LABATO & NAPOLI
[2021] FCCA 251
•16 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LABATO & NAPOLI | [2021] FCCA 251 |
| Catchwords: FAMILY LAW – Parenting – relocation application – where Mother seeks to relocate with 4 year old child to Melbourne to live with her new partner – Father opposes relocation – where Father showed lack of insight and awareness – where the Mother has been the primary carer – where the child has a strong relationship with both parents – the Mother be permitted to relocate with the children in 2022 in order that her relationship with the Father can consolidate further. |
| Legislation: Family Law Act 1975 (Cth), Pt.VII, ss.60CA, 60CC(3)(c), (ca) & (i) |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Asher v Wilkinson (2020) 61 Fam LR 523 B & B [2006] FamCA 1207 Blanding v Blanding (2017) 55 Fam LR 218 KB & TC (2005) 33 Fam LR 471; (2005) FLC ¶93-224 Cales & Cales (2010) 251 FLR 454; (2010) 44 Fam LR 376 Collu & Rinaldo [2010] FamCAFC 53 F v F (2008) 38 Fam LR 52 Fox v Percy (2003) 214 CLR 118 Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102 Goode v Goode (2007) 36 Fam LR 422 Hepburn & Noble (2010) FLC 93-438 M v S (2008) 37 Fam LR 32 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) 41 Fam LR 483 Moose & Moose (2008) FLC 93-375 MRR v GR (2010) 240 CLR 461 Paskandy & Paskandy (1999) 154 FLR 437; (1999) FLC 92-878 Payne v Payne [2001] Fam 473; [2005] 2 WLR 1826 P & P (2005) FLC 93-239 Sealey & Archer [2008] FamCAFC 142 Sheldon & Weir (No.3) [2010] FamCA 1138 Sigley v Evor (2011) 44 Fam LR 439 Starr & Duggan [2009] FamCAFC 115 Taylor & Barker (2008) 37 Fam LR 461 U v U (2002) 211 CLR 238 Vontek v Vontek [2017] FamCAFC 28 Wiley & Wiley [2008] FamCAFC 153 |
| Applicant: | MR LABATO |
| Respondent: | MS NAPOLI |
| File Number: | CAC 1957 of 2019 |
| Judgment of: | Judge W J Neville |
| Hearing dates: | 10 and 11 August 2020 |
| Date of Last Submission: | 22 September 2020 |
| Delivered at: | Canberra |
| Delivered on: | 16 February 2021 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Lawson |
| Solicitors for the Applicant: | Farrar Gesini Dunn |
| Counsel for the Respondent: | Mr J Haddock |
| Solicitors for the Respondent: | Dobinson Davey Clifford Simpson |
ORDERS
All previous Parenting Orders be discharged.
The parties have Equal Share Parental Responsibility for the child, X (born: in 2016), (“the child”) however in the event the parties are unable to reach agreement, the Respondent Mother will have the final say.
The child live with the Mother.
The Respondent Mother be permitted to relocate to Melbourne but not before 1 January 2022.
From 16 February 2021 until the Mother’s relocation in 2022, the Father spend time with the child as agreed in writing between the parties with notification to be provided to the Court in a Consent Minute to be filed within 14 days of the date of these Orders, being by 2 March 2021.
Upon relocation of the Respondent Mother to Melbourne with the child, the Father spend time with the child as follows:
From 1 January 2022 until 10 June 2022 the child spend time with the Father:
(a)Every four weeks, from 10.00am on Saturday until 5.00pm on Sunday (1 overnight), alternating between Canberra and Melbourne; and
(b)At such other times as agreed between the parties, with the Father providing the Mother with no less than 4 weeks’ notice of his intention to spend time with the child in either Melbourne or Canberra.
From 10 June 2022 until 10 June 2023 the child spend time with the Father:
(a)Every three weeks, from Friday to Sunday (2 overnights) at times to be agreed between the parties to accommodate travel times but failing agreement, from 5:00pm on Friday until 5:00pm on Sunday, alternating between Canberra and Melbourne; and
(b)During the Victorian school holiday periods, in addition to the time provided for in Order 8a hereof, the child spend time with the Father as follows (not to be taken immediately after the child’s weekend with the Father pursuant to Order 8a hereof):
(i)During April, June and September school holiday periods, an additional 3 consecutive nights each holiday period; and
(ii)During December/January school holiday periods, an additional two blocks of 3 consecutive nights (not to be taken immediately following the child’s time with the Father during the Christmas Period pursuant to Order 28-30 hereof); and
For the purposes of Order 8a the parties shall agree upon the dates and times for the additional time, but failing agreement:
(a)The additional time in April, June and September holiday periods shall occur in the latter half of the first week of each holiday period; and
(b)The additional time December/January holidays shall occur in the second week of December 2021 and January 2022;
(c)The location for the additional time will alternate between Canberra and Melbourne, and if the Father wishes to spend time with the child in a different location that does not follow the alternating pattern, he will pay for all of the travel costs;
(d)At such other times as agreed between the parties, with the Father providing the Mother with no less than 4 weeks’ notice of his intention to spend time with the child in either Melbourne or Canberra.
From 10 June 2023 until the end of primary school the Father spend time with the child during school term:
(a)Every three weeks, from Friday evening to Sunday evening (2 overnights) alternating between Canberra and Melbourne, at times to be agreed between the parties upon the travelling parent providing the other parent with flight details;
During Victorian school holidays Order 10a be suspended from the last day of the school term until the last Sunday of the school holiday period.
From 10 June 2023 until the end of primary school the Father spend time with the child during school holidays:
(a)For half of each Term 1 and Term 3 school holidays as agreed between the parties, but failing agreement:
(i)In odd-numbered years, for the first half of the school holidays; and
(ii)In even-numbered years, for the second half of school holidays;
(iii)For two weeks (14 days) of the Term 2 school holidays in odd-numbered years;
(iv)For the Term 4 school holidays, for 2 blocks of up to 1 week at a time with the Father (not to be taken consecutively), on such dates and times to be agreed between the parties in writing, but failing agreement as follows:
(v)In odd-numbered years, from the day after the last day of Term until the 23 December and from 1 January to 7 January; and
(vi)In even-numbered years, from 31 December to 6 January and the last week of January school holidays up to the Saturday before school resumes; and
For the child’s time with the Father pursuant to Order 12 above:
(a)The Mother will make the child available in Canberra for the time spent in Canberra and will bear her associated costs;
(b)The Father will make himself available to the child in Melbourne for the time spent in Melbourne and will bear his associated costs;
(c)Until the child is legally old enough to travel on her own (via flights), the Mother will book the child’s flights and the Father will contribute one-half of the child’s travel costs within 24 hours of being provided with the receipt(s); and
(d)Once the child is legally old enough to travel (via flights) on her own as an unaccompanied minor, the parties will book and pay for the child’s flights in the alternate.
For the purposes of the child’s time with the Father for the school holiday periods:
(a)If the Father seeks to spend time with the child in Canberra, the Father shall pay the full cost of the child’s flights between Melbourne and Canberra and the Mother will make the child available in Canberra; and
(b)If the Father seeks to spend time with the child in Melbourne, the Father shall pay the full cost of his flights between Melbourne and Canberra and the Mother will make the child available in Melbourne.
For the purposes of handover, the Father will collect the child at the commencement of the time and return the child at the completion of the time to a location agreed in writing between the parties, but failing agreement, at the maternal grandparents’ house in Canberra or the front of the child’s Melbourne residence (as may be applicable); and
(a)If the agreed location for the purposes of handover is the Mother’s home, the Father will not enter the Mother’s property without her expressed consent; and
(b)Once the child is legally old enough to travel (via flights) as an unaccompanied minor, the handover by the Mother will occur upon the delivery of the child to the departing flight and pick up will occur by the Father collecting the child at the airport upon arrival, and the reverse will occur for return handover.
Upon the child commencing High School, order 6c shall continue save that Order 12 a iv shall be replaced with the following:
(a)For the Term 4 school holidays, the child spend time with the Father for half of the school holidays as agreed between the parties in writing, but failing agreement:
(i)In odd-numbered years, for the first half of the school holidays; and
(ii)In even-numbered years, for the second half of the school holidays.
(b)Each party is at liberty to travel with the child during the Term 4 school holidays when the child is in their care pursuant to these Orders and the other party will not unreasonably withhold their consent.
Unless otherwise agreed between the parties in writing, the child continue to attend upon Dr B (or other agreed child psychologist), at the parties’ joint equal expense, for the purposes of monitoring her behaviour and receiving feedback until Dr B (or the other agreed child psychologist) advises that the child no longer needs to see them or the parties mutually agree to cease the sessions;
Unless in circumstances of emergency, in the event a party is unable to adhere to the agreed dates, times or locations for the child’s time with the Father (“the defaulting party”), the defaulting party must provide a minimum of 7 days’ notice to the other party and the parties shall use their best endeavours to reschedule the child’s time with the Father and the defaulting party will pay any reasonable costs of rescheduling the child’s and the other party’s travel costs (if applicable).
After December 2027 (the end of primary school), the parties may review the child’s arrangements and make variations by consent in writing or failing agreement, attend upon an agreed Family Dispute Resolution practitioner if required to discuss whether the child’s arrangements need to be varied taking into account the child’s age and developmental stage.
Notwithstanding the above Orders, unless the child is already in the care of the relevant parent and unless otherwise agreed between the parties in writing, the child spend time with the Father and the Mother during special occasions each year, as follows:
On Mother’s Day, the child spend time with the Mother from 5.00pm on Saturday preceding Mother’s Day until 5.00pm on Mother’s Day.
On Father’s Day, if the child and the Father are in the same city, the child spend time with the Father from 5.00pm on Saturday preceding Father’s Day until 5.00pm on Father’s Day;
For the child’s birthday, unless otherwise agreed in writing between the parties, if the child and the Father are in the same city, the child spend time with the Father from 3.30pm to 5.30pm if a school day, and 9.00am to 12.00pm if a non-school day.
On the Mother’s birthday, the child spend time with the Mother from 12.00pm to 4.00pm.
On the Father’s birthday, if the child and the Father are in the same city, the child spend time with the Father from 12.00pm to 4.00pm if a non-school day and 3.30pm to 7.30pm on a school day.
For Easter in 2022, the child spend time with the Father from 10.00am on Good Friday until 2.00pm on Easter Sunday and otherwise with the Mother.
From 2023 onwards, the “Easter Period” is defined as beginning at 5.00pm on the Thursday evening before Good Friday until 12.00pm (midday) on the Tuesday after Easter Monday, and;
(a)In even-numbered years, the child will spend time with the Mother during the Easter Period;
(b)In odd-numbered years, the child will spend time with the Father during the Easter Period;
(c)In years where the Easter Period falls during the school holidays the school holiday clause prevails and Easter will not be in addition to the school holiday time.
(d)For Christmas:
The “Christmas Period” is defined as beginning on 6.00pm on 23 December until 4.00pm on 26 December (Boxing Day).
In even-numbered years, the child will spend time the her Mother during the Christmas Period; and
In odd-numbered years, the child will spend time with the Father during the Christmas Period.
For the purposes of facilitating the child’s time with the Father pursuant to Orders 26-27 (Easter) and 28-30 (Christmas), if the child and the Father are not already in the same city, the Father pay for the child’s flight costs in full.
Each party be restrained from discussing any issues, arrangements or matters in general or relating to these proceedings at handover, except the welfare of the child related to that specific visit
Each party be restrained from making any critical, derogatory, defamatory, insulting, inappropriate, demeaning, manipulative, undermining, remarks about the other party or members of their family in the presence or within the hearing of the child (or enabling someone else to).
Unless otherwise agreed in writing, all communication between the parties be only in relation to matters pertaining to the child, or matters relating to these proceedings or requirements thereof and such communication shall be conducted in writing via the “Talking Parents” application, except in emergency situations when communication is to be via the telephone number of the Mother or the Father.
Each party will inform the other party as soon as practicable, of any emergency giving rise to a serious illness/injury sustained by the child whilst in their respective care requiring medical attention via telephone in the first instance (numbers provided in Order 16 above). In the event either party is unreachable on those respective telephone numbers, the Father shall telephone Mr C or Ms D and the Mother shall telephone an individual nominated by the Father within 24 hours of these Orders being made.
Each party will provide the other party with the following details as soon as possible and within two 2 hours of that party becoming aware of the serious illness or injury sustained by the child:
(a)The nature of the illness of the circumstances giving rise to the illness or injury;
(b)The name and contact details of the treating doctor or other health professional if known at the time;
(c)The name of the hospital where the child has been admitted (if relevant); and
(d)Any known prescribed treatment or medication (including surgery or blood transfusion or any other relevant information); and immediately authorise the other parent to communicate with the treating medical practitioner, other health professional and/or hospital where the child has been admitted.
Each party will keep the other informed of the name and contact details of all medical practitioners and health professionals treating the child and do all things necessary to authorise such medical practitioners and health professionals to communicate directly with the other party.
