LAMSAARD & EBRAHIM - [2019] FamCA 934

FAMILY COURT OF AUSTRALIA

LAMSAARD & EBRAHIM

[2019] FamCA 934

FAMILY LAW – CHILDREN – Parenting Orders – International Relocation – Where the child and the father live in Australia – Where the mother works and lives in City S – Where the mother seeks to have the child live with her in City S – child has lived with her father in Australia for four years – Where the father and the Independent Children’s Lawyer oppose relocation – Where the mother’s application to relocate the child’s permanent place of residence is dismissed.

FAMILY LAW – PROPERTY – Property Orders – Application by father to set aside property orders under section 79A of the Family Law Act 1975 (Cth) (“the Act”) – Fathers application to set orders aside successful.

Family Law Act 1975 (Cth), ss 65AA(5), 60B, 60 CC, 60CC(2), 60CC(3), 65DAC 79A

Gebert & Gebert [1990] FamCA 105
Goode v Goode [2006] FamCA 1346
Harris v Caladine (1991) 172 CLR 84
Joubert and Anor & Verhoeven [2018] FamCA 879
Livesy v Jenkins (1995) FLC 92-573
Morgan & Miles [2007] FamCA 1230, (2007) FLC 93-34, (2008) 38 Fam LR 275
Morrison & Morrison (1995) FLC 92-573
Pearce & Pearce [2016] FamCAFC 14
Stanford v Stanford (2012) 247 CLR 108
Waterman & Waterman [2017] FamCAFC 23

APPLICANT:

Mr Lamsaard

RESPONDENT:

Ms Ebrahim

SECOND RESPONDENT:

Ms Abidi

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

2015

DATE DELIVERED:

6 December 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

14, 15, 16 August, 16 & 17 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lawrence

SOLICITOR FOR THE APPLICANT:

Clinch Long Woodbridge Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Murphy

SOLICITOR FOR THE RESPONDENT:

Swifte Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Shea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That all previous parenting orders in relation to the child, A, born in 2011, be discharged.
That the Mother and Father have equal shared parental responsibility for A.
In the event that the Mother continues to live in City S:
(a) A will live with the Father.
(b)A will spend time with the Mother as follows:
(i)During the whole of the New South Wales April school holiday period each year;
(ii)During the first half of the New South Wales July school holiday period each year;
(iii)During the whole of the New South Wales October school holiday period each year;
(iv)During the first half of the New South Wales December/January school holiday period in odd numbered years;
(v)During the second half of the New South Wales December/January school holiday period in even numbered years;
(vi)For up to two consecutive weeks during each school term; and
(vii)At any other time agreed in writing between the parents.
(c)The Father will do all things necessary to facilitate communication between A and the Mother by Skype, telephone or other electronic means on at least three occasions each week.
(d)A will spend time with the Maternal Grandmother on each alternate weekend during school terms, from 5.30 pm on Thursday until 5 pm on Sunday, unless otherwise agreed between the Father and the Maternal Grandmother.
(e)During periods A is in the Mother’s care pursuant to Order 3(b), the Mother will do all things necessary to facilitate communication between A and the Father by Skype, telephone or other electronic means at least twice per week.
In the event that the Mother lives within a 20 km radius of A’s school:
(a)A will live with the Father from after school Monday until before school Monday in one week, and with the Mother from after school Friday until before school Monday in the other week, alternating from week to week during school terms, unless otherwise agreed in writing between the parents with such arrangement to continue in the June school holidays.
(b)A will spend one half of the Christmas school holiday period with each parent, being the first half with the mother in odd numbered years and the second half with the mother in even numbered years, unless otherwise agreed in writing between the parents.
Unless otherwise agreed in writing between the parents:
(a)For the purposes of Orders 3(b)(iv) and 3(b)(v), A will travel to City S to spend time with the Mother, subject to Orders 11, 12 and 13 below; and
(b)For the purpose of all other periods referred to in Order 3(b) the Mother will travel to Australia to spend time with A.
For the purposes of Orders 3(b) and 4(b), school holiday periods commence on the day immediately after the last day of term and conclude on the Friday immediately before the first day students return to school in the following term.
For the purposes of Orders 3(b)(i), 3(b)(ii) and 3(b)(iii), the Mother will notify the Father in writing at least 28 days prior to her arrival in Sydney and will advise him of the date she proposes to collect A and the date she proposes to return A to the Father’s care.
In the event that the Mother does not intend to spend time with A during a particular school holiday period, she will notify the Father in writing at least 28 days prior to the commencement of the relevant school holiday period.
For the purposes of Order 3(b)(vi):
(a)The Mother will notify the Father in writing at least 14 days prior to her arrival in Sydney and will advise him of the date she proposes to collect A and the date she proposes to return A to the Father’s care; and
(b)The Mother will ensure that A attends school on all school days while she is in the Mother’s care.
For the purposes of Orders 3(b)(iv) and 3(b)(v):
(a)The Mother will book and pay for A’s return air travel between Sydney and City S.
(b)The Mother will provide the Father with a copy of the travel itinerary or e-ticket indicating the flight numbers, departure and arrival dates and times of both A’s flights to and from City S no later than 42 days prior to the proposed date of departure from Sydney.
(c)Unless otherwise agreed in writing between the parents, the Mother will accompany A on all flights to and from City S, or will arrange for the Maternal Grandmother to accompany A.
(d)The Father will deliver A to the Mother (or Maternal Grandmother) at Sydney International Airport three hours prior to the scheduled departure time for her flight to City S.
(e)The Mother will return A to the Father at Sydney International Airport at the conclusion of A’s time with her in accordance with these Orders, or will arrange for the Maternal Grandmother to do so.
That A will not commence spending time with the Mother in City S until she is aged 10.
During the time A spends with the Mother in the December 2019 school holiday period, the Mother is at liberty to travel with A to a Hague Convention country, and in that event, the same arrangements as in Order 10 will apply.
That, for a period of four years from the date of these Orders, the Mother (or her agent) is permitted to remove A from the Commonwealth of Australia for the purposes of overseas travel in accordance with these Orders, provided that no later than 14 days prior to any period of overseas travel, the Mother deposits the sum of AUD $10,000 to the trust account of Clinch Long Woodbridge Lawyers as security for A’s return to Australia, such funds to be released to the Father in the event that A is not returned to Australia at the conclusion of her scheduled time with the Mother.
Upon the expiration of Order 13, the Mother (or her agent) is permitted to remove A from the Commonwealth of Australia for the purposes of overseas travel provided the Mother notifies the Father in writing of her intention to travel at least 42 days prior to departure and provides the Father with details of destination(s); dates of departure and arrival, flight numbers and contact details while overseas.
The Father (or his agent) is permitted to remove A from the Commonwealth of Australia for the purposes of overseas travel provided the Father notifies the Mother in writing of his intention to travel at least 42 days prior to departure and provides the Mother with details of destination(s); dates of departure and arrival, flight numbers and contact details while overseas.
That the Father hold A’s passport other than during periods of time when A is travelling overseas with the Mother.
That the Australia Federal Police be requested to remove the name of the child, A (also known as A[A]), born in 2011, from the Airport Watch List forthwith.
That each parent notify the other as soon as practicable in the event that A suffers any significant illness or injury, or is hospitalised whilst in that parent’s care.
That each parent is at liberty to obtain information from A’s school including copies of school reports, newsletters and school photograph order forms.
That each parent is at liberty to attend functions and events at A’s school to which parents are generally invited.
The parties be permitted to change the name of the child A as registered on her Birth Certificate to A, such that such change of name be registered at the Registry of Births, Deaths and Marriages by the parties and from this day the child A be known on all formal records as A, which shall accord with the first name by which she is presently known and pursuant to Orders of this Court.
The Consent Orders made by the Court on 12 January 2015 are hereby set aside.
Mr B is hereby joined as a 2^nd respondent to these proceedings and is to file a notice of address for service within seven days of the date of delivery of this judgment.
The proceedings are to be listed for directions hearing before the docket Registrar the purposes of the parties being directed to file material to enable a Conciliation Conference to be held.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC99/2015

