Kaye and Allison

FAMILY COURT OF AUSTRALIA

KAYE & ALLISON

[2019] FamCA 548

FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Where the mother seeks to relocate the child’s residence to the United States of America (“the US”) – Where the father opposes the mother’s application – Where it is agreed that the mother has always been the primary caregiver for the child and will continue in that role – Where the child has meaningful relationships with his father and paternal family in Australia – Where the mother would pay travel costs to facilitate time spent between child and father – Where the mother suffers from mental health issues – Where the mother has significant family support in the US and limited support in Australia – Where it was found that allowing the mother and child to relocate to the US would be likely to cause an improvement in the mother’s mental health and allow her to parent the child in the most effective capacity – Mother’s application granted – Orders made to allow for the child to relocate to the US with the mother – Orders made to facilitate and maintain the child’s relationship with the father and paternal family

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65AA, 65DAA
Family Law Regulations 1984 (Cth)

Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8
Cowley & Mendoza (2010) 43 Fam LR 436
Goode and Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461

APPLICANT:

Mr Kaye

RESPONDENT:

Ms Allison

INDEPENDENT CHILDREN’S LAWYER:

S Davitt Family Lawyers

FILE NUMBER:

SYC

7760

2013

DATE DELIVERED:

14 August 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

20 – 23 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gardiner

SOLICITOR FOR THE APPLICANT:

Clinch Long Woodbridge Lawyers

COUNSEL FOR THE RESPONDENT:

Ms McIntosh

SOLICITOR FOR THE RESPONDENT:

Everett Evans Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fermanis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

S Davitt Family Lawyers

Orders

The following parenting orders are made in relation to the child X born on … 2011.
All previous parenting orders be discharged.

Live with

The child shall live with the mother.

Parental Responsibility

The mother shall have sole parental responsibility for the child.
At least twenty eight days prior to the mother making any decisions about the long term care of the child she request the father to provide her with his opinion about the decision and she shall give consideration to the father’s opinion.

Relocation

The mother is permitted to relocate the child’s residence to the United States of America (“the US”).
For this purpose the child’s details shall be removed from the Family Law Watchlist in operation at all Australian international arrival and departure points AND IT IS REQUESTED that the Australian Federal Police give effect to this order.

Time spent

Until such time as the child departs Australia the child shall spend time with the father as follows:
(a)During school terms each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday, commencing on 16 August 2019
(b)During the intervening week in school terms from after school Tuesday to before school Thursday
(c)For the first half of all school holidays except that the father’s time be suspended from 3.00 pm Christmas Eve to 3.00 pm Christmas Day in 2019 (if applicable)
Upon the child assuming residence in the US the child shall spend time with the father as follows:
(a) During 2019 and 2020:
(i)During the US Summer holidays for up to three weeks such dates to be nominated by the father at least three months prior to the commencement of his time and the mother bring the child to Sydney, Australia to facilitate the father spending such time.
(ii)If the father elects during the US Christmas school holidays in the US for up to two weeks such dates to be nominated by the father at least three months prior to the commencement of his time and provided that the father’s time be suspended from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in 2019 and 3.00 pm Christmas Day until 3.00 pm Boxing Day in 2020.
(iii)To give effect to Order 9, the mother shall pay the airfares for her and X’s travel to Australia pursuant to Order 9(a)(i) and for the father’s airfares to the US pursuant to Order 9(a)(ii)
(b) After 2020:
(i)During the US Summer holidays in Australia for up to three weeks each year such dates to be nominated by the father at least three months prior to the commencement of his time and the mother is to pay the costs of the child’s return airfares to and from Australia
(ii)If the father elects during the US Christmas school holidays in the US for up to two weeks such dates to be nominated by the father at least three months prior to the commencement of his time and provided that the father’s time be suspended from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in 2021 and every second year after that and 3.00 pm Christmas Day until 3.00 pm Boxing Day in 2022 and every second year after that.
(iii)To give effect to Order 9(b), the mother shall pay the airfares for the father to travel to the US.
Whilst the father is spending time with the child pursuant to Orders 9(a) and 9(b) the father shall:
(a)Provide to the mother all particulars as known of where the child shall be located during that period including address and telephone number; and
(b)The father shall do all things to support the child contacting the mother on Skype, other video-electronic means, or telephone if video is not available once per week.

Communication

The father communicate with the child by Skype, Facetime, telephone or similar communication between 5.00 pm and 7.00 pm Sydney time while the child is in Australia and between 5.00 pm and 7.00 pm US Central Time when the child is living in the US at least once per week and by email at all reasonable times.
The mother shall maintain a working Internet connection, webcam and telephone line and facilitate the communication between the child and the father.
The mother facilitate the child to make a Skype video call to the father on the child’s birthday.

Courtesy

The mother, upon arrival in the US, forthwith notify the father in writing of the new address of the residence of the mother and the child in the US together with all relevant contact details including telephone, facsimile, email, mobile phone and Skype (“contact details”).
The mother and father keep one another informed of their contact details and any changes to their details at all times.

School and health

The mother give authorities in writing to any school the child attends and send a copy of any such authorities to the father within seven days of providing them so as to facilitate the father communicating with any school and receiving all information relevant to the child’s welfare and academic progress.
The mother give authorities in writing to any health or medical professional on whom the child attends and send a copy of such authorities to the father within seven days of providing them so as to facilitate the father communicating with such professional and receiving information about the child’s health.
The mother and father notify each other of any medical emergency involving the child as soon as possible after any such emergency happens.
The mother will provide the father with details of the child’s general medical practitioner and dentist and notify the father of any minor illness, non-emergency hospital visits, specialist appointment attendance and any other medical appointments no later than three days of the child attending when the child is in her care.

