KOZUCH & ASKER

[2015] FamCA 1024

FAMILY COURT OF AUSTRALIA

KOZUCH & ASKER [2015] FamCA 1024

FAMILY LAW – CHILDREN – RELOCATION – Where the mother wishes to relocate with the seven year old child of the parties from Australia to Russia – Where the mother and the child lived in Russia from when the child was two years old until the child was almost five years old – Where the father unilaterally prevented the mother and the child from returning to Russia after the mother brought the child to Australia for a temporary visit – Where the father has provided very limited financial support for the mother and the child – Where the father’s capacity to provide for the child’s emotional needs is questionable – Where the child has spent very little time with his father – Where the child’s primary attachment is to his mother and it is likely that his strongest secondary attachment is to his maternal grandparents who live in Russia – Where, given the father’s history of spending time with the child, the Court could have no confidence that the father would give priority to the child over his other commitments if the child remained in Sydney – Where the benefits to the child living in Russia outweigh the detriments – Orders made permitting the mother to relocate – Orders made providing that the mother have sole parental responsibility.

Family Law Act 1975 (Cth) ss 60CC, 61DA

APPLICANT: Ms Kozuch

RESPONDENT: Mr Asker

FILE NUMBER: SYC 4396 of 2013

DATE DELIVERED: 23 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 12 and 13 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levy

SOLICITOR FOR THE APPLICANT: Taylor & Scott

COUNSEL FOR THE RESPONDENT: Ms Beck

SOLICITOR FOR THE RESPONDENT: Merhi & Associates

Orders

IT IS ORDERED

1. That the mother have sole parental responsibility for X born … 2008 (“the child”)

2. That the child live with the mother.

3. That the mother be permitted to relocate with the child to the Russian Federation (“Russia”).

4. That the child spend time with the father in Australia as agreed between the parents.

5. That the child spend time with the father in Russia during any school holiday period in alternate weeks unless otherwise agreed between the parents.

6. That the father provide written notice to the mother not less than 28 days prior to the commencement of any proposed visit.

7. That the mother facilitate any proposed visit of the father to Russia by signing any document, including any document evidencing her sponsorship of the father, which is required for him to obtain a visa.

8. That the father, not less than 28 days prior to any visit, provide to the mother an itinerary including confirmed accommodation bookings and telephone contact details for himself and the child.

9. That during periods when the father is not in Russia and the child is not in Australia, the father is to communicate with the child by telephone, Skype or Facetime on Monday, Wednesday and Friday between 6.00 pm and 7.00 pm (City Z time), and the father is to initiate the calls.

10. That the child be facilitated by the mother to call the father at any time.

11. That the mother ensure that the father has, at all times, a telephone number and Skype or Facetime address for the child.

12. That the mother ensure that the child receives calls from the father in private and without interruption.

13. That when the child is spending time with the father, the mother can communicate with the child in accordance with Order 9.

14. That each parent inform the other of any medical emergency involving the child.

15. That each parent inform the other of current residential and email addresses and telephone numbers.

16. That the father be at liberty to communicate with the child in writing by letter, card or email and to send gifts to the child.

17. That pursuant to sections 11(1)(b), 11(2)(b) and 11(2)(c) of the Australian Passports Act 2005 (Cth), an Australian passport be issued to the child without the requirement for the father’s consent.

18. That not later than 15 December 2015, the name of the child be removed from the Airport Watch List and that the child be permitted to leave the Commonwealth of Australia.

19. That the father spend time with the child before 14 December 2015 as agreed between the parents.

20. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4396  of 2013

Ms Kozuch

Applicant

And

Mr Asker

Respondent

REASONS FOR JUDGMENT

1. The child X (“the child”) was born in 2008. His mother, Ms Kozuch (“the mother”) is Russian. She was born in City Z, Russia. His father, Mr Asker, (“the father”) was born in Country Y in the Middle East.

2. The child is an Australian citizen having been born in Australia. The father is also an Australian citizen, having come to Australia as a refugee. The mother has permanent resident status in Australia. The father has a degree in a professional discipline from an Australian university. The mother has a Master’s Degree but she has not worked as a financial professional.