Mr Lamsaard

Applicant

And

Ms Ebrahim

Respondent

And

Ms Abidi

Second Respondent

REASONS FOR JUDGMENT

The matter of Lamsaard & Ebrahim is an application by parties for both property and parenting orders. The second respondent, the maternal grandmother, is Ms Abidi. Although she was a party to the proceedings, there was no order she sought in relation to parenting that was different to that of her daughter and she is not party to the property proceedings. The maternal grandmother sought the current orders that she spent each second weekend with her granddaughter and if the mother’s application to relocate the child to City S was not successful. It is the grandmother’s intention to relocate to City S with her daughter if her application is successful.
The father seeks that the parties’ child, A, born in 2011, continue to reside with him in Australia, and that she spend time with her mother, who lives in City S, for specified periods of time during the school holidays and on other occasions when the mother can come to Australia. The Independent Children's Lawyer supports the father’s position, however also supports the position that the child be able to travel to City S to spend time with her mother ultimately.
It is the mother’s case that the child should live with her in City S where she intends to work for at least the next four years which will, the mother asserts, make her financially secure.
In relation to the property proceedings, the application is by the father to set aside Consent Orders made by the Family Court on 12 January 2015, those Orders having been lodged with the Court on 16 December 2014. I will deal with the Application to set the Orders aside initially, and then the parenting aspect, as this matter involves the potential international relocation of a child from Australia to City S, albeit for a temporary period of time on the mother’s case.
Initially, when the proceedings commenced, the father urged upon me, if successful in his 79A application, that I launch into a property hearing. That became an impossibility, as it was clear that the mother’s brother, Mr B, who has an equitable interest in the Suburb E property, was not a party to the Consent Orders, was unaware that this hearing would deal with his interest in the property now owned by his sister and that he had come to Court as a witness in his sister’s case. The interest of Mr B and his sister may be in conflict and he must be afforded an opportunity to obtain legal advice.
In light of these facts and if the father’s application was successful, I could see no way to proceed to hear a property application between the father and mother, when a third party who asserted a beneficial interest in that property, supported by a Deed, was unaware that this issue was to be dealt with if for no other reason than my obligation to accord a party who asserts an equitable interest in a property procedural fairness.
Additionally, the issue of bifurcating proceedings is one of discretion and the authority for that position is the decision of the full Court in Joubert and Anor & Verhoeven[1]. I accept this decision will cause financial difficulties for the parties given the modest asset pool.
[1]Joubert and Anor & Verhoeven [2018] FamCA 879.

DOCUMENTS RELIED UPON

The evidence for the parties was as follows. For the father:
a)Affidavit and Exhibits filed 8 July 2019;
b)Financial Statement filed 8 July 2019;
c)Affidavit of his mother, Ms F filed 29 July 2019;
d)Further Initiating Application filed 7 August 2019;
e)Affidavit of his deceased father, Mr H filed 10 June 2015; and
f)Reasons for Judgment of Justice Johnston in an interim decision on 15 June 2015.
For the mother and maternal grandmother:
a)Affidavits and Exhibits filed 10 June 2015, 31 July 2019, and 1 and 8 August 2019;
b)Affidavit of the mother’s brother, Mr B filed 5 August 2019;
c)Financial Statement filed 8 August 2019;
d)Response to Initiating Application filed 11 June 2015; and
e)Amended Response to Final Orders filed 12 April 2016.
f)The maternal grandmother’s Response to Initiating Application filed 12 April 2016; and
g)Affidavit of the maternal grandmother filed 5 August 2019.
In addition, various documents were tendered at the trial on behalf of the parties.
The father’s Exhibits were as follows:
a)Exhibit 1, the child’s Birth Registration document;
b)Exhibit 2, ANZ Valuation Report for the property at T Street, Suburb E, New South Wales (“Suburb E property”) at the time consent orders were entered into;
c)Exhibit 3, the mother’s D Bank Statement for account number ending #01 dated 18 January 2016;
d)Exhibit 4, letter dated 8 August 2019 seeking financial disclosure from the mother;
e)Exhibit 5, a document headed “Time With”, outlining the corrections to paragraphs 81 and 82 of the father’s trial Affidavit with respect to time the mother has spent with the child since July 2015;
f)Exhibit 6, a document listing the mortgage repayments for the Suburb E property post the consent orders;
g)Exhibit 7, a building costs ledger for the Suburb E property; and
h)Exhibit 8, the mother’s Commonwealth Bank Statement for account number ending #05 for the period 1 January 2015 to 9 April 2015.
For the mother:
a)Exhibit 1, mother’s proposed Minute of Order dated 14 August 2019;
b)Exhibit 2, a series of correspondence between Swifte Law and Clinch Long Woodbridge in relation to the parties’ proposed parenting arrangements;
c)Exhibit 3, Affidavit of Mr Lamsaard, affirmed 3 March 2015, filed 4 March 2014;
d)Exhibit 4, an aide-memoire, outlining the property pool;
e)Exhibit 5, Affidavit of Mr Lamsaard, affirmed 6 March 2018, filed 9 April 2018;
f)Exhibit 6, the father’s Commonwealth Bank Statement for account number ending #50. for the period 1 June 2018 to 17 July 2019;
g)Exhibit 7, a series of correspondence between Swifte Law and Clinch Long Woodbridge Lawyers in relation to financial disclosure, between 8 April 2019 to 7 August 2019; and
h)Exhibit 8, Valuation Report for the Suburb E property dated 29 November 2014.
For the Independent Children’s Lawyer:
a)Exhibit 1, the child’s School report for Semester 1 2019;
b)Exhibit 2, the ICL’s proposed minute of Orders, dated 13 September 2019;
c)Exhibit 3, a 2019/2020 academic calendar for J School, City S; and
d)Exhibit 4, costs notice prepared by the ICL noting that the mother is to fund the costs of Mr G Court attendance.
The maternal grandmother did not submit any exhibits.
There were two Court exhibits. The first Court exhibit was a report prepared by the expert, Mr G dated 19 June 2019.
The second Court exhibit was a Child Responsive Memorandum prepared by Family Consultant Ms M dated 3 February 2016.
Mr Lawrence of Counsel acted for the applicant father, Ms Murphy of Counsel acted for the respondent mother and second respondent, and Ms Shea of Counsel acted as Independent Children’s Lawyer.
The mother, her mother, the mother’s brother, the father, his mother and Mr G, were all cross-examined

