Lane and Armstrong

[2018] FamCA 424

FAMILY COURT OF AUSTRALIA

LANE & ARMSTRONG [2018] FamCA 424

FAMILY LAW – CHILDREN – With whom a child lives – International Relocation – Where the father opposes the mother’s wish to relocate with the child to the UK – Where both parties are UK citizens but both have permanent residence status in Australia – Where the mother is the child’s primary attachment figure – Where allegations of family violence were made by both parties – Where there is no need to protect the child against harm caused by the parties – Where there is a risk the mother’s ability to cope will diminish if she is compelled to remain in Australia with the child – Ordered the mother have sole parental responsibility for the child – Ordered the child shall live with the mother and the mother is restrained from establishing the child’s residence in any place outside either Australia or the UK – Ordered that the time spent by the child with the father is dependent on the distance between the respective locations of the parties’ homes

Family Law Act 1975 (Cth) ss 4, 60CC, 61DA, 64B, 65DAA, 65DAC, 68B, 114
Hague Convention on Civil Aspects of International Child Abduction 1980 art 26

AMS v AIF (1999) 199 CLR 160
Hepburn & Noble (2010) FLC 93-438
McCall v Clark (2009) FLC 93-405

APPLICANT: Ms Lane

RESPONDENT: Mr Armstrong

FILE NUMBER: SYC 853 of 2016

DATE DELIVERED: 13 June 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Austin J

HEARING DATE: 14, 15 & 16 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Dart
SOLICITOR FOR THE APPLICANT:	Kyle Family Lawyers

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

Orders

1. All former orders relating to the child X, born … 2014, (“the child”) are discharged.

2. The mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the child.

3. The mother shall:

   (a)Prior to making any decision in relation to the child pursuant to her authority under Order 2, give the father written notice of any decision that needs to be made, invite his comments about the decision, and take his comments into account; and

   (b)After making any such decision, notify the father in writing of the decision she makes and the reasons for it.

4. The child shall live with the mother.

5. The mother is restrained from establishing the child’s residence in any place outside either Australia or the UK.

6. The mother is restrained from establishing the child’s residence in any place outside Australia until she has:

   (a)Served on the father documentary proof she has:

   (i)Requested a decision from a court of competent jurisdiction in the United Kingdom about recognition of these orders in the United Kingdom pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996 (“the Child Protection Convention”); and

   (ii)Obtained from a court of competent jurisdiction in the United Kingdom a declaration of registration and enforceability of these orders in the United Kingdom pursuant to Article 26 of the Child Protection Convention; and

   (b)Filed in this Court an affidavit verifying her compliance with the conditions set out within Order 6(a).

7. The parties shall take all reasonable steps to ensure the child spends time with the father as follows:

   (a)If the mother, child, and father all live in Australia:

   (i)During school terms, each alternate weekend from the completion of school, pre-school, or day-care (or 3.30 pm, whichever is the earliest) on Friday until the commencement of school, pre-school, or day-care (or 9.00 am, whichever is the latest) on Monday, commencing on the first Friday of each school term;

   (ii)For the first week of the holidays at the end of terms 1, 2, and 3, commencing at 9.00 am on the first day after the last day of school term and concluding at 5.00 pm on the seventh day thereafter; and

   (iii)Each year, from 3.00 pm on Christmas Day until 12.00 noon on 10 January.

   (b)If the mother, child, and father all live in the UK:

   (i)Whilst ever the father lives within 50 kilometres of the mother and child:

   (A)During school terms, each alternate weekend from the completion of school, pre-school, or day-care (or 3.30 pm, whichever is the earliest) on Friday until the commencement of school, pre-school, or day-care (or 9.00 am, whichever is the latest) on Monday, commencing on the first Friday of each school term;

   (B)For the first week of the each school holiday period (except the UK Summer school holidays), commencing at 9.00 am on the first day after the last day of school term and concluding at 5.00 pm on the seventh day thereafter; and

   (C)During the UK Summer school holidays, in alternating weekly rotations, commencing at 9.00 am on the first day after the last day of school term.

   (ii)Whilst ever the father lives more than 50 kilometres from, but within 300 kilometres of, the mother and child:

   (A)During school terms, each alternate weekend from 5.00 pm on Friday until 6.00 pm on Sunday, commencing on the first Friday of each school term;

   (B)For the first week of the each school holiday period (except the UK Summer school holidays), commencing at 9.00 am on the first day after the last day of school term and concluding at 5.00 pm on the seventh day thereafter; and

   (C)During the UK Summer school holidays, in alternating weekly rotations, commencing at 9.00 am on the first day after the last day of school term.

   (iii)Whilst ever the father lives more than 300 kilometres from the mother and child:

   (A)During school terms, each third weekend from 9.00 am Saturday until 6.00 pm on Sunday, commencing on the first Friday of each school term;

   (B)For the first week of the each school holiday period (except the UK Summer school holidays), commencing at 9.00 am on the first day after the last day of school term and concluding at 5.00 pm on the seventh day thereafter;

   (C)During the UK Summer school holidays, in alternating weekly rotations, commencing at 9.00 am on the first day after the last day of school term.

