-chief which indicated that the child had been accepted to a preparatory school in the UK. She also gave her evidence in relation to the incidents at the handover at Hungry Jacks in January 2016.
During cross-examination by counsel for the father, the mother confirmed that she does not trust the father and is fearful of him. She also gave her version of events of 27 January 2016 when she approached the car which the father had brought to handover. Her evidence was that she was concerned that the father was going to put the child in the boot as she had not seen sufficient child-restraining seats in the car.
I accept that she may have made this allegation as sarcasm and had meant to say that she was concerned about the available children’s seating arrangements in the vehicle.
She was cross-examined about her proposals for the number of visits the father could have with the child if he travelled to the UK.
During cross-examination she indicated that she wished the father to continue to have a relationship with the child, but that she wanted to adopt a cautious approach.
During cross-examination she was reluctant to agree to an introduction of unsupervised time for the father with the child, but after some detailed cross-examination, agreed to an arrangement to “test it out”.
She was cross-examined at length about the father’s current clear drug tests and her history of his past behaviour.
She denied that she was a regular user of marijuana. She admitted to having been charged with possessing marijuana in 1998 and that this had not been disclosed in her affidavit material. The mother said that she did not feel the need to go back that many years and that she was 22 at the time.
During detailed cross-examination she maintained that it was appropriate for her to be concerned about the father’s use of alcohol, in particular after the events of October 2015.
The mother was cross-examined about proposing the father unsupervised time in the UK, but had not proposed unsupervised time here. She agreed that “maybe” they should start that process here.
The cross-examination included detailed questioning about the discussions they had about arrangements for their future. She was also questioned at length about Facebook entries and messages given to others. She admitted that there was considerable time between the events in which the marijuana plants were discovered and the time that she took the information to the police.
Her evidence in relation to the time that she returned to Australia after spending some time overseas was inconsistent with her alleged ongoing fear of the father. At times she gave evidence that she hoped that she could maintain a friendship with the father. This is inconsistent with her steps taken to obtain intervention orders.
Whilst there was some parts of the evidence of the mother in cross-examination which were inconsistent with her earlier evidence and her maintained attitude of fear of the father, I am satisfied that the mother’s evidence of the difficult relationship with the father and her concerns about his consumption of alcohol and marijuana are soundly based. I am also satisfied that although she has exaggerated some of the evidence concerning the father’s threatening behaviour, there is an appropriate basis for her to be concerned about his attitude towards her and the threats he has made.
The mother also accepted that the child has a good close relationship with the father.
During cross-examination the mother was asked detailed questions about her capacity to find employment or set up a business in Australia, rather than moving to the UK. I accept her evidence that it would be financially more suitable for her to be closer to her family in the UK and the assistance they can provide in setting up a business or obtaining employment.
Ms S
The mother relied upon the evidence of Ms S, who is a cousin of the father. She became a friend of the mother. Her affidavit sets out the background to their friendship and her observations of the living arrangements of the father and mother. She also deals with the comments the father made being derogatory remarks about the mother. Her evidence confirms the mother’s evidence about the “cannabis grow room” found at the Suburb K property and the involvement of the police. She also gives her opinion about the mother’s relationship with her family and her role as mother to the child.
Although, at times the witness was unable to remember dates and specific matters, she was not significantly challenged on the relevant evidence.
Mr R Meli
The mother also relied upon the evidence of the maternal grandfather, Mr R Meli. His affidavit filed on 12 January 2016 was before the Court. This set out the background of the mother’s family. The maternal grandfather was born in Africa and lives in both the Middle East and UK. He is a UK National. He has four children, the mother, her sister Ms T and twins Ms V and Ms Y. Three of the children live in the UK. The maternal grandfather’s former wife, the maternal grandmother, lives in the Caribbean and is currently unable to travel due to serious medical reasons.
The maternal grandfather also has serious medical issues. He has been diagnosed with a brain tumour for which he is receiving medical treatment. The maternal grandfather’s current wife is of North Asian background. She lives in the US and UK and is an American citizen. The maternal grandfather’s affidavit sets out the background to his business and his ongoing relationship with the mother and the child. It also sets out the history of the financial assistance given to the mother for the purchase of property in Adelaide.
The affidavit sets out the information given to him by the mother and her concerns about the relationship with the father.
The maternal grandfather expresses his concern about the death threats made by the father towards the mother and his fear for the safety of the mother and the child.