3. The mother wishes to relocate with the child to City Z. The father opposes that application. He seeks an order that the child live with him. In the alternate, the father seeks orders that the child live with the mother in Australia and spend time with him as agreed.

4. The parents married in 2007. In January 2008 the father travelled to Country A in the Middle East where his business, S Services, was based. The child was born in March 2008 in Sydney. The father returned to Sydney six days after the child’s birth. He stayed with the mother and the child for three weeks and then returned to Country A.

5. In April 2008 the mother and the child travelled to Country A to spend time with the father. In June 2008 the mother and the child travelled to City Z and stayed with the maternal grandparents. The father joined them in City Z, he deposed, in December 2008. He then returned to Country A and the mother and the child stayed in City Z.

6. The father visited again at the end of 2009 by which time he had not seen the child for a year. From City Z, the parents and the child travelled to Southeast Asia for a holiday and then to Sydney and they returned together to City Z in March 2010. In May 2010, the father returned to Australia.

7. In about June 2010, the parents and the child arranged to holiday in City B. When they were in City B, they decided to travel to Australia to stay with the father’s brother in Melbourne. They arrived on 13 July 2010. The father agreed in cross-examination that the mother would not have agreed to travel to Australia if she had been aware that she would not be allowed to leave.

8. On 28 July 2010, 15 days after they arrived in Melbourne, the father left for Asia on business. He left the mother and the child in his brother’s home and, without the mother’s consent, he took the child’s passport with him, leaving the mother stranded in Australia and unable to leave. The father’s explanation for his actions was that he wanted to persuade the mother to remain in Australia.

9. The father’s brother persuaded the father to give the child’s passport back to the mother. The father said in cross-examination that the mother was crying all the time and he couldn’t persuade her to stay in Australia. A few days after the father returned to Australia, in September 2010, and the mother regained the child’s passport, she and the child returned to City Z.

10. In about October 2010 the father moved to Asia where he conducted a business.

11. In about March 2011, the mother took the child to spend time with the father in Asia. They stayed for a month and then returned to City Z where they lived until January 2013.

12. Between September 2010 and January 2013, the father did not travel to City Z to see the child. In cross-examination he said that he could not travel to City Z because he needed the mother to sponsor his visa. He also said that he never asked her to sponsor him. I do not accept that the father could not have visited the child in City Z if he wanted to do so. The mother deposed that she spoke often to the father during this period and invited him to come to visit but that he refused. Her evidence on that point was not challenged and I accept it.

13. From December 2008 until January 2013, when the child was almost five years old, the child had spent about eight months of his life living in the same home as the father. Most of his time had been spent in the home of the maternal grandparents in City Z. His primary attachment was to his mother but it is likely that his strongest secondary attachments were to his grandparents.

14. In January 2013, the mother arranged to come to Australia, arriving on 29 January 2013. She intended to stay for three months. In that time, it was her intention that the child could spend some time with the father and she could renew the child’s passport. The father agreed in cross-examination that, when the mother came to Australia, she intended to stay for a limited time and then return to City Z.

15. The father, at this time, was living in Adelaide. The father’s brother had lived in Melbourne with his wife and three children. In April 2012, the father’s brother died. The father decided to establish a business in Adelaide. The genesis of that decision is not clear although counsel for the mother attempted to explore it in cross-examination. The father said he established the business with his nephew D. In January 2013, D was still in school in Melbourne finishing Year 12. The other two children of the father’s brother also lived in Melbourne. Whatever the reason may have been, the father chose to settle in Adelaide. It was put to the father that he could have chosen to live in Sydney but he said that was not possible.

16. When the mother arrived in Australia, the father was in Southeast Asia. He did not return to Australia until 4 February 2013. There is no evidence that the mother had informed the father that she and the child would be coming to Australia.

17. When the mother and the child arrived in Australia, the child spoke no English.

18. The mother asked the father to sign the renewal forms for the child’s passport. He refused. The father knew that the mother and the child could not leave Australia without the renewed passport. He gave evidence that he refused to sign the renewal so that he could keep the mother in Australia and try to persuade her to reconcile with him and live in Australia. His tactics of persuasion did not include providing her with any financial or emotional support.