Travel

Within twenty eight days of the date of these Orders the mother and father do all things necessary to ensure the child holds a current Australian and US passport and the mother shall pay for the costs of the US passport and the father the costs of the Australian passport.
If either party refuses or neglects to sign or execute the documents at Order 20 within fourteen days of a written request to do so then the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed under Section 106A of the Family Law Act 1975 (Cth) to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party setting out details of the said neglect or refusal.
The mother will provide the father with scanned colour copies of all the child’s identification including Australian passport, US passport, Australian Medicare card, Australian Birth Certificate and US Social Security Card and this is to be provided no later than seven days from the date of this Order and three days from when any new documents are issued or changes occur.

Restraint

Neither party denigrate the other in front of the child nor discuss the court proceedings with the child nor allow any other person to do so.

Registration

Both parents shall do all things and sign all documents necessary to either:
(a)Register these orders in the US so that they are enforceable in that country; or have orders made in substantially identical terms to these orders (with only such amendments as may be necessary to comply with the US law) in or by a competent court exercising family law jurisdiction in the US
(b)AND any costs associated with compliance with this Order (Order 24) shall be borne by the mother.

NOTATIONS

A.The Court notes the mother intends to enter into a Binding Child Support Agreement with the father to reflect an agreement between the parties that the father’s costs of travel and those of the child when travelling to Australia to see the father be taken into account as child support and that the father be relieved of any further costs and obligations in relation to child support.

B.The Court notes the maternal grandmother gave evidence in these proceedings and hereby undertakes that she will pay the return airfares for the mother, the child and the father pursuant to Orders 9(a) and Order 9(b) until such time as the mother is able to pay for these costs herself. It is further noted that the maternal grandmother is aware that the mother seeks an order that these Orders be registered in the US and enforceable as same.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kaye & Allison has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7760 of 2013

Mr Kaye

Applicant

And

Ms Allison

Respondent

REASONS FOR JUDGMENT

Introduction

The child X is eight years of age. His parents are Mr Kaye (“the father”) and Ms Allison (“the mother”). The father was born in Sydney and the mother was born in the United States of America (“the US”).
The parties have been living in Australia for more than 11 years. The mother wishes to relocate the child’s residence to the US. The father is opposed to this. The parties have asked the Court to determine this and related parenting arrangements for the child.

Applications

The father seeks orders to the following effect if the child and the mother are to live in Australia:
·The parties have equal shared parental responsibility for the child
·The child live with the mother
·The child spend time with the father:
a)during school terms, each alternate week from the conclusion of school on Friday until the commencement of school on Monday AS WELL AS each Tuesday from the conclusion of school until the commencement of school on Thursday
b)for half of each mid-year school holiday period plus two block periods in the Summer holidays (as specified); and
c)on special occasions (as specified)
·Very detailed orders concerning communication, specific issues and to facilitate the orders
If the child and mother are permitted to live in the US, the father seeks orders to the following effect:
·The child live with the mother
·The child spend time with the father in the US and in Australia during US school holidays (as specified) the mother to pay the entirety of the travel costs of the father and the child; and
·Very detailed orders concerning communication, many specific issues and to facilitate the orders.
A copy of the actual orders sought by the father is Annexure ‘A’ to these Reasons.
The mother seeks orders to the following effect if she and the child are permitted to relocate to the US:
·    The child live with the mother
·    The mother have sole parental responsibility for the child on the basis that at least 28 days prior to making any decision about the long term care of the child the mother request the father to provide her with his opinion about the proposed decision and the mother give consideration to this opinion
·    The mother be permitted to relocate the child’s residence to the US
·    The child spend time with the father in Australia and in the US during the US school holidays (as specified) and the mother would deliver the child to the father in Australia during the US Summer school holiday period in 2020 and arrange for the child to travel to Australia unaccompanied, during subsequent Summer holiday periods, and the mother would pay the cost of airfares; and
·    Various orders concerning communication, provision of information and to facilitate the orders.
If the mother is not permitted to relocate the child’s residence to the US the mother seeks orders to the following effect:
·The child live with the mother
·The mother have sole parental responsibility for the child (with similar consultation with the father as above)
·The child spend time with the father
a)during school terms each alternate weekend from after school Friday to before school Monday and in the intervening week, from after school Tuesday to before school Wednesday
b)for half of the school holidays; and
c)on special occasions (as specified); and
· Detailed orders concerning communication, many specific issues and to facilitate the orders.
A copy of the actual orders sought by the mother is Annexure ‘B’ to these Reasons.
The Independent Children’s Lawyer (“ICL”) seeks orders in similar terms to those sought by the mother.
A copy of the actual orders sought by the ICL is Annexure ‘C’ to these Reasons.

