Kerrison and Capps
[2018] FCCA 1008
•27 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KERRISON & CAPPS | [2018] FCCA 1008 |
| Catchwords: FAMILY LAW – Parenting – International Relocation – whether the mother should be permitted to relocate with the child to (country omitted) – whether the child’s relationships with the father will be maintained if the child was to move to (country omitted). |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Bell & Nahos [2016] FamCAFC 244 Taylor v Barker [2007] FamCA 1246 Cowley v Mendoza [2010] FamCA 597 Heath & Hemming (No.2) [2011] FamCA 749 Collu & Rinaldo [2010] FamCAFC 53 AMS v AIF [1999] HCA 26 U v U [2002] HCA 36 |
| Applicant: | MR KERRISON |
| Respondent: | MS CAPPS |
| File Number: | MLC 9446 of 2016 |
| Judgment of: | Judge Williams |
| Hearing dates: | 31 January 2018, 1 – 2 February 2018, 6 February 2018 & 9 February 2018 |
| Date of Last Submission: | 9 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 27 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms H. Dellidis |
| Solicitors for the Applicant: | Pearsons Lawyers |
| Counsel for the Respondent: | Ms A. Carter |
| Solicitors for the Respondent: | Gaffney Law |
ORDERS
All previous parenting orders including the Watch List order made 5 October 2016 be discharged.
The parents have equal shared parental responsibility for the child [X] born (omitted) 2015.
The child live with the mother.
The mother be at liberty to relocate the child’s residence to (country omitted) from 15 January 2021.
Father’s time in Australia pending relocation of the child’s residence
Until 15 January 2021, or upon relocation of the child’s residence to (country omitted), the child spend time with the father as follows:
From the date of these orders until September 2018, the child shall spend time with the father in each two week period the father is in Melbourne at such times as are agreed, to include 3 overnight stays, and failing agreement, time shall occur as follows:
(a)From 9.30am on the first Friday until 7pm Saturday, and from 9.30am to 7pm Monday and from 12noon Wednesday to 12noon Thursday; and
(b)From 9.30am on the second Friday until 7pm Saturday and from 9.30am to 7pm Monday.
Commencing September, 2018, the child spend time with the father in each two week period the father is in Melbourne at such times as are agreed, to include 5 overnight stays, and failing agreement, time shall occur as follows:
(a)From 12noon on the first Friday until 7pm Sunday and from 9.30am to 7pm Monday and Wednesday; and
(b)From 12noon on the second Friday to 12noon Monday.
Commencing September 2019, the child spend time with the father in each two week period the father is in Melbourne at such times as are agreed, to include 7 overnight stays, and failing agreement time shall occur as follows;
(a)From 12noon on the first Friday until 4pm Tuesday; and
(b)From 12noon on the second Thursday until 4pm Sunday.
Commencing 15 January 2021 in the event the mother does not relocate the child’s residence to (country omitted), the child spend time with the father as follows:
(a)In each two week period the father is in Melbourne at such times are agreed, with time during school terms to include eight overnight stays, and failing agreement time shall occur as follows:
(i)the from the conclusion of school on the first Friday to the commencement of school Tuesday; and
(ii)from the conclusion of school on the second Thursday to the commencement of school Monday;
(iii)For one half of each school holiday period (including the long summer holiday). At times agreed, when the father is in Melbourne.
(b)when the father is not in Melbourne, a child and father shall communicate by telephone and/or Skype or FaceTime, each Monday, Wednesday and Friday, for not less than 15 minutes, with the father to SMS the mother the day before to confirm his availability and to nominate a time for the contact, to be between 4 PM to 7:30 PM Melbourne time, or as otherwise agreed.
(c)At such other or further times as agreed between the mother and father
Father’s time with the child subsequent to relocation of her residence to (country omitted)
In the event the mother relocates the child’s residence to (country omitted) in January 2021 or such later time as the child’s residence is relocated to (country omitted) the child spend time with the father as follows:
(a)In Australia, for 9 nights/10 days in the first and third term (country omitted) school term holiday periods, and for two weeks (14 nights) of the long summer holiday period, at times agreed (and each alternate year, the child's time with the father for the long summer holiday period shall include Christmas Day)
(b)In (country omitted), for up to 4 occasions each year, for up to two weeks in each visit, and such time to include one week of the second term (country omitted) school holiday period.
The child shall communicate with the father by telephone and/or Skype or FaceTime, each alternate day, for not less than 15 minutes, with the father to SMS the mother the day before to confirm his availability and to nominate a the time for the contact, to be between 4pm to 7.30pm (country omitted) time, or as is otherwise agreed.
The child shall spend time with the father at such other or further times as is agreed between the mother and father in writing including via SMS or email.
For the purposes of time in Australia:
(a)Unless otherwise agreed, the mother shall accompany the child to and from Australia until the child is able to travel as an unaccompanied minor
(b)The father shall meet the costs of the child's airfares until the mother obtains full-time employment or the or until 2022, whichever occurs earlier, and otherwise the parents shall share equally in such cost;
(c)The parties shall share equally the costs of the mother's airfares until the mother obtains full time employment or until 2022, whichever occurs earlier, and otherwise the mother shall meet the whole of the costs of her airfares.
For the purposes of time in (country omitted):
(a)The father shall meet the costs of his airfares and accommodation;
The mother shall ensure the father has the use of a motor vehicle fitted with an age appropriate child restraint for the duration of his visit.
Maintenance
The father shall provide the mother $400 per week maintenance for her support whilst she is living in Australia and such maintenance shall cease upon the earliest of the following events:
(a)her gaining full time employment
(b)her becoming eligible to receive sole parent payments or Newstart payments from Centrelink,
(c)her living in a domestic relationship with another person
(d)the year 2022
In the event the mother wishes the child to attend child care, the parties shall do all things necessary to put the father in the positon of claiming the child care subsidy and the father shall equally share the cost of any out of pocket child care expenses and such payments shall not be credited against any child support assessment.
Within 21 days the father do all things necessary to transfer to the mother at his expense the KIA (omitted) motor vehicle together with keys, and contemporaneously with the provision of the KIA, the mother shall return the Toyota (omitted) motor vehicle to the father together with the key.
Upon the mother obtaining a lease, the father shall forthwith provide the whole of the bond monies to the estate agent such bond to be fully refunded to the father. In the event the lease ends and with the mother to refund the father any bond monies retained by the landlord.
Travel to (country omitted)
The mother be permitted to travel with the child to (country omitted) at any time the father is not spending time with the child pursuant to these orders.
For the purposes of such travel:
(a)The mother shall meet the costs of her own airfares;
(b)The father shall meet the child's airfares for two trips per annum, with such payment not to be credited against any child support assessment;
(c)The mother shall provide the father not less than 21 days' notice in writing of her dates for travel, wherever practicable.
Special occasions
For the purposes of Christmas, the child shall spend time as follows:
(a)With the mother from 22 December, to 12 January in 2018/2019 and each alternate year thereafter; and
(b)With the father in 2019/2020 and each alternate year thereafter from 10am 24 December until 7pm 29 December and a further block of 5 nights in January upon 28 day's written notice to the mother
For the purposes of Mothers' day, the child shall spend time with the mother from 5pm the Saturday immediately preceding Mothers' Day to 9.30am or the commencement of school Monday.
Provided the father and the child are both in Melbourne or (country omitted), for the purposes of Fathers' Day the child shall spend time with the father from 5pm the Saturday immediately preceding Fathers' Day to 9.30am or the commencement of school Monday.
Restraints on the parents
Both parents be and are hereby restrained from:
(a)Discussing these proceedings with or in the presence or hearing of the child or allowing any other person to do so;
(b)Denigrating the other parent or member of the parent's family or household to or in the presence or hearing of the child or allowing any other person to do so;
Parents to provide information
Each parent forthwith advise the other in the event of any change to their contact telephone number and email address and shall provide 28 days' written notice of any proposed change of address .
Each parent forthwith inform and keep the other informed of any illness, injury or accident suffered by the child requiring medical treatment, and provide the other parent with the details of the child's treatment and medical treater and authorise such medical professional to communicate with the other parent.
The father provide to the mother a copy of his work roster forthwith upon receipt of same from his employer.
