Jagi and Gaba

[2018] FCCA 1039

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAGI & GABA [2018] FCCA 1039

Catchwords:
FAMILY LAW – Parenting – interim hearing – father seeking order that mother return child to Sydney from Melbourne – proposed order not made – best interests of child.

Legislation:

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

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

SS & AH [2010] FamCAFC 13

Eaby and Speelman [2015] FamCAFC 104

Banks & Banks [2015] FamCAFC 36

Morgan & Miles [2007] FamCA 1230

Vontek & Vontek [2017] FamCAFC 28

Applicant: MR JAGI

Respondent: MS GABA

File Number: PAC 1407 of 2017

Judgment of: Judge Newbrun

Hearing date: 22 December 2017

Date of Last Submission: 22 December 2017

Delivered at: Parramatta

Delivered on: 30 April 2018

REPRESENTATION

Solicitors for the Applicant: Mr Gitteos-Caesar of Coleman Greig Lawyers

The Respondent appeared in person

ORDERS PENDING FURTHER ORDER

1. The father’s Application in a Case filed 28 July 2017 is dismissed.

2. That the interim parenting orders of 9 May 2017 are discharged.

3. That the child [X] born (omitted) 2011 (“the child”) live with the mother in Melbourne.

4. That the child spend time with the father as follows:

   (a)During school terms, every third, sixth and ninth weekend of the gazetted Victorian school terms, from 9:00am Saturday to 4:00pm Sunday, recommencing each new school term.  The child shall spend such weekends with the father in an alternating fashion, each third weekend, between Melbourne and Sydney.

   (b)During the short school holiday periods, for one half of each of the short gazetted Victorian school holiday periods as follows:

   (i)For the first half of the short school holiday periods, commencing at 9:00am on the first Saturday, and concluding at 9:00am on the Saturday nearest to the midpoint of the short school holiday period, commencing in 2018 and continuing each alternate year thereafter; and

   (ii)For the second half of the short school holiday periods, commencing at 9:00am on the Saturday nearest to the midpoint of the short school holiday period, and concluding at 6:00pm on the Sunday before the start of the next school term, commencing in 2019 and continuing each alternate year thereafter.

   (c)During the Christmas school holiday periods, for one half of the gazetted Victorian Christmas school holiday period as follows:

   (i)For the first half of the Christmas school holiday period, commencing at 9:00am on the first Saturday, and concluding at 9:00am on the Saturday nearest to the midpoint of the Christmas school holiday period, commencing in 2017 and continuing each alternate year thereafter; and

   (ii)For the second half of the Christmas school holiday period, commencing at 9:00am on the Saturday nearest to the midpoint of the Christmas school holiday period and concluding at 6:00pm on the Sunday before the start of the next school term, commencing in 2018 and continuing each alternate year thereafter.

5. Changeover, in relation to the child spending time with the father during school term times, shall occur as follows:

   (a)When the child is due to spend time with the father in Sydney, the mother shall drop the child off to the father at (suburb omitted) train station, Sydney, at 9:00am Saturday morning to spend time with the father until Sunday at 4:00pm, at which latter time the father is to return the child to the mother at the said train station.

   (b)When the child is due to spend time with the father in Melbourne, the father shall pick up the child from (suburb omitted) train station, Melbourne, at 9:00am on Saturday morning, to spend time with the father until Sunday at 4:00pm, at which latter time the father is to return the child to the mother at the (suburb omitted) train station.

6. Changeover, in relation to the child spending time with the father during school holidays, shall occur as follows:

   (a)The mother shall travel to Sydney and drop off the child to the father at the (suburb omitted) train station, Sydney, at the commencement of the child’s time with the father during such time, and the father shall travel to Melbourne and drop off the child to the mother at the (suburb omitted) train station, Melbourne, at the conclusion of the child’s time with the father during such time.

7. The parties are to share equally in the costs associated with the child’s travel.

8. During school term times, whilst the child is in the mother’s care, the mother shall facilitate, on Tuesdays and Saturdays between 6:00pm and 7:00pm, Skype/FaceTime/telephone communications between the child and the father.

9. During school holiday periods, whilst the child is in the mother’s care, the mother shall facilitate, on Tuesdays, Thursdays and Saturdays between 6:00pm and 7:00pm, Skype/FaceTime/telephone communications between the child and the father.

