Lamport and Stokes

[2014] FCCA 1689

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMPORT & STOKES [2014] FCCA 1689

Catchwords:
FAMILY LAW – Parenting – relocation – six year old child – mother historic and current primary carer – half siblings in New Zealand – mother wishes to return to New Zealand where she was born to reunite children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Caravaggio & Caravaggio [2011] FamCA 254
Collu & Rinaldo [2010] FamCAFC 53
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Orpheus & Orpheus [2014] FamCAFC 70
Re: F Litigants in Person Guidelines (2001) FLC 93-072

Applicant: MR LAMPORT

Respondent: MS STOKES

File Number: MLC 2210 of 2014

Judgment of: Judge Curtain

Hearing date: 14 July 2014

Date of Last Submission: 16 July 2014

Delivered at: Melbourne

Delivered on: 15 August 2014

REPRESENTATION

Counsel for the Applicant: Mr Meehan

Solicitors for the Applicant: Morrison & Sawers

Counsel for the Respondent: In person

ORDERS

THE COURT ORDERS THAT:

1. All prior parenting orders, including the Watch List order and related restraints made 18 March 2014 be and are hereby discharged.

2. The mother and the father have equal shared parental responsibility for their child, [X] born 20 June 2008 (“[X]”).

3. [X] shall live with the father as detailed in order 6 below and at all other times, live with the mother.

4. The mother be permitted to relocate to New Zealand with [X] after the conclusion of the Victorian September/ October school term holidays and pending such relocation, she shall live with [X] in the [O], [I], [E] area or such other area to comply with order 5 below.

5. Pending [X] relocating to New Zealand with his mother, he shall spend time and communicate with his father:

   (a)each weekend from the conclusion of school or 3.30pm Friday until the commencement of school Monday or 9.00am;

   (b)for ten (10) days during the September/ October school holidays, commencing 10.00am on the day after school concludes until 6.00pm on the 10^th day; and

   (c)by telephone two (2) days per week as agreed and failing agreement, each Tuesday and Thursday at 6.30pm.

6. After relocating to New Zealand [X] shall live with the father:

   (a)all New Zealand school term holidays from 6.00pm or such other agreed time on the last school day until 6.00pm or such other agreed time, two (2) days before he returns to school;

   (b)one half of the New Zealand long summer vacation, being:

   (i)the first half in 2014 which shall include the Christmas eve, Christmas day and Boxing Day period and each alternate year thereafter, commencing 10.00am the first day of holidays or such other agreed time and concluding at 6.00pm or such other agreed time on the middle day of the holidays or such other days as agreed between the parents; and

   (ii)the second half in 2015 and each alternate year thereafter, commencing 10.00am or such other agreed time on the middle day of the holidays and concluding at 6.00pm or such other agreed time two (2) days before [X] is due to commence school, or such other days as agreed between the parents.

   (c)upon twenty eight (28) days written notice to the mother by the father for any period of up to two (2) weeks during any school term in New Zealand subject to:

   (i)it shall not occur more than three (3) occasions in any given calendar year, commencing in 2015;

   (ii)[X] shall continue to attend school as and when required, save where the school Principal or such other authorised officer agrees in writing that he can miss school for part or all of that period; and

   (iii)the father shall ensure [X] undertakes all relevant study and school work for that period should he be absent from school.

7. After relocating to New Zealand, the mother shall arrange and facilitate [X] communicating with his father as agreed between the parents and failing agreement:

   (a)by telephone until the conclusion of 2014, three (3) times per week on days and times agreed, and failing agreement each Monday, Wednesday and Friday at 6.30pm New Zealand time and thereafter from 2015 Wednesday and Sunday each week at 6.30pm New Zealand time or such other agreed day or time; and

   (b)by Skype, Facetime or such other electronic facility or application on at least two (2) occasions each week at days and times to be agreed between the parents commencing February 2015 (to allow the mother sufficient time to purchase an appropriate desk top or laptop computer and either an i-pad or i-telephone), and the mother shall ensure they are always in working order including being charged.

8. For the purpose of order 6(a) and (b) above the parents shall each pay one half of the airfares for [X] to travel from New Zealand to Australia at the start and from Australia to New Zealand at the conclusion of his periods with his father on a style and arrangement as agreed between the parents and failing agreement:

   (a)the father shall book the air travel as soon as possible before each trip and no less than twenty eight (28) days beforehand;

   (b)he shall send all details promptly to the mother and each shall then pay one half of the fare promptly or if the airline requires payment on booking, then the father shall pay the fare and the mother shall promptly reimburse the father one half of the cost of the airfare;

   (c)where possible, [X] shall travel as an unaccompanied minor on condition the airline is properly advised and agrees to this course, and until such time as he can so travel, the mother shall travel with him to and from Australia at her expense; and

   (d)the mother or her agent known to [X] shall at the start and finish deliver him to and collect him from the appropriate airfield and the father or his agent known to [X] will collect him from and deliver him to the appropriate airfield at the start and finish of his period of care.

9. The mother when she has care of [X] be and is hereby restrained from ingesting, consuming, possessing or using, or otherwise being under the influence of any illicit drugs, and shall not consume alcohol to excess.

10. Within twenty eight (28) days of the date of these orders the parents do all such acts and things and sign all such documents as may be required to enable an Australian passport to issue, at the expense of the father, in the name of [X], with such passport to be retained by the parent who at any particular time has the care of [X], and it shall travel with [X] between Australia and New Zealand.

11. In the event that either parent wishes to take any overseas trip other than to or from New Zealand with [X], that parent who wishes to travel with [X] must provide the other parent with no less than four (4) weeks written notice of the proposed dates.  The non-travelling parent will consider any and all reasonable requests from the other parent in respect to any proposal from the travelling parent that [X] travel for holiday purposes and upon approval being given and a booking being made, provide to the non-travelling parent:

    (a)a copy of the return flight tickets; and

    (b)details of the address and telephone numbers where [X] will be staying.

12. The parents shall:

    (a)keep the other advised at all times of their respective residential addresses (subject to (f) below) and mobile telephone numbers and e-mail addresses;

    (b)advise the other immediately in the event that [X] suffers any serious illness, injury or disease;

    (c)authorise any medical practitioner treating [X] from time to time, to communicate with the other in respect of his medical condition and/ or health requirements;

    (d)advise the other of all significant and extra-curricular activities in which [X] is involved, in a timely way to allow the other parent to be involved and permit the other to attend such activities;

    (e)authorise all schools at which [X] may attend, from time to time, to:

    (i)provide the other parent, at their expense, copies of all school reports, school notices and school photographs and such like in relation to [X];

    (ii)allow the school officers to communicate with the other parent, either by telephone, in writing or by personal attendance, in respect to [X]’s progress and wellbeing at school; and

    (iii)permit the other to attend all school functions and events which parents are normally invited to attend.

    (f)not change the permanent residential address of [X] without first giving the other parent written notice twenty eight (28) clear days beforehand.

13. All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A.The mother has unconditionally agreed to ensure that [X] spends regular and frequent time with the father and should she not comply with these orders, a future court should consider placing [X] in the primary care of the father should he be able to ensure [X] has regular and frequent time with his mother.

B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2210 of 2014

MR LAMPORT

Applicant

And

MS STOKES

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case was not only focussed on the parties’ relationship with their six year old child [X], but also his sibling relationship with the mother’s three children from an earlier relationship, [A] (“[A]”), who is now aged 16 years, [B] (“[B]”), who is now aged 14 years and [C] (“[C]”), who is now aged 11 years, particularly the latter two.

2. The parties were originally from New Zealand and came to Australia in 2007 to improve their life style and their financial circumstances.  Following separation in 2011 initially the mother stayed in Northern Victoria with the children, whilst the father had frequent and regular time with [X].  Earlier this year the father started proceedings by seeking a Watch List order, as he was aware of or suspected that the mother was about to return to New Zealand with [X].  At that time, she arranged for [B] and [C] to return to live with the maternal grandparents in the South island of New Zealand, ([A] had returned sometime earlier, around 2008 to live with his father).  