School Issues
Both parents are at liberty to attend all daycare, kinder, pre-school and school functions to which parents are routinely invited.
The mother shall authorize and request the child's day care, kinder, pre-school and school to provide the father with copies of the children's school reports, newsletters, photo-order forms and the like to the father, at his expense, if any.
AND THE COURT NOTES THAT:
A.Subsequent to relocation, the mother shall use her best endeavours to provide accommodation for the father and child when he visits (country omitted), with one of her friends or family members.
B.Subsequent to relocation, the mother shall use her best endeavours to register these Orders in a Court in (country omitted), with competent jurisdiction.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Kerrison & Capps is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 9446 of 2016
| MR KERRISON |
Applicant
And
| MS CAPPS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is the father and the respondent is the mother of the child [X] born (omitted) 2015, [X] is now aged two years and five months.
Issues in dispute
The issue in dispute in the proceedings was whether the mother should be permitted to relocate [X]’s residence from Australia to (country omitted) from March 2020.
Fortunately and most sensibly, the parents were able to agree about the following issues:
a.Both parents should retain equal shared parental responsibility for [X];
b.[X] live with her mother;
c.The time [X] should spend with her father, if she remains in Australia, and in the event [X] is permitted to reside in (country omitted);
d.The financial support the father is to provide to the mother, if [X] remains in Australia, and in the event [X] is permitted to reside in (country omitted).
At the commencement of the trial, counsel for each of the parties submitted a joint proposed consent minute addressing the issues referred to in the preceding paragraph.
Synopsis
I have determined it is in the child’s best interests that:
i)[X] remain in Australia until 15 January 2021, the year she is due to commence primary school
ii)the mother be permitted to relocate [X]’s residence to (country omitted) as from 15 January 2021.
The reasons for my determination follow.
Background
The father was born on (omitted) 1989 and is currently aged 28. The father was born in Australia and is an Australian citizen. The mother was born on (omitted) 1994 and is currently aged 23. The mother was born in (country omitted) and is a (country omitted) citizen.
In (omitted) 2014 the mother travelled from (country omitted) to Melbourne to commence a one-year working holiday.
The parents met in (omitted) 2014 at the (place omitted) and commenced dating in (omitted) 2014.
In (omitted) 2015 the mother and father commenced cohabitation in (country omitted). Shortly after cohabitation, the mother discovered that she was pregnant.
Their daughter, [X] was born on (omitted) 2015 in Australia. [X] is a dual citizen of Australia and (country omitted).
On 24 December 2015 the mother, father and [X] travelled to (country omitted) for Christmas with the mother’s family.
In January 2016 the father returned to Melbourne. The mother and [X] remained in (country omitted), with the father’s consent prior to returning to Australia for three weeks in February 2016.
In (omitted) 2016 the mother commenced a relationship with a former neighbour, Mr B, who was then aged 46. At that time the father was unaware of the mother’s relationship with Mr B.
On (omitted) 2016 the mother and [X] travelled to (country omitted) to enable the mother to undergo medical treatment for post birth complications. The cost of the medical treatment was covered by the mother’s family private health insurance.
Both parties agree that on 21 April 2016 the mother advised the father that she would not be returning to Australia with [X], and rather intended to remain in (country omitted). The father did not agree to [X] remaining in (country omitted).
On 28 April 2016 the mother confirmed on her Facebook page that she did not intend returning to Melbourne with [X].
On 30 June 2016 the father filed an application, pursuant to the Hague Convention, in the (country omitted) Family Court seeking [X]’s return to Australia.
Between June 2016 and 12 September 2016 the Hague proceedings continued in (country omitted). The mother opposed [X]’s return to Australia.
On 12 September 2016 the (country omitted) Family Court ordered the mother to return [X] to Melbourne by 12 October 2016.
On 11 October 2016 the mother and [X] returned to Melbourne. They were accompanied by the maternal grandmother, who remained in Melbourne for several weeks prior to her return to (country omitted) in December 2016.
The mother and [X] returned to Melbourne and commenced to live in a unit at (suburb omitted), where the mother and father had lived prior to the mother’s departure to (country omitted).
In (omitted) 2016 the father obtained employment as a (occupation omitted) at (town omitted) in Western Australia. The father’s employment requires him to work on a two week on, two week off roster.
In November 2016 the father discovered derogatory comments about him made by the mother on Facebook and Snapchat. How the father accessed the mother’s social media is disputed.
Procedural History
On 29 September 2016 the father commenced proceedings in this Court, seeking an ex parte watch list order. The Initiating Application was listed on 5 October 2016 before me and I granted the father’s application for an ex parte watch list order.
On 3 November 2016 the matter was listed before me and the following orders were made by consent:
i)[X] live with her mother;
ii)[X] spend time with her father each Monday, Wednesday and Friday at the mothers home from 5 PM until 7 PM, and such other times as agreed in writing;
iii)A suspension of the watch list order to enable the mother to travel with [X] to (country omitted) from 22 December 2016 to 12 January 2017.
On 2 December 2016 the mother filed an application in a case seeking orders that she be permitted to relocate [X] to (country omitted). The application was listed on 3 February 2017.
On 3 February 2017 interim orders were made by consent for [X] to spend time with the father as follows:
i)Each Monday, Wednesday and Friday from 11:30 AM until 7 PM;
ii)Each Saturday from 8:30 AM to 11:30 AM;
iii)By FaceTime, each alternate day for at least 15 minutes, unless otherwise agreed between the parties, during periods when the father is working in Western Australia or the child is holidaying in (country omitted) with the mother;
On 10 October 2017 the mother filed an Application in a Case, seeking an expedited final hearing, the parties attended mediation, further financial support from the father and that she be permitted to travel to (country omitted) over the Christmas holiday period.
On 26 October 2017 orders were made as follows:
i)Procedural orders for final hearing fixed for 31 January 2018;
ii)For [X] to spend time with the father in Melbourne;
iii)For [X] to travel to (country omitted), between 26 December 2017 and 16 January 2018.
The proposals of the parties
The mother’s proposal
The orders which the mother initially sought from the Court are set out in the minute of proposed consent orders which was signed by the parties tended by both counsel. The mother sought orders enabling her to immediately relocate [X] to (country omitted).
The minute provides as follows:
i)Discharge of all previous parenting orders, including the watch list order made 5 October 2016;
ii)Both parents to have equal shared parental responsibility for [X];
iii)[X] live with her mother;
iv)Arrangements for [X] to spend time with her father in the event the mother is permitted to relocate to (country omitted);
v)Arrangements for [X] to spend time with her father in the event the mother is not permitted to relocate to (country omitted).
The final orders which the mother sought from the Court, during her Counsel’s final address, were in accordance with the Minute of Consent orders, except that she be permitted to relocate to (country omitted) with [X] in March 2020.
Documents relied upon by the mother
The mother relied upon the following documents:
i)Amended Response filed 29 January 2018;
ii)Affidavits of mother sworn 18 December 2017 and 14 January 2018;
iii)Affidavit of Ms J (maternal grandmother) sworn 9 January 2018;
iv)Affidavit of Mr D (paternal grandfather) sworn 9 January 2018;
v)Financial Statement of mother filed 16 January 2018;
vi)Family report of Ms E dated 31 October 2017.
The father’s proposal
At all times the father sought orders that the mother be restrained from relocating [X]’s residence to (country omitted).
However, the father agreed with the orders set out in the minute of proposed consent orders referred to at paragraph 4 hereof.
Documents relied upon by the father:
i)Further Amended Initiating Application filed 10 January 2018;
ii)Trial affidavit of father filed 10 January 2018;
iii)Affidavit of Mr I (paternal grandfather) filed 23 January 2018;
iv)Affidavit of Ms K (paternal grandmother) filed 23 January 2018.
Evidence
The standard of proof in this case is the balance of probabilities (s.140 Evidence Act1995 (Cth)).
Section 140 of the Evidence Act1995 (Cth) provides:
(1)in a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject- matter of the proceeding; and
(c)the gravity of the matters alleged
The mother and the father relied upon their respective affidavits. The affidavits were lengthy and recounted the history of the parties’ relationship pertaining to parenting matters. I have examined that evidence and do not propose to repeat it in these reasons.
