KEITH & KEITH

[2020] FCCA 28

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEITH & KEITH [2020] FCCA 28

Catchwords:
FAMILY LAW – Parenting – Mother seeking to relocate to Queensland and father opposing – short and unhappy marriage – father returning to Country A for three and a half years and not seeing child – whether father has appropriately taken advantage of court ordered opportunities to spend time with the child – whether father should spend unsupervised time with the child – Court finding mother’s application to relocate reasonable – interim orders made to enable father to prove commitment to spending time with the child.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CC

Cases cited:

Goode v Goode [2006] FamCA 1346

Rice v Asplund (1979) FLC 90-725
U & U [2002] HCA 36

Applicant: MS KEITH

Respondent: MR KEITH

File Number: DGC 3258 of 2018

Judgment of: Judge Burchardt

Hearing date: 27 November 2019

Date of Last Submission: 27 November 2019

Delivered at: Dandenong

Delivered on: 7 February 2020

REPRESENTATION

Counsel for the Applicant: Mr Rothschild

Solicitors for the Applicant: Brendan Rothschild Legal Group

Counsel for the Respondent: Ms Agresta

Solicitors for the Respondent: Higgins Legal

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3258 of 2018

MS KEITH

Applicant

And

MR KEITH

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a dispute about the best interests of a young child, [X], born on … 2013.  Although there are a number of subsidiary issues, the primary dispute between the parties is whether or not the mother should be permitted, as she desires, to relocate to Region B.  The father opposes this on the basis that it will severely disrupt, if not altogether dissipate, his relationship with the child, which, it should be noted, is in some senses relatively tenuous in any event.

2. For the reasons that follow, and not without some reservations, I think that it is in the child’s best interests that the mother be permitted to relocate. 

Agreed or Uncontroversial Matters

1. The mother was born on …1981.  She is a self-employed professional.  She has taken the husband’s surname, and her personal name has also been adopted.  As I understand it, her birth name was [Ms Keith]. 

2. The father is from Country A, of ethnicity C extraction, and was born on … 1987.  At the time of the commencement of these proceedings, the mother did not know either his address or occupation, but it is now apparent that he is employed as a worker at Employer D on a relatively casual basis. 

3. The father is not, however, devoid of resources.  His family appear to have relatively extensive business interests centred in City E, Country A. 

4. The parties appear to have commenced their relationship in 2008 and underwent, according to the wife, a formal ceremony in Region F in September 2012 before marrying in February 2013 in Australia.  The father arrived on a temporary resident visa on … 2013, shortly before [X] was born on … 2013.  The mother has asserted that the parties separated in 2014 under one roof and separated finally in September 2015.  The husband obtained a permanent resident visa for Australia on … 2015 and returned to Country A some two weeks later.  He remained there for several years.  He did not see [X] after returning to Country A.  Nor did he speak with her, after April 2016, up until at least the time of the initiating of these proceedings by the applicant of the mother on 25 September 2018. 

5. The father returned to Australia in August 2018, and orders were ultimately made for supervised time, which has led to both an observational report and a Section 11F report, following interviews conducted by Family Consultant G on 1 November 2019.

6. It should be noted that in her Initiating Application, the mother sought sole parental responsibility, that the child live with her and spend time with the father as agreed.  That has since been modified by her Application in a Case filed on 2 September 2019, in which she seeks to relocate to Region B. That Application was itself foreshadowed in her Affidavit filed on 15 February 2019, in which she indicated an intention to move interstate. 

The Affidavit Materials of the Parties

1. Much of what the parties say in their affidavits is, in fact, paraphrased in the matters set out above.  I note that in her first Affidavit, filed on 25 September 2018, the mother had deposed to family violence and as to the father’s being an alcoholic.  She also complained that the father had not paid any child support and was in arrears in excess of $8,000.

2. The father’s Affidavit filed on 15 February 2019, contemporaneously with his Response, deposed that he had opened a shop in Suburb H and that there had been significant debts to Country A suppliers, which have been reduced, through his endeavours, to some $15,000 to $20,000. He was not shy in making allegations against the mother, including what was, in effect, blackmailing the husband by threatening to have his visa revoked and have him deported from Australia (paragraph 20).  He also alleged that the mother was in receipt of Centrelink during the relationship notwithstanding his working.  He also deposed that he had returned to Country A as he had been depressed. 