In his oral evidence in chief the maternal grandfather confirmed that he would be prepared to put up a significant sum by way of surety to guarantee the mother’s payment of the father’s costs of travel twice a year if the mother was permitted to relocate with the child to the UK.
The maternal grandfather was cross-examined. He confirmed that he lives in the UK for part of the year and in the Middle East for another part of the year and also visits part of Europe from time to time. When cross-examined he agreed that during a conversation with a friend, he arranged for that friend to offer the father $50,000 to drop the proceedings concerning the child and that he had agreed with the friend to make the offer up to $100,000.
During cross-examination he also agreed to provide the mother with money to assist her to pay her legal fees. He confirmed that he would assist the mother and the child providing them with accommodation in the UK. He was also cross-examined about the events at Hungry Jacks for handover on 27 January 2016. His evidence was supportive of the mother’s version of events.
Ms T Meli
The maternal aunt (mother’s sister), Ms T Meli, then gave evidence. The Court received her affidavit filed on 12 January 2016. The maternal aunt is a property manager who resides in the UK. Her affidavit sets out particulars of her childhood and schooling in Asia and university in the US and Europe. She has been residing in the UK since 1997.
The maternal aunt’s affidavit sets out her knowledge of the relationship between the mother and father, particularly after the birth of the child. The affidavit goes into some detail about the involvement of the mother’s family and the farm and development of the properties.
The affidavit sets out the maternal aunt’s knowledge of the arguments and difficulties in the relationship between the father and mother and including copies of messages and information provided by the mother. This included evidence concerning the mother’s distress and difficulties whilst residing in Adelaide.
Her affidavit also dealt with participation at handovers at Hungry Jacks, substantially consistent with the mother’s evidence.
The maternal aunt’s affidavit also challenged some of the evidence given by the father and his witnesses.
During cross-examination the maternal aunt confirmed that she owned a property in the UK which she manages. She had flexibility as far as the hours that she worked and was able to visit Australia on holiday. She was cross-examined about her involvement in the handovers and recordings made by video. She was also cross-examined about her opinion that the child is fearful of men. Her evidence concerning the mother’s difficulties in Australia was not significantly challenged. Her evidence was that of a supportive family member for the mother.
Ms Q
The mother relied upon the affidavit of Ms Q, psychologist, filed on 1 December 2015. The father did not require the witness for cross-examination.
The report annexed to the affidavit indicates that the mother consulted the psychologist towards the end of February 2015 and for four other appointments in March, May, July and late October 2015. The report sets out the mother’s history provided to the psychologist. The report then deals with the treatment proposed and her prognosis.
At items 5, 6 and 7 of the report are as follows:
5. The impact upon [Ms Meli] as to a prolonged or permanent stay in Adelaide
While this was not a particular focus of my enquiry, [Ms Meli] repeatedly spoke of her sense of isolation from her family and friends which resulted in her sense of “losing herself”. She appears to have few social contacts in Adelaide as her key relationships were her estranged ex husband and his family. Additionally she feels harassed and abused by them and [Mr Hutcheson’s] new partner to the extent that she is frightened to visit local shops and amenities for fear of encountering them.
6. The impact upon [Ms Meli] as to a relocation to the [United Kingdom]
This too has not been an issue that has been actively explored. However I am aware that [Ms Meli] has close friends in Europe and would have better access to her mother who has been ill and returned to [Europe] and to her father who has been very supportive. She has also spoken of her plans to settle the child in school in the UK and then open a business which draws on skills of both her parents and recaptures a part of her identity that has been unavailable to her in recent years. She wept when she spoke of her fear that she may be prevented returning to the U.K.
7. Any further relevant observations or comments
While my contact with [Ms Meli] has been limited, I have experienced her as strongly focussed on the well being of her daughter and committed to making decisions that will be positive for them both.
Ms Z
The Court received the evidence of the psychologist, Ms Z, who prepared the report pursuant to the order of the Court 18 November 2014.
The report is dated 4 March 2015. It sets out the background to the proceedings and the evidence available to the psychologist. Ms Z interviewed the mother and the father and observed the child interacting with the mother and the father. These interviews and observations were carried out from the end of January 2015, in February 2015 and in early April 2015.
The report sets out in detail the observations and assessments of the relationship between each of the parties and the child. It also deals with the significant allegations made by each of the parties and summarises key factors relevant to the Court’s determination.