10. During school holiday periods, whilst the child is in the father’s care, the father shall facilitate, on Tuesdays, Thursdays and Saturdays between 6:00pm and 7:00pm, Skype/FaceTime/telephone communications between the child and the mother.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1407 of 2017

MR JAGI

Applicant

And

MS GABA

Respondent

REASONS FOR JUDGMENT

Introduction

1. This interim hearing between Mr Jagi (“the father”) and Ms Gaba (“the mother”) is in respect to the child [X] born (omitted) 2011 (“the child”).

2. The hearing related to the father’s interim application for Orders that the mother forthwith return the child of the relationship to the Sydney metropolitan area from Melbourne; that the child live with the mother (should she relocate the child’s residence to Sydney) and spend time with the father for effectively five nights each fortnight during school terms, together with an equal sharing of time with the child during school holidays; and other related Orders (see the father’s proposed Minute of Order sent to the Court on 22 December 2017 after the interim hearing was held).

3. This was also the hearing of the mother’s opposing interim parenting proposals, inter alia, that the child continue to live with her in Melbourne (see the mother’s proposed Minute of Order sent to the court on 24 December 2017.  The Court notes that this proposed Minute is silent as to the issue of telephone/Skype/FaceTime between the child and the father, and in this context the Court refers to the mother’s Affidavit filed 13 December 2017, paragraph 58, proposing an interim Order that:

   The father shall have telephone/Skype/FaceTime with the child from 5:30 to 6:30 pm on Tuesday and Saturday and the mother is to facilitate such time.

   The mother contends, in relation to this latter proposal, that it will provide a more structured timetable for the child, who can expect the call within a one hour period as opposed to a three hour period and on two occasions per week).

4. The mother relocated the child’s residence to Melbourne from Sydney on about 28 April 2017.

5. On 9 May 2017, consent interim parenting Orders were made between the parties, inter alia, that every third weekend the child spend time with the father (alternating each third weekend between Sydney and Melbourne) from 10:00 am Saturday to Sunday 4:00 pm.

Material relied upon

1. The Applicant Father relies on the following documents:

   a)Affidavit of Mr Jagi filed 12 September 2017.

2. The Respondent Mother relies on the following documents:

   a)Affidavits of Ms Gaba filed 7 June 2017, 15 September 2017 and 13 December 2017.

Agreed or undisputed relevant facts (unless stated otherwise)

1. The father was born on (omitted) 1982. The mother was born (omitted) 1983.

2. Again, the mother relocated the child’s residence to Melbourne from Sydney on about 28 April 2017.

3. The child attends a primary school at (suburb omitted), having commenced attending that school on 2 May 2017.  A school report for the child from 2017 indicates the child has settled in very well to the school class and is a very capable learner who is very eager to learn.

4. The parties had an arranged marriage in India.

5. In about mid-2010 the parties moved to (omitted), India, as they were both in gainful employment in that city.  The father was a sales representative and the mother worked as a (occupation omitted).

6. Immediately prior to the birth of the child, the mother went on maternity leave and did not return to work until December 2013.

7. In October 2014 the parties moved to Sydney.

8. In (omitted) 2015, the mother received a job offer in Canberra and she moved shortly thereafter to Canberra with the child.

9. The father asserts that he supported the mother in moving to Canberra because he felt that the job the mother was offered was a good opportunity for her and would assist the family financially.  The mother denies that the father supported her move to Canberra with the child; she asserts that the primary reason for her move to Canberra was that the father had previously asked her to move out of the house.  The father asserts that he was not able to move to Canberra with the mother and child at that time due to his employment.

10. The father asserts that the parties agreed that he would travel down to Canberra on Friday evenings and remain there until Sunday.  He asserts that this arrangement continued for about twelve months.

11. The mother asserts that she continued to reside in Canberra until May 2016.  She asserts that in late May 2016 she moved from Canberra to Sydney.  She asserts that on the day she returned to the (suburb omitted) property, the father asked the mother to leave the house.  The father concedes that, “[i]n about July 2016”, he asked the mother to leave “the former matrimonial home”.

12. The mother asserts that in (omitted) 2016 she was offered a job as a (occupation omitted) with (employer omitted) in Sydney.

