Jarrett and Jarrett

FEDERAL CIRCUIT COURT OF AUSTRALIA

JARRETT & JARRETT

[2014] FCCA 2183

Catchwords:
FAMILY LAW – Relocation application – mother under significant influence of her own mother and maternal family who hold strong and derogatory views of the father – the mental health conditions of the mother and father – mother’s proposals for the child to maintain a relationship with the father impracticable – issues of negative influence of maternal family likely to affect child’s ongoing relationship with the father.

Legislation:

Family Law Act 1975, ss.60, 61DA, 65DAA

Mazorski & Albright [2009] FamCA 520;
MRR v GR [2010] HCA 4;
Taylor & Barker [2007] FamCA 1246;
McCall & Clark (2009) FLC 93-405.

Applicant:

MR JARRETT

Respondent:

MS JARRETT

File Number:

CSC 385 of 2013

Judgment of:

Judge Willis

Hearing dates:

30 & 31 January, 26 February 2014

Date of Last Submission:

26 February 2014

Delivered at:

Cairns

Delivered on:

24 September 2014

REPRESENTATION

Solicitors for the Applicant:

Self-represented

Counsel for the Respondent:

Mr Victoire

Solicitors for the Respondent:

Murray & Lyons

Solicitors for the Independent Children's Lawyer:

Ms Gray

ORDERS

That all previous parenting orders made in these proceedings are discharged.

Conditions

The parenting orders for the child X born (omitted) 2007 (“the child”) as set out in these Orders, including all her living arrangements and parental responsibility will be subject to the conditions set out at Order 16 herein.

Parental Responsibility

Each of the parties have equal shared parental responsibility for major long term decisions relating to the child of the relationship, X born (omitted) 2007 (the child”), including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision.
Notwithstanding Order 3 herein the mother shall be responsible for the daily care, welfare and development of the child, when the child is living with her and the father shall be responsible for the daily care, welfare and development of the child, when the child is living with him.

Living Arrangements

The child will live with the father and mother in (omitted) Queensland on a week about basis with handover to occur at the conclusion of school each alternate Friday at the child’s school.

School Holidays

Unless otherwise agreed between the mother and father, the child will spend time with each parent during the Queensland school holidays as follows:
(a)The child will live with the mother for the first half of the school holidays in 2014 and each alternate year thereafter and the second half of the school holidays in 2015 and each alternate year thereafter;
(b)The child will live with the father for the second half of the school holidays in 2014 and each alternate year thereafter and the first half of the school holidays in 2015 and each alternate year thereafter.
The first day after school term concludes will be deemed to be the first day of the school holidays.

Christmas

In the event that the parent who otherwise has the child in their care for the first half of the holiday periods pursuant to the terms of these Orders (which includes Christmas Eve, Christmas Day and Boxing Day (“the Christmas days”), has not travelled away from (omitted) Queensland for the Christmas holidays, the parent with whom the child is living on the Christmas days will retain the child until 2:00pm on Christmas Day and thereafter the child will spend time with the other parent from 2:00pm onwards until 2:00pm on Boxing Day, after which time the child will be returned to the other parent to continue on with their holiday period. The Court notes that this provision will only apply when the party who would otherwise have the child over the Christmas days elects not to travel away.

Easter

In the event the Easter public holidays do not form part of the school holiday period the child shall spend time with the parents as follows:
(a)The child will live with the mother from the conclusion of school on Easter Thursday until 12:00 noon on Easter Saturday in 2016 and each alternate year thereafter and from 12:00 noon on Easter Saturday until the commencement of school on the Tuesday following Easter Monday in 2015 and each alternate year thereafter.
(b)The child will live with the father from the conclusion of school on Easter Thursday until 12:00 noon on Easter Saturday in 2015 and each alternate year thereafter and from 12:00 noon on Easter Saturday until the commencement of school on the Tuesday following Easter Monday in 2016 and each alternate year thereafter.

Special Days

The child will spend time with the parent that they are not otherwise living with pursuant to these Orders as follows:
(a)If the child is not otherwise living with the father, the child will spend time with the father on Father’s Day from 9:00 am until 5:00 pm.
(b)If the child is not otherwise living with the mother, the child will spend time with the mother on Mother’s Day from 9:00 am until 5:00 pm.

Birthdays

Subject to Order 15 herein, the parent with whom the child is not otherwise living with on the child’s birthday shall spend time with that parent:
(a)From 10:00 am to 2:00 pm on a non-school day;
(b)From 3:00 pm until 6:00 pm if the child is attending school.
Subject to Order 15 herein, in the event the Mother’s birthday falls in the period when the child is living with the father, the child shall spend time with the mother as follows:
(a)From 10:00 am to 6:00 pm on the Mother’s birthday on a non-school day;
(b)From 5:00 pm on the Mother’s birthday if on a school day until the commencement of school or until 9:00 am on the following day.
Subject to Order 15 herein, in the event the Father’s birthday falls in the period when the child is living with the mother, the child shall spend time with the father as follows:
(a)From 10:00 am to 6:00 pm on the Father’s birthday on a non-school day; or
(b)From 5:00 pm on the Father’s birthday if on a school day until the commencement of school or until 9:00 am on the following day.
In the event that either the child, the mother or the father’s birthday falls in a period in which the child would otherwise be on holidays with the other parent pursuant to the terms of these Orders, the provisions of Orders 12, 13 and 14 herein will not apply. THE COURT NOTES that the Orders which provide for the child to spend time with each of the parents on the child’s birthday and the parent’s birthdays are not intended to interfere with the other parent’s holiday time with the child as provided for in these Orders, unless agreed otherwise.

Conditions that apply to the all of the Parenting Orders herein including the child’s living arrangements and Parental Responsibility Order

All parenting Orders referred to herein are subject to the following conditions:
(a)The mother being psychiatrically well.
(b)In the event the mother becomes unwell with symptoms of mental health conditions including Bi-polar or Depression or the mother is admitted to hospital, she is to forthwith inform the father.
(c)In the event the mother becomes unwell with Bi-polar symptoms or Depression or other mental health symptoms, the order for equal shared parental responsibility will be suspended and the father will have sole parental responsibility for the period of the mother’s illness.
(d)In the event the mother becomes unwell with mental health symptoms as described, the Order for the child to live equal time with the mother, holiday time with the mother or have special days with the mother as set out in these Orders, will be suspended and the child is to be forthwith delivered up to the father and remain living with the father, until the mother has evidence of her recovery and mental health wellness. If this occurs when the mother is out of (omitted) Queensland on a holiday, the father is entitled to be able to speak with the child on a daily basis, with privacy and without interference from any other person. The father is authorised to make arrangements for the return of the child to the father’s care, without delay.
(e)The mother is to provide a short report from her treating mental health professional confirming that she is well enough to resume making long term decisions about the child and spending equal time with her, at the conclusion of her period of illness.
(f)The mother attending upon a counsellor in person, to engage in Counselling regarding the dynamic of her ongoing relationship with her mother, and the mother’s desire to live and parent independently. The mother is to attend for regular periods as can be organised and afforded by the mother.

Changeovers

All changeovers (other than those which are to occur to and from school as set out in these Orders) will occur at a place mutually agreed, and failing agreement at the mother’s residence with the father being responsible for collecting the child at the beginning of the father’s time with the child and the mother being responsible for collecting the child from the father’s home at the conclusion of the father’s time with the child NOTING THAT the mother is to attend to handing over the child personally (not through an agent) and she is to ensure that MS J and MR M do not attend at or near the point of handovers which occur directly between the mother and father.

Telephone/ Skype

When the child is living with one parent the child shall communicate with the other parent by telephone or Skype at all reasonable times as agreed to between the parties and failing agreement as follows:
(a)Each Sunday and Wednesday between the hours of 6:30 pm and 7:00 pm. The parent with whom the child is not living with is to initiate the telephone call and the other parent is to facilitate the call.

Medical matters

In the case of a medical emergency involving the child, the parent with whom the child is with at that time, is to forthwith contact the other parent.

Communication

Each party shall advise the other of any changes to their residential address, landline telephone number, mobile telephone number and email address within 48 hours of any change.
In the event that the mother or father travel away from (omitted) Queensland with the child for the purpose of a holiday pursuant to these Orders:
(a)the child is to have no less than two Skype or telephone calls with the other parent each week that the child is away and the travelling parent is to ensure that the child is available and has privacy for the calls;
(b)The travelling parent is to provide in writing to the other parent no later than 7 days prior to departure, the address and contact phone number of the locations where the child will stay for the holiday.
These Orders act as authority for each of the mother and father only to receive advice as to the child’s schooling or medical conditions from any school or health professional.

Dispute Resolution/ Parenting Program

Should any issues arise in relation to the child to which there is a dispute that the mother and father are unable to resolve, the parties are to attend dispute resolution at Relationships Australia or at some other agreed counselling service in order to resolve the issue.
The mother and father are to forthwith enrol and attend as soon as practicable the Parenting Orders Program (POP) offered by Relationships Australia and each will provide to the other a certificate confirming his/her attendance and successful completion of such course.

Restraints

The mother and her agents are restrained from:
(a)Removing the child from the enrolment at (omitted) State School, or subsequent High School at which the parents agree she attends, without an Order of the Court or the prior written agreement of the father.
(b)Enrolling the child in any other school without an Order of the Court or the prior written agreement of the father.
Each of the parents are restrained from making derogatory comments regarding the other party or the other parties family directly to or within the presence or hearing of the child AND FURTHER that each of the parents are to remove the child from the presence or hearing of any person doing so.
The mother and father are restrained from discussing any ongoing issue about which there is a dispute with the child or at any changeover.