The report contains the following:
[Mr Hutcheson] proposes that the child remain in Adelaide for an extended period of time (i.e. until 2020) and not be allowed to leave the country with [Ms Meli] at all. He states that [Ms Meli] is welcome to leave whenever she likes, but that [the child] would remain with him. (At best this indicates a lack of understanding regarding [the child’s] need for her primary attachment figure and single stable presence, as well as the importance of both of the child’s extended families). Although his suggestion guarantees some contact between [the child] and both of her parents (at present limited time with [Mr Hutcheson]), it occurs within a hostile co-parenting relationship, with little apparent room for improvement. Further, this arrangement poses a risk to [Ms Meli’s] wellbeing in continuing her social isolation. It also does not place value upon what [Ms Meli] (and her family) has to offer [the child] beyond Adelaide.
[Ms Meli] proposes that she be allowed to travel immediately with [the child], to relocate to the UK. This would allow [the child] to enrol in school in the UK in line with her peers (earlier than occurs in Australia). Obviously this significantly reduces the possibilities for the child to spend time with her father – particularly given that [Ms Meli] wishes for [Mr Hutcheson] to travel to see [the child] in [the UK], rather than her returning with the child to visit Adelaide. Options might exist for [Mr Hutcheson] to visit the child in blocks of time, but obvious questions arise about how this would occur given [Ms Meli’s] current concerns about [Mr Hutcheson] spending any more than a couple of hours with [the child]. [Mr Hutcheson] expresses concern that [Ms Meli] will relocate to the [Middle East] where there are no Hague protections, however in response he has stopped [Ms Meli] from travelling with the child at all. ([Ms Meli] points to having travelled overseas for 11 months with the child with [Mr Hutcheson’s] agreement, and of returning).
Between [Mr Hutcheson] and [Ms Meli’s] suggestions lies the proposal of compromise – of agreeing to [Ms Meli] relocating with [the child] after a further 12 months in Adelaide, during which time [Mr Hutcheson] spends increasing amounts of time with [the child] to deepen his relationship with her. This would provide a stronger platform of connection between [the child] and her father and paternal family to bolster communication via Skype, email, etc. Agreements would need to be made legally as to how often [Mr Hutcheson] would visit [the child] in [the UK], and how often [Ms Meli] would visit Adelaide with the child (noting [Ms Meli’s] concerns regarding doing so), and with regard to how ongoing communication would occur (noting [Mr Hutcheson’s] concerns regarding this) and how those arrangements would be funded.
Any of the proposals outlined involve challenges. The latter two are considered preferable given that [Ms Meli] has been the single stable adult figure for the child, that [Mr Hutcheson] agreed to [Ms Meli] travelling for 11 months with [the child] previously, that there was not a relationship in place prior to [Ms Meli] falling pregnant, the mental health risk to [Ms Meli] of ongoing social isolation, and that [the child] already presents as familiar with online communication.
Until the matter of relocation is settled, it appears unlikely that the parents will be able to work together more cooperatively. Their anxiety about that decision, as well as mistrust regarding finance, is making daily co-parenting matters (e.g. such as handovers as well as consideration of time) more difficult.
The report then refers to possibilities that could occur if the Court finds that the father was not a perpetrator of violence and discussions about place of handover.
Mr Anderson for the father commenced cross-examination.
Ms Z agreed that she had observed briefly the interaction between the child and the maternal grandfather and maternal aunt. Her explanation for this was that they were in the waiting room and that the child had originally been reluctant to participate and wanted them to join her. She was asked about the alleged aversion that the child had concerning men. She said it could be based upon several different reasons, including being exposed to conflict or the anxiety of someone with whom she is close. She agreed that there was difficulty caused by the lack of cooperation between the parents and that in these circumstances any co-parenting would be very difficult.
When questioned about the mother’s delay in reporting of drug material to the police, Ms Z gave appropriate answers indicating that the consideration should take into account the overall circumstances and it being unwise for her to respond out of context.
Ms Z also conceded that it was possible that the child might consider the mother was not trusting or suspicious of the father if the child was aware the mother was taking photographs at handover. She said it was a possibility. She also suggested that handovers should be limited to prevent the interaction of the parties suggesting that it take place at a contact centre or school.
