Koyroyshs & Koyroyshs

[2020] FamCA 626

FAMILY COURT OF AUSTRALIA

KOYROYSHS & KOYROYSHS [2020] FamCA 626

FAMILY LAW – PARENTING – Relocation – where the mother seeks to relocate with the child to City Q in Country D or alternatively Tasmania – where Country D is a state party to the Hague Convention but there is no system of registration of foreign court orders and there are practical difficulties associated with enforcement under the Convention – where travel to City Q is very difficult from Australia – where the outbreak of the COVID-19 pandemic has significantly impacted international travel and would require quarantine – where the mother purchased a property in Tasmania for investment purposes – where the mother’s inability to promote the child’s relationship with the father and her mental health militate against placing the child primarily in the mother’s care at a long distance from the father – where it was found to not be in the best interests of the child to relocate to Country D or Tasmania – where the parties were in agreement for the child to live with the mother if orders were made for the child to reside in the Sydney area – where the presumption of equal shared parental responsibility applies and has not been rebutted in the best interests of the child – where orders for equal shared parental responsibility were made – where the child is to live with the mother and to spend substantial and significant time with the father – where the father and the Independent Children’s Lawyers seek a restraint on both parties relocating beyond a defined radius – where parties restrained from relocating the child more than 30 kilometres from the location of the child’s preschool or school.

FAMILY LAW – PROPERTY – short marriage of two and half years – where the father sought orders for release to him of the balance of funds presently held in a joint account, a payment of $50,000 from the wife, secured by an order for the sale of a Tasmanian property if the wife does not comply – where the mother sought orders for the property to be divided between the parties 40% to her and 60% to the father, with a cash payment from the father to effect the division – where father made substantial financial contributions at the commencement of cohabitation – where the father is self-employed and owns several properties – where the mother is unemployed but in receipt of income from a tenanted property in Tasmania and has financial support from her parents – where mother received distributions pursuant to court orders during the proceedings – where an adjustment was made in favour of the wife for future needs – where orders were made for overall division of 73% to the father and 27% to the mother.

Family Law Act 1975 (Cth) ss 4, 4AB, 60CA, 60CC, 61C, 61DA, 65D(1), 65DAA, 65DAB, 65DAC, 75, 79, 80, 81

Adamson & Adamson (2014) FLC 93–62
AMS v AIF (1999) 199 CLR 160
Banks & Banks (2015) FLC 93-637
Bevan & Bevan (2013) FLC 93-545
Bondelmonte v Bondelmonte (2016) 259 CLR 662
Boyce & Boyce [2015] FamCAFC 60
Chamness v Hanson (2009) FLC 93-407
Cox & Pedrana (2013) FLC 93-537
Damiani & Damiani (No. 2) [2009] FamCAFC 215
Dundas & Blake (2013) FLC 93-552
Fitzroy and Fitzroy [2009] FamCA 954
Franklyn & Franklyn [2019] FamCAFC 256
Froth & Schneider [2011] FamCA 378
G & G (2000) FLC 93-043
Godfrey & Sanders [2007] FamCA 102
Goode & Goode(2006) FLC 93-286
Heath & Hemming (No 2) [2011] FamCA 749
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
In the Marriage of A (1998) FLC 92-800
In the Marriage of Burke (1981) FLC 91-055
In the Marriage of Crapp and Crapp (No 2) (1979) FLC 90-615
JEL & DDF (2001) FLC 93-075
Jollie & Dysart [2014] FamCAFC 149
Jong & Yeng [2014] FamCAFC 156
Kowalski and Kowalski (1993) FLC 92-342
Lovett & McGregor (2019) FLC 93-935
M & S (2007) FLC 93-313
M v M (1988) 166 CLR 69
Malcolm & Monroe and Anor (2011) FLC 93-460
Maldera & Orbel (2014) FLC 93-602
Manolis & Manolis(No. 2) [2011] FamCAFC 105
Marvel & Marvel (2010) 240 FLR 367
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Morgan & Miles (2007) FLC 93-343
MRR v GR (2010) 240 CLR 461
Norbis v Norbis (1986) 161 CLR 513
Norman & Norman [2010] FamCAFC 66
Robertson & Sento [2009] FamCAFC 49
S & S [2004] FamCA 201
Sampson v Hartnett (No. 10) (2007) FLC 93-350
Sayer & Radcliffe& Anor (2012) 48 Fam LR 298
Sieling & Sieling (1979) FLC 90-627
Sigley & Evor (2011) 44 Fam LR 439
Stanford v Stanford (2012) 247 CLR 108
Tibb & Sheean (2018) 58 Fam LR 351
U v U (2002) 211 CLR 238
Zahawi & Rayne [2016] FamCAFC 90

APPLICANT: Mr Koyroyshs

RESPONDENT: Ms Koyroyshs

INDEPENDENT CHILDREN’S LAWYER: Jennifer Weate & Associates

FILE NUMBER: SYC 2276 of 2016

DATE DELIVERED: 6 August 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: 9 – 13 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Othen

SOLICITOR FOR THE APPLICANT: First Choice Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Mahony

SOLICITOR FOR THE RESPONDENT: Consort Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Abdelraheem

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jennifer Weate & Associates

Orders

Parenting

1. All previous parenting orders in relation to B born … 2015 (referred to as “the child”) be discharged.

Parental Responsibility

1. That Mr Koyroyshs (“the father”) and Ms Koyroyshs (“the mother”) (collectively known as “the parties”) have equal shared parental responsibility for the child.

Schooling

1. The child remain at her preschool, which she attends as at the date of these Orders, until her primary schooling commences in 2021.

2. The child commence primary school in January 2021 and in the event the parties fail to come to an agreement as to which school the child enrols in prior to 31 August 2020, the parties shall proceed as follows:

   (a)       The mother will nominate three primary schools at which the child may be enrolled, provided that none of the schools nominated be private schools unless the father consents in writing;

   (b)       The father will nominate one of the three schools within seven (7) days of receipt, failing which the mother nominate one of her three; and

   (c)       The parties each shall do all acts and things and sign all documents necessary to cause the child to be enrolled in the school the father has nominated or in the absence of the father’s nomination, the school as nominated by the mother.

Live with

1. The child live with the mother.

2. Both parties are restrained from relocating the child more than 30 kilometres from the location of the child’s current preschool or her school as agreed between the parties or as selected in accordance with these Orders.

Spend time with and communication with the child

1. The father spend time with the child until the commencement of school in 2021 as follows:

   (a)       From the date of these Orders until 30 September 2020, each Tuesday and Thursday from 10:00 am to 5:00 pm and each alternate weekend from 10:00 am Saturday until 5:00 pm Sunday.

   (b)       From 1 October 2020 until 31 December 2020 each Tuesday and Thursday from 10:00 am to 5:00 pm and each alternate weekend from 10:00 am Friday to 5:00 pm Sunday.

   (c)       From 1 January 2021 each week from 10:00 am Tuesday to 10:00 am Wednesday and each alternate weekend from 10:00 am Friday to 5:00 pm Sunday.

2. From the commencement of school in 2021 the father spend time with the child as follows:

   (a)       In week 1, each alternate weekend from the conclusion of school Thursday to the commencement of school the following Monday;

   (b)       In week 2, from the conclusion of school each alternate Thursday to the commencement of school Friday; and

   (c)       One half of all school holidays as agreed to between the parties and failing agreement the first half in 2021 and each alternate year thereafter and the second half in 2022 and each alternate year thereafter.

3. If the child is not already spending time with the father, and notwithstanding any other Order the child is to spend additional time with the father as follows:

   (a)       On Christmas Day, at such times as agreed between the parties and failing agreement, between 9:00 am on Christmas Eve to 6:00 pm Boxing Day in odd-numbered years commencing 2020 and the father’s time be suspended between 9:00 am on Christmas Eve to 6:00 pm on Boxing Day in even-numbered years commencing 2021;

   (b)       On New Year's Eve, at such times as agreed between the parties and failing agreement, between 2:00 pm on New Year's Eve until 6:00 pm on 1 January in odd-numbered years commencing 2021 (New Year’s Eve 2021) and the father’s time be suspended between 2:00 pm on New Year's Eve until 6:00 pm on 1 January in even-numbered years commencing 2020 (New Year’s Eve 2020);

   (c)       The father’s time is suspended on Country D … New Year each year from 10:00 am to 6:00 pm with the child to spend such time with the mother.

   (d)       On Father's Day from 9:00 am to 5:00 pm and the father's time be suspended between 9:00 am to 5:00 pm on Mother's Day;

   (e)       On the father's Name Day being … December, at such times as agreed between the parties and failing agreement from 4:00 pm to 8:00 pm on weekdays or 9:00 am to 5:00 pm on weekends;

   (f)        On the child's Name Day being … November, at such time as agreed between the parties and failing agreement from 4:00 pm to 8:00 pm on weekdays or 9:00 am to 5:00 pm on weekends;

   (g)       On … Easter at such times as agreed between the parties and failing agreement from 6:00 pm Thursday on the night before Good Friday to Easter Sunday at 10:00 am in even-numbered years commencing 2020 and the father’s time be suspended from 6:00 pm Thursday on the night before Good Friday to Easter Sunday at 10:00 am in odd numbered years commencing 2021; and

   (h)       At such other times as agreed between the parties.

4. The child communicate with each of the parties when she is not in their care as agreed between the parties and failing agreement via Skype, telephone or other electronic communication at 6:00 pm on each Wednesday and Sunday and as otherwise requested by the child. 

5. Neither party will unreasonably prevent the child from communicating with the other parent, as stipulated in Order 10, and each parent party will facilitate at all times the child’s communication with the other party in accordance with these Orders.

Changeover

1. Changeover take place at all times in accordance with all applicable government social distancing requirements:

   (a)       at the child’s school; or

   (b)       if the child is not at school, unless otherwise agreed in writing by the parties, changeover take place as follows:

   (i)The father collects the child at the commencement of his time with the child from the McDonalds Restaurant closest to the mother’s residence; and

   (ii)The mother collects the child at the conclusion of the father’s time with the child from the McDonalds Restaurant closest to the father’s residence.

Conduct

1. The parties are restrained from striking the child or otherwise physically disciplining the child.

2. Neither party denigrate the other party or any other future partner, family member or friend whilst in the presence or hearing of the child or allow, with their knowledge, a third party to do so.