Each party shall authorise any doctor or hospital who treats the child to release to the other parent any information that parent requests in relation to the child’s condition and treatment.
Both parties shall follow any recommendations made by the child’s treating medical practitioners and provide the child with any prescribed medication, as directed by the child’s treating medical practitioners.
In the event either party wishes to travel outside of the Commonwealth of Australia with the child, then such parent (“travelling parent”) must provide to the other parent (“remaining parent”) not less than two (2) weeks from the intended date of departure:
(a)Written notice which states that they intend to travel outside of the Commonwealth of Australia with the child; and
(b)Full particulars of the proposed travel including:
(i)The dates of the proposed travel;
(ii)Intended itinerary and flight details; and
(iii)Telephone contact details for the child while overseas.
(c)The remaining parent must inform the travelling parent in writing within 3 days of receipt of the written notice whether or not he or she consents to the travelling parent’s proposal to travel out of the Commonwealth of Australia with the child.
In relation to Order 23 hereof:
(a)Neither party will unreasonably withhold their consent to the proposed travel; and
(b)Both parties will use their best endeavours to agree upon and facilitate make-up time to reflect the time that the other parent did not spend with the child during the international travel (if applicable).
Each party shall sign a Passport Application or a Renewal Application within 7 days of a written request from the other parent to do so.
The Mother hold the child’s passport until required by the Father.
The Father return the child’s passport to the Mother within 3 days of the child returning to Australia.
Each party is entitled to a copy of the child’s reports, bulletins or other information from the child’s day care provider and other organisations where the child attends activities. Each party will independently arrange with the service provider to have the copies directly communicated to them.
Each party authorise the child’s day care/pre-school/school, to provide to either parent, at their own expense, if any, with copies of all school reports, any other reports on school progress and behavioural issues and all school circulars and letters in relation to the child.
Each party be responsible for organising contact between the child and their side of the child’s family.
The name of the child X (born: in 2016) be changed to X Labato-Napoli.
The Mother is given leave to apply to the Registrar of Births, Deaths and Marriages in and for the Australian Capital Territory to register the name of the child formerly known as X (born: in 2016) to X Labato-Napoli.
The Registrar of Births, Deaths and Marriages in and for the Australian Capital Territory is ordered to register the name of the child formerly known as X as X Labato-Napoli.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
IT IS NOTED that publication of this judgment under the pseudonym Labato & Napoli is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1957 of 2019
| MR LABATO |
Applicant
And
| MS NAPOLI |
Respondent
REASONS FOR JUDGMENT
Introduction
At the outset, two preliminary comments are apposite in this parenting matter that involves 4 year old X, and her Mother’s Application to move to Melbourne to live with her new partner, Mr C. The Respondent Father opposes the relocation Application.
First, as a cautionary reminder, in the recent decision of Asher v Wilkinson, the Full Court (Strickland, Ainslie-Wallace, and Aldridge JJ) said, at [39] (emphasis added):[1]
… the task before the primary judge was to determine what parenting orders were in the child’s best interests. It was not to determine the location in which the mother was “permitted” to live. The use of that phrase in the context that it was used tends to focus on the mother having to justify to the Court where she wishes to live and obtain its approval. The use of that phrase obscures, if not overrides, the mother’s undoubted right to live where she chooses as explained in AMS v AIF (1999) 199 CLR 160 at [92] and [191] and U v U [2002] HCA 36; (2002) 211 CLR 238 (“U v U”) at [37], [137] and [176].
[1] Asher v Wilkinson (2020) 61 Fam LR 523.
Secondly, in Taylor v Barker, the majority (Bryant CJ and Finn J) said, at [113] (emphasis added):[2]
… this was a difficult and finely balanced decision. In such a case one factor will usually become decisive. In this case his Honour determined that that factor was the mother’s happiness and contentment. In such a case where, as his Honour noted, the mother wanted to marry and be with the father of her second child, it could not, in our view, be said that his Honour was wrong in elevating this factor together with the impact on the mother and on the subject child of her not being permitted to relocate to join the man whom she wanted to marry, to be the decisive factor or factors in this case….
[2] Taylor v Barker (2008) 37 Fam LR 461.
The Full Court’s cautionary comments in Asher v Wilkinson, and those in Taylor v Barker, are acutely apposite and serve as important reminders in the current proceeding.
The Applicant Father’s primary submissions begin with the following paragraph:
These are proceedings which concern the child, X; aged 4. X is lucky to have two parents who love her and want to be involved, to the maximum extent that they can, in her life. Indeed, such a desire is entirely consistent with the stated objects of the Family Law Act (FLA) which provide that children should have the benefit of both parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child (s.60B FLA).
These statements are appropriate in setting out some basic background for the matters that the Court is required to determine. Most significantly, the Court is required to decide what parenting Orders are in young X’s best interests, pursuant to s.60CA of the Family Law Act 1975 (Cth) (“the Act”):
(a)The Mother seeks to relocate to Melbourne from Canberra to live with her new partner, Mr C, and for X to live with her;
(b)The Father seeks to restrain the Mother from relocating. Unfortunately, during the trial the Father did not provide the Court with any proposal for parenting Orders in the event the Court permits the Mother to relocate with X to Melbourne. After the trial he did so;
(c)The Father has served in the Australian Defence Force (“the ADF”) and has moved to Canberra from Brisbane to be able to spend more time with X.
For the reasons that follow, the Mother should be permitted to relocate to Melbourne with X. The only qualification is that this should occur not before 1st January 2022. This is essentially so the Father’s and X’s relationship may be more firmly grounded prior to her moving to Melbourne. I consider the Orders now made to be in X’s best interests pursuant to s.60CA of the Act.
In the light of the comments of the Family Consultant, Dr E, noted later in these reasons, X has a very strong bond with her Mother but a somewhat less secure bond with her Father. She has spent very limited time away from her Mother and relatively limited time with her Father, notably overnight. These matters warrant that there to be a period of time for X to build up not only the relationship with her Father but also a degree of greater resilience from being away from her Mother.
It is important to note further by way of introduction, two things. First, the issue of a delayed relocation (e.g. for the Mother to move to Melbourne after 12 months or so to ensure that the Father-daughter relationship is strengthened further) was raised at the outset of the trial by the Court, yet it received barely passing attention in submissions.[3] A “delayed relocation” was canvassed with the Family Consultant, Dr E, who confirmed that such a course would be a “helpful and positive” and “consolidation time” for X, and would in fact be and “particularly helpful to her.”[4]
[3] See the discussion at the start of the trial regarding, among other things, a delayed relocation at Transcript (10th & 11th August 2020) at 4 – 5. Hereafter “T” followed by page number.
[4] See T 163.
Secondly, at the outset of the trial, after noting the significant acrimony between the parties, Counsel for the Father submitted that his case was that he had “moved on” from the bitterness previously exhibited in the relationship. It was further submitted that the Mother had not “moved on.”[5] Accepting that this was a preliminary comment prior to the parties giving evidence, the Father’s evidence (set out later in these reasons) made plain that he had not “moved on” at all. In a significant number of respects, the Father’s evidence displayed, in my view, a clear lack of insight and understanding of what might or should reasonably be seen in both a parenting role, and in a co-parenting relationship, especially regarding communication. Accepting that the Mother’s evidence had its flaws, the Father’s evidence was a very clear display of so many of the problems alleged by the Mother. This leads me, unless otherwise stated, to strongly prefer the Mother’s evidence over the Father’s where there is any relevant difference. I do not doubt the Father’s best intentions and love for his daughter. However, unfortunately he presented as a very self-focussed and self-entitled parent who had not insignificant difficulty in appreciating the consequences of his actions, both historical when the parties were together, and post-separation.
[5] See T 5 – 6.
Related to the last observation, the Father’s case was that, if the Mother was permitted to relocate to Melbourne with X, the child’s relationship with the Father would be so compromised that X “would not know her biological Father”, that the Mother’s partner (Mr C), would effectively replace the Father, and that the Mother would not promote a meaningful relationship between X and her Father. As noted throughout the Father’s evidence, these contentions, which formed the primary bases of the Father’s challenge to the Mother relocating, were consistently disproved by the Father’s own evidence.
To these (in my view) in extremis submissions (during the hearing I referred to the case run by the Father as a “worst case scenario”),[6] I noted that the Family Consultant, Dr E, confirmed that (a) despite the Father being overseas for significant periods of time, (b) since the Mother moved to Canberra, and (c) contrary to what the Father alleged, the child continued to have a good and meaningful relationship with the Father. To all of this, Counsel for the Father agreed. This led me to observe further that this sound relationship between X and her Father was a “good base” upon which to continue to build their Father/daughter bond.[7] Indeed, as noted later in these reasons, the Father confirmed that his relationship with X had a “solid foundation.”[8] In her oral evidence, the Mother likewise confirmed that X had a good and loving relationship with the Father. She accepted that this is what the Family Consultant wrote in her Report.[9]
[6] See T 6.
[7] T 6.
[8] T 19 – 20.
[9] T 143.
It was also the case that, notwithstanding his regularly expressed concern about the possible risk to the relationship with his daughter, should the Mother be able to relocate with her to Melbourne, and likewise the Mother’s not infrequently expressed concerns about X spending time with him, the Father confirmed that the Mother had consistently complied with Orders for X to spend time with him. Put another way, whatever her reservations, the Mother had consistently complied with Orders to ensure that X spent time with her Father.
In short, and to repeat, the Father’s adverse contentions regarding his relationship with X, and regarding the Mother, were not only unsubstantiated, but were disproved by his own evidence.
A final observation: like many cases in more recent times, this matter explored at singular length and breadth the interpretation and meanings of a plethora of SMS and email messages between the parties. Those messages straddled the respective eras in the relationship – during co-habitation (including when the Father was posted overseas with the Australian Defence Force “ADF”) and post separation. In so many respects, very significant time was spent in cross examination of both parties, but particularly the Father, exploring the depths of meaning, insight, and all else regarding the messages as examples of his communication with the Mother. To borrow eminent French philosopher Paul Ricoeur’s famous phrase, it was a modern-day exploration of the “hermeneutics of suspicion”, with “suspicion” being an operative description of the co-parenting relationship. Other descriptors are canvassed in the course of these reasons.
Applicant’s orders sought
The Final Orders sought by the Applicant were contained in the Case Outline filed on the 4th August 2020. They were as follows (emphasis in original):
Parental Responsibility
1. That the parents shall have equal shared parental responsibility for the child, X, born in 2016 (“X”).
Primary Place of Residence
That the Mother be restrained from changing the child’s primary place of residence from the Australian Capital Territory.
Routine Time in 2020 and Term Time Arrangements
3. That the child shall live with the Mother and spend time with the Father as agreed between the parties in writing, but failing agreement, as follows:
3.1. From the date of these Orders until 30 November 2020, on a fortnightly rotating basis as follows:
3.1.1. In Week 1, from 3:00pm on Thursday until before day care or 8:00am the following Friday;
3.1.2. In Week 2, from 10:00am Saturday until before day care or 8:00am the following Monday
3.2. From 1 December 2020 until 31 May 2021, on a fortnightly rotating basis as follows:
3.2.1. In Week 1, from Thursday after preschool/day care or 3:00pm in the event of a non- school/non-day care day until Friday before preschool/day care or 8:00am in the event of a non-school/non-day care day;
3.2.2. In Week 2, from Friday after preschool/day care or 3:00pm in the event of a non- school day until before preschool/day care or 8:00am on a non-school/non-day care day the following Monday.
3.3. From 1 June 2021 until 30 November 2021, on a fortnightly rotating basis as follows:
3.3.1. In Week 1, from Thursday after preschool/day care or 3:00pm in the event of a non- school day until Friday before school or 8:00am in the event of a non-school/non-day care day;
3.3.2. In Week 2, from Thursday after preschool/day care or 3:00pm in the event of a non- school day until Monday before school or 8:00am in the event of a non-school/non-day care day.
3.4. From 1 December 2021 until 31 May 2022, on a fortnightly rotating basis as follows:
3.4.1. In Week 1, from Thursday after school/day care or 3:00pm in the event of a non- school/non-day care day until Friday before school or 8:00am in the event of a non-school/non-day care day;
3.4.2. In Week 2, from Wednesday after school/day care or 3:00pm in the event of a non- school/non-day care until Monday before school or 8:00am in the event of a non-school/non-day care day.
4. That from 1 June 2022, the child shall live with each parent during school terms on a week about basis, with changeover occurring each Monday after school or 3:00pm in the event of a non-school day, and with the Mother having the first week and each alternate week thereafter and the Father having the second week and each alternate week thereafter.