Overseas travel

Each of the parties and/or their agents are restrained from removing the child from the Commonwealth of Australia without an order of the Court or the prior written agreement of the other party.

Recovery Order

A Recovery Order to lie in the Registry and to be uplifted in the event that the child is not returned to the father pursuant to the specific terms of these orders. The Recovery Order is to be uplifted upon the father filing an affidavit deposing to the failure of the child to be returned to him pursuant to the terms of these Orders.
The Independent Children’s Lawyer is discharged.
All outstanding Applications are removed from the pending cases list.

NOTATION:

A.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

CSC 385 of 2013

MR JARRETT

Applicant

And

MS JARRETT

Respondent

REASONS FOR JUDGMENT

The parents in this matter are not able to agree about the parenting arrangements for their daughter, X born (omitted) 2007 (“the child”). The father is Mr Jarrett and the mother is Ms Jarrett. They have lived together in (omitted) Queensland since about 2010, a period of three years. Prior to that, they had lived in South East Queensland and prior to that, they had lived in Western Australia. They commenced their relationship in 2003, married in 2006 and separated suddenly in July 2013. At that time, the mother went for a holiday to Perth to stay with her mother, Ms J and the maternal grandmother’s de-facto partner, Mr M to spend time with her maternal family. On her leaving (omitted) Queensland, the father drove his then wife and child to the airport and the small family said their fond farewells. On the mother’s arrival in Perth, she sent a text to the father saying she loved him.
Then whilst staying in Perth with her mother and family, and without any discussion with father, the mother suddenly decided to end their relationship and to convey this decision to the father with a text message. The mother told the father that their marriage was over and, further, that she and X would not be returning home, but staying on in Perth to live with her mother and ultimately find her own place. The mother proceeded to enrol X in school in Perth and to make plans to take up her new life.
The father subsequently filed an application for a recovery order for the return of X. The father immediately encountered difficulties in even speaking with X and it was not until the matter came before the Court on the first occasion, prior to the interim hearing, and when the father raised his difficulties in having communication with his daughter with the Court, that the father was able to have any regular form of communication with X. Even then difficulties remained.
After an interim hearing on 9 August 2013, with the father self-represented and the mother legally represented, orders were made for the return of the child forthwith. The child was not returned forthwith.
Weeks passed when the child was not returned pursuant to the Orders of this Court. The mother then lodged an appeal of the interim decision with the continued financial support of her own mother paying the legal fees. The mother then lodged a stay application. When the stay application was heard on 13 September 2013 the child was still not returned to (omitted) Queensland pursuant to the orders of 9 August 2013. The mother at the time said that the child had an ear infection for a week or so following the Orders and could not fly back. There was no acceptable excuse for the non-compliance of orders for the balance of the period. The stay was dismissed and further orders were made for the mother to comply with orders under threat of a recovery order. At the final hearing the mother told the Court that she would have complied with the interim orders for the return of X but for the involvement of her mother, Ms J who, along with other family members, discouraged her from complying with the orders of this Court.
The role of Ms J in this marriage and relationship between the mother and father has been quite profound. She features in the mother’s material and the father’s material. The father’s case in this matter is that he seeks an order that the child and mother continue to live in (omitted) Queensland as they had been doing happily since about 2010, and that X continue to go to school in (omitted) Queensland and that they continue on with the orders that have been made by the Court at the interim hearing, which is for week on, week off with a few variations. The father is so overwhelmed by the influence and interference of Ms J (the maternal grandmother) in the past and currently in his marriage that he seeks an order that the child’s time with Ms J be supervised and or at least be restricted and orders for the maternal family to do counselling.
The mother says she has no network in (omitted) Queensland and only a few acquaintances at Church and X’s school, and that she would generally be happier in Perth. The mother seeks orders that she and X live in Perth and that the child spend time school holidays with the father. The mother says she will accompany X every alternate school holidays (for two holidays each year) to (omitted) Queensland, and the father is to travel to Perth every other school holidays to spend time with X at his cost.[1] In her orders sought, the mother specifies the time within the holiday periods as being ten days each April, July and September school holidays periods and 3 weeks at Christmas. The mother includes special days in Perth (on 14 days’ notice) if the father happens to be in Perth, and when the father is visiting Perth at other times, for up to seven days in any school term.[2]
[1] Mother’s written submissions, page 2.
[2] Exhibit M3.
The parties met in 2002 and at that time the father travelled to meet up with the mother in Perth where she was living with her mother and the father stayed at her mother’s house in (omitted) Western Australia. After a few months the father obtained employment and his own accommodation and their relationship continued. In August 2003 the father obtained a job at (employer omitted) and this enabled him to obtain separate accommodation for them both in inner-city Perth. In February 2004 the mother became unwell and was admitted to the (omitted) Clinic for a few weeks. The father says that the maternal family told him that the mother did not want to see him anymore and that he was not to visit her in hospital. Ms J and other members of the mother’s family went to his apartment and emptied the unit out. In October 2004 the mother and father got back together and the mother moved back into the apartment that they were in previously in (omitted).