3. Each party will take all necessary steps to encourage and foster the child’s relationship with the other party.

4. That the mother and father are restrained from permitting the child to be in the presence of or within earshot of any third party who engages in discussing details of these proceedings or parenting arrangements with the child and shall take all necessary steps to immediately remove the child from such a situation.

Travel

1. Both parties be permitted to take the child interstate during the time that the child is in their care provided the travelling party has given the other party 30 days written notice of the proposed travel. 

2. Unless otherwise agreed between the parties in writing:

   (a)       The mother and father, by themselves, their servants or their agents are restrained from removing or attempting to remove the child from the Commonwealth of Australia.

   (b)       The mother is restrained from obtaining a Country D passport for the child unless the father has consented in writing.

3. The Court requests that the Australian Federal Police place the name of the child, B (born … 2015) on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia until the child attains the age of 16 years.

4. The Marshal and all offices of the Australian Federal Police and the police forces are requested and authorised to give effect to these Orders.

Communication

1. Within seven (7) days of the date of these Orders both parties do all acts and things to subscribe to the application known as “Our Family Wizard” and each pay their own costs for the application and conduct all communication regarding all matters relevant to the child using this application unless otherwise provided in these Orders or otherwise agreed between the parties.

2. Each parent will keep the other informed of:

   (a)       Their mobile telephone number and home address within 48 hours of the change occurring. 

   (b)       The names and addresses of treating medical or other health practitioners who treat the child. 

   (c)       any serious medical condition or significant health issue or significant injury suffered by the child, as soon as reasonably possible but within 24 hours, shall notify the other parent of and provide the other parent with full details of the said illness, medical condition or injury including but not limited to medical certificates and details (including contact details) of the medical professional attended upon.

3. The parties communicate by telephone for all matters of an urgent nature regarding the child.

4. The mother and father are restrained from sending each other text messages or other correspondence of, or otherwise communicating in, a derogatory or denigrating nature.

Other matters

1. The mother continue to engage with her psychologist, Ms R, for the purpose of facilitating time arrangements and co-parenting arrangements between the father and the child, including implementing treatment recommendations, such as medications, until the psychologist forms the view the therapy is no longer required.

2. The mother take all necessary steps to enrol in and undertake to completion a Triple P parenting program.

COVID-19

1. At all times, both parties shall take all necessary steps to comply with any state and federal government orders and directions made by reason of the COVID-19 pandemic, including maintaining appropriate social distancing guidelines.

2. Without prejudice, the father may at any time determine at his sole discretion that by reason of the COVID-19 pandemic, including government restrictions, he is unable to spend any time with child specified in these Orders.

3. In addition to any statutory obligations for consultation to reach consensus about major long-term issues in relation to the child, both parties shall use their best endeavours to communicate regularly by phone, text message, email or other means, to seek agreement on the management of issues affecting the child arising from the COVID-19 pandemic.

Disputes or Variations

1. The process to be used for resolving disputes about the interpretation, implementation or enforcement of Orders 1 to 29 shall be as follows:

   (a)       The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) (“the Act”) or by the Commonwealth Attorney General; or

   (b) The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.

2. Before an application is made to a court for a variation of these Orders to take account of the changing needs or circumstances of the child or of the mother or the father:

   (a) The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Act or by the Commonwealth Attorney General; or

   (b) The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.

3. Pursuant to sections 65DA(2) and 62B of the Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

Property

1. That the parties do all acts and things and execute all documents so as to transfer the balance of monies held in the ANZ Bank Account jointly held in the names Mr Koyroyshs and Ms Koyroyshs, being Account Number …78, as $243,238 to the father and $209,046 to the mother.

2. Except as otherwise provided in these Orders, the parties are each declared the sole owners in equity and at law, to the exclusion of each other, to all items of property and financial resources, including furniture, jewellery, household items, choses-in-action, motor vehicles, money in bank accounts and superannuation entitlements held in their respective names, possession or control as at the date of these Orders.

3. Subject to these Orders, the parties are to remain solely liable to the exclusion of the other in respect of any debts, liabilities or claims held in their respective names, possession or control and each party shall indemnify the other and keep the other so indemnified in respect of any debts, liabilities or claims connect with or arising from any assets, entities or liabilities retained by that party.

4. In the event that either party refuses to do any act or thing or sign any document necessary to give effect to these Orders, a Registrar or Judge of the Family Court of Australia at Sydney is appointed pursuant to section l06A of the Act to do any such thing or execute any such document at the cost of the defaulting party.

5. If any party seeks or presses an order for costs, an appropriate application to the Court may be made within 28 days of today’s date (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my Chambers. If no such application is made within the time period specified, no order will be made as to costs.

IT IS NOTED THAT

(A)Any application as to costs will be dealt with by way of written submissions, unless the parties request to be heard orally. 

(B)The mother is liable to pay an amount equivalent to one half of the fees, including GST, of the single expert Dr S.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2276 of 2016

Mr Koyroyshs

Applicant

And

Ms Koyroyshs

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. These proceedings between the applicant father, Mr Koyroyshs (“the father”) and the respondent mother, Ms Koyroyshs, (“the mother”) concern both parenting and property issues.

2. A central issue in the parenting proceedings is relocation. The mother seeks to relocate to Country D, or alternatively Tasmania, with the child, B, born … 2015, presently five years of age (“the child”). According to the evidence, either relocation would have a significant impact on the child’s relationship with the father, although a relocation to Country D would raise greater difficulties than Tasmania.

1. The property dispute is quite narrow. The father seeks a result that would see the assets divided about 89% in his favour and the wife argues they should be divided 40% in her favour.

Background

1. The father was born in Australia on … 1975 and is currently 45 years of age.

2. The mother was born in Country D on … 1982 and is presently 38 years of age.

3. From 1997 until … 2009, the father was employed by T Pty Ltd (“T Pty Ltd”).

4. In May 2003, the father purchased a property situated at C Street, Suburb D (“the Suburb D property”) for the sum of $540,000 subject to a mortgage.

5. The mother commenced living in Australia in 2005 to attain a degree at O University on a student visa.

6. In February 2006, the father purchased a unit situated at 4 U Street, Suburb N in Queensland (Folio Identifier …) for approximately $185,000.

7. In 2008, the father purchased a property at 2 U Street, Suburb N in Queensland (Folio Identifier …).

8. In March 2009, the father was made redundant from his position at T Pty Ltd. He received a severance payment of about $240,000 which he used to discharge the mortgage secured against the Suburb D property. The property was thereafter unencumbered.

9. In or about 2010, the father opened a business which sells consumer products known as W Pty Ltd (ACN …) with a business partner, namely Mr X. The business was operating at the date of final hearing. While the father is the sole director of the company he and his business partner are equal shareholders.

10. In late 2010, the parties started dating.

11. In or about 2011, the father was self-employed. He was hired as a contractor working for T Pty Ltd.

12. In September 2011, the mother claims she borrowed USD33,800 from her parents to assist with a deposit for purchase of a property and renovations.

13. In October 2011, the mother purchased a two bedroom unit in Suburb F at E Street, Suburb F (“the Suburb F property”) for $310,000 subject to a mortgage of $270,000. The farther contends she purchased the property in or about October 2012.

14. In or about 2013, the father incorporated a company, M Pty Ltd (ACN …) of which he is the sole shareholder and director. The company’s primary contract is with T Pty Ltd.

15. On 11 January 2014, the parties married and commenced cohabitation in the mother’s Suburb F property. At this point in time the mother worked full-time at Company Y and earned $74,500.

16. In August 2014, the father sold the Suburb D property for $757,709. According to his evidence he transferred $757,709 into his ANZ Online Saver Account …83, which he said already held $150,000 of his savings at that time. The documents tendered by the husband do not bear out this version. The bank statement for account …83 shows the deposit of $757,709.45, into the account on 7 August 2014, with $757,704.79 being withdrawn to account …25 on 11 August 2014 (Exhibit “B”, Tender Bundle to His Trial Affidavit filed 4 November 2019, p. 111). However, the credit balance of account …83 on 6 August 2014 was only $4,439.34, not $150,000. His evidence did show however that he had $138,575.39 as at 29 January 2014 in an ANZ Progress Saver Account …97, from which I infer the husband had approximately $150,000 in savings by August 2014, but not held in ANZ Online Saver Account …83.

17. The mother fell pregnant with the child in 2014 and took maternity leave just before Christmas 2014.

18. On … 2015, the child was born.

19. On or about 22 April 2015, the father established a company with three friends known as Z Pty Ltd (ACN …). He is one of four directors of the company and a 25% shareholder. According to the father the company makes little to no profit.

20. The parties travelled to and from Country D with the child during the period of May to August 2015.

21. On 21 August 2015, $473,849.39 was deposited into the husband’s AB Bank Account …95, followed by a further deposit of $470,000 on 26 August 2015.  

22. According to the mother on 6 October 2015 she listed the Suburb F property for sale. The father contends she did so in or about August 2015.

23. The mother travelled to and from Country D with the child again during the period October to November 2015.

24. There were two withdrawals of $485,000 on 26 and 30 November 2015, from the husband’s AB Bank Account …95, which were paid into two savings accounts at P Bank earning higher interest, one held by the wife and the other by the husband.

25. In February 2016, the mother returned to work after maternity leave on a part-time basis for two months only, for 3 days a week at Company Y being two days in the office and one day from home, with the father caring for the child with his parents on the days the mother was working from the office. According to the father, during this month the father withheld consent for her to travel to Country D with the child. She threatened to separate from him.

26. On 16 March 2016, the mother executed the contract for sale of her Suburb F property for a sale price of $518,000.

27. On 25 March 2016, the mother declared the marriage was over. According to the mother the parties separated on a final basis on that day and according to the father they separated the day after on 26 March 2016 when he moved out to live with his parents. Nothing turns on this difference.

28. It is undisputed the child remained in the mother’s primary care. The father commenced spending time with the child each Tuesday and Thursday between 8:00 am to 5:30 pm.

29. In March 2016, the mother offered to return a sum of $22,000 to the father which had been received from the father’s friends and family by way of wedding gifts. The parties agreed to place the funds into a trust account on behalf of the child and accordingly opened a trust account. I note here that it did not appear to be disputed that the mother did not pay the funds into the agreed trust account. She gave oral evidence that it was her idea to open the account. However, she paid $22,000 into her mortgage account. She conceded in oral evidence the money has been spent, and she does not propose to put $22,000 into the trust account until she comes out of her “financial hole”. 