Time during School Holidays
5. That from the time the child commences preschool in 2021, during school holiday periods, the child shall live with each parent as agreed between the parents in writing but failing agreement, follows:
5.1. For the Terms 1, 2 and 3 school holidays occurring in 2021, the child shall live with the Mother and spend five consecutive nights during each school holiday period with the Father on dates and times as agreed between the parties, and failing agreement, from after school on the last day of required attendance that Term until 4:00pm on the sixth day thereafter (such that the Father will spend five consecutive nights with the child);
5.2. For the Term 4 school holiday period in 2021, the child shall live with the Mother and spend time with the Father in accordance with Order 3.3 above;
5.3. For the Terms 1, 2 and 3 school holidays occurring in 2022 and each alternate year thereafter, with the Father in the first half of the school holiday period and with the Mother in the second half of the school holiday period;
5.4. For the Terms 1, 2 and 3 school holidays occurring in 2023 and each alternate year thereafter, with the Mother in the first half of the school holiday period and with the Father in the second half of the school holiday period;
5.5. For the Term 4 school holidays commencing in 2022 and each year thereafter, on a week about basis, with changeover occurring every Friday at 4:00pm commencing on the first Friday of the last week of the school term in Term 4 and concluding on the last Friday immediately prior to the commencement of the next term in the following year (Term 1 of the following year)
5.6. For the Term 4 school holidays commencing in 2023 and each alternate year thereafter, with the Father in the first half of the school holiday period and with the Mother in the second half of the school holiday period;
5.7. For the Term 4 school holidays commencing in 2024 and each alternate year thereafter, with the Mother in the first half of the school holiday period and with the Father in the second half of the school holiday period.
6. That for the purpose of Order 5 hereof, unless otherwise specified in these Orders or otherwise agreed between the parties in writing:
6.1. The school holiday period commences at the conclusion of school on the last required day of attendance in that term;
6.2. The school holiday period concludes at commencement of the first day of school for the next term;
6.3. The halfway point of school holiday periods that are two weeks long shall be at 12:00pm on the Saturday following the first week of the school holiday period; and
6.4. The halfway point of the school holiday periods that are more than two weeks long, shall be calculated by dividing the number of days in that school holiday period by two, and in the event of an odd number of days, changeover shall occur at 12:00pm on the middle day.
Special Days
7. That notwithstanding the above Orders, on special days, the child shall spend time with each parent as agreed between the parents in writing, but failing agreement as follows:
7.1. On Father’s Day from 9:00am to 5:00pm with the Father;
7.2. On Mother’s Day from 9:00am to 5:00pm with the Mother;
7.3. On the child’s birthday, with the parent whom she is otherwise not living with pursuant to these Orders, on a weekday from 5:00pm to 7:00pm, and on a weekend from 10:00am to 1:00pm;
7.4. During the Christmas period as follows:
7.4.1. In 2020 and each alternate year thereafter:
7.4.1.1 From 12:00pm on Christmas Eve until 12:00pm on Christmas Day with the Father;
7.4.1.2 From 12:00pm on Christmas Day until 12:00pm on Boxing Day with the Mother;
7.4.2. In 2021 and each alternate year thereafter:
7.4.2.1 From 12:00pm on Christmas Eve until 12:00pm on Christmas Day with the Mother;
7.4.2.2 From 12:00pm on Christmas Day until 12:00pm on Boxing Day with the Father.
Changeover
8. That for the purpose of these Orders, changeover shall occur as follows:
8.1. Where the changeover coincides with the commencement or conclusion of day care, changeover shall occur at day care;
8.2. Where the changeover coincides with the commencement or conclusion of preschool, changeover shall occur at preschool;
8.3. Where the changeover coincides with the commencement or conclusion of school, changeover shall occur at school;
8.4. On all other occasions, at the commencement of the Father’s time with the child, the Father shall collect the child from the Mother’s residence and at the conclusion of the Father’s time with the child, the Mother shall collect the child from the Father’s residence.
9. That where either parent’s time with the child pursuant to these Orders concludes before day care or before school, the other parent shall be responsible for liaising with day care or the school in the event of an emergency or illness.
10. That where either parent’s time with the child pursuant to these Orders concludes after day care or after school, that parent shall be responsible for liaising with day care or the school in the event of an emergency or illness.
FaceTime/Telephone Communication
11. That each parent shall facilitate the child having FaceTime and/or telephone communication with the other parent, once a week on a night that the child is not in the other parent’s care, as agreed between the parties in writing, and failing agreement, between 5:00pm and 7:00pm.
12. That each parent shall facilitate the child having FaceTime and/or telephone communication with the other parent at all other and additional times as reasonably requested by the child.
13. That for the purpose of communication pursuant to Orders 11 and 12 above, each parent shall provide the child with privacy so that she can speak freely to the other parent.
Communication
14. That the parents shall continue to communicate about long-term issues relating to the child by way of the Talking Parents app.
15. That in relation to day-to-day issues about the care and welfare of the child, the parents shall use Whatsapp or other agreed text message communication to communicate.
16. That in the event of an emergency involving the child, the parent shall notify the other parent as soon as reasonably practicable, using the quickest form of communication, which may be by telephone or text message.
Restraints
17. That each parent be restrained by injunction from denigrating the other parent and/or their family members and friends to the child or in the presence of the child, and shall do all things reasonably necessary to remove the child from any environment in which the other parent and/or their friends or family are being denigrated in the presence of the child.
18. That each parent be restrained by injunction from passing information or messages through the child to the other parent.
19. That each parent be restrained by injunction from discussing these proceedings and/or their family law dispute with the child.
20. That the Mother be restrained from allowing the child to refer to the Mother’s partner, Mr C, as “Daddy”, “Daddy Mr C”, “other Daddy”, “Dad”, “Mr C Dad”, “Mr C Daddy” and/or other terms that denote biological fatherhood, and if the child does use such terms, the Mother shall correct the child as soon as practicable.
Travel
21. That in the event either parent wishes to travel interstate with the child, if the proposed travel is less than 7 days (in total) in a calendar month, that parent shall be permitted to travel with the child provided that the travel does not encroach upon the other parent’s time with the child and does not result in the child missing school or preschool, and provided the travelling parent provides the following to the other parent:
21.1 At least 7 days’ notice to the other parent;
21.2 The proposed dates of departure and return;
21.3 Copies of flight tickets or other public transport tickets, if applicable;
21.4 Contact details and the address of the accommodation where the child is staying,
22. That in the event either parent wishes to travel interstate with the child, if the proposed travel is equal to or more than 7 days (in total) in a calendar month, the conditions set out in Order 21 shall apply except that the travelling parent shall obtain the other parent’s written consent beforehand.
Passports and Overseas Travel
23. That within 7 days of written request by either parent, both parents shall do all acts and things and sign all necessary documents to renew the child’s Australian passport from time to time, as and when required, and/or apply for a new Australian passport (if that becomes necessary at any point), and the costs of the renewal/application shall be equally shared by the parents.
24. That subject to these Orders, the child’s Australian passport shall be held by the Mother.
25. That either parent is permitted to travel overseas with the child, if the following conditions have been met:
25.1. The proposed travel period does not encroach upon the other parent’s time with the child, or if it does, then the travelling parent shall have provided an appropriate make up time proposal;
25.2. The proposed travel period does not result in the child missing more than three days of required school attendance;
25.3. The travelling parent has provided to the non-travelling parent, at least eight (8) weeks’ notice with the proposed dates of departure and return, and the destination, and the following:
25.3.1. Copies of return airfares purchased for the child; and
25.3.2. An itinerary containing the addresses and contact details for all accommodation where the child will be staying during the period of travel.
26. That, provided the conditions set out in Order 25 have been met, the Mother shall provide the child’s passport to the Father no later than four weeks prior to the intended departure date, and the Father shall return the child’s passport to the Mother no later than two weeks after the child’s return to the Commonwealth of Australia.
Information sharing
27. That both parents shall authorise by these Orders any day care, preschool and/or school attended by the child, to provide to either parent, upon request, any reports, information or photos relating to child, at the requesting parent’s cost.
28. That the parents shall authorise by these Orders any of the child’s General Practitioner or treating medical and/or allied health practitioner/s to provide to either parent with any information or medical reports relating to the child at that parent’s cost (if any).
29. That both parents are at liberty to attend any day care/preschool/school event relating to the child’s attendance at the relevant facility/institution, including parent teacher interviews, sporting activities/games, fetes, assemblies/award ceremonies, and concerts.
30. That both parents are at liberty to attend any extracurricular activities that the child is involved in, provided that they do not approach the other parent at such activity.
The Applicant’s Supplementary Orders Sought
As noted below, the Father’s original Orders sought contained nothing regarding, for example, the time-with arrangements with X, should the Mother be permitted to relocate to Melbourne. That lacuna was filled by the Father filing a supplementary Minute of Orders Sought on 2nd September 2020. They were as follows:
1. That in the event the Mother is not permitted to relocate to Melbourne with the child and/or the Father is in the same city as the child, the Orders as set out in the Father’s Amended Initiating Application filed 22 July 2020 shall apply, except the domestic travel Orders set out therein shall be substituted with Orders 22 and 23 below.
2. That in the event the Mother is permitted to relocate to Melbourne with the child, Orders 3 to 31 shall apply.
Parental Responsibility
3. That the parents shall have equal shared parental responsibility for the child, X, born in 2016 (“X”).
Routine Term Time Arrangements (if relocation permitted)
4. That the child shall live with the Mother and spend time with the Father as agreed between the parties in writing, but failing agreement, as follows:
4.1. From the date of these Orders until 31 December 2021, on a fortnightly basis alternating between Canberra and Melbourne as follows:
4.1.1. For the time occurring in Canberra, from 11:00am on Saturday until 3:00pm on Sunday; and
4.1.2. For the time occurring in Melbourne from after school/day care or 3:00pm (on a non-school/non-day care day) on Friday until 5:00pm on Sunday; and
4.2. From 1 January 2022, on a fortnightly basis alternating between Canberra and Melbourne as follows:
4.2.1. For the time occurring in Canberra, from 6:00pm on Friday until 3:00pm on Sunday; and
4.2.2. For the time occurring in Melbourne from after school/day care or 3:00pm (on a non-school/non-day care day) on Friday until before school or 9:00am (on a non-school/non-day care day) on Monday with the first lot of time occurring in Canberra.
Time during School Holidays (if relocation permitted)
5. That from the time the child commences preschool in 2021, during the Victorian school holiday periods, the child shall live with each parent as agreed between the parents in writing but failing agreement, follows:
5.1. For the Terms 1, 2 and 3 school holidays occurring in 2021, the child shall live with the Mother and spend five consecutive nights during each school holiday period with the Father on dates and times as agreed between the parties, and failing agreement, from the first day following the last day of required attendance that Term until 4:00pm on the sixth day thereafter (such that the Father will spend five consecutive nights with the child), and such time shall occur either in Canberra or in Melbourne as elected by the Father;
5.2. For the Term 4 school holiday period in 2021, the child shall live with the Mother and spend time with the Father in accordance with Orders 4.1 and 4.2 above, and in addition, the child shall spend two lots of five consecutive nights in the Father’s care to coincide with the time the child will be in the Father’s care pursuant to Orders 4.1 and 4.2 above, on dates agreed between the parties in writing, and failing agreement on additional days following the first weekend of the child’s time with the Father and on additional days preceding the last weekend of the child’s time with the Father;
5.3. For the Terms 1, 2 and 3 school holidays occurring in 2022 and each alternate year thereafter, with the Father in the first half of the school holiday period and with the Mother in the second half of the school holiday period;
5.4. For the Terms 1, 2 and 3 school holidays occurring in 2023 and each alternate year thereafter, with the Mother in the first half of the school holiday period and with the Father in the second half of the school holiday period;
5.5. For the Term 4 school holidays commencing in 2022 and each year thereafter, on a week about basis, with changeover occurring every Saturday at 4:00pm commencing on the first Saturday following the last week of the school term in Term 4 and concluding on the last Saturday immediately prior to the commencement of the next term in the following year (Term 1 of the following year);
5.6. For the Term 4 school holidays commencing in 2023 and each alternate year thereafter, with the Father in the first half of the school holiday period and with the Mother in the second half of the school holiday period;
5.7. For the Term 4 school holidays commencing in 2024 and each alternate year thereafter, with the Mother in the first half of the school holiday period and with the Father in the second half of the school holiday period.
6. For the purpose of Orders 5.1, 5.3, 5.4, 5.5, 5.6 and 5.7 hereof, the Father shall elect whether the time between him and the child shall occur in Canberra or in Melbourne, and shall notify the Mother in writing of his decision at least 28 days prior to the commencement of his time with the child pursuant to these Orders.
7. That subject to Order 8 below, for the purpose of Orders 5.4, 5.5, 5.6 and 5.7 hereof, unless otherwise specified in these Orders or otherwise agreed between the parties in writing:
7.1. The school holiday period commences at 10:00am following the last required day of attendance in that term;
7.2. The school holiday period concludes at 5:00pm on the day immediately preceding the first day of school for the next term;
7.3. The halfway point of school holiday periods that are two weeks long shall be at 12:00pm on the Saturday following the first week of the school holiday period; and
7.4. The halfway point of the school holiday periods that are more than two weeks long, shall be calculated by dividing the number of days in that school holiday period by two, and in the event of an odd number of days, changeover shall occur at 12:00pm on the middle day.