In Bell & Nahos [2016] FamCAFC 244 Strickland J addressed the obligations of a trial judge in that regard as follows: [28]-[29]:
Plainly that is the case, but it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
I can see no error here in Her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to the reach her decision.”.
Both the mother and the father gave evidence and were cross-examined. I therefore had the immeasurable benefit of observing both parties in the witness box for a considerable period of time and observing their demeanour in Court throughout the protracted proceedings.
The mother’s evidence during cross-examination was mainly truthful. She was at times very emotional and teary. However, significant parts of her evidence in the earlier affidavits omitted highly relevant matters, such as her relationship with her then boyfriend, Mr B. The interim affidavits were not candid about her relationship with Mr B, and consequently the reasons why she sought, at that stage to return to (country omitted) as often as practicable. Nor did she disclose her relationship with Mr B during the Hague proceedings in (country omitted).
During cross-examination, she conceded that the comments about the father which she posted on her social media were derogatory and highly insulting. I was left with the impression she was angry she had been caught out. Although she expressed remorse and regret, there was a sense of insincerity.
Her evidence was sometimes prone to exaggeration and embellishment, or minimisation, which she considered might be beneficial to her cause. For example, her allegations of controlling and coercive behaviour levelled at the father were, in my view, exaggerated. She attempted to minimise her evidence about the timing of the commencement of her relationship with Mr B.
The maternal grandmother Ms J gave evidence and was cross-examined. As expected, her evidence was entirely supportive of her daughter and critical of the father. She was reluctant to make concessions adverse to the interests of her daughter. Her affidavit did not make any mention of the mother’s relationship with Mr B. When cross-examined about her knowledge as to the date of commencement of the relationship between the mother and Mr B, her evidence was evasive and not truthful. It was only when questioned by me, did she concede that she was aware that the relationship had commenced in January 2016. I do not place much weight on her evidence.
The maternal grandfather was similarly reluctant to make any concessions adverse to his daughter’s interests. His evidence was not particularly helpful or convincing.
Neither of the maternal grandparents’ evidence gave me any confidence that the father would be particularly welcome in their community in the short term, nor that they had any positive comments to make about him and his relationship with [X].
The mother’s psychologist, Mr K swore an affidavit on 12 January 2018. He gave evidence and was cross-examined, albeit it was necessary to issue a subpoena to him to give evidence. It was readily apparent that his sole purpose was to unequivocally and uncritically support the mother’s quest to relocate to (country omitted) .
Counsel for the father was particularly rigorous in her detailed and forensic cross-examination of Mr K. There were failures in his methodology, selective editing of his notes, and conclusion as to his opinion about the mother’s psychological health. His evidence about the adverse impact of the mother’s alleged social isolation on [X] was extraordinary and without foundation. I do not accept the evidence of Mr K. Sensibly, during her final submissions, counsel for the mother did not seek to rely on his evidence.
Ms E psychologist prepared a family report dated 31 October 2017. Ms E gave evidence and was cross-examined. She gave evidence in a generally considered and professional manner. I accept her evidence which is referred to in these reasons.
The father’s evidence was measured and considered. He seemed bewildered to find himself in the current proceedings. He directly answered questions put to him, including those which may have been adverse to his case. He did not exhibit any overt animosity towards the mother. I accept him as a witness of truth.
The paternal grandfather gave evidence and was cross-examined. He was combative and clearly aggrieved by the relationship between the paternal family and the mother. Notwithstanding his aggressive attitude, I essentially accept his evidence.
The paternal grandmother gave evidence and was cross-examined. As expected, she was keen to support her son. She also felt aggrieved by the conduct of the mother and the impact on her time with [X]. She referred to the strained nature of the relationship between the paternal grandparents and the mother, subsequent to the mother obtaining an intervention order against her son. I accept her evidence as truthful.
The Applicable Law
The mother is seeking to relocate with [X] from Melbourne to (country omitted) as from March 2020.
Relocation cases are determined in the same manner as all parenting cases, namely by following the statutory framework set out in the Family Law Act 1975 (Cth), to determine what orders are in the children’s best interests.
In Taylor v Barker [2007] FamCA 1246, their Honours Bryant CJ and Finn J at [53] said:
[W]hen dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child's future living arrangements, at least in so far as that approach is possible (see U v U (2002) 211 CLR 238 ; (2002) FLC 93–112 and Bolitho & Cohen (2005) FLC 93-224).
In Cowley v Mendoza [2010] FamCA 597, His Honour Murphy J stated at [30] as follows:
A "”relocation case" is not a specific sub-category 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.
Referring to relocation cases, His Honour Justice Kent in Heath & Hemming (No.2) [2011] FamCA 749 at paragraph [101] stated:
Whilst the statutory framework does not deal differently or specifically with cases involving a proposed relocation from other parenting cases, such cases attract the description of “relocation cases"” because they bring into sharp focus the central issue of balancing statutory imperatives concerning children's best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both “best interests" considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of "“best interest” may well mean that one party's choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child's “best interest” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
Part VII of the Family Law Act 1975 (Cth.) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how Court is to determine what is in a child’s best interests.
The Court must consider the matters in s.60CC(2) (the primary considerations) and s.60CC(3) (the additional considerations) of the Act. Each of those matters, where relevant, must be considered and assessed in the context of the respective proposals. The Court must then determine which of the proposals is in the children’s best interests.
As the Full Court (May, O’Ryan & Strickland JJ) observed in Collu & Rinaldo [2010] FamCAFC 53 at paragraph [355]:
“[I]n determining best interests the obligation is to ‘consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all those matters, a trial Judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out”
The Court is not bound by the parties’ respective proposals. (AMS v AIF [1999] HCA 26 and U v U [2002] HCA 36).
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60 CC(2) of the Act provides that:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b).
I will firstly consider the primary considerations of the act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
At paragraph [104] in Heath v Hemming (No.2)(supra), after having reviewed the authorities in relation to the benefit of a child having a meaningful relationship with both of the parents, Justice Kent said:
Clearly, if it is determined that a meaningful relationship with both parents is in the child's best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child's age and level of maturity (s 60CC(3)(g)) may assume particular importance. This may also lead a Court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a "meaningful relationship" with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable.
There was no dispute about the benefits for [X] in having a meaningful relationship with both parents. There was however a divergence of opinion as to the nature of [X]’s current relationship with each of her parents.
[X]’s relationship with her mother is sound and loving, and she has an age appropriate attachment to the mother. There is no criticism of the mother’s relationship with [X].
The mother’s evidence is that she views the relationship between [X] and the father as already established.
Unsurprisingly, the father’s evidence about his relationship with [X] differs from the mother. He perceives that the relationship in its infancy, is still being established and requires further consolidation. From the father’s perspective, this can only be achieved, for the foreseeable future, by [X] continuing to live in Australia and spend regular and frequent time with her father.
The minutes of proposed consent orders presented by the parties is predicated on the assumption that it is beneficial for [X] to have a meaningful relationship with both parents.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Fortunately for [X], at the conclusion of the trial, there were no allegations by either parent that she has been subjected to physical or psychological harm, abuse or neglect.
However, the mother asserts that the father has perpetrated domestic violence against her. She alleges that the father has:
i)Threatened her in [X]’s presence at a park;
ii)Engaged in coercive and controlling behaviour, both financially and emotionally;
iii)Intruded her privacy by hacking into her Snapchat and Facebook accounts.
I refer to the mother’s allegations of the father’s domestic violence at paragraphs 184 - 215 hereof.
For the reasons referred to in the relevant paragraphs, I find that the father does not pose any threat to [X] nor to the mother.
The additional considerations are set out in s.60CC (3) of the Act. I will now consider the additional considerations.
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
As [X] is only two and a half years old, her views are not a relevant consideration.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
Counsel for the father, in her opening address, quite clearly identified this consideration as one of five primarily relevant considerations in the proceeding.
The mother seeks to cast the relationship between [X] and her father as solid and consolidated.
The father seeks to characterise the relationship as emerging and good, in the context of [X]’s age and periods of the father’s absence from her life.
The mother’s evidence as to the father’s relationship with [X] is set out at paragraph 66 to 76 of her trial affidavit.