In 2005 the mother and father moved to (omitted) Western Australia after the father was offered a promotion with his employer, (employer omitted). (omitted) is around 600 km from Perth. On one of the mother’s trips back to see her own mother, the mother was admitted to the (omitted) Clinic again for a period.
In February 2006 the mother and father became engaged, the father having asked the mother’s father first for permission to marry. The parties married on (omitted) 2006 at (omitted) Western Australia.
Whilst in (omitted) Western Australia, the father took up a position in (employer omitted). He went into business with others in a venture. Ultimately this venture was unsuccessful and the parties suffered economic loss. X was born on (omitted) 2007 in (omitted) Hospital.
After X was born the maternal grandmother came to (omitted) Western Australia to meet her new granddaughter and stayed with the mother and father. Both of their mothers were invited to stay.
An incident occurred involving Ms J regarding the mother’s breastfeeding and this incident has resonated for years within this family. It resulted in the father asking his mother-in-law Ms J to leave the party’s home.
In October 2007 the mother was unwell and was admitted to the mother/baby unit in Perth where the father was able to obtain temporary work with (employer omitted) and thus continue to see his wife and child every day. The father says that in March 2008 there was a period where there was a series of phone calls between Ms J and the mother and then the mother left (omitted) and went to Perth with X and for a period of about two weeks he did not get to see his wife or daughter. The mother stayed with Ms J and her de facto partner Mr M. After a couple of weeks and only being able to get through occasionally to speak to his wife, the mother eventually left the house and did not tell her mother that she was going back to (omitted) with the father. The father described his inability to speak with his wife as something that has happened from time to time when the mother goes to stay with Ms J and her de facto Mr M.
The father says in March 2008 the police arrived when he was teaching (omitted) to some young students with news that an allegation had been made by the mother that he had sexually interfered with X. It is the father’s evidence that this was proven to be a false allegation and that the mother later told him she was influenced by her sister Ms N to do so. Ms N it seems had some experience of her own in Family Law matters.
In January 2009 the mother started working at the (employer omitted) and X was in day care close to (employer omitted).
In May 2009 the mother had what was likely a psychotic episode as she contacted the father to say that she was lying in the street having the baby Jesus.
The mother was subsequently taken to the (omitted) Hospital by ambulance where the father collected her and took her to the (omitted) Hospital where she was admitted to the (omitted) Hospital psychiatric ward. The full-time care of X fell to the father and he enrolled her in day care close to his work and he and X visited the mother each day.
To the father’s surprise in June 2009 when the mother was still in hospital he encountered Ms J, Mr D (the mother’s biological father who has separated from Ms J) and the mother’s brother, Mr G in the psychiatric ward. Prior to their arrival the father had not been contacted. At a meeting the father had with the mother’s treating doctor he was then told that the mother would be going home with him as they had arranged previously and that he was to go home and wait for her which he did. When the mother did not arrive home on contacting the hospital authorities, he was advised that his wife (the mother) had left with her own mother, father and brother and X who the mother had collected from day care unbeknown to the father. The father contacted the police but was told there is nothing that could happen.
On 20 July 2009 after unsuccessful attempts to contact the mother he engaged a lawyer and filed an application for a recovery order in the State Court in Western Australia.
On 12 August 2009 the matter was then transferred to the Family Court of Western Australia. A Family Report was produced which is an annexure to the father’s material.[3] The reasons of Magistrate Andrews in the State Court are also annexed to the father’s material. The father alleges that there were great difficulties for him in this period and that the mother travelled away to Melbourne with X without his agreement and contrary to Orders. Handovers occurred in which the father was intimidated by Ms J, Mr D and Mr M. The handovers at that stage were not conducted by the mother, but those three family members whilst the mother remained in a car some distance away.
[3] Annexure 3.
Ultimately the intimidation became such that the father successfully applied for an apprehended violence order against Mr M, the maternal grandmother’s de facto, on the basis that he was constantly provoking the father to hit him and invading his personal space and being intimidating.
The mother did not ever do anything to assist the father. He was not permitted to speak with the mother or communicate with her at this time. The mother also from the outset refused mediation and communicated with the father only through her lawyer.
Ultimately on 14 April 2010 the mediation occurred and agreement was reached making new orders by consent. The only parties involved in the mediation were the mother, father and an Independent Children’s Lawyer. By that stage a Family Report had issued. The father said that the mother told him later that her own mother was very upset that the mother had signed consent orders without her own mother’s permission.
In October 2010 the parties left Western Australia and went to Queensland. The mother moved away first with X to the paternal grandmother’s (Ms C who is the father’s foster/adoptive mother) home and about a few weeks later the father was able to re-join his wife and child in Queensland.
On 21 October 2010 the maternal grandmother applied to the Court to intervene in the parenting litigation between the parents and become a second respondent in the proceedings that had been on foot between the mother and father. She applied for a recovery order to have X return to her care in Western Australia when the mother and father had re-united. The documents filed in relation to those proceedings are annexed to the father’s material.[4] The mother provided a response affidavit on 25 October 2010 and that affidavit is also before the Court.[5] It is a very telling Affidavit.
[4] Annexure 7.
[5] Annexure 9.
In November 2010 when the father, his wife and child were living at his mother’s home in Queensland, unexpectedly the maternal grandmother Ms J and Mr M arrived and drove onto the easement of the property at (omitted) south of Brisbane.
They asked for the mother to get into the car and the father was fearful that they would abduct their daughter and he asked those family members to leave.
In February 2011 the father had an argument with his own mother Ms C and was asked to leave which he did. The mother and X stayed on with his mother Ms C and were not asked at any time to leave. The father found some temporary work and accommodation and eventually the mother and X moved out of the paternal grandmother’s home and re-joined the father.
A couple of months later in April 2011 the parties then moved to (omitted) Queensland where they stayed with the father’s biological mother Ms L.
The father secured employment with a fly in fly out (omitted) role at a (employer omitted) and the parties secured their own apartment on a 12 month lease.
After the parties lived in (omitted) Queensland for a period the father asked the maternal grandmother to apologise for some of the hurtful things said and done by her including criticisms she had made in a letter raised in the Family Court of Western Australia stating in part, “Ms C does not know what it is like to be the mother as she has never given birth to a child” which was also said in person to Ms C after X’s birth.
In May 2013 Ms J went to the party’s home in (omitted) and offered an apology saying she was sorry for everything and she wanted to be one big happy family. The maternal grandmother returned to Perth.
On 28 June 2013 the father drove his then wife and child to the (omitted) domestic airport for a planned holiday to see the mother’s family in Perth. He says, “I hugged them both and kissed them both and told the mother I loved them and have a good time and I will miss them. They both said they love me and would miss me.” I had not planned on going with them due to work commitments. They were scheduled to come back to (omitted) Queensland on 11 July and for X to start back at (omitted) State School on the following Monday 15 July. The father said he was a little hesitant with the mother going away as she had been showing signs of becoming unwell in the last couple of months.
This was in part due to the fact that since before Christmas 2012 the mother had not been taking her regular medication for her bipolar as she and the father were planning to have another baby and trying to conceive. The side-effects of not taking the medication meant that some of the symptoms of her bipolar could return.
After the mother and X left for Perth the father noted what he regarded as a familiar pattern which was that immediately upon their arrival in Perth he made many attempts to speak with his wife and daughter, however he was unable to contact them by mobile phone or text or email and there were few responses coming back from the mother in relation to messages he left with the maternal grandmother and family.
On 10 July the day prior to their scheduled return to (omitted) Queensland, the mother sent a text message saying she was having a great time and she would like to stay maybe another week. The father was worried about getting this message as it is a pattern the mother demonstrated when she becomes unwell. On 11 July the father tried to contact both his wife and daughter and finally in the late afternoon a call was arranged at 6 pm. The parties spoke with each other, the father said they had a laugh and a nice chat and the mother assured him everything was good not to worry and that she loved him. The following day the father received a text message from the mother saying she did not love him anymore and wanted to separate from him and was going to remain living in Perth from that moment onwards.
As can be seen from the series of events I have set out, these parties did not actually have a separation in (omitted) Queensland where they were living married with one child, the father in employment and the mother doing primarily homemaking duties along with voluntary work in the community. It all happened once the mother stayed in Perth.
It is a feature of this matter that the mother appears to have a complicated on/off relationship with her own family, particularly her mother Ms J and that at times she has been influenced or pressured to take a stand against the father and leave him. The mother has left him unexpectedly in 2007, and again in 2009. When this occurred in 2009, the mother recanted allegations she had made about the father and instead made allegations of controlling conduct of her mother. Also reference was made to the difficulty in her mother allowing her to be independent and making her own decisions, in her life.
The mother’s position at trial is that she was isolated by the father, that he has been controlling, dominant, financially abusive and emotionally and psychologically abusive, threatening, bullying, and coercive. The description that the mother provides of the father is almost word for word the same as the description that Ms J gave in her evidence to the Court. Both were keen in their oral evidence to get out this description as early as they could.
On the day prior to the trial the mother lodged an application for an adjournment. The adjournment was refused for the reasons stated at the time. The mother stated that on reading the Family Report she realised that she would need to get more evidence about the father’s abuse, emotional and psychological, domination, belittling, financial abuse, threatening and coercive behaviour, manipulation, isolation, bullying and brainwashing and that the report writers didn’t understand it and she had only just realised that on reading the Family Report. In the lead up to the trial, the matter had been case managed and mentioned several times to prepare for the trial and the mother had always pushed for an early trial date.
In any event, for the reasons stated, the trial proceeded over three days.
The father’s case is that all throughout their marriage, Ms J was interfering and undermining the marriage and his relationship with his wife and child and that this negative intervention and influence has caused a division between himself and his wife.

Orders sought

The mother’s application is that she wishes to return to live in Perth with X. The mother says initially she shall be living with her own mother Ms J who lives in Perth and ultimately she hopes to have a place of her own. The mother says that she has her family support base in Perth and that X’s relationship will continue with the father, whether she lives in (omitted) or Perth. The mother says she has the opportunity for employment in Perth, as until her (qualifications omitted) registration is accepted in Queensland, she can more easily get employment in Western Australia. The mother who is diagnosed with bipolar disorder also says her mental health practitioners are based in Perth.
The mother seeks to relocate to Perth and offers up 10 days for the father in the school holidays in April/May, July, September and four weeks at Christmas. The mother says she will be responsible for two return economy flights for X each year to facilitate time and she will pay her own cost of travel to accompany X on those occasions.
In the event the Court does not favour the mother’s primary proposal, the mother proposes that X and herself remain living in (omitted) Queensland with the mother from 9:00am Monday in first week until Thursday before school in second week and thereafter with the father until 9:00am the following Monday, as set out in Order 6 of the amended orders sought by the mother.
When the trial started, the mother was seeking orders for a week on/week off living arrangement for X if both parents live in (omitted) or Perth. However, at the end of trial Mr Victoire of Counsel explained the mother’s position had fallen away from week on/week off to her being the primary carer from Monday in week one to Thursday of the following week. This was to focus on the child’s needs and because the mother can care for the child out of school for the other days. An amended minute of orders sought by the mother (attached to written submissions) sets this out at Order 6, with other orders sought, including holidays and Skype/telephone communication. These are referred to in final oral submissions of Counsel for the mother and an amended set of final orders sought was attached to Mr Victoire’s written submissions. The mother seeks orders for equal shared parental responsibility.
The father is opposed to the mother’s proposed relocation of X. The father is deeply concerned that if the mother and child live in Perth, his relationship with his daughter will be totally undermined by the negative influence towards him of the maternal grandmother over the mother and X. He seeks orders that if the mother remains living in Perth, that the child live primarily with him and spend time with the mother for seven day blocks throughout the school holidays, a ten day block during Christmas and if she is in the (omitted) Queensland region, she can spend time without restriction to include significant and special days. These times include restrictions as seen in his orders sought 14, 15, 16 and 17 excluding members of the mother’s family as specified including the maternal grandmother until they can confirm they have attended approved court counselling, and these orders would be subject to review by the Court in 18 months’ time, otherwise, until such certificates are obtained, the relatives have supervised time.
By the end of the trial, the father’s alternate position on this issue was that there be a time limit on the amount of time that X spends with the maternal grandmother and during the mother’s holiday periods, that the maternal grandmother’s time be limited to 5 days. The father seeks other restrictions as set out in his case outline. I will refer to those restrictions in more detail elsewhere in this judgement.
In the event the mother lives in (omitted) Queensland the father seeks an Order for a continuation of the equal time arrangement, week on week off, and the equal sharing of holidays, with restrictions regarding the maternal grandmother in the event she visits (omitted). The father seeks an order for sole parental responsibility.
The ICL does not support the mother’s proposed relocation. The Independent Children’s Lawyer seeks orders that the child live in (omitted) Queensland on an equal time arrangement, week on week off, with each parent and that the holidays be shared. The ICL supports an Order for equal shared parental responsibility.
The father also sought orders to prevent a re-occurrence of the most recent events and requested that orders be made that the mother is not remove X from her current or any future school, without the written agreement of the father or an order of the Court. Similarly the father sought orders about a bond being paid into Court by the mother in the event the mother travels to Perth of $5,000.00, to be released if the child is removed without notice to the father or not returned, for use by the father in the expense incurred in having the child returned. Also in relation to overseas travel, if undertaken by the mother with X, the father seeks a bond of $100,000.00 be paid into the Cairns Registry when the child and passport are removed from (omitted) Queensland and returned when the child returns and the passport is returned to the Cairns Registry.
This matter proceeded over three days. In these reasons a statement of fact represents a finding unless otherwise stated.