30. On 19 April 2016, the parties opened a joint ANZ account. The father claims that the joint ANZ account was opened with the intent that the mother transfer her proportion of the net sale proceeds of the Suburb D property held by her in a P Bank high interest account (above at [27]) and that accordingly, on 20 April 2016, she transferred the sum of $490,754.92 into the account.  According to the father, on 4 April 2016, the mother offered to transfer to the father half of the net sale proceeds of the sale of the Suburb D property held in her name in exchange for allowing her and the child to permanently relocate to Country D. The mother denies she made any such proposal.

31. The father lodged a caveat against the Suburb F property on 22 April 2016, before its sale completed. Ultimately the parties agreed the father would remove the caveat if the net proceeds from the sale of the property were to be placed into a trust account. The net proceeds of $249,287, after discharge of a mortgage, were placed in the trust account of H Lawyers.

32. In May 2016 the mother unilaterally relocated with the child to a property situated in Suburb V, a suburb in southern Sydney.

33. The mother formally resigned from Company Y in May or June 2017. The father contends the mother left Company Y even though the he was available to care for the child.

34. On 28 May 2018, the mother purchased a property situated at K Street, Suburb L in Tasmania (Folio Identifier …) for the sum of $376,000. The settlement of the sale took place on 9 July 2018 according to page 28 of the Tender Bundle to her Trial Affidavit filed 10 November 2019 (Exhibit “5”, “M7”).

35. The parties were divorced on 29 April 2019.

Procedural History

1. There is value in recording some parts of the procedural history in this matter in some detail, for four reasons. The first is to make clear the extent to which the child has spent time with the father since the proceedings were initiated, while she has lived primarily with the mother. The second is to set out certain interim payments received by the mother. The third is to illustrate the extent to which the possibility of relocation by the mother has been an ongoing issue between the parties. The fourth is to record how allegations of the child abuse by the mother were introduced into the proceedings by the father, then abandoned.

2. On 18 April 2016, the father filed an Initiating Application in this Court in relation to both parenting and financial issues seeking interim and final orders. The father sought that the child be placed on the Airport Watch List due to concerns that the mother intended to travel to Country D with the child without his consent. He also proposed the child to live with the mother and spend time with him three days a week from 8:00 am to 5:00 pm with no overnight time until the child attained 3 years of age and thereafter 5 nights a week overnight.

3. The father alleged in his Notice of Child Abuse or Risk of Family Violence filed on 18 April 2016 that in or about February 2016 the child was being held by the mother “so tightly that [the child] showed symptoms of being in distress and difficulty breathing and commenced crying”. He repeated this allegation in his Trial Affidavit filed on 4 November 2019 at [52].

4. It was not disputed in the preliminary positions of each party that the child would live with the mother and spend time with the father, although the amount of time with the father was not agreed. The other significant issue at this early stage appears to have been whether the mother should be granted leave to take the child overseas to Country D for the period 1 August 2016 to 10 September 2016.

5. On 11 July 2016, Loughnan J made Orders for the mother to receive a total of $100,000, comprised of $50,000 from the proceeds of sale of her Suburb F property held by H Lawyers, categorised as partial property settlement and $50,000 of the husband’s money held in their ANZ joint bank account to be categorised on the date of hearing. Further, the parties were to cause the balance of the monies held by H Lawyers to be transferred to a Controlled Monies Account held by J Lawyers, the mother’s then solicitors, on behalf of the parties.

6. On 7 December 2016, Gill J made Orders restraining the child from being removed from the Commonwealth of Australia and accordingly she was placed on the Family Law Watch List pending further order. Interim parenting arrangements were put in place for the child to spend time with the father each Tuesday, Thursday and alternate Sunday from 10:00 am to 5:00 pm with changeover to take place at the police station closest to the mother’s residence, which was Suburb V police station.

7. On 9 August 2017, Loughnan J made Orders by consent for J Lawyers to release to the mother’s current solicitors, Consort Family Law the remaining balance of approximately $209,000 held in their trust account on behalf of the mother. The sum of $100,000 was to be paid to an interest bearing account to be held pending further order, with the balance, $109,000, to be released to the wife and categorised at the final hearing as spousal maintenance or interim property settlement. It was also noted that “the husband will not unreasonably withhold his consent to the wife using [the balance of the monies] for the purchase of a property”.

8. The Orders of 7 December 2016 were varied to permit the physical delivery of the child to be effected by the paternal grandmother on behalf of the father. An Independent Children’s Lawyer (“ICL”) was also appointed while the parties, and their associates, were enjoined from recording or videoing each other or the child at handover.

9. On 11 April 2018, the father filed an Amended Initiating Application, an Amended Notice of Risk and an Application in a Case seeking on an interim basis that the child be removed from the mother’s care, live with him and spend 3 hours of supervised time with the mother each week. The father sought orders also in the alternative for the child continue to live with the mother, that the mother be restrained from striking her and attend a parenting course, while the father’s time be incrementally increased to include overnight time. The father alleged the child had been physically abused by the mother, based upon his observations of bruising and certain disclosures.

10. The mother withheld the child from time with the father for the period 29 March 2018 to 17 April 2018. According to the father, the mother had agreed to provide him with 6 make-up days however he only received 2 make-up days by November 2018. On 10 April 2018 he asked the police to attend the mother’s residence on the basis he was concerned she had abducted the child to Country D. However, in cross-examination he conceded he knew she was not in Country D because the child had been on the Airport Watch List since April 2016, but he had not seen the child for 2 weeks, and wanted a welfare check.

11. The mother denied causing any injury to the child and, on 14 May 2018, filed a Response to the father’s interim application seeking an order that his application be dismissed.

12. When the matter came before Senior Registrar Campbell on 17 May 2018, the father indicated he no longer pressed orders seeking a change in primary residence for the child or limited supervised time between the child and the mother. He also resiled from the allegations of risk against the mother, stating that “there is no issue of risk in this case any longer” (Judgment of Senior Registrar Campbell dated 4 December 2018, paragraph [13]).

13. On 5 July 2018, the mother filed an Application in a Case to enforce the orders made by consent on 9 August 2017, due to the father only having agreed to release $78,977 of the $100,000 ordered by Loughnan J on 9 August 2017 (see [45] above). On 6 August 2018, McClelland DCJ made Orders by consent for release to the mother of the remaining sum of $20,000 held in the interest bearing account by the mother’s solicitors.

14. On 18 October 2018, McClelland DCJ made Orders that the husband pay $1,041 per week by way of interim periodic spousal maintenance.

15. According to the father on 2 January 2019, the mother unilaterally suspended the father’s time with the child in relation to the mother’s request that handover take place at a contact centre. The time recommenced on 5 February 2019 following Orders made by Senior Registrar Campbell on 31 January 2019 regimenting changeover.

16. On 30 January 2019, the mother filed an Amended Response which sought Orders that she be permitted to relocate to either Tasmania or Country D with the child.

17. From February 2019 the mother commenced using an agent to attend to handover of the child on her behalf.

18. On 9 May 2019, Senior Registrar Campbell made interim parenting Orders for the child to spend time with the father each Tuesday and Thursday from 10:00 am until 5:00 pm and each alternate weekend from 10:00 am Saturday until 5:00 pm Sunday, commencing 18 May 2019. Orders were also made for the mother to enrol the child in preschool at Suburb AC to attend on Thursdays and Fridays and for the mother to attend upon Ms R, psychologist no later than 30 June 2019.

19. According to the father, in mid-May 2019 the child was accordingly enrolled at Suburb AC preschool.

20. The matter first came before me on 15 May 2019 for a First Day Less Adversarial Trial and I made an Order for the appointment of a single expert to provide an expert report on the enforceability in Country D of orders of the Family Court of Australia and in relation to the operation of the Hague Convention between Country D and Australia. On 21 June 2019, I set down the dates for final hearing.

Proposals

1. On 24 March 2020, I made Orders that the parties were to file an updated Proposed Minute of Final Orders which take account of the COVID-19 pandemic.

2. The entirety of the orders proposed by the father, the mother and the Independent Children’s Lawyer are respectively set out below in Annexures A, B, C and D.

3. It is important to note that if orders are made for the child to remain living in Sydney, the mother has said that she will not relocate to Tasmania or Country D, in which case both parties are in agreement that the child should remain living with the mother.

4. The father proposes that when the child commences Year 2 of primary school that the parties should move to an equal care arrangement of the child.

Issues in dispute

1. In respect of parenting, primary issues are the allocation of parental responsibility and relocation, and the question of the time to be spent by the child with her father.

2. In relation to the property dispute, apart from the general question of contributions, the main issues included:

   a)The amount of $22,000 which the mother was to place in trust for the benefit of the child but used to reduce her mortgage;

   b)Whether there is a surplus or retained profit of $35,000 in the AD Business belonging to the father;

   c)Whether the father is the sole owner at law and equity of property 2 U Street, Suburb N in Queensland or holds an interest of 44% in the property together with his siblings;

   d)Whether the $25,000 paid from the personal bank account of the father to Mr X was intended to be a partial payment on behalf of M Pty Ltd for the purchase of products from Mr X in the amount of $90,000 or was an attempt to dissipate funds; and

   e)The earning capacity of the mother including her retraining and whether an adjustment should be made in her favour for future needs. 

Evidence

1. The father relied on the following documents:

   a)His Case Outline filed 2 December 2019;

   b)His Affidavit sworn and filed 4 November 2019 (“His Trial Affidavit”);

   c)His Financial Statement filed 4 November 2019;

   d)His Written Submissions in relation to the impact of the COVID-19 pandemic on the proceedings filed 8 April 2020;

   e)His Written Submissions in reply in relation to the impact of the COVID-19 pandemic on the proceedings filed 11 May 2020;

   f)The Affidavit of Mr AE sworn and filed 9 July 2019;

   g)The Affidavit of Ms AG sworn 13 May 2019 and filed 14 May 2019; and

   h)The Affidavit of Ms AH sworn and filed 18 April 2018.

2. The father sought leave to file and rely upon his Affidavit sworn 12 December 2019. Leave was granted for only paragraphs [1] to [7] and [10], including Annexures, to be received into evidence.