3. The net result was the mother was living with [X] in Australia wanting desperately to return to New Zealand with him.  She appeared in person and presented some evidence which often did not assist the court in clarifying the recent history.  She also presented as something of an enigma but her view was clear that if she could not return to New Zealand with [X], she would return alone. 

Background

1. The Applicant father, Mr Lamport is aged 30 years and is employed as a [omitted] in [O].  The Respondent mother, Ms Stokes is aged 38 years and is currently unemployed living on limited benefits that she receives from the Australian government and has full time care of their son, [X] who was born [omitted] 2008 (“[X]”). 

2. The parties commenced cohabitation around 2004 in New Zealand.  The mother already had the care of three children from an earlier relationship, [A], [B] and [C]. 

3. In 2007 they moved to Australia with [A], [B] and [C] and initially lived in Melbourne.  They then moved to [I] in central Victoria where they lived and worked for the paternal grandmother and step-paternal grandfather for about three and a half years. 

4. [X] was born in 2008 and just prior to his birth, [A] returned to live in New Zealand with his father.  The circumstances of [A] going back to New Zealand are unclear.  The mother and father both made certain allegations that were untested.  In late 2009, the parents and the children moved to [omitted] in central Victoria where the father [occupation omitted], and was assisted by the mother, subject to her caring for her two children from the earlier relationship and a very young [X]. 

5. On 26 October 2011 the parties separated under very emotional circumstances; the father was alleged to have sexually abused [B].  He was horrified by this allegation and strongly denied any wrongdoing.  The mother was convinced that it did occur and was very disappointed when the police did not proceed with criminal charges.  It is fair to say that this opened a huge chasm of distrust between the parties and destroyed their direct communication in any significant form.  When this matter came on for trial in July, 2014 the mutual distrust between them was obvious, as was the lack of emotional support for the mother from the paternal extended family.

6. However, to the credit of both the mother and father, notwithstanding their mutual dislike and distrust, [X] had an ongoing, significant and substantial role with his father by agreement post-separation and so when this matter was heard it was clear that he had a close and loving relationship with both parents. 

7. On 18 March 2014 the father filed a Final Application, which amongst other things, sought an order that [X] live with the mother and have significant and substantial time with the father.  On 1 July 2014 he filed an Amended Application seeking that [X] live with the mother in the [O]/ [I]/ [E] area and otherwise live with the father in the same terms as his earlier application, in which he proposed [X] would be with him five nights per fortnight. 

8. On 9 July 2014, 5 days before trial he filed or caused to be filed an Outline of Case Document wherein amongst other matters, he set out the orders he sought.  He again sought the same order as detailed in his Amended Application.  At no stage did I see in in his application, Amended Application or Outline of Case Document an order sought for [X] to live with him should the mother return to New Zealand.  This appeared to arise as a “fall back” position during the trial.

9. The mother was self-represented and filed a Response on 1 April 2014 which sought the discharge of the Airport Watch List order made on 18 March 2014 and amongst other orders sought the following, “…The child [X] born [omitted] 2008 live with the mother and his three siblings in New Zealand.”

10. I was surprised in the running when the father sought to have [X] to live with him should the mother go and live in New Zealand whatever the outcome of this trial.  I was further surprised when the mother told the court that notwithstanding the outcome of this trial, she was going to reside in New Zealand.  This was never detailed in her material that she filed with the court.

The evidence

The parties relied on the following documents:

A. Applicant father’s material:

a)Initiating Application filed 18 March 2014;

b)Application in a Case filed 3 April 2014;

c)Amended Initiating Application filed 1 July 2014;

d)Affidavit of the father sworn/ affirmed 14 March 2014 and filed 18 March 2014;

e)Affidavit of the father sworn/ affirmed and 18 March 2014;

f)Affidavit of the father sworn 28 March 2014 and filed 1 April 2014;

g)Trial affidavit of the father sworn 30 June 2014 and filed 1 July 2014;

h)Affidavit of Ms B sworn 30 June 2014 and filed 1 July 2014;

i)Affidavit of Mr M affirmed and filed 30 June 2014;

j)Financial Statement of the Father affirmed and filed 6 May 2014;

k)Family report of Ms T (Regulation 7) Family Consultant, dated 4 June 2014; and

l)Outline of Case Document filed 9 July 2014.

B. Respondent mother’s material:

a)Response filed 1 April 2014;

b)Affidavit of the mother affirmed and filed 1 April 2014;

c)Further affidavit of the mother affirmed and filed 14 April 2014; and

d)Financial Statement of the mother sworn/ affirmed and filed 14 April 2014.

The applicant’s evidence

1. It appears from his evidence that the father was frequently involved with his son’s welfare prior to separation, subject to his work commitments.  After separation when [X] was aged 3 years and 4 months the parties soon agreed to [X] spending every weekend from Friday morning to Sunday evening with the father.  As I have said earlier this reflects well on both the mother and father that notwithstanding their attitude to each other following the allegations in relation to the mother’s daughter, they could put the needs of [X] above their own personal views.  This gives me some comfort should the mother relocate with [X] that there would be ongoing time with the father. 

2. The time with [X] each weekend continued until late 2013 and during this period the paternal grandmother did all changeovers of care given the poor relationship between the parents.  It appears common ground that the grandmother and [X] developed a close grandparent/ grandchild relationship.

3. From November, 2013 to March, 2014 time with changed to alternate weekends to allow [X] to transition to school in 2014.

4. In March, 2014 the mother without notice to the father moved all the children from central Victoria to reside at [western suburb of Melbourne] with a relative.  She then arranged for [B] and [C] to travel to New Zealand to live with the maternal grandparents at [omitted].  She also planned to go there with [X] without informing the father, but was apparently stopped by his timely Watch List order obtained ex parte on 18 March 2014. 

5. Subsequently she returned to live with [X] back in [E] in central Victoria in April 2014 and [X] recommenced alternate weekend time with his father.

6. The primary position of the father was that [X] should remain living with the mother in central Victoria, subject to the father having during school terms, five out of fourteen nights each fortnight with [X] living with him, which he subsequently varied to alternate weekends.

7. The father presented as a rather quiet, sad man but otherwise appeared to be child focussed and was very keen for [X] to remain in Victoria.  He advised the court that he has re-partnered with a lady by the name of Ms F, who is aged 30 years and is currently pregnant with their first child, who is due to be born in December 2014.

8. This lady was not on affidavit nor did she give any evidence in the witness box.  Her lack of evidence, amongst other factors, which I shall comment on later, meant that I could not be fully confident with the father’s proposal that [X] should live with him was well planned.  It was not properly put or detailed to the court.

9. When the father’s evidence conflicted with that of the mother’s evidence, I preferred the evidence of the father.

The respondent’s evidence

1. The mother appeared in person and said she had to because legal aid was withdrawn due to money she received from her parents.  She never explained why she did not use these funds for representation before me. 

2. The court is very aware of the responsibility it has pursuant Re: F Litigants in Person Guidelines (2001) FLC 93-072 and frequently explained practice and procedure to the mother and gave her advice on how to run her case. It was raised more than once that the court could not give her legal advice. It was also made very clear on day one of the trial that notwithstanding that no charges were proven against the father in relation to the allegation of sexual abuse of [B], it was the court’s view that this was not a fact in issue in this case given that it was not alleged by the mother that [X] was at risk of sexual abuse whilst in the father’s care or generally, at risk at all when in the father’s care.

3. The mother’s evidence was sometimes troubling, by its ambiguity or her evasiveness.  On more than one occasion she contradicted herself. 

4. However, notwithstanding her contradictions and evasiveness, this did not undermine other clear facts such as the importance of [X]’s half- sibling relationships, his loving and close relationship with both parents and the paternal grandmother, the historic and current role of the mother as being the primary carer, her current unhappiness whilst living in Victoria, her lack of financial support in Australia and the importance of her extended family in New Zealand in providing the mother with emotional and financial support.