SHORT RELEVANT CHRONOLGY

The mother was born in 1977 in Australia, aged 42.
The father was born in 1977 in Country W, aged 41.
In 2010, the parties had a religious wedding ceremony.
In 2011, A was born.
At the time of the birth of their daughter and at marriage, the parties were living in a property at Suburb Q, New South Wales. The father asserts that the mother told him this was her property. The mother denies this conversation. The property was owned by the mother’s brother and the mother says that this is what she told the father.
In 2012, the parties legally married in Australia.
On 24 June 2011, the parties purchased the property at Suburb E, New South Wales, for $510,000. It is an agreed fact that the mother’s brother, Mr B, contributed $88,500 towards the purchase price of the property. Otherwise, the remaining monies needed to purchase the property came from the parties’ respective savings account, the first homeowners’ grant and a mortgage.
In June 2012, the mother was made redundant and received a payment of $30,000.
In July 2012, the father was made redundant and received a payment of $72,500. The father asserts that he remained unemployed for a period of approximately two years. It is the mother’s case that the father remained unemployed for over two years.
In September 2012, the mother regained employment with R Company for a period of approximately six months. At this stage, the child was about 18 months of age. The father says effectively from that time he became the primary carer of the child. The mother denies this assertion.
In late 2012, the parties purchased a floral business known as “V Business”, located in Suburb P, New South Wales. The business was purchased from the mother’s sister for approximately $4,000.
In February 2013, the parties sold the business for $16,000. The father asserts he does not know what the mother did with the net proceeds of the sale.
In July 2013, the mother commenced full-time employment with a company called K Company, with whom she still works in City S, and has continued to work full-time since that date. It is evident that the mother is a woman of considerable skill, drive and ambition, and it is a credit to her that she has obtained an overseas position in City S obtaining two promotions whilst in City S. These are very important matters for the mother. The father has a different approach to life and advancement.

In April/May 2014, the mother received an offer to relocate to K Company in City S. The mother’s case is that she attempted to persuade the father to go with her and the child to City S because of the opportunities it would give her, their daughter and their life, and that he could be part of the child’s life in City S.
The father says that the last occasion the mother spoke to him regarding these issues was in September 2014, a time at which he asserts and the facts tend to prove that the parties’ marriage had broken down.
On 10 June 2014, the mother received a formal offer for the role in City S.
Between August and September 2014, the parties separated.
On 9 September 2014, the father vacated the Suburb E property and commenced living with the paternal grandparents in Suburb Z, New South Wales. The child was cared for in an equal time care arrangement, with the assistance of the maternal and parental grandparents.
On 28 November 2014, the parties entered into a Deed of Trust with Mr B. This Deed of Trust is exhibited in these proceedings and was a document that Mr B had drawn up to protect what he said was his equitable interest in the Suburb E property, having regard to the breakdown of the parties’ marriage.
On 21 January 2015, Final Orders were made by consent with respect to property matters. Pursuant to the Orders, the mother received effectively 70% of the property pool and the father received 30%, a sum of $91,500. The mother told the father that at that time she was effectively unemployed. The child continued to see her father.
On 2 February 2015, the mother removes herself and the child to City S without notice to the father. The maternal grandmother also accompanied the mother and the child to City S. Shortly thereafter, the mother commenced a position as Executive Officer for K Company.
On 4 March 2015, the father commenced proceedings in this Court for the return of the child, and that the child live with him.
The father asserts that he did not have much contact of any type with the child from 2 February 2015 until she returned to Australia in July 2015. On 21 May 2015, whilst the matter was in Court, the mother’s residential address, Skype details, and the like were provided to the father to enable him to have contact with the child.
On 15 June 2015, Justice Johnston made an Order that the mother return the child to Australia by 7 July 2015.
On 7 July 2015, the mother returned the child to Australia.
On 30 July 2015, Johnston J made Orders that the child was to live with the father. The child was to spend time with the maternal grandmother each alternate weekend and the father was to facilitate the child having Skype communication with the mother at least twice a week and until the mother returned to Australia, when a week about arrangement would commence.