13. The father asserts the parties separated on 12 August 2016; he asserts that the mother and child left the home at (suburb omitted) with their personal belongings.

14. The mother asserts that she left the (suburb omitted) property and went to her rental property in (suburb omitted).

15. The father asserts that he did not spend time with the child between August 2016 and 19 May 2017.

16. The mother asserts that she was the primary carer for the child throughout the relationship.  This is denied by the father.

17. In late September 2016 the parties met in a shopping centre at (suburb omitted).  The father asserts that the purpose of meeting was to discuss arrangements for the child to spend time with the father.  The father concedes that he initially recorded their conversation with his mobile phone and, upon the mother becoming aware that he was recording her and asking him to empty his pockets, he stopped doing so.

18. The mother asserts that in December 2016 she saw the father on two occasions; she asserts that on one occasion the father was following her in his car whilst she was walking to work, and on another occasion, in the evening, when the mother was walking home from work, she asserts that the father was again following her in his car.  The father concedes that he attended (suburb omitted) train station in the morning, as he was hoping to see the child.  He asserts that at that time he had not seen the child for six months and that he was desperate to see her and make sure that she was okay.  The father denies that he was stalking the mother.

19. The mother’s two brothers reside in Melbourne. Each brother is married, and one brother has two children.

20. The father asserts that prior to the mother moving to Melbourne, he was aware that the mother was living with the maternal grandmother in Sydney; and he understood that the mother was supported by the maternal grandmother with the day-to-day household duties while the mother was working in Sydney.

21. The mother was served with the father’s Initiating Application and related Court documents on 6 April 2017.  (The Court interpolates at this point that in that application the father sought both interim and final parenting Orders that the child live with the mother; that the child spend time with the father, inter alia, after two months from the date of the Orders, for a period of three consecutive days each alternate week; and that the mother drop the child off at the father’s residential address at (suburb omitted), with the father to return the child to the mother at her nominated residential address).

22. The mother asserts that in February 2017 she requested from her employer a transfer to Melbourne:

    because I was not doing well in my employment in Sydney as I had received two warnings in relation to my performance as I could not focus at the time due to [the father] following me to and fro from work, and further, so that I could move to Melbourne to be close to my immediate family. It had serious implications on my mental health as I had gone mad staring at every car passing by me every time I was on road fearing it could be him following me. The request from my company was granted on 28 April 2017. I moved to Melbourne with [the child] into the (suburb omitted) property with [the maternal grandmother], Mr A [one of the mother’s brothers] and his wife.

23. In the mother’s Affidavit filed 13 December 2017, she asserts in relation to the father that:

    His following me in Sydney had made me gone through real traumatic experience which I could not cope up with. It has been draining me and makes me scared even.

24. The mother asserts that the maternal grandmother is able to assist in the care of the child when she is at work by way of getting the child ready for school, assisting with evening meals, and general upkeep and cleaning of the (suburb omitted) property.

25. The mother asserts, in her Affidavit filed 7 June 2017, that she is now gainfully employed in Melbourne and doing well in her employment as an (occupation omitted).  She earns a good salary, shares the rent with one of her brothers, and is saving to buy a property in Melbourne in the long-term.  She asserts that she works full-time from 9:00am to 5:00pm and is performing well.  The mother asserts that on 15 September 2017, her employer informed her that she was now employed in Melbourne on a permanent basis.

26. The father asserts that he is employed as a (occupation omitted), and that he generally commences work at 10:00am and finishes work between 3:00pm and 5:15pm.

27. The mother asserts that she has noticed an extreme improvement in the child’s behaviour since moving to Melbourne.  She asserts that the child is enjoying having regular sleepovers with her cousins (the mother’s brother Mr P’s children) and spending time with her aunts, uncles and maternal grandmother.

28. The mother asserts that there is a strong social network between the child, herself and her brother Mr P’s friends and families who also reside in Melbourne.  She asserts that they regularly attend social lunches and dinners every weekend.  She asserts that the child attends these events and loves socialising with the children of Mr P’s friends.

29. The mother asserts that the child’s teacher has told the mother that the child has made many friends and is progressing well academically.

30. In the mother’s Affidavit filed 15 September 2017, she asserts that she continues to reside with her brother Mr A and his wife, and that they reside in a rental property with three bedrooms.  She asserts that the maternal grandmother resides in her residence in Melbourne “from time to time”.