   (c)       If the mother and child live in the UK, but the father lives in Australia:

   (i)During the UK Summer school holidays:

   (A)In the UK in 2018 and each alternating year thereafter, for three contiguous weeks commencing on the date nominated by the father to the mother in writing, not less than four months in advance (but only 21 days in advance in 2018); and

   (B)In Australia in 2019 and each alternate year thereafter, for three contiguous weeks commencing on the date nominated by the father to the mother in writing, not less than four months in advance; and

   (ii)In the UK on one other occasion each year for two contiguous weeks (excluding Christmas Day) commencing on the date nominated by the father to the mother in writing, not less than four months in advance.

8. For the purposes of implementing Order 7(a), the parties shall respectively ensure the child’s:

   (a)Collection from school, pre-school, or day-care whenever the child’s residence or expenditure of time with a party is to commence at or about the conclusion of school, pre-school, or day-care during school term;

   (b)Return to school, pre-school, or day-care whenever the child’s residence or expenditure of time with a party is to conclude at or about the commencement of school, pre-school, or day-care during school term; and otherwise

   (c)Collection from and return to Suburb B Swimming Pool.

9. For the purpose of implementing Order 7(b), the parties shall respectively ensure the child’s:

   (a)Collection from school, pre-school, or day-care whenever the child’s residence or expenditure of time with a party is to commence at or about the conclusion of school, pre-school, or day-care during school term;

   (b)Return to school, pre-school, or day-care whenever the child’s residence or expenditure of time with a party is to conclude at or about the commencement of school, pre-school, or day-care during school term; and otherwise

   (c)Collection from and return to the McDonald’s Restaurant which is closest to the mother’s home.

10. For the purpose of implementing Orders 7(c)(i)(A) and 7(c)(ii):

    (a)The father shall collect the child from and deliver the child to the mother at the McDonald’s Restaurant which is closest to the mother’s home in the UK; and

    (b)For the trips made by the father to the UK pursuant to Order 7(c)(i)(A), the mother shall deposit to the bank account nominated to her by the father in writing the sum of AUD $1,500 not less than 28 days in advance of the father’s collection of the child from her.

11. For the purpose of implementing Order 7(c)(i)(B), the mother shall deliver the child to and collect the child from the father at the McDonald’s Restaurant which is closest to the father’s home in Australia.

12. Whilst ever the child spends time with the father pursuant to Orders 7(a) and 7(b), the parties shall take all reasonable steps to ensure the child communicates privately by telephone with:

    (a)The father each Wednesday at 6.00 pm, when the child is living with the mother.

    (b)The mother each Wednesday at 6.00 pm, when the child is spending time with the father.

13. Whilst ever the child spends time with the father pursuant to Order 7(c), the parties shall take all reasonable steps to ensure the child communicates privately by audio-visual internet connection with:

    (a)The father (when the child is living with the mother) on three occasions each week, on the child’s birthdays, on Father’s Day, and on Christmas Day at times agreed between the parties.

    (b)The mother (when the child is spending time with the father) on three occasions each week, on the child’s birthdays, and on Mother’s Day at times agreed between the parties.

14. The father is restrained from consuming alcohol during any period in which the child spends time with him and also during the period of 12 hours immediately preceding such time.

15. Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

16. The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.

17. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

18. The parties and Independent Children’s Lawyer are at liberty to furnish a copy of these orders to:

    (a)The Australian Federal Police and any competent authority or officer empowered under the Australian Passports Act 2005 (Cth);

    (b)Legal representatives and courts in the United Kingdom for the purpose of recognition, registration and enforcement under legislation of the United Kingdom; and

    (c)       The principal of any school attended by the child.

19. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

20. Costs are reserved for 28 days.

21. Any and all other outstanding applications are dismissed.

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 Lane & Armstrong 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 NEWCASTLE

FILE NUMBER: SYC 853 of 2016

Ms Lane

Applicant

And

Mr Armstrong

Respondent

REASONS FOR JUDGMENT

Background

1. The applicant mother and the respondent father are both loving and caring parents of their four year old daughter. They agree she should continue to live with the mother, but the mother wants to take her back to the UK to live and the father wants them to remain in Australia.

2. The parties are both UK citizens, but both have permanent residence status in Australia. The parties have lived in Australia for many years – the father since 2000 and the mother since 2007.

3. The parties met in 2013 and the child was conceived shortly thereafter. She was born in 2014. The parties shared a house together for about six months while the child was an infant, but neither was satisfied with the arrangement and so they terminated the lease. When they moved into separate households the father moved nearby the mother so he could maintain his regular personal interaction with the child, though the parties hold different opinions about how regular the interaction was and whether the regularity suited the child.

4. The mother commenced these proceedings in March 2016 seeking orders that would enable her return to the UK with the child, which proposal the father steadfastly resists.

5. Interim orders were made in August 2017, providing for the child to live with the mother and to spend time with the father on three separate occasions each fortnight, incorporating visits on alternate weekends and mid-week evenings. Those orders prevailed and were faithfully implemented until the time of trial in May 2018.

Competing proposals

1. The mother resiled from the orders proposed in her Initiating Application filed on 1 March 2016 and she instead sought the orders set out in the minute of orders tendered during the trial.[1] She sought her allocation of sole parental responsibility for the child and for the child to live with her, without restriction as to the location of her residence, so she would be free to live in the UK. She proposed the time spent by the child with the father would be dependent upon how close to her he then chooses to live. If it is quite close, she envisaged a similar regime to the current regime could apply, with the child visiting the father on alternate weekends, during school holidays, and on other special occasions. The frequency of visits would necessarily reduce correlatively with greater distance between the parties’ homes. Obviously, if the father chooses to remain living in a different country, face-to-face visits would be very infrequent. The mother envisaged an expansive program of communication between the child and father to help maintain their relationship in the absence of their frequent visits.