THE EVIDENCE

With respect to the application for Consent Orders filed by the parties for property settlement, it is clear the document contained many errors. For example, it was asserted in that application that the father was paying child support to the mother at $105 per week. That was untruthful. The application asserted the parties’ owned the property. That was untruthful as there was no mention in that document of the interest of the mother’s brother, Mr B, in the property.
Both parties were complicit in swearing and then filing a document in Court which contained, if not falsehoods, many significant errors. Of significance is the statement that the child would be residing primarily with the mother. At the time of signing this document the child was living in an equal time arrangement and this statement did not correctly reflect what her care arrangements were. It is clear, however that the Orders in relation to the child contemplated her spending significant time with her father in Australia, and this necessitated her mother living with the child in Australia.
Relevantly, this has not been the care arrangements for the child since 7 July 2015 when the mother returned the child to Australia and the child has lived with her father.
The Orders provided the mother would receive net $246,000, being the value of the property less the mortgage and other personal items, and the father $91,500 in cash, which the mother paid him.
The property at Suburb E was transferred to the wife upon payment of $91,500 to the husband pursuant to the Consent Orders.
The application for Consent Orders was signed by the parties on 16 December 2012. However, on 28 November 2014, some three weeks prior to signing the application, the father, mother and the mother’s brother, Mr B, entered into a Deed of Trust. That Deed, which no party seeks to set aside in these proceedings, provides as follows.
The parties to the Deed are the mother, Ms Ebrahim, the father, Mr Lamsaard, and the mother’s brother, Mr B. The recitals provide as follows:
1) This declaration is supplemental to a conveyance of property pursuant to a contract for sale of land dated 24 June 2011, made between (1) Mr L and (2) [Ms Ebrahim] and [Mr Lamsaard], under which the freehold property known as T Street Suburb E Folio Identifier … (“the Property”) was transferred to [Ms Ebrahim] and [Mr Lamsaard] in fee simple, in consideration of the sum of $510,000.
2) The deposit of $28,000 paid to purchase the property is provided by [Ms Ebrahim] and [Mr Lamsaard].
3) In addition to the funds borrowed from the Commonwealth Bank, a further amount of $88,500 was provided by [Mr B] to complete the purchase of the Property.
4) The parties wish to acknowledge and state once and for all their respective rights and interest in the Property.
5) Each party in this Deed has had the opportunity to receive independent legal advice in relation to this Deed.
At page 2 of the Deed, the operative provisions of the Deed commence in the declaration of trust is as follows:
[Ms Ebrahim] and [Mr Lamsaard] declare they hold 50 percent (50%) interest in the property in trust for [Mr B], in fee simple and agrees that they will at the request in which costs are to be borne by the respective parties in accordance with their respective interests in the Property, transfer and do all such things as may be necessary to procure the appropriate registration or entry in the register of the above title to give effect to any such transfer or dealing or if so required to protect the interest of [Mr B].
Thus, the Deed provides [Mr B] holds 50% interest in the property, and the mother and father hold together the remaining 50% interest in the property.
The Deed continued in relation to payments of costs and expenses relating to the property at paragraph 2.
Paragraph 2 of the Deed provided that the parties agreed that, the mother and father would make all loan repayments, pay all costs to maintain the property together with all other costs associated with the property and expenses associated or in any way or connected to the property in accordance with their respective interest in the property, and they shall bear any losses in the same proportions.
At paragraphs 4 and 5, the Deed provided for Mr B to lodge a caveat to protect his interest in the property and the mother and father covenanted that they would not deal with the property in any way without his agreement.
After hearing evidence from the mother and Mr B, it was clear that their understanding of clause 2 of the Deed was that the mother and father would pay all loan repayments but only 50% of costs associated with the property and Mr B the balance.
As I read clause 2 of that Deed, it could have an entirely different meaning, not that that is relevant to these proceedings, per say, other than that since the property was transferred into the mother’s name, the mother and her brother assert they have carried out their understanding of the meaning of clause 2 of the Deed. They have equally shared the cost of maintaining the property and all costs incurred in relation to the property including what is now a development on the property.
The home the parties lived in has been demolished since the Consent Orders were entered into, a Development Application approved for the construction of two townhouses or co-joined properties with a swimming pool. The site has been cleared, a slab laid and excavation is underway in relation to the swimming pool prior to the building commencing.
The mother and her brother intend to build a duplex on the property to provide a home for each of them. Thus, the property transferred by the father to the mother no longer exists as it did in 2014.
It is clear on these facts that the Court was misled by the significant errors in the Consent Order application for no other reason than that Mr B’s interest was not disclosed in that document.
However, that is not the gravamen of the issue for determination by me. If that failure to disclose together with other errors in the document had been the only errors, then given that the husband was well aware of these errors, I would not have exercised my discretion to set aside Consent Orders, particularly in circumstances where they have been acted upon.
The gravamen of the issue for me is the most unsatisfactory evidence of the mother in relation to her intention at the time these Orders were signed and filed with the Court regarding taking up her offer of employment in City S.
It was the mother’s case that, at the time of signing the Consent Orders, she had not yet made up her mind whether she would accept the position in City S. It is also clear on the evidence that at no time had the mother rejected the position in City S and that she was an active participant in having her then position in Sydney filled and herself interviewed people for that role. It is inconceivable that the mother carried out this task in circumstances where she did not intend to take up her position in City S. Her oral evidence that she went through this process still not knowing whether she would take up her position in City S is not accepted by me.
Secondly, the very day after the Consent Orders were signed to be lodged with the Court, the mother emailed Ms N, a Human Resources representative at her place of employment in the UK about the job offer in City S requesting information about the position in City S, asking what she needs to organise and what she needs to do to take the position up. When pressed in cross-examination on the inconsistency of this email and signing the Consent Orders which contemplated the child spending time with each of her parents in Australia, the mother’s glib answer, “I was still keeping my options open” and, “I still hadn’t made up my mind to take the job,” are not accepted by the Court.
This email confirms the mother was continuing to put her plans in place to move to City S with the child despite the father’s clear objection to that outcome and she did not disclose those plans to the father given she knew what his position was.
The mother had every intention from the time the position was first offered to her to her to take it up. I accept she tried valiantly to have the father agree, despite their marriage breakdown, to allow her to take the child to City S. I also accept she tried to have him come to an agreement as she said consistently said in the witness box, “I thought we would come to an agreement. I thought we would agree”. Yet it must have been apparent to her that once the marriage broke down, the father had no intention of:
a)Living in City S;
b)Agreeing to their daughter living in City S with her mother; and
c)He was opposed to that course of action and he made that clear to the mother on each occasion it was raised by her.
The mother’s persistence in saying, “I thought we would come to an agreement” does not assist her and rather supports the father’s position that she took the child to City S without his agreement. It is apparent that the mother knew the father would object to her taking the child to City S given the subterfuge she perpetrated upon him and perhaps her daughter, on the last occasion he saw the child on the weekend of 30 January 2015. The mother spirited child away on 2 February 2015.
On 30 January 2015, the child’s last words to her father upon returning to her mother was, “I will see you next week, Daddy”, and she did not see the father until July 2015.
The father asserts that 11 days after the Final Orders were made, the mother collected the child from his home in Suburb Z and said to him, “Monday is my last day at work. I’ve finished. I’ve got no job”. The father rang her on 2 February to see if she was alright, given it was going to be her last day at work, and he asked, “Is everything okay? Are you all right?” The mother said, “Everything is okay. A is having a nap. I will call you when she wakes”.
The father received a telephone call from the mother later that day. He answered the phone and the child spoke to him. The child said, “I will see you tomorrow, Daddy”. He said, “No, I will see you on Thursday”.
The mother wrote to both the father and his mother and father, with whom she has a good relationship. The letters begin “Dear Mum and Dad”, and to the father, “Dear D”. They are Exhibit 3 to the father’s trial Affidavit.
On Wednesday, 4 February 2015, the father received his letter and the letter for his parents. At this time the mother was in City S with the child. In the letter, the mother says she had turned down the job in City S, “as I felt at the time with everything that was happening I could not go. So I told work I could not accept the job”. The mother admitted in the witness box that this was a lie and she had never turned down the job and it had been kept open.
The mother said in the letter that a week and a half ago she called HR in the UK and asked if the job was still available. That was a lie. The mother called HR the day after the Consent Orders were signed some six weeks prior to writing these letters. The mother said in the letter she was surprised the job was still open. I do not accept this is a truthful statement either. The evidence supports a finding that the mother knew when she contacted HR in the UK on 18 December 2014 that the job was still open to her.
The Consent Orders were signed on 17 December 2014 yet the mother would not agree she misled the father about what she planned to do. The mother said she changed her mind about going to City S when he, the father, would not agree to her taking their daughter to City S. It was clear in September 2014 that the father objected to this course and that he never changed his mind. Thus her conduct in writing to Ms N on 18 December 2014, the day after signing the Consent Orders, about what she needed to do in relation to taking up the position in City S and whether it was still open, makes no sense other than that this is what she intended to do at the time she signed the Orders and that she carried out her intention in February 2015.
I find that the mother knew it was a certainty she would be moving to City S at the time she entered into the Consent Orders and that she had no intention of remaining in Sydney with the child. The father had never changed his mind and anybody reading his Affidavit, hearing his words, would know he was not going to change his mind.
The mother’s fervent belief expressed in the witness box of the opportunity that living and working in City S would not only give her but also give their daughter substantial benefit and her incredulity that the father could not see these benefits for their daughter merely strengthens the position I have reached, which is, on these facts I find that the mother failed to disclose to the father her intention to not only take up her position in City S but to remove the child to that country at that time they signed the application for Consent Orders.
Going to section 79A of the Family Law Act 1975 (Cth) (“the Act”) on the setting aside of Consent Orders, the section reads as follows:
“The setting aside of orders altering property interests”
(1)Where an application by a person affected by an order made by a Court under section 79 in property settlement proceedings the Court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information) the giving of false evidence, or any other circumstance; or
(b)in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out, or impracticable for part of the order to be carried out; or
(c)a person has defaulted in carrying out an obligation; or
(d)in the circumstances that have arisen since the making of the order being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child, the applicant will suffer hardship is the Court does not vary the order or set aside the order and make another order in substitution; or
(e)proceeds of crime order has been made.
In the Full Court decision of Pearce & Pearce,[2] an appeal by the husband of a trial judge’s decision to set aside Consent Orders pursuant to section 79A of the Act due to his failure to make a full and frank disclosure was dismissed. The Full Court opined at paragraph 34 as follows:
In Gebert and Gebert[3], this Court, in the context of section 79A application, held that “… the law fortunately still allows persons to form their own views as to the arrangement of their affairs”.
[2]Pearce & Pearce [2016] FamCAFC 14, at [34].
[3]Gebert & Gebert [1990] FamCA 105.
This position has been affirmed by the High Court in Stanford and Stanford,[4] where that Court held “if both parties are competent it can still be assumed that any necessary or desirable adjustments can be made to their property interests consensually”.
[4]Stanford v Stanford (2012) 247 CLR 108, at [44].
Their Honours went on to say:
The well-settled proposition that... agreement to a consent order which may not adequately reflect the parties’ entitlement under section 79 does not of itself show there has been a miscarriage of justice. There may be cases where the order consented to is so far outside the ambit of what is just and equitable that the court may infer the parties acted under duress, in ignorance or as a result of incompetent advice. A failure to comply with that duty will amount to a miscarriage of justice. Equally however it is not every failure of frank and full disclosure which would justify court in setting aside an order.[5]
[5] Above, note 1.
In the decision of Waterman & Waterman,[6] the Full Court allowed an appeal in which a trial judge had found there was no miscarriage of justice in the making of property orders when it was apparent on the evidence that there had been a serious failure by the husband to disclose his assets. Their Honours opined referring to decisions such as Morrison & Morrison[7]:
The constant emphasis of the cases is that in order for there to be a just and equitable and an appropriate order altering the interests of parties in their property there must be a full and frank disclosure between them of all circumstances which may be relevant to the determination of their true financial position both presently and in the foreseeable future.
[6]Waterman & Waterman [2017] FamCAFC 23, at [33].
[7]Morrison and Morrison (1995) FLC 92-573, at [81,670].
Their Honours quoting from the decision in Livesy v Jenkin[8]:
…once it is accepted that this principle of full and frank disclosure exists, it is obvious that it must apply not only to contested proceedings heard with full evidence adduced before the court, but also to exchanges of information between parties and their solicitors leading to the making of consent orders without further inquiry by the court. If that were not so, it would be impossible for a court to have any assurance that the requirements of [the relevant section of the English Act] were complied with before it made such consent orders.
[8]Livesy v Jenkins (1995) FLC 92-573, at [81,671].