31. Since the interim consent parenting Orders of 9 May 2017, the mother has facilitated two telephone calls each week between the child and the father, in accordance with those Orders.  The parties are in dispute as to whether the mother has failed to facilitate telephone communications between the child and the father on other occasions on which the father has sought to speak to the child.  The father sent messages to the mother, for a certain period, by text message or email, asserting that the mother was not complying with the Court Orders for communication between the child and the father.  The mother, for her part, asserts that she found such messaging to be harassment, having asserted that there were certain occasions when she was not able to take the father’s calls.

32. The mother asserts that because the child is attending school, it is difficult for her to have long conversations with the father on all seven days of the week.  The mother asserts that after returning home from her work, she needs to care for the child.

33. Since the parties’ consent interim parenting Orders of 9 May 2017, the child has spent time with the father, both in Sydney and in Melbourne.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348, the Full Court (Faulks DCJ, Boland and Stevenson JJ) discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   …

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at [100] their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

3. Of this, the Full Court in Eaby and Speelman [2015] FamCAFC 104 said at [19]:

   As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

4. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraph 46 to 52.

5. 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.

6. 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.

7. 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).

1. 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).

2. 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.

3. 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 60CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65DAA (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 60CC, or impracticable.

4. 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.

5. The Court also refers to relevant legal principle in relation to relocation applications, set out in the decision of Morgan & Miles [2007] FamCA 1230 and the recent decision of the Full Court of the Family Court of Australia in Vontek & Vontek [2017] FamCAFC 28.

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 child has a meaningful relationship with each parent and would benefit from a continuance of those relationships.

2. The father asserts that the parties equally cared for the child during the relationship, whereas the mother asserts that she was the primary carer of the child during such period.

3. Nevertheless, it is apparent that whilst the mother resided with the child in Canberra, from about (omitted) 2015 to (omitted) 2016, she was the child’s primary carer (noting the father’s assertion that he would spend time with the child each weekend during this period that the child and the mother lived in Canberra).  She was also the child’s primary carer during the period from August 2016 to 19 May 2017, when unfortunately the child did not spend time with the father.

4. It is recognised that should the mother remain living with the child in Melbourne, the father’s ability to spend regular time with the child will be compromised.  The Court recognizes that when spending time with the child in Melbourne, the father will not be able to spend time with her in his usual home in Sydney.

5. Nevertheless, it would appear that the child’s meaningful relationship with the father has been maintained, since the implementation of the parties’ consent interim parenting Orders of 9 May 2017, which Orders provided, inter alia, for the child to spend time with the father every third weekend, alternating between Sydney and Melbourne, together with the weekly Skype/FaceTime/telephone communications between the child and the father.

6. At this interim stage, should the child continue to live with the mother in Melbourne and spend time with the father every third, sixth and ninth weekend of the Victorian school terms, from 9:00am Saturday to 4:00pm Sunday, together with one half of each of the Victorian school holiday periods, and weekly Skype/FaceTime/telephone communications (on Tuesdays and Saturdays between 6:00pm and 7:00pm during school term times, and on Tuesdays, Thursdays and Saturdays between 6:00pm and 7:00pm during school holiday periods), there is a significant prospect that the child’s meaningful relationship with the father will be maintained.

7. The Court refers to its discussion below under section 60CC(3)(m). Should the mother be required to relocate the child’s residence to Sydney, as a consequence of any interim Court Order, there is a significant risk that the mother’s emotional well-being will be adversely affected, inter alia, by having to leave her extended family supports in Melbourne, resulting in the child’s meaningful relationship with the mother (and quite possibly the father as well) being detrimentally affected. In this context, there is a real risk that the mother’s parenting capacity of the child could be adversely affected, resulting in the child’s well-being being compromised.

8. The Court gives significant weight to this meaningful relationship primary 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. At this interim stage, the Court is not satisfied that there is any need to protect the child from the risk of abuse, neglect or family violence whilst remaining in the mother’s primary care in Melbourne or in spending time with the father.  In this context, it is not without relevance that the parties entered into consent interim parenting Orders on 9 May 2017, providing, inter alia, for the child to spend unsupervised time with the father, with the child remaining primarily in the care of the mother in Melbourne.