Changeover (if relocation permitted)
8. That for the purpose of these Orders, in the event there are no flights available permitting changeover to occur at the stipulated times set out in that particular Order, unless otherwise agreed between the parties in writing, the following shall apply:
8.1. The parties shall book the flight that arrives at the changeover location at the closest time available to the changeover time; and
8.2. Notwithstanding Order 8.1 hereof:
8.2.1. In relation to the changeover on the first day immediately following the last day of required school attendance, the parties shall book the first flight available departing after 8:00am that day;
8.2.2. In relation to the changeover on the Sunday immediately prior to the first day of school for the next term, the parties shall arrange for flights to be booked such that the child is returned to the Mother’s care no later than 6:00pm.
9. That for the purpose of the time between the Father and the child:
9.1. When such time is occurring in Canberra:
9.1.1. Changeover shall occur at the Canberra Airport;
9.1.2. The Mother shall pay for the costs of the child’s flights to Canberra from Melbourne and from Melbourne to Canberra;
9.2. When such time is occurring in Melbourne:
9.2.1. Changeover shall occur at the child’s school or day care where changeover coincides with the conclusion or commencement of school or day care, and at all other times at the Mother’s residence;
9.2.2. The Father shall pay for the costs of his flights to and from Melbourne.
9.3. Until the child turns 12 years of age, the Mother shall do all things necessary to ensure that the child is accompanied by an adult known to the child, and if that adult is not the Mother, the Mother shall notify the Father of who that adult is as soon as reasonably practicable after flight tickets are booked;
9.4. After the child turn 12 years of age, both parties shall do all things necessary to allow the child to travel between Canberra and Melbourne as an unaccompanied minor.
Special Days (if relocation permitted)
10. That notwithstanding the above Orders, on special days, the child shall spend time with each parent as agreed between the parents in writing, but failing agreement as follows:
10.1. On Father’s Day, in the event the child is not already in the Father’s care pursuant to the above Orders, the Father shall be permitted to spend time with the child from 9:00am to 5:00pm in the event he elects to travel to Melbourne;
10.2. On Mother’s Day, in the event the child is in the Father’s care pursuant to Order 4, then the child shall be in the Mother’s care that weekend and shall instead spend the following weekend with the Father at times consistent with Order 4;
10.3. On the child’s birthday:
10.3.1. In the event the child is in the Father’s care pursuant to the above Orders, the Mother shall be permitted to spend time with the child in the city where the child will be pursuant to these Orders, from after school until 6:00pm on a school day, or from 10:00am until 1:00pm on a non-school day;
10.3.2. In the event the child is not already in the Father’s care pursuant to the above Orders, the Father shall be permitted to spend time with the child from after school until 6:00pm on a school day or from 10:00am until 1:00pm on a non-school day in the event he elects to travel to Melbourne.
10.4. During the Christmas period as follows:
10.4.1. In 2020 and 2022:
10.4.1.1. From 12:00pm on 23 December until 12:00pm on 26 December with the Father;
10.4.1.2. From 12:00pm on 26 December until 12:00pm on 29 December with the Mother;
10.4.2. In 2021:
10.4.2.1. From 12:00pm on 23 December 2021 until 12:00pm on 26 December 2021 with the Mother;
10.4.2.2. From 12:00pm on 26 December 2021 until 12:00pm 29 December 2021 with the Father.
10.4.3. From 2023 onwards, the child shall live with each party in accordance with Orders 5.6 and 5.7 above.
FaceTime/Telephone Communication (if relocation permitted)
11. That the Mother shall facilitate the child having FaceTime and/or telephone communication with the Father, twice a week on a night that the child is not in the Father’s care, as agreed between the parties in writing, and failing agreement, between 5:00pm and 7:00pm each Tuesday and Thursday.
12. That the Father shall facilitate the child having FaceTime and/or telephone communication with the Mother, when the child is not in the Mother’s care, as agreed between the parties in writing, and failing agreement, between 5:00pm and 7:00pm each Tuesday and Thursday that the child is not in the Mother’s care during school holidays.
13. That each parent shall facilitate the child having FaceTime and/or telephone communication with the other parent at all other and additional times as reasonably requested by the child.
14. That for the purpose of communication pursuant to Orders 11 to 13 above, each parent shall provide the child with privacy so that she can speak freely to the other parent.
Communication
15. That the parents shall continue to communicate about long-term issues relating to the child by way of the Talking Parents app.
16. That in relation to day-to-day issues about the care and welfare of the child, the parents shall use Whatsapp or other agreed text message communication to communicate.
17. That in the event of an emergency involving the child, the parent shall notify the other parent as soon as reasonably practicable, using the quickest form of communication, which may be by telephone or text message.
Restraints
18. That each parent be restrained by injunction from denigrating the other parent and/or their family members and friends to the child or in the presence of the child, and shall do all things reasonably necessary to remove the child from any environment in which the other parent and/or their friends or family are being denigrated in the presence of the child.
19. That each parent be restrained by injunction from passing information or messages through the child to the other parent.
20. That each parent be restrained by injunction from discussing these proceedings and/or their family law dispute with the child.
21. That the Mother be restrained from allowing the child to refer to the Mother’s partner, Mr C, as “Daddy”, “Daddy Mr C”, “other Daddy”, “Dad”, “Mr C Dad”, “Mr C Daddy” and/or other terms that denote biological fatherhood, and if the child does use such terms, the Mother shall correct the child as soon as practicable.
Travel
22. That in the event either parent wishes to travel interstate with the child, that parent shall be permitted to travel with the child provided that the travel does not encroach upon the other parent’s time with the child and does not result in the child missing school or preschool, and provided the travelling parent provides the following to the other parent:
22.1. At least 48 hours’ notice to the other parent; and
22.2. The proposed dates of departure and return;
23. That in the event either parent wishes to travel interstate with the child, if the proposed travel is encroaches upon the other parent’s time with the child pursuant to these Orders and/or the results in the child missing school or preschool, the conditions set out in Order 22 shall apply except that the travelling parent shall obtain the other parent’s written consent beforehand.
Passports and Overseas Travel
24. That within 7 days of written request by either parent, both parents shall do all acts and things and sign all necessary documents to renew the child’s Australian passport from time to time, as and when required, and/or apply for a new Australian passport (if that becomes necessary at any point), and the costs of the renewal/application shall be equally shared by the parents.
25. That subject to these Orders, the child’s Australian passport shall be held by the Mother.
26. That either parent is permitted to travel overseas with the child, if the following conditions have been met:
26.1. The proposed travel period does not encroach upon the other parent’s time with the child, or if it does, then the travelling parent shall have provided an appropriate make up time proposal;
26.2. The proposed travel period does not result in the child missing more than three days of required school attendance;
26.3. The travelling parent has provided to the non-travelling parent, at least eight (8) weeks’ notice with the proposed dates of departure and return, and the destination, and the following:
26.3.1. Copies of return airfares purchased for the child; and
26.3.2. An itinerary containing the addresses and contact details for all accommodation where the child will be staying during the period of travel.
27. That, provided the conditions set out in Order 26 have been met, the Mother shall provide the child’s passport to the Father no later than four weeks prior to the intended departure date, and the Father shall return the child’s passport to the Mother no later than two weeks after the child’s return to the Commonwealth of Australia.
Information sharing
28. That both parents shall authorise by these Orders any day care, preschool and/or school attended by the child, to provide to either parent, upon request, any reports, information or photos relating to child, at the requesting parent’s cost.
29. That the parents shall authorise by these Orders any of the child’s General Practitioner or treating medical and/or allied health practitioner/s to provide to either parent with any information or medical reports relating to the child at that parent’s cost (if any).
30. That both parents are at liberty to attend any day care/preschool/school event relating to the child’s attendance at the relevant facility/institution, including parent teacher interviews, sporting activities/games, fetes, assemblies/award ceremonies, and concerts.
31. That both parents are at liberty to attend any extracurricular activities that the child is involved in, provided that they do not approach the other parent at such activity.
Respondent’s orders sought
The Final Orders sought by the Respondent were contained in the Outline of Case Document filed on 3rd August 2020. They were as follows (emphasis in original):
1. All previous Parenting Orders be, and are hereby, discharged.
Parental Responsibility
2. The Mother have sole parental responsibility for the child of the former marriage, namely X born in 2016 (“the child”).
2.1 Prior to making any long-term decision affecting the child:
2.1.1 The Mother will contact the Father in writing to advise him of the upcoming decision and the Mother’s preference;
2.1.2 The Father will provide his opinion via the Talking Parents App within three (3) days;
2.1.3 The Mother will give the Father’s opinion consideration and will answer any reasonable questions raised by the Father about the proposal;
2.1.4 Where possible, the parties will reach joint agreement about the decision;
2.1.5 If agreement is not reached within 14 days (or a reasonable period in the circumstances) of the Mother’s contact with the Father, the Mother be at liberty to make the decision; and
2.1.6 The Mother is to advise the Father via the Talking Parents App of the decision within 48 hours of the decision being made.
Living Arrangements
3. The Mother be at liberty to relocate the child’s residence to Melbourne forthwith.
4. The child live with the Mother.
5. The child spend time with the Father as follows:
5.1 From the date of these Orders until 2 January 2021, as follows:
5.1.1 Every four weeks, from 10.00am on Saturday until 5.00pm on Sunday (1 overnight), alternating between Canberra and Melbourne; and
5.1.2 In addition to the time provided for in Order 5.1.1 hereof, from 10.00am on 31 December 2020 until 5.00pm 2 January 2021 (2 overnights); and
5.1.3 At such other times as agreed between the parties, with the Father providing the Mother with no less than four (4) weeks’ notice of his intention to spend time with the child in either Melbourne or Canberra.
5.2 From 3 January 2021 until 31 December 2021, as follows:
5.2.1 Every three weeks, from Friday to Sunday (2 overnights) at times to be agreed between the parties to accommodate travel times but failing agreement, from 5:00pm on Friday until 5:00pm on Sunday, alternating between Canberra and Melbourne; and
5.2.2 During the Victorian school holiday periods, in addition to the time provided for in Order 5.2.1 hereof, the child spend time with the Father as follows (not to be taken immediately after the child’s weekend with the Father pursuant to Order 5.2.1 hereof):
(a) During April, June and September school holidays periods, an additional three (3) consecutive nights each holiday period; and
(b) During December/January school holiday periods, an additional two blocks of three (3) consecutive nights (not to be taken immediately following the child’s time with the Father during the Christmas Period pursuant to Order 12.7 hereof); and
(c) For the purposes of Order 5.2.2, the parties shall agree upon the dates and times for the additional time, but failing agreement:
(i) The additional time in April, June and September holiday periods shall occur in the latter half of the first week of each holiday period; and
(ii) The additional time December/January holidays shall occur in the second week of December 2021 and January 2022;
(iii) The location for the additional time will alternate between Canberra and Melbourne, and if the Father wishes to spend time with the child in a different location that does not follow the alternating pattern, he will pay for all of the travel costs;
5.2.3 At such other times as agreed between the parties, with the Father providing the Mother with no less than four (4) weeks’ notice of his intention to spend time with the child in either Melbourne or Canberra;
5.3 From 1 January 2022 until the end of primary school, as follows:
5.3.1 During the school term:
(a) Every three weeks, from Friday evening to Sunday evening (2 overnights) alternating between Canberra and Melbourne, at times to be agreed between the parties upon the travelling parent providing the other parent with flight details;
5.3.2 During the Victorian school holidays, Order 5.3.1(a) be suspended from the last day of the school term until the last Sunday of the school holiday period, and the child spend time with the Father as follows:
(a) For half of each Term 1 and Term 3 school holidays as agreed between the parties, but failing agreement:
(i) In odd-numbered years, for the first half of the school holidays; and
(ii) In even-numbered years, for the second half of school holidays;
(b) For two weeks (14 days) of the Term 2 school holidays in odd-numbered years;
(c) For the Term 4 school holidays, for two (2) blocks of up to one (1) week at a time with the Father (not to be taken consecutively), on such dates and times to be agreed between the parties in writing, but failing agreement as follows:
(i) In odd-numbered years, from the day after the last day of Term until the 23 December and from 1 January to 7 January; and
(ii) In even-numbered years, from 31 December to 6 January and the last week of January school holidays up to the Saturday before school resumes; and
5.3.3. At such other times as agreed between the parties, with the Father providing the Mother with no less than four (4) weeks’ notice of his intention to spend time with the child in either Melbourne or Canberra.
6. When the child commences High School, Order 5.3 shall continue save that Order 5.3.2(c) shall be replaced with the following:
6.1 For the Term 4 school holidays, the child spend time with the Father for half of the school holidays as agreed between the parties in writing, but failing agreement:
6.1.1 In odd-numbered years, for the first half of the school holidays; and
6.1.2 In even-numbered years, for the second half of the school holidays.
6.2 Each party is at liberty to travel with the child during the Term 4 school holidays when the child is in their care pursuant to these Orders and the other party will not unreasonably withhold their consent.