Background

In 2003 the parties met online.
In October 2004 the parties commenced living together in City V, State W, the US.
On 11 July 2007 the parties were married in State R, the US.
In early 2008 the parties moved to Australia to live.
In 2011 X was born. After X was born the mother ceased working for a year. After this time she worked part time. The mother has a PhD . She was previously employed as a science professional.
In approximately April 2012 the mother and X travelled to the US for three months. The father joined them for the last three weeks of the holiday and they all returned in July 2012.
In 2012 Y was born. Y is the child of the father’s partner, Ms C.
In January 2013 X began to be cared for by his paternal grandmother on Saturdays. The mother worked on Saturdays. On other days when the mother was working, X was cared for by his father.
In April 2013 the parents commenced attending T Services for marriage counselling.
In July 2013 the mother increased her employment to five or six shifts per week.
The mother asserts that on 10 October 2013 the parties moved into separate bedrooms.
On 25 November 2013 the mother and X travelled to the US for a holiday to visit extended family for Thanksgiving and Christmas.
The father asserts that on 25 November 2013 the parties separated on a final basis. The mother asserts that this occurred on 31 December 2013.
On 31 December 2013 the mother and X returned home from the US. The father met them at the airport. The father took X to collect the car informing the mother that he would bring it around to collect her and the travel bags. Instead the father did not return to collect her. Soon afterwards the father’s uncle, Mr D, approached the mother and called her a “fucking adulteress”. The mother called the police. The police escorted the mother to Suburb P Police Station. After taking X the father attended the Federal Circuit Court and filed an Initiating Application that same day.
In 2013, following separation, the mother was granted permanent residency in Australia. She was working as a casual clerk in office work at a charity firm after separation.
Following separation the father moved in to live with the paternal grandmother at her home in Sydney.
On 7 January 2014 orders were made by consent that the father advise the mother about where X is staying and any changes to that address within 24 hours. Orders were also made for the child to communicate with the respondent mother each evening at 6.00 pm and that the child not be left alone in the care of the paternal grandfather.
On 16 January 2014 orders were made providing for the parents to have equal shared parental responsibility, for X to live with the mother and for X to spend time with the father from 9.00 am to 5.00 pm each Monday, Thursday and Saturday. An order was made restraining the parties from removing X from the Sydney metropolitan area.
On 29 January 2014 orders were made by consent that all previous parenting orders be discharged, that the parents have equal shared parental responsibility for X, that X live with the mother and spend time with the father from 9.00 am to 5.00 pm each Monday, Thursday and Saturday. Orders were also made that from 31 January 2014 the father’s time with X would change to the following:
a)From 9.00 am to 5.00 pm each Monday and Thursday;
b)For a period of four weeks from 5.00 pm Friday until 9.30 am Sunday commencing 31 January 2014; and
c)Upon completion of (b) and commencing 28 February 2014, from 5.00 pm Friday until 5.00 pm Saturday thereafter.
An order was made restraining the parents from removing the child from the Sydney metropolitan area and that the child not be left alone in the care of the paternal grandfather at any time and the paternal grandmother during overnight time.
In June 2014 X injured his hand on an exercise treadmill while in the care of the father and paternal grandmother. X was taken to Suburb E Hospital for care and had a consultation with a plastic surgeon.
On 1 September 2014 the father commenced living with Ms C.
On 14 May 2015 the father was unable to find X when the mother attended his residence at Suburb F to collect the child. The father told the mother that X must have exited the house and gone up the stairs to another street. The mother said that the father did not help to locate him. The father said that he was already searching for X when the mother arrived and that he continued to do so. The mother attempted to locate X and then called Suburb G Police as it was becoming dark. Soon after the mother called the police she received an SMS message from the father saying that X had been brought home by a woman walking her dog. The mother ceased the father’s contact with X following this incident. She sent the following text message to the father: “I’m sorry due to the incident last night I do not feel that X is safe in your care and I will not be handing him over to your care at this time”. The mother said that following this incident X began having occasional soiling accidents in his pants. This increased when he commenced school.