The Family Report

1. This was dated 4 June 2014 and authored by Ms T, a Regulation 7 Family Consultant with interviews being undertaken on 28 May 2014.  The significant parts are:

   The mother acknowledged that arrangements were made for:

   “…[B] and [C] to travel and live in New Zealand with the maternal grandparents in March 2014.  She acknowledged that it was her plan to join her older children with [X].  Ms Stokes described significant financial and emotional challenges living in Victoria post-separation. She stated that she has considerable family support and assistance in New Zealand.  Ms Stokes expressed a high level of personal distress in respect to the current situation…”

   “APPLICATIONS AND PROPOSALS OF THE PARTIES

   10. Mr Lamport stated that he is opposed to the proposed relocation of Ms Stokes with [X] to New Zealand.  Mr Lamport stated that it would be his preference for [X] to live with him and spend planned and regular time with Ms Stokes and members of his maternal family.  Mr Lamport stated that if Ms Stokes remained living in the current geographical area, he would be agreeable to a continuation of the current arrangements, this being [X] living with his mother and spending current alternate weekend and school holiday periods with him.   

   11. Ms Stokes stated that it is her strong desire to relocate to New Zealand with [X] in order to be re-united with her older children and to receive family support.  Ms Stokes expressed her distress with her current personal circumstances, stating that she is unable to secure income, employment or accommodation for herself and her children…

   …

   ISSUES IN DISPUTE AND ISSUES IDENTIFIED DURING ASSESSMENT

   12. There are identified issues in respect of the proposed relocation to New Zealand by the mother; communication and parental decision making between the parties; considering the emotional impact of the current situation upon [X]; noting any preference or opinion expressed by [X] and carefully considering future arrangements that would be in the best interests of this child.

   THE ADULTS

   13. MR LAMPORT

   is thirty years of age (born [omitted] 1983). He impressed as a quietly spoken man, able to clearly express his paternal love for [X]…He lives in a four bedroom home with his partner of ten months, Ms F.  Mr Lamport stated that he is employed by his aunt and uncle as a [omitted].  His working day commences at 4.45am, concluding at 5pm.  He stated that he has every second weekend work-free and some flexibility in his working arrangements… He described Ms F sharing a friendly and accepting relationship with [X].

   
   

   Mr Lamport stated that [X] is aware of the pregnancy.

   
   

   Mr Lamport described his partner as playing a role in providing practical care to [X] if he is working. 

   14. Mr Lamport described close family relationships existing with members of his extended family, many of whom live locally.  He added that his mother in particular has developed a close relationship with [X] and enjoys spending time with him.  He noted that he also has extended family living in the [omitted] area of the north Island, New Zealand.  Mr Lamport stated that he usually travels to New Zealand between two and three times each year in order to attend family celebrations and gatherings…

   15…He acknowledged that Ms Stokes ‘believes’ the allegations of inappropriate sexual behaviour made by her daughter [B] against him…Mr Lamport described his relationship ending with Ms Stokes ‘the day after [B] made allegations against me, I told her the relationship was over’.  He added that he has not spent time or communicated with [B] or [C] since this time…Mr Lamport stated that he believed that Ms Stokes has experienced sexual abuse as a younger person, this influencing her responses…

   16…Mr Lamport described his distress in response to the possibility of [X] relocating to New Zealand.  Mr Lamport described his paternal love of [X], wanting to be involved in his life.  Mr Lamport stated that he ‘does not trust Ms Stokes’, commenting that if Ms Stokes is able to relocate to New Zealand ‘she would be gone, there would be no contact with [X], my relationship with [X] would change or end’.  He added that he wanted a ‘normal father-son relationship, to spend time together, I would be devastated if he went to New Zealand’.

   17

   . Mr Lamport described various concerns in respect to [X] living in New Zealand with extended maternal family members.  He acknowledged that Ms Stokes ‘would be happier living in New Zealand, here she is in debt, isn’t working, has few friends’.  He added that in his opinion

   
   

   Ms Stokes ‘doesn’t want me to have [X]’…

   18

   …Mr Lamport stated that if Ms Stokes remained living in Victoria he would be willing to accept a continuation of the current arrangements adding ‘I don’t want to take [X] off

   
   

   Ms Stokes’.  However he raised some concerns in respect to maternal care including ‘I don’t like how [B] and [C] are growing up, their comments on social media are not good’. 

   19. Mr Lamport stated that he was committed to [X] living with him and his partner in the future.  He stated that [X] could continue to attend the same primary school, would have the continuing opportunity to spend regular time with extended paternal family members and remain in a familiar geographical area…Mr Lamport acknowledged that it would be ‘hard for [X] to be separated from his mother, brother and sister but it would be harder for him not to see me and his Nona’…

   20. Mr Lamport stated that if the decision is made for [X] to live in New Zealand with his mother he would ‘hope’ that he could maintain a relationship with his son by ‘talking on the phone, Skype and I would want him to spend all of his school holidays with me in Victoria’.  Mr Lamport added that if he was in a financial position to travel to New Zealand in the future, he would make arrangements to spend additional time with [X].

   21. Mr Lamport stated that it was not a possibility for him to relocate to New Zealand in the future. He added that the internal flights within New Zealand ‘were more expensive that flying between Melbourne and the South Island’.  He commented that ‘my life is here, I haven’t lived in New Zealand for ten years and my parents have offered me the chance of a position on one of their [omitted]’.  Mr Lamport stated ‘I don’t think I would consider moving to New Zealand’.

   22. MS STOKES is thirty eight years of age (born [omitted] 1976)…She impressed as a committed mother to [X], willing to speak openly with the report writer.  Ms Stokes expressed her distress in respect to her current personal circumstances throughout the interview, often becoming tearful and upset.  Ms Stokes stated that she and [X] continued to live with friends, this being the [omitted] family in [E]…Ms Stokes described significant financial difficulty at the present time. She stated that she has not been able to secure employment and receives limited family benefits.  She added that she ‘has to rely on friends for food’.  Ms Stokes added that at times she struggles to afford petrol in order to take [X] to his current primary school, this being described as a thirty five kilometre one way trip…

   23.

   Ms Stokes described feeling ‘close to not coping’ with the current situation. She further described having a limited social network available to her in Victoria.  Ms Stokes stated that she ‘needed’ to return to New Zealand in order to receive emotional and practical assistance from her family.  She acknowledged that she had planned the family’s return to New Zealand earlier in March 2014, adding “Mr Lamport would have said no to me taking [X]’.  Ms Stokes stated that she has recently consulted a General Practitioner with a Mental Health Plan being developed in order for her to receive personal counselling.  She described experiencing significant stress in response to the current situation.

   
   

   Ms Stokes stated that post-separation she was diagnosed with depression and was prescribed medication…

   24…She described her significant distress in relation to the outcome of this matter adding ‘Mr Lamport was arrested and charged, he got away with what he did to [B]’…She described in negative and critical terms the response and communication from the paternal family adding ‘they hate me, it affected my self-esteem what they said and they laughed at me’…

   25

   …Ms Stokes stated that she has not spent time with [A] for the past five years but communicates weekly with him via Facebook.  She stated that [A] is now aged sixteen years and continues to live with his father, Mr S, this being in close geographical proximity to her maternal family in New Zealand.  She stated that her relationship with [A] ‘will need to start again, I have a good relationship with Mr S’.

   
   

   Ms Stokes does not propose to change the living arrangements of [A] should she return to live in New Zealand.

   26. Ms Stokes stated that [C], now ten years of age, and [B], now fourteen years of age, are currently living with her parents in [S], South Island, New Zealand.  She added that she communicates with these children regularly each week by telephone calls and Facebook.  She stressed that she missed [C] and [B], wanting to be reunited with them.

   27. Ms Stokes stated that if consent if given to her relocating to New Zealand with [X], she intends to live with her parents with the three children for a period of approximately six months.  She stated that she would seek employment initially as a [omitted].  Ms Stokes stated that in the future she would like to study and become a [omitted].  She added that she would be eligible for government benefits as a New Zealand citizen, this significantly improving her financial situation and ability to support her children.  Ms Stokes stressed that she would receive substantial support from members of the maternal family, in particular her parents, Mr T and Mrs C…

   28

   . Ms Stokes acknowledged that [X] enjoys spending time with his father.  She stated that the arrangements changed from weekly to fortnightly in late 2013, ‘this coming from

   
   

   Mr Lamport’.  She raised some concerns in respect of paternal care including ‘coming home spoilt, he comes home hyper, he is given everything he wants, he had burns to his arm and was told to lie to me by his dad, he is asked questions about me by Mr Lamport, comes back with an attitude change’.  Ms Stokes described the relationship between [X] and his father as ‘fake’. She acknowledged that [X] appears to have a reasonable relationship with his father’s partner adding ‘Ms F seems pretty good, she cares for [X] when Mr Lamport is working’.