3. The father, the paternal grandmother, Ms AH, and the father’s siblings, Ms AG and Mr AH were cross-examined.

4. The mother relied on the following documents:

   a)Her Case Outline filed 3 December 2019;

   b)Her Proposed Minute of Order (Exhibit “11”);

   c)Her Amended Response filed 22 November 2019;

   d)Her Amended Financial Statement filed 4 December 2019;

   e)Her Affidavit affirmed and filed 10 November 2019 (“Her Trial Affidavit”);

   f)Her Affidavit filed 3 August 2017 (being paragraphs [49] to [52] including Annexures);

   g)Her Written Submissions in relation to the impact of the COVID-19 pandemic on the proceedings filed 22 April 2020;

   h)The Affidavit of Ms AJ affirmed and filed 12 November 2019;

   i)The Affidavit of Mr AK affirmed and filed 12 November 2019;

   j)The Affidavit of Ms R affirmed and filed 20 November 2019.

5. The mother and the maternal grandparent, Ms AJ were cross-examined.

6. The Independent Children’s Lawyer relied on the following documents:

   a)Case Outline; and

   b)Proposed Minute of Order (Exhibit “ICL 4”).

7. The following documents were received into evidence:

Exhibit Label	Document	Tendered by
Court 1	Respondent’s objections to the Affidavit of Mr Koyroyshs filed 4 November 2019 and Affidavit of Mr AE filed 9 July 2019	Court
Court 2	Applicant’s objections to the Affidavit of Ms Koyroyshs filed 10 November 2019 and Affidavit of Mr AK filed 12 November 2019	Court
Court 3	Joint Balance Sheet	Court
Court 4	Report of Ms AL dated 1 December 2019	Court
A	Letter dated 5 November 2019 from the Applicant’s solicitors to the Respondent’s solicitors enclosing two summaries being: ·    Summary in respect of the Applicant’s contributions to the parties’ joint account between period 19 December 2013 to 3 May 2016; and ·    Summary in respect of the Applicant’s contributions to the AD Business for the period of 16 March 2015 to 7 November 2019	Applicant father
B	Tender Bundle to the Applicant’s Affidavit filed 4 November 2019	Applicant father
C	Documents in relation to the AM Bank Joint Account …00 in the names of the Applicant and his two siblings	Applicant father
D	Order of the directors of the AD Business Incorporated dated 25 October 2017	Applicant father
E	Affidavit of the Respondent filed 28 November 2017 paragraphs [48] to [51]	Applicant father
F	Affidavit of the Respondent filed 6 July 2016 paragraph [82]	Applicant father
G	Annexure “B” to the Applicant’s Affidavit filed 29 January 2019 being copies of the letter which his solicitors forwarded to the Respondent’s solicitors on 1 November 2018 and the email received in response dated 3 November 2018, 4:44 pm	Applicant father
1	Pages 4 and 6 of the Transaction History Enquiry Report of the Applicant’s fixed term deposit with AM Bank dated 31 July 2012, 16:05	Respondent mother
2	Copy of Westpac Cheque No.… in the Applicant’s name of $25,000 dated 24 November 2014 and page 8 of Westpac Statement No.13 to account ending in …49 in the name of the Respondent	Respondent mother
3	CBA Home Loan/Investment Home Loan Application …79 of Ms AG and her husband	Respondent mother
4	Bundle of documents in relation to Ms AG’s purchase of property with Folio Identifier …	Respondent mother
5	Tender Bundle to the Respondent’s Affidavit filed 10 November 2019	Respondent mother
6	Vocational Assessment Report of the Respondent prepared by Mr AK dated 12 November 2019	Respondent mother
7	Affidavit of Ms R filed 20 November 2019 including Exhibits: ·    “MsR1” (Report prepared by Ms R dated 15 November 2019; ·    “MsR2” (Ms R’s CV); and ·    “MsR3” (Letter of instructions dated 15 November 2019 from the Respondent’s solicitors).	Respondent mother
8	Email from the Applicant to the Respondent dated 19 November 2018 at 11:04 pm in relation to cruise	Respondent mother
9	Two letters from the Respondent’s solicitors dated 22 June 2017 and 7 August 2017 to the Applicant’s solicitors (noting that their use is limited to proving the fact of the correspondence being sent)	Respondent mother
10	Interest-Free Loan Agreements between the Respondent and the Maternal Grandmother written in the Country D language with English translated versions	Respondent mother
11	Respondent’s Proposed Minute of Order	Respondent mother
ICL 1	Two letters from Dr S both dated 12 April 2019 in response to the Applicant’s letters dated 25 March 2019 and 28 March 2019	Independent Children’s Lawyer
ICL 2	Letter of Ms AN (Early Childhood Teacher, Suburb AC Preschool) dated 29 November 2019	Independent Children’s Lawyer
ICL 3	Report of Dr S dated 21 February 2019	Independent Children’s Lawyer
ICL 4	Proposed Minute of Order of the Independent Children’s Lawyer	Independent Children’s Lawyer
ICL 5	Costs Notice of the Independent Children’s Lawyer	Independent Children’s Lawyer

1. The following document was also marked for identification (“MFI”):

MFI Label	Document	Tendered by
1	Bundle of documents in relation to the AD Business Incorporated’s General Ledgers for period 2015 – 2020	Applicant father

The child

1. Early in her life the child suffered from anaemia and the paediatrician recommended iron supplements. By the time of the final hearing it was undisputed the child was doing well. The father believes she is “very advanced for her age” (His Trial Affidavit, [117] to [121]). The child is doing well at school. The mother did not dispute the child is doing well. The observations recorded by Dr S demonstrated the child can speak English, Country D and Country C languages.

The mother

1. Despite an earlier strong employment history, at the date of final hearing the mother was unemployed. In October 2019, the mother enrolled in an 18 months TAFE Certificate IV online course. I discuss her employment prospects later in these reasons. There was no dispute that the mother has suffered mental health vulnerabilities which are detailed later in these reasons.

2. The mother gave evidence in a reasonably frank and careful manner. She gave answers against her interest at times. I was satisfied she was trying to answer questions frankly, although her evidence seemed coloured by a powerful desire to keep the father out of her life, something to which I will return.

The father

1. The father is self-employed. I am satisfied that he also gave evidence in a reasonably careful manner and tried to answer questions frankly.

Expert evidence

1. There was one family report dated 21 February 2019 prepared by Dr S. Dr S also prepared two letters both dated 12 April 2019 arising from questions put to him by the father.

2. For the purposes of the parenting aspect of the proceedings, there was no dispute that a concerning lack of trust infected the interactions of the parents. Dr S made the following recommendations in paragraphs [159] to [164] of his report:

   There was no indication that the lack of trust in the parental relationship was likely to resolve. This raised significant concerns regarding the capacity for the parents to act in a collaborative manner while co-parenting. Under such circumstances, parallel parenting practices are likely to be required. The use of a consistent approach to parenting will be of assistance. The father had previously completed a Triple P parenting program. This provides an effective evidence-based approach to care and control of young children. Although the mother had been requested to attend over the past 18 months, she had failed to do so. The mother should be required to attend this course in a timely manner. Her inability to locate a suitable course was viewed as insufficient justification to fail to engage in this intervention.

   I recommend that the mother maintain psychological intervention and treatment with Sertraline. It was unfortunate that the mother's treating psychologist, Ms AO, refused to speak to the report writer, stating that it was "outside the policy of this practice for liaisons purely of a legal nature". Should the current dose be inadequate, further dose titration may be required. If tolerated, a dose of up to 200mg daily is within the recommended range.

   Both parents should make an undertaking not to denigrate the other parent and members of their extended family.

   I would respectfully recommend to the Court the maintenance of shared parental responsibility. In my view, the mother's proposed relocation would not be in the child's best interests as it would result in a substantive diminishment of the father's role in the child's life. The maternal grandmother identified that the mother had a good social support in Sydney. This had been established over the past 14 years.

   There were numerous discrepancies in the mother's account and inconsistencies with that of the maternal grandmother. This related to her relocation to Australia and the establishment of residence in the context of obtaining citizenship. Her stated intent to simply gain an Australian passport for the purposes of travel was inconsistent with their account of the potential benefits of Australian residence.

   Should the mother be unwilling to sustain the child's regular contact with the father, consideration should be given to the father's proposal of primary care. This, however, would result in the child's removal from her primary carer. It was noted that the child's care had been the mother's primary motivating factor since her birth. Thus, a transfer of care would be problematic for both mother and child.

3. I also granted leave to the mother to rely on and read a partisan vocational assessment report of the mother dated 12 November 2019 prepared by Mr AK.

4. Dr S and Mr AK also gave oral evidence. 

5. I will refer to the content of either of the reports and the oral evidence of Dr S and Mr AK as necessary during the course of these reasons.

PARENTING

Relevant Law

Legislative framework

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) governs the making of parenting orders. Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s 61DA and s 65DAB of the Act.[1] The best interests of a child are the paramount consideration in making parenting orders (s 60CA of the Act). The best interests of a child, for the purposes of Part VII, are determined by reference to the primary and additional considerations set forth in s 60CC(2) and (3) of the Act. I will return to these statutory consideration below.

   [1] There is no relevant parenting plan so s 65DAB of the Act does not apply.

2. The oft cited decision of the Full Court in Goode & Goode [2006] FamCA 1346, (2006) FLC 93-286, and s 61C of the Act, together make clear that, unless displaced by Court order, the parties’ parental responsibility may be exercised either jointly or severally. S 61DA of the Act is therefore important. It requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for the child.

3. The application of the presumption has significant consequences. Full Court authority suggests that if the presumption is applied, the Court is required to make an order for equal shared parental responsibility: Damiani & Damiani (No. 2) [2009] FamCAFC 215 (“Damiani”) at [133], [134]. In Marvel & Marvel [2010] FamCAFC 101; (2010) 240 FLR 367 at [104], the Full Court said, without the benefit of extensive argument, if the presumption applies, an order for equal shared parental responsibility will generally be made, thus displacing s 61C and triggering consideration of the provisions of s 65DAA. I take the view that a trial judge should make an order for equal shared parental responsibility when the presumption applies: Froth & Schneider [2011] FamCA 378 at [226]; Heath & Hemming (No 2) [2011] FamCA 749 at [89].

4. However, the presumption does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s 61DA(2) of the Act). The Full Court has made clear that the phrase “reasonable grounds to believe” in s 61DA(2) prevents the application of the presumption in the face of any finding of family violence because the finding itself activates s 61DA(2) and by its operation the presumption does not apply. There is no residual discretion: Robertson & Sento [2009] FamCAFC 49 per Finn J at [13]; Boyce & Boyce [2015] FamCAFC 60 at [21].