The mother said that on 18 May 2015 the father attended her home, banged on the door and shouted out loudly and aggressively. The mother attended the police station following this incident.
On 15 June 2015 the father filed a Contravention application against the mother.
On 3 August 2015 the mother facilitated the first of several short periods of supervised contact between X and his father.
In 2015 Z was born. Z is the child of the father and Ms C.
On 23 October 2015 the proceedings were transferred to this Court. Orders were also made suspending the father’s overnight time with X until 29 January 2016 but continuing X’s day time contact with the father. Following this resumption of time the father says that he noticed that X was soiling his pants on approximately half of his visits.
In January 2016 the father commenced a reward sticker chart for X where he would earn a sticker every time he used the toilet.
On 29 January 2016 the father’s overnight time with X resumed as per previous orders made.
In early 2016 X told the mother that the father placed him into charity bins to collect items. A few weeks after this incident the mother said that X informed her that the father had found a gun while looking through recyclable materials left out for council collection. Subsequently, the father said it was a cap gun.
On 17 March 2016 orders were made appointing an ICL.
In 15 June 2016 orders were made that without admission the father was restrained from placing or assisting the child in any clothing bin or other kind of ‘bin’ which is utilised by charity organisations for collection of clothes and items.
In August 2016 the maternal grandmother purchased a car for the mother.
In late 2016 the father attended a five week emotionally intelligent parenting course through T Services.
In October 2016 the mother was offered a job in her field in the US. She holds two Bachelor’s degrees and a PhD.
Since October 2016 the mother has been on a low dose of antidepressant medication.
On 16 November 2016 the mother was “let go” from her employment.
On 26 December 2016 the father attended the mother’s home to collect X. He took photos and a video of the home. The mother said that he said “I’m going to get you. I believe this is an unsafe environment for anyone to live in”. The mother subsequently attended Suburb Q Police Station and made a report and statement. The father also later gave a statement.
In 2017 X commenced kindergarten.
On 25 January 2017 orders were made by consent that the orders made relating to the father’s time with X contained in the consent orders of 29 January 2014 be discharged and that the father spend time with the child:
d)From after school each alternate Tuesday to before school Wednesday commencing on 7 February 2017;
e)From after school each alternate Friday to before school Monday commencing 27 January 2017; and
f)Each school holidays from after school on the last day of term for a period of five days.
Orders were also made by consent for X to attend M School.
In mid-February 2017 the mother commenced working two days a week during school hours as a permanent part time assistant office administrator.
From March 2017 the mother commenced receiving child support of $40.31 per month.
In April 2017 the father raised with X the possibility of wearing a nappy.
On 10 June 2017 the father used a latex glove and sorbolene cream to gently check the inside of X’s bottom for constipation.
The mother said that in June 2017 X was unhappy because his father made him wear a nappy liner to school.
On 19 June 2017 the mother took X to see Dr J, their general medical practitioner, in relation to his toileting issues. The mother was told that there was nothing physically preventing X from toileting.
On 28 June 2017 the mother took X to see Dr H, a psychologist, in relation to his toileting issues.
On 29 June 2017 X said to his mother that:
Dad put a special glove on then he put his fingers up my bum. First his little finger, then the next one then his middle finger. He was checking to see that there was no more poo. I didn’t like it. I tried to run away but Daddy made me.
On 30 June 2017 the mother telephoned Dr J and informed her of the disclosure. The mother stated in her affidavit filed 26 October 2017 that she did not believe there was anything of a sexual nature in this incident but that she was concerned that the father was behaving inappropriately.
On 14 July 2017 the mother filed an Application in a Case seeking orders to suspend the father’s time with X.
On 21 August 2017 orders were made by consent that the parties would contact Dr H, psychologist, and make an appointment to discuss issues relating to the welfare of their child. Orders were also made for the child to spend time with the father from 5 January 2018 to 10 January 2018. An order was made by consent that the parents would do all acts and things so that the child would recommence spending time with the father on 29 August 2017 in accordance with orders made on 25 January 2017.
On 11 October 2017 the parents and X all attended upon Dr H. Dr H spoke to each parent individually and with X.
On 8 November 2017 the father and Ms C separated. During this separation Z spent time with the father each Tuesday from 8.00 am to 5.00 pm and each Friday from 5.00 pm until Saturday at 5.00 pm.
On 31 December 2017 X broke his arm while at a Museum with his mother and the maternal grandmother. He was taken to N Hospital.
In January 2018 the father and Ms C reconciled. They resumed cohabitation in February 2018 and the father said they were living together at the time of the hearing.
On 15 May 2018 Dr J increased the mother’s dosage of antidepressants from 20 milligrams to 40 milligrams per day.
On 18 May 2018 the mother had surgery following a test that returned an abnormal result. The mother had a torn ligament in her foot and tendonitis in her left arm.
On 2 July 2018 the matter was listed for hearing over four days commencing 20 August 2018 and trial direction orders were made.
The mother says that on 2 July 2018 X said to her that the father calls him “crap boy”.

Credit

The father

The father was responsive to questions during cross-examination. The father did make concessions. For example in relation to him taking it upon himself to conduct what appeared to be some form of medical examination by inserting his finger into X’s anus, he acknowledged that it was wrong and that he should not have done it. I shall refer to this matter again below. He also acknowledged that removing the child from the mother in December 2013 and January 2014 and then not returning the child to her for some weeks was wrong.
In my view the father would be expected to have been more forthcoming in terms of the evidence in this case. For example the father was asked whether he was on a mobile telephone plan and he said he was not on a contract plan. But when documents were provided that related to his Mobile Phone account it turned out that the father appeared to have a plan but he said that this did not amount to a contract because he could choose to cease the plan at any time. His account also indicated that he had made regular international telephone calls which he said he undertook for purposes of his paid work. He acknowledged that under the plan the international telephone calls were provided without charge.
In my view a matter of particular concern was the fact that the father offered no evidence by Ms C whom he says is his life partner and with whom he said he resides. Nor did he have an affidavit filed in his case from his mother. The result is that the Court is without any evidence from each of these persons with whom he says X has a close relationship. Ms McIntosh, counsel for the mother, asked the Court to draw the inference that because such affidavits had not been filed in the father’s case they could not have assisted him. I accept this. I shall refer to this again below.
In all these circumstances I have some reservations about the evidence provided by the father.

The mother

The mother was not always responsive in her answers to questions. Initially I considered this to be likely to be because she appeared to be quite nervous and clearly found giving evidence, particularly in relation to very personal and intimate matters, quite distressing. On the second day of her cross-examination I observed her to be more settled and she was much more responsive and forthcoming.
It was submitted by counsel for the father that the mother had lied to the Family Consultant about whether she had informed her therapist Dr K that the father had sexually abused her. The mother had informed the Family Consultant that she had so informed Dr K. But when Dr K was questioned about this she said that the mother had never informed her about this. I note that no later than 23 June 2017 the mother had informed her general medical practitioner, Dr J, that part of the conflict in the parties’ relationship included sexual abuse towards her. And this had occurred prior to the date of the mother’s interview with Mr L the Family Consultant. Because of this evidence I would not judge the mother harshly about this matter because she simply might have confused one health professional with the other.
Generally I regarded the mother as a good witness and where there is conflict between her evidence and that of the father I would prefer the mother’s evidence.

Dr K

Dr K is a highly qualified social worker who has been assisting the mother with therapy since June 2014, shortly after the parties’ separation. The mother had been referred to Dr K under the NSW Government scheme for survivors of domestic violence.
As the Court would expect, Dr K gave her evidence in a professional manner. Where I refer to her evidence it can be taken that I accept it unless indicated otherwise.