   29. Ms Stokes described limited communication with Mr Lamport this occurring ‘be text messages, only about practical things about [X] like changeovers’.  She described having ‘no trust’ in Mr Lamport…

   30.

   Ms Stokes expressed her clear preference to return to live in New Zealand with [X].  She stated that [X] could ‘have his own mobile phone, he could contact Mr Lamport whenever he wanted, there could be telephone calls and Skype, [X] could spend time with Mr Lamport every school holidays’.  Ms Stokes stressed that it was ‘not a workable proposition to stay in Victoria, I can’t do it, I can’t be a good mum to [X] in Victoria’.  Ms Stokes stated that she ‘does not have a fall back plan if I can’t go to New Zealand, I am so scared with this, no-one cares about me here, and I couldn’t leave [X] with

   
   

   Mr Lamport’.

   CHILD AND THEIR RELATIONSHIPS

   31. [X] is five years and eleven months of age (born [omitted] 2008)…

   32. [X] impressed as an energetic, friendly and responsive little boy of nearly six years.  He is physically tall for his age. [X] was able to communicate in an age appropriate manner with the report writer.  [X] described a close relationship with his mother and brother [C] in particular.  He added that [C] was ‘funny, I like being with him, I miss him’.  He described also missing [B] adding ‘she is very good at [sport omitted], I want to play it too in New Zealand’.  [X] made comments indicating that it was his belief that he and his mother would be living in New Zealand in the near future stating ‘we are going to fly there, I have never been there, [B] and [C] are already there, it is going to be good, I will be going to a new school and making new friends’. 

   33. [X] indicated that his mother was the ‘most important’ person to him adding ‘I like her, I live with my mum and we want to live with [B] and [C]’.  He added that he enjoys spending time with his father and paternal grandmother adding ‘I like going to the farm, I play my dad’s X-box, I like Ms F, and I have fun with dad’.  [X] stated that he loved ‘both my mum and my dad’. [X] indicated that he would miss his father and ‘Nona’ adding ‘I would miss my school a bit’.  He commented that he would ‘come on a plane to see dad and Nona, this would be pretty good’.

   34. Mr Lamport described [X] as ‘happy, loves school, energetic, loves being on the farm and is coping well.  He added that [X] appears reluctant to talk about the maternal home, comments that he misses [C] and indicates that he would like to spend more time with me, however ‘I tell him I can’t, I would love you to live with me’.  Mr Lamport described a close relationship with [X]. He added that he does not want [X] ‘to worry’ about the current parental conflict. Mr Lamport described [X] making the statement ‘mum is going to live in New Zealand, I am going to live with you’. Mr Lamport stated that [X] would experience emotional difficulty ‘if he couldn’t see me’.

   35. Ms Stokes described [X] as ‘doing well in Prep, he missed school for about three weeks when we moved to [western suburb of Melbourne] in March this year, he is energetic in the classroom and outside, misses his older brother and sister, says he has good dreams about seeing [C], he is managing ok, I talk to him’…Ms Stokes described a ‘close and beautiful’ relationship with [X] adding ‘[X] is closest to me and [C]’.

   36.

   Observations were made of Mr Lamport with [X].  [X] impressed as surprised and happy to see his father on the day of the interviews, showing little hesitation in spending time with him in the consulting room. Father and son engaged in various play activities and conversation.  [X] impressed as relaxed and comfortable in the presence of his father.

   
   

   Mr Lamport’s parenting responses were considered appropriate on the day...[X] appeared to transition back into his mother’s care without observable distress following his father’s departure from the consulting room.  Observations were also made of [X] in the presence of his mother with no concerns noted in this area.  Ms Stokes was considered appropriate in her parenting responses towards [X], impressing as caring and gentle in her approach.

   37. Telephone contact was made with [I] Primary School Principal, Ms S.  Ms S described [X] as ‘a terrific and lovely little boy, there are no concerns for him at school, [X] has said how much he is missing his brother [C]’.  Ms S noted that the paternal grandmother plays an active role in [X]’s life and has attended school.

   …

   EVALUATION…

   39. Mr Lamport is strongly opposed to the prospect of Ms Stokes relocating to New Zealand with [X].  He impresses as a caring father to [X] and wants to spend regular and planned time with him.  Mr Lamport stressed that [X] has established relationships with members of the paternal extended family and in particular, is close to his paternal grandmother.  Mr Lamport stated that if Ms Stokes and [X] remain living in Victoria, that he is agreeable to a continuation of the current arrangements. 

   40.

   Mr Lamport believes that the emotional closeness of his current parental relationship with [X] would be interrupted if he lived in New Zealand.  He expressed concern that his time would be limited to school holiday periods with [X].

   
   

   Mr Lamport also described a significant lack of trust in

   
   

   Ms Stokes’s willingness and commitment to comply with orders made should she relocate to New Zealand.

   
   

   Mr Lamport stated that he would not consider relocating to New Zealand in order to be geographically closer to [X].

   41. Ms Stokes stressed that the future of her family was in New Zealand.  She described fairly desperate current personal circumstances.  She impressed as personally distressed with the current situation.  Ms Stokes stated that she does not have employment, is unable to receive benefits and is dependent on the charity of friends for accommodation and food for herself and [X].  Ms Stokes stated that her three older children now live in the South Island of New Zealand and reside with family members.  Ms Stokes described a lack of a support network in Victoria, stressing that her immediate family in New Zealand were able and willing to provide her and the children with practical and emotional support.

   42. Ms Stokes impresses as a caring but emotionally vulnerable mother at the present time.  She is committed to parenting [X], describing herself as this child’s primary carer since birth.  Ms Stokes described a strongly established emotional attachment with [X], with this child also close to his siblings, in particular [C] aged ten years. Ms Stokes stressed that she wished to be reunited with her family in New Zealand, believing that this was also in [X]’s best longer term interests. She described her prospects as poor should she remain in Victoria, commenting that this situation would cause her continued significant stress and personal challenges.

   43. Ms Stokes stated that she was not agreeable to [X] living with Mr Lamport.  She described various arrangements and communications that would assist [X] to maintain a relationship with his father. She stated that she would be fully committed to these arrangements to ensure [X] was able to continue spending planned time with his father and members of the paternal family.  Ms Stokes acknowledged that [X] loved and enjoyed spending time with his father and his extended family.

   44. [X] impresses as a delightful little boy of nearly six years.  It is considered that his primary emotional attachment is with his mother and siblings, [B] and [C] who recently relocated to live in New Zealand.  [X] made comment that he particularly misses [C], this sibling relationship being of particular significance to him.  [X] also expressed his close emotional connection to his mother, reflecting a belief that he would continue to live with Ms Stokes in the future.

   45. [X] expressed some belief that he and his mother would be relocating to New Zealand, making positive comments with this prospect.  It appears [X] has considered the realities of being reunited with his siblings, changing school and making new friends. [X] also reflected that he loves his father and paternal family, acknowledging that he would miss them.  He expressed an excitement with the prospect of spending future school holidays with paternal family, knowing that this would involve geographical distance and travel by aeroplane... 

   …

   47. It is considered to be in [X]’s best interests if he remains in the primary care of his mother.  A change of primary care arrangements for [X] would most likely cause him distress and confusion.  The personal difficulties currently being experienced by Ms Stokes are acknowledged.  Her proposal to live in New Zealand where she would have access to family support, income, future employment prospects and the prospect of stability and security are also acknowledged as understandable in the circumstances.  The emotional connection between [X] and his siblings, [B] and [C], is viewed as significant.  It is highly likely that [X] would grieve the loss of his sibling relationships should a reuniting of the maternal family not occur.