7. That for the purposes of Order 5 above, unless otherwise agreed between the parties in writing, the following will apply:
7.1 The child continue to attend upon Dr B (or other agreed child psychologist), at the parties’ joint equal expense, for the purposes of monitoring her behaviour and receiving feedback until Dr B (or the other agreed child psychologist) advises that the child no longer needs to see them or the parties mutually agree to cease the sessions;
7.2 For the child’s time with the Father pursuant to Order 5.3 above:
7.2.1 The Mother will make the child available in Canberra for the time spent in Canberra and will bear her associated costs;
7.2.2 The Father will make himself available to the child in Melbourne for the time spent in Melbourne and will bear his associated costs;
7.2.3 Until the child is legally old enough to travel (via flights) on her own, the Mother will book the child’s flights and the Father will contribute one-half of the child’s travel costs within 24 hours of being provided with the receipt(s); and
7.2.4 Once the child is legally old enough to travel (via flights) on her own as an unaccompanied minor, the parties will book and pay for the child’s flights in the alternate;
7.2.5 For the purposes of the child’s time with the Father for the school holiday periods:
(a) If the Father seeks to spend time with the child in Canberra, the Father shall pay the full cost of the child’s flights between Melbourne and Canberra and the Mother will make the child available in Canberra; and
(b) If the Father seeks to spend time with the child in Melbourne, the Father shall pay the full cost of his flights between Melbourne and Canberra and the Mother will make the child available in Melbourne.
7.3 For the purposes of handover, the Father will collect the child at the commencement of the time and return the child at the completion of the time to a location agreed in writing between the parties, but failing agreement, at the maternal grandparents’ house in Canberra or the front of the child’s Melbourne residence (as may be applicable); and
7.3.1 If the agreed location for the purposes of handover is the Mother’s home, the Father will not enter the Mother’s property without her expressed consent; and
7.3.2 Once the child is legally old enough to travel (via flights) as an unaccompanied minor, the handover by the Mother will occur upon the delivery of the child to the departing flight and pick up will occur by the Father collecting the child at the airport upon arrival, and the reverse will occur for return handover.
8. That unless in circumstances of emergency, in the event a party is unable to adhere to the agreed dates, times or locations for the child’s time with the Father (“the defaulting party”), the defaulting party must provide a minimum of seven (7) days’ notice to the other party and the parties shall use their best endeavours to reschedule the child’s time with the Father and the defaulting party will pay any reasonable costs of rescheduling the child’s and the other party’s travel costs (if applicable).
9. After December 2027 (the end of primary school), the parties may review the child’s arrangements and make variations by consent in writing or failing agreement, attend upon an agreed Family Dispute Resolution practitioner if required to discuss whether the child’s arrangements need to be varied taking into account the child’s age and developmental stage.
Alternative to Orders 5 to 9 (inclusive)
10. If the Mother’s application for relocation is not successful and the child remains in Canberra, or if in the future the Father and the child lives in the same city, in the alternative to Orders 5 to 9 (inclusive) hereof, the child spend time with the Father as follows:
10.1 From the date of these Orders until 31 December 2020:
10.1.1 Each alternate weekend, from 10.00am on Saturday until 5.00pm on Sunday (1 overnight); and
10.1.2 Each Wednesday, from 3.30pm until 6.30pm;
10.2 From 1 January 2021:
10.2.1 Each alternate weekend, from 5.00pm on Friday until 5.00pm on Sunday (2 overnight);
10.2.2 Each Wednesday, from 3.30pm until 6.30pm;
10.3 From 1 January 2022 (once child commences school):
10.3.1 During the school term:
(a) Each alternate weekend, from the conclusion of school (or 3.30pm if a non-school day) on Friday until 5.00pm on Sunday (2 overnights);
(b) Each Wednesday, from 3.30pm until 6.30pm; and
10.3.2 During the school holiday periods, Order 10.3.1 is suspended and the child spend time with the Father as follows:
(a) In the Term 1, 2 and 3 school holiday periods, one block of three (3) nights as agreed between the parties, but failing agreement from the conclusion of school on the last day of the Term until 3.00pm on the following Monday; and
(b) In the Term 4 school holidays, in addition to the child’s time with the Father during the Christmas Period pursuant to Order 12.7 hereof, for three separate blocks of three (3) consecutive nights (that is, not 6 or 9 nights consecutively) as agreed between the parties, but failing agreement:
(i) From 10.00am on the first Friday following the conclusion of the school term until 3.00pm the following Monday;
(ii) From 10.00am on the first Friday in January until 3.00pm the following Monday; and
(iii) From 10.00am on the third Friday in January until 3.00pm the following Monday.
10.3.3 From 2023 and each year thereafter, the child’s school holiday time with the Father increase by one (1) night each year until it reaches a block of seven (7) nights, so that:
(a) In 2023, the child’s holiday time with the Father is in a four (4) night block (to occur at times as agreed between the parties, but failing agreement commencing at 10.00am on the first Saturday of the holiday period);
(b) In 2024, the child’s holiday time with the Father is in a five (5) night block (to occur at times as agreed between the parties and failing agreement commencing at 10.00am on the first Saturday of the holiday period);
(c) In 2025, the child’s holiday time with her Father is in a six (6) night block (to occur at times as agreed between the parties and failing agreement commencing at 10.00am on the first Saturday of the holiday period);
(d) In 2026 and thereafter, the child’s holiday time with her Father occurs for half of each school holiday period, such that:
(i) During Term 1, 2 and 3 school holiday periods, the child spend equal time with the Father on dates and times as agreed between the parties, but failing agreement, as follows:
(1) In even-numbered years, the first half of term holidays;
(2) In odd-numbered years, the second half of term holidays;
(3) The “first half” is defined as commencing from the last day of the school term and concluding at 5.00pm on the middle Sunday of the holiday period; and
(4) The “second half” is defined as commencing from 5.00pm on the middle Sunday of the holiday period and concluding on the first day of the school term.
(ii) During the Term 4 holidays:
(1) In 2026, two (2) blocks of seven (7) consecutive nights as agreed between the parties and failing agreement from 1 to 8 January 2027 and from 23 to 29 January 2027;
(2) In 2027, first two weeks of the school holiday period;
(3) In 2028 and thereafter, the child spend one half of the school holiday period with the Father on dates and times as agreed between the parties, but failing agreement, the second half of the school holiday period in even-numbered years and the first half of the school holidays in odd-numbered years.
10.4 At such other times as agreed between the parties, with the Father providing the Mother with no less than four (4) weeks’ notice of his intention to spend time with the child;
10.5 After December 2027, the parties may review the child’s arrangements and attend upon an agreed Family Dispute Resolution practitioner if required to discuss whether the child’s arrangements need to be varied taking into account the child’s age and developmental stage.
11. For the purposes of Order 10 hereof, unless otherwise agreed between the parties in writing, the following will apply:
11.1 The child continue to attend upon Dr B (or other agreed child psychologist), at the parties’ joint equal expense, for the purposes of monitoring her behaviour and receiving feedback until Dr B (or the other agreed child psychologist) advises that the child no longer needs to see them or the parties mutually agree to cease the sessions;
11.2 That where handover does not occur at the child’s school, handover will occur as agreed between the parties in writing, but failing agreement the Father will collect the child at the commencement of time and return the child at the completion of the time to the maternal grandparents’ home.
11.3 If the agreed location for the purposes of handover is the Mother’s home, the Father will not enter the Mother’s property without her expressed consent.
Special Occasions
12. Notwithstanding the above Orders, unless the child is already in the care of the relevant parent and unless otherwise agreed between the parties in writing, the child spend time with the Father and the Mother during special occasions each year, as follows:
12.1 On Mother’s Day, with the Mother from 5.00pm on Saturday preceding Mother’s Day until 5.00pm on Mother’s Day;
12.2 On Father’s Day, if the child and the Father are in the same city, with the Father from 5.00pm on Saturday preceding Father’s Day until 5.00pm on Father’s Day;
12.3 For the child’s birthday, unless otherwise agreed in writing between the parties, if the child and the Father are in the same city, with the Father from 3.30pm to 5.30pm if a school day, and 9.00am to 12.00pm if a non-school day;
12.4 On the Mother’s birthday, with the Mother from 12.00pm to 4.00pm; and
12.5 On the Father’s birthday, if the child and the Father are in the same city, with the Father from 12.00pm to 4.00pm if a non-school day and 3.30pm to 7.30pm on a school day.
12.6 For Easter:
12.6.1 In 2021, with the Father from 10.00am on Good Friday until 2.00pm on Easter Sunday and otherwise with the Mother;
12.6.2 From 2022 onwards, the “Easter Period” is defined as beginning at 5.00pm on the Thursday evening before Good Friday until 12.00pm (midday) on the Tuesday after Easter Monday, and;
(a) In even-numbered years, the child will spend time with the Mother during the Easter Period;
(b) In odd-numbered years, the child will spend time with the Father during the Easter Period;
(c) In years where the Easter Period falls during the school holidays the school holiday clause prevails and Easter will not be in addition to the school holiday time.
12.7 For Christmas:
12.7.1 The “Christmas Period” is defined as beginning on 6.00pm on 23 December until 4.00pm on 26 December (Boxing Day);
12.7.2 In even-numbered years, the child will spend time the her Mother during the Christmas Period; and
12.7.3 In odd-numbered years, the child will spend time with the Father during the Christmas Period.
13. For the purposes of facilitating the child’s time with the Father pursuant to Orders 12.6 (Easter) and 12.7 (Christmas), if the child and the Father are not already in the same city, the Father pay for the child’s flight costs in full.
Telephone contact
14. Unless the child is already in the Father’s care pursuant to these Orders, the child communicate with the Father by FaceTime or telephone on Tuesday each week at 6.30pm, for up to half an hour, and for this purpose:
14.1 The Father will place the call to the Mother’s mobile phone number
14.2 In the event the child becomes distressed or disengages from the telephone call, the Mother be at liberty to terminate the call;
14.3 The Father be restrained from engaging the Mother in the telephone call or discussing any matters relating to the child’s arrangements with the Mother or the child during these telephone calls; and
14.4 The Mother will facilitate the calls by making the child available and providing the child with the telephone to use.
15. When the child is in the Father’s care pursuant to these Orders for at least two (2) consecutive nights, the child communicate with the Mother by FaceTime or telephone at 6.30pm, for up to half an hour on at least once occasion during that time, and for this purpose:
15.1 The Mother will place the call to the Father’s mobile phone number; and
15.2 The Father will facilitate the calls by making the child available and providing the child with the telephone to use.
16. Each party will facilitate the child communicating with the other parent at any reasonable additional time upon the child’s request.
17. In the event either party needs to reschedule the telephone contact, they must provide the other party with a reasonable notice that day if practical and the parties will agree upon an alternate telephone contact in writing for that week.
Restraint
18. Each party be and is hereby restrained from:
18.1 Discussing any issues, arrangements or matters in general or relating to these proceedings at handover, except the welfare of the child related to that specific visit; and
18.2 Making any critical, derogatory, defamatory, insulting, inappropriate, demeaning, manipulative, undermining, remarks about the other party or members of their family in the presence or within the hearing of the child (or enabling someone else to).
Methods of communication
19. Unless otherwise agreed in writing, all communication between the parties be only in relation to matters pertaining to the child, or matters relating to these proceedings or requirements thereof and such communication shall be conducted in writing via the “Talking Parents” application, except in emergency situations when communication is to be via the telephone number of the Mother or the Father.
Emergencies
20. Each party will inform the other party as soon as practicable, of any emergency giving rise to a serious illness/injury sustained by the child whilst in their respective care requiring medical attention via telephone in the first instance (numbers provided in Order 16 above). In the event either party is unreachable on those respective telephone numbers, the Father shall telephone Mr C or Ms D and the Mother shall telephone an individual nominated by the Father within 24 hours of these Orders being made.
21. Each party will provide the other party with the following details as soon as possible and within two (2) hours of that party becoming aware of the serious illness or injury sustained by the child:
21.1 The nature of the illness of the circumstances giving rise to the illness or injury;
21.2 The name and contact details of the treating doctor or other health professional if known at the time;
21.3 The name of the hospital where the child has been admitted (if relevant); and
21.4 Any known prescribed treatment or medication (including surgery or blood transfusion or any other relevant information); and immediately authorise the other parent to communicate with the treating medical practitioner, other health professional and/or hospital where the child has been admitted.
22. Each party will keep the other informed of the name and contact details of all medical practitioners and health professionals treating the child and do all things necessary to authorise such medical practitioners and health professionals to communicate directly with the other party.
23. That each party shall authorise any doctor or hospital who treats the child to release to the other parent any information that parent requests in relation to the child’s condition and treatment.
24. That both parties shall follow any recommendations made by the child’s treating medical practitioners and provide the child with any prescribed medication, as directed by the child’s treating medical practitioners.