3. He denied all the family violence alleged against him.

4. In her Affidavit filed on 15 February 2019, the applicant, as earlier indicated, indicated a desire to move interstate.  She sought a Family Law Airport Watchlist Order owing to fears that the father might abstract the child to Country A, something she had earlier deposed he had threatened to do at the time of [X]’s birth.  She deposed to physical abuse in which the respondent spat in her face in 2010. She also deposed that the husband had, effectively, abstracted some $200,000 by transferring funds to Country A.

5. In her further Affidavit filed on 2 September 2019, the wife deposed that [X] would be starting school.  She deposed to her success and likely further success as a professional.  She deposed to the possibility of cheaper accommodation in Region B than in Melbourne.  She further deposed the child support’s indebtedness was now in excess of $12,000. 

6. In her further Affidavit filed on 30 October 2019, the mother largely recapitulated matters earlier put.  She quantified the sum sent to Country A as $227,000.  There was reference to the sale of a family home in Srinagar, Region F, about which nothing further was said.  She complained that her $90,000 inheritance had been squandered by the husband and that she had sold the business in April 2017 at a loss.  She further made vivid complaint, at paragraphs 89 to 90, that the father had only elected to see [X] for 8 of the 30 hours that were available pursuant to Court Orders. 

7. In his Affidavit filed 30 October 2019, the husband deposed to being unable to afford to spend more time in Australia with [X].  He deposed that he had been to Country A in August 2019 for a one-month visit to attend his sister’s wedding.  He also appended an observational report.  I note that [X] was extremely excited to see her father and called out to him excitedly when she saw him (see page 15 of 15 of the Affidavit). 

8. An Affidavit was filed by Ms I on 26 November 2019.  She had prepared an observational report.  I note that at page 17 of 19 of the Affidavit, the report observed:

   Ms Keith is a beautiful mother towards [X] and this is demonstrated by [X]’s open affection with Ms Keith.  During the process of supervision Ms Keith has complied with final direction and instruction however, it will be fair to acknowledge that leading up to each of the visits, Ms Keith has been challenged with understanding the process and its purpose.  Ms Keith has been anxious leading up to the visits, despite the supervisor updating Ms Keith throughout the visits, assuring the plan going forward and providing positive reports in relation to [X]. It still presents challenging for Ms Keith.  Ms Keith has required consistent time and effort to support her through this process.  It seems apparent that Ms Keith has an expectation that the process is required to work within her expectation, despite efforts from the supervisor and management to explain our role and process.

9. The report noted further about the father:

   Mr Keith’s relationship with [X] has been observed as loving and affectionate.  It is understood that there were some three years that Mr Keith had not seen [X], yet the reunification process has not demonstrated this at all.  [X] and Mr Keith connected with each other as if there had been no time apart. Mr Keith complies with direction and instruction without any issues.  Mr Keith has demonstrated mindfulness towards bathroom and self-care for [X].  [X] in turn appears to enjoy spending time with her father and has welcomed naturally home-made meals of which she has remembered.  It is encouraged that this relationship continues to move forward in a positive manner.

10. The mother filed a responding Affidavit on 26 November 2019, making complaints about the observational reports. 

The Section 11F Report of Family Consultant G

1. Family Consultant G noted the following assertions of family violence:

   Ms Keith alleged a range of behaviours perpetrated against her by Mr Keith including constant criticism and belittling of her, her family and friends, verbal abuse, name calling, threats to take [X] to live with him in Country A and threats to ruin her business. 

   Mr Keith reported behaviours perpetrated by Ms Keith against him which included mutual arguments and one incident where Ms Keith allegedly punched him.

2. When Family Consultant G raised the concern of the mother about [X] being taken to live in Country A, she noted:

   The question was asked three separate times only being denied on the third occasion.  The lack of response and avoidance of the question raised concerns in relation to Mr Keith’s intentions in this regard. 

   Mr Keith raised concerns in relation to [X]’s spiritual safety as he fears she will be raised in accordance with Ms Keith’s spiritual values which he does not agree with.