   48. It is further considered important that [X] has the continuing opportunity to spend planned and regular time with his father and paternal family.  Despite the limitations, this could be achieved by [X] spending time each school holiday period with his father and paternal family.  It would also be important for [X] to have access to communication each week with Mr Lamport via telephone, Skype and other forms of computer contact such as Facebook.  Additional time could also be organised when Mr Lamport travels to New Zealand when visiting extended family each year.  However, it is critical that Ms Stokes acknowledges the emotional importance to [X] in having the continuing opportunity to maintain his relationship with his father and paternal family members.  Her commitment to this occurring is considered essential.  Any failure to promote or facilitate [X]’s established emotional connection to Mr Lamport and his family would be considered not in [X]’s best interests.

   RECOMMENDATIONS

   The following recommendations are respectfully proposed for consideration.

   49. That [X] continue to live with his mother.

   50. That if Ms Stokes is given consent to relocate to New Zealand, that [X] continues to have the regular and planned opportunity to maintain his established parental relationship with Mr Lamport.

   51. That if Ms Stokes is not given consent to relocate to New Zealand with [X], that a continuation of current arrangements occur, this being alternate weekends and periods of time during school holidays with his father.”

Relevant Legal Principles

1. Section 60B(1) of the Family Law Act 1975 (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of the child is met by:

   a)ensuring that child has the benefit of both their parents having a meaningful involvement in their life, to the maximum extent consistent with the best interests of the child;

   b)protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

   c)ensuring that the child receives adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their child.

2. Section 60B(2) of the Act sets out the principles underlying those objects They are that (except when it is or would be contrary to a child’s best interests):

   a)the child has the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;

   b)the child has a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their child;

   d)parents should agree about the future parenting of their child; and

   e)the child has a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the child are the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the court in determining what is in the child’s best interests.

4. In making any parenting order, the court must to the extent it is possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence.

5. If the court is satisfied that the parents are to have, pursuant to s.61DA(1) of the Act, equal shared parental responsibility, then subject to s.65DAA(6) of the Act, it must turn to ss.65DAA(1) and (5) of the Act to consider equal time, and if that is not appropriate in all the circumstances then ss.65DAA(2), (3), (4) and (5) of the Act requires the consideration of substantial and significant time.

   As stated by the learned Judge in Caravaggio & Caravaggio [2011] FamCA 254 at paragraph 35:

   “Where neither concept delivers an outcome that promotes the child’s best interests, the issue is at large and to be determined in accordance with the child’s best interests.  Goode & Goode (2006) FLC 93-286.”

Section 60CC factors

1. The two primary considerations are set out in s.60CC(2) of the Act and they are:

(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. A recent amendment s.60CC(2A) of the Act, provides that the court is to give greater weight to s.60CC(2)(b).

2. They will be considered after the relevant matters in s.60CC(3) are looked at (see Collu & Rinaldo [2010] FamCAFC 53).

Additional considerations are:

1. To the extent that they are relevant, the additional considerations in sub-section 60CC(3) of the Act are:

(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

1. In the Family Report dated 4 June 2014 at paragraph 32, page 14 the Family Consultant says:

   “…[X] made comments indicating that it was his belief that he and his mother would be living in New Zealand in the near future stating ‘we are going to fly there, I have never been there, [B] and [C] are already there, it is going to be good, I will be going to a new school and making new friends’”

2. When cross-examined on this topic the author of the Family Report agreed that there have been discussions with [X] about the mother’s preference to live in New Zealand and that his comments reflect the mother’s wish for that to happen to her family.  The author also conceded that she did not challenge [X] in terms of the information that he provided to her.  She was also referred to paragraph 34 of the Family Report where the father described [X] making the following statement, “…‘mum is going to live in New Zealand, I am going to live with you’…”  The author of the report said she accepted what the father had said to her.

3. In all the circumstances I give the views expressed by [X] to the Family Consultant either directly or indirectly, little weight as it is my assessment of the evidence that a six year old boy having heard or discussed this topic with either or both parents or others has been influenced by their views to some degree and to that extent his views and opinions are somewhat tainted, and given his tender age, unreliable.

(b) the nature of the relationship of the child with:

(i) each of the child's parents; and

1. In relation to the father I accept that [X] has a close and loving relationship.  In the Family Report at paragraph 36, page 16 the writer says as follows:

   “Observations were made of Mr Lamport with [X].  [X] impressed as surprised and happy to see his father on the day of the interviews, showing little hesitation in spending time with him in the consulting room. Father and son engaged in various play activities and conversation.  [X] impressed as relaxed and comfortable in the presence of his father.  Mr Lamport’s parenting responses were considered appropriate on the day…”

2. I also accept that there is a close and loving relationship between [X] and his mother.  At paragraph 32, page 14 the author says, “…[X] described a close relationship with his mother…”  And at paragraph 33, “…[X] indicated that his mother was the ‘most important’ person to him adding ‘I like her, I live with my mum and we want to live with [B] and [C]’…”

   And at paragraph 36, page 16 of the report, the author says the following, “…Observations were also made of [X] in the presence of his mother with no concerns noted in this area.  Ms Stokes was considered appropriate in her parenting responses towards [X], impressing as caring and gentle in her approach…”

(ii) other persons (including any grandparent or other relative of the child);

1. The paternal grandmother has a close and loving relationship with [X].  In her affidavit sworn 30 June 2014 and filed 1 July 2014, Ms B describes in paragraph 6 the following:

   “Since [X]’s birth I have been actively involved in caring for him.  I was privileged enough to be invited by Ms Stokes and Mr Lamport to attend [X]’s birth.  [X] is the first grandchild for myself and [first name omitted].  When [X] was a newborn baby I regularly cared for him when Ms Stokes and Mr Lamport were [omitted] or had other work and sport commitments.  I also looked after [B] and [C] when required by Ms Stokes and Mr Lamport.”

   And also she says at paragraph 20 the following:

   “My involvement with [X] is documented in paragraph 27 [sic] of the Family Report.  I actively participate in [X]’s schooling.  I have recently obtained a working with children’s check which has allowed me to attend [X]’s school to hear him read.  I have advised the school I can volunteer to help in any way possible.  I receive and read school news letter.  I have also been to Mother’s Day and “Grandmother’s” morning tea parties...”

2. The maternal grandparents, Mr T and Mrs C were not on affidavit and were not called to give evidence.  In the circumstances I could not assess their relationship with [X].  The same could be said of Ms F, her relationship with [X] was unknown, other than where it is referred to at paragraph 13, page 8 of the Family Report, where the father described Ms F, “…sharing a friendly and accepting relationship with [X]…” and he went on to say that his partner would play a role in providing practical care of [X] if he is working and [X] is in his care.  I am concerned that I could not assess her relationship with [X] given she was not interviewed for the report nor was she on affidavit.  She did not provide any evidence to this court. 

3. Significant other persons in [X]’s life appear to be his half siblings.  At paragraph 32, page 14 of the Family Report:

   “…[X] described a close relationship with his mother and brother [C] in particular.  He added that [C] was ‘funny, I like being with him, I miss him’.  He described also missing [B] adding ‘she is very good at [sport omitted], I want to play it too in New Zealand’…”

4. At paragraph 34 of the same report, the father described [X] and conceded that [X] misses [C].  In paragraph 37 of the same report at page 16, there is recorded a conversation with the Principal of [X]’s school and she describes him as, “…‘a terrific and lovely little boy, there are no concerns for him at school, [X] has said how much he is missing his brother [C]’…”

5. I also note at paragraph 44 of the same report where the author says:

   “[X] impresses as a delightful little boy of nearly six years.  It is considered that his primary emotional attachment is with his mother and siblings, [B] and [C] who recently relocated to live in New Zealand.  [X] made comment that he particularly misses [C], this sibling relationship being of particular significance to him…”

6. The author went on to comment at paragraph 47, page 19 of the same report as follows:

   “…The emotional connection between [X] and his siblings, [B] and [C], is viewed as significant.  It is highly likely that [X] would grieve the loss of his sibling relationships should a reuniting of the maternal family not occur.”

(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child;

1. Both parents have exercised all opportunities to spend time with and communicate with [X] and where relevant, have directly or indirectly participated in making decisions about the major long term issues in relation to him.