Otherwise as their Honours opined consistent with the decision of Morrison & Morrison[9]:
…the failure of the husband in Waterman and Waterman to disclose the true position robbed the wife of the opportunity of her informed consent and the non-disclosure was of such magnitude that it amounted to a miscarriage of justice…
[9] Above note, 7.
These principles apply not just to financial matters but also to parenting applications and the obligation is to make a full and frank disclosure of all relevant material as is apparent from the quotation of Justice Dawson in Harris v Caladine[10]:
It is implicit in these passages that the consent to an order must be informed consent the consent to the order is itself part of the judicial process on which the court places reliance. If that consent is based upon misleading or inadequate information then there may be in our opinion a miscarriage of justice either by reason of the suppression of evidence or by reason of any other circumstance.
[10]Harris v Caladine (1991) 172 CLR 84.
It is clear on the evidence that there has been a significant miscarriage of justice by reason of the suppression of evidence by the wife and a failure to disclose all relevant information to the husband in relation to her intention to work and live in City S and remove the child to the country.
Having so found, the orders must be set aside pursuant to section 79A of the Act as there has been a miscarriage of justice by reason of the suppression of evidence and failure to disclose relevant information by the mother in relation to her intention of where she was to work and where she and the child were to live at the time she signed the application for Consent Orders.
I find the mother knew at the date she signed the Consent Orders, that she would not be the primary carer of the child in Australia and that her intention was to remove herself and the child to City S, where she proposed to live and take up an excellent and wonderful job opportunity, which she has done.
The consent of the father to the parenting and property orders was based on his belief supported by the mother’s conduct that the mother would be the primary carer of the child in Sydney when she had no intention of carrying out this arrangement.
The consequences of the mother’s subterfuge has been a miscarriage of justice by reason of suppression of evidence and failing to disclose relevant information namely and has resulted in the father being the primary carer of the child for the past four years without payment of child support to him from the mother.
These facts also support a finding of exceptional circumstances relating to the care and welfare of the child as set out in section 79A(d) of the Act and for these reasons the Orders must be set aside by the Court.
The mother’s actions constitute an egregious breach of trust not only as between the parties, but the assumptions underlying applications for Consent Orders filed in this Court which are underpinned by a belief that the parties are honestly setting out what is their intention and what are their assets. To not set the Consent Orders aside would be a failure by this Court to protect its processes, the rule of law in Australia, and the Courts’ obligation to do justice and equity as between the parties.
When the Court made the Consent Orders they were simply not apprised of all the salient facts. The most important was the mother’s intention in relation to her work in City S and taking the child with her but also the interest Mr B held in the property with the husband and wife.
I will order that the Consent Orders entered into by the parties and made by the Court on 21 January 2015 are hereby set aside.