5. The presumption may be applied but be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for his or her parents to have such equal shared parental responsibility (s 61DA(4) of the Act). As to rebutting the presumption, in Dundas & Blake [2013] FamCAFC 133; (2013) FLC 93-552 (“Dundas”) the Full Court held that s 61DA is mandatory in requiring application of the presumption “until a level of satisfaction on the evidence is reached that it would not be in the interests of the child for it to apply” (at [57]); there needs to be “explicit and cogent reasons why the presumption should be rebutted” (at [61]). 

6. Where the presumption applies, it conditions the Court’s power to make parenting orders. This requires consideration of equal or substantial and significant time with each parent (s 65DAA(1) and (2)): MRR v GR (2010) 240 CLR 461 (“MRR”) at [21]; Cox & Pedrana [2013] FamCAFC 48; (2013) FLC 93-537 (“Cox & Pedrana”) at [16], [17]. It is important to realise that if the presumption is applied, the order for equal shared parental responsibility should be made for all aspects of parental responsibility: Tibb & Sheean [2018] FamCAFC 142; (2018) 58 Fam LR 351 (“Tibb & Sheean”) at [69].

7. The s 60CC considerations have an important role to play, not only for the general question of the child’s best interests but also in relation to the presumption. The Full Court pointed out in Cox & Pedrana at [19] (following MRR at [7]) if the presumption is not to apply or is rebutted, the relevant findings need to be made by reference to ss 61DA(2) or (4). Such findings will ordinarily be made in the course of, or informed by, conclusions as to the best interests of the children, reached by an assessment of the considerations set forth in s 60CC(2) and (3). The “explicit and cogent reasons”, referred to in Dundas, above, for rebutting the presumption will clearly often be derived from the same assessment.

8. The application of the presumption and the question of the allocation of parental responsibility is always important. It is one of the main areas of debate in this case. Both the father and the ICL seek an order for equal shared parental responsibility. They propose a position consistent with the presumption.

9. The mother initially sought an order for sole parental responsibility “in respect of medical and health decisions concerning the child”. In her Final Minute of Order, the mother proposed a blanket order for sole parental responsibility in her favour. Therefore the mother contends the presumption either should not apply or should be rebutted in the best interests of the child.  The onus falls upon her to provide the necessary level of satisfaction and the explicit and cogent reasons.

10. Even where the presumption is inapplicable or is rebutted, questions of equal or substantial and significant time remain important, and an order may provide for equal or substantial and significant time in any event: Damiani at [140] to [142].

11. If an order for any type of shared parental responsibility is made, and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child, the obligations imposed by s 65DAC are engaged. In summary, these obligations require decisions about major long-term issues to be made jointly by the persons subject to the order, by them consulting each other and making a genuine effort to come to a joint decision. “Major long-term issues” are defined in s 4 of the Act to mean issues about the “care, welfare and development of a child” and include education, health and a child’s living arrangements. The orders allocating parental responsibility sought by the father and the ICL would enliven this s 65DAC. The mother’s proposed order for sole parental responsibility would not.

12. I will return to the question parental responsibility later these reasons, after a consideration of s 60CC(2) and (3), and in particular the question of relocation.

Best interests of the child

1. The best interests of a child are to be determined by an examination of the considerations as set out in s 60CC of the Act. These factors are to be considered, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s 60B of the Act. The parties did not refer to the objects and principles expressly. I have taken them into account in accordance with Full Court decision in Maldera & Orbel [2014] FamCAFC 135; (2014) FLC 93-602 at [74], [75].

2. The Full Court has recently confirmed that the use of the verb “consider” in s 60CC(1) imposes an obligation to give proper, genuine and realistic consideration to the matters in s 60CC(2) and s 60CC(3) of the Act: Lovett & McGregor [2019] FamCAFC 253; (2019) FLC 93-935 at [72] following the decision of the High Court in Bondelmonte v Bondelmonte [2017] HCA 8; (2016) 259 CLR 662 (“Bondelmonte”) at [43]. The Full Court has also made clear that although consideration of each statutory factor in s 60CC is mandatory, express discussion is not: Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637 at [48]; Tibb & Sheean at [84]. The proposals of the parties; their evidence; the manner in which they have run their case will largely determine what is discussed: Tibb &Sheean at [87].

Primary considerations

1. In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act which 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.

2. In applying these considerations the Court is to give greater weight to the consideration in paragraph 2(b) (see s 60CC(2A) of the Act).

Section 60CC(2)(a), “meaningful relationship”

1. As to s 60CC(2)(a), the Full Court of the Family Court of Australia in Sigley & Evor (2011) 44 Fam LR 439 endorsed a number of earlier judicial statements of interpretation:

   a)A “meaningful relationship” as one which is “important, significant and valuable to the child”: (citing Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405 at [132] to [133]) (“McCall”); and

   b)A “prospective approach” is the preferred approach to s 60CC(2)(a) requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall at [118] – [119];

   c)Depending on the factual circumstances “the present relationship approach” may be relevant, requiring the Court the examine the evidence “of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made”; however, it is not the preferred approach since s 60CC(3)(b) of the Act requires a Court to explore existing relationships between a child and the child’s parents and other persons, and application of the “present relationship approach” would limit a Court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial: McCall at [118] – [119];

   d)The legislation aspires to promote a meaningful relationship, not an optimal relationship, at [135] to [136] (citing M & S (2007) FLC 93-313 per Dessau J; Godfrey & Sanders [2007] FamCA 102 at [32] per Kay J and Chamness v Hanson (2009) FLC 93-407 (“Chamness”) per the Full Court).

   e)A “meaningful relationship” is a legal construct, not a psychological one, and it is for the Court, not an expert, to determine what constitutes a meaningful relationship: at [136] following Chamness at [191].

2. At paragraph 117 of his report Dr S stated:

   The child was observed to have a loving connection with both parents and grandparents. B was fluent in the Country D language when communicating with her mother and maternal grandmother. She was fluent in the Country C language when communicating with her father and paternal grandparents. It was evident that she was much loved. There is no doubt that she will benefit from the love and attention from both sides of her family into the future. It was unfortunate that this was marred by mistrust and conflict fuelled by the ongoing allegations.

3. There was no dispute that the child has, and would benefit from, a meaningful relationship with both parents. However, the question of relocation by the mother is relevant to the child’s prospective relationship with her father. The mother has not relocated to either Country D or Tasmania, but she wants to. A primary basis for the father’s resistance to relocation is the perceived detrimental impact either relocation would have upon the child’s relationship with him. It is convenient therefore to set out the law applicable to relocations and then discuss the reasons advanced by the mother for relocation, and its likely impacts.

Relocation

1. Relocation cases pose particular difficulties, and where the proposed relocation is to another country, or another state, the practical problems created by distance are obvious. The father seeks an order restraining both parties from relocating with the child “more than 15km from Suburb AP Railway Station”, while the ICL proposes an order restraining both parties from relocating with the child “more than 30 km from Sydney CBD”.

2. The Full Court has held that there is nothing in the authorities that establishes that the Court lacks power within the Act to directly restrain a parent from relocation or to directly require relocation: Sampson & Hartnett (No. 10) [2007] FamCA 1365; (2007) FLC 93-350 at [33].

3. A parent is entitled to live where they choose, and need not demonstrate “compelling reasons” to live where they propose to live: AMS v AIF (1999) 199 CLR 160; U v U (2002) 211 CLR 238 (“U v U”); Adamson & Adamson (2014) FLC 93–62 at 79,700 [65], [66]. However, since the best interests of the children are paramount, and whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the paramount consideration: U v U at [89].

4. Parental responsibilities can inherently restrict choices made by a parent. In Zahawi & Rayne [2016] FamCAFC 90, at [47] the Full Court noted:

   All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests.  What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U [(2002) 211 CLR 238 [92]]:

   …The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents:  obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred. [footnote omitted]

5. In Franklyn & Franklyn [2019] FamCAFC 256 at [27] to [28], the Full Court has explained the applicable law as follows:

   There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207–208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.

   While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223 –224, 231 –232; Sampson and Hartnett (No.10) (2007) FLC 93–350; Zanda & Zanda (2014) FLC 93–607 at [132]–[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262 ).

1. Parenting proceedings involving relocation must follow the legislative pathway. It is clear that relocation cases are to be determined as any other parenting case (Fitzroy and Fitzroy [2009] FamCA 954 at [16]; Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343 (“Morgan & Miles”) at [72]). Any exercise of a power to restrain the mother from relocating is governed by the considerations applicable in any parenting case.

2. The decision of Boland J in Morgan& Miles has often been cited as a correct statement of the law and followed many times: see, for example, Malcolm & Monroe and Anor [2011] FamCAFC 16; (2011) FLC 93-460 at [107]. At [72] to [78] Boland J set out a number of principles relevant to relocation, which I respectfully adopt. In particular at [79], her Honour said in considering whether the child should live with the parent who proposes to relocate, the Court:

   ·    Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute. 

   ·    [May] make orders having regard to the child’s best interest as the paramount, but not the sole, consideration. 

   ·    [Must] be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child. 

   ·    If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child. 

   · In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearings, although such an order may not, in specific cases, be made on an interim hearing.

   ·    When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made. 

   ·    Will [carefully] weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide: 

   -    that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

   -     that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent; 

   -    that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale; 

   -    the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

   ·    Because each case presents different facts and issues for determination, no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.

3. Further at [80], Her Honour said:

   It follows from my exposition of legislation that earlier core principles:

   -    that the child’s best interests remain paramount, but not the sole consideration;

   -    that a parent wishing to move does not need to demonstrate “compelling” reasons;

   -    that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and

   -    the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement;

   remain valid.

4. Consistently with the decision in Morgan & Miles, in Sayer & Radcliffe& Anor [2012] FamCAFC 209; (2012) 48 Fam LR 298 at [47] to [48] the Full Court observed:

   It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders...

   A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents ... It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway. [citations omitted]

5. In Morgan & Miles at [55], Boland J also made clear that there is no right to unilateral relocation and such a relocation does not fetter, in any way, the exercise of discretion by the Court:

   …There is nothing in the legislation which provides that a parent who has existing order which provides that the child spends fifty per cent or more of his or her time with that parent has a unilateral right to move the child, (on the basis that this is in the child’s best interests).  Whilst such a move may, after exploring all relevant factors, be found to be in the child’s best interests, those interests can only be determined by examination of the relevant factors in the structured exercise of discretion required by the legislation.  It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur, and that a court’s discretion in determining a child’s best interests, including time to be spent with the other parent, be inappropriately fettered by a move which has already occurred.