3. I note that generally the parties expressed themselves to Family Consultant G very much in the terms they had articulated in their affidavits.  I note that, however, on the second page of the report Family Consultant G observed:

   Mr Keith’s narrative during interview presented as concerning, in particular, in relation to his commitment to [X].  Following the breakdown of the marriage, he returned to live in Country A and did not see [X] for 3.5 years.  His explanation for being absent for so long presented as egocentric with little regard for [X] or her wellbeing.  He appeared to place blame on Ms Keith for this period of not seeing [X] and Ms Keith not wanting to return to Country A and not allowing [X] to travel. 

4. I note that the father proposed during the interview that the child should live between the parents in an equal-shared care arrangement. 

5. [X] reported being in Suburb J Primary School in prep, attending after-school child care three nights per week and sleeping overnight at her maternal grandparents each Friday night. 

6. I note that in respect of her father:

   [X] advised that she would like to see her father, however, “he still hasn’t come.”  She reported enjoying her time with her father and stated“I like I get to see him sometimes,” and they “do stuff and play, and he gives me a few gifts”. She then went on to say, “I don’t see him very often”. 

7. She advised that during spent time, her and her father do not talk; they just play.  Feelings of sadness were reported by [X] when she does not see her father for long periods.  Family Consultant G was of the view that neither parent had influenced [X]’s views.

The submissions made and the evidence given at Court

1. What follows is taken from my notes.  Self-evidently, it is not a transcript. It reflects aspects of the matter that I found significant. 

The evidence of the mother

1. Counsel did not elect to make an opening and called his client, who adopted her Affidavits as true and correct. 

2. It should be noted that although counsel for the father expressed some surprise that a Family Report had not been ordered, there was no application to adjourn pending the receipt of such report. 

3. Counsel put it to the mother that she had sought parenting orders in 2018 in the context of being in Victoria.  The mother said she had not put interstate relocation in because she did not know where the father was living.  It was always her intention to leave Victoria.  All her family are in Victoria, but she has spent holidays in Queensland.  She has friends in Queensland and was last there for four days in October.  Her family will be very supportive, and this will be lost if they move to Queensland.  She has supportive friends in Victoria, but has friends in Queensland.  She is not saying it will be easy, but it is in the best interests of her daughter and herself. 

4. She had always intended to move to Region B.  She did not know the father was in Australia. When she did discover he was here, she told the Court she wanted to move to Queensland and came to Court to get orders for the child.  She is not running away from anything or anyone.  She had been informed she could “do what I wanted”, but came to decide to come to Court for custody.  Her daughter will be going to school, and she will not be able to travel freely.

5. When asked how she felt about the father being in [X]’s life, the mother said she was conflicted.  Her daughter wants to know her father, but she knows what she has experienced herself.  She wants to protect the child.  It was a relationship over seven years and a marriage of two years and was not happy at all.  She received a number of phone calls and texts, which were abusive, so she stopped all contact.  The father would abuse her and was never child-focused.  There were threats she would never see [X] again.  He deleted materials on her computer while he was overseas.  He just turns up. 

6. It is a good thing [X] is seeing the father on a supervised basis, but she had issue with Ms I and her manager.  [X] is re-establishing a relationship with her father.  It is not her job to re-establish the relationship; it is his job. 

7. When it was put to her that it would be of benefit to [X], seeing her father and getting to know her bloodline, the mother said that he was her father and he will bring his good and bad qualities. One would assume he loves [X].  He has only seen her for 12 and a half hours over 38, and she questions his motivation. She said “[X] has to know him.  She wants to know him”.

8. The mother thinks he has a vendetta against her.  In some part, he loves his daughter.  If he comes to Queensland, he can establish a relationship with [X].  She will not move from Queensland.  She was in Court today for freedom.  She does not want to be restrained.  She wants to make decisions freely about school.  She wants to be able to travel internationally.  She has not been able to travel with [X] until she came to Court.  She wanted to leave four years ago.  Now was the time for them to move. 

9. The father can travel up to Queensland.  When she comes to Melbourne, he can see her.  This will be particularly the case in Christmas holidays.  Time is not to be unsupervised.  It would require consistency.  He has to continue to show up.  Supervision should continue until and after they move, until they are more settled.  There should be supervision until she feels at ease.  He disappeared in the middle of the Court case.  She asked rhetorically how she could trust him.  He threatened to take her daughter away from her, and this was only a year or so ago.  From the minute the child was born, he wanted to take her to Country A.  The father had made no child support payments to her recently.  She received an assessment on Monday which was for $300 per fortnight.  When asked if there was anything good she could say about him, the mother said he can cook.