Ms B Allison

Ms B Allison is the mother’s mother. She was an impressive witness. She took the trouble to appear personally at court for cross-examination. Ms B Allison was responsive, forthright and very cooperative with the process of cross-examination. Ms B Allison and the mother’s father live in State R in the US and are enjoying a comfortable retirement.
I have no hesitation in accepting Ms B Allison as a witness of the truth.

Mr L

Mr L is the Family Consultant who interviewed the parents and X and prepared his Family Report dated 11 August 2017. He gave his evidence in a professional manner.
Where I refer to Mr L’s opinions and observations, unless indicated otherwise, it can be taken that I accept these.

The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of the children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or another child member of the parent’s family or family violence.
Subsection 61DA(4) provides to the effect that 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 above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286 and the High Court case of MRR v GR (2010) 240 CLR 461 and Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8.
In relation to relocation cases, as Murphy J said in Cowley & Mendoza (2010) 43 Fam LR 436 at page 443:
A “relocation case” is not a specific subcategory of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.

X’s behaviour at school

The records from M School provided a behavioural record for X detailing a number of incidents between 9 August 2017 and 16 November 2017. This behavioural record became Exhibit 3. By way of example, there were reports of X throwing sticks and stones at other students for no reason, hitting other children with sticks, hitting kindy children on the head and distracting students in class by wobbling the desk and banging pens.
During cross-examination by the ICL the father reported that he believes that X “is a very energetic young man and he does sometimes find it very difficult to stay focused and concentrate in class… It’s a difficulty that I had when I was at school too so I share that with him”. The father reported that he knew of some but not all of the incidents included in the behavioural record. He agreed with counsel for the ICL that when viewed collectively these incidents suggest that X may be having “a little bit of a behavioural problem”.
During the ICL’s cross-examination of the mother she confirmed that she was aware of the behavioural problems included in the list. On 15 November 2017 the mother attended a review meeting with a learning support team at M School. The learning support team included, amongst others, the principal and X’s current teacher. During this meeting there was discussion about X soiling his pants, possible attention deficit hyperactivity disorder (ADHD), displays of aggressive behaviour towards other students, and for the school to have permission to share records with X’s psychologist, Dr H. The notes from the school were tendered as part of Exhibit 2. A Report was subsequently prepared for X on 29 November 2017. The report is based on information provided by the mother and X’s teacher. It suggested the X has elevated scores for inattention, hyperactivity, defiance/aggression and peer relations. The mother stated that she had not received a copy of this report. The father was not informed of this meeting and did not attend.
Mr L said in cross-examination, after being shown the behavioural record, that he was not aware of behavioural issues when he wrote his report. When asked by the ICL whether this information adds a different dimension to his recommendations, Mr L responded:
Children who are caught in the middle of conflict often display behaviour that can be aggressive and challenging and they can’t regulate their emotions and have problems regulating their temper. They feel caught in the middle of conflict and they act out. These very strong emotions that they can’t make sense of themselves that could be going on for X. Feeling caught in the middle of the parental conflict.
Mr L agreed that it was possible that if X relocated to the US and away from the conflict that these behavioural problems may subside. However, he also agreed that it was possible that they would worsen in a new environment.

X’s encopresis

The mother said in her evidence that X began having occasional soiling accidents in his pants at around the time he was lost from his father’s residence at Suburb F. The father confirmed this in his evidence stating that he noticed that X was soiling his pants on approximately half his visits during supervised time with the father following the incident at Suburb F. The mother reported that when X started school, he was soiling his pants on a fairly regular basis. The mother reported that X was distressed as the father puts him in nappies to address his encopresis. The father said that in about April 2017 he raised with X the possibility of wearing a nappy. The father denied putting X in nappies however the Family Consultant reported that the father said he did use a liner in X’s pants.
X is currently attending upon his general medical practitioner, Dr J, in order to treat his encopresis. The mother said that Dr J has advised her that there is nothing physically preventing X from toileting. Dr J provided X with a mental health care plan on 23 June 2017. In the mental health care plan Dr J recorded the following:
The current issue is of encopresis. X was toilet trained by 3, in that he was dry by day and defecated in the toilet; he has never been dry at night and wears pullups at night. About 18 months ago X started doing bowel motions in his undies. This happened after an episode when X wandered away from his dad’s house in Suburb F … The encopresis has progressively worsened since then, and now he rarely does a motion in the toilet. He is often secretive about the motion, with no squatting or other obvious behaviours. It can happen at school, with mum or with dad, out at shops, at home etc.
As indicated above, X was referred to a psychologist, Dr H, for further treatment. He attended an appointment with her on 28 June 2017 however the mother said that X did not appear receptive to talking to Dr H during the appointment.
The mother said that on 29 June 2017 the following conversation took place between her and X:
Mother:How did you feel about seeing Dr H yesterday?
X:I didn’t know a doctor could have an office with so many toys. I was just afraid she was going to do to me what Dad did.
Mother:What do you mean?
X:Dad put a special glove on then he put his finger up my bum. First his little finger, then the next one then his middle finger. He was checking to see that there was no more poo. I didn’t like it. I tried to run away but Daddy made me.