6. An order for shared parental responsibility, if one has been made, is a significant matter in relation to relocation. In Morgan & Miles at [66] Boland J emphasised that major long-term issues include “changes to the child’s living arrangements that make it significantly more difficult for a child to the spend time with a parent”. The operation of s 65DAC of the Act clearly precludes changes by one parent to the children’s living arrangements without notice and consultation with the other parent.

Reasons for Relocation

1. The mother contends life in Sydney is very difficult for her. At [378] of her Trial Affidavit the mother claims she “cannot afford to live in Sydney”, because of the cost of renting or buying property, the instability of regularly changing accommodation and an inability to secure part-time work to generate sufficient income. The claimed inability to gain part-time work was a matter of debate. As pointed out below at [286], the mother did not give real consideration to part-time jobs in Sydney.

2. Other factors were said to be the unavailability of family support in Sydney, the inability to travel to her childhood home in Country D to see her brother and parents as much she wants to and the inability to take the child to see the world if she cannot travel outside Australia. 

3. The mother contends she cannot live in Sydney for financial reasons without family support. She said at paragraph 404 of her Trial Affidavit “Sydney is unaffordable for me and a crushingly difficult city in which to live without family support.” The mother also gave evidence that she has no close friends in Sydney, her best friends live in Country D. It is however also true that the mother has lived in Sydney for 14 years, and it was undisputed she had a friendship group in Sydney. The maternal grandmother told Dr S (at paragraph 162), and repeated in her oral evidence, that the mother had good social support in Sydney. Moreover, according to the mother, she and the child since May 2016 have attended once a week a local Country D playgroup with other children and mothers in Sydney (Her Trial Affidavit [191]), and the other mothers have often provided her with some helpful advice. In particular the playgroup coordinator referred her to a mother in the group who lives in the same suburb and also speaks Country D. According to the mother’s oral evidence, this person has been used as an agent for changeover.

4. Dr S was of the opinion that the mother had a particular agenda to relocate to Tasmania or Country D to take the father out of her life. He perceived the mother thought this would solve all her problems. This suggests a prime motivation of the mother to relocate is for her own desire to be rid of the father, rather than for reasons directly beneficial to the child. Dr S at [162] of his report also recommended against any relocation as sought by the mother, as this would not be in the child’s best interests, since it would “result in a substantive diminishment of the father’s role in the child’s life”. I accept this evidence.

5. I have taken account of the mother’s allegations that during the marriage after separation she suffered verbal emotional abuse, denigration and insulting remarks, and violent or aggressive behaviour at changeovers at the hands of the father. She contends the father’s behaviour has undermined her mental health. I discuss the competing allegations of abuse or violence further below under s 60CC(2)(b). There was no dispute, and the evidence was clear, that the mother has suffered symptoms of depressed and anxious mood and has at times required therapeutic intervention. The level of mistrust and conflict between the parents was also not in dispute. I am unable to determine the extent to which any conduct of the father has engendered or exacerbated problems with the mother’s mental health, so as to militate in favour of greater physical distance between the parents. The parents in any event now live apart as a result of separation, if not as far apart as the mother appears to want. I am unable to determine the extent to which either proposed relocation would benefit the child by producing any improvements in the mother’s mental health and thus her parenting capacity. There may be improvements. But this possibility has to be weighed against all the other considerations, including the mother’s motivation, identified by Dr S, to exclude the father from her life, and the impact of this upon the child.

6. I refer to the discussion below under s 60CC(3)(f). I take account of the mother’s inability to promote the child’s relationship with the father, and her fragilities which undermine her parenting capacity. These considerations militate against placing the child both primarily in the mother’s care and a long distance from the father. They do not support either proposed relocation.

7. It is also necessary to examine separately some of the detail of each proposed relocation.

Country D

1. The mother argued that living in Country D would give her the support of family and friends. She claimed she would be relieved of financial stress and would have the comfort of a steady income if she worked in her parents’ business. At paragraph 405 of her Trial Affidavit the mother states:

   Country D would give me much needed relief from the turmoil of being a sole, primary carer to B. It would give me an emotional and practical family support of my dad, mum and brother, my best friends. Support to me is having people I can rely on to help with all manner of things from urgent groceries to home maintenance repair.

2. The maternal grandmother gave evidence that if the mother was to relocate to Country D she would assist by way of providing her with a job within her business and assist her with housing. Thus, the mother argued her improved mental health would be beneficial to the child through improved parenting capacity, and that a stable income would help provide for the material needs of the child.

3. I accept the mother would be able to see her family when she wanted to and world travel would not be curtailed by Australian Court orders if she relocated to Country D. But it should be pointed out here that the mother is not presently restricted in the manner suggested unless she wants to travel with the child. Apart from the usual vagaries of travel, and restrictions created by pandemics, nothing presently prevents her from returning to Country D or going anywhere else without the child.

4. If the mother relocated to Country D it would be to City Q, a town of about 200,000 people, located in Country D, on the border with Country AQ. There was no dispute that travel to this place is very difficult from Australia. The route is through Country AQ, Country AA or Country BB. From Country AQ it is necessary to catch three different flights to the Country AQ border. From there an hour long taxi ride followed by a ferry ride is necessary. If travelling through Country BB or Country AA it is necessary to fly into Country D and then travel by train or car or train for 12 hours. The father said both trips are arduous and the mother agreed. The climate in Country D is harsh and very cold in winter. There was limited evidence about the schooling the child might receive in City Q.

5. I also take account of the evidence the single expert report dated 1 December 2019 prepared by Ms AL which was uncontested.

6. In her report, Ms AL states the following under Part E: 

   The Hague International Child Abduction Convention 1980 (the Hague 1980 Convention) does not apply between Country D and Australia because Australia did not accept Country D’s accession to the Hague 1980 Convention.

   There is no system of registration of the foreign court orders in Country D. There is a special procedure for recognition and enforcement of the foreign court orders provided that there is an international agreement of the Country D.

   The Country D Court cannot vary the foreign court order during the procedure of its recognition and enforcement.

   The Country D applicable national family and civil procedure legislation did not know the concepts of ‘habitual residence’, ‘custody’ in regard to children who were under parental care, ‘access rights’. These are the autonomous concepts of the private international law which are used in the Hague 1980 and 1996 Conventions.  

   The Supreme Court of Country D in his last Review N 3 of the Court Case Law dated 27 November 2019 for the first time refers to these concepts as to those which should be implemented into the Country D applicable legislation and to be used widely including in the domestic family matters and gives some explanations to the lower courts on how it should be interpreted.

   Although, Country D is a ‘Hague’ country, the application of the Hague 1980 and Hague 1996 Conventions is not yet consistent. There are still serious problems in Country D with the enforcement and execution of the Court Orders in the child – related matters.

7. The father argued that the expert evidence showed that the cost and difficulty of enforcing orders of this Court in Country D were significant. If the mother chose to ignore the orders made by this Court in Country D there was little the father could do about it. I agree. I take account of the mother’s evidence that she has not been a flight risk with the child while living Australia. She says at paragraph 310 of her Trial Affidavit “I have never threatened nor had any intentions of leaving Australia with [B] against the husband’s wishes unless it was authorised by an appropriate court.” This reflects credit on her. But the situation I am discussing is not the mother possibly absconding with the child, but the likely impact on the child if the mother is actually authorised to relocate to Country D, and the child were to begin a life in City Q.

8. There was also no dispute that the role of the father in the child’s life would be severely restricted by a relocation to City Q. The child would also not have the benefit of ready access to her paternal extended family. If the mother was to relocate to Country D with the child Dr S opined that there would be a break down in the child’s relationship with the father and paternal extended family over time. The child would miss out on having a significant paternal role model. The agreed regular face to face engagement with the father and the paternal family would be unsustainable. I refer to the discussion below under s 60CC(3)(g). I am satisfied the mother has a narrow focus on her and the child’s Country D heritage, which has an exclusive flavour. Dr S believed that the mother and the maternal family would not promote the child having a substantial and significant relationship with the father and the paternal extended family. At paragraph 141 of his report Dr S said “The was little to suggest that [the mother] thought there was value for the child in maintaining her connection to her Country C heritage…”. The paternal grandmother was clear she would not travel to Country D to spend time with the child. Dr S expressed the view that even if the mother’s family were to assist with contact and electronic communication the child would not be able to have a substantial and significant relationship with the father and paternal extended family over such a distance. There would likely develop cultural and language barriers over time.

9. The outbreak of the COVID-19 pandemic has particular significance for the proposal to relocate to Country D. It is not possible to know how the path of the pandemic will evolve, nor its long-term consequences. As the father submitted the government has imposed severe restrictions of overseas travel from Australia, with no enumerated exception applying to the parties or the child, and a 14 day quarantine upon return to Australia from overseas. These restrictions are of indeterminate duration. It is also likely the number of border crossings required to reach City Q would be made more difficult, and possibly more onerous, by restrictions brought about by the virus. They would make it materially more difficult for the child to return to Australia to visit the father from City Q, and for the father to travel to City Q and return. As things presently stand, each time he returns the father would have to be quarantined. Without engaging in speculation, it is a ready inference that this may have an adverse impact upon his employment even though he is self-employed, has a flexible work arrangement and can work from home as needed (His Trial Affidavit, [73]). This may affect the practicalities of the child spending time with her father because the father may on occasion be forced to trade time with the child against maintaining his employment.

10. On balance I have formed the view the mother’s desire to relocate to Country D is driven more by a focus on her own needs than those of the child. Her perception of Country D as satisfying her need for relief from “the turmoil of being a sole, primary carer to [the child]” indicates a degree of fragility in the mother’s emotional state and is consistent with Dr S’s conclusion that she perceives a relocation would solve all her problems, including excluding the father from her life. I am not persuaded the mother has focussed on the needs of the child, especially the child’s benefit from having a meaningful relationship with her father.

11. As will become clear later in these reasons, I am also not persuaded that the mother has demonstrated the presumption of equal shared parental responsibility does not apply by reason of abuse of the child or family violence or has been rebutted in the best interests of the child. Consequently I propose to make an order for equal shared parental responsibility, which, as well as engaging the requirement to consider equal or substantial and significant time with each parent in s 65DAA, will enliven the statutory requirement for the parents to consult and make joint decisions in s 65DAC. In my view, the proposed relocation to Country D would render ongoing compliance with those statutory obligations very difficult if not impossible.