10. The mother conceded there was no medical evidence to support her assertions that she would be better in the hotter climate in Queensland.  She said she has a good business as a professional and is doing very well.  She will do well here or in Queensland.  Region B is a good investment opportunity.  She has a background in property.  The business will continue to operate when she goes to Queensland.  She has chosen a school in Queensland and has been to the school with [X].  [X] knows of the plan to go to Queensland.  She is not stopping the father from coming to Queensland.  It is not healthy that he pops in and out of [X]’s life.  The mother conceded that, although she has asserted the father is an alcoholic, she had not sought testing.

11. In re-examination, the mother said the father had threatened to ruin her life, her business and take the child away.  He was always on about feminism and how badly she had treated him.  He said he had made a mistake marrying her.  She assumes he would take the child back to Country A.  He is quite funny and she was originally charmed.  He likes to play with children and she thought he was a good father.

The evidence of the father

1. The father confirmed that he is a night filler at Employer D.  He confirmed his affidavits were true and correct.

2. When asked in evidence-in-chief about Family Consultant G’s report, the father said he had no intention to take his daughter to Country A.  There is an Airport Watch List Order already.  He is trying to establish a business in Melbourne.  It will take him one year to get his own place.  He will live in Australia.

3. Under cross-examination by counsel for the mother, the father said he was going to start a business.  He had been planning this for one year.  He had worked in the family business in Country A.  He now had a driving licence and a job and proposed to open a business in one year’s time.

4. After separation, he spent two and a-half to three years in Country A.  He came back to Melbourne in August 2018 and is still here.  Separation was on 1 September 2015.  He worked in the family business in Country A.  He needed a safe zone after what had happened in Australia.  It is a business in City E, Country A in home furnishing and his role was in sales.  He was not paying a single cent in child support, but has now started to pay.  He only got a job one month ago.  His family paid him.  He was the priority.  [X] is the priority for him.

5. He tried to make contact several times, but it was not that easy. He has no support here and no financial support. He was financially and emotionally run down and had to go back to Country A. His father had a minor attack in about 2017. When asked how many times he had been back to Country A since separation, he said four times, seven times, he did not know precisely. He had been to Country K in October 2018 and stayed with a friend. He had to go to Country K because he had to see a client there on business.

6. When it was put to him that he could have seen [X] for 38 hours, the father said he did not know.  It was two hours every second weekend.  He had spent twelve and a half.  He spent six hours at children's contact service L and six hours with a new supervisor.  It has cost him $110 per hour and he wanted three hours.  It was expensive.

7. The father said his family supported him, and he opened a shop in Suburb H in 2013. His family paid towards his debts. The biggest problem in Australia was driving. It took him six months to get a licence and his family supported him during this time. It was his intention to get his licence and come to Court. He is already supporting himself and pays child support. He wants to support his child. His role as a father is to be there for [X], both financially and emotionally. He did not do this for three years but he is now here. His only concern is his daughter. There is nothing in Australia for him. It took him time to understand the way of life here. He would prefer to be close to [X].  He went back to Country A this year for his sister’s wedding in August, which lasted three days. He stayed in Country A for one month. The mother had been to Country K for 10 days.

1. When it was put to him that he did not see [X] for two and a half months after Court Orders facilitating time, the father did not respond.  He then said the centre did not allow him time and that in February it did not look like a four-month gap.

2. The father said he has four sisters and he has to show up for their weddings.  He then appeared to offer different evidence about his spending time after Court Orders.  He said he saw the child in June for the first time after a wait at children's contact service L.  His answers, it seemed to me, varied frequently as to how much time he had spent with [X] and why he had not spent more.

3. When it was put that he wanted to move to Country A when [X] was born, the father said that, at that moment, he wanted her to live in Country A with 17 people to look after her.  When he went back to Country A, he was stopped.  He did not pay child support, but had to pay $13,000.  A friend paid a bond for him and this took 15 days.  This was a friend from back home with the same background.

4. The father said he lives in a shared house.  He is not going to live there always.  He would want unsupervised time and could take [X] around Victoria.  It does not have to be in a shared house.  He could take her to the shared house if the Court allows.  All are highly educated people.  He will always try to protect his child.

5. Cross-examination about back pay of child support was hard to follow.  The father’s answers seemed to me to be prevaricating.