International Travel
25. That in the event either party wishes to travel outside of the Commonwealth of Australia with the child, then such parent (“travelling parent”) must provide to the other parent (“remaining parent”) not less than two (2) weeks from the intended date of departure:
25.1 Written notice which states that they intend to travel outside of the Commonwealth of Australia with the child; and
25.2 Full particulars of the proposed travel including:
25.2.1 The dates of the proposed travel;
25.2.2 Intended itinerary and flight details; and
25.2.3 Telephone contact details for the child while overseas.
26. The remaining parent must inform the travelling parent in writing within three (3) days of receipt of the written notice whether or not he or she consents to the travelling parent’s proposal to travel out of the Commonwealth of Australia with the child.
27. In relation to Order 26 hereof:
27.1 Neither party will unreasonably withhold their consent to the proposed travel; and
27.2 Both parties will use their best endeavours to agree upon and facilitate make-up time to reflect the time that the other parent did not spend with the child during the international travel (if applicable).
28. That in respect of the child’s passport:
28.1 Each party shall sign a Passport Application or a Renewal Application within seven (7) days of a written request from the other parent to do so;
28.2 The Mother will hold the child’s passport until required by the Father; and
28.3 The Father will return the child’s passport to the Mother within three (3) days of the child returning to Australia.
Specific Issues
29. Each party is entitled to a copy of the child’s reports, bulletins or other information from the child’s day care provider and other organisations where the child attends activities. Each party will independently arrange with the service provider to have the copies directly communicated to them.
30. Each party authorise the child’s day care/pre-school/school, to provide to either parent, at their own expense, if any, with copies of all school reports, any other reports on school progress and behavioural issues and all school circulars and letters in relation to the child.
31. Each party is responsible for organising contact between the child and their side of the child’s family.
Change of child’s surname
32. The name of the child X born in 2016 is changed to X Labato-Napoli.
33. The Mother is given leave to apply to the Registrar of Births, Deaths and Marriages in and for the Australian Capital Territory to register the name of the child formerly known as X to X Labato-Napoli.
34. The Registrar of Births, Deaths and Marriages in and for the Australian Capital Territory is ordered to register the name of the child formerly known as X as X Labato-Napoli.
Alternate Dispute Resolution
35. In the event the Father moves his residence to a place within Australia, but to a location where the child does not live:
35.1 The Father must notify the Mother in writing at least two (2) months in advance; and
35.2 The parties shall continue the arrangements provided for Order 5 and substitute all references to Canberra with the new location of the Father, if practicable to do so.
36. In the event the Mother moves her residence to a place within Australia that is outside of the Melbourne area, but to a location where the Father does not live:
36.1 The Mother must notify the Father in writing at least two (2) months in advance;
36.2 The parties shall continue the arrangements provided for Order 5 and substitute all references to Melbourne with the new location of the Mother, if practicable to do so.
37. In the event the child displays concerning behaviours following her time with the Father pursuant to these Orders, including but not limited to emotional or behavioural changes, the following shall occur:
37.1 The Mother will immediately notify the Father of the concerns and a proposal for consideration as to how to deal with those concerns;
37.2 The Father will respond within three (3) days of receiving the Mother’s proposal to confirm his agreement or to provide an alternate proposal regarding how to deal with the concerns and the parties must make a genuine attempt to resolve the matter between themselves;
37.3 If the parties fail to reach agreement about how to proceed, each party will make arrangements to organise an appointment (in person or by telephone) with the child’s treating psychologist within five (5) business days; and
37.4 Each party will do all acts and things to attend the appointment with the child’s treating psychologist and adhere to the recommendation of the child’s treating psychologist.
38. In the event the parties are unable to resolve any disputes in relation to matters pertaining to the child (or any other parenting issue concerning the child not covered by these Orders), or interpretation or implementation of these Orders, the parties must arrange and attend upon an agreed FDRP at their joint equal expense to address those issues and they must do this and receive a section 60I certificate before being able to apply to the Court.
39. Such further and other Order as this Honourable Court deems appropriate in the circumstances of the case.
40. That that Father pay the Mother’s costs of, and incidental to, this application for Final Orders.
Evidence of Applicant Father
Summarised, the oral evidence (with some reference to his trial Affidavit, filed 23rd July 2020) of the Applicant Father was as follows.
The first of a number of examples of the Father’s (a) communication with the Mother, and (b) his limited insight, was the following exchange regarding a very recent (just prior to the trial) SMS comment by the Father to the Mother (emphasis added):[10]
[10] T 9 – 10.
And I just want you to think, sir, as a – well, let’s pick Friday just gone, for example. And think about what happened on Friday. Do you think that that might cause you to change your answer about whether you’ve moved on?‑‑‑Can you please be more specific about what you’re talking about for Friday?
Sure. Okay, nothing on Friday that you can remember about. You want me to be specific. Is that right?‑‑‑Yes.
Okay. So when you write to my client:
Trust me, when I know you are finding it hard to be away from her, that’s how I felt every single day and night since you took her away.
Do you think that indicates you’ve moved on?‑‑‑Yes, I was referring to my relationship and time with X, not the relationship I had with Ms Napoli.
So it’s not a very nice thing for you to say Ms Napoli, is it, sir?‑‑‑It wasn’t emotional. I was trying to be aware the – to make sure that it is understood that what we were talking about was reflected both on my side and her side.
All right. So you thought that it was important it be understood, to tell Ms Napoli:
That’s how I felt every single day and night since you took her away.
Is that right?‑‑‑Yes. I was trying to share just the way Ms Napoli was trying to communicate as well.
Right. What about that sentence I’ve just read out has anything to do with the way Ms Napoli was communicating with you, sir?‑‑‑I was just trying to highlight that it is normal that we feel that way and just because she feels that way, it’s not isolated in particular to her in that way.
All right. And it was important for her to know that you were going to say:
…since you took her away. That was important for her to understand, wasn’t it?‑‑‑The words I used, maybe not. But the fact that she was away from me.
Well, just think about the words you used, sir. Do you think there might have been some better ways to express that?‑‑‑Yes.
Yes. But you didn’t ..... did you?‑‑‑No. Hindsight helps a lot though.
…
HIS HONOUR: Mr Labato, when you say in that reference that Mr Haddock has taken you to and you refer to the mother having taken her, as in X away, can you tell me what you meant to convey by that reference to the mother having taken X away. What do you mean by that? Or what did you mean by that?‑‑‑Your Honour, to elaborate on that, that was just referring to the – Ms Napoli moving away with X and not having me be at – able to have regular contact with her, on a regular basis.
And sorry, are you meaning in the future, of her moving to Melbourne or are you – what else – or are you meaning the move from Brisbane to Canberra, what?‑‑‑No, when they moved from Brisbane to Canberra and didn’t come back to Brisbane. From that point in time, it was a – very much a restriction on like, me being able to see X and that’s what I was referring to.
Another matter addressed relatively early in the Father’s cross examination related to the Father seeking to impose what might fairly be described as “travel restrictions” on the Mother and child leaving the Australian Capital Territory (“ACT”) without prior notice to the Father. He called it information “for awareness.” The exchanges were as follows (emphasis added):[11]
[11] T 12 – 13.
And one of the other things that you’ve done in your proposal, is you place some fairly extensive restrictions on Ms Napoli and X travelling, don’t you?‑‑‑I don’t believe they’re extensive.
All right, well, I will take you through them. So in the event that Ms Napoli wants to go outside the ACT with X for less than seven days, you seek to impose a number of restrictions on her about that travel, don’t you?‑‑‑Not restrictions. It’s just for awareness.
All right. So for awareness, you require her to be permitted to travel only if she gives you at least seven day’s notice?‑‑‑Yes.
So that would be a restriction, wouldn’t it, sir?‑‑‑I don’t see why that is.
All right. And that she give you the proposed dates of departure and return?‑‑‑Yes.
And any flight tickets or public transport tickets; correct?‑‑‑Yes. And I would do the same as well, if it was the other way.
Well, we will get there in a moment. And the contact details and address of any accommodation in which she’s staying with X; correct?‑‑‑Yes.
So there’s a practical problem with this order. If my client, for example, wants to take X to the coast for the weekend ..... when she doesn’t give you seven day’s notice?‑‑‑Yes.
And there’s some other restrictions about if she wants to travel interstate in your proposal, isn’t there?‑‑‑There are, yes.
And those involve the same seven day’s notice; correct?‑‑‑Yes.
And if she wants to go interstate to equal to or more than seven days, she needs your permission, doesn’t she?‑‑‑That’s my proposal, yes.
And so, when I actually look at your proposal in terms of when school holiday time meets, that would mean in effect that in a school holiday period, where she wanted to travel with X to Melbourne, she couldn’t go without your permission, wouldn’t it?‑‑‑Yes. That doesn’t mean that it won’t happen though.
These series of answers and commentary from the Father, together with other’s noted below, in my view, exhibit a rather regimented and impractical approach towards basic matters, such as a quick trip to the South Coast of New South Wales. On the Father’s Orders Sought, such a trip could not happen if the Mother does not give the Father seven days’ notice. It is one thing for relevant notice and the like, for example (if and when) overseas travel occurs. It is quite another for a short, domestic, recreational trip.
In all of the circumstances, it could also be said that such restrictions amount to a degree of unwarranted control.
Regarding communication between the parties, the Father said that “it could be better”, and continued that he did not think it was bad.[12] This is in circumstances where the Father wants the child’s relationship with the Mother’s partner, Mr C, to be “discouraged”.[13]
[12] T 13.
[13] Ibid.
Next, I raised with the Father that his Orders Sought contained no proposal for “time with” arrangements for X and her Father in the event that the Mother was permitted to relocate to Melbourne. He confirmed that there were no such proposals put forward. He confirmed that he did not put any such proposal to the Court because, in his view, it was not appropriate for the Mother and X to relocate to Melbourne. At the same time, somewhat remarkably, he said that just because there was no such proposal before the Court did not mean that he had not thought about it. He went on to say that until he knew what the Court’s decision was, about if and when the Mother was going to Melbourne, he could not formulate a proposal.[14]
[14] T 13 – 14.
There followed this exchange:[15]
HIS HONOUR: So then what does the court do, for example, if I come to a view that it is in X’s best interests for she and her mother to move to Melbourne at some stage? I’ve got nothing from you as to what you say would be a proper and appropriate arrangement for X’s time with you. Whether it would be once a week, once a month, once a term, once every six months. I just have got nothing. It’s sort of like open field, isn’t it?‑‑‑I understand what you’re saying, your Honour.
Well, I’m pleased that you understand it. I’m just looking for assistance. One of the usual things, certainly whenever I give any talks about advocacy, is about assisting the court. I’m looking for assistance and I’ve – it’s sort of like one hand clapping at the moment, just in terms of I’ve got nothing from your side that deals with, you know, I’ve got scenario A and scenario B is blank. Understand the difficulty?‑‑‑Yes, I understand, your Honour.
[15] T 14.
The Father’s lack of Orders Sought, upon there being a relocation, placed the Mother, and the Court, at a singular disadvantage. It was a significant and procedurally unfair omission. The “missing link”, so to speak, arising from this unfortunate and unnecessary omission, was promised, at the outset of the second day of the hearing, to be remedied “shortly.”[16]
[16] See T 88. The problem for the Court and the Mother dealing with this omission in the Father’s material was raised again by the Court on the first day of the hearing just before the luncheon adjournment. The Court inquired whether the Father should be permitted to file an Amended Minute of Orders Sought for “time with” arrangements in the event the Mother was permitted to relocate to Melbourne. The Mother submitted that the Father should not be permitted this indulgence to remedy his omission, especially in circumstances where the matter was “urgently fixed” and the issue of the Father’s Orders Sought was raised as recently as at the pre-hearing directions a week or so prior to the hearing. To add to the “unusual approach” of the Father, it was suggested that his amended Minute be delayed even further to await the evidence of the Family Consultant. As a comment only, “indulgence” was certainly the order of the day in this regard. T 51 – 53.
The Father confirmed that during the relationship he had been unfaithful to the Mother.[17] Not insignificant detail about such matters was set out in the Mother’s material. It was not otherwise pressed in cross examination. It is sufficient to note that this infidelity, among other things, unsurprisingly led to significant distrust between the parties, which is ongoing to varying degrees. The following brief exchange speaks for itself, which includes the Father confirming that, notwithstanding the Mother’s concerns of one kind or another, she has consistently complied with Orders for X to spend time with the Father:[18]
[17] T 15.
[18] T 15 – 16.
So sorry, sir, my question to you was, you were unfaithful to her, weren’t you?‑‑‑Yes.
And of course, you would accept that would have an effect upon Ms Napoli’s ability to trust you, wouldn’t you?‑‑‑Yes. We did go to counselling consistently after that, which would give worth to the matter.
Yes. So you did some things and I know that you say had some counselling that helped address those issues, didn’t you?‑‑‑Yes, we did.