   [1] Exhibit M2

2. The father did not seek the orders set out in his Response filed on 14 June 2016. He instead pressed for orders he outlined in his trial affidavit.[2] He opposed the mother’s relocation with the child to the UK and, in expectation she and the child would remain living in Sydney, he wanted the child to spend time with him on alternate weekends (Friday afternoon until Monday morning), for one mid-week night each week, for half of all school holidays, and on other special occasions. He maintained his application for the parties to have equal shared parental responsibility for the child.

   [2] Father’s affidavit, paras 60, 61

Evidence

1. The mother relied upon her affidavit filed on 30 April 2018 and the schedule of documents she tendered.[3]

   [3] Exhibit M1

2. The father relied upon:

   (a)His affidavit filed on 11 May 2018 and the documents referred to therein as annexures, which were selectively tendered;[4]

   (b)The affidavit of his partner, Ms C, filed on 10 May 2018;

   (c)The affidavit of the paternal grandmother, Ms D, filed on 10 May 2018;

   (d)The affidavit of Ms E filed on 10 May 2018; and

   (e)The affidavit of Ms F filed on 10 May 2018.

   [4] Exhibits F1 to F13

3. The parties also relied upon:

   (a)The Memorandum dated 26 August 2016 prepared by the family consultant; and

   (b)The report dated 9 May 2018 prepared by the single expert psychologist, Ms G.

Legal principles

1. Orders in respect of children are made under Part VII of the Family Law Act (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

6. In U v U (2002) 211 CLR 238 the High Court distilled a number of important propositions to contextualise those statutory imperatives in cases where a residential parent proposes his or her move with the child away from the non-residential parent.

7. First, the paramount consideration is the child’s best interests, irrespective of the parties’ competing proposals so, if the parties’ proposed orders in respect of the child do not reflect the child’s best interests, the Court is not bound to selection between the polarised options submitted by them (at 284-285). The making of orders that do not replicate the orders devised by either party does not vitiate the judgment or orders (at 263).

8. Second, the residential parent wishing to relocate with the child bears no onus of proving the existence of compelling reasons to warrant the relocation (at 261). Conversely, nor does the non-residential parent who wants the parties to retain their fixed abodes bear any onus of proving the existence of compelling reasons for that decision (see Malcolm v Monroe [2011] FLC 93-460 at [83]). However, the parties’ reasons for their proposed relocation and immobility should be explored in the evidence and evaluated, which process will inform the inquiry about whether or not the relocation is a wise exercise of parental responsibility (see U v U at 285-286; Malcolm v Monroe at [81], [83]).

1. Third, it should not be assumed the non-residential parent cannot or should not contemplate moving so as to be nearer the relocating residential parent and child. The residential parent need not necessarily subordinate his or her wish to relocate to the wish of the non-residential parent to remain and pursue his or her life in a place of his or her choosing (at 286).

2. Fourth, apart from cases of abusive relationships, children benefit from the development of good relationships with both their parents, regardless of with which one they live (at 285-286). The orders made by the Court should therefore strive to keep both parents meaningfully involved in children’s lives.

3. Fifth, relocation disputes rarely admit of perfect solutions. Predictions about domestic, marital and social arrangements are matters upon which minds will inevitably differ and findings about the child’s short, mid, and long term interests permissibly fall within a wide range of discretion (at 262-263).

4. Although the Court has power to make injunctions confining the establishment of a child’s residence within a certain geographic area, such orders should only be made cautiously (see Cales & Cales (2010) FLC 93-459 at [74]-[91]). That is because parents enjoy a high measure of freedom of movement, which freedom is not lost by reason only of their parental responsibility for their child. In fact, they have as much residential freedom as is compatible with their parental obligations (see AMS v AIF (1999) 199 CLR 160 at 196, 206, 207-208, 210, 223-224, 231-232; Sampson v Hartnett (No.10) (2007) FLC 93-350 at [58]; Zanda & Zanda [2014] FamCAFC 173 at [132]-[136]). It is only when the child’s welfare would be adversely affected by any proposed relocation that a parent’s right to freedom of mobility should be subjugated to the paramount consideration of the child’s best interests (see U v U at 262).

The child’s best interests

Section 60CC(2) – primary considerations

1. There was no contest about the quality of the child’s relationships with both parties. She enjoys meaningful relationships with both of them from which she does and should continue to derive much benefit. When the parties first conferred with the family consultant in July 2016 they each commendably said they wanted the child to experience a meaningful relationship with the other.[5]

   [5] Memorandum, para 23

2. The mother is the child’s primary attachment figure[6] and the father’s admission the child should continue to live with her, regardless of the location in which she is able to live, was an eloquent concession of the profound importance of the child’s relationship with her.

   [6] Single expert report, para 58

3. The child’s relationship with the father is also very important to her. The mother repeatedly conceded the quality of their relationship to the family consultant,[7] the single expert,[8] in evidence-in-chief,[9] and in cross-examination. The father certainly senses his strong relationship with the child.[10]

   [7] Memorandum, paras 12, 15

   [8] Single expert report, paras 50, 54, 67a, 67d, 67g

   [9] Mother’s affidavit, paras 147, 150

   [10] Father’s affidavit, para 58

4. The orders made by the Court should therefore aspire to the future integral involvement of both parties in the child’s life, which is the only primary consideration engaged by the evidence in this case (s 60CC(2)(a)).