MOTHER’S APPLICATION TO RELOCATE CHILD’S RESIDENCE TO CITY S

The mother relies upon her strong relationship with her daughter, the benefits to her daughter of experiencing living and being educated in a foreign country, and that she is returning to Australia in four years to support her application that it is in A’s best interest that she live with her in City S for the next four years.
The mother’s position is supported by the expert Mr G, who opined that it is in the child’s best interests that I remove her from her well-settled environment in Sydney, living with her father and paternal family and seeing her maternal grandmother and maternal family on alternate weekends, to City S to live with her mother and maternal grandmother.
The maternal grandmother gave evidence that she intends to live in City S with her daughter to assist in the care of the child, and to that end will give up her current housing which is New South Wales public housing.
The reality is that since the mother returned the child from City S, the mother has lived in City S to pursue her career and the child is progressing extremely well in her father's care, no doubt, in part a testament to her excellent parenting in the first four years of her life.
The child spends alternate weekends with her maternal family and sees her various cousins, aunts and uncles at that time. When she is in the maternal grandmother’s care, she has exposure to her Country AA background. Whilst in the father and paternal grandmother’s care, she is exposed to her Country W culture.
A is a blessed child, having supportive caring grandparents and two parents who are focused on her best interests. That is a clear factor in this matter.
The father, Independent Children’s Lawyer and the Court had difficulties with the conclusions reached by Mr G in his Report, having regard to observations contained in the report. I did not cavil with any of Mr G’s observations.
At paragraph 60 of his Report, he says “It was evident from these interviews and observations that A has a strong attachment to each of her parents”.
Mr G opined the child’s comment, "I cannot choose", when talking about which parent she might live with, seemed to accurately represent a genuine dilemma for her rather than her not wanting to upset one parent or the other. He correctly observed that whether she lives with her mother or her father she will inevitably feel a sense of loss with respect to the absent parent. At the present time, this sense of loss is inevitably felt more deeply with respect to the mother, her mother being the absent parent. The mother herself expressed this loss and said in oral evidence "I feel from – I get from A a strong sense of she needs to be with me," and that would be correct.
As Mr G opined, she sees little of her mother and when her mother is in Sydney it is a very intense relationship. Mr G opined that although A is a resilient child who approaches relationships and activities with a sense of optimism and enthusiasm, she does so by compartmentalising her sadness with respect to her mother being largely absent from her life, as indicated by her comments that at times she feels sad when going to sleep when her mind is at rest.
It is also likely that her comment that her mother works in City S, but her home is in Sydney, represents a psychological defence against feeling loss and rejection. However, the child’s comment must also come from the fact that her mother tells her home is in Sydney as she confirmed she does in oral evidence. Additionally, the mother is very focused on ensuring her daughter does not believe or think that her mother has abandoned her, rejected her or does not want her. The mother's position in this is supported by the maternal family. These factors were not noted by Mr G.
Mr G observed A as an optimistic, resilient child who was ebullient with both her parents at the observation, moving freely and happily between each of them. She is valued and loved in the context of a large close-knit family and extended family. Her comment that she would like to have family and extended family and other people all together, would seem to support this view.
It was apparent there is no risk of harm to A in either parent's care, and the mother's argument that the father has an alcohol problem was not supported by any cogent evidence and is rejected by me.
It is sad that the father and the maternal grandmother do not communicate at changeover, and that is something they should work on. This would make life much easier for the child, and she is clearly aware of the tension between her father and maternal grandmother. The ball is firmly in the father’s court to change this dynamic, and I was satisfied the maternal grandmother wants a more cordial relationship with him.
Mr G went on to say that A is aware of the tension between her parents. A has experienced living in City S for six months, and it was, apparently, enjoyable for her. A knows her father wants her to remain living in Sydney, and it was concerning that she does not talk about her mother in her father's household.
The father appeared to have had a light-bulb moment on this issue in the witness box as follows.
There was much negotiation between the parents when the mother came to Australia to see the child. It was pointed out to the father that he had been unkind on these occasions in not agreeing to the child spending the maximum time with her mother and insisting that her time be shortened by day here and there for no apparent reason. It was put to that to him that he had taken a somewhat controlling attitude to this and that in being so parsimonious with the mother and child’s time he had not focused on what was best for A but, rather, control of the situation. The father took on board these criticisms and agreed he had not looked at the matter that way. True to his words the child spent the maximum time with her mother whilst the trial was on and I am confident he will ensure this now occurs on each occasion her mother is in Sydney.
Mr G went on to say that A would very likely feel a sense of loss with respect to the parent with whom she is not living at present. At the present time, she feels a compartmentalised with an enduring sense of loss with respect to her mother, as indicated by her feeling sad when she goes to sleep. It is also likely that she feels a sense of rejection or shame for not routinely having her mother in her life, as indicated by her saying that her mother’s home is still in Sydney. In Mr G’s view, these feelings are compounded by gender-related needs and interests, and these feelings would be alleviated if she lived with her mother.
He opined that if the child lived with her mother, she would experience an ongoing sense of sadness with respect to her father. In Mr G’s view, the sense of loss with respect to her father would be substantial, but most likely less psychologically complicated than her sense of loss with respect to her mother. The risk of her experiencing longer term issues such as self-esteem issues would probably be also less likely if she lived with her mother.
This is the conclusion that the Independent Children’s Lawyer, the father and the Court struggled with, as came from nowhere. This is particularly so when there was virtually no weighing up of pros and cons, analysis or opining on the consequences for the child of living in City S with her mother and grandmother and being separated from her maternal and paternal family and usual routines in Australia. The consequences for the child living Australia are apparent and known, she is doing very well. This is not the case for her living in City S and little analysis was paid to this all-important issue in the report.
It is trite that the child feels a strong sense of loss because her mother does not live with her, but that is a choice her mother makes for which there is absolutely no criticism from the Court. It is a consequence of an appropriate adult decision.
Mr G was cross-examined on this quite startling conclusion in his Report.
It was put to Mr G that if the child lived in City S, she would feel a sense of loss in not living with her father and he agreed.
He agreed the only basis he had for saying that the child had feelings of rejection or shame because she was not living with her mother, was the child saying her mother’s home is in Sydney. However, it was clear from the mother’s evidence that she tells A her home is in Sydney when she comes home to see her, and she has a home for her in City S as well. Thus, I reject Mr G’s opinion that the child saying this indicated she felt rejection and shame because she was not living with her mother.
In further answer, Mr G said she was an eight year old girl coming up to prepubescence. There was no evidence that the child is prepubescent. She is eight, not ten.
Mr G said it was normal for a girl to experience a loss of her mother as a rejection. There was no evidence that the child feels rejected by her mother, and her mother and the maternal do much to ensure that that is not the case. Mr G could not give one observation or any other objective factor to support what he described as “his hypothesis” of A experiencing rejection or shame because she was not living with her mother, which is the best it came to.
I reject any opinion the A feels rejected by her mother she could not, given the extraordinary lengths her mother has gone to in ensuring she does not. The mother manages to visit her three or four times a year, speaks to her consistently on Skype, and A spends alternate weekends with her paternal family.
I accept this concept of rejection may be an outcome for a child but we are not hypothesising on a child but opining in relation to A and there are no external indicia to support this hypothesis in relation to A.
Mr G called his theory a “hypothesis of probability”, but there was no indicia to support his hypothesis other than A feels sad when she goes to sleep thinking of her mother and that as an eight-year-old girl, he was of the view she is coming up to prepubescence, of which, again, there was no evidence. When pushed on what age he was referring to as prepubescent, he said “girls coming up to eight, nine or ten”. There is a significant different between an eight year old and a 10 year old girl and in his Report he made no such observation of A’s prepubescence.
He then said that A “needs to live with her mother to have the positive experiences of her mother.” I reject that statement. Children who do not live with their fathers still have positive experiences of their father. There was no evidence put by Mr G to satisfy me that in some way female children must live with their mothers to have a positive experience of them, yet need not live with their fathers to have a positive experience of their fathers. If Mr G was correct, the converse might be true, namely that boys must live with their fathers to have a positive experience of their father. These generalisations simply do not assist in the bespoke work of a family law parenting matter.
It was put to Mr G that other females could fulfil the gap that A was experiencing in not living with her mother, and I accept his evidence that other females were not equivalent to her mother.
The Child Responsive Memorandum was completed at a time when the mother had just returned the child to Sydney from City S. The child would have been distressed at the loss of her mother and it is not surprising that much was made in that document of the consequences for the child missing her mother and not living with her. However, four years have transpired and we are now able to see how the child has progressed in the absence of living with her mother. A has a regular routine and arrangement in place and is flourishing in every aspect of her life. There is no concern whatsoever about the positive development and trajectory for this little girl. Therefore, I reject entirely, that I could rely upon the observations in the Child Responsive Document as being relevant three years later, unless there were indicia to support the recommendations of that document being appropriate and Mr G said there was not.
Mr G could not answer the question of why the loss of a father would be less complex for a child in relation to his hypothesis of rejection and shame particularly as A has lived solely with her father for four years. I accept that she was primarily parented by her mother for four years however she has now been effectively solely parented by her father for the same period of time.
I became concerned that there was an underlying bias that “girls should live with their mothers” in this hypothesis and that if that be the case, it is inappropriate and would offend my obligation under the Act to make an order in a child’s best interests after having weighed up all the evidence and considered the factors in section 60CC (2) & (3) of the Act. No disputed parenting matter is simple or one-dimensional.
Mr G had been unaware, it would appear, that the mother intended to return to Australia at the latest within four years. Her oral evidence was that she has now been promoted to the most senior position she is able to achieve in City S and cannot advance further thus will return in four years.
Mr G said “Well, if a mother returned to Sydney within two years, I would be less concerned, when she is 10.” Her mother is not intending to return in two years but four years as she needs this period of time, to, use her words “make myself financially secure”, and I accept her reasons for this decision.
He was then asked if the mother is to return from City S when the child is about 12 years of age what are your concerns. Mr G said, “Well, if the mother is going to return in four years, my concerns are diminished.” Mr G’s position was that the child’s psychological loss would be of much less concern for him in those circumstances than if the mother was not returning whilst the child was still a minor.
If I accept the mother is to return in four years and she was clear that this was her intention, then the concerns Mr G expressed in his Report and endeavoured to support in his cross-examination are lessened.
However, the mother’s evidence before Justice Johnston in 2015 of only living in City S for four years have not come to fruition. It is 2019, and she intends to stay for a further four years and so it may be the case the mother stays in City S longer.
The reality is, whether the child lives in City S with her mother or remains living in Australia with her father, she will miss the absent parent with whom she does not live.
Mr G said when he questioned why the mother took the child to City S without the father’s knowledge, she said, “I made a mistake,” and he did not push her further on that answer. It would have been beneficial for the Court and perhaps the mother and the father for Mr G to have pushed her as to why she made such a life changing decision in the face of the father’s clear stance that this was not something he agreed to.
The mother did not make a mistake. The mother knew precisely what she was doing and she hoped that when she got to City S the father would see what she sees as the benefit to the child of living separated from him and his family with her in City S.
The mother made a life changing decision for herself and A and made an error of judgement, and in so, doing minimised the importance of the father in the child’s life. The mother attempted to justify her behaviour to Mr G, saying the reason she went to City S was because the father had not worked for three years, he was going nowhere, and she wanted to go somewhere. I accept the mother’s position and these are important reasons why the mother’s decision to work in City S makes absolute sense and is a rational decision, however, the mother’s needs and the child’s needs diverged at this point, and on this occasion the mother’s needs overwhelmed her child’s needs
I accept Mr G’s position that it is not healthy for the child to not be able to freely speak about her mother in her father’s household as is the case as the father confirmed A does not speak about her mother when she is in his care. I did not detect there was any difficulty in the mother’s household speaking about the father and the father and uncle Mr B seem to have a good relationship. There was no difficulty between those men. However, the father has been extremely hurt by his former wife’s actions and he has reacted in a way at times which has harmed A as much as the mother. Mr G gave the father advice, being that he should speak positively about the mother and make room for the conversation, even if A does not want to talk about her mother, he should push her about the positives of where her mother lives, where A lives spending time with her mother in Australia or City S, rather than responding to her when she makes a comment about her mother.