The father confirmed in his evidence that this event occurred on 10 June 2017 but said that he only used his little finger. The father said that he performed the examination based on information he acquired from the internet. The mother said that this event has been examined by the proper authorities and she does not believe it was sexual in nature.
The Family Consultant gave the following analysis of X’s encopresis:
With regard to X's toileting issues, the parents agree that these issues commenced around May 2015; however, each parent presents an opposing and blaming explanation for its' [sic] aetiology. What is clear, however, is that both parents are very concerned about X in this regard. Encopresis (soiling) usually commences after a child has already been toileted trained. The most common cause of encopresis is constipation, although emotional stress can also be a causative factor. It is possible, therefore, that each parent's explanation for X soiling himself contains an element of accuracy and that there are multiple reasons for X's soiling behaviour. It is possible that X was "traumatised" by being lost at his father's home. It is possible that X was traumatised by his time with his father being stopped. It is also possible that X has been exposed to Ms Allison's trauma following X being lost (as reported by her). Irrespective of the cause the parents, it would seem, have been unable to address this issue cooperatively and consistently for X. This is also an issue that is uniting his parents and he has, to some degree, become their focus. Mr Kaye’s recent attempt to find out if X was constipated and which now has been characterised by Ms Allison as abusive, was misguided and inappropriate. Mr Kaye expressed regret about his actions, which have led to X's time with him being stopped by Ms Allison. It is understood, however, that FaCS have taken no action against Mr Kaye.

The Mother’s Mental health

In my view, the mother suffers from serious mental health issues. There was issue about the duration and seriousness of the mother’s state of mental health and I shall refer to this below.
The mother said that during her pregnancy with X she had some depression including some suicidal thoughts but that she never acted on these. The father said that the mother had informed him in approximately 2007 when they were in the US that she had felt depressed when she was young, commencing in her teenage years. The mother denied this. The mother’s mother said that when the mother was young and prior to meeting the father, the mother had never sought assistance from a therapist, psychologist, or counsellor. I prefer the evidence of the mother and her mother in relation to this matter rather than that of the father, particularly because I regard the mother’s mother as a most impressive witness
The mother’s general medical practitioner, Dr J, referred the mother to Dr K, social worker. Dr K first saw the mother in July 2014 and has seen her since on 22 occasions. Dr K said that the mother has been manifesting symptoms of Post-Traumatic Stress Disorder (“PTSD”). Dr K said that stressors for the mother have been these court proceedings, the mother’s situation of not being able to take X to live with her family in the US, as well as what she referred to as threats from the father and his behaviour.
The Family Consultant said that it was “highly possible” that the incident commencing on 31 December 2013 when the father removed X from the mother’s care at the airport caused the mother to suffer from PTSD symptoms. The Family Consultant said that this incident would have been “terribly traumatic” for both the mother and the child. He said that it involved separation of a very young child from his primary attachment parent which would have been confusing and upsetting for him, although he said that being in the father’s care mitigated this to some extent.
The Family Consultant said that the mother’s symptoms of PTSD were better when her mother visited her and would worsen when her mother left because the mother would then feel isolated and alone in Australia.
Dr K said that if the mother was to remain in Australia, her PTSD would be ongoing and long term and that the mother would require counselling support until such time as X attained an age at which he was “independently safe when in the care of his father”. On the other hand Dr K said that the best likelihood of improvement in the mother’s mental health would be if she was permitted to relocate with the child to the US. But she also said that the PTSD symptoms “would not disappear overnight” and she would recommend that the mother engage with an appropriately-qualified counsellor in State R. Dr K said that if appropriately treated in the US, the mother’s PTSD symptoms would probably resolve within a year.
An important plank in the father’s case is the submission that the Court might consider that whatever the condition the mother suffers from was not very serious for the reason that she had not been referred by her treating therapist, Dr K, to a psychologist or psychiatrist and that Dr K had said that the mother was stronger emotionally than she had been previously. It was also submitted that the mother is able to hold down a job and that she is able to parent X, the inference being that her mental health condition is not serious. The first difficulty with this submission, in my view, is that the mother is hopeful that she will be permitted to relocate with X to the US which provides her with some optimism which presumably assists her mood at the present time. The second difficulty is that both Dr K and the Family Consultant have the view that if the mother was required to remain in Australia she is at risk of a sense of hopelessness and helplessness and her mental health would be likely to deteriorate. In any event, Dr K is treating the mother for PTSD.
As I have said I do not accept that the mother’s mental health issues are other than serious. The mother has been taking antidepressant medication for 12 months.
The Family Consultant said that for the mother to adequately perform her function as X’s primary parent, an abatement of her mental health issues would be a significant factor.