The Law

This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated: “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).” The Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 made significant changes applying to matters filed on or after 7 June 2012, which this application is. As a result of those legislative changes, when applying the primary considerations under s 60CC (2) the Court is required to give greater weight to the second consideration, that is, protecting the child from harm.
When I determine the best interests of X, I will consider also the several additional considerations set out in s.60CC(3) when evaluating each of the parties’ proposals for X’s future living arrangements. Reference will be made to the allocation of parental responsibility. If an order for equal parental responsibility is to be made, section s.65DAA (1) of the Act is invoked.
In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal significant and substantial time.

This application centres upon an application by the mother to relocate. The Court has had regard to the authorities including Taylor & Barker [2007] FamCA 1246 and McCall & Clark (2009) FLC 93-405. McCall & Clark involved a discussion of the prospective approach in terms of s.60CC3(a).

The Father

Watching the father give his evidence about incidents in the past throughout his marriage which involved the interference of Ms J, her current de facto and her former husband, it was clear that deep distress has been caused to the father.
The father gave evidence over two days. It was very clear to me that he is distressed, angry and frustrated about past events during the marriage involving his wife and the interference of her family.
The father was clearly exasperated about many of the allegations made about him. The father suffers from a mental health condition of his own, being an ADD or ADHD condition. He receives and takes medication which has assisted him greatly. Overall the father seems to me to be a very responsible person and father.
I accept he has genuine concern about the mother’s mental health issues, noting that the mother suffers from bipolar and depression and other issues which I will come to later. Having watched the father and listened to his evidence, I’m quite satisfied that he has been acting responsibly in his attempts to provide financial and other support for his wife and daughter. Many allegations were made about him being controlling and coercive. There was a distinct lack of facts to back up the assertions made both by the mother and her mother regarding the father.
The father has been described as financially abusive by the mother and her mother. The evidence of this is that when the parties were living together or married, and at a time when he had a poor credit rating, the father obtained another credit card in the name of the mother and put their expenditure for both him and the mother on these credit cards. That expenditure included money for the father to kit himself out for a new employment position with suits and shirts and so forth. I do not accept that this conduct in using that credit card to support them both amounts to financial abuse.
The father has made arrangements during the marriage for payment from his wages to be made regularly in regard to the debts of the parties incurred earlier in the marriage arising from the collapsed (omitted) venture in Western Australia. The father has consolidated their debts with a lending institution and is paying $600 a week in reduction for the parties’ considerable joint debts. This appears to be entirely contrary to the suggestion of the mother and her mother that the father is financially controlling. Ms J said she and/or her family had contributed to the parties’ credit card debt at the time. That may be so, that does not make what the father did in the occurring expenses in a credit card in the name of his wife/ partner financial abuse. It means that the parties received financial assistance in relation to their debts at that time.
The father was accused by the maternal grandmother of interfering with the mother’s prescriptions for her treatment of her psychiatric conditions during their marriage. This amounted to evidence that the father at a point in time in, I think, about 2004, researched on the internet about the sorts of medications that the mother was taking and alternatives. The father suggested also that she have a consultation with another doctor, namely a doctor that he was seeing for his own mental health issues in whom he had confidence. The father suggested to his wife that she might try some other medications or take less of her existing drugs. The mother did see another doctor. Ms J has not ever met with that doctor. I note in the mother’s notes[6] a reference to her taking her medications on a list of things the father wanted her to do.
[6] Annexure 8 of the Father’s trial Affidavit.
I do not accept that the father continually told the mother to reduce her medication and that, as Ms J would have the Court believe, all relapses of the mother’s mental health were the fault of the father. My impression of the father was that he was acutely aware of the mother’s mental health conditions, that he knew the signs when she was unwell, that he had observed and experienced mental un-wellness on the part of the mother. This included an episode where the mother disappeared during the marriage with the child in the car for an evening and slept near a church and contacted him to say she had given birth to Jesus Christ. The strong impression from listening to the father’s explanation about various incidents and the party’s life together was that he had a good understanding of when the mother was becoming mentally unwell and he was highly attuned to her condition.
I had a strong impression that the father had an acute ability to understand that when the mother is unwell, she can have delusions and that her behaviour decompensates. He understood that at these times, the mother was not in a position to be responsible for X. Even currently the mother and father have between them worked out how best to care for X at such times, such as earlier this year. In December 2013, early 2014, when the mother felt herself becoming unwell, she went to the father’s home, stayed overnight and she and the father worked out safe arrangements for X. There is no evidence of anything other than the father being supportive at all times of the mother when she is unwell. The father appears to me to have handled all of these incidents in an appropriate and responsible fashion making good decisions. The suggestion of Ms J was that the mother was more unwell when she was closer to the father. The evidence is the opposite as the evidence shows that the mother whilst living in (omitted) Queensland with the father has been managed in (omitted) to the extent that she has not had a hospital admission in (omitted) whereas whilst living in Western Australia, there were a number of admissions. Mr O, the Family Report writer, opined that importantly this argues against the suggestion that the father has negatively interfered with the mother’s treatment and that it seems that living in (omitted) Queensland the mother has had relaxed mental health issues[7].
[7] Transcript of Mr O’s evidence, 26 February 2014, page 4, lines 35-40.
He has looked after X when the mother has been taken to hospital including when X was quite young, under the age of two. The mother unfortunately suffered from post natal depression and she had this to deal with at the same time that the parties were living as a couple in (omitted) Western Australia.
The other theme both the mother and Ms J pressed is that the father has tried to isolate the mother from her family. The evidence on this topic was that the parties lived in (omitted) and had moved away from the maternal family in Perth to do so. I accept the evidence of the father who explained that he was offered a promotion with (employer omitted); it was to either (omitted) or (omitted). He took the one to (omitted) to further the parties’ future. Ms J admitted in evidence herself that the mother wanted to go to (omitted) to do some (occupation omitted).
The mother and father, I am satisfied, lived a reasonably normal married life with ups and downs for a young couple and they have together managed to cope with the mother’s mental health episodes and un-wellness leading up to and after an episode. When the mother has been admitted to hospital for an episode, the father has managed to continue the solo parenting of X, and look after his wife while she is in hospital. There is no evidence that he has done anything other than work with the treating doctors within the hospital to assist in his wife’s release to home.
When the parties lived in (omitted) the father left his position with (employer omitted) and became involved in a business venture in a (business omitted) and the mother worked as a (occupation omitted). The strains and stresses of a new baby played out and the mother, as I said, unfortunately suffered post natal depression. I do not regard the fact that they moved to (omitted) as being an attempt of the father to isolate the mother from her parents. I am satisfied that he was offered an opportunity with (employer omitted) for promotion which he took. On either of the locations offered the father and mother would have had to move away. The same allegation was made by the maternal grandmother about the father’s and mother’s decision to leave Western Australia and move to Queensland in 2009/2010. I am satisfied that this move occurred as a joint plan of the parties and that the mother willingly left Western Australia as part of that plan.
As will be seen elsewhere in this judgment, the mother and X moved in with the father’s mother and that follows an attempt by the maternal grandmother to remove X by recovery order from both the mother and father as a reunited couple. This action is a very powerful intervention on the part of the maternal grandmother and gives me a strong indication that Ms J very much sees herself as a third parent of this child. At the time the mother gave sworn evidence she wanted to raise X in her own way and she wanted her mother to recognise her independence as a young mother and complained about the controlling conduct of her mother Ms J.
As seen in the mother’s affidavit and other materials before the Family Court of Western Australia, the mother’s case had been that the father was dominating, controlling and abusive. She subsequently however changed her mind when she had moved in with her mother and after a period of time found the interference and control of her mother unbearable and left. The affidavit that the mother swore at the time in response to this intervention was very telling in terms of her being overwhelmed by her own mother, her mother being overprotective and not wanting her to be independent. The mother stated that she wished to raise X in her own manner and gave explanations that whilst her husband may speak harshly at times, that this was just how he was, and that they should accept that he is trying hard to support their family unit.
Since the mother and father have lived in (omitted), despite what Ms J alleges about the father isolating the mother, the mother has continued to regularly see her own family. The evidence of the dates that Ms J has travelled to (omitted) show she has travelled every few months for block periods. This is in addition to the mother and X traveling away from their home in (omitted) to holiday with the grandmother and other family members. On those occasions the grandmother pays for flights and travel costs for the mother and X. The schedule of those trips has been provided by the father and they are occurring regularly. The father has agreed to these repeated trips away for the mother and X to spend time with the maternal grandmother and other family members. The father has in my view strongly supported the mother and X having a relationship and spending time with Ms J, whether in (omitted) or elsewhere. This can be seen by looking at all of the dates of travel combined with the occasions that the maternal grandmother visited (omitted). It represents significant time spent by the mother with her own family often at the expense of the father’s time with his daughter. It is more correct in my view to say that the maternal grandmother has been regularly arranging trips away for her daughter and X with herself and her de facto husband and family.
The animosity between the father and grandmother harks back to two incidents. The first occurred when the father had travelled to Perth to take up a relationship with the mother and had been in a relationship with her for a period of time. On Christmas Day when the father had no other family in Perth, the maternal grandmother did not invite him to spend time with the mother and her family on Christmas Day and excluded him from their family arrangements. This left the father to spend Christmas day alone as he has no other family in Western Australia.
Another significant issue occurred not long after X was born. It involved breastfeeding and the father’s evidence, which I accept, was that the mother was struggling to breastfeed and that she was under pressure from her own mother Ms J to breastfeed. Ms J was saying words to the effect that the mother ought to be able to breastfeed like Ms J did.
The father’s adoptive mother Ms C gave evidence at the trial. She was present at the time that Ms J made the comments to the mother and to herself. She had tried to pacify the situation by saying that it didn’t really matter if the mother wanted to bottle feed. In response Ms J turned to Ms C and said words to the effect, “I have breastfed four children without any problems at all Ms Jarrett should be able to do the same thing …you wouldn’t know anything about it because you haven’t had any children.”
The father’s mother Ms C has adopted two children, one being the father, so the comments made by Ms J were unfortunate and hurtful from the father’s perspective, and no doubt his mother Ms C.
Ms J told the father that she had spoken with the Breastfeeding Association and they told her that she was right in what she was saying. The father phoned the Breastfeeding Association and apart from saying they had not heard of Ms J, they also informed the father that they did not recommend that the mother just keep trying. The father became increasingly concerned at the further distress being caused to the mother. He believed his mother-in-law had an agenda about breastfeeding which was going to continue to be a pressure for the mother. Accordingly he asked Ms J to leave their home.
In October 2006 the mother and baby X were admitted to the mother/baby unit in Perth and the father, mother and baby remained there for the period required and did not alert the maternal grandmother.
These and other incidents have created significant animosity between the father and Ms J and have given him legitimate reasons in my view to be wary about any involvement of Ms J in his family.
This difficult history of Ms J playing such an intrusive role in the relationship between the father and mother continued in June 2009 when the mother had a psychotic episode and ultimately Ms J, Mr D and the mother’s brother Mr G unbeknown to the father arrived at the hospital psychiatric ward, ultimately left with the mother and X and drove the 600 km back to Perth, without any prior reference or agreement with the father. The child was removed from his care by stealth as he had the child in day care whilst the mother was in hospital and he was working, and the child was collected from day care by the maternal grandmother and the maternal family without notice to him. The parties were still married and living together prior to her hospital admission. It took the father around two weeks to be allowed to meet with his wife, however X was kept back at the house by Ms J. It seems that the mother eventually left her mother’s home with X and returned to (omitted) and her husband without telling her mother. On this occasion the father engaged a lawyer and filed for a recovery order in the Family Court of Western Australia.
Ultimately a Family Report was prepared and an interim hearing took place before Magistrate Andrews who issued interim orders on 12 August 2009. Those records were obtained by the Federal Circuit Court when this matter first came before the Court in Cairns for the interim hearing and several of those documents form part of the father’s material and exhibits in this hearing.
When the parties finally had an opportunity to just sit together with their lawyers and no other family members, they agreed to consent orders. After that the parties reconciled and moved to Queensland.
A similar scenario played out again in July 2013 after the mother went to spend another holiday with Ms J, the father again started to experience difficulties in contacting his wife and daughter. The mother called the marriage off quite unexpectedly by a text message and then email. At that stage, the father and the mother were not given an opportunity to talk as husband and wife between themselves about their marriage and what was happening. Instead, Ms J funded legal action for X and the mother to remain living in Perth. Once again the father was up against the might of the maternal grandmother and her financial resources and the matter was acted out in Court with the mother legally represented and the father self-represented trying to retrieve his relationship with his daughter.
In the course of all these events occurring the relationship between the father and maternal grandmother has been extremely damaged. The father no longer trusts Ms J and it is his fear that if the mother and X live permanently in Western Australia, then his relationship with his daughter X is under a direct threat and will be damaged beyond repair in the fullness of time.
The father, in my view, is a child-focused parent. He has on two or three occasions found himself acting to protect his marriage and now his relationship with his daughter from what he perceives as the undue negative influence of Ms J, her current de facto, her first husband and other members of the maternal family over the mother and also X.
The father has experienced events going back for years including the latest separation, each one of them involving Ms J exerting influence over the mother and X. I also accept the father’s submission that the recent events and the mother being ensconced away with her family repeat earlier similar events.
The father seems to be an intelligent man. I consider the history of this matter and the events surrounding and involving the mother’s unilateral relocation and ending of her marriage validated the father’s concerns. Having regard to the evidence about the grandmother’s unhealthy relationship with her daughter, and the grandmother’s strong influence over the mother which at times even the mother finds unbearable, I am satisfied that the influence and pressure from her own mother was a significant factor in the mother’s failure to return to (omitted) from the July 2013 school holiday period. The mother’s susceptibility to Ms J’s influence and negative opinion of the father as a husband and father represents a powerful negative force both in the attempts of the mother and father to remain in a relationship and a significant risk to the continuity of the current close relationship between the father and X. The further complication is handling ongoing mental health issues.
The Court made orders for the parties to have a counselling session as the manner in which the mother called off the relationship meant that the mother and father never had the opportunity to discuss even the breakdown of their relationship let alone the future living arrangements of the child. Despite making orders for this to happen, as at the date of trial, it had not happened.
The father gave a description of the shared care that the Court in Western Australia ordered he have in Perth. As seen in the reasons for judgment of Magistrate Andrews and the Family Report, the father was given plenty of time with the child.
The interim judgment notes that, “they separated when Ms Jarrett left (omitted) where the family had been living, taking X with her to Perth without Mr Jarrett’s knowledge or consent. Ms Jarrett has lived with her mother, that is the maternal grandmother, in Perth since that time. X was born on (omitted) 2007 in (omitted), she is 21 months old. She has lived there with her parents since then other than a period of, as I understand a couple of weeks in April 2008. Again, on this occasion Ms Jarrett left (omitted) without telling Mr Jarrett, taking X with her. They did eventually though reconcile.”