19. The mother, stranded in Sydney, enrolled the child in school. She engaged solicitors and her solicitors wrote to the father asking him to sign the forms to renew the child’s passport. He did not respond.

20. In May 2013, until 16 June 2013, the father travelled to Europe for a holiday.

21. Between 9 July 2013 and 1 August 2013, the father travelled to Asia on business.

22. On 2 August 2013 the mother filed an application for parenting orders, including orders permitting her to return with the child to Russia.

23. When the mother applied for the proceedings to be expedited, the father opposed the application.

24. The father travelled to Country Y to see his mother between 4 April 2014 and 17 April 2014.

FINANCIAL SUPPORT FOR THE MOTHER AND THE CHILD

1. The father provided no financial support at all until November 2013, leaving the mother to fend for herself and the child for 11 months. On 6 November 2013, after the mother made application to the Child Support Agency, she received a single payment of $34.83.

2. Thereafter the father made the following payments of Child Support:

   4 March 2014  $748.32

   18 August 2014  $539.15

   12 May 2015  $989.19

   12 June 2015  $110.17

3. Between 6 November 2013 and 12 June 2015, the total paid by the father in Child Support was $2,421.

4. There was no evidence of the father’s financial position but I note that he ran a business in Asia and travelled to Asia on business in 2013, and that he had three overseas trips between 2013 and June 2015.

5. The father deposed that he also bought clothes for the child. The mother agreed that he had bought clothes on two occasions in 2013. The father agreed that he had not bought any clothes for the child in 2015. His explanation was in words to the effect, “Why would I when she doesn’t put them on him”. Given that the father has seen the child only three times in 2015, he would not be in a position to know what clothes the child was wearing. However, whatever the child was wearing in 2015, it was provided by his mother.

THE FATHER’S TIME WITH THE CHILD

1. There is no evidence in the father’s affidavit of his spending any time with the child in 2013, other than one day shortly after the mother and the child arrived and for one week in September 2013 when the mother and the child travelled to Adelaide and spent a week there.

2. In his affidavit sworn 10 June 2015, the father sets out the times he spent with the child from the beginning of 2014 to the date of the affidavit.

3. In January 2014, he stayed in Sydney for five days and spent time with the child on three of those days.

4. The father deposed that he generally travelled to see the child monthly. He complained that his time with the child was unnecessarily restricted by the mother. On each occasion, he deposed “the mother only allowed me to see [the child] for 3-hours”. His actual time with the child is set out in his affidavit.

5. On 22 February 2014 he spent half a day with the child.

6. On 18 March 2014 he flew to Sydney to see the child and spent three hours with him. 18 March was a Tuesday and the child was at school.

7. On 28 March 2014, the father’s solicitors wrote a letter to the mother proposing that the child spend time with him in Adelaide in each short school holiday period for periods of about 11 days, and for five weeks in the Christmas holidays at the end of 2014. The father proposed that the child fly unaccompanied. The child had just turned six years of age and had never spent overnight time with the father. The mother replied to the father’s proposal and voiced her reasonable objections. She invited the father to make an alternate proposal whereby the father spent time with the child in Sydney during school holiday periods. The father did not respond.

8. There was no visit in April.

9. On 1 May 2014, the father flew to Sydney and spent three hours with the child. 1 May was a Thursday.

10. On 3 June 2014 the father spent three hours with the child. 3 June was a Tuesday.

11. On 8 July 2014 the father spent three hours with the child. 8 July was a Tuesday.

12. There was no visit in August, September or October 2014.

13. On 13 November 2014 the father spent three hours with the child. 13 November was a Thursday. This was the day the interviews for the Family Report were conducted. No prior arrangements were made with the mother. The father asked for time with the child at the interview. The mother agreed.

14. On 10 December 2014 the father spent three hours with the child. 10 December was a Wednesday.

15. I reject the father’s evidence that the mother restricted his time with the child on those visits. Three hours after school is a reasonable period for a child who has to attend school the next day. Why the father did not organise to visit Sydney on weekends, when the child was not in school and able to spend time with him, is completely unexplained and it can only be speculated that his business commitments did not permit him to come at weekends.

16. The father did not visit the child in January, February or March 2015. He did not visit the child on his birthday in March 2015.