Ms C

The father commenced a relationship with Ms C in February 2014 having met her through a dating agency some weeks after separating from the mother. They commenced to cohabit in September 2014 when Ms C moved into the father’s mother’s home where he was residing. They had a separation between 8 November 2017 and January 2018. They resumed cohabiting in February 2018. During the separation the father lived at his mother’s home. Ms C and the father were said to be cohabiting at the time of the hearing.
As indicated above, there was no affidavit before the Court from Ms C. But the father said that the major cause of difficulties between him and Ms C was these proceedings and particularly the expense involved for the father in legal fees. Nevertheless, in my view, the absence of an affidavit from Ms C leaves open real questions about how stable the father’s relationship with her is and the extent to which their circumstances can, in reality, provide stability for X. The Family Consultant’s understanding that the father was in a stable, supportive relationship with Ms C was an important factor in guiding him to his recommendation against relocation. The absence of this material is most unsatisfactory and brings into serious question what the father is actually offering to X in terms of the circumstances of his care.
The mother and this Court cannot be certain, in the absence of relevant evidence about the state of the father’s relationship with Ms C, whether X’s siblings, Z and Y, would be available to continue to have a relationship with him and whether Ms C would be available to assist the father in X’s care.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the child’s best interests for his parents to have equal shared parental responsibility for him. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for his parents to have equal shared parental responsibility for him.
X’s parents have a dreadful relationship and have been unable to find a way to put aside their conflict and hostility towards one another in his best interests. Mr L, the Family Consultant, described their relationship as being characterised by “mutual distrust, poor communication and inability to work together for X’s best interests”.
There is a considerable history of the mother not consulting the father about important decisions concerning X. For example she did not consult the father about her decision to enrol X at M School. The mother appeared to prevaricate about this saying to the effect that she only put an application for enrolment in at school and had not really made a decision to enrol him there. It is the case, however, that she failed to respond to the father’s email messages about this important matter. This became the subject of litigation and ultimately the father agreed to the child remaining at M School.
The mother also failed to inform the father about X’s behavioural incidents at school in 2017 which, as indicated above, involved hitting a boy with a stick and throwing stones. The father ascertained this by direct discussion with X’s teacher whom the father said informed him that the behaviour was “not a big deal”.
The mother failed to involve the father in discussions at the child’s school about soiling his pants. Similarly the mother has not informed the father about any of X’s parent/teacher interviews.
The parents have been unable to agree about X’s religious upbringing. The mother has involved X at her church and this has been consistently opposed by the father. The father’s emails and letters from his solicitor about this matter have not been responded to by the mother.
The father agreed with the ICL that he and the mother have an ineffective level of communication and are unable to reach agreement about major decisions concerning X.
The Family Consultant said that the parents’ poor relationship appeared to be having a deleterious effect on X’s emotional and psychological wellbeing. He suggested that the most practicable solution might be for parental responsibility to be given to the parent with whom X primarily resides. There was no issue that X would be residing primarily with his mother.
The ICL suggested that the mother, as primary parent, have sole parental responsibility for X but that it would be in his interests for her to refer to the father for his opinion on all long term decisions and give serious consideration to his expressed opinion. The Family Consultant thought this would be in X’s best interests but expressed reservations about whether the mother would be able to adhere to such a requirement. The mother said that she would do this and proposed including this in the orders sought by her.
On the basis of experience to this point and bearing in mind the very poor relationship between the parents, I have no confidence that it would be in X’s best interests for them to share parental responsibility. So, in my view, the presumption in s 61DA(1) of the Act is rebutted. It is also clear that the mother is X’s primary parent and there is no issue that he will continue to live with her. In all the circumstances, in my view, X’s best interests will be served by an order to provide the mother with sole parental responsibility for X but on the type of conditions suggested above.

Section 60CC Considerations

How the Court is to go about determining what is in the child’s best interests is set out in subsections 60CC(2) and (3) of the Act.

Primary Considerations

The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.
Having noted these primary considerations at this point I shall return to discuss these below.

Additional Considerations – s 60CC(3)

The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.

Sub-section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The Family Consultant reported that during interview X had provided a “sometimes negative description of his father” and gave some confusing and contradictory answers to questions about his father. But the Family Consultant also said that the child said that he would like to spend more time in his father’s care and that he would feel “mad and sad” if he was to spend less time in his father’s care.
The father pointed out during cross-examination that the family report interview was conducted during a prolonged period when time between him and X had stopped. He said that often, when X had not seen him for some time, their reintroduction posed some difficulty for X because their relationship had become strained and difficult.
I do not propose to place much weight on this particularly because X is still quite young.

Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

I accept as the Family Consultant reported that the child seems to have positive yet complex relationships with both of his parents.
He said that at the interview, notwithstanding X’s sometimes rather negative description of his father and his father’s partner Ms C, his interactions with them and with Y and Z appeared as being warm, comfortable and engaging. The Family Consultant said that when X first saw his father in the waiting area he appeared to be very excited and ran over to him and jumped in his arms. He said that X also appeared to be very excited to see Ms C, Y and Z.
The Family Consultant said that when the father came into the childcare room, X looked very pleased to see him and was excited. He described the child’s relationship with the father as “warm and loving”.
The father said that he has a strong and loving relationship with X. But he said that this was not unshakeable because, as indicated above, he has noticed that when the child has been separated from him for long periods of time, upon reintroduction their relationship has been strained and difficult. The father said that even in these circumstances, with love and effort, he has been able to re-establish a strong relationship with X.
The mother conceded that X has a close bond with, and attachment to, his father.
In relation to the mother, the Family Consultant reported that at interview he observed an obvious warmth and affection between X and his mother. He said that X appeared comfortable and relaxed in his mother’s care and they both appeared to enjoy their time with each other.
I accept that X has a close relationship with Z, his younger half-brother and with Y, his step-sister.
I also have the view that the maternal grandmother and the father have a reasonable working relationship. The maternal grandmother said that, despite her thinking that the father has not treated the mother very well, she and the father always had a good relationship and she said “I get along alright with him”.

Sub-section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child

Since separation, there has been no real opportunity for the father to participate in making decisions about X as indicated above. The child has been living with the mother and clearly the mother has taken it upon herself to make all major decisions concerning the child.

Sub-section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

Since separation the father has paid only very modest child support for the child. Over the period from October 2015 to 1 August 2018, just prior to the hearing, the father had paid a total of $1,000.17 in child support and school fees. That amounts to approximately $29 per month over that period.
This would go little way towards supporting the child so it is the mother who has had to provide almost the entirety of the financial support for X.
Currently the father is paying child support of approximately $40 per month.

Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

X has lived almost the entirety of his life in Australia. He has been attending M School now since 2017. He has friends at that school. He attends church with his mother up to twice per week and he has friends there.
At paragraph 99 of his report, Mr L comments on the importance of the role of the paternal family in X’s life:
Until a few weeks prior to these interviews, X had been spending regular and consistent time in Mr Kaye’s care for 18 months. This afforded X the opportunity to engage with Mr Kaye and the paternal family across a spectrum of developmentally important activities, including daily routine, attending school and engaging in various recreational activities. X has also developed meaningful relationships with Ms C, his step sibling Y and half sibling Z. This assessment highlights the importance of X’s relationships with his father and the paternal family to his emotional, social and psychological development.
The Family Consultant said that in these circumstances, for X to be removed from this and taken to a new home in the US would be likely to visit upon him a detrimental impact on his emotional, social and psychological development.
The Family Consultant also said that given the close relationships between X and his father, stepmother and siblings, if X was relocated he would be certain to suffer some grief and sense of loss from not seeing them frequently. The Family Consultant also said if such was to occur there was a possibility that in the longer term X could suffer from anxiety and depression and have difficulty forming long term relationships in the future. X could also completely lose his relationships with his siblings.
The Family Consultant also said that even if there was time spent between the father and X each year following X being relocated to the US, the reality is that their time together would be massively reduced from their present weekly time together. He said that this would bring about a significant change in their relationship and that X’s relationship with his siblings would be “significantly, negatively impacted” and might be completely lost.
These matters formed a very significant part of the reasons for the Family Consultant not supporting relocation of X to the US in his Report.

Sub-section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order, are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That the Father pay the Mother’s costs of and incidental to these proceedings.

NOTATIONS
A.IT IS NOTED THAT except in the case of an emergency both of the parties agree that the child shall attend his GP at the Suburb G Medical Centre in respect to all medical issues and the other parent shall be notified immediately.
B.IT IS NOTED THAT both parents shall share evenly the cost of any medical treatments or expenses, school fees, and psychologist/OT/therapy fees for X in addition to child support. If payments cannot be split, full initial payment and billing to be made by the father, with reimbursement by the mother of her portion within 30 calendar days.

Annexure C

ORDERS SOUGHT BY THE ICL

That all previous parenting orders be discharged.

That the child X born … 2011 live with the mother.

That the mother have sole parental responsibility for the child.

That within at least 28 days prior to the mother making any decision about the long term care of the child she request the father provide her an opinion about the decision and she give consideration to the father’s opinion.

That until 3pm on Christmas Day 2018 the father spend time with the child as follows:
a.During school terms each second weekend from the conclusion of school on Friday until the commencement of school on Monday
b.During the intervening week in school terms from after school Tuesday to before school Wednesday
c.For the first half of the September/October 2018 NSW school holidays from the first day of the holidays at 9am until the middle Saturday at 6pm.
d.From the first day of the Christmas 2018 school holiday at 9am until 3pm on Christmas Day.

That after 3pm on 26 December 2018, the child’s name X born … 2011 be removed from the Airport Watchlist and it is requested that the Australian Federal Police give effect to this order.

That after 3pm on 26 December 2018, the mother be permitted to relocate the child’s residence to the United States of America.

That within 7 days of the date of these orders the mother notify the father in writing of the new address of the residence of the mother and the child in the United States of America together will all relevant contact details including telephone, facsimile, email, mobile phone and Skype (“contact details”).

That the mother and father keep one another informed of their contact details and any changes to their details at all times.

That the father spend time with the child during 2019 and 2020 as follows:

a.During the United States of America Summer holidays for up to three weeks such dates to be nominated by the father at least three months prior to the commencement of his time and the mother bring the child to Sydney Australia to facilitate the father spending such time.
b.If the father elects during the United States of America Christmas school holidays in America for up to two weeks such dates to be nominated by the father at least three months prior to the commencement of his time and provided that the father’s time be suspended from 3pm Christmas Eve until 3pm Christmas Day in 2019 and 3pm Christmas Day until 3pm Boxing Day in 2020.

That thereafter the father spend time with the child as follows:
a.during the United States of America Summer holidays in Australia for up to three weeks each year such dates to be nominated by the father at least three months prior to the commencement of his time and the mother is to pay the costs of the child’s return airfares to and from Australia
b.If the father elects during the United States of America Christmas school holidays in America for up to two weeks such dates to be nominated by the father at least three months prior to the commencement of his time and provided that the father’s time be suspended from 3pm Christmas Eve until 3pm Christmas Day in 2021 and every second year after that and 3pm Christmas Day until 3pm Boxing Day in 2022 and every second year after that.
That commencing 2019 the father communicate with the child by Skype, Facetime or telephone or any similar communication between 5.00pm and 7.00pm US Central time at least once per week and by email at all reasonable times.
That the mother give authorities in writing to any school the child attends and sends a copy of any such authorities to the father within 7 days of providing them so as to facilitate the father communicating with any school and receiving all information relevant to the child’s welfare and academic progress.
That the mother give authorities in writing to any health or medical professional on whom the child attends and sends a copy of such authorities to the father within 7 days of providing them so as to facilitate the father communicating with such professional and receiving information about the child’s health.
That the mother and father notify each other of any medical emergency involving the child as soon as possible after any such emergency happens.
That the mother and father do all acts and things to ensure the child holds a current Australian and United States passport and the mother shall pay for the costs of the United States passport and the father the costs of the Australian passport.

[2019] FamCA 548

14 August 2019

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Jurisdiction

Costs

Procedural Fairness

Remedies