The father described that when he spent time with X he would be confronted at handover with the maternal grandmother’s current de facto partner, Mr M, the mother’s own father, and the grandmother with Mr M holding the child and the three of them lined up in a confrontational manner. So great was the confrontation from Ms J’s current de facto, that the father sought and obtained a temporary restraining order against him. I accept the father’s evidence that he wrote to the State Court and said he didn’t wish to continue with those proceedings when he left the state and moved to Queensland. Subsequently, the respondent, Mr M, sought an order for costs against the father and an order was made. I accept the father’s evidence that he has never seen an order for costs. I note that the affidavit of the mother filed back when the parties were in family law litigation in Western Australia[8] gives support to the father’s application. The mother herself made references to the circumstances surrounding the father’s application for a restraining order against Mr M, saying under oath that she was not surprised that the father had obtained a VRO against Mr M.
[8] Annexure 9 of the Father’s trial Affidavit.
The mother said at paragraph 23 under the heading of, “My reasons for going to Queensland:
“Although it was agreed at the ADR conference on 14 April 2010 that my family members should remain in the motor vehicle during handover Mr M continued to insist, on most occasions, on getting out of the car. Initially, prior to the ADR conference, Mr Jarrett had nominated Mr M as the go-between for us. I can only describe Mr M’s demeanour on most occasions as “smug and cocky”, which clearly antagonised Mr Jarrett. Often I wanted to say to Mr M that I didn’t agree with his behaviour at handovers but I was always afraid of his reaction knowing how much he and my mother despise Mr Jarrett.
On one occasion Mr M told me he would “finish Mr Jarrett off if he could” and described Mr Jarrett as a “nasty piece of work” and “a cunt”. As stated above my mother expressed sentiments that suggested that she hoped Mr Jarrett would disappear from X and my lives.”
There were other episodes that the father has described which have caused significant grief on his part. The father wept at times when giving his evidence about some of the hurtful actions that have played out in the past with essentially the maternal family literally lined up against him.
I am satisfied that the father has been falsely accused by the mother and Ms J of being manipulative, abusive, controlling, financially abusive and the other accusations. His positive attributes of being supportive and providing for his family are not acknowledged by Ms J. In the last litigation in Western Australia the mother recanted her allegations about the father and gave affidavit evidence of her own mother’s unfailingly and strongly held views against the father. The mother deposed in her affidavit[9] filed in response to Ms J’s request for a recovery order to remove X from the mother and father, who had by that stage reconciled:[10]
“I acknowledge that my mother Mr M and my father love X and me and have always tried to do their best to look after and protect us. Unfortunately often they are overprotective. Since August 2009, one month after moving to Perth and moving in with my mother, I had hoped that I could find a small rental property for Ami and me. I felt I needed my own space to think about my circumstances and to review what had happened between Mr Jarrett and me. My family kept saying things like “no no Ms Jarrett, that’s a terrible idea. Mr Jarrett will just come in and start controlling you again. It just opens up another opportunity for him to get X. It’s too soon. He will take X away from you.”
[9] Annexure 9.
[10] Annexure 9 of the Father’s trial Affidavit.
The father himself manages his own mental health issues. I accept that he has a good understanding of the difficulties faced by the mother, and that he is alert to her mental health frailties.
I accept the view of Mr O that the father is not the person described by Ms J. There is no doubt that there have been a lot of unfortunate incidents that have occurred during the father’s marriage to the mother that have involved Ms J. I note that in the reasons of Magistrate Andrews reference was made to a letter being sent by the father to Ms J.[11] The Magistrate observed the relationship between the mother’s family and the father having been strained over a number of years despite attempts being made to move on after their wedding. In referring to the father’s request to the mother-in-law to leave after the issues arose about the mother’s breastfeeding, the Magistrate noted that, “the father corresponded with Ms J to advise her of this in what I consider to be blunt and callous terms. Ms J, for her part, wrote to Mr Jarrett’s mother to put her in the picture about what she considered was a true history of her son’s behaviour. Ms J’s correspondence was equally in my view as appalling as Mr Jarrett’s.”
[11] Annexure 4 of the Father’s trial Affidavit, page 5 of the Judgment.
Overall I consider the father to be a child focused parent and that his desire to have a meaningful relationship with his daughter has suffered significant interference from the mother and her family, especially from Ms J.