17. There was no visit in April or May 2015.

18. On 15 June 2015, the father sent the mother a text message saying that he wanted to spend time with the child the following day, Tuesday. The mother agreed and the father spent time with the child after school.

19. In August 2015 the father travelled to Sydney when the child was competing in a sports tournament and spent the day with him

20. On 23 October 2015 the father requested time with the child on 25 October, Sunday, but the child had other arrangements in place.

21. The father has made occasional telephone calls to the child. Those calls were random and there was no arrangement for regular calls or a pattern that the mother and the child could anticipate. The last call was in May 2015.

THE COMPETING APPLICATIONS

1. The mother seeks orders that she has sole parental responsibility for the child and that she and the child be permitted to relocate to Russia. She proposes that the father spend time with the child in Russia during school holiday periods, provided that while in Russia he surrenders his passport to her. She proposes communication between the father and the child by telephone until the child is ten years old when communication could, in addition, be by email.

2. The father seeks orders that the child live with him. In the alternate, he seeks orders that the child live with the mother in Australia and spend time with him as agreed. In addition he seeks orders for communication by Skype, telephone and email.

3. The father was silent as to the orders he sought if the child lived in Russia and no proposition was put to the mother that would require her to bring the child to Australia to spend time with the father.

THE FATHER’S CIRCUMSTANCES

1. Counsel for the mother described the father as “an international man of mystery”. While that submission is somewhat theatrical, there is a kernel of truth.

2. The father’s incoming and outgoing passenger cards were subpoenaed. Between 2001 and 2015 the father made 25 overseas trips for purposes usually described as “business”. He gave his occupation variously as engineer, manager, businessman, business developer. From 2013, when he deposed that he was resident in Adelaide, he gave his address on the incoming passenger cards variously as Sydney or Melbourne. The first time he gave an address in Adelaide was in April 2015.

3. In his affidavit he deposed to being employed in “customer service in Adelaide” in addition to working in his nephew’s business in Adelaide.

4. In 2013 he flew to Asia giving the reason for travel as “business”. Between 2010 and 2013 the father had five trips to Asia for “business”.

5. No inferences can be drawn from those activities, except that the father would have no difficulties coping with the logistics of travel to City Z.

THE HEARING

1. Each parent was represented by counsel. They each relied on one affidavit only. Each was cross-examined. A Child Responsive Memorandum was completed by the Family Consultant, Ms M, on 19 December 2013 and a Family Report was also prepared. Ms M was cross-examined.

2. In her Family Report dated 25 November 2014, Ms M recommended that the child and the mother be permitted to return to Russia.

CONSIDERATION

1. There is no dispute that it would be in the child’s interests to maintain a meaningful relationship with both of his parents.

2. There is no allegation of family violence or risk of psychological harm to the child.

3. The child’s views were clearly stated to Ms M. He wants to live in Russia. The child is not yet eight years old. I accept the evidence of Ms M that the child does not have the intellectual or cogitative ability to make a considered decision about where he should live. I accept her evidence that the child’s primary focus is on his mother. He is aware that living in Russia would make his mother happy and, if she is happy, then he will be happy. His views must be given the weight appropriate to those considerations.

4. The child’s primary relationship is with his mother. She has cared for him from birth and he has had very little time with his father. Despite the lack of time that the child has spent with his father, Ms M observed a loving and comfortable relationship between them. However, Ms M was clear that it would not be appropriate for the child to live with his father to the exclusion of his mother. The father in cross-examination agreed.

1. For the first five years of the child’s life, he lived in the home of his maternal grandparents. It is reasonable to assume that he also has a close and loving relationship with them. That relationship has been continued by their visits to the child in Australia. The maternal grandmother has come three times to Australia, staying for months on each occasion, and the maternal grandfather has come twice for extended visits.

2. The extent to which the parents have taken the opportunity to participate in the child’s life is an important consideration in this decision. The father’s time with the child has been irregular and very limited. Ultimately, it has been the father who has determined what time he would spend with the child.

3. He was not in Australia when the child was born, having left Australia about three months before the child was born to attend to his business interests in Country A. He was not present to support the mother through the last months of her pregnancy and the birth. The mother’s parents and her younger brother travelled to Australia to be with the mother in the last month of the pregnancy and during the birth.