In giving answers to questions about the mother’s reaction if she were forced to remain in Australia, she gave appropriate answers indicating that the mother would be at risk of emotional and psychological difficulties, even if she continued to have the support of the maternal grandfather and maternal aunt in Australia.
After reading Ms Q report concerning the mother’s health, Ms Z maintained that there would be an ongoing risk of anxiety, if not depression, if the mother were forced to remain in Australia.
She conceded that there would be changes to the child’s relationship with the father were the child removed to the UK and the father remain in Australia.
Ms Z conceded that the mother’s desire to move to the UK immediately showed some lack of insight as to the impact this would have upon the relationship between the child and the father. She recommended that the father maintain regular time with the child and establish greater familiarity with the child which would assist in maintaining the relationship thereafter. She suggested that when the child reached the age of five, and assuming the father maintains his relationship with the child, such relocation would be positive for the child.
She was cross-examined in detail about the arrangements which would then be made for the child to spend time with the father in Australia and then when, and if, permission was given to move to the UK.
Appropriately, Ms Z indicated that it was necessary to balance the positive aspects of the child remaining here and developing a relationship with the father against the further difficulty this would create for the mother.
Counsel for the mother, Ms Lewis, then cross-examined Ms Z. She confirmed that the child’s primary attachment was with the mother and that it also appeared that the child had established a relationship with the father.
Ms Z agreed that the mother’s unhappiness about being required to remain in Australia was a factor and that common sense indicated that long-term unhappiness would impact upon the care of the child. She again repeated that it was necessary to consider both the mother’s ability to deal with her distress emotionally if required to remain in Australia against the benefit to the child of having more regular contact with the father.
Generally her evidence supported the need to maintain a relationship between the child and the father, but also supported the mother’s case that the child would benefit from the mother having reduced anxiety and increased family support if allowed to live near her family in the UK.
Findings and discussions
I accept the evidence of the mother and her witnesses concerning the mother’s genuine anxiety and depression about remaining in Australia and the benefits to the child if the mother is permitted to live in the UK close to her family.
I am satisfied that the evidence does establish that the mother has a basis to be concerned about the ongoing difficult relationship with the father. The evidence clearly establishes that the mother will suffer emotionally and psychologically if not permitted to live in the UK near her family.
The other main factor to be considered is the benefit to the child of having an ongoing meaningful relationship with both parents.
In an application for parenting orders it is necessary to have regard to the best interests of the child as the paramount consideration. In order to determine the child’s best interests it is necessary to consider the factors set out in s 60CC of the Act.
The Act sets out a presumption when making a parenting order that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. However, this presumption may be rebutted by evidence that such equal sharing of parental responsibility would not be in the best interests of the child.
Taking into account the ongoing difficult relationship between the parents and the history of the relationship of the parents, I am satisfied that it has been established that it would not be in the best interests of the child for the parents to have such equal shared parental responsibility.
I consider that the difficult relationship between the parents in the past and the ongoing problems in communication between them, requires the Court to give the mother sole parental responsibility.
It is therefore not necessary to consider, as might otherwise be required, that the father have substantial or significant time with the child. It is however necessary to consider the factors required by the Act.
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
The child has a strong relationship with the mother. This will be maintained whether the child remains in Adelaide or is able to live in the UK with the mother.
The father’s relationship with the child was only renewed in any significant way following upon the mother’s return from overseas in December 2013, having been absent with the child from February 2013.
I am satisfied that there is, and will be, a benefit to the child of having a meaningful relationship with both the mother and the father. It is necessary however to give greater weight to the need to protect the child from any psychological harm which she might suffer from being subjected to the mother’s psychological distress at being required to remain in Adelaide.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
I am not satisfied on the balance of probabilities that there is a risk the child would be deliberately harmed physically by the father. There is no evidence which suggests that there would be any risk to the child of physical harm in the care of the mother.
The father’s reckless behaviour driving whilst under the influence of alcohol and his participation in growing and supplying marijuana raises some concerns about the child being at risk in his care.
I am satisfied that the expert evidence from the mother’s psychologist and the family consultant establishes that the mother may suffer serious psychological detriment if she were required to remain living in Adelaide until 2020. The evidence indicates that this distress may reduce the mother’s high level of care of the child who will remain in the primary care of the mother.
Additional considerations
(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;
Taking into account the child’s young age, her views are not matters to which the Court would give great weight.