She asserts that:
i)At all times, she has complied with the interim consent orders made on 3 February 2017;
ii)She has proposed the father take [X] to (hobby omitted) classes on Thursdays;
(i)She has actively promoted overnight time with the father;
(ii)To enable [X] to spend overnight time with her father, [X] was night weaned over a six week period, which was stressful and involved many sleepless nights;
iii)She was happy to facilitate face time between the father and [X], however, the father has failed to do so;
iv)She has worked hard and intends to continue to work towards the father and [X] having a strong and meaningful relationship;
v)The relationship between [X], and her father is not benefited by [X] living in Melbourne, as the father is only in Melbourne for two weeks of each month;
vi)The relationship between [X], and her father could be just as easily facilitated if [X] lived in (country omitted);
The father’s view of his relationship with [X] is that it is close and loving, however, in its infancy. [X] did not spend time with her father between April 2016 and October 2016. The only contact between father and daughter was via electronic communication. The mother and [X] returned to Australia in accordance with the orders of the (country omitted) Family Court and [X] thereafter re-commenced time with her father.
Counsel for the father submitted that the relationship between [X], and her father was a fledging relationship that has been fractured by significant absences from her father and the reality of the father’s employment, which limits his capacity to spend regular fortnightly time with [X]. Additionally, [X]’s age and developmental stage of being breastfed has warranted a slow development of time with her father. The father agreed that his relationship with [X] is a good one. She displays the normal behaviours of a two-year-old, is settled and loves spending time with him. However, [X] only commenced spending overnight time with the father three months prior to the trial, and because of the father’s work commitments, as at the date of the trial, overnight time had only occurred twice in each month, on a total of six occasions.
I agree with the submission of Counsel for the father and the characterisation of [X]’s relationship with her father.
The family report of Ms E refers to the nature of the relationship between [X], and her father.
At paragraph 80 of the family report dated 27 October 2017, Ms E comments:
Ms Capps appears to have a close and intimate relationship with [X]. Mr Kerrison appears to be successfully cultivating a close relationship with [X]. However, after a six-months absence, during her infancy, that connection will need to be carefully nurtured and consolidated.
At paragraph 83 of the family report:
For [X] to have a meaningful relationship with her father they will need to be given the opportunity to build on their present connection. Mr Kerrison should spend regular time with [X] overnight. Mr Kerrison is an intelligent but relatively inexperienced father. He may benefit from a parenting course through a local community health Centre to gain confidence in parenting skills.
At paragraph 85 of the family report:
Relocation may be a more reasonable proposition in the future once Mr Kerrison and [X] have consolidated their relationship, and [X] is mature enough to maintain the attachment with longer absences.
When cross-examined, Ms E’s evidence did not dramatically depart from the comments in the family report. She said:
“Yes, and you would say that [X]’s relationship with her father is a fledgling one, wouldn’t you—Yes , I would say that. Maybe a bit stronger than that, but about like that”
Despite her evidence about the strength of the father’s relationship with [X], the mother’s revised proposal that she remain in Australia until March 2020, accords and is consistent with the view of the father and the family consultant. It must necessarily be the case that [X]’s relationship with her father, whilst sound and loving, is in its infancy and requires further consolidation.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
Participation in making decisions about major long-term issues in relation to the children
The minutes of proposed consent orders include an order that the parents have equal shared parental responsibility for [X]. This augurs well for the future.
However, it is quite clear that the mother’s decision to refuse to return [X] to Australia from (country omitted) was unilateral. The father was not consulted about [X] remaining in (country omitted). Obviously, a decision about which country [X] was to permanently reside in is a major long-term issue.
Subsequent to April 2016, when the mother advised the father during a video call that it was her intention to remain in (country omitted) with [X], there was no joint participation about major long-term issues affecting [X].
In June 2016 the father filed an application in the (country omitted) Family Court at (country omitted), seeking [X]’s return to Australia, pursuant to the Hague Convention.
The mother contested the proceedings and filed a response seeking that [X] be permitted to remain in (country omitted). The mother asserted that [X] had lived most of her life in (country omitted) rather than in Australia. The trial was heard on 29 August 2016. On 12 September 2016 judgement was delivered by His Honour Judge Hunt requiring [X] to be returned to Australia.[1]
[1] Annexure C5 to the affidavit of the mother sworn 18 December 2017
On 11 October 2016 the mother returned [X] to Australia, where she has continued to live.
There was no evidence about any problems in parental participation about major long-term issues, subsequent to [X]’s return to Australia. There are however, complaints about the parental communication.
Opportunity to spend time with and communicate with the children
The mother and [X] returned to (country omitted) from Australia on 7 March 2016. At that time the relationship between the mother and the father was intact. The mother asserts that she attempted to arrange, FaceTime, between [X], and the father during this time in (country omitted).
In April 2016 the mother advised the father that she wanted to separate and remain with [X] in (country omitted). The father acted relatively swiftly and commenced Hague proceedings in (country omitted) on 30 June 2016.[2]
[2] annexure C1 to the mothers affidavit sworn 18 December 2012
The father vigorously pursued The Hague proceedings. It is evident from the father’s actions in seeking [X]’s return to Australia that he wished to spend time with her.
Between 11 October 2016, when [X] returned to Australia and 3 November 2016, when the father’s application was first listed in this Court (except for the ex parte watch list application), the father spent time with [X] by agreement with the mother. On 3 November 2016, orders were made providing for the father to spend time with [X] each Monday, Wednesday and Friday from 5 PM to 7 PM, at the mother’s home.
There are some minor allegations in relation to variations of the time between the father and [X]. It is generally agreed that the father spent time with [X] in accordance with the orders for a few weeks, prior to the father disclosing to the mother that he had obtained a (occupation omitted) job in Western Australia.
In (omitted) 2016 the father commenced his (occupation omitted) job and was unable to spend time with [X] in accordance with the orders of 3 November 2016.
On 3 February 2017, orders were made by consent, which provided for the father to spend time with [X] four times per week for up to 7½ hours on each occasion. I find that the father has at all possible times sought to spend time with [X].
Again, there is some dispute about whether the mother has offered additional time between the father and [X], whether the father has spent all time in accordance with the orders, and whether the mother has complied with orders for time. This is referred to elsewhere in these reasons.
There are three incidents when the father alleges that the mother has failed to comply with Court orders.
Firstly, on 7 December 2016 which is referred to at paragraph 45(a) of the father’s trial affidavit. The mother refused the father’s time with [X] between 5 PM and 7 PM, at her home, because the father was running late and Mr B was present in the backyard.
Secondly, on 16 January 2017 which is referred to at paragraph 45 (b) of the father’s trial affidavit. There was a dispute about the father attending the (hobby omitted venue) for [X]’s (hobby omitted) lesson.
Thirdly, in December 2017, which is referred to at pages 48 and 49 of the father’s trial affidavit, there was a dispute about the time [X] could spend at the father’s family Christmas barbecue.
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
This was not an issue in the proceeding. The father’s financial support for the mother and [X] was agreed between the parties prior to the commencement of the trial. Financial support is included in the minutes of proposed consent orders, and includes the father paying for [X] to travel to (country omitted) twice per year. In addition, the father will pay periodic child support in accordance with an administrative assessment.
There was no allegation that either parent had failed to fulfil his/her obligations to maintain [X].
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:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The mother’s case at the commencement of the trial was that [X]’s relationship with her father would not be compromised by [X] living in (country omitted). Her evidence was that because the father was present in Melbourne for two weeks in each month, their relationship would not benefit by her remaining in Melbourne with [X]. She proposed that the father’s relationship with [X] could be facilitated if she lived in (country omitted). He could travel to (country omitted) and spend time with [X] during his time off from work.
Counsel for the mother extensively cross-examined the father about the practicalities and expense of him travelling from (town omitted), in Western Australia to (country omitted).
However, prior to her final address, counsel for the mother conceded that the mother had agreed to [X] remaining in Australia until March 2020. There was no particular reason advanced why March 2020 would be appropriate, other than there may be a some sort of appropriate kindergarten for [X] to commence around that time.
The concession of the mother to delay any proposed relocation for two years is an acknowledgement that there would inevitably be a detrimental effect on the relationship between [X], and her father, if [X] relocated immediately to (country omitted).
The concession demonstrates some insight on the part of the mother about the effect on [X] of her proposed relocation at such a young age.