6. The father said he thinks [X] loves him. She does not show disappointment at not seeing him and is always happy to see him. His business is on hold during this proceeding. It has taken him 15 months to be here.

7. When it was put that he earns $300 a week, the father said this was right. He said yes, but it changes based on his shifts. The Child Support Agency estimate of income at $51,000 is just an estimate. He is now assessed as paying $120 a week child support, as he has clarified it. He will not go back to Country A. It would be hard to travel to Region B.

8. In re-examination, the father confirmed that he had booked a Men’s Behavioural Change Program for this year.  He expects to get an email in the New Year.

Final submissions for the father

1. Counsel submitted there should be an order for equal shared parental responsibility. The father had not always been here but was here now. It was a very unhappy, brief marriage. The mother has made decisions on her own because the father has not been here. If there is an order for sole parental responsibility, the mother should be required to keep the father informed. There are no communications between the parties. The child should live with the mother. The father came to Australia but the relationship failed. When the father went back to Country A, this was for himself, but, however, he is here now. The mother wants to move to Queensland to avoid the father. It is all about her desire to move on in life. She should not be permitted to relocate now. The father deserves credit for coming back. He has no one in Australia and can start a business. [X] should be given the opportunity to have a relationship with her father. There is a danger with the mother running away and her attitude to the father is concerning. Supervised time should cease in the near future. The father needs his own accommodation before there can be overnight time.

The submissions of counsel for the mother

1. The mother wishes to move to Queensland in January 2020.  [X] should have a relationship with the father but it depends upon the father.  It can happen here or on Region B.  The mother has always been the carer.  There were orders for the father to spend time with the child but he did not do so.  The mother respects the Court and has done the right thing.  She would facilitate time if ordered to do so.  When she made her Application, the mother did not know where the father was, and the father did nothing for years.  The father was here in April but there was no time from June until October.  There should be supervised time until the mother is settled in Queensland. 

The statutory pathway

1. Against this background, I turn to the statutory pathway set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]:

   “Summary

   [65]    In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends and holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.    The child’s best interests remain the overriding consideration.”

Parental responsibility

1. The Court is, of course, obliged to apply the presumption of equal shared parental responsibility unless there has been family violence or it is not otherwise in the child’s best interests. Here, there has been family violence. The question of the assault in 2010 when the father spat in the mother’s face was not traversed in cross-examination and I accept that this occurred. Nonetheless, and while such an act is, of course, completely abhorrent, it is now a long time ago. The other allegations of family violence rise no higher than belittling and general insult and, as I find, are more likely than otherwise to have occurred. Once again, these matters were not traversed in any detail by either side in cross-examination.

2. It should be noted that the mother struck me as being an impressive and straightforward witness albeit with some perhaps slightly self-obsessive personal characteristics. 

3. Despite the fact that one must make allowances for the fact that the father was giving evidence in a language that is not his first language, he struck me as being prevaricating and evasive on a number of occasions. In my view, there has been family violence within the extended meaning in section 4AB of the Family Law Act 1975 (Cth), but this is not, in my view, the decisive consideration.

4. The reality is that the mother has brought [X] up as effectively a single parent since [X] was under two years old.  It has fallen to her to make decisions about [X]’s best interests and she has done so.  The father’s involvement with [X] has been intermittent at best and remains both a work in progress and a query.  The communications between the parents are terrible and the mother wants the father as much out of her life as she can get him.  As a matter of practical politics, the mother must have sole parental responsibility but keep the father informed of any potential long-term decisions she proposes to make and to seek and have regard to but not be bound by the father’s responses. 

The spend-time regime

1. This is not a case in which I am able to find that the parents, in fact, agree that it is to [X]’s benefit that she have a meaningful relationship with each of her parents. That is undoubtedly the father’s position, but, as I find, it is very questionable whether it is that of the mother. The impression I get is that the mother would like the father well and truly out of her life and that of [X] also. Although she appeared to suggest at times in her answers that [X] should have a relationship with her father, these answers were always, in my view, governed by attendant qualifications. There was the repeated reference in her answers to time moving to unsupervised only when she herself was fully satisfied that it was appropriate.

2. The mother had a very unhappy relationship with the father, who belittled her and demeaned her as she asserts. It is perhaps understandable that she sees him in very negative terms. Her incapacity to see the benefit to [X] of a relationship with her father is concerning.