But you would accept, wouldn’t you, that whatever work you do, that hasn’t ..... at least for her to trust you, wouldn’t it?‑‑‑Yes.
And certainly, you don’t trust Ms Napoli, do you?‑‑‑No, I do.
All right. Well, you say to the court that she hasn’t demonstrated her intention to facilitate your relationship with X, don’t you?‑‑‑Yes.
Well, let’s think about that for a moment, sir. Ms Napoli has complied with court orders, hasn’t she, for you to have time with X?‑‑‑Yes.
Right. She has been made available each time. You don’t complain in your affidavit she hasn’t, do you?‑‑‑I have not.
Okay. And you know that Ms Napoli has complained of, what she says is some behaviours from X when she returns to her care and because of those she suggested your time reduce, hasn’t she?‑‑‑Yes, she did.
Okay. And you haven’t agreed with her about your time reducing, have you?‑‑‑I haven’t agreed, no.
No. And despite you not agreeing, Ms Napoli still made X available for time in accordance with the orders, hasn’t she?‑‑‑Yes.
All right. So if there’s a court order, each and every time, Ms Napoli has complied with it when it comes to you seeing X; correct?‑‑‑Yes.
After this I returned to asking the Father some questions about his proposed Orders for “travel notifications” to be given to him by the Mother. That exchange was as follows:[19]
Apart from simply knowing that X and her mum are going away, and going, for example, down the coast, would you accept that at any and every level, that there’s no way that either you or Ms Napoli would ever put X in any danger. Would you accept that?‑‑‑Yes.
And therefore, in going away, for example, down the beach or to go to Sydney or something, that presumably, the object there is to have a good time, and not deliberately or in any other way to put X at any risk; correct?‑‑‑Yes, that’s correct.
So if that’s the case, why would you need to know the level of detail that you’ve got in your orders about where and how the mother’s going away with X?‑‑‑Just from a caring parent side, your Honour, I would like to be able to understand or at least know what state my daughter is in at any point in time, to try and maintain connection. It’s – it’s not to overmanage in any way or do anything about it. I would just like to be able to understand .....
But if the mother just simply is – was to say, “Look, you know, we’re going down the coast for a little time,” why wouldn’t that be enough? You know, you could still have your, you know, you could still have your telephone calls, FaceTime, whatever it is?‑‑‑That information is – is more than enough, your Honour. I’m happy with that. But that isn’t what your orders say, is it?‑‑‑No, I just did want to make sure that I was covering all bases if this was going to be something that was permanent.
[19] T 16 – 17.
In my view, the end result, so to speak, of the Father’s response was more than satisfactory. My concern at the time of the hearing, and similarly now, is that (a) he did not see, or relevantly appreciate, the impact of the imposition and degree of control his proposed Order would almost certainly have on the Mother and X, and (b) how long it took for the Father to comprehend the practical and likely emotional impact of something so relatively basic arising from his communication and purported or sought “directions”. To use his own word (noted in the exchange), in my view this was another instance of the Father seeking to “over-manage” the Mother and its flow-on effects for X.
The Father confirmed that there was nothing in his Affidavit that dealt with his poor communication with Mother. Then he said, regrettably again showing little insight (emphasis added):[20]
[20] T 17.
Do you not accept that the way you communicate with the mother of your children is really, really important for your child?‑‑‑It is important, I understand that.
Right. It’s fundamentally important, isn’t it?‑‑‑It is.
And it’s going to be more important the more time that X has with you, isn’t it?‑‑‑It is.
Right. And yet, nothing in your affidavit about how you’re going to address the problems, is there?‑‑‑There isn’t anything there, no.
Because if she’s not allowed to relocate, it’s fair to say, the problems are probably going to get bigger, aren’t they?‑‑‑We can’t determine that.
Curiously, if not alarmingly, the Father then said, regarding communication with the Mother (emphasis added):[21]
[21] T 18.
My question was, there’s nothing at all in your affidavit about how you’re going to deal with that eventuality, is there?‑‑‑There’s nothing in the affidavit, no. That doesn’t mean it’s not going to occur.
Right. Well, the affidavit was your chance to tell his Honour how you’re going to manage the situation if you get what you want, wasn’t it?‑‑‑It is, yes.
And we’re totally silent on that, aren’t we?‑‑‑The communication with Ms Napoli outside of the logistical arrangement I don’t believe is the main priority.
Right. Well, whether it’s your main priority or not wasn’t my question, was it?‑‑‑No.
Do you think it is a priority, the communication with Ms Napoli?‑‑‑It’s important, yes.
Yes. It’s going to be vital, isn’t it?‑‑‑Yes.
Right. And part of that is going to be you needing to acknowledge the distress that the mother of your child is undoubtedly going to feel if she’s not able to relocate to Melbourne, isn’t it, sir?‑‑‑Yes, it is.
Because the distress of your child’s mother has an impact on your child, doesn’t it?‑‑‑It does.
Right. No plan in the affidavit for dealing with that, is there?‑‑‑There is no plan in the affidavit, no.
No indication in the affidavit that you’ve even thought of it until I’ve asked you the questions here in the witness box; correct?‑‑‑That’s correct.
The Father accepted that he had been away “for a very substantial part of X’s life”, but confirmed (as noted earlier in these reasons) that he nonetheless had a solid foundation for his relationship with X.
The Father also accepted that some of his communication with the Mother was “direct”, and on other occasions, with some prodding, he acknowledged that, viewed from the Mother’s perspective, his questions or comments “could have been done better”. This awareness or acknowledgement only happened when questioned in Court. He further confirmed that there was no acknowledgement anywhere in his trial Affidavit of any situation that he now says should have/could have been handled better.[22] In a similar vein, he confirmed that there was no instance at all in his trial Affidavit where he said anything positive things about the Mother.
[22] See T 20 – 22.
The Father confirmed that it was important to see or to “check out” what employment options there might be for him in the ADF in Melbourne if the Mother and X are permitted to move to Melbourne. He has not made any such inquiries yet.[23]
[23] T 23.
The Father confirmed also that X had spent time with his parents regularly, and that the Mother had both supported and encouraged this paternal Grandparent relationship, and had in fact offered the Grandparents to spend time with X. There was some sort of grudging acceptance of these matters, thus:[24]
[24] T 25.
… in fact, you’ve told Ms Napoli directly during the TalkingParents communication that she should organise it directly with your parents, haven’t you?‑‑‑Yes, in person as well.
Yes. After she has offered some extra time to them at the end of one of your visits; correct?‑‑‑That was inclusive of my time.
Yes?‑‑‑Yes.
All right, so you say that when I produce that message, it’s going to say it’s inclusive of your time, are you? I will give you the chance?‑‑‑From my memory, that was the understanding. It was cutting my time short to give them time.
In fact, what she was offering was an extra hour, wasn’t she?‑‑‑I would have to go back and have a look.
All right. Well, I will take you back to that in a moment. But in the event that she was offering extra time to you, so that your parents could have some time, that would be a really good, positive thing for Ms Napoli to do, wouldn’t it?‑‑‑It would, yes.
So, that would be one positive thing that we could identify in X’s mother that we don’t get out of your affidavit; correct? If that’s true?‑‑‑Yes. There was some caveats around the time, but the intent is positive.
One of multiple instances where the Father acknowledged, but only during the hearing, the Mother facilitating his time (and that of his parents) with X was in the following terms:[25]
[25] T 27 – 28.
… I was asking you about your return from Country M and one of the things that happened after you returned and you were still in Queensland, to narrow that down for you, is that you saw Ms Napoli while you were in – sorry – you saw X while you were in Queensland; correct?‑‑‑Yes.
And that was time where Ms Napoli was also there; correct?‑‑‑She was, yes.
So if what you say is true and you just separated, that would have been something that would have been quite – there would have been some tension there for Ms Napoli to be there with you; correct?‑‑‑It was confusing more than tense.
But Ms Napoli was still happy to organise some time with you and X then; correct?‑‑‑Yes.
And that was her facilitating your relationship with X, wasn’t it?‑‑‑Yes, it was.
There’s no acknowledgement of that in your affidavit, is there?‑‑‑There isn’t, no.
…
… that’s another example, isn’t it, of Ms Napoli encouraging a relationship between you and X, isn’t it?‑‑‑That was a prearranged plan before I knew that she was separating, so I wouldn’t say that it was a post-separation decision.
Whether it was or not, that’s an example of her encouraging a relationship between you and your daughter, isn’t it, sir?‑‑‑Yes.
Right. And, in fact, between your daughter and your parents, isn’t it?‑‑‑Yes.
Because they’re in the house with you and they get to spend time with their granddaughter; correct?‑‑‑Yes.
There’s no acknowledgement in your affidavit that she was facilitating your relationship by taking those actions, is there?‑‑‑No.
In addition to the above, I recall Kay J’s important observation in Godfrey v Sanders, at [36], where his Honour said (emphasis added):[101]
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[101] Godfrey v Sanders (2007) 208 FLR 287.
Similar comments were made by Dessau J in relation to a long-distance and meaningful relationship in M v S at [45] (emphasis added):[102]
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face-to-face contact. But it does not itself mean it cannot be meaningful.
[102] M v S (2008) 37 Fam LR 32.
The comments by Kay J in Godfrey & Sanders, and by Dessau J in M v S, were cited with approval by the Full Court in McCall v Clark at [116].[103] Similarly, the Full Court in Sigley v Evor approvingly canvassed the same decisions, at [131] – [136] and again at [182] – [183].
[103] McCall v Clark (2009) 41 Fam LR 483.
Further, I should note that in Sigley v Evor, at [136], the Full Court also commented as follows (bold and underlined emphasis added):
We also observe that in Champness & Hanson (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at [103]:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (emphasis in original)
The Full Court also observed at [191]: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’ ”.
All of the comments to which I have referred apply to the facts, circumstances, principles and discretion in the current proceedings.
Finally, I consider – briefly – such matters not otherwise addressed in these reasons that might be said to arise out of “relocation cases.”
In F v F, I set out a summary of relevant principle drawn from High Court and Full Court authorities in relation to relocation.[104] That summary is set out below, but with an edited selection of internal citations quoted; thus:[105]
a)In the absence of legislative direction, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of the parent with whom the child resides. (AMS v AIF, Kirby J, [143]; cf. P v P, [48]).
b)The over-arching issue is to ensure that any parenting order is in the best interests of the child. (AMS v AIF, Kirby J, [144]; U v U, Gummow & Callinan JJ, [80],[106] Hayne J, [171]; KB v TC, [71]; P v P, [40]). This is also to say that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents, on the other, priority must be given to the best interests of the child. (AMS v AIF, Kirby J, [144]; Hayne J, [217-219]; cf. Goode v Goode, [72]).
c)Freedom of movement of parents is a significant priority. That freedom is linked with the object of family law legislation to facilitate parties to a broken relationship to start a new life for themselves, including the possibility of forming a new relationship “free from unnecessary interference from a former spouse or partner or from a court.” (AMS v AIF, Kirby J, [145]. On “freedom of movement” generally, see AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [40-45]; Gaudron J, [96]; U v U, Gummow & Callinan JJ, [89]; cf. P v P, [36]. Inhibition of movement may impinge upon the happiness of the custodial parent, which may in turn be transmitted to the child. (AMS v AIF, Kirby J, [145]).[107] Freedom of movement, however, takes second place to the paramount interests of the child.
d)There is no presumption in favour of a custodial parent to reside wherever he or she wishes. (AMS v AIF, Kirby J, [146]).
e)The applicant who seeks to relocate need not establish “compelling reasons” for such a move. (AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [47]; Gaudron J, [92]; Kirby J, [191] & [195]; Hayne J, [209]; U v U, Gummow & Callinan JJ, [82]). Nor does either party bear an onus to establish whether relocation is, or is not, in a child’s best interests.
f)Transport and modern means of telecommunication may be relevant factors in making proper arrangements (“new and different facilities of access and contact … with the other parent”) as between a child and his or her non-resident parent, especially in relation to relocation within Australia. AMS v AIF, Kirby J, [147], [148 & 192]; Paskandy v Paskandy, [57]; cf. M v S and “virtual visitation” [93].
g)In determining a relocation case that involves changed parenting arrangements, a court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them. (U v U, Gummow & Callinan JJ, [70 & 89]; Hayne J, [171] & [172]; KB v TC, [83-85]). Put another way, without embarking upon “some roving inquiry”, and subject to the evidence led – and affording procedural fairness to all – a court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child. (U v U, Hayne J, [172]; KB v TC, [84]; P v P, [40]).
[104] F v F (2008) 38 Fam LR 52 at pp.56-58 [7]. A more abbreviated summary is provided by Ryan J in Sheldon & Weir (No.3) [2010] FamCA 1138at [244] & [245].
[105] It will be seen that, in the light of Full Court authority which confirmed that the earlier decision of A and A (2000) FLC ¶93-035 no longer reflects the principles to be applied in relocation cases and, therefore, should not now be followed, all references to that case have been omitted. See Hepburn & Noble (2010) FLC ¶93-348 at [100], and Cales & Cales (2010) 44 Fam LR 376 at [139].