(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

1. Both have maintained [X] to the extent of their relative capacity, and duty. 

(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents

a)In relation to the father should [X] reside in New Zealand, there is no doubt that he would miss his father.  This was acknowledged by the Family Consultant when cross-examined by the father’s Counsel.  The difficulty is trying to maintain that relationship and the ability of the parties to do this, which I will comment on further; and

b)In relation to the mother a permanent separation from her would be very serious for [X]’s emotional well-being given paragraph 33 of the Family Report where [X] indicated that his mother was the most important person to him and at paragraph 44 where the author says, “…It is considered that his primary emotional attachment is with his mother and siblings, [B] and [C] who recently relocated to live in New Zealand…”

And further at paragraph 47 where the author said this:

“It is considered to be in [X]’s best interests if he remains in the primary care of his mother.  A change of primary care arrangements for [X] would most likely cause him distress and confusion…”

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

a)I have already commented on the importance of [X]’s relationship with his half siblings.  This appears to be a very significant issue in this trial.  If one looks at paragraphs 32, 37, 44 and 47 of the Family Report you are left with the conclusion, that should [X] not live with his siblings it would be a significant source of distress for him and I am particularly note paragraph 47 where the author says the following, “…It is highly likely that [X] would grieve the loss of his sibling relationships should a reuniting of the maternal family not occur…”; and

b)The paternal grandmother plays an important part in [X]’s life, I have stated this earlier.  He clearly loves her and she loves him, he would miss her should he live in New Zealand but I gain the impression that she would make every effort to ensure she communicated with him and saw him regularly. 

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. Both parties presented fragmented and unclear evidence about the current expense of air travel between Australia and New Zealand.  It appears however from all the evidence I heard and read, that with adequate notice and proper organisation, the question of regular flights between the two countries could be properly organised and the cost equally borne by the parties.

2. In relation to communication, I accept that wherever [X] would reside and his parents would live, that both would ensure that there would be regular and frequent communication between him and the absent parent through the numerous technical and other forms available to them today.

(f) the capacity of:

(i) each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

1. In my view the capacity of the parents and the paternal grandmother to provide for [X]’s emotional and intellectual needs are similar, however I got the impression the paternal grandmother would be significantly involved in these areas on a regular basis wherever [X] lived. 

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

1. Not directly relevant.

(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

1. Not relevant.

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. This is one of the most significant matters in this trial.  At paragraph 48, page 20 of the Family Report, the author says as follows:

   “…it is critical that Ms Stokes acknowledges the emotional importance to [X] in having the continuing opportunity to maintain his relationship with his father and paternal family members.  Her commitment to this occurring is considered essential…”

2. The author was cross-examined closely on this topic by Counsel for the father.  The following exchange took place:

   Father’s Counsel “…And if his Honour found that not only did the mother attempt to remove [X] from Australia without the father's knowledge, but she was still being misleading as to the circumstances of that removal, that is, not being up-front with the court as to what went on there, that would be a concern, wouldn't it, as to her capacity to comply with that premise?”

Family Consultant “When I conducted interviews with the mother, she indicated that she was prepared to commit herself and to follow through with arrangements - court-ordered arrangements - for [X] to spend time with his father during school holiday periods.  And she acknowledged the importance that during school time - during school term that there would need to be other forms of communication that happened on a regular basis.  So I think she does - she indicated to me that she was committed to those arrangements happening.”

Father’s Counsel “So you think she can be trusted to honour the relationship with - between [X] and the father?”

Family Consultant “I would hope so.”

Judge Curtain “What is your gut feeling?”

Father’s Counsel “Well, what is your professional opinion?”

Judge Curtain “You saw this lady.  You heard her express these opinions.  What was your immediate reaction?  That was believable, or I'm concerned about this, or I have my own doubts.  What went through your head?”

Family Consultant “Sometimes in the interview I do hear information that is different from affidavit material, different from information that has been presented to the court already.  Sometimes in those interviews I do hear a little bit more clearly what people actually feel about the other party, and what they would actually be willing to commit themselves to.  And it is sometimes likely that I would hear a parent saying, “I would only do this if I was court-ordered,” or, “Even if there was a court order, I have reluctance, “or, “I don't agree it is in the child's best interest.”

…

Family Consultant “And I think that I can then make assessments if there is a lack of real commitment, or a lack of understanding about the importance of a relationship between a child and the other parent.  And I didn't…”

Father’s Counsel “You didn't find that here?”

Family Consultant “And I didn't hear that…”

Father’s Counsel “Yes?”

Family Consultant “…or didn't experience that in the interviews that I had with the mother.  She was fairly willing to give me information about what she considered to be some realistic propositions to - so that [X] could continue his relationship with his father and the paternal family.  She acknowledged that [X] enjoys that time.  And she acknowledged that that relationship was important to [X].  So I think that they are important pieces of information that could be considered.  And I did not get the impression of a mother who, once perhaps if she was in New Zealand, would not follow through with court orders.”

…

Father’s Counsel “So you trusted what she said about the relationship between [X] and his father and her attitude to it?”

Family Consultant “I accept what she said.”

…

Father’s Counsel “You have indicated that you trusted what she said about the relationship and yet she told you that she thought the relationship was fake and yesterday in court she indicated that, when she told you that, that wasn't true and she went on to explain that she had made the comment because she thought the father had been buying toys or whatever.  So how do you square all that?  How do you square this (a) telling you the relationship is fake; (b) telling his Honour, “Oh, that wasn't true” but (c) “This is the reason.” How can you be confident in this?”

Family Consultant “Because I think the mother also gave me other information about the relationship during the assessment interview.  I think that she did acknowledge that the relationship was important to [X].  She did acknowledge that [X] enjoyed spending time with the paternal family.  She did have some concerns about that weekend time of [X] perhaps being spoilt.  And those comments about fakeness perhaps are more in context with that than the bottom line that this is a little boy who does have an important relationship with his dad and does want to spend time with him, because that information had also been reflected in the interview process and in the assessment report.”

Father’s Counsel “Then what are we to make of her concession to his Honour, to me, that it wasn't true when she told you?”

Family Consultant “Perhaps it was her interpretation at that – those particular words.”

Father’s Counsel “All right.  The evidence seems to be that over the last 18 months the wife has refused requests by the – sorry, the mother has refused requests by the father for some extra holiday time with [X].  That is, rather than just have his weekends he has sought an extension to some holiday periods and she has refused those.  The evidence may also be, his Honour may find, that the father has endeavoured to arrange mediation through organisations such as Relationships Australia to discuss that issue and that the mother has avoided that mediation.  Now, if that were the case that would be another factor that should concern us, should it not, that the mother may not be trusted to comply with your premise in paragraph 48 of your report?”

Family Consultant “I'm not sure that's so.  If the final order is made in this context I think we – I think that there is enough information there to suggest at this point in time there would be a commitment to [X] being able to maintain a relationship and time with the father.  I think in the past there have been other issues that have impacted upon parental communication that may have impacted or influenced the mother's response in the past.”

(j) any family violence involving the child or a member of the child's family;

1. There was no clear family violence, save for the allegations of post-separation harassment and the allegations in relation to [B] which were not directly relevant to [X].  

(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

1. There was a Family Violence Order sought by the mother soon after separation that related to the allegations surrounding [B] and the father and alleged harassment of the mother.  The order which was consented to lasted 12 months and was never renewed or further orders sought. 

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. The court will attempt to make orders that ensure the parties do not resort to further litigation.

(m) any other fact or circumstance that the court thinks is relevant.

1. The mother’s unhappiness in Australia, lack of financial support and no available support from her extended family which I shall comment on further in the conclusion.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;

1. In the case of McCall & Clark (2009) FLC 93-405 the Full Court considered this sub-section. At paragraph 109 the Court said:

   “The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life.  It does not give guidance to the interpretation of the phrase “meaningful relationship””.

2. It then went on to discuss in paragraph 115 the decision of Mazorski & Albright (2007) 37 Fam LR 518, where the Honourable Justice Brown said the following:

   “…I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitive [sic] one.”

3. At paragraph 170, the Full Court said as follows:

   “Bennett J discussed the terminology in G and C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic].”