Section 60CC(3) - 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 things are relevant to the weight it should give to the child’s views

1. The child is too young to express any 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 Court refers to its discussion above under the meaningful relationship primary consideration.  The child would also appear to have positive relationships with the mother’s extended family members in Melbourne, including her cousins in Melbourne, as well as with the paternal grandparents.

(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, whilst the Court notes that the father did not consent to the mother relocating to Melbourne with the child in April 2017.

(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain the child

1. Subject to a dispute between the parties as to the extent of the father’s expenditure of monies towards the asserted needs of the child, it would appear that both parents have fulfilled such obligations.

(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, and to its discussion below under section 60CC(3)(m).

(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 above under the meaningful relationship primary consideration, and also below under section 60CC(3)(m).

(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. Each party has made allegations against the other as to the other’s ability to provide for the needs of the child.  Not without relevance are the terms of the parties’ consent interim parenting Orders of 9 May 2017.  On the material presently before the Court, each party 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 parents hail from India. The child was born in Australia.

(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 father alleges that the mother has sought to continually discourage the child from having a relationship with him, and is seeking to alienate the child from him, which is denied by the mother.

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

1. The mother asserts that the father slapped the child on her cheek on two occasions, during the relationship, which the father denies.  For the father’s part, he alleges that the mother slaps the child, which is denied by the mother.  The mother asserts that the father, at the time of the separation on 12 August 2016, shouted at the mother and held his fists up to her in a threatening manner, and the mother called the police. The court 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. Not applicable.

(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. These are interim proceedings.

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

1. It is convenient at this point to consider the advantages and disadvantages of the parties’ respective proposals in relation to, in particular, the child either remaining living in Melbourne with the mother or the mother being required to relocate the child’s residence back to Sydney.

2. The contended advantages of the mother’s proposal are:

   a)The child and mother’s closeness and support (including practical support with child care) with and from the mother’s extended family in Melbourne (noting the mother has no such support in Sydney).  In this context, the Court takes into account, in particular, the mother’s assertion that her move to Melbourne with the child has assisted her in alleviating previous adverse mental health issues experienced in Sydney (whilst not overlooking the father’s denials that he was intentionally stalking the mother in Sydney);

   b)The child and mother have now been living in Melbourne for about a year, and appear to be well settled, both in relation to employment and schooling.

3. The contended disadvantages of the mother’s proposal are that:

   a)The child and the mother will be further away from the father, who lives in Sydney, which will reduce the regularity of the child’s time to be spent with the father;

   b)When the child spends time with the father in Melbourne, the child is not able to spend such time in a familiar environment, such as the father’s usual residence in Sydney;

   c)The father contends that spending time with the child pursuant to the current consent interim parenting Orders causes him to incur significant financial costs; his travel to Melbourne occurs once every six weeks.  Whilst the Court recognises the contended significant financial costs incurred by the father in spending time with the child in Melbourne, presently each six weeks, the father does not assert, or adduce evidence, that such costs are prohibitive and prevent him from spending such time with the child in Melbourne.  In this context the Court notes the father’s time spent with the child in Melbourne since the parties’ consent interim Orders of 9 May 2017, and the contents of Exhibit A, being a child support assessment, issue date 6 November 2017, stating that the father’s adjusted taxable income for 2017 was $82,113.

   d)The father contends that the child’s meaningful relationship with him will be adversely affected, inter alia, should the child spend less time with him (compared to the situation which would likely prevail if the child was living in Sydney).

4. In this latter context, the Court refers to its discussion above under the meaningful relationship primary consideration.  Again, the Court is of the view that should the child remain living in Melbourne with the mother and spend time with the father every third, sixth and ninth weekend of the Victorian school terms, from 9:00am Saturday to 4:00pm Sunday, together with one half of each of the Victorian school holiday periods and weekly Skype/FaceTime/telephone communications (on Tuesdays and Saturdays between 6:00pm and 7:00pm during school term times, and on Tuesdays, Thursdays and Saturdays between 6:00pm and 7:00pm during school holiday periods), there is a significant prospect that the child’s meaningful relationship with the father will be maintained.