1. If the child is not already spending time with the father, and notwithstanding any other order the child is to spend additional time with the father as follows:

   (a)       On Christmas Day, at such times as agreed between the parties and failing agreement, between 9 am on Christmas Eve to 6 pm Boxing Day in even odd numbered years commencing 2020 2019 and the father’s time be suspended between 9 am on Christmas Eve to 6 pm Boxing Day in odd even numbered years commencing 2021;

   (b)       On New Year's Eve, at such times as agreed between the parties and failing agreement, between 2 pm on New Year's Eve until 6pm 1 January each odd numbered years commencing 2021 (New Year’s Eve 2021) and the father’s time be suspended between 2 pm on New Year's Eve until 6pm 1 January each even numbered years commencing 2020 (New Year’s Eve 2020) ;

   (c)       On Father's Day from 9 am to 5 pm and the father's time be suspended between 9 am to 5 pm on Mother's Day;

   (d)       On the father's Name Day being … December, at such times as agreed between the parties and failing agreement from 4 pm to 8 pm on weekdays and 9 am to 5 pm on weekends;

   (e)       On the child's Name Day being … November, at such time as agreed between the parties and failing agreement from 4 pm to 8 pm on  weekdays and 9 am to 5 pm on weekends;

   (f)        On … Easter from 6pm Thursday on the night before Good Friday to Easter Sunday at 6pm 10am each even numbered years commencing 2020 and the father’s time be suspended from 6pm Thursday on the night before Good Friday to Easter Sunday at 6pm 10am each odd numbered years commencing 2021; and

   (g)       At such other times as agreed between the parties.

2. The child communicate with each of the parents when she is not in their care as agreed between the parties and failing agreement via Skype, telephone or other electronic communication at 6:00pm on Wednesday and Sunday and as otherwise requested by the child. 

3. Neither party will unreasonably prevent the child from telephoning the other parent and each parent will facilitate at all times the children’s communication with the other parent in accordance with these orders.

Changeover

1. Changeover take place at the child’s school and if the child is not at school changeover take place as follows:

   (a)       The father collects the child at the commencement of his time with the child at McDonald’s in Suburb AX; and

   (b)       The mother collects the child at the conclusion of the father’s time with the child at KFC in Suburb AY.

Conduct

1. The parties are restrained from striking the child or otherwise physically disciplining the child.

2. Neither party denigrate the other party or any other future partner, family members or friends whilst in the presence or hearing of the child or allow, with their knowledge, a third party doing so.

3. Each party will encourage and foster the child’s relationship with the other party.

Travel

1. Both parents be permitted to take the child interstate during the time that the child is in their care provided the travelling parent has given the other parent  30 days written notice of the proposed travel. 

2. The mother and father are restrained by injunction from causing the child to leave the Commonwealth of Australia.

3. The mother is restrained from obtaining a Country D passport for the child unless the father has consented in writing.

4. The Court requests that the Australian Federal Police place the name of the child, B (born … 2015) on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia until the child attains the age of 16 years.

5. The Marshal and all offices of the Australian Federal Police and the police forces are request and authorised to give effect to these orders.

Communication

1. Within 7 days of the date of these orders both parties do all acts and things to subscribe to the application known as “Our Family Wizard” and each pay their own costs for the application and conduct all communication regarding all matters relevant to the child using this application unless as otherwise agreed to between the parties.

2. Each parent will keep the other informed of:

   (a)       Their mobile telephone number and home address within 48 hours of the change occurring. 

   (b)       The names and addresses of treating medical or other health practitioners who treat the child. 

   (c)       Both parents as soon as reasonably possible but no later than 24 hours notify the other parent of any serious medical condition or significant health issue or significant injury suffered by the child and provide the other parent with full details of the said illness, medical condition or injury including but not limited to medical certificates and details (including contact details) of the medical professional attended upon. 

3. The parties communicate by telephone for all matters of an urgent nature regarding the child.

Other matters

1. The mother continue to engage with her psychologist, Ms R, for the purpose of facilitating time arrangements and co-parenting arrangements between the father and the child until the psychologist forms the view the therapy is no longer required.

2. In the event that either party refuses to do any act or thing or sign any document necessary to give effect to these orders, a Registrar or Judge of the Family Court of Australia at Sydney is appointed pursuant to section l06A of the Act to do any such thing or execute any such document at the cost of the defaulting party.

3. The Mother is to pay the Father’s costs of and incidental to these proceedings.

4. Such further orders as the Court deems fit.

   i.

Annexure B

Orders sought by the Respondent mother

Parental Responsibility

1. That the mother have sole parental responsibility for the child.

2. That the child commence school in 2021.

3. That the child attend pre-school 2 days a week in 2020. That in the event the child is ordered to live in Sydney in 2020, the child shall attend Suburb AC pre-school.

4. That within 7 days of these orders the mother shall provide the father with the names of 3 schools and within the next 7 days the father selects one of them. In the event that the father fails to make his selection in accordance with this order, the mother shall have authority to enrol the child at the school of her choice.

Time with the Parents

1. The child live with the mother subject to Orders 8 through to 20 herein.

2. The mother is permitted to relocate to City Q, Country D. Alternatively

3. The mother is permitted to relocate to Hobart, Tasmania.

If the mother relocates to Country D

1. In the event that the mother relocates to Country D the child spend time with the father in a two-year cycle as follows:

   Until the child turns 10 years of age

   (a)       In the country of the father’s choice from 2020 and every alternate year thereafter during the Country D summer school holidays for 14 consecutive days.

   (b)       In Country D from 2021 and every alternate year thereafter during the Country D school holidays for 14 consecutive days.

   When the child turns 10 years of age:

   (a)       In the country of the father’s choice from 2025 and every alternate year thereafter during the Country D summer school holidays for 30 consecutive days.

   (b)       In Country D from 2021 and every alternate year thereafter during the Country D summer school holidays for 30 consecutive days.

   (c)       In Country D on any occasion the father travels to Country D, subject to the father providing the mother with a 40-days written notice prior to his arrival in Country D:

   (d)       A period of up to 14 days during the child's school holiday periods; and During [sic] school term in week 1 from Friday after school until Sunday 5pm; and in week 2 from Wednesday after school until Thursday morning.

   (e)       At all other times as agreed.

2. Unless the parties otherwise agree, all changeovers in Country D take place at the international airport closest to the mother’s place of residence.

3. Each parent may deliver and collect the child personally or by their agent, provided that the agent is an adult known to the child and the other parent.

4. The travel expenses in respect of the child shall be borne by the father until the mother obtains full time employment and are thereafter to be shared equally between the parties.

5. Upon the child taking up residence in Country D, the mother will do all things to facilitate the child having communication with the father via WhatsApp and if WhatsApp is not reasonably available, by telephone or other electronic communication at 12 pm on Sunday and as otherwise requested by the child.

6. Upon the mother commencing to reside in Country D, she shall ensure:

   (a)       the [sic] father is advised at all times of her residential address, contact telephone number and a WhatsApp address by which the father may communicate with the child.

   (b)       Advise the father immediately in the event that the child suffers any serious illness or injury.

   (c)       Authorise any medical practitioner upon whom the child may attend from time to time, to communicate with the father in respect to the child’s medical condition and/or requirements, and

   (d)       Authorise all schools at which the child may attend from time to time to provide the father copies of all school reports, school notices and school photographs in relation to the child, and communicate with the father, either by telephone, in writing or other electronic means in respect to the child’s progress at her school.

If the mother relocates to Tasmania

1. In the event that the mother relocates to Tasmania the child spend time with the father as follows:

   (a)       From 1 February 2020 and every even year thereafter for the first half of autumn, winter and spring school holidays.

   (b)       From 1 February 2021 and every odd year thereafter for the second half of Tasmanian autumn, winter and spring school holidays.

   (c)       From 2020 and every alternate year thereafter during Tasmanian summer school holidays for the 2 weeks at the commencement of holidays.

   (d)       From 2021 and every year thereafter during Tasmanian summer school holidays for the 2 weeks at the end of holidays.

2. Unless the parties otherwise agree, all changeovers take place at the Hobart Airport.

3. When the child attains the age allowing her to travel by air as an unaccompanied minor, she will travel between Hobart and Sydney as an unaccompanied minor unless either party wishes to accompany her.

4. Every Father’s Day weekend - from after school on Friday to the commencement of school on Monday in Tasmania. The father will collect the child from and drop the child off at school at the commencement and conclusion of his time.

5. At the election of the father for up one weekend per month in Tasmania from after school on Friday to the commencement of school on Monday subject to the father providing the mother with a 14-days written notice prior to his arrival.

6. On one weekend every second month from Friday evening to Sunday evening with the mother to facilitate the child’s travel to Sydney and provision of 14 days notice to the father of the proposed dates of travel.

7. The child will additionally communicate with each of the parents when she is not in their care as agreed between the parties and failing the agreement via WhatsApp, telephone or other electronic communication at 12:00 pm on Sunday and as otherwise requested by the child.

8. Each parent will keep the other informed of:

   (a)       their mobile telephone number within 48 hours of the change occurring.

   (b)       the names and addresses of treating medical or other health practitioners who treat the child.

9. Both parents shall as soon as reasonably possible but no later than 24 hours notify the other parent of any serious medical condition or significant health issue or significant injury suffered by the child and shall provide the other parent with full details of the said illness, medical condition or injury including but not limited to medical certificates, details (including contact details) of the medical professional, attended upon, and the like.

If the mother is not permitted to relocate.

1. In the event that the mother is not permitted to relocate with the child, the child spend time with the father as follows:

   (a)       Each Tuesday and Thursday from 10am to 5pm and each alternate weekend from 10am Saturday until 5pm Sunday for a period of three (3) months.

   (b)       Thereafter and until the child commences school:

   a. [sic] In Week 1 each Thursday from the conclusion of pre-school on Thursday until the commencement of pre-school on Friday

   b. [sic] In Week 2 and each alternate weekend from after pre-school on Friday until 5pm Sunday.

   (c)       Upon commencement of school 2021:

   (i)In Week 1 each alternate weekend from the conclusion of school Friday to the commencement of school Monday; and

   (ii)In Week 2 from the conclusion of school Tuesday to the commencement of school Wednesday.

   (d)       In every even year for the first half of autumn, winter and spring school holidays.