5. There is no need to protect the child against any harm which may befall her by subjection or exposure to abuse, neglect, or family violence (s 60CC(2)(b)). Although both parties adduced evidence of occasional physical and disrespectful confrontations between them, which incidents were capable of amounting to family violence and to which the child was exposed, neither contended it necessitated the reversal of her residence or the curtailment of her interaction with the father.

Section 60CC(3) – additional considerations

1. Few of the factors prescribed as additional considerations by s 60CC(3) of the Act were contended by the parties to be relevant to the resolution of their dispute.

2. One factor which plainly is significant to the outcome is the likely effect upon the child of any material change to the current regime under which she lives with the mother and spends frequent time with the father (s 60CC(3)(d)). Such a regime could not endure if the parties cease to live in reasonably close proximity, especially if the mother relocates with the child to the UK and the father chooses to stay in Australia. In that event, the practical difficulty and expense involved in maintaining the child’s face-to-face contact with the father also rises to prominence (s 60CC(3)(e)).

3. However, it is important to recognise that, in this case, there is no absolute need for the child to be geographically separated from either parent. The options of the parties living in close proximity to one another in either Australia or the UK are open. There is no legal impediment to the mother’s continued residence in Australia or the father’s return to the UK. They are both citizens of the UK and each of them hold visas which enable their permanent residence in Australia. Consequently, the mother’s desire to return to the UK and the father’s desire to remain in Australia is, in each case, a choice. Once that fact is recognised it becomes obvious the dispute is not determined by reference to only the child’s best interests, because her interests will be just as well served whether she lives in Australia or the UK, so long as her relationships with both parties are preserved. The parties’ individual interests are therefore pertinent and influential.

4. The father wants to stay in Australia so, if the mother and child move to the UK, he will only be able to maintain contact with the child by occasional visits and their regular communication by audio-visual link and telephone. The father believes the child is presently too young for that form of communication to be a sufficiently sound conduit for their relationship, on account of her young age and her short attention span caused by mild autism. The mother agreed the child is perhaps occasionally disinterested in audio-visual communication with the father, but she asserted it generally worked well when she was last in the UK on holidays. The paternal grandmother agreed she has managed to forge a strong relationship with the child from her home in Africa by their regular audio-visual communication, even though they have personally met on only a handful of occasions, so there is good reason to expect the father could similarly maintain the already strong relationship the child enjoys with him in that way.

5. The single expert said the child was “quite verbal”, her communication with the father by audio-visual link or telephone should be short and frequent (about three times per week) for best effect, and that form of communication will become easier for them as the child ages and matures. She advised that, even if the child is initially resistant, the father should persist with his efforts and she would probably eventually be compliant. She acknowledged the father’s maintenance of a long-distance relationship with the child in that way would not be as ideal as them living close by and enjoying regular visits but, if they live far apart, she expected the father could maintain his meaningful relationship with her by occasional personal visits and regular electronic communication. Such oral evidence confirmed her earlier opinions.[11]

   [11] Single expert report, para 66

6. The father expressed his belief the mother had thwarted his attempts to forge a stronger relationship with the child, which he implied demonstrated an impaired attitude to her parental responsibility to ensure the child’s enjoyment of a healthy and loving relationship with him (s 60CC(3)(i)) and was a powerful reason why she should be restrained from relocating with the child to the UK. He feared if the relocation occurred then the child’s relationship with him would wither, with consequential emotional detriment for the child, because, even if she is capable of sustaining regular electronic communication with him, the mother would fail to ensure she is ready, willing, and able to communicate with him with sufficient regularity.

7. While the father may genuinely harbour such apprehension about either the mother’s lack of commitment or her positive interference, the evidence did not objectively verify his worry. The mother told the family consultant in 2016 she would delay her planned relocation for two more years to give the child more time within which to strengthen her relationship with the father, which she has since done. She told the family consultant and said in evidence she was hopeful the father would choose to move back to the UK so the child could continue to enjoy his regular involvement in her life.[12] In cross-examination she admitted her move with the child to the UK would not be “ideal” for the father, but said she does not find the current situation “ideal” either. She repeated her hope the father would also choose to move to the UK so he could remain close to the child but, if he chose to stay in Australia, she acknowledged it was her responsibility to ensure the child retains her valuable relationship with him. She earlier told the single expert the same thing,[13] who said in cross-examination she found the mother’s comments about her responsibility to be credible. She said the mother did not “sugar-coat” the risk of deterioration of child’s relationship with the father due to any tyranny of distance between them and she appeared to be strongly committed to the need to encourage their relationship. The mother conveyed the same credibility in her oral evidence.

   [12] Memorandum, paras 15-16, 26; Mother’s affidavit, para 151

   [13] Single expert report, para 54

8. It is almost inconceivable the mother would make such concessions if she was truly intent on retarding the quality of the child’s relationship with the father. True it is, the parties often quarrelled over the amount of time the child should spend with the father – with him always wanting more than the mother was prepared to give – but the disagreement did not appear to spring from any malevolent intent by her to ruin or impair the child’s relationship with him. Such conclusion flows relatively easily from evidence to the following effect:

   (a)The parties informally agreed the mother could take the child back to the UK on holidays in 2014 and 2015. As promised, on each of those occasions she returned with the child to Australia after the holiday. If she was genuinely dismissive of the importance of the child’s relationship with the father she could easily have reneged on her informal agreement with him and remained in the UK with the child.