(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);
The Court is satisfied that the evidence clearly establishes that the child has a primary attachment and strong loving bond with the mother. Taking into account the child’s age and the period when the child was absent from Australia, the Court finds that the relationship with the father is not of a similar nature. It is however clear that the child has a relationship with the father. She has been observed by the family consultant as enjoying the father’s company.
I accept the evidence of the witnesses for the mother that the child has a good relationship with the maternal grandfather and maternal aunt.
Due to the limited time the child has spent with the father and his family the relationship with the extended paternal family is not as strong.
(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; and
(iii)to communicate with the child;
and
(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;
These factors are not significant in determining this matter. The mother has carried out most of the obligations in relation to the child. The time that the father has spent with the child, has to a large extent, recently been determined by the orders of this Court.
(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;
This is a significant factor for consideration in this matter. If the Court gives permission for the mother to take the child to live in the UK, this will have an effect upon her regularly spending time with the father. It will also impact upon her ability to regularly spend time with the paternal family. If the child were required to remain in Adelaide or Australia this would have an effect upon the child’s relationship with the maternal family.
(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 person relations and direct contact with both parents on a regular basis;
The considerable distance between UK and Adelaide will have a practical impact upon the child spending time with the father and the paternal family, in particular with the father on a regular basis. The availability of communication by electronic means and the mother’s willingness to provide for the cost of the air fares of the father’s travel will reduce the impact that such a move might have upon the personal relationship between the father and child. The father has indicated that he would not consider living in the UK. His attitude therefore contributes to the difficulty which he might face if the mother and child were permitted to live in the UK.
(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;
The evidence establishes that the mother has a high level of capacity to provide for the needs of the child, including her emotional and intellectual needs.
The evidence of the father and his witnesses was sufficient to satisfy the Court that the father would be able to provide for the practical needs of the child during any time he spent with the child, whether in Australia or the United Kingdom. The ongoing antagonism between the mother and the father, and their difficulties in communication does however raise concerns about the father’s capacity to protect the child from emotional and psychological harm relating to the ongoing antagonism between the parents.
(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;
This is not a significant factor, save and except that the Court has received evidence which indicates that the child, although young, is intellectually developing well. The child will be able to continue her involvement in the culture of her parents wherever she resides.
Subsections (h) is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The evidence clearly establishes that the mother has at all times had a strong committed attitude towards the care and welfare of the child. I am also satisfied that, notwithstanding the father’s past poor behaviour, he has recently demonstrated an appropriate attitude towards the child and his responsibility.
(j) Any family violence involving the child or a member of the child’s family;
I am satisfied that the evidence establishes that there has been family violence in the child’s family. I am also satisfied that at times the child has been exposed to arguments between the parents which have exposed her to this family violence. I am satisfied that the evidence the mother gave in regard to the violent behaviour should be preferred to that of the father. I accept that the evidence indicates that the father has made serious threats to harm the mother. He maintained that he now regrets that behaviour. He did not readily take responsibility for this incident. He appeared to seek to blame the mother for his own behaviour.
(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;
The mother obtained an intervention order in 2014 which initially included the child as a protected person.
(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;
I am satisfied that it would be preferable to make an order that would be least likely to lead to further proceedings in relation to the child. The child has been the subject of these proceedings for a considerable part of her life. If the mother is permitted to travel with the child to live in the UK then further proceedings should not be necessary or appropriate. If the Court required the mother to remain here until 2020 there would be an increased likelihood of further proceedings.
(m) any other fact or circumstance that the court thinks is relevant.
The mother has indicated, with the assistance of the maternal grandfather, that she is prepared to provide security for the father’s travel to spend time with the child in the UK. These funds could also be used, if necessary (and after appropriate further orders) to assist the father in enforcing the orders of this Court.
The mother proposed that steps be taken to register the orders of this Court in the UK. I recommend that this occur but do not consider that orders are necessary.
Conclusion
Taking all of the above matters into account I am satisfied that it is in the best interests of the child for the mother to be permitted live with the child in the UK prior to 2020. I am further satisfied that it will be in the child’s best interests for the orders to provide that the mother and the child remain in Adelaide for a short period to continue the establishment of the relationship between the child and the father.
The child’s best interest promote orders which allow her and the mother to live in the United Kingdom near the mother’s family as soon as practical.
For the above reasons I make the orders which are set out at the commencement of these reasons.