Ms C, Paternal grandmother

Ms C gave evidence at the trial. She is the father’s adoptive mother, and I found her to be an impressive and honest witness, whose version of events I accept.
This witness impressed me as being a supportive mother who had an air of calm and sensibility about her. She knew of the parties’ difficulties with the interference in their relationship. She also impressed as a loving grandmother whose primary focus was to support the family. She gave a candid account of an argument the father and mother had in February 2011 when the father had been intoxicated and he broke a table when a chair got pushed back from a table with an extension. She said that she did not speak with the father for 12 months. The issue resolved when the father rang and spoke to his mother on Easter Sunday 2012 and apologised, they kept and keep in touch with calls, cards, phone and Skype weekly.
Ms Jarrett spoke with affection regarding the mother and said she would always be available to her. Ms Jarrett told the Court that the mother had discussions with her when she arrived in (omitted) and explained that she wanted to get away from her family, that she wasn’t happy with the relationship with her family and felt that they had not given her enough space.

The Mother

The mother, like Ms J, quickly and early in her evidence described the father as controlling, dominating, someone who had financially abused her, someone who had committed acts of family violence against her and who had isolated her. Her use of adjectives to describe the father was strikingly similar to that used by Ms J as soon as she took the stand. That same description appears in the mother’s affidavit when the mother sought an adjournment, in which she said that she needed to get evidence from her family about how the father was controlling, dominant, undermining, used family violence, bullying and financially abuse.
The mother is a fairly unemotional person. She gave what sounded like rehearsed conclusions rather than facts. She was challenged at various points in her evidence about the description she was attributing to the father and her explanations fell far short of demonstrating behaviour to match the mother’s conclusions.
She is, in my view, still fond of the father. They have had a good working relationship since the mother was ordered to return (omitted), save for the times that her own mother has been present in (omitted) in that period, which included just prior to the trial.
It’s clear to me that the mother is under significant influence from her own mother and that she tries to appease her mother, but when left to her own decision making and life, she has her own connection or allegiance with the father. The mother and father have had good times and difficult times in their marriage and the mother’s mental health has been a considerable factor in their day to day arrangements. The mother gave evidence that the father forced her to do things, such as go to work, which I do not accept. There is no evidence to support this assertion. The mother is well-educated with a (qualifications omitted) and I consider she has worked happily as a (occupation omitted). The mother told Dr K that she was looking for (omitted) work starting next year since she is a trained (occupation omitted) and that she worked as a (occupation omitted) until 2009 and that she was quite popular as a (occupation omitted).
The mother told the Court how she worked in a (omitted) until her (omitted) qualifications were finalised and then, subsequently, the mother told the Court how she sought work as a (occupation omitted). I do not accept that she was “forced” to work as a (occupation omitted). It was her career; she had studied for four years to achieve this qualification. This description was typical of the way the mother tried to present her relationship with the father.
The mother also gave evidence that she was forced by the father to do ‘exotic dancing.’ Her evidence was, at its highest, that whilst the mother was of her own volition working in a bar for a company dancing in skimpy outfits, that some of the girls in the company also did exotic dancing. On hearing this, the father suggested to her that she could do likewise to earn more money. When asked to explain how all this came about, the mother said that she had a friend who she worked with who was dancing with the mother doing what the mother called ‘dancing in a bar in skimpy outfits’ (the mother explained that to her, this was different to exotic dancing) and that the father suggested to her that she go and see what the exotic dancing was like. The mother said she did this and she didn’t like it and she didn’t do it again. That is the extent of the evidence. I do not accept that the mother was forced to become an exotic dancer, as alleged by the mother and the maternal grandmother.
What emerged during cross-examination of the mother on this topic of the mother’s work as a dancer in skimpy outfits was that the mother has not ever told her own mother or the Court, until she was pressed under cross-examination, that she voluntarily did dancing in bars in skimpy outfits for months. It was her own choice. The mother said she did it with two or three others girls and described dancing whilst in a scantily clothed outfit. The mother explained that this dancing was different to the pole dancing, which is what she referred to as the “exotic dancing”, which she was not prepared to do. She said she had never told her own mother that she had voluntarily sought additional work dancing in skimpy outfits. The mother said she took it up because it was good money. The mother said she was paid quite well for the hours that she worked and that she did that for some months at various hotels around Perth.
It is clear to me that the mother’s pursuits in obtaining casual income from dancing in scantily clad outfits and then her enquiry about doing exotic dancing has been conveyed to or interpreted by Ms J as her daughter being forced into exotic dancing in various hotels by the father. This is not what has happened at all. The mother admitted under cross-examination she has not been candid with her mother in this regard.
Similarly, I am not satisfied with the mother’s explanations of what constitutes the father being manipulative or “manipulation” of her by the father. The mother’s evidence of an example of this was when the father asked her to swap a day with him that X usually had with the mother pursuant to the interim orders, when his own mother was visiting (omitted) in late 2013 or early 2014, so that X could have more time with her whilst she was here. I do not know who came up with the description of the father’s conduct being manipulation, but as between the mother and Ms J they used the same descriptive language. The mother refused to agree to this swap and described the request to have her change the date as manipulative. I do not accept that this conduct is manipulative.
The mother has achieved excellent academic achievements of a (qualifications omitted) whilst managing her mental health illness. She has managed to juggle work and together with the father the rigours of raising a young child as they did in Western Australia. The mother has managed in (omitted) to perform all the usual tasks of getting X to and from school and managing the household with assistance from the father whilst doing voluntary work.
The mother seems to be very acutely aware of when she is becoming unwell and as recently as December 2013 or January 2014, the mother approached the father for support when she was feeling unwell. The father offered her that support and between the two of them they managed.
In relation to this latest episode of the mother feeling unwell prior to the trial, the mother gave evidence that the father was manipulating her. When asked to explain, the mother gave evidence that when the father heard she was unwell, he offered for her to either go to the hospital or come and stay with him. The mother chose to stay with him. I saw nothing manipulative or controlling about that, it seemed very sensible advice. Later in her evidence the mother admitted that it was sensible advice, that it was the right thing for the father to do and that she took up that offer, she was pleased to see the child and it was good that she stayed with the father. The mother said having done so, she felt much better. She slept alone in the father’s bed for a period and then went into her own bed. Between the mother and the father, the early signs of the mother being unwell were managed with the support of the father.
The history of their living together in (omitted) shows that they were both settled in the community. I do not accept that the mother did not have any friends. The mother told Dr K she had friends. There is evidence of her being active in the community doing volunteer work and there is no evidence to suggest that somehow the mother has been isolated in (omitted) living without any friends. She has been actively raising X and taking on multiple roles of mother, volunteer worker and wife.
As between the mother and father, I saw much opportunity for a cooperative relationship. Apart from the negative labels used by the mother to describe the father’s behaviour, there was little else by way of evidence that suggests that these parties have had disagreements. Quite the opposite: They have together worked to bring up their child, they did it in Queensland and that was exactly what the mother wanted to do. Her departing words in her affidavit on leaving Perth and her mother and in response to her own mother’s application for a recovery order of X, were that she wanted her own mother to let her raise her child how she wanted to do it. And that is what the parties were doing in (omitted) when the mother and X went for one of their many holidays with the maternal grandmother and the mother and child subsequently and suddenly stayed there.
As for the allegation by the mother and Ms J of “isolation” and the father isolating the mother from her family, as I’ve said, there were regular and frequent visits by the maternal grandmother and other family members to (omitted). There were also regular visits by the mother to spend time with her mother or her sister in Melbourne when her sister was pregnant and also when the sister had her baby and then trips over to Perth for more time. It was alleged by the mother and her mother that the father was controlling and unreasonable when he refused to let the mother and X, during their marriage, stay on for Christmas in Perth, after they had already been there for some time for a 60^th birthday party. I did not consider that it was unreasonable for the father to say that he wanted to have Christmas with his own daughter and wife in (omitted) where they lived and he worked and nor do I consider it controlling behaviour. The maternal grandmother still complains that she has not had Christmas with X. The parties do not have a legal obligation to organise this. Those decisions remain with the parents.
In terms of the mother’s relationship with her own mother I note that the Family Report stated that the influence of Ms J on the mother is an important topic for “comprehensive therapeutic intervention.” I am not satisfied at this point in time that the mother has the ability to assert her own independence and the best interests of X given the dynamic of this relationship.
When she is not under the influence of her mother and maternal family, I consider the mother has a lot to offer X now and in the future.