   (b)Interim orders were not made between the parties until August 2017. The orders included provision for the mother to take the child back to the UK on holidays over the Christmas period and, as before, she duly returned the child to Australia.

   (c)The father admitted in cross-examination that:

   (i)In the three years before the interim orders were made in August 2017, apart perhaps from some odd occasions, the mother did not withhold the child from him in breach of the informal agreements they struck from time to time;

   (ii)After the interim orders were made in August 2017, the mother complied with the orders and did not withhold the child from him;

   (iii)The mother has, from time to time, agreed to allow the child to spend more time with him than was agreed or ordered; and

   (iv)The mother has informed him of and not precluded his attendance at most of the child’s medical appointments.

   (d)On occasions when the child was unwell and did not spend time with the father as expected, the mother provided the father with make-up time, though it might not have been as much as he wanted.

9. Those are not the actions of a mother who is intent on marginalising the father. Her conduct has been generally consistent with her stated intention to promote the child’s relationship with the father. The squabbles they have frequently endured do not detract from the conclusion about her integrity. Most likely, such squabbles are the product of the unresolved tension felt by both parties over the uncertainty of the mother’s proposed relocation with the child. The father implicitly thinks so. He long ago admitted to the family consultant he suspects the parties’ relationship will improve once “the Court provides some certainty around the time [the child] should spend with each parent and where [the child] will reside in the future”.[14] The mother is not so optimistic. She thinks one party will be resentful of the other once the dispute is determined by the Court more favourably to one than the other and so any vestige of co-operation between them will be eradicated.[15] Irrespective, the mother would be relieved if she is free to relocate to the UK with the child and, in that event, she would most probably support the child’s relationship with the father, just as she repeatedly asserted, whether the father stays in Australia or also moves to the UK.

   [14] Memorandum, para 24

   [15] Mother’s affidavit, para 21.4

10. The child would probably lose her warm relationships with Ms C and her two daughters if she relocates to the UK (s 60CC(3)(b)(ii)), because they would probably not stay in touch with her as frequently as the father, but those relationships are relatively new for her and will likely be supplanted by others she could develop in the UK.

11. The mother has struggled to financially provide for herself and the child with relatively little help from the father by way of child support. Nonetheless, the father has regularly paid the child support for which he has been assessed from time to time. The mother did not contend he failed to fulfil his obligation to maintain the child (60CC(3)(ca)) and so her asserted lack of financial capacity was not an influential factor in the determination of the child’s best interests; it was only relevant to her personal interests in wanting to return to the UK, where she believes she would enjoy more financial security.

12. The child is monitored for her diagnosed conditions of asthma and mild autism. The father contended her medical supervision would be unnecessarily disturbed if she was taken to the UK to live. That could be so, but any interruption is likely to be minimal. The mother has already investigated continuity of her proper medical care.[16]

    [16] Mother’s affidavit, paras 70-71

13. The parties have comparable capacity to satisfactorily provide for the child’s physical, emotional, and intellectual needs (ss 60CC(3)(f) and 60CC(3)(i)), though the father accepts the child should remain living with the mother.

The parties’ interests

1. The mother posited a number of reasons for her decision to return to the UK: her unchanged intention to always do so;[17] her reasonable belief in the improvement of her financial circumstances there;[18] and her desire to be assisted physically and emotionally by family and friends who live there.[19] The availability of family support to a parent, including such things as reliable quality child care, financial assistance, and emotional support can be very important considerations in parenting cases involving relocation and are factors to be balanced and weighed when considering competing proposals (see McCall v Clark (2009) FLC 93-405 at [131]-[135]; Hepburn & Noble (2010) FLC 93-438 at [43], [49]-[64]).

   [17] Mother’s affidavit, paras 6, 21.4

   [18] Mother’s affidavit, paras 81, 139-142; Single expert report, para 16

   [19] Mother’s affidavit, paras 84-85, 153-169; Single expert report, para 16

2. The mother came to Australia in 2007 to study as a student. It was never her intention to settle permanently in Australia. She has wanted to return to the UK since the time of her pregnancy with the child in 2013, which the father knows, but her appreciation of his desire to stay in Australia and remain involved in the child’s life led her to suppress the urge to return home. Significantly, the mother referred to and genuinely regards the UK as “home”. She promised him she would not return with the child to live in the UK without either his permission or an order allowing it, which promise she laudably fulfilled.

3. The mother has not re-partnered. She remains a single parent, juggling her parental responsibility and employment obligations. Until April 2018, she was working four days per week, but the term of her employment contract expired and she is now unemployed. She has not yet looked for replacement work because she is hopeful of returning to the UK and her disclosure of that intention to any prospective employer would surely preclude any fresh job offer in Australia.[20] If constrained to residence in Australia, she will likely find replacement employment because she has professional qualifications and abundant work experience.[21] Even so, her financial position would then probably be much the same as she has experienced over recent years. She will not be impoverished, but her financial circumstances will remain difficult and require careful budgeting, particularly given the modest amount of child support she receives from the father.[22] He said in cross-examination that money had always been the “bone of contention” between them and he even recently told the Child Support Registrar of his belief the mother is only motivated by the desire to extract money from him, which belief is hardly vindicated by the evidence. If he believes it to be true, it is unlikely his financial generosity will expand.