I certify that the preceding one hundred and sixty one (161) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 25 May 2016.
Associate:
Date: 25 May 2016
- AGLC
- Hutcheson and Meli [2016] FamCA 400
- Case
- [2016] FamCA 400
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were: the primary residence of the child; whether the mother should be permitted to relocate the child to the United Kingdom; the specific arrangements for the child to spend time with the father both before and after the relocation; the methods and frequency of communication between the child and each parent; and the provision of financial security to ensure the father's ability to spend time with the child in the UK. The court also considered injunctive relief to protect the child and the parties from certain behaviours.
Dawe J ordered that the mother have sole parental responsibility and that the child live with her. Crucially, the mother was granted liberty to relocate the child to the United Kingdom after a specified date. The judgment then meticulously detailed the father's time with the child, both in Australia and the UK, with provisions for travel costs to be met by the mother, subject to the father providing sufficient notice. The orders also established a framework for communication between the child and parents, including electronic means, and imposed specific restrictions on both parents regarding denigration and abuse. A significant financial undertaking was also ordered, with the mother to provide $100,000 to be held in trust, to be released to the father only under specific circumstances related to travel costs or further court orders.
Orders
Orders of the court
1.
The mother MS MELI have the sole parental responsibility of the child B born in 2011 (“the child”).
2.
The child live with the mother.
3.
Subject to paragraph 28 hereof after the 17 August 2016 the mother be at liberty to relocate the child’s residence to the United Kingdom (“UK”).
4.
Pending the mother and child relocating to the UK the child spend time with the father MS HUTCHESON (“the father”) in accordance with paragraphs 3(d) and 4 of the orders of 10 February 2016.
5.
All handovers for the purposes of paragraph 4 take place at the Suburb C Children’s Contact Centre or if not available Hungry Jacks, Suburb D.
6.
All communication between the parties prior to the relocation of the mother and child take place via the communication book or by text message in the case of an emergency and following relocation by email and in an emergency by text message.
7.
Upon the child commencing to reside in the UK the child shall spend time with the father as follows:
(a) During the 2017 year:
(i) for up to two [2] weeks during the child’s UK term break in February/March 2017 being in each week from 5.00 pm Monday until 5.00 pm Wednesday and from 5.00 pm Friday until 5.00 pm Sunday;
(ii) for up to four [4] weeks during the child’s UK summer holidays commencing in July 2017 being in each week from 5.00 pm Monday until 5.00 pm Wednesday and from 5.00 pm Friday until 5.00 pm Sunday;
(iii) during the UK December 2017/January 2018 term break in Adelaide, Australia from 5.00 pm on 24 December 2017 until 5.00 pm on 27 December 2017 and from 5.00 pm on 29 December 2017 until 5.00 pm on 1 January 2018;
(b) During the 2018 year:
(i) for up to two [2] weeks during the child’s UK term break in February/March 2018 being in each week from 5.00 pm on Tuesday until 5.00 pm on Sunday;
(ii) for up to four [4] weeks during the child’s UK summer holidays each year commencing in July 2018 being in each week from 5.00 pm on Monday until 5.00 pm Sunday;
(c) During the 2019 year and each year thereafter:
(i) for up to two [2] weeks during the child’s UK term break each year in February/March from 5.00 pm on the first Monday in the holiday time until 5.00 pm on the second Friday in the holiday time;
(ii) for up to four [4] weeks during the child’s UK summer holidays each year commencing in July 2019 from 5.00 pm on Monday in the first week until 5.00 pm Sunday in the fourth week;
(d) During the UK December 2019/January 2020 term break in Adelaide, Australia and in each alternate year thereafter from 5.00 pm on 24 December until 5.00 pm on 1 January.
8.
The father spend time with the child at such other times as may be agreed between the parties in writing by email.
9.
For the purposes of all handovers that are to take place following the mother’s relocation for such time to occur in the UK shall take place with the mother to deliver and collect the child to and from the father’s accommodation in the UK unless otherwise agreed in writing by email or text message and for time in Australia at an address in Adelaide nominated by the mother with the father to collect and deliver the child to and from the mother.
10.
To facilitate the time provided for in paragraph 7 hereof which is to occur in the UK the mother shall pay for the father to travel between Adelaide and UK (economy return airfares) PROVIDED THAT the father provides to the mother no less than three [3] months’ notice in writing to the mother’s email address of the father’s intention to travel to the UK to spend time with the child.