4. The father returned to Australia when the child was six days old. He stayed for two weeks (according to the mother) or three weeks on his own version and then returned to Country A to attend to business.

5. The mother and the child spent about two months with the father in Country A from late April 2008 and then travelled to City Z and lived with the mother’s family. The father visited towards the end of 2008 and again at the end of 2009. The father gave no explanation for his failure to visit his baby son for over a year when the father was living in Country A and the child in City Z. They were together for an extended period after that visit and travelled together until about May 2010.

6. When the mother and the child came to Australia to stay with the father’s brother in Melbourne, the father left them there and travelled to Asia on business. He did not stay in Melbourne so that he could be with the child.

7. After the mother and the child returned to Russia in 2010, the father moved to Asia where he conducted a business. Between that time and January 2013, although he was in Asia and the child was in City Z, the father did not travel to City Z to see the child. I do not accept his explanation that he was unable to do so because he needed a sponsor. He could have asked the mother to sponsor him but he did not. There is no doubt that she would have done so. It is more likely that the father had other interests to which he gave priority.

8. During that period, the mother brought the child to Asia for a month to spend time with the father. It is her unchallenged evidence that the father made no effort to free up his time to spend with the child and that he spent little meaningful time with the child. Again, it is likely that he gave priority to his business interests rather than his son.

9. After the mother and the child came to Australia in January 2013, the father again spent little time with the child. He gave priority to his business in Adelaide and his responsibility to one of the children of his late brother over his responsibilities to his son.

10. There is no evidence of time that the father spent with the child in 2013 other than as outlined in Paragraph 30 of these reasons, but I can infer, that if there was further time with the child, it was short and infrequent.

11. Even after the mother instituted proceedings for permission to return with the child to Russia, the father does not appear to have been motivated to make an effort to spend time with him. The mother’s application was filed in August 2013. It must have been clear to the father that, in the consideration of the mother’s application, the strength of his commitment to parenting the child, as demonstrated in part by the effort he made to spend time with him, would be a significant factor. Yet, he did not seem to make any particular effort in that regard.

12. In 2014 the father spent three full days in January and one half day in February with the child. Thereafter between March and December 2014, he had six three hour visits – a total of 18 hours, with the child.

13. There was no explanation from the father for his choice to come to Sydney on a school day rather than a weekend day when the child could spend the day with him.

14. It was submitted by counsel for the father that the Court would find that the father was financially unable to afford to travel to Sydney. If that was the father’s case, then the onus lay with him to adduce evidence to support his assertion. There was no evidence of the father’s financial position. In the proposal made by the father’s solicitors to the mother’s solicitors on 28 March 2014, the father offered to pay for the child’s travel expenses every school holiday.

15. The proposal made in the letter from the father’s solicitors in March 2014 was inappropriate to the child’s age, developmental stage and the time that the child had, to that date, spent with his father. However, it was a proposal that required no travel or disruption to the father’s other activities. It is significant that, although invited to do so, the father made no proposal to spend extended time in Sydney with the child.

16. There is no real explanation for the father’s failure to spend time with the child in the first half of 2015. The father swore an affidavit on 10 June 2015, at a time when he had not seen the child for six months. He deposed that the mother informed him that her parents would be in Sydney until late February 2015 and that he should not bother coming to Sydney in that period. He was not cross-examined in relation to that evidence. The maternal grandparents returned to Russia in late February or March 2015. No explanation was given by the father for failing to arrange time with the child after they left. The most likely explanation is that he gave priority to other commitments.

17. The maternal grandparents have made a much more significant commitment to spend time with the child, travelling from Russia for extended periods, than has the father.

18. Similarly, the father’s commitment to maintaining telephone communication with the child has been initially poor and now non-existent. He has not telephoned the child for six months.

19. The father, in oral evidence, told the Court that he no longer lived in Adelaide but that he had moved within the last few weeks to live in Melbourne in his late brother’s home. He intends to set up a training business giving training in first aid and child care. His qualifications to run such a business are that he has completed a one day course in first aid and has enrolled in a child care course. In cross-examination, the father said that he expected to commit between $20,000 and $25,000 to start-up costs which would be mainly rent and that the business would be run by him and his 20 year old nephew, who is a student. The father proposes to run the business in Sydney and his nephew will run the Melbourne operation. By contrast, in November 2014, the father told Ms M that he did not want to move to Sydney.