In terms of [X]’s relationship with her paternal grandparents, that relationship can also be viewed as in its infancy and consolidating. No doubt [X] loves both her paternal grandparents, and enjoys spending time with them. They are very much a part of her experiences with her father. That relationship also requires consolidation, which can only be affected by [X] spending regular and frequent time with her paternal family.
The mother’s evidence about the relationship between [X], and the maternal grandparents was in glowing terms. Obviously [X] has spent considerable time at a very young age in the home of her maternal grandparents in (country omitted), both prior and subsequent to the separation of her parents.
The evidence established that the maternal grandparents, and other family members, have regularly travelled to Australia since (omitted) 2016. They have stayed with the mother and [X] in their home in (suburb omitted).
The proposed minutes of consent orders, permit the mother to travel with [X] to (country omitted) at any time the father is not spending time with [X] pursuant to the orders. Subject to financial constraints, this will enable regular time between [X] and her maternal family in (country omitted).
I consider it likely that the maternal family, will continue to visit the mother and [X] in Australia regularly for relatively extended periods.
I have every confidence that the mother will do her utmost to facilitate and foster the relationship between [X], and her family while she remains in Australia, including frequent electronic communication.
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
Both counsel devoted significant time to this issue.
As previously referred to, counsel for the mother cross-examined the father about the practicalities and the cost of travel from (town omitted), Western Australia to (country omitted). This was directed to the father’s capacity to travel regularly to (country omitted), in the event [X] is permitted to live in (country omitted).
The father was cross-examined about flight schedules and availability between (town omitted), Western Australia and Perth, Perth and Melbourne, Melbourne and (country omitted) and direct flights from Perth to (country omitted).
The father conceded:
i)His employer subsidised his flights to the extent of $450 each direction, a total of $900 for a round trip;
ii)there were a number of flights available to fly from (town omitted), Western Australia to (country omitted) on a reasonably regular basis;
iii)He would like to continue (omitted) employment until [X] was at least of school age;
iv)He was not available to spend time with [X] for a cumulative period of six months each year;
v)He currently had approximately $350,000 cash in the bank;
vi)His Financial Statement sworn on 8 January 2018 was true and correct;
vii)His financial statement demonstrated a current surplus of income over expenditure;
viii)His income and assets were sufficient to meet the costs of travel to and accommodation in (country omitted).
The father’s evidence about possible employment as a (occupation omitted) in Melbourne identified difficulties which would impact on his capacity to travel to (country omitted). These may be summarised as follows:
i)He would be required to undertake rotating shift work of 8 to 12 hour shifts;
ii)The shifts would commence anytime in a 12 hour period and would not necessarily be consistent;
iii)He would not be able to plan with any certainty when he would be rostered off;
iv)He would have limited holidays, the maximum of four weeks per annum to travel to (country omitted).
Counsel for the mother challenged the father about his capacity to relocate to (country omitted) and obtain comparable employment.
The father’s evidence was:
i)He had no desire to live in (country omitted);
ii)If there was no legal impediment to reside in (country omitted), it would be a possible option;
iii)He did not believe his qualifications as a (occupation omitted) would be recognised in (country omitted);
iv)He had made some cursory employment enquiries in 2016, but nothing since then.
I am satisfied that:
i)The father has the financial capacity to travel to (country omitted), if [X] is permitted to relocate to (country omitted);
ii)There is no practical impediment to the father regularly travelling to (country omitted);
iii)Obtaining employment in Melbourne would be detrimental to the father’s capacity to regularly travel to (country omitted).
Counsel for the father submitted that the mother has the financial capacity to remain in Australia, and that of her financial position would not be improved by relocating to (country omitted).
She referred to the financial provision the father has proposed in the minute of proposed consent orders. In summary, the father will provide the mother with the following:
i)Payment of $400 per week until 2022, when [X] will be in grade 1;
ii)Payment of child support estimated at $350 per week
iii)[X]’s child care costs, subject to him receiving the government rebate;
iv)A bond to enable the mother to obtain her own accommodation;
v)A motor vehicle;
vi)[X]’s travel to (country omitted) until 2020, and thereafter a half share of her travel costs.
Additionally, the mother will be entitled to access the Medicare benefits in the event she requires medical treatment in Australia and payment of limited government benefits.
The father’s agreement to pay child care costs for [X] would enable the mother to obtain part-time employment if she was so inclined.
I am satisfied that there is no practical, including financial, impediment to the mother remaining in Australia. The mother’s agreement to defer any proposed relocation is a sensible concession that there is no practical impediment to her remaining in Australia.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
A significant issue for me to determine is the capacity of the mother to provide for [X]’s needs, including emotional needs.
There are two aspects to this issue, namely:
i)The impact on the mother’s capacity to parent if she were to remain in Australia;
ii)The mother’s capacity to facilitate and encourage a relationship between [X], and her father, if she were permitted to relocate [X] to (country omitted).
The impact on the mother’s capacity to parent if she were to remain in Australia
The mother’s case initially proceeded on the basis that she was depressed and unhappy in Melbourne and if she were forced to remain in Melbourne, this would have an adverse impact on her capacity to care for [X].
As a result of her unhappiness, she asserts that she suffered from inertia and inability to get on with her life. She was effectively suffering a state of mental and emotional traction. Counsel for the father submitted that her attitude of doom and hopelessness in Melbourne can be viewed as a self fulfilling prophecy, which the mother embellished for the purposes of litigation.
The mother’s expert evidence as to her problems living in Melbourne was contained in the report of her clinical psychologist, Mr K.[3]
[3] Annexure K 1 to the affidavit of Mr K sworn to 12 January 2018 to the
The mother was referred to Mr K for psychological counselling by her general practitioner in November 2016. She attended 10 appointments between 23 November 2016 and 4 December 2017. As at the date of the report, 4 December 2017, the mother had complained to Mr K that she was suffering from a variety of symptoms including feeling trapped, isolated, helplessness, hopelessness, fearful that the father would take her daughter away while she was sleeping, elevated anxiety and stress levels, difficulty in sleeping, nightmares, teary without reason, loneliness, low self-esteem, fatigue and low motivation. She also reported to him that her social interaction was limited, and she perceived that the paternal grandparents did not help her, despite her having asked for assistance. Furthermore, she felt unable to vent her emotions to friends because the father had hacked into her social media accounts
Mr K stated that the mother presented with symptoms consistent with major depression disorder – mild. He also expressed concerns that [X]’s social development and cognitive development will be negatively affected.
His recommendations were as follows:
It was evident that Mr Kerrison has always been away and his family has very little contact with Ms J’s daughter, Ms J and her daughter are suffering from extreme social isolation over the past year. It is recommended that Ms Capps and her daughter to return to (country omitted), where she and her daughter could receive social and family supports.
Counsel for the father rigorously and forensically cross-examined Mr K. In her final submissions, counsel for the mother conceded, quite properly, that she did not rely on the evidence of Mr K and his diagnosis.
Ms E, in the family report identifies that the mother was teary during the interviews for the family report. She stated:
Ms Capps presented as having some depressive symptoms. She was tearful for much of the interview. Whether she is in Australia or (country omitted), she will need to continue accessing professional support to adjust to her circumstances.
I agree with the submissions of counsel for the father that the mother has embellished her emotional fragility for the purposes of the proceedings. No doubt the position she finds herself in would be difficult to cope with at her age without the immediate support of her family. However, I was left with a distinct impression that the mother thought it would be advantageous to her case to adopt a pessimistic view of her circumstances and take no action to ameliorate her prospects.
Apart from the brief observation of Ms E, there is little objective unbiased evidence as to the mother’s emotional circumstances other than what she has recounted to her psychologist.
As referred to in these reasons, the mother has sought to exaggerate and misinterpreted actions of the father to enable her to present a case of domestic violence. At the conclusion of the trial, despite much evidence of the father’s controlling and coercive nature and the possible risk, he posed to the mother and/or [X], the mother conceded that neither parent poses a risk to [X]. I have similar concerns about the mother’s propensity to exaggerate evidence as to her parental capacity in the event [X]’s residence was to remain in Australia.