   (e)       In every odd year thereafter for the second half of autumn, winter and spring school holidays.

   (f)        From 2021 and every alternate year thereafter during summer school holidays for the 2 weeks at the commencement of holidays.

   (g)       From 2022 and every year thereafter during school holidays for the 2 weeks at the end of holidays.

2. Unless the parties otherwise agree, all changeovers take place at the child’s school where possible and otherwise at the McDonalds Restaurant closest to the mother’s residence at the commencement of time and the McDonalds Restaurant at the conclusion of time closes to the father’s residence.

Other Orders

1. Both parents be permitted to take the child on interstate or overseas holidays, subject to the travelling party providing the other parent with a 30-days written notice of the proposed travel.

2. That pursuant to Section 11 of the Australian Passports Act 2005 (Cth) the Minister forthwith issue an Australian passport in the name of the child and without the necessity of obtaining the consent of the child’s father for that purpose.

3. That the mother and father are restrained from and immediately remove the child in the event that any third party in the presence of the child engages in: discussing current proceedings or parenting arrangements with the child or in her presence or hearing.

4. That the mother and father are restrained from sending each other text messages or other correspondence of derogatory or denigrating nature.

5. That if the child is not already spending time with the father, and notwithstanding any other order the child is to be spend additional time with the father as follows:

   (a)       On Christmas Day, at such times as agreed between the parties and failing agreement, between 10am Christmas Eve to 12 Noon Christmas Day in even numbered years commencing 2020, such time suspended in odd numbered years, and from 12pm Christmas Day to 6pm Boxing Day in odd numbered years, such time suspended in even numbered years.

   (b)       On New Year's Eve, at such times as agreed between the parties and failing agreement, between 2 pm on New Year's Eve until 6pm 1 January each odd numbered years commencing 2021 (New Year’s Eve 2021) and the father’s time be suspended between 2 pm on New Year's Eve until 6pm 1 January each even numbered years commencing 2020 (New Year’s Eve 2020).

   (c)       On Father's Day from 9 am to 5 pm and the father's time be suspended between 9 am to 5 pm on Mother's Day.

   (d)       On the father's Name Day being … December, at such times as agreed between the parties and failing agreement from 4 pm to 8 pm on weekdays and 9 am to 5 pm on weekends.

   (e)       On the child's Name Day being … November, at such time as agreed between the parties and failing agreement from 4 pm to 8 pm on weekdays and 10 am to 2 pm on weekends with the mother to spend time with the child from 2pm to 6pm on such day if on a weekend and the father’s time suspended.

   (f)        On … Easter from 6pm Thursday on the night before Good Friday to Easter Sunday at 6pm each even numbered years commencing 2020 and the father’s time be suspended from 6pm Thursday on the night before Good Friday to Easter Sunday at 6pm each odd numbered years commencing 2021.

   (g)       The father’s time is suspended on Country D … New Year each year from 10am to 6pm with the child to spend such date with the mother.

Property

1. That the property of the parties is divided between the parties as follows:

   (a)       40% to the mother and

   (b)       60% to the father.

   With the husband to pay to the wife within 30 days the cash adjustment required to give effect to order 30.

2. [sic] That the father pays [sic] mother’s costs of this application.

Annexure C

Orders sought by the Respondent Mother with respect to the COVID-19 pandemic

1. The mother is permitted to relocate to Country D from 1 July 2021. The parties are given leave to relist the matter for determination of a possible further deferral of such relocation in the event the present COVID-19 related border restrictions remain in place between Country D and Australia.

Alternatively

1. The mother is permitted to relocate to Tasmania from 1 November 2020. The parties are given leave to relist the matter for determination of a possible further deferral of such relocation in the event the present COVID-19 related border restrictions remain in place between NSW and Tasmania.

2. The parents take decisions about the child's attendance at Suburb AC Pre-School in accordance with the NSW Premier's recommendations.

3. For the duration of NSW Government physical-distancing restrictions all changeovers that do not occur at the Suburb AC Pre-School occur outside the Suburb V Police Station.

4. A parent who comes into contact with a confirmed case of corona virus, or themselves or the members of their household develop flu-like symptoms (fever, a cough, sore throat, tiredness or shortness of breath) must within 12 hours notify the other parent about this. The child must remain in the care of the other parent until such time when the first parent is cleared of coronavirus.

5. The operation of Orders made by McClelland Deputy Chief Justice on 18 October 2018 concerning periodic spousal maintenance be re-commenced. The father pay the mother $1,041 per week by way of spouse maintenance until such time when her relocation occurs.

6. Within 14 days from this order the father pay the mother an accumulated amount of spouse maintenance of $1,041 per week from 13 December 2019 to the date of this order.

Annexure D

Orders sought by the Independent Children’s Lawyer

Parental Responsibility

1. The parents have equal shared parental responsibility for the child B (“the child”) born … 2015.

Schooling

1. The child commence primary school in January 2021 and in the event the parties fail to come to an agreement as to what school the child enrols in prior to 1 July 2020, the parties shall proceed as follows:

   (a)       The mother nominate three primary schools at which the child may be enrolled, provided that none of the schools nominated be private schools unless the father consents in writing;

   (b)       The father will nominate one of the three schools within 7 days of receipt, failing which the mother nominate one of the three; and

   (c)       The parties each do all acts and things and sign all documents necessary to cause the child to be enrolled in the school the father has nominated.

Live with

1. The child live with the mother.

2. Both parents are restrained from relocating the child more than 30km from the Sydney CBD.

Spend time with and communication with the child

1. The father spend time with the child until the commencement of school in 2021 as follows:

   (a)       Each Tuesday and Thursday from 10am to 5pm and each alternate weekend from 10am Saturday until 5pm Sunday until 29 February 2020.

   (b)       From 1 March 2020 until 31 May 2020 each Tuesday and Thursday from 10am to 5pm and each alternate weekend from10am Friday to 5pm Sunday.

   (c)       From 1 June 2020 each week from 10am Tuesday to 10am Wednesday and each alternate weekend from 10am Friday to 5pm Sunday until the commencement of school 2021.

1. From the commencement of school 2021 the father spend time with the child as follows:

   (a)       In week 1, each alternate weekend from the conclusion of school Thursday to the commencement of school the following Monday;

   (b)       In week 2, from the conclusion of school each alternate Thursday to the commencement of school Friday; and

   (c)       One half of all school holidays as agreed to between the parties and failing agreement the first half in 2021 and each alternate year thereafter and the second half in 2022 and each alternate year thereafter.

2. If the child is not already spending time with the father, and notwithstanding any other order the child is to spend additional time with the father as follows:

   (a)       On Christmas Day, at such times as agreed between the parties and failing agreement, between 9 am on Christmas Eve to 6 pm Boxing Day in even numbered years commencing 2020 and the father’s time be suspended between 9 am on Christmas Eve to 6 pm Boxing Day in odd numbered years commencing 2021;

   (b)       On New Year's Eve, at such times as agreed between the parties and failing agreement, between 2 pm on New Year's Eve until 6pm 1 January each odd numbered years commencing 2021 (New Year’s Eve 2021) and the father’s time be suspended between 2 pm on New Year's Eve until 6pm 1 January each even numbered years commencing 2020 (New Year’s Eve 2020) ;

   (c)       On Father's Day from 9 am to 5 pm and the father's time be suspended between 9 am to 5 pm on Mother's Day;

   (d)       On the father's Name Day being … December, at such times as agreed between the parties and failing agreement from 4 pm to 8 pm on weekdays and 9 am to 5 pm on weekends;

   (e)       On the child's Name Day being … November, at such time as agreed between the parties and failing agreement from 4 pm to 8 pm on  weekdays and 9 am to 5 pm on weekends;

   (f)        On … Easter from 6pm Thursday on the night before Good Friday to Easter Sunday at 6pm each even numbered years commencing 2020 and the father’s time be suspended from 6pm Thursday on the night before Good Friday to Easter Sunday at 6pm each odd numbered years commencing 2021; and

   (g)       At such other times as agreed between the parties.

3. The child communicate with each of the parents when she is not in their care as agreed between the parties and failing agreement via Skype, telephone or other electronic communication at 6:00pm on Wednesday and Sunday and as otherwise requested by the child. 

4. Neither party will unreasonably prevent the child from telephoning the other parent and each parent will facilitate at all times the children’s communication with the other parent in accordance with these orders.

Changeover

1. Changeover take place at the child’s school and if the child is not at school changeover take place as follows:

   (a)       The father collects the child at the commencement of his time with the child at McDonald’s in Suburb AX; and

   (b)       The mother collects the child at the conclusion of the father’s time with the child at KFC in Suburb AY.

Conduct

1. The parties are restrained from striking the child or otherwise physically disciplining the child.

2. Neither party denigrate the other party or any other future partner, family members or friends whilst in the presence or hearing of the child or allow, with their knowledge, a third party doing so.

3. Each party will encourage and foster the child’s relationship with the other party.

Travel

1. Both parents be permitted to take the child interstate during the time that the child is in their care provided the travelling parent has given the other parent  30 days written notice of the proposed travel. 

2. The mother and father are restrained by injunction from causing the child to leave the Commonwealth of Australia.

3. The mother is restrained from obtaining a Country D passport for the child unless the father has consented in writing.

4. The Court requests that the Australian Federal Police place the name of the child, B (born … 2015) on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia until the child attains the age of 16 years.

5. The Marshal and all offices of the Australian Federal Police and the police forces are request and authorised to give effect to these orders.

Communication

1. Within 7 days of the date of these orders both parties do all acts and things to subscribe to the application known as “Our Family Wizard” and each pay their own costs for the application and conduct all communication regarding all matters relevant to the child using this application unless as otherwise agreed to between the parties.

2. Each parent will keep the other informed of:

   (a)       Their mobile telephone number and home address within 48 hours of the change occurring. 

   (b)       The names and addresses of treating medical or other health practitioners who treat the child. 

   (c)       Both parents as soon as reasonably possible but no later than 24 hours notify the other parent of any serious medical condition or significant health issue or significant injury suffered by the child and provide the other parent with full details of the said illness, medical condition or injury including but not limited to medical certificates and details (including contact details) of the medical professional attended upon. 

3. The parties communicate by telephone for all matters of an urgent nature regarding the child.

Other matters

1. The mother continue to engage with her psychologist, Ms R, for the purpose of facilitating time arrangements and co-parenting arrangements between the father and the child until the psychologist forms the view the therapy is no longer required.