20. Whatever the father’s plans may be, the proposal is, at this time, no more than that. Having regard to the father’s history of spending time with the child, there could be no confidence that, even if he lived in Sydney, he would give priority to the child over his commitments to the new business or that he would spend any more time with the child than he did in 2015. There is no specific time frame nominated by the father for his move to Sydney. It may never eventuate.

21. The father has not participated in decision making for the child jointly with the mother. On two occasions, in 2010 and 2013, the father has unilaterally and without prior warning to the mother, prevented her from returning to the place she regarded as her home and he has detained her in Australia against her will.

22. The father’s financial contributions to the child’s maintenance had been discussed earlier in these reasons. Other than presumably what he told the Child Support Agency to base the current assessment, there is no evidence of the father’s financial position.

23. The capacity of each of the parents to provide for the child’s needs requires examination.

24. In relation to the father, his capacity to provide for the child’s emotional needs must be questioned. In 2010 he brought the mother to Australia on false pretences. He knew she would not have come if she had known that she would be detained here against her will and not allowed to return to Russia. He did the same thing in 2013 when he refused to sign the documents to renew the child’s passport so the mother could return to Russia where both she and the child were habitually resident. The father appeared to have no concern for the mother’s welfare as a consequence of his actions or any concept of the effect that her distress was likely to have on the child. Ms M reported that the father “has done his best to avoid conflict” with the mother and that he does not understand why she feels negatively towards him. That suggests that the father lacks emotional understanding and empathy to an alarming degree.

25. After the mother was detained in Australia in February 2013 the father provided her with no financial support but, most importantly, he provided her with no emotional support. He remained in Adelaide. He offered her accommodation in Adelaide but, in cross-examination, conceded that he offered to allow her to come and live with him in his house, in effect, to reconcile with him.

26. Ms M reported that the father appears to minimise the impact on the mother of being restricted from leaving Australia and separated from her family and forced to a lower standard of living than that to which she is accustomed.

27. In cross-examination the father justified all of his actions in detaining the mother in Australia on the basis that he was acting in the child’s interests with no understanding of the extent to which this little boy’s interests are inextricably bound up in those of his mother.

28. The mother, for the last six months, has worked as a clerk. She rents a one bedroom flat and she sleeps on the lounge so that the child can have his own bedroom. In 2014 she started a business using capital of about $90,000 provided by her parents. She worked long hours in the business and, after school, the child had to come to the business until closing time which was often late. Consequently the child’s activities after school were restricted and her time to spend with him was restricted by her work commitments. The business failed. Because she could not afford to pay the fees, the child was forced to stop his extracurricular sport.

29. The mother’s capacity to support the child emotionally is challenged by the father who does not concede that she has in the past, or will continue, to support and encourage the child’s relationship with him.

30. I do not accept that criticism. In 2011, when on any view the parents were separated, the mother, of her own volition, took the child to Asia for a month to see his father. In 2013 she brought the child to Australia to spend time with the father.

31. She has allowed the father to spend time with the child on one day’s notice and, on the occasion of the interviews for the Family Report, on no notice. The fact that Ms M observed a close and loving relationship between the child and the father must be due, in a very large part, to the mother because the father has had so little time with him.

32. Nothing in the evidence suggests that the mother will not continue to encourage the child’s relationship with his father. Rather the concern is that the father will choose to continue to give priority to other commitments over the child.

33. The effect of the changes proposed by each of the parents on the child would be profound. The effects are best illustrated by considering the benefits and detriments to the child of each proposal.

34. The father’s primary proposal is that the child lives with him and spends time with the mother as agreed. He gave no evidence about how he would care for the child or where they would live. He agreed in cross-examination that it would be devastating for the child to live apart from his mother. No submissions were addressed to this application. It was not argued that the proposal was in the child’s interests. It is not in the child’s best interests that he be cared for by anyone other than his mother.

35. The father’s alternate proposal, and, by implication the mother’s alternate proposal, is that the mother remain in Sydney with the child.