Counsel for the mother urged me to find that the mother is an emotionally fragile young woman, and that she is not particularly resilient. This proposition is in direct contrast to her own proposal to remain here for a further two years. That proposal in itself demonstrates that the mother must be sufficiently resilient to remain in similar circumstances for a further two years.
I do not accept the proposition that the mother is capable of facing and dealing with the reality of the situation in a relatively positive manner if she has a finite end to her time in Australia.
Despite experiencing the variety of symptoms referred to in paragraph 144 hereof, the mother’s case was that [X] was healthy, progressing well, meeting her milestones and had a developmentally appropriate relationship with both of her parents. That proposition is difficult to reconcile with the potential for the mother’s parenting capacity to be adversely affected if she is unable to relocate [X]’s residence to (country omitted).
The mother’s capacity to facilitate and encourage a relationship between [X], and her father, if she were permitted to relocate [X] to (country omitted).
The father’s evidence was that the mother could not be relied upon to promote and facilitate a relationship between [X] and himself in the event she were permitted to relocate [X]’s home to (country omitted)
Counsel for the father submitted that I should find that immaturity, lack of insight and lack of responsibility for not prioritising [X]’s right to have a meaningful relationship with her father, has been a feature of the way the mother has viewed the world and conducted the proceedings.
In particular, the mother’s conduct in refusing to return with [X] to Australia in April 2016, upon the breakdown of the relationship, demonstrates that she “was blind to the obvious right of [X] to at least establish, let alone maintain, a meaningful relationship with her father.”
In the Hague proceedings, the mother argued that [X], at that time, had a close and loving bond with her maternal grandparents and extended family and that should be seen as a basis on which [X] should remain in (country omitted). Ironically, she did not consider the fact that [X] had been denied the same opportunity with her own father.
There are a number of examples when the father alleges that the mother has failed to facilitate [X]’s time with him.
These are as follows:
a)7 December 2016, when the mother failed to allow [X] to spend a scheduled time with her father, as the father was running late. At that time the mother’s boyfriend Mr B was present outside in the backyard of the mother’s unit;
b)In January 2017, when there was a dispute about the father spending time with [X] at the pool;
c)In December 2017, when there was a dispute about [X] spending additional time at the father’s family Christmas barbecue.
The father’s overwhelming complaint about the mother’s conduct and propensity not to promote a relationship between [X] and her father is the series of Facebook and Snapchat messages between the mother and her family and friends.
There was a dispute about the circumstances surrounding the father’s accessing the mother’s social media. The father’s evidence was that the mother had failed to log out of Snapchat and Facebook on his iPad and her messages appeared on his iPad. The mother’s evidence was that the father had deliberately hacked into her social media accounts. It was simply not possible for Snapchat to remain open on another device, if the mother herself had used Snapchat on another device in the intervening period.
As there was no expert evidence on this issue, I am unable to make a definitive finding about the circumstances of the father accessing the mother’s social media.
The father’s evidence is that those comments demonstrate the mother’s true feelings about [X]’s relationship with her father.
The series of Facebook and Snapchat exchanges are annexed to the father’s affidavit filed 2 February 2017.
The extracts demonstrate that on 3 November 2016 at around 11 AM, the date and time when the matter was listed before me in Court, the mother had a Facebook conversation with a couple of friends and her father as follows:
Mother - So true though. C u next Tuesday
Maternal grandfather - ??
Friend- OHHH I get it now I was like wait are you coming back on Tuesday
Mother – C U N T
The conversation continued later that day with comments about personality transplants, face transplants, and [X]’s reaction if she started “dating a guy who started treating her the way he’s been treating me. Dickhole”
On 3 November 2016 at 12.28, the mother’s then boyfriend, Mr B, said of the father , “he was just a donor”. At 12.54. A friend of the mother commented “Sperm donor” The conversation continued in a highly disrespectful and derogatory manner.
In February 2016 a Snapchat exchange took place between the mother and Mr B. He was a former neighbour of the maternal grandparents, and the mother had babysat his child a couple of years prior. Mr B and the mother commenced a relationship of some description in the early part of 2016, prior to the mother advising the father that their relationship was over.
Some of the Snapchat conversation occurred in (country omitted) whilst the mother and father were sitting together on a couch, presumably in the home of the maternal grandparents. At the time [X] was five months old.
The exchange reads as follows:
Mother -yeah. I know right, but as far as I’m aware, she is only half his DNA and that doesn’t mean shot
Mr B- pity she is not mine I say
Mother - her heart and soul can be yours
Mr B –Aaw. That’s true. I love her to bits too missing her so much
Mother-I’m sure she is missing you too
Mr B – ha ha. Probably not. Babies forget
Mother – I have to meet the sperm donor and his parents at the park to see [X], but free the rest of the day. I wanted to go try a bra on. Because I’m shrinking was going to go to (shop omitted)
Mr B – ha ha shrinking? Really that is funny. Oh , and the sperm donor bahahaha
Mother – it’s true lol
When cross-examined, the mother professed regret and remorse at the sentiments expressed by her. Her counsel submitted that, whilst the comments were deeply offensive, they need to be seen in the context of the turmoil in the mother’s life at that time. The comments were made well over a year ago, and I should be satisfied “that young people often put stupid, flippant, not thought out comments on social media and they ought not to be treated as an accurate reflection of what my clients current views are of the father.”
During cross-examination the mother sought to characterise the social media stream as venting because she was upset, when in fact she had admitted to the family consultant that she was angry about having to return [X] to Australia.
Counsel for the father submitted that the mother’s posting and sharing disgraceful and contemptuous comments from the Court building, whilst the matter was being determined, is indicative of a the mother’s culture of contempt for the father.
On the other hand, Counsel for the mother urged me to focus on the mother’s compliance with Court orders, offers of additional time including time at (hobby omitted) lessons and the fact that all the evidence supported a finding that [X]’s relationship with her father is positive, she is happy and settled to go with him.
I agree with counsel for the father that the mother’s conduct in posting derogatory and offensive comments and engaging in the Snapchat conversation in the father’s presence, as disgraceful and contemptuous of the father. I do not accept the mother’s anger as justification for such comments. I am not satisfied that the mother would actively encourage and facilitate [X]’s relationship with her father, if she were permitted to relocate forthwith.
However, it is now apparent to the mother that she will not be immediately relocating [X]’s home to (country omitted). On her own case she will be remaining in Australia with [X] for a further two years. I am hopeful that during her time in Australia she will mature and become accepting of the integral role of the father and his family in [X]’s life. If she is able to do so, her prospects and outlook are likely to immeasurably improve.
There is a sense of resignation by the mother that she will remain in Australia for the foreseeable future. I am cautiously optimistic that she may turn her attention to focus on [X]’s right to have a meaningful and regular relationship with her father. As the mother matures, she will be more resilient, able to cope with adversity and setbacks and take responsibility for her past actions. I am hopeful that she will accept that [X] will flourish with both parents actively involved in her life and seek a cooperative relationship with the father and paternal family, rather than treating them as adversaries.
There were no adverse allegations about the capacity of the father or either set of grandparents, to provide for [X]’s needs.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
This is not a relevant factor in relation to [X]. Any such relevant factors in relation to the parents have been addressed in these reasons.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Apart from the presently conflictual parental relationship, both parents are responsible and competent parents to [X].
There was no evidence critical of either parent in this regard.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
The mother alleges that the father has perpetrated domestic violence.
Particulars of her allegations are set out in annexure C 18 to her trial affidavit affirmed 18 December 2017. That annexure is a copy of the mothers further and better particulars filed in the course of her application for an intervention order against the father.
She alleges in that document that she has been subjected to:
i)Controlling and coercive behaviour;
ii)Financial control;
iii)Harassment via text messages;
iv)Intrusive logging into her social media accounts to intimidate and harass;
v)Physical intimidation at the park in November 2016
vi)Threats to take her motor vehicle;
vii)Refusing to assist her to make an insurance claim in relation to the motor vehicle.
Counsel for the father vigorously cross-examined the mother about these allegations. I will address each of the allegations.
Controlling and coercive behaviour
In her affidavit of July 2016 at paragraph 2, the mother states in relation to the Hague proceedings:
“he is only demanding me to return because he wants to control me”
Counsel for the father put to the mother the proposition that she has cast interactions with the father, that are adverse to her, as controlling.