   [20] Mother’s affidavit, paras 5, 40, 90

   [21] Mother’s affidavit, paras 5, 10

   [22] Mother’s affidavit, paras 75.3, 87, 95-120, 135-137, 139-140

4. In the UK, the mother expects to receive help caring for the child from her family and friends, to whom she is close. They mostly all live in the region of the UK where she intends settling.[23] The mother conceded in cross-examination she has good friends in Sydney who support her emotionally, but she does not derive the same level of succour from them as she anticipates she will from her family in the UK, which perception only emphasises her sense of isolation in Australia.

   [23] Mother’s affidavit, paras 153-169

5. Adherence to her promise to stay in Australia has caused the mother to be miserable, resentful, and emotionally fragile. When confronted by the single expert with the prospect she may be restrained from relocating to the UK, the mother was tearful and reluctant to entertain the idea.[24] She said she felt drained and stressed by reason of her sense of isolation in Australia, the difficulty she has encountered dealing with the father, and her participation in this litigation.[25] The family consultant concluded she was psychologically vulnerable.[26] She had “concerns” about the mother’s “mood and capacity to function and parent in Australia without support” and concluded there is a “real risk” her ability to cope will diminish if she is compelled to remain in Australia with the child.[27] She elaborated those views in cross-examination and said there was a “high risk” the mother’s misery would escalate and her ability to cope would erode. She ventured to predict the mother would consequently become progressively more withdrawn and “dysregulated”, which would adversely affect her care of the child because she would be less physically and emotionally available for the child and so their “bonding and attachment” could be impaired. The father fairly conceded in cross-examination it was important for a child’s primary carer to “fare well emotionally” and it was “possible” the mother would not cope if she was forced to stay in Australia. He admitted the mother would surely be upset by a decision to that effect.

   [24] Single expert report, paras 16, 52

   [25] Single expert report, paras 53, 67m

   [26] Single expert report, para 34

   [27] Single expert report, para 65

6. The father asserted to the single expert the mother has a history of “mental illness”,[28] but that was not the family consultant’s opinion.[29] She did not believe the mother has been clinically depressed or is at any tangible risk of suffering from clinical depression, but she is at risk of developing “depressive symptoms”. Of course, if the mother has previously suffered “mental illness”, as the father apparently believes, or if she does in future develop a diagnosable psychological or psychiatric condition, the risk of adverse consequences for the child is even more pronounced. The father’s asserted belief in the mother’s psychological instability tends to counter his contention that she could or should stoically endure the disappointment of her confinement to Australia.

   [28] Single expert report, para 30

   [29] Single expert report, paras 61, 67m

1. The mother’s unhappiness is not really the subject of much controversy. The father admitted he has discussed it with his own counsellor, though he contended she is only sometimes unhappy; not always unhappy. While it is improbable she would experience complete emotional collapse if compelled to remain living with the child in Australia, it remains a risk. More likely, as the single expert forecast, she would continue to be miserable, resentful, and withdrawn. That would certainly not be in the mother’s interests but, more importantly, not in the child’s interests because she would grow increasingly more conscious of the mother’s melancholy, probably causing her to be sad or anxious herself. Perceptive parents really only have one goal: to keep their children happy and safe. If the mother is perpetually sad, given her role as the child’s primary attachment figure and the undisputed residential parent, it is almost inevitable the joy would incrementally drain from the child’s life. Not even the father would want that to happen.

2. Having considered the mother’s position and the manner in which the child could be affected, it is necessary to give reciprocal consideration to the father’s position. He wants the mother and child to retain their residence here – not just in Australia, but close to his existing home in Sydney – because he is worried the child’s relationship with him will wane if the mother moves even more than a couple of hours journey away from him. When forced to confront the need to consider moving his residence so as to remain close to the mother and child, he was loathe to do so. But he was not always so ill-disposed to move himself. He told the family consultant in 2016 that, if the mother and child moved away, he would “have to follow [the child] as he wants to remain in her life”, though he added the caveat it would depend on his employment prospects.[30] In cross-examination, he did not say he could not move to the UK. Rather, he said “I just don’t know if I can move [to the UK]”. For present purposes, it is important to distinguish between impossibility and difficulty. It would surely be difficult for him to move back to the UK, but not impossible.

   [30] Memorandum, para 27

3. The father ultimately maintained he was unwilling to move back to the UK for several reasons: he has employment in Sydney; he has a relationship in Sydney with Ms C; he does not want to uproot his life after having lived in Australia for so many years; and he has no family support in the UK.

4. The father is employed in a “customer service role”, as he has been for at least the last five years or so. He changed jobs and commenced work with his current employer about 10 months ago, so it has not been long-standing employment. He has had several different employers over the last few years, which suggests he regards his employment skills to be mobile. Customer service skills are likely just as well employed in the UK as in Australia. The mother adduced evidence about the availability of customer service jobs in the area of the UK to which she wishes to relocate,[31] the accuracy of which evidence the father did not challenge. His current employment does not anchor him in Australia and there appear to be reasonable job prospects for him in the UK.