3. Although, as I have already said, the family violence in this case is disturbing and abhorrent, there is nothing to suggest that the father proposes to or has or is likely to harm [X] if she is in his care. Indeed, one of the most striking things is the observational reports assessment that the father and [X] picked up their relationship, in effect, straight off the bat.

The additional considerations

Section 60CC(3)(a)

1. The child is young and her views must be approached with that in mind.  Nonetheless, it is clear that she misses her father and would like to spend more time with him from the observational reports and, indeed, more particularly, the report of Family Consultant G.  It should be noted that despite the mother’s criticisms of the observational reports, no subpoenas were issued to Ms I or anyone else involved with the reports and the Court has not therefore had the benefit of their cross-examination.

Section 60CC(3)(b)

1. The child obviously has a very close relationship with her mother, who has been her primary carer all her life.  She appears to have a good relationship with the maternal family also, and spends one night a week with her grandparents. 

2. The child’s relationship with her father is as surprising as it is gratifying.  Despite the very lengthy absences of the father, it appears clear that she picked up immediately with him when they were introduced.  She was excited to see him and pleased to do so.  The report of Family Consultant G only goes to confirm the observational report in this regard.

Section 60CC(3)(c)

1. The mother has, of course, made all the major long-term decisions about [X] to date and seeks to continue to do so.  She obviously has been the child’s primary carer.  The father has significantly failed in this regard.  He went back to Country A for some three and a half years, essentially to suit his own interests.  While once again this is to an extent understandable given that his relationship in Australia had failed and his entire family is in Country A, together with associated business advancement, I agree with Family Consultant G that his decision to do so was essentially egocentric. 

2. He failed as a result to participate in decisions about the child and also to spend time with and communicate with her for a very extended period of time.  Not only that but when he did get time pursuant to Court Orders, the father has been, in my view, dilatory.  True it is that such time may have been difficult in the sense of waiting times at centres and cost of private reports.  Nonetheless, he has significant material support from his family, as he said more than once.  In my view, he could and should have spent more time with [X] than he did.

Section 60CC(3)(ca)

1. This can be dealt with shortly. The mother has fulfilled her obligations and the father has not. He has paid nothing, in effect, by way of child support.

Section 60CC(3)(d)

1. Nobody is suggesting that [X] should be separated from her mother.  The question then becomes whether or not the father should spend supervised time or unsupervised time.  In my opinion, the reports from the observational report and from Family Consultant G suggest that the father is perfectly appropriately attuned to [X]’s needs, including her emotional and physical needs in his care.  Whether he still desires to take her to Country A, which I suspect he may, is really irrelevant as the extant Watch List order is going to stay in place.  In my opinion, whether time proceeds here or in Queensland, it should move to unsupervised.  

2. The mother’s position is, of course, that such time should only occur when she, herself, is comfortable with it but the evidence suggests to me that she is unlikely to ever reach that state of mind in any kind of proximate timeframe.  She maintains vivid concerns about the father’s treatment of herself, and this at the forefront of her thinking and is not likely to be readily set aside. 

Section 60CC(3)(e)

1. There is practical difficulty and expense associated with [X] spending time with her father, whether in Victoria or in Queensland.  At present, he lives in shared care accommodation and his counsel’s submissions did not suggest that overnight time should take place there.  I fully accept that that is so. 

2. Furthermore, the father says that his income is as yet very small and this obviously places difficulties in the way of both supervised time and, indeed, of time more generally.  All these difficulties would be further compounded in the event that the mother relocates to Queensland. 

Section 60CC(3)(f)

1. I do not understand it to be suggested that the mother is incapable of providing for [X]’s needs in any way.  I have been told nothing whatsoever as to her religious views, although the father makes a glancing complaint about them.  There is nothing to suggest that [X] is not being properly and lovingly brought up by the mother.

2. The father’s capacity to provide for [X]’s needs in a material sense is compromised by his present financial position.  It may also be affected to an extent by the father’s difficulty with engaging with the Australian way of life.  I should note, in passing, that the mother’s evidence about the father’s criticisms of feminism and the like were given with conviction.  Nonetheless, to the extent that the Court has evidence about these matters, it would seem to me that the father is a loving father who can properly look after his child. 