4. It then went on to say that there are three possible interpretations of section 60CC(2)(a) and concluded that it preferred the interpretation that was called the ‘prospective approach’ but also said that depending on the factual circumstances, the ‘present relationship approach’ may be relevant.

5. The ‘present relationship approach’ was defined by the Court in paragraph 118 as follows:

   “(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”).”

6. The prospective approach, which I will apply in this case, was set out at paragraph 118 as follows:

   “(c) the third interpretation is that the court should consider and weight the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).”

7. It is common ground that both parents have a close and loving relationship with [X].  This is a meaningful relationship with both parents and it is my aim to maintain it in the current orders.  In my view, a meaningful relationship is not determined by the hours or days spent by a child with a parent, but rather the child and parents enjoying their periods together, whenever they occur.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. A couple of months after separation, the mother applied for and obtained a Family Violence Order in the local State court against the father, because, “…he had abused my daughter and was verbally abusive to me…” (affidavit of the mother, affirmed 14 April 2014, at paragraph 24).

2. The father says this occurred after he had sent the mother text messages seeking time with [C] and [X],“…I wanted noting [sic] to do with Ms Stokes and consented without admissions to the making of a 12 month Order.  The Intervention Order has now expired and Ms Stokes has not applied for any subsequent Intervention Orders…” (affidavit of the father sworn 28 March 2014, at paragraph 17).

3. There was no family violence involved in this case save for the above references.

4. The father did however allege in his material and at trial neglect and potential abuse by the mother post-separation alleging the mother continued to smoke marijuana and drink alcohol to excess.

5. This allegation does not sit well with her retaining unchallenged care from separation and with his principal proposal that the mother should continue to be the primary carer of [X] in the future.

6. When raised by his Counsel, I suggested that there should be Final orders made to prevent the alleged behaviour occurring in the future.  This approach appeared to be an acceptable solution, in all the circumstances.

Parental responsibility

1. Whilst the mother sought an order for, “…sole parental responsibilities…” in her Response filed some months ago, this was not followed up by her at trial.  The father in his material consistently sought an order for equal shared parental responsibility.

2. Their communication was very poor following separation and has only improved slightly since.  I had discussions with the parties from time to time over the three days of the trial and I formed the view that there is a willingness to work together to promote the welfare of [X] and therefore on balance, it was in the child’s long term interest that the parents should have the opportunity to exercise equal shared parental responsibility. 

3. In turning to s.65DAA(1) of the Act and sub-section (5), given my overall view about the question of [X] relocating with his mother to New Zealand, it is my view that [X] spending equal time with each of the parents is not reasonably practicable.

The authorities

1. In Caravaggio & Caravaggio [2011] FamCA 254 the learned Judge said as follows:

   “36. Since the 2006 amendments to Part VII there have been a number of cases in which the Full Court of the Family Court has discussed the approach to relocation cases.  In particular, Taylor & Barker (2007) FLC 93-345, Sealey & Archer [2008] FamCAFC 142, Starr & Duggan [2009] FamCAFC 115, McCall & Clark (2009) FLC 93-405 and Hepburn & Noble (2010) FLC 93-438.

   37. In Taylor & Barker their Honours in the majority (Bryant CJ and Finn J) referred to Goode & Goode where the Full Court set out the pathway to be followed in parenting cases.  The majority specifically adopted the now oft quoted par 65.    In the context of the appellant’s assertion that the trial Judge had erred in dealing with the issue of relocation and the reasons for it as a separate and determinative issue instead of following the course referred to in Goode & Goode, the majority in Taylor & Barker held there was no substance to this ground of appeal.  They held at par 60:

   In our view, his Honour dealt with the relocation proposed in the context of his consideration of s 60CC and s 65DAA, at least in so far as it was possible to do so.  It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, as far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA.

   38. In McCall & Clark the Full Court discussed and incorporated the matters of principle from Sealey & Archer.  Relevantly their Honours said:

   60.    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.

   39. And at pars 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…

   No doubt frequently, as in the instant case, the non relocating parent’s proposal will be for an equal shared care arrangement, facilitating the consideration of matters under s 65DAA as one of the proposals, and not as an abstract exercise.

   In our view, it is inevitable, given the provisions of the legislation, that the exercise to be undertaken will, on its face, involve dual consideration of some matters.  For example, consideration of matters under s 60CC(3)(d) (the likely effect of any change in the child’s circumstances) and matters in s 65DAA(5)(a) and (b) and s 60CC(3)(e) (practical difficulty and expense of a child spending time with a parent) and s 65DAA(5)(a), (b) and (c) involve examination of similar criteria.

   40. Thus relocation cases are to be approached as follows:

   they are parenting cases to be determined in accordance with Part VII;

   the child’s best interests is the paramount but not the only consideration;

   a relocation proposal should be considered and evaluated in the context of making necessary findings in relation to the relevant s 60CC matters and, where relevant, s 65DAA;

   in its application of s 65DAA, and particularly s 65DAA(5), it is appropriate to canvass the advantages and disadvantages of a proposal to re-locate the child. [I do this in my conclusion].

   41. It is still the case that neither party bears an onus to establish that a proposed change or the continuation of an existing arrangement will best promote the best interests of a child.  AMS v AIF (1999) 199 CLR 160.  Notwithstanding a parent’s right of freedom of movement, this must defer to the child’s best interests. (U & U (2002) FLC 93-112).  As with any parenting case subject to affording the parties procedural fairness, the Court is not restricted to their proposals. 

   42. More recently, the High Court published MRR v GR (2010) 240 CLR 461.  This relocation case related to a parent’s proposal to leave Mt Isa with the parties’ child and live permanently in Sydney.  The child’s other parent proposed to remain in Mt Isa and applied for equal time orders.  At par 9 of their reasons the High Court said:

   Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.

   43. At par 13 the High Court said:

   Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist[12]. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

   44. And at par 15 the High Court explained:

   Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent.  The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1).  Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”

Conclusion

1. The mother’s initial case was not only that [X] should be reunited with his half-siblings in New Zealand but should she remain in Australia with him and remain unemployed, she will only get limited government benefits as she is not an Australian citizen.  In Australia she relies on the support of her friends financially and for accommodation, whereas in New Zealand she could get a greater sum of government benefits as well as extensive physical and emotional support from her extended family in New Zealand.  She said she was very distressed with her situation in Australia.  This is detailed at:

   a)paragraph 22, page 11;

   b)paragraph 27, page 13;

   c)paragraph 41, page 17; and

   d)paragraph 42, page 18,

   of the Family Report.

2. I also note the father concedes at paragraph 17, page 9 of the Family Report that the mother, “…‘would be happier living in New Zealand, here she is in debt, isn’t working, has few friends’…”  I put that to him in the witness box and he confirmed that was still his position.

3. Given the mother’s allegations I provided the parents with a copy of the recent decision in Orpheus & Orpheus [2014] FamCAFC 70 on day one of the trial and invited them to read it and make submissions after doing so. The father’s Counsel did his best to distinguish it in final submissions and the mother ignored it.

4. In my view it has some relevance here given what the Full Court said in the following paragraphs:

   “40. In discussing that question, his Honour accepted the mother’s evidence, which he said was supported by that of Mr D, that she found it “oppressive, sad and distressing to continue to reside in the [Geelong Suburb L] area”.  His Honour said:

   46.    … It is clearly in the children’s best interests for their mother to be happy, healthy and emotionally secure. In this regard, it is worth bearing in mind what the Full Court had to say in Hepburn & Noble [[2010] FamCAFC 111] in dismissing an appeal against the trial judge’s decision to allow the mother to relocate with the children. At para 43, the Full Court found the inference was open upon the evidence that the mother would be “extremely unhappy, bitter and resentful if she were not able to relocate with her partner, and that would impact upon her capacity to parent the children.” There are also the general comments in B & B [[1997] FamCA 33]:

   The ordinary common experience indicates that long term unhappiness by a resident parent is likely to impinge in a negative way upon the happiness and therefore the best interests of the children who are part of that household.