   [31] Exhibit M1, page 44

5. The father met Ms C about 18 months ago, but they only began their cohabitation about three months ago, so their relationship is really in its infancy. They obviously envisage a long-term future together, but they temporarily cooled their relationship during 2017 and could do so again. If they are committed to a mutual future, it would certainly be a wrench for the father to leave the relationship to live in the UK. However, he is no less attached to the child. He told his psychologist he “cannot imagine [the child] not being part of his life, or he not being an integral part of hers”[32] and the paternal grandmother believes the child is “the most important person in [the father’s] life and there is nothing he would not do for her”.[33] There can be no doubt he loves the child dearly. Undoubtedly he would prefer to avoid prioritising the relationship he desires with her and the relationship he desires with Ms C, but it is not an impossible task.

   [32] Exhibit F3

   [33] Affidavit of the paternal grandmother, para 15

6. The father said in cross-examination it would be a “massive upheaval” for him to move to the UK, as indeed it would be emotionally, if he would like to live with Ms C in Australia. But such a move would not cause him any undue financial upheaval, aside from having to resign his employment and look for new work in the UK. He does not own any real estate or any other asset in Australia which would be difficult to liquidate quickly. He has modest savings, an encumbered car, and a credit card debt of about $19,000. He does not have any joint bank accounts with Ms C.

7. The father has no family in the UK, but nor does he have any family support in Sydney. Ms C is his only close source of support in Australia. The paternal grandmother lives in Africa and the few other relatives with whom the father maintains contact live in Perth, Australia. His complaint that he would be without family support in the UK gives credence to the mother’s identical complaint about being without family support in Australia, so he must appreciate the force of her argument, but it is even more compelling in her case because she is and will remain the child’s primary carer.

Conclusion and orders

1. The presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe both parents committed acts of family violence in the past (s 61DA(2)(b)). They both adduced evidence of family violence committed by the other and both made partial admissions of committing acts of family violence. The single expert said in cross-examination that, from her perspective, the episodes of family violence were a “two-way street” and it was not important to identify the instigator or assign blame. That is so.

2. Notwithstanding the inapplicability of the presumption, the father still wanted an order made vesting the parties with equal shared parental responsibility for the child. Such an order could indeed still be made, but only if the child’s best interests warranted it. In this case, such an order is not warranted, because the parties probably cannot share parental responsibility for the child in the manner envisaged by the law (s 65DAC). They are not readily able to courteously consult each other, make a genuine effort to compromise, or reach consensus on important issues related to the child. Their parental relationship has been characterised by intense conflict for years and the evidence afforded little scope for any optimism about positive change.

3. The mother conceded the parties had successfully managed some flexibility and communication,[34] but those concessions were straws in the wind. The father deposed the parties’ conflict over time had “eroded [their] ability to communicate effectively”[35] and in cross-examination he said their parental relationship had been “very difficult” and was “fractured” at times. He told his psychologist he thought their relationship has “generally been dysfunctional”.[36] His lack of trust in the mother and his expectation she would make unfounded allegations against him was such that he could see no option but to demand that all exchanges of the child occur at a “public, neutral location”, even though she was willing to offer her home as an exchange venue.[37] Of course it would also be difficult for the parties to share parental responsibility for the child if they live on opposite sides of the planet. In fact, the father thought it would be “impossible”, not just difficult.[38] However, the decision about the way in which parental responsibility will be conferred must precede decisions about the child’s residential arrangements so as not to offend the inter-relationship between ss 61DA and 65DAA of the Act.

   [34] Mother’s affidavit, paras 21.7, 294

   [35] Father’s affidavit, para 18

   [36] Exhibit F3

   [37] Father’s affidavit, para 20

   [38] Father’s affidavit, para 60

4. In the circumstances, the preponderance of evidence favoured the investiture of one party with exclusive parental responsibility for the child – at least in respect of the “major long-term issues” (s 4(1)) in her life. Since the mother will remain the residential parent, parental responsibility for significant decisions related to the child must rest with her. As a salve, the mother proposed she should be obliged to take the father’s views into account and to notify him of the decisions she makes.[39] An order to that effect is made at her request. Orders in those terms render otiose some other orders proposed by the mother about the child’s passport and international travel,[40] which she conceded in submissions.

   [39] Exhibit M2, Order 3

   [40] Exhibit M2, Orders 18-21

5. Each of the reasons advanced by the father to explain why his move to the UK would cause difficulty and justify his desire to remain in Australia are valid but, in aggregation, they carry less weight than the reasons collectively advanced by the mother for wanting to relocate with the child to the UK. Greater prejudice would fall upon the child and mother by them being confined to Australia than would fall upon the child and father if the mother was free to live with the child where she chooses. For that reason, the mother shall not be restrained from moving the child’s residence away from Australia.

6. As the mother correctly submitted, her proposal gives both parties the choice of where they want to live, whereas the father’s proposal recognises his own choice to live in Australia but deprives her of any choice. If the mother is forced to stay in Australia with the child, little or nothing could be done to remedy the risk of her impaired parenting capacity and its effect upon the child. On the other hand, if the mother relocates to the UK with the child, the sense of loss the child will experience through the father’s physical absence could be remedied by him choosing to live near her in the UK. Alternatively, she should still be able to maintain her meaningful relationship with the father from a distance, albeit the relationship would be stronger if they lived in close proximity.

7. The mother sought an order “permitting” her to relocate the child’s residence to the UK.[41] No such order is made. An order framed in terms which permits a party to relocate, rather than an order which restrains a party’s relocation when appropriate, is not a parenting order within the meaning of s 64B, nor a mandatory or restrictive injunction under ss 68B or 114 of the Act, and is accordingly not a proper exercise of the Court’s power (see AMS v AIF at 223-224, 231-232).