36. The mother did not specifically state that, if the child were not permitted to relocate, she would remain in Sydney. However, she did not state that she would return to Russia without him and the whole tenor of her case is that she would not.

IF THE CHILD STAYS IN SYDNEY

1. The benefit for the child, of him and the mother staying in Sydney, is that he would be available for the father to visit if he chose to do so. There is no evidence that the child has had any relationship with the extended paternal family in Melbourne and Adelaide. The father has a cousin in Sydney who has children and the father has taken the child to visit on a few occasions but there is no evidence that the child has a close relationship with those relatives.

2. Although the father says he intends to move to Sydney, that is not something about which one could be confident.

3. There is no guarantee that, even if the father moves to Sydney, he will make more effort to spend time with the child.

4. The detriments of the child and the mother staying in Sydney are those identified by Ms M as follows:

   ·    It is highly likely that the mother’s mental health will be detrimentally affected.

   ·    Any deterioration in the mother’s mental health will have an effect on her ability to parent the child.

   ·    The mother is struggling with feelings of being trapped and not being able to move freely.

   ·    It is likely that the mother’s ability to continue to support the child’s relationship with his father will be eroded.

   ·    The mother misses the support of her family.

   ·    The mother is in poor financial circumstances.

   ·    The mother is unable to afford accommodation where she has her own bedroom.

IF THE CHILD LIVES IN RUSSIA

1. The benefits to the child of relocation were also identified by Ms M: 

   ·    The mother and the child would enjoy a higher standard of living in City Z. Her parents are wealthy and can provide her with self-contained accommodation where she would have her own bedroom.

   ·    The mother would be able to work in the family business.

   ·    She would be able to focus on the child and facilitate his spending time with friends.

   ·    She would be able to afford extra-curricular activities for the child that he has had to forego in Sydney.

   ·    The negative impact on the mother’s mental health will be removed.

   ·    The mother would have the emotional support of her family.

   ·    The child will live in the home of his maternal grandparents with whom he has a strong relationship.

   ·    The child will live with the adults who had been his reliable and regular carers.

   ·    If the mother is happy, the child will be happy.

   ·    The child’s relationship with his father is sufficiently established that he will remember his father. He is old enough to communicate with his father by electronic means.

2. It is obvious that the child would benefit greatly if his father were to make a real effort to spend time with him, firstly using Skype or similar electronic means and, ideally, by travelling to spend time with him but the father cannot be compelled to do that. Whether he will take the opportunity remains to be seen.

3. The substantial detriment of relocation is that the father will not easily or often be able to spend time with the child.

4. The child is not accustomed to regular time with his father so would probably not grieve if the father does not spend time with him. The father has never been a constant or reliable figure in the child’s life.

5. The benefits to the child of living in Russia outweigh the detriments and the mother will be permitted to relocate with him.

PARENTAL RESPONSIBILITY

1. The mother asks the Court to order that she have sole parental responsibility for the child. The father asks for equal shared parental responsibility.

2. There is a presumption in s 61DA of the Family Law Act 1975 (Cth) (“the Act”) that it is in the best interests of a child that the parents have equal shared parental responsibility when making parenting orders. Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

3. Ms M supports the mother’s application for sole parental responsibility.

4. The mother has been the child’s sole carer for most of his life and his primary carer at other times. She has made all of the day to day decisions about the child’s care. When the child required surgery in 2014, it does not seem that the father visited the child at that time.

5. As set out earlier in these reasons, the father has unilaterally prevented the mother and the child from returning to their home in Russia on two occasions, in 2010 and 2013.

6. Ms M comments that the mother’s inability to renew the child’s passport has left her and the child’s lives in limbo for the past two years.

7. Although the father did not seek orders that require the mother to bring the child to Australia to spend time with him, she told Ms M that she would do so once each year. The mother has friends in Australia and the means to travel. She has brought the child to Australia twice in the past.

8. The mother is more likely to voluntarily bring the child to Australia if she is confident that the father cannot prevent her from going home at the end of the visit. One way to assure her of this is to order that she have sole parental responsibility for him.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 23 November 2015.

Associate: 

Date:  23/11/2015