Section 60CC(3)(g)

1. This has, in fact, already been touched upon. It is difficult to know quite what to make of the mother’s lifestyle and background when I have been told so little about it. Nonetheless, she has deposed without challenge that she is a successful businesswoman who will be well able to provide for [X].

2. As far as the father is concerned, it is very understandable that there are aspects of life in Australia that he will need to adapt to and take on board.  He appears to be from a comfortably well off background in Country A and this will, undoubtedly, assist him in whatever business undertakings he may decide to embark upon. 

Section 60CC(3)(h)

1. This is irrelevant. 

Section 60CC(3)(i)

1. Although I have no difficulty in finding that both these parents love their child, I have equally little difficulty in noting a strongly possessory quality in both of their materials. The mother’s position is very much based upon her own experiences of the father and this, of course, is understandable. But her evidence taken as a whole suggests that she sees the child very much at hers alone with the father as a secondary and subsidiary figure.

2. The father’s attitude seems to reflect a strong affection for his daughter but one in which, at times, he has placed her very much second in his interests.  His lengthy return to Country A and failure fully to take up his time is of concern.  The mother is right to say that it will not be good for [X] if he simply keeps entering [X]’s life and then withdrawing from it. 

Section 60CC(3)(j)

1. I have already dealt with the family violence that has obtained in this relationship.  It is not necessary to repeat what I have already put. 

Section 60CC(3)(k)

1. There are no family violence orders in place and as I understand it, there never have been. 

Section 60CC(3)(l)

1. This matter was not the subject of detailed submissions but I think it is implicit in everybody’s position that it is desirable to make final orders now if practicable.  For the reasons set out below, I do not think final orders at this time are in [X]’s best interests.

Section 60CC(3)(m)

1. There are no other relevant matters. 

Conclusion

1. This is a peculiar case arising out of a very particular and unusual set of circumstances.  When [X] was born, the father wanted the child to live in Country A and given the material benefits that would have obtained to her, this was an understandable position.  I have no doubt that he made unfortunate threats to the mother about removing [X] to Country A and injuring her business and the like, as the mother’s evidence was not the subject of challenge in cross-examination and her Affidavit and demeanour strongly suggests that this was so. 

2. Accordingly, I find the mother’s desire to move to Region B is at least in part designed to put distance between her and the father.  The mother’s family is in Victoria and [X] will lose the benefit of the regular weeknight time with her grandmother and father and mother. Despite, in my view, somewhat nebulous evidence about friends in Queensland, she will lose the support of her close family in an immediate sense. 

3. All of this militates strongly, obviously, against permitting the mother to relocate.  The difficulty, however, is twofold.  First, it is clear U & U [2002] HCA 36 and other cases that the mother does not have to establish in a positive sense that she is entitled to move. Rather, it is a matter of assessing where the child’s interests will be best met.

1. In this regard, the mother’s desire to move to Queensland is not quixotic or unreasonable.  The fact is that it will be warmer.  This may benefit her health even though there is no formal proof to that effect.  Accommodation is likely to be cheaper in Queensland than it is in Victoria.  More to the point, it is where the mother wants to live and she is, prima face, entitled to live there. It is in [X]’s best interests that the mother be permitted to live where she wishes to.

2. The fact is that the mother has brought up [X], essentially, on her own and the father’s endeavours to be involved in [X]’s life have been, as I find, insufficient, and marked by a curious absence of commitment, given that, as I say, I think he does love his child. 

3. The reality is that if the father wishes to do so, he can move to Queensland too. There is nothing to keep him in Victoria. He has no family here and has not deposed that he has any significant support. His family in Country A will, undoubtedly, advance him support in either event. Putting the matter shortly, and I believe this was put by my brother judge, Judge McNab, during an earlier proceeding, it is up to the father to step up to bat.

4. I am going to make orders for him to have unsupervised time whether in Victoria or in Queensland and if he wishes to do so then his path will be clear before him.  If his position remains nuanced and self-absorbed and he does not take up the offers for time then, plainly, it will be appropriate to permit the mother to make a further application without any Rice v Asplund (1979) FLC 90-725 objection.

5. In the circumstances, I am going to make interim orders and bring this matter back to Court in one year’s time, by which time the father will have demonstrated more conclusively whether his commitment or otherwise to spending time with the child. I will hear the parties as to the precise orders that should be made to effect this.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  31 January 2020