   [41] Exhibit M2, Order 5

8. However, that is not to say the mother’s choice of place of residence for the child should not be confined in any way at all. Injunctions should be made to confine her choice of place of residence consistently with her evidence because she only wants to move to a particular region in the UK near her family, but would otherwise stay in Sydney. An injunction will therefore preclude her from establishing the child’s residence in places other than within Australia and the UK. The litigation would be frustrated if, in the absence of any injunction, the mother later chose to move to some other international location which might make it more difficult for the father to follow or maintain personal contact with the child.

9. Another injunction will additionally restrain the mother’s relocation to the UK until she proves the orders made in these proceedings will be recognised by and enforced in a court of competent jurisdiction in the UK, pursuant to the power under the 1996 Hague Convention. The mother proposed an order to similar effect,[42] but she conceded in submissions it would be better to make her provision of such proof a condition precedent to her relocation with the child to the UK. That should allay the father’s fear she might not observe the orders once outside Australia. The mother wants to be settled in the UK within the next few months so the child can begin school at the commencement of the new academic year in the northern hemisphere autumn. The 1996 Hague Convention provides a “simple and rapid procedure” (Article 26(2)) to obtain advance recognition and a declaration of enforceability of international orders, so the mother’s intention should not be frustrated.

   [42] Exhibit M2, Order 22

10. Whilst the mother and child remain in Australia, the orders require her to ensure the child spends substantial time with the father – amounting to alternate weekends (Friday afternoon until Monday morning), half of school holidays, and part of Christmas Day. The changeover venues are those chosen by the parties when they agreed on interim orders in August 2017.

11. The same type of regime will apply if the parties both live in the UK, though the regime is modified to reduce the child’s time with the father the further away from the child he chooses to live. The father may not be able to live in close proximity to the mother and child for a variety of reasons. For example, suitable employment or accommodation may not be readily available to him nearby. In that situation, the changeover venue is an arbitrarily chosen public venue near to the mother’s home.

12. If the mother and child live in the UK but the father stays in Australia, then the orders make provision for the child to spend time with the father in her UK Summer holidays each year – alternating between the UK and Australia. For the father’s biennial trip to the UK, the mother is ordered to pay him AUD $1,500 in advance to help defray his travel and accommodation expenses, which she volunteered to do during final submissions. In the year the child travels to Australia, the mother is required to ensure her delivery to and collection from the father in Sydney, as she accepted she should.[43]

    [43] Exhibit M2, Order 8.4

13. The orders also make provision for the child to spend time with the father on one other occasion each year in the UK, but that will depend upon the father’s ability and willingness to make the trip.

14. In all instances of international travel by the parties and/or child, the father must give sufficient written notice to the mother of the dates between which the child is to spend with him. The father needs the flexibility to coordinate his own holiday entitlements and employment commitments with the child’s holidays and the mother needs enough notice to prepare the child and make any travel arrangements.

15. The orders making provision for the child to spend time and communicate with the father are intended to simplify the regime proposed by the mother, which introduced too much complication and the need for undue communication between the parties. The uncertainty over the parties’ future places of residence means some degree of flexibility is unavoidable, but the orders should be as prescriptive and simple as circumstances allow. The opportunity for further disagreements between them should be avoided.

16. Although the father did not engage the debate about suitable orders if the mother and child relocate to the UK, the orders he proposed while the mother and child continue to live in Sydney are not made. His proposal included an extra mid-week night every week, but three consecutive nights each alternate weekend is sufficient. His proposal for extra time with the child on his birthday and at Easter was not the subject of any explanatory evidence or submission. The time the child spends with the father is best consolidated, not fragmented.

17. The single expert expressed some concerns, both in her report and during her cross-examination, about the child spending block-time with the father until he “address[es]” his “problems with anger management and alcohol abuse”, but that evidence is paid no heed. First, the mother did not propose any limitations upon the child’s visits with the father, save for graduation of the length of visits because of her young age and an injunction restricting the father’s alcohol consumption.[44] Second, the father has addressed his anger and alcohol consumption over several years with a psychologist, who asserts he presents no real risk.[45] Third, the single expert did not even consult with the father and her concerns sprang only from the contents of documents she read and statements made by the mother, which were merely “suggest[ive]” of the “possibility” the father poses a “risk” to the child.[46] The single expert was right to be cautious about identifying tangible risks, but there is no need to jump at shadows. The mother sensibly did not.

    [44] Exhibit M2, Order 13

    [45] Exhibit F3

    [46] Single expert report, para 63

18. The injunction sought by the mother restraining the father from consuming alcohol while the child is in his care and for the 12 hours immediately preceding her visits with him is made. The father conceded alcohol consumption has been a problem for him in the past, he knew the mother wanted the comfort of such an injunction, and he did not take issue with it during the trial.

19. The orders make provision for the child and father to communicate by telephone on a weekly basis when they live nearby and have reasonably frequent visits but, when they do not, the orders provide for them to communicate by audio-visual link three times per week. That was the frequency proposed as appropriate by the mother to the single expert[47] and that was the frequency the single expert endorsed in cross-examination as being appropriate. Similar orders are made for the child’s communication with the mother when she is spending time with the father during holiday periods.

    [47] Single expert report, para 41

20. The remaining orders are self-explanatory and could not be the subject of reasonable objection.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 13 June 2018.

Associate:

Date:  13 June 2018