The mother attempted to justify her position on the basis that the father had initially consented to her remaining in (country omitted) to obtain the medical treatment she required, and that his change of attitude, insisting that she returned to Australia, could be viewed as controlling.
The mother reluctantly conceded that there was a significant difference between the father agreeing to her remaining in (country omitted) for medical treatment, and indefinitely remaining in (country omitted) permanently.
I do not find that the genesis of father’s actions in commencing the Hague proceedings and seeking the return [X] to Australia was his desire to control the mother. Given the manner in which the relationship was terminated by the mother, his actions in seeking the return of [X] to Australia are entirely understandable.
Financial control
It is common ground that the father has provided financially for the mother and [X] since [X]’s birth.
The father’s evidence in relation to financial support is as follows:
i)During 2016, when the mother and [X] were in (country omitted), he provided her with a debit card and paid $200 per week into the account;
ii)Since 8 December 2016 he has paid the following:
a.$400 per week;
b.rent of $200 per week until October 2017, and thereafter $250 per week;
iii)Provided her with a Toyota (omitted) motor vehicle;
iv)Paid for servicing of the vehicle;
v)Paid credit debts for the mother;
vi)Purchased birthday and Christmas presents for the mother and [X];
vii)Paid costs for [X] including medical supplies, weekly (hobby omitted) class, birthday party, Christmas photos with Santa, clothing and bathers;
viii)Paid for [X]’s travel to (country omitted) at Christmas.
The mother did not dispute the father’s payment of these expenses.
The mother complains that the father has alleged she has purchased cigarettes, alcohol and energy drinks and on occasions, he has requested receipts from her. The tenor of her evidence is that the father has commented on the nature of the mother’s expenditure, which she finds offensive. She is also concerned that the father supposedly believes he has the right to comment on her purchases and have financial control over her. She is clearly unhappy about being financially reliant on the father.
In my view the father has provided, and will continue to provide appropriate and adequate financial support for the mother and [X]. The consent orders submitted by the parties include significant financial provision for the mother and [X]. Obviously, as the mother has agreed to the financial package, she would consider it appropriate and adequate for the needs. I do not find that the father’s financial provision for the mother and [X] constitutes financial control.
Harassment via text messages
The main complaint of the mother was that the father had sent excessive text messages to her between October 2016, when she returned to Australia and February 2017, when interim orders were made pertaining to the spend time with arrangements for [X].
During the period referred to in the preceding paragraph the father had not seen [X] for approximately 6 months. The mother’s response was that she had appointments and arrangements to meet friends and did not have time to accommodate the father’s requests. It was put to her that she prioritised her friends over [X] spending time with her father.
On 7 December 2016, the father was due to spend time with [X] from 5PM to 7 PM. The evidence of both parents was that the father was running late and he anticipated arriving at the mother’s home at 5:30PM. There are a series of text messages to this effect. He in fact arrived at approximately 6 PM and the mother did not facilitate time between the father and [X].
When cross-examined, it became apparent that on 7 December 2016, the mother’s boyfriend, Mr B was in the backyard of the mother’s home when the father arrived. The father did not know of Mr B’s presence on that day.
I find the evidence of the mother in this regard to be completely unconvincing. It is entirely expected that the father would want to see [X] upon her arrival in Australia, after an absence of six months in (country omitted). The mother’s explanations why she did not facilitate time are unsatisfactory. Similarly, her explanation as to why the father could not see [X] for an hour, on 7 December 2016 is unconvincing. Clearly it suited the mother to refuse time on this occasion, as Mr B was in the backyard during this time.
Intrusive logging into social media accounts to intimidate and harass
This allegation is referred to at paragraphs 162-176 hereof.
Physical intimidation at a park on 14 November 2016
On 14 November 2016 the mother and the father met at a park to enable [X] to spend time with her father. The parties had previously met in parks to facilitate the father’s time with [X].
On this particular occasion, the father arrived with a print out of the mother’s social media comments and confronted her with her actions. In her affidavit of 28 November 2016 the mother states that on that day she apologised to the father for the social media posts. She did not refer to the father being angry. In the November affidavit she stated:
I attended the local park with [X] to see Mr Kerrison one day in early November. I had shared a meme on Facebook as a way of expressing my anger at having to return to Australia. Mr Kerrison confronted me about the meme and demanded an explanation, and he said he would never stoop so low and that I had never tried to resolve things between us for [X]’s sake. I apologised for the meme. He said that it was not okay for [X] to be raised without both parents together. He has previously demanded that we go to relationship counselling. Mr Kerrison then told me that he regretted having a child with me, and that he should never have done that.
Her evidence, whilst being cross-examined, was that the episode was “more of just a disagreement between us.”
The evidence in both the affidavit of 28 November 2016 and the mothers oral evidence is in stark contrast to her affidavit of December 2017:
I was upset. He was angry. I told him I was angry and upset about returning to Australia. I was also upset the Mr Kerrison had taken the (occupation omitted) role in W.A. and not told me. [X] started screaming because she was tired. I told Mr Kerrison to back off as it was becoming abusive.
Counsel for the father suggested to the mother:
i)Despite her alleged apprehension about the father’s behaviour, some 9-10 days later she permitted the father to take [X] to a (hobby omitted) class.
ii)She continued to be in attendance when [X] spent time with her father.
iii)Her description of the event changed over time and became more dramatic.
In evidence during cross-examination the mother conceded that when she allegedly accused the father of being abusive, his response was:
“I’m not abusing you and you know, and walked off, put his arms up like that”
I agree that the mother’s description of the incident appears to have been embellished with the progression of time and her subsequent actions are inconsistent with her professed fear of the father. I do not find that the incident constitutes family violence.
Threats to take her motor vehicle
Upon her return to Australia in October 2016, the father provided the mother with the use of a Toyota (omitted) motor vehicle registered in his name.
The father’s evidence in relation to this dispute is:
i)Prior to the interim intervention order being obtained by the mother, he had requested her to make the car available to be serviced. The mother refused and the service was well overdue.
ii)On 4 March 2017 he contacted (omitted) police for assistance to arrange for the vehicle to be serviced, without breaching the intervention order
iii)The police contacted the mother and the mother agreed to provide the father with access to the motor-vehicle the following day.
iv)On 6 March 2017 the mother attended the father’s home in the vehicle for change over. When the vehicle was at his home he placed a steering wheel lock on it, to ensure she did not remove the vehicle to enable it to be serviced.
v)The father did not wish to enter into a discussion with the mother about the motor-vehicle, as he was concerned that any discussion would be a breach of the intervention order.
vi)The vehicle was returned to the mother within seven days, having been serviced, including replacement of the part.
The mother’s evidence sought to characterise the incident as one of controlling and coercive behaviour on the part the father. Counsel for the father challenged the mother’s version of the incident. There was nothing in the mother’s evidence that persuades me that the father’s actions were coercive or controlling.
The mother’s evidence was that she was also fearful of the father hurting her and [X], breaking into her house and removing [X] from her care. These fears apparently commenced after April 2016, after the parties relationship ended, and the mother had commenced a relationship with Mr B.
The mother reported these fears to her psychologist. She acknowledged to her psychologist, the fears were irrational.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the Court in, or in proceedings for, the order;
(v) any other relevant matter
On 15 February 2017 the mother applied for an Intervention Order against the father alleging harassment, control, financial abuse and stalking.
On 30 October 2017 the mother obtained a Final Intervention Order in the Broadmeadows Magistrates’ Court. The order names the mother and [X] as affected family members and is for a period of five years. The father consented to the order without admission.
As previously referred to in these reasons, despite the serious and varied allegations of the father’s abusive behaviour towards the mother, in her final submissions, Counsel for the mother conceded that the father did not pose any threat whatsoever to [X]. Having regard to the relevant evidence, that concession was entirely appropriate and I find that the father does not pose any risk to [X].
The necessity for a five-year intervention order against the father, with [X] named as an aggrieved family member, is entirely and utterly inconsistent with the submissions of counsel for the mother.
There was no cogent evidence whatsoever that the father posed a risk to [X] or the mother to warrant any form of intervention order, let alone an order for five years.