Ms J, Maternal Grandmother

Ms J entered the Court room and she was very anxious to straight away tell the Court of her views of the conduct of the father. Her evidence in this regard sounded well-rehearsed. Descriptions of him being dominant, coercive, controlling, violent, domineering and interfering came easily from Ms J. I had the strong impression that this is how he is routinely described by the maternal grandmother.
I found Ms J was evasive at times particularly when she did not want to give answers that may have been against her own I interests. When asked “What did you say to your daughter about complying with the orders to return the child to (omitted) made on 9 August?” She made all manner of attempts to avoid answering the question. These included that she didn’t understand the question, she was confused, silence and finally saying she “only did what the lawyers told her to do.”
There were other issues that Ms J remained quiet and silent about and did not answer. That was her technique when questions got awkward or difficult for her. Answers on these topics became “I can’t answer that question.” When asked about what she had spoken to the mother about in Perth regarding the mother complying with Court orders and returning to (omitted), she refused to answer the question about what she had said to the mother when she arrived in (omitted) prior to this trial, on finding that the mother had already agreed in January 2014 with the father to stay on in (omitted) for 12 months. I am satisfied that Ms J has been pivotal in convincing the mother not to comply with orders of this Court.
It seems significant funds have been spent by Ms J on the mother’s legal fees for these proceedings including borrowing money from her own mother as an advance on her own future inheritance. Ms J, also gave evidence that, at age 65, she is continuing to work to save for airfares to visit the mother and to have the mother and X visit her.
Generally, whilst I accept that Ms J is a loving mother and grandmother, I have significant reservations about her interference and interventions into the family unit of the mother, the father and X. I do not accept that she has been able to contain what seems to be her long held negativity and animosity towards the father. Nor do I accept that she has managed to conceal her strongly held negative views of the father and his mother, from X. Under cross examination, she was, again, silent and at a loss to explain why it was that X said that she had heard Ms J talking and saying bad things about granny (meaning the paternal grandmother) and daddy. There was simply no explanation offered.
My impression of Ms J was that she has been obviously and understandably concerned about the mental health issues involving her daughter, but that she has not been able to step back once her daughter married the father. There is no sign or evidence that once the mother and father became married that Ms J respected the autonomy of the couple and their right to make decisions about the mother’s mental health condition and treatment. Ms J also appears to have great difficulty accepting that her daughter, who is an adult and intelligent woman, is capable of making her own decisions about her relationship with the father.

I am satisfied that there has been no family violence perpetrated by the father towards the mother. I accept therefore that the presumption of equal shared parental responsibility applies. 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.
The Independent Children’s Lawyer and the mother each seek an order for equal shared parental responsibility. Given what I have already found about the relationship between each of the parents and X, it is clear that X is a much loved child and is strongly attached to both of her parents. Apart from when the mother is unwell, each of these parents is responsible in their attitudes towards parenting generally and I am satisfied that generally (save and except as set out elsewhere in this judgment) X would benefit and it would be in her best interests to have each of her parents involved in relation to decisions about the long-term issues affecting her. In making these decisions however, the joint future decisions about X ought to be made by the mother and father and not the father and the mother who is under the influence of Ms J. This issue has been raised by the father who legitimately in my view, points to incidents going back for years now of over involvement and influence of Ms J in the life of the mother, their marriage and his ongoing relationship with his daughter X.
The decision taken by the mother in July 2013 was completely without any consultation or discussion with the father. Moving a child from Queensland to Perth in Western Australia is about as far away as the mother could have relocated within Australia with the child. I am satisfied that the mother is strongly influenced by her mother and particularly so when she is physically with the mother.
The mother has given evidence that even when she knew she was ordered to do so by a Court, she did not straightaway return to (omitted) with X because her mother and family encouraged her not to do so. I accept her evidence in this regard however; and ultimately that is no excuse for failure to comply with the Court’s order. The child’s relationship with her father was ignored in furtherance of the mother’s new plans.
The modus operandi of the mother once she falls under the influence of her mother and the maternal family is that she is unavailable to the father, the child is kept away from the father and legal action is instigated. In the last litigation in Western Australia, even when orders were made for the father to spend time with X, he had to face the intimidation of the child being actually delivered up by three people, Ms J, her de facto Mr M and the mother’s biological father. The mother was well back and gave evidence that she was in fear if she spoke up about Mr M getting out of the car, because her mother and Mr M despise the father.
The father submits that the difficulty in having an order for equal shared parental responsibility is the likelihood in the future that the father, whose role as the father is not valued by the maternal grandmother, could find himself trying to resolve long-term decisions with the mother, who is in turn overborne by the views of her own mother or family. This is a valid concern.
I am satisfied that Ms J has not softened her views in relation to the father and will always find a way to attempt to influence her daughter to break away from the father. I am satisfied also that she has a very poor view of the father and does not appreciate or accept his role as either a husband or father. The mother herself has given evidence of the strongly held negative views of the father that she has observed within her own family.
If this mother and father were left to their own lives, I consider that there would be no difficulty with an order for equal shared parental responsibility.
The father’s solution to this dilemma is to seek an order for sole parental responsibility. The difficulty in terms of the best interests of the child of the father solely making decisions about X’s long-term issues, is that the Court is of the view that the mother herself as with the father, has much to offer X as a mother in terms of her commitment to the child, her hopes and aspirations for X in the future.
The Court has before it the mother’s thoughts and views about what she wanted for X as seen in the evidence including the Facebook entries and the affidavit filed by the mother in the last litigation[22] when she was trying to get away from her mother’s influence. The mother’s desire to lead own life is also seen in various writings and diary notes[23] when she was struggling with her mother to assert herself back in 2007. The mother has written a “message to Ms J” in which she has written messages such as,
“Do you accept that I am trying to make my marriage with Mr Jarrett work ? do you accept that this is my choice?; do you accept that if things go wrong I have friends and a good support network here who can help?; Do you accept that my hopes and intentions are to live happily with Mr Jarrett and X for the rest of my life?; and ending with do you accept that I love you to?”
[22] Father trial Affidavit, Annexures 8 and 9, pages 10 of 25.
[23] Above n, Annexure 1.
In notes that seem to be dated November 2008 (page 21 of 22) and addressed to her mother and father and others the mother writes: “I am myself, I am growing, I enjoy my life: I love my husband and support him- we are a unit of intelligence, mutual respect care. You have underestimated his ability and desire to do his utmost to always protect X and me and make sure we are safe and comfortable and happy etc. No matter what you say my devotion to my husband will never waver.” The note concludes at the bottom with a note “mum you can always call Mr Jarrett to find out what he believes you’ve done wrong. Why haven’t you? Underhanded behaviour actions in September 07 - Mr Jarrett feels he can’t trust you.”
Those notes continue at page 22 of the annexure with statements made such as, “a little tired of not being able to live our lives in peace; I’m a new mother and it’s my first Mother’s Day and I’m looking forward to spending it with my husband and baby.” Another note says what is repeated later in her affidavit “he can be blunt… It’s a quality I enjoy. I like the fact is strong and determined and answers to no-one to me.”
In relation to descriptions of the father and his role in the animosity between her mother Ms J and husband, the mother wrote in her affidavit sworn on 29 October 2010 and filed in the Western Australian proceedings,[24] “I acknowledge that Mr Jarrett can also be abrupt and rude and that he can easily upset people. This is one of the reasons why our marriage broke down and why my parents and Mr M do not enjoy a good relationship with Mr Jarrett. Deep down, however Mr Jarrett is well-meaning and there is no justification whatsoever for trying to cut him totally out of X’s life.”
[24] Father’s trial Affidavit, Annexure 9.
I note in the Family Report[25] the report writer noted and “took account of each of the parents commentary regarding the involvement of the maternal grandmother and that while clear differences of opinion exist in respect of attributions concerning her motivations and actual impacts on their lives, some consensus exists in respect of the parents desire for less involvement on her part.” The mother gave evidence at trial that she is continuing with counselling in order to be able to assert herself within her relationship with her mother. The events of 2013 do not really give the Court any confidence that the mother has achieved her independence.
[25] Family Report, paragraph 157.
Mr O also noted that he was concerned that the mother could not stand up to her own mother and said that orders needed to be proscriptive to ensure compliance. Mr O gave qualified support for an equal shared parental responsibility order working between the parties but warned that this would only occur if the Court decided that the child was to remain in (omitted), and that any co-parenting arrangement would seriously degrade following relocation.
I am satisfied that by issuing orders that are fairly proscriptive and include restraints and other orders that the significant and valid concern of the father of future unilateral relocations by the mother can be addressed.
It is imperative that the mother continue to work on her counselling to improve her ability to stand her own ground with her mother. I intend to include as part of these orders, that this is a condition of the mother having parental responsibility, that she continue with her personal counselling to address the unhealthy element in her relationship with her mother, as described by Mr O. I consider it is in the best interests of X that the mother learns to deal with the dynamic that is in existence between herself and her mother. I intend therefore to make an order for equal shared parental responsibility and orders for restraints that the Court considers necessary. This Order will be subject to a caveat about what is to occur when the mother is psychiatrically unwell, namely the father will have sole parental responsibility at those times.
Given the nature of the mother’s psychiatric condition as described by Dr K, it is likely that there are going to be more occasions in the future where she may require hospitalisation as has happened in the past, which may happen infrequently or frequently. In these times it would be essential in my view for the father to have sole parental responsibility. Dr K’s only reservation from a psychiatric perspective about the mother’s parenting was due to episodes of further psychiatric illness. I am therefore satisfied that when the mother is hospitalised, unwell or recovering from an episode of her Bi Polar condition or depression, that the father should have sole parental responsibility for the duration of that time.
The Court has determined that it is appropriate to make an order for equal shared parental responsibility. It is therefore required to consider making an order for either equal time or significant and substantial time. The Court can only make an order for equal time or if not equal time, then significant and substantial time if it is satisfied as a matter of fact that it is both in the child’s best interests to do so and reasonably practicable.[26]
[26] MRR v GR [2010] HCA 4.
Issues referred to in section 65 DAA (5) refer to what is reasonably practicable and relate specifically to practical issues such as the geographical distance that the parties live from each other, the parents current and future capacity to implement an arrangement for the child to spend equal or significant and substantial time with each parent: the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind: The impact that an arrangement of that kind would have on the child and any other matters as the Court considers relevant.