[106] It should be noted that in U v U, Gleeson CJ agreed with the judgment of Gummow & Callinan JJ, as well as with the comments of Hayne J. See (2002) 211 CLR at p.240 [1].
[107] Cf.Payne v Payne [2001] Fam 473, where Thorpe LJ, summarised, at [26], the two governing propositions under UK legislation and judicial authority over 30 years in relocation cases as (a) the welfare of the child is the paramount consideration and (b) refusing the primary carer’s reasonable proposals for relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. See also the reasons of Dame Butler-Sloss P [85], as well as the comments of Bryant CJ and Finn J in Taylor & Barker (2007) 37 Fam LR 461 at [84] – [113].
This summary of principle must, of course, be understood in the context of the ‘prescribed legislative pathway’ or scaffold in Part VII of the Act, to which I have already referred. Thus, as stated by Bryant CJ and Finn J, who constituted the majority in Taylor v Barker, at [53] (internal citations omitted):
We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible.
To this instruction, I note too the similar, and slightly more fulsome, remarks by the Full Court in McCall v Clark, where their Honours said, at [60]:[108]
In Sealey & Archer [2008] FamCAFC 142 the Full Court (Bryant CJ, Finn and Thackray JJ) said at paragraph 63:
While it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied (Taylor & Barker (2007) FLC 93-345 at [62]), the legislation does require in s 61DA that when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (unless there are circumstances in which the presumption does not apply, or in which it would be inappropriate to apply it, or it is rebutted), and it further requires in s 65DAA that if there is to be equal shared parental responsibility for the child, consideration must be given to the child spending equal time (or if not, substantial and significant time) with each parent.
[108] McCall v Clark (2009) 41 Fam LR 483. See also the Full Court’s discussion in Starr & Duggan [2009] FamCAFC 115 at [38] & [39], and by Ryan J in Sheldon & Weir (No.3) at [242] – [243].
And at paragraphs 66 and 67:
Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child. We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.
In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings…
I draw attention also to the comments of the Full Court in Blanding, which involved a parent seeking to relocate, who was permitted to do so.[109]
[109] Blanding v Blanding (2017) 55 Fam LR 218.
In the course of considering at some length the grounds of appeal, the plurality (Ainslie-Wallace and Berman JJ – with whom Finn J generally agreed) said, at [141] – [142]:[110]
[141] There was thus ample evidence on which his Honour could conclude that the mother’s happiness in not relocating would not only affect her but also the children. We do not then accept the submission that this was a factor of no relevance to his Honour’s determination.
[142] This ground devolves to an argument that his Honour apportioned disproportionate weight to this matter against the other countervailing considerations. As his Honour’s reasons make clear, this was not the sole basis for his determination that the order sought by the mother should be made. However, in his view, it was the most important. The weight or importance to be placed on evidence is a matter exquisitely within the preserve of the trial judge and we are not satisfied that in giving it the weight he did, his Honour erred.
[110] See also the Full Court’s comments at [148] regarding issues of “weight” given by the trial Judge to certain evidence. The Court there said that such matters were “entirely a matter for his discretion.”
Then the Court said further, at [153] and [159] – [160]:
[153] It was contended that his Honour should have “indicated what weight he places on their views and why”. We reject this submission, which carries with it the suggestion that a judge, in considering a range of issues as part of the exercise of a wider discretion in relation to the best interests of children, is in some way required to indicate “weight”. Such a submission misstates the very nature of the weighing process. His Honour clearly rejected the concern that the father had influenced the children directly but was open to the proposition that being aware of his opposition may have an influence on their views. In our view nothing further was warranted nor needed to be said.
…
[159] His Honour carefully and clearly considered the father’s desire to remain a part of the children’s lives. He was conscious of the additional time spent by the father by being involved with the children’s after school activities. His Honour found that the children had a close and normal relationship with the father and the mother [20]. He further took into account that a move to the Central Coast will change the children’s circumstances and that they will see less of their father than before [25].
[160] His Honour referred to and took into account the difficulty and expense of the father spending time with and communicating with the children at [26]. He noted that while it would not prevent them from communicating, it would be more difficult and expensive [27]. His Honour further considered these issues when determining the advantages and disadvantages of the parties’ proposals [44(a)] to [44(e)].
Finally, at [166], the Court said:
In any event, the apportionment of weight or importance to evidence is a matter for the exercise of the trial judge’s discretion. As we have already said, the bar to appellate intervention in relation to such asserted errors in the exercise of discretion is high (see Gronow v Gronow (1979) 144 CLR 513).
Consideration & Disposition
I turn to the detail of the legislative scaffold in Part VII of the Act, and s.60CC(3) in particular, in the light of the evidence before the Court. In the quite brief summary below, I follow each of the “considerations” sequentially, unless otherwise specified, and each comment or observation, also unless otherwise specified, should be taken as a formal “finding” by the Court.
Given X’s age, there are no relevant “views” expressed or otherwise to consider.
The nature of the child’s relationship with both parents has been canvassed at some length already. Summarised, it is clear that X has a very close relationship with the Mother, who has been, and remains, her primary carer. On the evidence of both parents, X has a good relationship with the Father. The Father also acknowledged that the relationship with X at the present time was a “good foundation” upon which to build their relationship.
It is no less important to record – again – that the Father’s concerns about the risk to X’s relationship with him, should the Mother be permitted to relocate to Melbourne, were unsupported by the evidence. Indeed, the evidence was much more favourable of how good their relationship was (and remains), which actually reflected well on the parents generally, with the Mother in particular supporting that relationship.
There is no dispute that X also has a good and close relationship with both sets of Grandparents, which similarly has been promoted by the Mother.
In relation to the matters embraced by the “considerations” in sub-paragraphs (c), (ca) and (i) of s.60CC(3), in my view the evidence strongly indicates that:
(i)The Mother has consistently supported the Father/daughter relationship, including when the Father was deployed overseas and the Mother was solely responsible for the care of the child;
(ii)The Mother has supported X’s relationship with the Father’s family (and with the maternal Grandparents);
(iii)The Father has not infrequently shown a propensity to be quite obdurate in his dealings with the Mother regarding “his” time with X and other arrangements (e.g. demanding that X attend day-care because he was “an essential worker”, contrary to the practical decision-making of the Mother; and the demand that X not have the comfort of a bunny);
(iv)The Father regularly showed a significant lack of sensitivity and general awareness of the impact of his actions and communication with the Mother, for example, his clearly troubled communication with her when he was overseas on assignment indicating it would be better if he went to sleep and did not wake up. More recently, his evidence, in almost grudgingly acknowledging that the Mother was likely to be distressed if not permitted to relocate to Melbourne, and the likely flow-on effects for X from the Mother’s distress, further exhibited his minimal insight into what was in X’s best interests; and
(v)Overall, the Father’s evidence, in my view, strongly showed that he equated his time with X as invariably being in her best interests. There was an almost mathematical equation between the Father’s best interests and the child’s best interests. It followed that he rarely perceived that there was a difference between the two. “Fairness” to the Father was a dominant force in the co-parenting relationship.
The likely impact upon the child and the relationship with her Father in relocating with her Mother to Melbourne is a significant aspect of the matter. The Court is nonetheless quite confident that this relationship will continue to thrive, albeit perhaps in slightly different ways. I say this because (a) the Father/daughter relationship is good and solid; (b) the Mother’s move to Melbourne, according to the Orders of the Court, will not take place before 1st January 2022, which will enable the Father/daughter relationship to continue to build and flourish; and (c) on the evidence, I am very confident in the Mother’s capacity and innovation to continue to promote X’s relationship with her Father upon her relocation to Melbourne.
Another significant issue is, of course, the geographical distance between the two capital cities where X’s parents propose to live. The travel between Canberra and Melbourne, subject to any other impact of the pandemic, will be an ongoing but not insurmountable issue, both in terms of travel time and also cost. However, both parties are gainfully employed and well qualified in their respective fields. Indeed, the Father’s evidence was that once the parties had “clarity and certainty” regarding the Mother’s application to relocate, all other aspects of the dispute would (or should) be able to be resolved. Added to this is the unknown factor of whether, at some time in the future, the Father may seek a posting to Melbourne, which would obviously reduce all practical and logistical issues immensely.
There are no relevant issues raised (other than some understandable anxiety) for X regarding her age, gender and such matters. Nor is there any issue raised of any ongoing substance regarding either parent (with or without assistance from family and the like) not being able to provide and care for the child and meet her various needs as she grows. The Father’s complaints about the Mother, from time to time, not wanting to act maternally and “off-loading” X, ultimately had no substance. In almost all relevant respects, according to all the evidence, X was and is a happy, well cared for, smart and engaging (“switched on” was a well-used term) young girl.
Matters of “family violence” were briefly addressed which, on closer examination (particularly by Dr E), indicated that they were more areas of (I will say) disquiet and concern arising from very difficult communication between the parties, an acrimonious relationship between them, and hurt and much else arising from the Father’s admitted infidelities during the relationship.[111]
[111] Among other places, see again par.11 in the evaluation section of Dr E’s primary Report (p.28 – 29).
The Orders proposed by the Court are, in my view, plainly in X’s best interests, and should, all things considered (and particularly in the light of the Father’s evidence of Orders bringing clarity and certainty to the parties), will be least likely to give rise to further litigation. One hopes for the parties’ sake (and for X’s) that the litigation will now end.
Some residual but nonetheless important matters still need to be addressed.
First, notwithstanding the difficulties between the parties in communication and not a few other matters, they have shown themselves more than capable, for the most part, to put aside personal matters to make decisions in X’s best interests. Accordingly, there will be an Order for equal shared parental responsibility. In the unlikely and unfortunate event of their being an impasse regarding a decision concerning a major, long-term issue as defined under the Act (e.g. schooling, health and the like), the Mother shall have the authority to make the final decision.
Secondly, in the Mother’s Amended Response, filed 22nd July 2020 (at pars.32 – 34), the Mother sought Orders to change X’s surname. The same Orders were set out in the Case Outline filed on the Mother’s behalf on 3rd August 2020. The Mother set out reasons in support of this Order at pars.113 – 116 of her Affidavit, filed 22nd July 2020.
Among the “Issues in Dispute, as set out in the Mother’s Case Outline, at par.3(g), “a change to the child’s name” is specifically listed. Likewise, at par.4 of the same Outline, there is a reference to “Change of Name Principles.” Those principles, and their application, were set out in pars.22 – 27 of the Case Outline.
There is no mention of “change of name” for the child in the Father’s Case Outline (filed 4th August 2020), or in either iteration of his Orders Sought.
While it is true that the change of name issue was not canvassed at the final hearing, doubtless in part because of time pressures, it was clearly the case that this issue was fairly and clearly raised by the Mother in the documents set out above. In doing so, the Father could not be said to have no relevant notice of it. But he never addressed it, even in his post – hearing Orders Sought, his second set to make good the previously noted deficiencies.
With proper notice having been given to the Father, and having had the opportunity to do any of the following things – file a Reply, refer to it in written submissions, refer to it in later-filed Orders sought – the Father has had ample opportunity to address the issue. He has not done so. The Mother’s arguments and evidence are plainly stated and straight-forward. Her submissions outline relevant principle, accepting that the ultimate discretion remains with the Court.
For the procedural and evidentiary reasons given, the Mother’s Orders sought regarding the change of X’s surname should be made as being in the child’s best interests.
Conclusion
In addition to the evidence in its totality, in my view, strongly pointing to permit the Mother to relocate, but not before 1st January 2022, it is also strongly a case where the comments of Kay J in Godfrey & Sanders apply. His Honour’s observations regarding the distinction between a “meaningful” relationship and an “optimal” one are directly relevant to the facts of the current matter.
In my view, there cannot be any doubt that X has a meaningful relationship with her Father, as a matter of fact, and legally in terms of “meaningful” as described under the Act as determined by a litany of cases, perhaps most usefully summarised by Brown J in Mazorski v Albright and the many Full Court decisions that have cited it approvingly since (cited earlier in these reasons). It is likely that, when the Mother and X begin their new lives in Melbourne, the child’s relationship with her Father will not necessarily be “optimal.” However, just as it is now but in different respects, I have no doubt at all that it will remain “meaningful.” Equally, I have no doubt that both parents will use their best endeavours in the future, as they have done with varying degrees of success up to this time, to ensure that X’s relationship with her Father remains “meaningful”, and flourishes just as X will herself flourish as she grows.
For the reasons given, and with due amendment regarding (a) equal shared parental responsibility, and (b) the time-frame for the Mother’s relocation to Melbourne, not before 1st January 2022, the Mother’s Orders sought are in X’s best interests.[112]
[112] From 16 February 2021 until the Mother’s relocation on 1 January 2022, the child spend time with the Father as agreed in writing between the parties (see Order 5 of the Orders dated 16 February 2021).
I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of Judge WJ Neville
Associate:
Date: 16 February 2021
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