It is apparent that the mother considered it would be advantageous to her case to be permitted to relocate [X] to (country omitted), to portray the father as a perpetrator of domestic violence.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In the vast majority of parenting cases, it is preferable that orders are made to minimise future proceedings.
As [X] is only 2 ½ years old and each parent seeks that she lives in different countries, it is challenging to make final orders.
Having considered the evidence, I have determined that the orders least likely to result in further litigation would be to permit the mother to relocate [X] to (country omitted) in the January prior to [X] commencing primary school.
Section 60CC(3)(m) any other fact or circumstance that the Court thinks is relevant
In her opening address, counsel for the father submitted that there were several pertinent factors relevant to the question of whether or not [X] should be permitted to relocate to (country omitted).
These are as follows:
i)The nature of [X]’s relationship with her father;
ii)Whether the father poses a risk to [X];
iii)Would [X] benefit from a meaningful relationship with both parents;
iv)Is it reasonably practicable for the mother to remain in Australia, and the effect on her:
a.Parenting capacity;
b.Emotional health;
c.Her financial and practical circumstances.
I have addressed:
i)The nature of [X]’s relationship with her father at paragraphs 72, and 85 - 93 hereof;
ii)Whether the father poses a risk to [X] at paragraphs 74-77 hereof;
iii)Whether [X] would benefit from a meaningful relationship with both parents at paragraphs 68 - 73 hereof;
iv)Whether it is reasonably practicable for the mother to remain in Australia and the effect on her:
a.Parenting capacity at paragraphs 141 - 154 hereof;
b.Emotional health at paragraphs 141 - 149 hereof;
c.Financial and practical circumstances at paragraphs 134 - 138 hereof.
Equal shared parental responsibility
Section 61DA provides, 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. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA of the Act provides as follows:
(1) When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) 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.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the Court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1) … if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the Court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the Court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) … if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the Court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the Court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the Court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the Court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a Court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the Court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the Court considers relevant.
Note:Paragraph (c) reference to future capacity – the Court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Parental Responsibility
Both parents seek an order that the parties retain equal shared parental responsibility for [X]. The minute of proposed consent orders submitted by the parties proposes that the parents have equal shared parental responsibility for [X].
That statutory presumption of equal shared parental responsibility should apply in this case. There is no evidence to rebut the presumption and indeed, neither party sought to do so. I intend to make orders in accordance with the minute of proposed orders submitted, so that the parents retain equal shared parental responsibility for their daughter.
Statutory Pathway
Having now determined that it is in the best interests of [X] that there be an order for equal shared parental responsibility, in the absence of consent of the parents, I would now be required to address the statutory pathway set out in s.65DAA(1)-(5).
The parents have agreed upon and have submitted a minute of consent order as to [X]’s living and spend time with arrangements. The spend time with arrangements cater for if the mother is permitted to relocate to (country omitted) with [X], and in the event the mother is not permitted to relocate to (country omitted) with [X].
I am of the view that the arrangements proposed by the parties are in [X]’s best interests, and are appropriate and reasonably practical in the context of the relevant statutory framework and authorities.
I intend to make orders in accordance with the proposals of the parties, subject to necessary amendments to provide for the timeframe I consider appropriate for [X]’s relocation to (country omitted).
Considerations and Conclusion
An application by a parent to relocate requires the Court to balance:
a)A parent’s right to move and live where they choose, to enable a parent to progress and pursue a new life and employment opportunities;
b)The impact any such move would have on the child’s relationship with both parents.
Families such as this, which involve such a young child, pose a particularly difficult task. Any decision will of necessity impact on the time the child is to spend with a parent with whom she does not live, and the nature of the relationship between the child and the non-resident parent.
Similarly, any decision will impact on the mother, and in particular, in which country she may live.
Although she is not required to provide reasons for the proposed relocation, the mother’s evidence and submissions refer to various reasons why she seeks to relocate with the child to (country omitted). These may be summarised as follows:
i)[X]’s relationship with her father is close and developmentally appropriate to enable a relocation to (country omitted);
ii)She is capable of facilitating and encouraging a relationship between the father and [X] if she were permitted to relocate;
iii)If she were not permitted to relocate [X]’s residence to (country omitted), then her capacity to promote a relationship between [X] and her father may be compromised as she may well feel resentful;
iv)The proposals for the father’s time with [X] in (country omitted) are achievable financially and practicably;
v)The paternal family is neglectful, dismissive and unsupportive of her and [X]’s needs in Melbourne;
vi)The father is present in Melbourne and available to see [X] at best for just under two weeks per month;
vii)Her capacity as primary carer to parent [X] would be compromised, in the event the wish to relocate is not granted, as her disappointment and resentment would impact on her parenting capacity;
viii)She seeks the support of the maternal family and her friends in the community where she has always lived in (country omitted);
ix)It is her desire to train as a (occupation omitted) and thereby enhance her opportunities in life;
x)As a (country omitted) resident, she does not qualify for deferred tertiary of the payment and the cost of upfront fees for tertiary education are prohibitive;
xi)The father had the capacity to relocate to (country omitted), but chose not to contemplate that option.
The father’s opposition to the mother’s relocation may be summarised as follows:
i)[X]’s relationship with him is in the early stages and [X] needs to remain in Australia to enable that relationship to be consolidate;
ii)The mother’s capacity to promote a relationship between the father and [X], if [X] resided in (country omitted), is questionable and compromised;
iii)The mother can make an attempt to get on with her life in Australia if she does not have the prospect that she may go back to (country omitted) in the immediate or specified future.
iv)The father has made generous financial provision for the mother and [X] until 2020 , which enables the mother to enjoy a reasonable standard of living and financial independence;
v)The mother has the capacity to embark on tertiary education in Australia, although it may not be the course choice;
vi)There is no certainty that [X]’s relationship with her father would be sufficiently consolidated by March 2020, which would justify an order permitting the mother to relocate to (country omitted) at that time.
In the family report and in her initial oral evidence, Ms E expressed the view that the best interests of [X] would be met by her remaining in Australia and for the father to have significant and direct involvement in her life.
Ms E was at first unequivocal that [X] should stay in Australia to build her relationship with her father.
However Ms E’s oral evidence oscillated about whether it was in [X]’s best interests for her to remain in Australia indefinitely, or whether she should be permitted to live in (country omitted) at a later date.
Upon questioning by me, Ms E agreed that a preferable approach would be for an order that the mother remain in Australia, and if circumstances changed in the future, then the mother could then make an application to the Court. Her preferred approach was consistent with the proposition that it would be in [X]’s best interests for certainty in her living arrangements.
However, when cross-examined by counsel for the mother, and upon her being advised of the proposed agreed arrangements for [X] to spend time with her father both in Australia and (country omitted), Ms E agreed with Counsel for the mother
Counsel for the mother put to Ms E the agreed proposals for [X] to spend time with her father. In response to a question by me as to whether Ms E still stood by her recommendation at paragraph 88 of the family report, she stated:
“Having had a couple of things that I’ve heard in this Court room now, I have some doubt about that. And having read these – also read these proposals, that seems like a more encouraging picture for her being allowed to relocate. But that still depends what happens in the next 12 months, from my point of view.”
In her final address, Counsel for the father submitted:
“Your Honour has no proper evidence, or consideration from Ms E as to the developmental effect on [X] as to a disruption to her relationship. Ms E was only speculating or making comments about [X]’s capacity to maintain a memory of her father and the like, and there is no magic in numbers, she said, but Your Honour needs to have more than an idea about what may likely happen if Your Honour is going to make a self executing order. Your Honour has to say that – well, we have to have some predictive capacity to consider the future in two years time, and we just don’t”.
That submission refers equally to the mother being required to remain in Australia for an indefinite period.
My task is to weigh the competing proposals and make a decision, having regard to the best interests of [X] and the mother’s right to freedom of movement and to lead her life as she thinks sees fit.
As previously referred to in these reasons, this is an extremely difficult task in the context of an international relocation involving such a young child.
Having considered all the evidence referred to in this judgment, I am of the view that [X]’s best interests are served by her remaining in Australia until the commencement of her schooling in January 2021, and thereafter permitting the mother to relocate [X] to (country omitted).
I intend to make orders accordingly.
I certify that the preceding two hundred and fifty three (253) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 27 April 2018
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Costs
0
7
2