S60 CC (2) Primary Considerations

In applying the considerations set out in this section the Court is to give greater weight to the consideration set out in paragraph (2)(b).

The benefit to the child of having a meaningful relationship with both of the child’s parents; and

I am satisfied that it is in X’s best interests to have an ongoing and meaningful relationship with each of her parents. I consider each of the parents to be a loving parent and I am satisfied that X has a close and loving relationship with each parent. I also consider that each parent has much to offer X and that apart from when the mother is unwell, X should be spending as much physical time as possible with each of the parents.
The Court is however concerned that if the mother is living in Perth under the influence of her mother and family that X’s relationship with her father will be adversely affected, particularly in the long term, as suggested by the Family Report Writer. The mother told Dr K that her own mother wants X to be back in Perth and wants to have a lot to do with the child.
That adverse influence of the maternal grandmother and members of the mother’s family is the most serious risk to X having a meaningful relationship with her father. This coupled with X living thousands of kilometres away from her father and seeing him physically only a few times a year is a combination that the Court considers will inevitably lead to a diminishing of the child’s relationship with her own father. In the facts surrounding this case, I consider it is particularly important for X to have personal and physical time with her father as much as possible on an ongoing regular basis throughout the year to maintain a meaningful relationship with her father. In my view, the ability of X to spend regular face to face time with the father will help to ameliorate any negative influences from either the mother, Ms J or the maternal family upon X. The prospect of X having a day to day life in Perth, growing up living thousands of kilometres away interstate with only electronic or telephone contact during school terms and living under the sole influence of her mother and her mother’s family save for seven or ten days in holiday periods throughout the year and even allowing for four weeks at Christmas if it did in fact eventuate, would in my view be insufficient to ensure that X did not grow up under the significant influence of her mother and those around her. This in itself presents inherent risks to the continuation and ability of X to have a meaningful relationship with her father.

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 satisfied that as between the parents this child has not been exposed to physical harm or psychological harm, or subjected to or exposed to abuse and neglect or family violence with the exception that the court is critical of the mother for bringing the child’s relationship with her father to an abrupt end in her decision to remain in Perth in the manner she did.
The highly critical opinions and the allegations made by the mother and Ms J regarding the father’s conduct constituting abuse are rejected by the Court as being without foundation, as seen elsewhere in this judgment.
I am satisfied that Ms J has been making derogatory comments regarding the father and his mother directly to or in the presence or hearing of the child and that this is why the child has returned from the mother at times repeating what the maternal grandmother has been saying about him and his mother. The exposure to this conduct is a threat to the child’s ongoing relationship with the father.

Discussion/Evaluation

I have considered the competing proposals of the mother and father and it is evident that I have significant reservations about the mother’s proposals to live in Perth with X and for her to spend time with the father as proposed. I accept the evidence of Mr O that in the long term, X’s relationship with the father is likely to suffer. This is in part due to the insufficiency of the physical time that is proposed and the non-sustainability of the proposals to nurture and enable an ongoing meaningful relationship between X and her father. The Court is not satisfied that the mother’s proposals for herself to travel to (omitted) Queensland on two holidays per year are financially sustainable nor is the court satisfied that the father can travel to Perth every other school holiday to spend time with X, paying not only for his travel costs but also accommodation, food and a hire car on each holiday to Perth. These proposals are financially impracticable and the court has no confidence that even the time proposed by the mother will occur. This, together with the father’s inability to pay for his proposed travel to Perth, will be fatal to the relationship between X and her father.
In terms of the mother being the primary carer in Perth, there are significant issues involved in this proposal which are adverse to the best interests of X. The animosity and lack of respect shown by Ms J toward the father in his role as X’s father represent a powerful force. The mother has shown that as recently as July 2013 she will succumb to that powerful influence. There has been no softening in the critical views held by Ms J toward the father and at the time of the Family Report interviews and her appearance in Court, she maintained those views. The court is satisfied that the maternal grandmother is not able to contain her derogatory views of the father from exposure to X. The mother’s evidence is that Ms J wants to have a lot to do with the child. For the reasons expressed throughout this judgment the court is not satisfied that the child’s relationship with the father will survive in the long term in the event that the mother and X live in Perth.
In weighing up all of the relevant section 60 CC factors and the primary considerations and noting the right of the child to have a meaningful relationship with each of her parents, I have come to the conclusion that the proposal which is in X’s best interests is the father’s proposal that she live in (omitted) Queensland and spend week about with each parent.
In addition to this order, X should spend one half of each of the school holiday periods with each parent. Orders should also be made for special days.
I am satisfied that X will achieve her full potential in life and have a meaningful relationship with both parents if she has the opportunity to have both parents genuinely and actively involved in all aspects of her life as provided for in the Orders I intend to make.

Restraints

The Report Writer gave evidence that the father was somewhat naive if he considered that the solution to the family dynamics that exist between himself and Ms J can be solved by way of Court orders. Whilst I agree that the solution for any peace in the future is for the parties to attempt to have a mediation to resolve their family differences, I consider that orders ought to be made to prevent a re-occurrence of the child being so abruptly removed by the mother and being holed up with the maternal grandmother for weeks if not months as has happened before.
I also consider that the orders need to be proscriptive, and that a further deterrent is needed in the event that the mother either falls under the influence of her mother/maternal family again, whether she is well or unwell.
I am satisfied that it is the best interests of the child for a recovery order to issue and lie in the registry, to be uplifted in the event the child is not returned to the father pursuant to the terms of these orders. If the mother again removed the child from the father as has happened in the past, and it was contrary to orders, the Court has jurisdiction to change parenting orders and it may be that at that stage the mother could lose parental responsibility and her time with the child to be severely curtailed. This Order will also assist the father in the event that the mother fails to return from Perth noting that the father sought that a sum of $5,000.00 be paid into Court for the father’s use, if the mother travelled to Perth or anywhere else in Australia. The father intended the sum of money be used to pay his legal fees.
In terms of other restraints and for the same reasons, I also intend to order that the mother and her agents are restrained from:
a)Removing the child from the enrolment at the (omitted) State School, or the subsequent High School at which the parents agree she attends, without an order of the court or the prior written agreement of the father; and
b)Enrolling the child in any school without an Order of the Court or the prior written agreement of the father.
In terms of making restrictions for the child’s exposure to the maternal family, I do not intend to make orders for supervision or a limitation of time in their care. The only time that the child will spend with the maternal grandparents is during the times that she lives with the mother. This is one of the reasons I consider it imperative that the child spend each alternate week with the father on an ongoing basis.

When these Orders issue, Court Orders will be in place dealing with the child’s living arrangements, holiday times and enrolment at school. This in itself should act as a detriment to further unilateral action by the mother. Given the evidence of past intimidation of the father at handovers as referred to in these Orders, I also intend to make Orders that provide for the non school handovers to be made by the mother in person and that she is to ensure that Ms J and Mr M are not at or near the point of handover. This Order is necessary to ensure that no further conflict or intimidation occurs in the presence of the child.
I also intend to order that each of the parents are restrained from making derogatory comments regarding the other party or the other parties family directly to all within the presence or hearing of the child and further that each of the parents remove the child from the presence or hearing of any person doing so.
I also intend to order that in the event that the mother or father travel away from (omitted) Queensland for the purpose of holidays, that they each provide to the other within 7 days of departure a written advice giving the full itinerary of return flight details, precisely where the child will be staying and with whom, and each of their contact details during that period. During each of the parties holiday, time, whether they travel away or not, the child is to have no less than two Skype or telephone calls each week that the child is away.
I will order that these Orders act as authority for each of the mother and father only to receive advice as to the child’s schooling or medical conditions from any school or health professional.
In terms of the mother’s mental health condition, I intend to make orders that in the event she becomes unwell or has a hospital admission she is to inform the father forthwith and the child will be returned to or remain living with the father until such time as the mother has a clearance from her treating Doctor that she is well enough to resume parenting the child pursuant to the terms of this order.
In the event that the mother becomes unwell or hospitalised whilst she is holidaying in Perth or elsewhere with the child, the father is authorised to make the necessary arrangements to have the child returned to his care without delay. The father is authorised to speak directly with the child in this event and to maintain daily contact with the child. The father will also assume sole parental responsibility in the event of the mother becoming unwell due to her mental health condition whether in (omitted) Queensland or Perth or elsewhere, for the duration of her episode.
The father seeks that a large sum of money ($100,000.00) be paid into trust for the father, in the event that the mother wishes to travel overseas with X. Having considered the issue of overseas travel, I am of the view that if and when either party wishes to remove X from the Commonwealth of Australia, unless the parties are agreed in writing to that travel, the travelling party will need to organise a mediation through Dispute Resolution which the other party is to attend. If there is no agreement, an Application will need to be filed to enable the Court to consider the proposals. The proposal to travel overseas will be evaluated at the time of the Application. Accordingly, I will make an Order that the parties and their agents are restrained from removing the child from Australia without an order of the Court or the prior written agreement of each of the parties.

I certify that the preceding two hundred and seventy-seven (277) paragraphs are a true copy of the reasons for judgment of Judge Willis

Associate:

Date: 24 September 2014

[2014] FCCA 2183

24 September 2014

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Family Law

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Jurisdiction

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Procedural Fairness