   41. His Honour found, at [47], that if the mother was not permitted to relocate, there would “ultimately [be] a detrimental effect upon the children”.  He also expressed his satisfaction that it was not “reasonably practicable to require [the mother] to remain in [Geelong] in circumstances where she lacks the support [of] her parents and is unable to obtain full-time employment …” 

   …

   87. The trial Judge had the opportunity to observe the mother and clearly, at [43], accepted her evidence about feeling “oppressed, sad and depressed while being required to live in Geelong”.  In order for us to interfere with his assessment of the long-term effect on the mother (and the children) of being forced to remain in Geelong, we must be satisfied that the finding was not available on the evidence.   

   88. We acknowledge that in McCall & Clark (2009) FLC 93-405 at [133], the Full Court found, on the facts of that case, that the Federal Magistrate was not:

   … entitled on the mother’s evidence, and absent any expert evidence, to find that the mother’s quality of parenting would be so compromised or adversely impacted because she may be required to live in Australia, that it would impact on the child.

   89. However, we do not read that passage as suggesting that in every case there is a need for expert evidence before a judicial officer can conclude that the emotional state of a parent is likely to have an adverse impact on the welfare of children in their care.  Here, the mother had suffered from a major depressive illness, and the father’s own case proceeded on the basis that her mental health was a highly relevant consideration in determining the outcome.  Thus, for example, he attached to one of his affidavits what he said were letters from the mother threatening suicide.  In the same affidavit he said (father’s affidavit sworn 2 December 2011 at [13]):

   I am concerned … [the mother’s] depressive and unpredictable actions will have a negative effect on the health and well-being of the children.

   …

   93. We are not persuaded that his Honour’s finding about the likely effect on the mother of being refused permission to relocate was not open to him.  Nor are we persuaded that it was not open to him to find that there would be an adverse impact on the children if the mother’s mental health was to decline.”

1. To some extent this issue became less relevant in the running of the case as the mother told the court that she was going to New Zealand either with or without her son, although clearly she would prefer to take him to reside with her there.  Not surprisingly the father said as a fall-back position he would be prepared to have [X] live with him full time and allow the mother to go to New Zealand without the child.

2. However I have some real concerns about the father’s fall-back proposal.  I know very little about his partner, Ms F or her ability to care for [X], particularly given that she is to have her own child in December.

3. She was not assessed by, or interviewed by the Family Consultant, nor was her capacity to care for two children full time in the near future assessed.  She did not go on affidavit, nor called to give evidence.

4. The father in answer to one of my questions about his working days, hours and flexibility, referred to being employed by his aunt and uncle and, “…there’s a lot of leeway if I was to have [X] in my custody…”

   If he wanted to establish this he should have had at least one of these relatives on affidavit and available for cross-examination.  The lack of this further muddied the water about the father’s proposal as a primary carer for [X].

5. I raised with the father the matter of the relationship he had with [X].  He said on this topic:

   Judge Curtain “Say this lady does go to New Zealand and you say you have got a very close and loving relationship with [X].  [X]’s now – what – six.  In the last six years it could be said that you have got a – developed a really good relationship and that that relationship – even if she goes to New Zealand with [X], even though you’re only seeing him every so often not every weekend but say school holidays – that relationship will still be maintained, won’t it?”

   The father “Correct.”

Judge Curtain “All right.  Now, the problem you have got though is you say it won’t be maintained to the level you want it maintained.  Yes?”

The father “To the level I think it could be…To the level that I think it could be maintained, yes.”

…

Judge Curtain “All right.  Now, that’s the thing that seems to be the case.  You have got an established close loving relationship with [X].  If [X] goes and lives in New Zealand with Mum, how do you say that relationship would be affected in a negative way?”

The father “I don’t know that it will exactly but it’s just not what he’s used to.”

I found his answers frank and clear.  It is not his case that the father/son relationship would be substantially damaged should [X] live in New Zealand, and it could be maintained at a level that in all the circumstances, is reasonable to the court.

1. He also said the following in answer to a question from the mother:

   The mother “If it was ordered that I could not take [X] home I definitely will be going back to New Zealand, therefore how would you cope with [X] missing me – as in to say I cannot take him out of the country so you would have full custody.  How do you think you would cope with him missing me considering he hasn’t been apart from me since birth?”

   The father “He has been apart from you since birth.  He stayed with me for a full week last week.  He has stayed with me on two other occasions for a full week.  He has been fine.”

   Judge Curtain “So it’s three times you had him for a full week, yes?”

   The father “I know he would miss you.  There’s no denying that.  I don’t know until it would arise how I would cope with it.”

2. Moreover, there are strong recommendations from the Family Consultant regarding the importance of the mother/son relationship and the sibling relationship as detailed below:

   “32. [X] impressed as an energetic, friendly and responsive little boy of nearly six years.  He is physically tall for his age. [X] was able to communicate in an age appropriate manner with the report writer.  [X] described a close relationship with his mother and brother [C] in particular.  He added that [C] was ‘funny, I like being with him, I miss him’.  He described also missing [B] adding ‘she is very good at [sport omitted], I want to play it too in New Zealand’.  [X] made comments indicating that it was his belief that he and his mother would be living in New Zealand in the near future stating ‘we are going to fly there, I have never been there, [B] and [C] are already there, it is going to be good, I will be going to a new school and making new friends’. 

   33. [X] indicated that his mother was the ‘most important’ person to him adding ‘I like her, I live with my mum and we want to live with [B] and [C]’.  He added that he enjoys spending time with his father and paternal grandmother adding ‘I like going to the farm, I play my dad’s X-box, I like Ms F, and I have fun with dad’.  [X] stated that he loved ‘both my mum and my dad’. [X] indicated that he would miss his father and ‘Nona’ adding ‘I would miss my school a bit’.  He commented that he would ‘come on a plane to see dad and Nona, this would be pretty good’.”

   …

   44. [X] impresses as a delightful little boy of nearly six years.  It is considered that his primary emotional attachment is with his mother and siblings, [B] and [C] who recently relocated to live in New Zealand.  [X] made comment that he particularly misses [C], this sibling relationship being of particular significance to him.  [X] also expressed his close emotional connection to his mother, reflecting a belief that he would continue to live with Ms Stokes in the future. 

   45. [X] expressed some belief that he and his mother would be relocating to New Zealand, making positive comments with this prospect.  It appears [X] has considered the realities of being reunited with his siblings, changing school and making new friends. [X] also reflected that he loves his father and paternal family, acknowledging that he would miss them.  He expressed an excitement with the prospect of spending future school holidays with paternal family, knowing that this would involve geographical distance and travel by aeroplane. 

   …

   47. It is considered to be in [X]’s best interests if he remains in the primary care of his mother.  A change of primary care arrangements for [X] would most likely cause him distress and confusion.  The personal difficulties currently being experienced by Ms Stokes are acknowledged.  Her proposal to live in New Zealand where she would have access to family support, income, future employment prospects and the prospect of stability and security are also acknowledged as understandable in the circumstances.  The emotional connection between [X] and his siblings, [B] and [C], is viewed as significant.  It is highly likely that [X] would grieve the loss of his sibling relationships should a reuniting of the maternal family not occur.”

3. On any view the mother has always been [X]’s primary carer and to change that historical role which appears to have provided [X] with stability and routine over the last six years would be an emotionally troubling event for the young boy.  Further still, to not reunite him with his half-siblings, in the view of the expert, would cause him to grieve this loss.

4. During the trial I questioned the mother, when in the witness box, about her commitment to maintaining [X]’s relationship with his father.  I believed that she appreciated its importance and she appeared willing and able to support it.  I was confident of this view because of:

   a)the parties’ ability to arrange and undertake [X]’s time with his father post-separation without the need for litigation and in very emotional circumstances surrounding the sexual abuse allegations; and

   b)paragraph 26 of the father’s affidavit sworn 28 March 2014 that since separation the mother on a few times offered the father care of [X] when she has been unable to do so, for short periods.

5. I make this decision with some concern for the father.  He is a good man who clearly loves his son.  However, with the support of the paternal grandmother I am confident he will have an ongoing, loving relationship with his son.

6. In all the circumstances it is my opinion that it is in the best interests of [X] he be allowed to relocate with his mother to live in New Zealand.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Curtain

Associate: 

Date:  15 August 2014