5. On balance, the Court is of the view at this interim stage that the disadvantages of the mother’s proposals do not outweigh the advantages of her proposals, and, as confirmed below, it will be in the best interests of the child that she remain living in the mother’s primary care in Melbourne.

Equal Shared Parental responsibility: sections 61DA(1) and 61DA(2)

1. Neither party sought a parental responsibility Order.

2. At this interim stage, should the child remain residing with the mother in Melbourne, an equal time arrangement, or an Order for substantial and significant time for the child to spend with the father, would not be practicable and would not be in the best interests of the child.

Summary

1. Evaluating the above discussed considerations under section 60CC of the Act, including consideration of relevant legal principle relating to relocation applications, the Court is of the view at this interim stage that it will be in the best interests of the child to make the following Orders:

   (1)The father’s Application in a Case filed 28 July 2017 is dismissed.

   (2)That the interim parenting orders of 9 May 2017 are discharged.

   (3)That the child [X] born (omitted) 2011 (“the child”) live with the mother in Melbourne.

   (4)That the child spend time with the father as follows:

   (a)During school terms, every third, sixth and ninth weekend of the gazetted Victorian school terms, from 9:00am Saturday to 4:00pm Sunday, recommencing each new school term.  The child shall spend such weekends with the father in an alternating fashion, each third weekend, between Melbourne and Sydney.

   (b)During the short school holiday periods, for one half of each of the short gazetted Victorian school holiday periods as follows:

   (i)         For the first half of the short school holiday periods, commencing at 9:00am on the first Saturday, and concluding at 9:00am on the Saturday nearest to the midpoint of the short school holiday period, commencing in 2018 and continuing each alternate year thereafter; and

   (ii)    For the second half of the short school holiday periods, commencing at 9:00am on the Saturday nearest to the midpoint of the short school holiday period, and concluding at 6:00pm on the Sunday before the start of the next school term, commencing in 2019 and continuing each alternate year thereafter.

   (c)During the Christmas school holiday periods, for one half of the gazetted Victorian Christmas school holiday period as follows:

   (i)         For the first half of the Christmas school holiday period, commencing at 9:00am on the first Saturday, and concluding at 9:00am on the Saturday nearest to the midpoint of the Christmas school holiday period, commencing in 2017 and continuing each alternate year thereafter; and

   (ii)    For the second half of the Christmas school holiday period, commencing at 9:00am on the Saturday nearest to the midpoint of the Christmas school holiday period and concluding at 6:00pm on the Sunday before the start of the next school term, commencing in 2018 and continuing each alternate year thereafter.

   (5)Changeover, in relation to the child spending time with the father during school term times, shall occur as follows:

   (a)When the child is due to spend time with the father in Sydney, the mother shall drop the child off to the father at (suburb omitted) train station, Sydney, at 9:00am Saturday morning to spend time with the father until Sunday at 4:00pm, at which latter time the father is to return the child to the mother at the said train station.

   (b)When the child is due to spend time with the father in Melbourne, the father shall pick up the child from (suburb omitted) train station, Melbourne, at 9:00am on Saturday morning, to spend time with the father until Sunday at 4:00pm, at which latter time the father is to return the child to the mother at the (suburb omitted) train station.

   (6)Changeover, in relation to the child spending time with the father during school holidays, shall occur as follows:

   (a)The mother shall travel to Sydney and drop off the child to the father at the (suburb omitted) train station, Sydney, at the commencement of the child’s time with the father during such time, and the father shall travel to Melbourne and drop off the child to the mother at the (suburb omitted) train station, Melbourne, at the conclusion of the child’s time with the father during such time.

   (7)The parties are to share equally in the costs associated with the child’s travel.

   (8)During school term times, whilst the child is in the mother’s care, the mother shall facilitate, on Tuesdays and Saturdays between 6:00pm and 7:00pm, Skype/FaceTime/telephone communications between the child and the father.

   (9)During school holiday periods, whilst the child is in the mother’s care, the mother shall facilitate, on Tuesdays, Thursdays and Saturdays between 6:00pm and 7:00pm, Skype/FaceTime/telephone communications between the child and the father.

   (10)During school holiday periods, whilst the child is in the father’s care, the father shall facilitate, on Tuesdays, Thursdays and Saturdays between 6:00pm and 7:00pm, Skype/FaceTime/telephone communications between the child and the mother.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 27 April 2018