I accept that the father’s limited income does not permit him to travel with A overseas, let alone to City S. Both parents agree overseas travel is a good thing for a child but only the mother has the financial capacity to affect such an event.
After hearing the mother give oral evidence and accepting her clear and firm view that Australia is her home, she is working in City S to make herself financially secure, and to that end, is building a home for herself, her daughter and her mother, is focused on A attending high school in Sydney and that A’s education is very important to the mother; I have formed the view that the mother is not a flight risk with A in these most unusual circumstances.
This is not the position the Independent Children’s Lawyer and the father took. There are facts to support the Independent Children’s Lawyer’s position that the Court could not be confident the mother would return to Australia in four years in that she initially unilaterally removed the child against the father’s express wishes, told the Court before Justice Johnston that she would be returning in two years which extended to four years, and intends on being in City S for a another four years, is ambitious and career orientated and doing well at her job with two promotions.
On the other hand, it cannot be forgotten that although the mother unilaterally removed the child to City S, she returned the child to Australia when ordered so to do by the Court without there being any effective capacity to have that Order enforced in City S.
The mother, A and the father have suffered the consequences of her poor judgement at that time, and I accept that she will not expose her child to that behaviour and its consequences in the future. I am satisfied the mother is a person who accepts decisions of the Court and complies with orders of the Court.
I have formed the view that if A remains in Australia, it is an imperative that she not only spend the maximum time she can with her mother when her mother visits Australia, but most importantly, she spend time with her mother in City S where her mother lives and works once a year.
I accept the position of the Independent Children’s Lawyer that it is too soon for such a trip to be contemplated now. I find that when A is 10 years of age in 2021, travelling to City S will be in A’s best interests and enable her to have the benefits of travel overseas, see her mother in her home environment and experience the one-on-one time with her mother, which she can only have a limited experience of if she lives in Australia and her mother lives in City S. This will be best effected by her maternal grandmother taking and returning her to City S at the mother’s cost.
Prior to 2021 and by agreement with the father, the mother may take the child to a Hague Convention country. The mother must place a bond with her solicitor for all overseas travel to give the father a practical assurance of his daughter’s return to Australia. That bond will be fixed in the sum of $10,000 and is to be paid 14 days prior to the child’s travel overseas and is to be returned to the mother within 24 hours of the child’s arrival in Australia on each occasion she travels.
The reality is, A cannot have both her parents in close proximity to her. Her mother will be living and working in City S for the next four years and the father has no capacity to live in City S. These are the only options that are available to me in making my decision. There are no other alternatives than these.
The question for the Court is which option will impact A the least as neither option is optimal as is always the case in relocation matters.
The overwhelming consideration for me given the state of flux of Mr G’s evidence as to the impact upon the child not living with her mother in City S for the next four years, is that she is doing extremely well in her well-settled environment living with her father and spending time with her paternal family.
I do not see the evidence which Mr G finally came to being, “a possibility of the child’s self-esteem being damaged although not substantially damaged” by her remaining living in Australia with her father, is of such magnitude that I would disturb her well-settled care arrangements and reverse her current living arrangements and order she live in City S with her mother and maternal grandmother and be separated from her father, paternal family, maternal family in Australia, her school, school friends and usual activities. This is the option with unknown consequences for A’s psychological and emotional health as I see it.
In the exercise of my discretion to make an order in the child’s best interest, I find that the child remaining in Australia is the order in her best interests and the mother’s application to relocate the child’s permanent place of residence to City S be dismissed.
Upon the mother’s return to Australia I will order that the child live in an equal time arrangement with her parents. That appeared to me to be the agreed position of her parents and I will also order.
Upon that event, both parties may take the child outside the Commonwealth of Australia by giving the other parent 28 days’ notice of their intention to do so and neither will be required to place a bond for the travel.
Additionally, I make an order to enable the parties to correct the child’s misspelt name on her birth certificate to read “A”.
In relation to the property matter, the parties will be directed to attend Conciliation Conference at which time it is hoped the parties will resolve this dispute as the property pool is of a small compass and the husband has already received some $91,500 by way of property settlement.

I certify that the preceding one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 6 December 2019.

Associate:

Date: 6 December 2019