11.
On the father providing notice to the mother in accordance with paragraph 10 hereof the mother shall provide to the father by email confirmation of the father’s paid air travel with such confirmation being provided not less than two [2] months prior to the father’s travel.
12.
To facilitate the time provided for in paragraph 8 hereof the father be responsible for his own travel costs and that the father provides to the mother no less than three [3] months’ notice in writing to the mother’s email address of the father’s intention to travel to the UK to spend time with the child.
13.
After the mother and child have moved to the UK the mother shall facilitate the child communicating with the father by Skype and by telephone and/or any other type of electronic communication with such communication to be instigated by the father as follows:
(a) each Sunday between 10.00 am and 12 Noon (UK time);
(b) at any other time the parties agree;
(c) at any other reasonable time the child expresses the wish to do so;
(d) on Christmas Day each year if the child is not with the father between 10.00 am and 12 Noon (UK time);
(e) on the father’s birthday each year between 10.00 am and 12 Noon (UK time);
(f) on the child’s birthday each year between 10.00 am and 12 Noon (UK time) or if a school day between 7.30 am and 8.00 am (UK time).
14.
When the child is in Adelaide, Australia the father facilitate communication between the child and the mother on Christmas Day.
15.
During the overnight period of time the child spends with the father in Australia, the mother be at liberty to have telephone communication with the child between 6.00 pm and 7.00 pm (Australian Central Summer Time) at least twice each week and when the child is with the father in the UK between 6.00 pm and 7.00 pm (UK time) at least twice each week.
16.
The child be at liberty to communicate with the other parent at any reasonable time the child expresses the wish to do so.
17.
At any time the chid is unreasonably distressed during the periods of time she spends with the father she be permitted to return to the care of the mother for such period as is necessary to resolve her distress.
18.
The mother inform and keep the father informed of the following:
(a) the address, contact telephone number and email address at the child’s residence;
(b) the name, address and contact telephone number of the school attended by the child;
(c) any emergency affecting the child;
(d) any extra-curricular activities the child participates in.
19.
The mother shall provide to the father photographs of the child not less than twice per year.
20.
The father inform and keep the mother informed of the following details in respect of all periods the child is spending time with him:
(a) a contact mobile telephone number at all times;
(b) the address of his accommodation in the UK and Australia at all times; and
(c) any emergency affecting the child.
21.
Not less than three [3] weeks before arriving in the UK to spend time with the child pursuant to these orders, the father provide written notice to the mother by email and that the written notice contain the following:
(a) a proposed itinerary; and
(b) his address in the UK and contact telephone number(s).
22.
The father ensure that his accommodation in the UK is not more than 10 miles (16 kilometres) from the child’s normal residence at all times.
23.
The mother is authorised to make an application for the child to obtain a passport from time to time and that the father is to do all such things and sign all such documents as may be necessary for the periodic renewal of the child’s passport.
24.
The father be restrained and an injunction is granted restraining him from:
(a) removing the child from the UK during any period he is to spend time with her in the UK; and
(b) using illicit substances or alcohol for twenty-four [24] hours prior to and for the duration of all periods he spends with the child.
25.
Both the mother and father are restrained and an injunction is granted restraining them from:
(a) denigrating the other party or their family or allowing any other person to denigrate the other party to the child or in the presence of the child;
(b) abusing or threatening either party or any members of either of their family; and
(c) disseminating derogatory or defamatory material about the other party or any members of the other party’s family via any method including but not limited to social media, telephone or email.
26.
The mother keep the father informed at all times as to the name and address of the child’s school and that the mother do all such things and sign all such documents (if necessary) to enable the father to receive direct from the child’s school any school reports, memorandums or notices.
27.
The child be removed from the Airport Watch List forthwith.
28.
At least ten [10] days prior to the mother and child departing to live in the UK the mother provide to the father’s solicitors the sum of ONE HUNDRED THOUSAND DOLLARS [$100,000.00] to be held in an interest bearing trust account and not to be released to the father SAVE AND EXCEPT for travel costs for the father and child upon written proof of the failure of the mother to abide by the orders for payment of travel costs or upon further orders of this Court relating to any application for enforcement of these orders with the balance and accrued interest to be returned to the mother by the solicitors on 30 June 2025.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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